Com. v. Manella, N.

• Court: Superior Court of Pennsylvania
• Decided: June 29, 2021
• Docket: 99 EDA 2020
• Status: Unpublished

Opinion

J-A08002-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NICHOLAS WALKER MANELLA : : Appellant : No. 99 EDA 2020

Appeal from the Judgment of Sentence Entered December 4, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002598-2019

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JUNE 29, 2021

Nicholas Walker Manella appeals from the judgment of sentence entered

in the Montgomery County Court of Common Pleas. Manella contends that

Subchapter H of the Sex Offender Registration and Notification Act (“SORNA

II”), 42 Pa.C.S.A. §§ 9799.10-9799.41, violates the United States and

Pennsylvania Constitutions. However, Manella failed to preserve his

constitutional challenges in a post-sentence motion, and therefore waived

these claims. For that reason, we affirm.

Manella concealed a video camera in a locker room to capture women

in stages of undress for his own sexual gratification. The Commonwealth filed

a criminal information charging him with various offenses related to the

incident. Manella entered a negotiated guilty plea to one count of attempted ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A08002-21

invasion of privacy and one count of harassment.1 The trial court sentenced

Manella in accordance with the terms of his plea agreement to three years’

probation and ordered him to register as a Tier I sexual offender under

Subchapter H of SORNA II.2 Manella did not file a post-sentence motion.

Thereafter, Manella filed a timely notice of appeal. The trial court issued

an order directing Manella to file a 1925(b) statement within twenty-one days.

Manella filed a timely 1925(b) statement.

On appeal, Manella raises three issues for our review:

1.Whether [SORNA II] denies [offenders] substantive and procedural due process under Articles 1 and 11 of the Pennsylvania Constitution because it creates an irrebuttable presumption that those convicted of enumerated offenses, such as . . . Attempted Invasion of Privacy, ‘pose a high risk of committing additional sexual offenses[,]’ thereby depriving those individuals of their fundamental right to reputation without notice and an opportunity to be heard?

2.Whether, because [SORNA II] imposes punishment without adequate process and is not narrowly tailored to serve a compelling state interest, but instead is premised upon an irrebuttable presumption about future likelihood to commit sexual offenses, SORNA’s registration and notification provisions are constitutionally excessive in violation of the Eighth Amendment’s proscription against cruel and unusual punishment and the corresponding proscription embodied in Pennsylvania’s Constitution?

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1 See 18 Pa.C.S.A. §§ 901(a), 2709(a)(3).

2 As a Tier I offender, Manella is subject to registration for a period of fifteen

years and is required to appear annually in person at an approved site to verify his registration information and be photographed. See 42 Pa.C.S.A. § 9799.15(a)(1), (e)(1).

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3.Whether [SORNA II] violates the Equal Protection [C]lause, particularly as it applies to [life-time offenders], because the post- deprivation process available to lifetime registration offenders to petition the court after twenty-five . . . years is not available [to Tier I offenders, who are required to register for fifteen years]?

Appellant’s Brief at 5-6.

Manella’s issues all challenge the constitutionality of Subchapter H of

SORNA II. “[T]he constitutionality of a statute presents a pure question of law.

Therefore, our standard of review is de novo and scope of review is plenary.”

Commonwealth v. Wade, 33 A.3d 108, 115-16 (Pa. Super. 2011).

In addressing constitutional challenges to legislative enactments, we are

mindful that:

the General Assembly may enact laws which impinge on constitutional rights to protect the health, safety, and welfare of society, but also that any restriction is subject to judicial review to protect the constitutional rights of all citizens. We emphasize that a party challenging a statute must meet the high burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution.

Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020).

A brief review of this Court’s holding in Commonwealth v. Reslink,__

A.3d __, 2020 WL 7415959 (Pa. Super. 2020), is necessary given the nature

of Manella’s constitutional claims. There, the appellant challenged for the first

time on appeal the constitutionality of Subchapter H, arguing that his claims

implicated the legality of his sentence. See Reslink,__ A.3d __, 2020 WL

7415959, at *3-*4. However, the appellant failed to raise these claims before

the trial court, in a motion to bar application of SORNA, or in a post-sentence

motion. See Reslink,__ A.3d __, 2020 WL 7415959, at *8. As a result, this

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Court found that the appellant waived his constitutional claims for failure to

properly raise them in the trial court. See Reslink,__ A.3d __, 2020 WL

7415959, at *8.

Most recently, in Commonwealth v. Snyder,__ A.3d __, 2021 WL

1324388, at *9 (Pa. Super. 2021), a panel of this Court considered, and

dismissed, identical constitutional claims because the appellant failed to raise

these issues in the trial court. After recognizing that illegal sentencing claims

cannot be waived for failure to raise them first in the trial court, the Snyder

Court, however, found that Reslink “created an exception to the typical rules

governing [Pa.R.A.P.] 302(a) waiver and claims aimed at allegedly illegal

sentences.” Snyder,__ A.3d __, 2021 WL 1324388, at *9. Therefore, even

constitutional challenges to SORNA II reporting requirements can be waived

by a failure to first raise them in the trial court. See Snyder,__ A.3d __, 2021

WL 1324388, at *9. As such, the Snyder Court concluded that the appellant

had waived his issues. See Snyder,__ A.3d __, 2021 WL 1324388, at *9.

Here, Manella failed to assert his constitutional challenges to Subchapter

H in a post-sentence motion. Instead, Manella presented them for the first

time in his Rule 1925(b) statement. Therefore, under Reslink and Snyder,

we conclude that Manella waived his constitutional challenges to Subchapter

H of SORNA II.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/29/2021

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