Com. v. Sherman, F.

• Court: Superior Court of Pennsylvania
• Decided: April 17, 2024
• Docket: 305 EDA 2023
• Status: Unpublished

Opinion

J-S40026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANK SHERMAN : : Appellant : No. 305 EDA 2023

Appeal from the Judgment of Sentence Entered July 20, 2022 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002193-2021

BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J.*

JUDGMENT ORDER BY SULLIVAN, J.: FILED APRIL 17, 2024

Frank Sherman (“Sherman”) appeals from the judgment of sentence

following his guilty plea to failure to comply with sexual offender registration

requirements.1 We affirm.

In April 2022, Sherman entered an open guilty plea to failure to comply

with the requirement he register with the Pennsylvania State Police (“PSP”)

pursuant to subchapter I of the Sexual Offender Registration and Notification

Act (“SORNA”), from a prior conviction for sexual offenses against children.

See N.T., 7/20/22, at 8. In July 2022, the court convened a sentencing

hearing and sentenced Sherman to a standard-range sentence of thirty to

one-hundred-and-twenty months of imprisonment. See id. at 3, 6, 22.

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. § 4915.2(a)(1). J-S40026-23

Sherman filed a timely post-sentence motion challenging the

discretionary aspects of sentence. In August 2022, he filed a supplemental

post-sentence motion in response to the Chester County Court of Common

Pleas’ 2022 declaration in Commonwealth v. Torsilieri, No. CP-15-CR-

1570-2016, on remand from the Supreme Court in Commonwealth v.

Torsilieri, 232 A.3d 567 (Pa. 2020) (“Torsilieri I”), arguing the registration

requirements of subchapter H of the Sexual Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.42, are

unconstitutional.2 In September 2022, the court held a hearing on Sherman’s

post-sentence motion.3 At the hearing, Sherman asserted his post-sentence

motion presented a legal question that did not require testimony or evidence.

See Sherman’s Brief at 7. On December 13, 2022, the court ruled Sherman

pled guilty to a subchapter I, not a subchapter H, offense, and even if

subchapter H applied, Sherman failed to develop an evidentiary record at the

hearing on his motion, defeating his challenge. See Order of Court, 12/13/22,

at 2-8.

Sherman filed a timely notice of appeal and he and the trial court

complied with Pa.R.A.P. 1925. ____________________________________________

2 The Commonwealth’s appeal of the Common Pleas Court decision is currently

before the Pennsylvania Supreme Court. See Commonwealth v. Torsilieri, 97 MAP 2022 (“Torsilieri II).

3 The transcript of the hearing is not in the certified record on appeal, although

Sherman appears to have requested its transcription. Given Sherman’s assertions about the contents of that hearing, we can adjudicate his claim without that transcript.

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On appeal, Sherman presents the following issues for our review:

a. Should this matter be remanded to the trial court to permit the defense to develop a factual record with scientific evidence to challenge SORNA’s policy determinations that (1) all sex offenders pose a high risk of recidivism and (2) the tier-based registration system protects the public from this purported danger?

b. Alternatively, should the Court defer its resolution of this matter pending a definitive ruling by the Pennsylvania Supreme Court on these issues?

Sherman’s Brief at 4.

In a single, combined argument, Sherman concedes he plead guilty to

violating his subchapter I reporting requirements but asserts this Court

should remand to allow the development of a record or stay its decision

pending a ruling by the Supreme Court on the constitutionality of subchapter

H, which he equates to subchapter I. See Sherman’s Brief at 11-14.

A challenge to the constitutionality of a statute presents a question of

law. See Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa. Super. 2001).

A statute is presumed constitutional and will not be deemed unconstitutional

unless it clearly, palpably, and plainly violates the constitution. See

Commonwealth v. Papp, 305 A.3d 62, 70 (Pa. Super. 2023). A party

challenging a statute’s constitutionality must satisfy a heavy burden of

persuasion. See id.

The trial court held Sherman pled guilty to failing to report pursuant to

subchapter I, not subchapter H, and in any event, Sherman expressly declined

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to present evidence to support a subchapter H challenge. See Trial Court

Order, 12/13/22, at 2-8.

We affirm Sherman’s judgment of sentence. In Commonwealth v.

Lacombe, 234 A.3d 602 (Pa. 2020), our Supreme Court rejected a challenge

to the constitutionality of subchapter I’s registration requirements. See id.

at 626-27. Sherman concedes he pled to violating the registration

requirements of subchapter I, not subchapter H. See Sherman’s Brief at

10. Notably, Sherman does not mention Lacombe on appeal or dispute

subchapter I governs his reporting obligations.

Additionally, this Court has repeatedly rejected a claim that subchapter

I creates an irrebuttable presumption of recidivism. See Commonwealth v.

Smith, 276 A.3d 206 (unpublished memorandum, March 1, 2022, at *4),4

citing Commonwealth v. Spears, Nos. 2424 & 2439 EDA 2019 (unpublished

memorandum) (explaining, inter alia, subchapter I does not create an

irrebuttable presumption of recidivism). Sherman’s claim thus fails on its face.

Judgment of sentence affirmed.

4 See Pa.R.A.P. 126(b)(1)-(2) (stating non-precedential decisions of this Court

filed after May 1, 2019, may be cited for their persuasive value).

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Date: 4/17/2024

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