J-S24002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    JUSTIN TORRES                               :
                                                :
                       Appellant                :   No. 2666 EDA 2019

          Appeal from the Judgment of Sentence Entered July 16, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0002678-2018


BEFORE:      BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED AUGUST 07, 2020

        Appellant, Justin Torres, appeals from the judgment of sentence of 3-6

years’ incarceration imposed following his guilty plea to aggravated indecent

assault (“AIA”), 18 Pa.C.S. § 3125.            The trial court ordered Appellant to

comply with the Sexual Offenders Registration and Notification Act (“SORNA

I”), 42 Pa.C.S. § 9799.10, et. seq., as modified by Acts 10 and 29 of 20181

(“SORNA II”), as a Tier III offender. Appellant presents various arguments

challenging the constitutionality of SORNA II. After careful review, we vacate

the portion of Appellant’s judgment of sentence deeming him a Tier III

offender under SORNA II, and remand for further proceedings consistent with

this memorandum.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29).
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       On March 29, 2019, Appellant pled guilty to AIA. The facts underlying

Appellant’s guilty plea are not germane to this appeal. Subsequently, on July

16, 2019, the trial court sentenced Appellant to 3-6 years’ incarceration, and

ordered him to register as a Tier III offender2 under SORNA II. “On July 19,

2019, an en banc panel of [the Court of Common Pleas of Monroe County]

that had been empaneled to hear a variety of challenges to SORNA [II]

entered an order (the “SORNA Order”) denying constitutional challenges to

SORNA [II] raised in several other cases.”       Trial Court Opinion (“TCO”),

10/11/19, at 1.

       Appellant filed a timely post-sentence motion on July 26, 2019, in which

he challenged the constitutionality of SORNA II. At that time, our Supreme

was still considering the case of Commonwealth v. Torsilieri, No. 37 MAP

2018, 2020 WL 3241625 (Pa. filed June 16, 2020).          In Appellant’s post-

sentence motion, he raised claims identical to the issues upon which the trial

court in Torsilieri deemed SORNA II unconstitutional. See Appellant’s Post-

Sentence Motion, 7/26/19, at 3 ¶ 11 (“The issues raised by [Appellant] in this

case, as well as in the case of … Torsilieri … are the same.”). Based on the

SORNA Order, the trial court denied Appellant’s post-sentence motion without

a hearing on August 13, 2019. TCO at 2.
____________________________________________


2 Inter alia, Tier III offenders are required to register for life with the
Pennsylvania State Police, 42 Pa.C.S. § 9799.15(a)(3), and are subject to
mandatory in-person reporting requirements quarterly.        42 Pa.C.S. §
9799.25(a)(3).

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     Appellant filed a timely notice of appeal, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion

on October 11, 2019.

     Appellant now presents the following questions for our review:

     1. Whether the [trial] court erred when it found that SORNA [II]
     does not deny [A]ppellant due process under Articles 1 and 11 of
     the Pennsylvania Constitution because it creates an irrebuttable
     presumption that those convicted of the enumerated offenses
     “pose a high risk of committing additional sexual offenses”
     depriving those individuals of the fundamental right to reputation?

     2. Whether the court erred when it found that SORNA [II] does
     not deny [A]ppellant procedural due process under Article 11 of
     the Pennsylvania Constitution because it unlawfully impinges on
     the right to reputation without notice and an opportunity to be
     heard?

     3. Whether the court erred when it found that SORNA [II] does
     not deny [A]ppellant procedural due process under the Fifth and
     Fourteenth amendments to the United States Constitution
     because it unlawfully restricts liberty and privacy without notice
     and an opportunity to be heard?

     4. Whether the court erred when it found that SORNA [II] does
     not violate substantive due process under the Pennsylvania and
     Federal Constitutions, U.S. CONST. Amend. XIV, Pa. CONST. Art. 1,
     § 1, because SORNA [II] deprives individuals of inalienable rights
     and fails to satisfy strict scrutiny?

     5. Whether the court erred when it found that SORNA [II] does
     not constitute criminal punishment and therefore violates the
     separation of powers doctrine because it usurps the exclusive
     judicial function of imposing a sentence?

     6. Whether the court erred when it found that SORNA [II] does
     not contravene the Fifth, Sixth, and Fourteenth Amendments [to]
     the United States Constitution and the corresponding protections
     of the Pennsylvania Constitution because as a criminal
     punishment, SORNA cannot be imposed without due process,
     notice, and opportunity to contest its imposition, and ensuring
     that each fact necessary to support the mandatory sentence is

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       submitted to a jury and proven beyond a reasonable doubt
       pursuant to Apprendi v. New Jersey, 530 U.S. 266 (2000)[,]
       and Alleyne v. United States, 1570 U.S. 99 (2013)?

       7. Whether the court erred when it found that SORNA [II] does
       not constitute criminal penalties and therefore the imposition of
       mandatory lifetime sex offender registration for nearly all of [T]ier
       III offenses is not cruel and unusual punishment in violation of the
       Eighth and Fourteenth Amendments to the United States
       Constitution and Article 1, Section 13 of the Pennsylvania
       Constitution?

Appellant’s Brief at 8-10.       As all these claims are identical to the matters

considered by our Supreme Court in Torsilieri, which the Court recently

decided, Torsilieri guides our disposition in this case.

       In Torsilieri, the Commonwealth appealed from the trial court’s order

deeming SORNA II unconstitutional under multiple legal theories pertaining to

the registration and reporting requirements set forth in Revised Subchapter

H3 of the statute. More specifically, the trial court had
       concluded that the registration and notification provisions of
       Revised Subchapter H violated [Torsilieri]’s right to due process
       by impairing his right to reputation, as protected by the
       Pennsylvania Constitution, through the utilization of an
       irrebuttable presumption. The court also concluded that the
       statute violated his right to due process under the United States
       and Pennsylvania Constitutions because the statutory system
       failed to provide the requisite notice and opportunity to be heard.
       It also concluded that Revised Subchapter H violated the
       separation of powers doctrine because the General Assembly’s
       enactment of Revised Subchapter H essentially removed the trial
       court’s ability to fashion an individualized sentence. Finally, the
       court held that the statute violated Alleyne and Apprendi by
       allowing “the imposition of enhanced punishment based on an
       irrebuttable presumption of future dangerousness that is neither
       determined by the finder of fact nor premised upon proof beyond
____________________________________________


3 The Supreme Court uses the term “Revised Subchapter H” to refer to
Subchapter H as it appears under SORNA II.

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      a reasonable doubt.” The court, therefore, vacated [Torsilieri]’s
      sentence to the extent it required him to comply with Revised
      Subchapter H’s sexual offender registration provisions.

Torsilieri, 2020 WL 3241625 at *3.

      The Torsilieri Court did not ultimately reach the merits of any of the

constitutional challenges at issue in the Commonwealth’s appeal, determining

instead that the factual record was not sufficiently developed in the trial court,

noting “the Commonwealth’s tactics at the post-sentence hearing …

potentially prevented the necessary development of the record.” Id. at *22.

In order to resolve all the constitutional challenges, the Torsilieri Court

concluded that factual and credibility findings were necessary regarding

whether “the legislative determinations underpinning Revised Subchapter H

[of SORNA II] … (1) that all sexual offenders pose a high risk of recidivation

and (2) that the tier-based registration system of Revised Subchapter H

protects the public from the alleged danger of recidivist sexual offenders …

have been undermined by recent scientific studies….” Id. at *21.

      Although the Torsilieri Court recognized that “it will be the rare

situation where a court would reevaluate a legislative policy determination,”

it nevertheless determined that Torsilieri had presented evidence constituting

“a colorable argument to debunk the settled view of sexual offender

recidivation rates and the effectiveness of tier-based sexual offender

registration systems underlying the General Assembly’s findings….”         Id. at

*22. However, “as the trial court did not have the benefit of the opposing

science, if any, the evidence” before the Supreme Court in Torsilieri did “not


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provide a sufficient basis to overturn the legislative determination.”       Id.

Accordingly, the Court concluded that “the proper remedy is to remand to the

trial court to provide both parties an opportunity to develop arguments and

present additional evidence and to allow the trial court to weigh that evidence

in determining whether [Torsilieri] has refuted the relevant legislative

findings.” Id.

      In the case sub judice, the trial court denied without a hearing

Appellant’s post-sentence motion, which raised explicitly identical claims to

those at issue in Torsilieri.   In doing so, the court relied exclusively on the

SORNA Order. TCO at 2 (“The SORNA Order states the reasons why we denied

[Appellant]’s challenge and, therefore, adequately addresses his appeal

issue.”).   The trial court further noted that all of Appellant’s constitutional

challenges “will ultimately rise or fall with our Supreme Court’s decision in the

Torsilieri appeal.” Id. However, the SORNA order contains no analysis of

the Torsilieri issues. See SORNA Order, 7/18/19, at 2-3. The order indicates

that a hearing was held, but does not identify what evidence, if any, was

presented at that hearing. Id. at 1.

      Here, just as in Torsilieri, there is insufficient evidence of record to

decide any of the issues before us. Thus, following Torsilieri, we vacate the

order denying Appellant’s post-sentence motion and remand for a post-

sentence motion hearing at which the parties can present evidence for and

against the relevant legislative determinations discussed above.     Otherwise,

we affirm Appellant’s judgment of sentence in all other respects.

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     Judgment of sentence vacated in part, affirmed in part.   Case

remanded for further proceedings consistent with this memorandum and

Torsilieri. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/20




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