Commonwealth v. Morgan

258 A.3d 1147

COMMONWEALTH of Pennsylvania, Appellee

v.Ronald Scott MORGAN, Appellant

No. 658 WDA 2020

Superior Court of Pennsylvania.

Submitted January 19, 2021

Filed: July 13, 2021

Joseph L. Smith, Butler, for appellant.

Mark A. Lope, Assistant District Attorney, Butler, for Commonwealth, appellee.

BEFORE: DUBOW, J., MURRAY, J. and STRASSBURGER, J.^*

OPINION BY DUBOW, J.:

Appellant, Ronald Scott Morgan, appeals from the Judgment of Sentence entered on March 6, 2020, wherein the sentencing court resentenced Appellant to the same aggregate sentence as his original sentence. After careful review, we affirm Appellant's designation as a sexually violent predator ("SVP"), vacate his judgment of sentence, and remand for resentencing.

In May 2013, a jury convicted Appellant of one count each of Possession of a Controlled Substance, Possession of a Small Amount of Marijuana, Statutory Sexual Assault, Aggravated Indecent Assault, Indecent Assault, Endangering the Welfare of Children, and Corruption of Minors; two counts each of Involuntary Deviate Sexual Intercourse ("IDSI"); and 104 counts each of Sexual Abuse of Children (Photographing, Videotaping, Depicting on Computer or Filming Sexual Acts) and Sexual Abuse of Children (Child Pornography).¹ The court sentenced Appellant to an aggregate term of 182 to 364 months of imprisonment.² After a hearing, the court also designated him an SVP and lifetime registrant under The Sexual Offender Registration and Notification Act ("SORNA").³ Appellant timely appealed, but this Court denied relief. See Commonwealth v. Morgan , 135 A.3d 661 (Pa. Super. 2015) (unpublished memorandum).

On January 12, 2017, Appellant timely sought collateral relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 -46, challenging the legality of his sentence and the effective assistance of counsel. Following a hearing, the PCRA court entered an order on May 21, 2018, partially granted the petition and vacated Appellant's sentence because the mandatory minimum sentences imposed at the two IDSI convictions were illegal in light of Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The PCRA court denied the petition in all other respects. Appellant timely appealed, but this Court denied relief. See Commonwealth v. Morgan , 221 A.3d 1228 (Pa. Super. 2019) (unpublished memorandum).

On March 6, 2020, the court held a resentencing hearing and imposed the same aggregate sentence of 182 to 364 months of imprisonment.⁴ Appellant timely filed a Post-Sentence Motion, challenging the constitutionality of his SVP designation, the discretionary aspects of his sentence, and seeking credit for time served. As to his sentence, he argued the court erred by imposing consecutive IDSI sentences and failing to consider his rehabilitative needs, resulting in his receiving the same sentence that had been previously vacated. The court granted the motion for time credit and otherwise denied relief.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The trial court issued a responsive Opinion, referring us in part to its June 10, 2020 Opinion disposing of the Post-Sentence Motion.

Appellant raises the following issues on appeal:

1. [Whether] the trial court abuse[d] its discretion when it resentenced Appellant to the same sentence that was previously imposed following the PCRA court's grant of Ap[p]ellant's relief on his illegal mandatory minimum sentence claim in that the trial court's new sentence merely continued to impose the previously vacated minimum sentence, the trial court failed to consider, as it must, all required sentencing factors set forth in the Sentencing Code (specifically, 42 Pa.C.S. § 9721(b) and 42 Pa.C.S. § 9725 ), and the trial court failed to order a new pre-sentence investigation report, resulting in a sentence that was not individually tailored to the Appellant, requiring another resentencing hearing[; and]

2. [Whether] the [SVP] designation as provided under [SORNA] is unconstitutional because it violates Appellant's fundamental right to protect his reputation as secured by Article 1, Section 1 of the Pennsylvania Constitution [.]

Appellant's Br. at 15 (lower court answers and unnecessary capitalization omitted).

We first consider Appellant's claim that his SVP designation violates his right to reputation under the Pennsylvania constitution. We begin with a brief background on SORNA and SVP designations. In Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (plurality), our Supreme Court held that SORNA's sex offender registration requirements constituted punishment, and therefore retroactive application of those requirements violated the constitutional prohibition against ex post facto laws. Relying on Muniz , our Court held in Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017) (" Butler I "), that the registration requirements applicable to SVPs pursuant to SORNA I constituted increased criminal punishment and that the procedure for conducting SVP determinations did not comply with Alleyne .

[T]he lifetime registration, notification, and counseling requirements (RNC requirements) applicable to SVPs pursuant to 42 Pa.C.S. §§ 9799.15, 9799.16, 9799.26, 9799.27, and 9799.36 are increased criminal punishment such that the procedure for conducting SVP determinations violates the requirements of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).³

³ In Apprendi and Alleyne , the Supreme Court of the United States held any fact, which increases the statutory maximum penalty ( Apprendi ), or mandatory minimum sentence ( Alleyne ), must be submitted to a jury and proven beyond a reasonable doubt.

Commonwealth v. Butler ("Butler II "), ––– Pa. ––––, 226 A.3d 972, 976 (2020) (parallel citations omitted). Our Supreme Court reversed this Court's decision in Butler I , concluding that the "RNC requirements do not constitute criminal punishment and therefore the procedure for designating individuals as SVPs under Section 9799.24(e)(3) is not subject to the requirements of Apprendi and Alleyne and remains constitutionally permissible." Butler II , 226 A.3d at 976.⁵

Prior to our Supreme Court's decision in Butler II , and in response to Muniz and Butler I , the General Assembly enacted Act 10, which split SORNA into two different subchapters, Subchapter H and Subchapter I.

In response to Muniz and Butler I , the General Assembly enacted Act 10, specifically declaring that "[i]t is the intention of the General Assembly to address the Pennsylvania Supreme Court's decision in ... Muniz ... and the Pennsylvania Superior Court's decision in Butler [I ]." 42 Pa.C.S. § 9799.11(4). Act 10 split SORNA, which was previously designated in the Sentencing Code as Subchapter H[,] into two subchapters. Revised Subchapter H applies to crimes committed on or after December 20, 2012, whereas Subchapter I applies to crimes committed after April 22, 1996, but before December 20, 2012. In essence, Revised Subchapter H retained many of the provisions of SORNA, while Subchapter I imposed arguably less onerous requirements on those who committed offenses prior to December 20, 2012, in an attempt to address this Court's conclusion in Muniz that application of the original provisions of SORNA to these offenders constituted an ex post facto violation.

Commonwealth v. Torsilieri , ––– Pa. ––––, 232 A.3d 567, 580–81 (2020).

Appellant sought relief from his SVP designation in 2020. At that time, he was no longer subject to the requirements of SORNA I. Rather, he was subject to the registration requirements mandated by Subchapter I of SORNA II because he committed his offenses prior to December 20, 2012. Our Supreme Court held in Commonwealth v. Lacombe , ––– Pa. ––––, 234 A.3d 602, 605–06 (2020), that Subchapter I of SORNA II "is nonpunitive and does not violate the constitutional prohibition against ex post facto laws."

While the Lacombe Court found Subchapter I constitutional, it did not address whether Subchapter I's SVP designation violates the right to reputation as provided in the Pennsylvania Constitution. Thus, as a matter of first impression, we now turn to that question. We begin with our standard of review.

When an appellant challenges the constitutionality of a statute, the appellant presents this Court with a question of law. See Commonwealth v. Atwell , 785 A.2d 123, 125 (Pa. Super. 2001) (citation omitted). Our consideration of questions of law is plenary. See id. , 785 A.2d at 125 (citation omitted). A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution. See Commonwealth v. Etheredge , 794 A.2d 391, 396 (Pa. Super. 2002) (citations omitted). Thus, the party challenging the constitutionality of a statute has a heavy burden of persuasion. See id. , 794 A.2d at 396 (citation omitted).

Commonwealth v. Manzano , 237 A.3d 1175, 1179–80 (Pa. Super. 2020) (quoting Commonwealth v. Howe , 842 A.2d 436, 441 (Pa. Super. 2004) ). The Pennsylvania Constitution recognizes the right to reputation as a fundamental interest.

[I]n Pennsylvania, reputation is an interest that is recognized and protected by our highest state law: our Constitution. Sections 1 and 11 of Article I make explicit reference to "reputation," providing the basis for this Court to regard it as a fundamental interest which cannot be abridged without compliance with constitutional standards of due process and equal protection.

R. v. Commonwealth, Dep't of Pub. Welfare , 535 Pa. 440, 636 A.2d 142, 149 (1994) (citation omitted). See also Torsilieri , 232 A.3d at 585 ("[U]nlike the federal constitution, the Pennsylvania Constitution specifically protects the right to reputation as a fundamental right in Article I, Section 1, which provides: ‘All men are born equally free and independent, and have...