Commonwealth v. Snide

245 A.3d 1117 (Table)

COMMONWEALTH of Pennsylvania v. Adam Dwight SNIDE, Appellant

No. 2102 MDA 2018

Superior Court of Pennsylvania.

Filed December 31, 2020

MEMORANDUM BY STEVENS, P.J.E.:

Appellant Adam Dwight Snide appeals the judgment of sentence entered by the Court of Common Pleas of Luzerne County after Appellant pled guilty to two counts of dissemination of child pornography and one hundred counts of possession of child pornography. ¹ Appellant challenges the constitutionality of his registration requirements under Pennsylvania's Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. § 9799.10 et seq ., as modified by Acts 10 and 29 of 2018 ² ("SORNA II"). After careful review, we affirm the judgment of sentence.

On April 11, 2018, Appellant pled guilty to the aforementioned charges, admitting he had disseminated two images of minor children being sexually abused by adults and had in his possession over one hundred images/videos of similar child pornography. The criminal complaint states that Appellant disseminated and possessed child pornography from October 9, 2016 to August 1, 2017.

At the plea hearing, the trial court notified Appellant that he would be required to register under SORNA and submit to an evaluation by the Sexual Offenders' Assessment Board (SOAB). Appellant confirmed he reviewed the plea agreement and understood he could be "subject to certain registration requirements that could include anything up to lifetime reporting" under SORNA. Notes of Testimony (N.T.), Plea Hearing, 4/11/18, at 4.

On July 2, 2018, Appellant proceeded to a sentencing hearing, during which he asked for leniency, expressed remorse for his crimes, and noted he had sought therapy for sex offender rehabilitation. N.T., Sentencing, 7/2/18, at 5-9. While the prosecution acknowledged Appellant cooperated with investigators, the arresting detective emphasized how troubled he was by the violent nature of the images and videos that Appellant disseminated and possessed that depicted infants and young children placed in bondage and forced to participate in sexual acts with adults. Id . at 10. As Appellant admitted downloading such images for over twenty years, the prosecutor expressed skepticism in Appellant's assertion that he had been rehabilitated with a short period of therapy. Id . at 15.

At the conclusion of the hearing, the trial court sentenced Appellant to an aggregate term of incarceration of three to fifteen years' imprisonment to be followed by twenty-one years of consecutive probation. Noting that the SOAB found Appellant was not a Sexually Violent Predator (SVP), the trial court ordered Appellant to register as a Tier II sex offender for twenty-five years under SORNA II. See 42 Pa.C.S.A. §§ 9799.14(c)(4) ; 9799.15(a)(2).

On July 10, 2018, Appellant filed a motion to modify his sentence. On July 12, 2018, Appellant filed a supplemental post-sentence motion in which he challenged the application of SORNA II's registration and reporting requirements. On October 3, 2018, the trial court held a hearing on the post-sentence motion but held its ruling in abeyance to allow the parties to submit briefs. The trial court also granted the defense's request for a thirty-day extension for the resolution of Appellant's post-sentence motions. See Pa.R.Crim.P. 720(B)(3)(b).

On December 12, 2018, the trial court entered an order denying Appellant's post-sentence motions. On December 17, 2018, Appellant filed a notice of appeal. Appellant subsequently complied with the trial court's direction to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issue for review in his statement of question presented section of his appellate brief:

Whether SORNA II contravenes the 5 ^th, 6 ^th and 14 ^th Amendments of the United States Constitution and Pennsylvania Constitution as a criminal punishment, without appropriate due process requiring that each fact necessary to support imposition of sentence over which the court has no control is submitted to a jury and proven beyond a reasonable doubt? Apprendi v New Jersey , 530 U.S. 466 (2000) and Alleyne v. United States , 570 U.S. 99 (2013) ?

Appellant's Brief, at 2.

While Appellant raises one general issue in the question presented section of his appellate brief, Appellant includes several claims in the argument section that is not divided into relevant subheadings. Appellant claims his registration requirements under SORNA II violate his due process rights in that he was subjected to an "irrebuttable presumption that he poses a high risk of committing additional sexual offenses [which] deprives him of his fundamental right to reputation." 1925(b) statement, at 2.

Appellant also argues that his registration requirements under SORNA II constitute criminal punishment and thus, must comply with all constitutional and statutory protections related to sentencing. As such, Appellant contends that his registration requirements illegally imposed increased punishment in excess of his term of imprisonment and added an element or fact which was never presented to a fact finder in violation of Apprendi and Alleyne . Appellant's Brief, at 16.

In doing so, Appellant has not complied with our rules of appellate procedure. Rule 2116(a) specifically provides that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa.R.A.P. 2116(a). In addition, our rules of appellate procedure require that "[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part – in distinctive type or in type distinctively displayed – the particular point to be treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a).

This Court has generally found that an appellant's failure to include an issue in the statement of questions presented section of his brief results in waiver of that argument. Commonwealth v. Hodge , 144 A.3d 170, 172 n.4 (Pa.Super. 2016) (quoting Pa.R.A.P. 2116(a) ). However, "such a defect may be overlooked where [the] appellant's brief suggests the specific issue to be reviewed and [the] appellant's failure does not impede our ability to address the merits of the issue." Werner v. Werner , 149 A.3d 338, 341 (Pa.Super. 2016).

While Appellant did not list his specific arguments in his statement of questions presented section of his brief, Appellant did set forth each claim in his post-sentence motion, his 1925(b) statement, and in the argument section of his appellate brief. As this briefing deficiency does not hamper our ability to review his claims, we proceed to review the merits of the appeal.

Our standard of review for Appellant's challenges to SORNA's constitutionality is as follows:

[w]hen 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. Cosby , 224 A.3d 372, 431 (Pa.Super. 2019) (quoting Commonwealth v. Howe , 842 A.2d 436, 441 (Pa.Super. 2004) ).

In evaluating Appellant's claims, it is helpful to review this Court's summary of the legislative history of Pennsylvania's schemes for sex offender registration and the precedent reviewing their constitutionality:

[c]ourts have also referred to SORNA as the Adam Walsh Act. SORNA [was] the General Assembly's fourth enactment of the law commonly referred to as Megan's Law. Megan's Law I, the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was enacted on October 24, 1995, and became effective 180 days thereafter. Megan's Law II was enacted on May 10, 2000[,] in response to Megan's Law I being ruled unconstitutional by our Supreme Court in Commonwealth v. Williams , ... 557 Pa. 285, 733 A.2d 593 ( [Pa.] 1999). Our Supreme Court held that some portions of Megan's Law II were unconstitutional in Commonwealth v. Gomer Williams , ... 574 Pa. 487, 832 A.2d 962 ([Pa.] 2003), and the General Assembly responded by enacting Megan's Law III on November 24, 2004. The United States Congress expanded the public notification requirements of state sexual offender registries in the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§ 16901 - 16945, and the Pennsylvania General Assembly responded by passing SORNA [I] on December 20, 2011[,] with the stated purpose of "bring[ing] the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006." 42 Pa. C.S. § 9799.10(1). SORNA [I] went into effect a year later on December 20, 2012. Megan's Law III was also struck down by our Supreme Court for violating the single subject rule of Article III, Section 3 of the Pennsylvania Constitution. [ Commonwealth ] v. Neiman , ... 624 Pa. 53, 84 A.3d 603, 616 ( [Pa.] 2013). However, by the time it was struck down, Megan's Law III had been replaced by SORNA [I].

M.S. v. Pennsylvania State Police , 212 A.3d 1142, 1143 n.1 (Pa.Cmwlth. 2019) (quoting Dougherty v. Pennsylvania State Police , 138 A.3d 152, 155 n.8 (Pa. Cmwlth. 2016) ( en banc )).

SORNA I also failed to withstand constitutional scrutiny. In Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied , Pennsylvania v. Muniz , ––– U.S. ––––, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018), our Supreme Court held that

1) SORNA's registration

...