Commonwealth v. Thorne

276 A.3d 1192

COMMONWEALTH of Pennsylvania, Appellee

v.Shaune Jarel THORNE, Sr., Appellant

No. 20 WAP 2021

Supreme Court of Pennsylvania.

Submitted: January 24, 2022

Decided: June 22, 2022

Jason Alexander Checque, Esq., Erie, PA, Jessica Ann Fiscus, Esq., Erie County Public Defender's Office, for Appellant Thorne, Shaune Jarel, Sr.

Elizabeth Anne Hirz, Esq., Erie County District Attorney's Office, for Appellee Commonwealth of Pennsylvania.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE BROBSON

In this discretionary appeal, we consider whether the Superior Court erred by concluding that Shaune Jarel Thorne, Sr.’s (Appellant) constitutional challenges to the lifetime registration requirements of Revised Subchapter H of Pennsylvania's Sex Offender Registration and Notification Act ("SORNA")¹ were waived because Appellant did not raise such challenges at the time of his sentencing or in a post-sentence motion but, instead, raised them for the first time in his brief to the Superior Court. After careful review, we conclude that this Court's legality of sentencing jurisprudence—i.e. , that challenges implicating the legality of a sentence cannot be waived—applies equally to constitutional challenges to Revised Subchapter H of SORNA. Consequently, we reverse the Superior Court's order, in part, and remand the matter to the Superior Court for further proceedings consistent with this opinion.

I. BACKGROUND

On February 5, 2019, a jury convicted Appellant of aggravated indecent assault of a child,² indecent assault of a person less than 13 years of age,³ corruption of minors,⁴ and indecent exposure⁵ in connection with the sexual abuse of Appellant's granddaughter (victim) from July 30, 2015, through July 30, 2017, at a time when the victim was between the ages of 9 and 11. Thereafter, on April 9, 2019, the Court of Common Pleas of Erie County (trial court) sentenced Appellant to an aggregate term of 10 to 20 years’ imprisonment. The trial court also informed Appellant, who is a Tier III offender due to his convictions for aggravated indecent assault of a child and indecent assault of a person less than 13 years of age,⁶ that he was obligated to register as a sexual offender for his lifetime under Revised Subchapter H of SORNA.⁷ Appellant filed a timely post-sentence motion, which the trial court denied by order dated April 23, 2019.

Subsequent thereto, Appellant filed a notice of appeal to the Superior Court. In his Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) statement, Appellant argued, inter alia , that the jury's verdict was against the weight and sufficiency of the evidence because the testimony of the Commonwealth's primary witness—i.e. , the victim—was contradicted by prior statements the victim had made during her Child Advocacy Center interview, inconsistent with the testimony of other Commonwealth witnesses, including the victim's mother, "tainted" by prior conversations the victim had with her mother, and inconsistent with the testimony of Appellant's "alibi defense" witness. When he filed his brief with the Superior Court, however, Appellant presented two additional issues for consideration, both of which Appellant had not raised before the trial court or in his Rule 1925(b) statement: (1) whether the lifetime registration requirement set forth in Revised Subchapter H of SORNA constitutes an illegal sentence because it is punitive in nature and effectively extends Appellant's maximum sentence without a jury's finding of future dangerousness in violation of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ;⁸ and (2) whether Revised Subchapter H's lifetime registration requirement constitutes an illegal sentence because it violates the constitutional prohibition against cruel and unusual punishment.

By decision dated December 24, 2020, the Superior Court affirmed Appellant's judgment of sentence. In so doing, the Superior Court first determined that the trial court did not palpably abuse its discretion by concluding that the verdict was not against the weight of the evidence because the inconsistencies in the victim's testimony, including the victim's failure to initially report the sexual assault to her mother, were explained by the victim at the time of trial and are typical of a confused, frightened, victimized, and manipulated child. With respect to Appellant's challenges to the constitutionality of Revised Subchapter H of SORNA—i.e. , Appellant's Apprendi and cruel and unusual punishment challenges—the Superior Court, relying on its prior decision in Commonwealth v. Reslink , 257 A.3d 21 (Pa. Super. 2020), concluded that it was constrained to find Appellant's claims waived because Appellant presented his constitutional challenges to Revised Subchapter H's lifetime registration requirement for the first time in his appellate brief.

Appellant filed a petition for allowance of appeal with this Court, which we granted limited to the following issue, as phrased by Appellant:

Did the Superior Court panel err, misapprehending law/facts of record, or overlook controlling authority when it determined that [Appellant's] two SORNA challenges did not constitute challenges to the legality of the sentence and, as such, cannot be waived?

Commonwealth v. Thorne , ––– Pa. ––––, 260 A.3d 922 (2021).

II. PARTIES’ ARGUMENTS

The parties’ arguments on the limited issue of waiver are succinct and straightforward.⁹ Appellant contends that, by concluding that his constitutional challenges to Revised Subchapter H of SORNA were waived because he raised them for the first time in his appellate brief, the Superior Court overlooked or failed to apply its own decisional authority, as well as authority from this Court, that Apprendi and cruel and unusual punishment challenges implicate the legality of a sentence and, therefore, cannot be waived. In support thereof, Appellant suggests that the Superior Court's reliance on its decision in Reslink is misplaced because, although Appellant's constitutional challenges to Revised Subchapter H are identical to the constitutional claims raised by the appellant therein, the cases relied upon by the Superior Court in Reslink to find waiver—i.e. , In re F.C. III , 607 Pa. 45, 2 A.3d 1201 (2010), and Commonwealth v. Howe , 842 A.2d 436 (Pa. Super. 2004) —"do not stand for the proposition that colorable challenges to the legality of sentence are waivable." (Appellant's Br. at 40.)

In response, the Commonwealth contends that the Superior Court's prior decisions in Reslink and its progeny, Commonwealth v. Snyder , 251 A.3d 782 (Pa. Super. 2021),¹⁰ are dispositive on the waiver issue presented here. Essentially, the Commonwealth suggests that Reslink and Snyder require a finding of waiver because Appellant's constitutional challenges to Revised Subchapter H of SORNA are similar to the constitutional challenges raised in both Reslink and Snyder and Appellant, like the appellants in Reslink and Snyder , did not first raise his constitutional challenges to Revised Subchapter H before the trial court.¹¹

III. ANALYSIS

Generally speaking, issues not properly raised and preserved before the trial court "are waived and cannot be raised for the first time on appeal." Pa. R.A.P. 302(a) ; see also Hill , 238 A.3d at 407 (noting that issues not raised in lower court are waived and cannot thereafter be raised for first time on appeal); Commonwealth v. Barnes , 637 Pa. 493, 151 A.3d 121, 124 (2016) ("[A]n appellant waives any claim that is not properly raised in the first instance before the trial court and preserved at every stage of his appeal."). A challenge that implicates the legality of an appellant's sentence, however, is an exception to this issue preservation requirement. See, e.g. , Hill , 238 A.3d at 407 ; Barnes , 151 A.3d at 124. "Stated succinctly, an appellate court can address an appellant's challenge to the legality of his sentence even if that issue was not preserved in the trial court; indeed, an appellate court may [even] raise and address such an issue sua sponte ." Hill , 238 A.3d at 407. Both this Court and the Superior Court have previously held that Apprendi -based claims and claims invoking the constitutional prohibition against cruel and unusual punishment implicate the legality of a sentence. See Commonwealth v. Wolfe , 636 Pa. 37, 140 A.3d 651, 660 (2016) ("[T]his Court has previously found that an asserted Apprendi -line violation implicated the legality of a sentence, ... and that legality-of-sentence claims are not subject to the traditional waiver doctrine."); Commonwealth v. Gordon , 596 Pa. 231, 942 A.2d 174, 175 (2007) ("It seems to be a settled question in Pennsylvania that Apprendi -based challenges raise questions related to the legality of a sentence."); Commonwealth v. Lawrence , 99 A.3d 116, 122 (Pa. Super. 2014) ("Th[e] [Superior] Court has consistently enunciated three distinct categories of legality[-]of[-]sentence claims as a baseline[:] ... ‘(1) claims that the sentence fell ‘outside of the legal parameters prescribed by the applicable statute[ ];[’] (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi .’ " (quoting Commonwealth v. Robinson , 931 A.2d 15, 21 (Pa. Super. 2007) (en banc))), appeal denied , 114 A.3d 416 (Pa. 2015) ; Commonwealth v. Brown , 71 A.3d 1009, 1015-16 (Pa. Super.) ("[A] claim that a sentence violates an individual's right to be free from cruel and unusual punishment is a challenge to the legality of the sentence, rendering the claim unwaivable."), appeal denied , 77 A.3d 635 (Pa. 2013).

Despite this legal authority addressing constitutional claims implicating the legality of a sentence, in Reslink , the Superior Court concluded that it was constrained to find that the appellant waived his Apprendi -based and cruel and unusual punishment challenges to Revised Subchapter H of SORNA because he "did not raise [the] claims before the trial court,...