Commonwealth v. Torsilieri

232 A.3d 567

COMMONWEALTH of Pennsylvania, Appellant

v.George J. TORSILIERI, Appellee

No. 37 MAP 2018

Supreme Court of Pennsylvania.

Argued: November 20, 2019

Decided: June 16, 2020

OPINION

JUSTICE BAER

The Chester County Court of Common Pleas declared Subchapter H of the Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. § 9799.10 - 9799.42, unconstitutional as violative of several provisions of both the United States and Pennsylvania Constitutions. Accordingly, this Court has exclusive jurisdiction over this appeal pursuant to 42 Pa.C.S. § 722(7) (providing the Supreme Court with exclusive jurisdiction over "[m]atters where the court of common pleas has held [statutes] invalid as repugnant to the Constitution ... of the United States, or to the Constitution of this Commonwealth"). After review, we vacate that portion of the trial court's order declaring Subchapter H unconstitutional and remand for further development of the record.

I. Procedural History

The procedural history of this case is inextricably tied to intervening appellate court decisions declaring aspects of prior versions of SORNA unconstitutional and the legislative responses to those decisions, which we will address at the outset. On July 3, 2017, a jury convicted George Torsilieri ("Appellee") of one count each of aggravated indecent assault, 18 Pa.C.S. § 3125(a)(1), and indecent assault, 18 Pa.C.S. § 3126(a)(1), but acquitted him of sexual assault, 18 Pa.C.S. § 3124.1.¹ The trial court deferred sentencing until completion of a presentence investigative report and a sexually violent predator assessment by the Sexual Offenders Assessment Board ("SOAB").

While sentencing was pending, this Court decided Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (plurality), holding, as discussed in detail infra , that the registration and notification provisions of the then-applicable SORNA were punitive. A majority of this Court consequently concluded that the punitive provisions violated the constitutional protections of Pennsylvania's ex post facto clause when applied retroactively to sexual offenders who were convicted prior to December 20, 2012, the effective date of SORNA.

In September 2017, the SOAB concluded that Appellee did not meet the criteria for designation as a sexually violent predator ("SVP"). Between the SOAB's determination and Appellee's sentencing, the Superior Court declared a different aspect of SORNA unconstitutional. In Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017) (" Butler I "), the Superior Court concluded that, based upon this Court's analysis in Muniz , the designation of an offender as an SVP required proof of the relevant facts beyond a reasonable doubt under Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).²

Subsequently, the trial court sentenced Appellee in November 2017 to an aggregate incarceration term of one year minus one day to two years minus one day, followed by three years of probation, plus payment of a fine and costs. The court originally provided that Appellee would be eligible for work release after eighteen months and parole after twenty-two months. Additionally, as explained infra , Appellee's aggravated indecent assault conviction automatically categorized him as a Tier III offender, triggering lifetime sexual offender registration pursuant to all applicable versions of SORNA. 42 Pa.C.S. § 9799.14 (d)(7).

In December 2017, Appellee filed a combined post-sentence motion raising a weight of the evidence claim and a motion to reconsider the sentence, and the court held a hearing. On February 8, 2018, without reconvening the parties, the court granted Appellee's motion in part and denied it in part, altering the sentence only to allow work release after fourteen months, rather than eighteen months, and parole after eighteen months, rather than twenty-two months. On February 16, 2018, the Commonwealth filed a motion for reconsideration, asserting that the trial court erred in resentencing Appellee without reconvening the parties.

While the motion for reconsideration was pending, Act 10 of 2018, Act of Feb. 21, 2018, P.L. 27, No. 10, became effective on February 21, 2018 ("Act 10"). As detailed infra , Act 10 responded to this Court's decision in Muniz and the Superior Court's decision in Butler I , declaring aspects of the prior version of SORNA unconstitutional. In relevant part, the amendments included a revised version of Subchapter H, which applies to Appellee who was convicted after the original enactment of SORNA.³

Soon thereafter, Appellee challenged the constitutionality of the newly amended Subchapter H by filing a Post Sentence Motion Nunc Pro Tunc and a Supplemental Post Sentence Motion Filed Nunc Pro Tunc. Appellee claimed that the registration and notification provisions of Subchapter H violated his due process rights under the Pennsylvania Constitution. The trial court granted Appellee the right to file his motions nunc pro tunc in March 2018.

Prior to a hearing on the pending motions, Appellee filed a subsequent motion on May 18, 2018, entitled "Post Sentence Motion to Bar Application of SORNA, Act 10 of 2018, 42 Pa.C.S. § 9799.10 - 9799.42 Chapter 97, Subchapter H of Title 42; and/or Motion for Habeas Corpus and/or Bar Imposition of an Illegal Sentence," asserting eight reasons that the application of the newly enacted registration and notification provisions were unconstitutional, which will be discussed in detail below. Many of the assertions turn on the validity of the presumption in SORNA that all sexual offenders are dangerous and pose a high risk of recidivation, necessitating registration and notification procedures to protect the public from recidivist sexual offenders. Appellee claimed that this presumption is not supported by current research, and instead Appellee asserted that the imposition of the registration and notification provisions threaten public safety by preventing reintegration of the offenders as law-abiding citizens.

Once again, while these motions were pending in the trial court, the General Assembly enacted and the Governor signed an amended version of SORNA through Act 29 of 2018, Act of June 12, 2018, P.L. 140, No. 29, effective immediately on June 12, 2018 ("Act 29"). The parties do not suggest that the amendments of Act 29 alter the provisions of Subchapter H relevant to the issues currently under review. It is Act 29's iteration of Subchapter H of SORNA that is currently before this Court. For ease of discussion, we will refer to the current version of SORNA challenged by Appellee as "Revised Subchapter H" and the prior version generally as "SORNA".

At the July 9, 2018 hearing on the cross-motions, the Commonwealth argued that a post-sentence motion hearing was not the appropriate proceeding for adjudicating the constitutionality of SORNA based upon scientific challenges to legislative fact-finding regarding the likelihood of recidivism and the effectiveness of registration systems.⁴ It emphasized that this Court in Muniz recently cited to conflicting studies concerning the rate of sexual offender recidivation and specifically deferred to the legislature, as the proper policy-making body, to address the complex societal issues, in the absence of a scientific consensus. Notes of Transcript ("N.T."), July 9, 2018, at 16-17. Despite the Commonwealth's argument, the court allowed Appellee to introduce affidavits and supporting documents of three experts concluding that sexual offenders generally have low recidivism rates and questioning the effectiveness of sexual offender registration systems such as SORNA. The Commonwealth stipulated to the content of the exhibits but not their validity or relevance. Moreover, the Commonwealth did "not offer any rebuttal expert testimony nor [did it] offer any documents with respect to these witnesses." Id. at 19. It additionally argued that Revised Subchapter H addressed the constitutional deficiencies identified in Muniz and Butler I .

At the conclusion of the hearing and in a subsequent order dated July 10, 2018, the trial court acknowledged that it erred in failing to re-sentence Appellee in open court and attempted to correct the issue by vacating the February 8^th order and re-imposing the reduced sentence in open court, after explaining its view that Appellee did not have a prior record, was youthful, and was a good candidate for rehabilitation.

The court then turned to Appellee's constitutional challenges.⁵ It concluded that the registration and notification provisions of Revised Subchapter H violated Appellee'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 a reasonable doubt." Tr. Ct. Order, July 10, 2018, at 3. The court, therefore, vacated Appellee's sentence to the extent it required him to comply with Revised Subchapter H's sexual offender registration provisions.

The Commonwealth appealed to this Court in July 2018, raising thirteen claims of error and invoking this Court's jurisdiction over decisions of the Courts of Common Pleas declaring statutes unco...