J-S25001-20 2020 PA Super 293

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PHILLIP ANDREW ASHER : : Appellant : No. 1133 MDA 2019 Appeal from the Judgment of Sentence Entered June 6, 2018 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002454-2017

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

OPINION BY LAZARUS, J.: FILED DECEMBER 21, 2020 Phillip Andrew Asher appeals1 from the judgment of sentence, entered in the Court of Common Pleas of Luzerne County, following his conviction of counts of child pornography,2 seven counts of dissemination of photographs/film of child sex acts,3 and four counts of criminal use of a communication facility.4 After careful review, we vacate the order denying Asher’s post-sentence motion and remand in accordance with our Supreme ____________________________________________

2 18 Pa.C.S.A. § 6312(d).

3 18 Pa.C.S.A. § 6312(c).

4 18 Pa.C.S.A. § 7512(a).

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Court’s recent decision in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). Otherwise, we affirm the judgment of sentence.

On January 18, 2018, Asher entered a guilty plea to the above offenses.

The offenses occurred on or about September 4, 2016. Pursuant to the plea agreement, Asher agreed to a Sexual Offenders Assessment Board (SOAB) evaluation. On May 12, 2018, Asher was determined not to be a sexually violent predator (SVP).

On June 6, 2018, the court sentenced Asher to an aggregate term of imprisonment of five to ten years. At sentencing, the Commonwealth informed Asher he was required to register as a Tier II offender pursuant to the Sexual Offenders Registration and Notification Act (SORNA).5 See N.T. ____________________________________________

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Sentencing Hearing, 6/6/18, at 7-9. Defense counsel objected to the imposition of SORNA requirements on several constitutional grounds, including that it subjects sex offenders to an “irrebuttable presumption” that they are a high risk for reoffending. Id. at 10-11. Asher filed a timely post- sentence motion, again challenging the constitutionality of Revised Subchapter H under Apprendi v. New Jersey6 and Alleyne v. United States,7 and as a violation of due process because it subjects him “to an irrebuttable presumption that ‘he poses a high risk of committing additional sexual offenses’ and deprives him of his fundamental right to reputation[.]”

See Post-Sentence Motion, 6/18/18, at ¶ 11(a)-(e). In his memorandum of law in support of post-sentence motions, Asher argued: SORNA [II] sends a message that all registrants “pose a high risk of committing additional sexual offenses.” [42 Pa.C.S.A. §] 9799.11(A)(4). Such an implication impinges on the registrant’s reputation. However, a registrant has no meaningful way to challenge this presumption of dangerousness and, therefore, the presumption violates due process. [] The right to reputation is a fundamental right under the Pennsylvania Constitution. In re J.B., 107 A.3d 1, 16 (Pa. 2014)[;] Pa. Const. Art. 1, section 1.

This right cannot be abridged without complying with the state ____________________________________________

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constitutional standards of due process set forth in Pa. Cons.

Article 1, section 11.[8] [] SORNA declares that every registrant is a danger to the community and incapable of rehabilitation, [42 Pa.C.S.A. §] 9799.11(a)(6)-(8), a presumption that cannot be rebutted because the individual is not given the opportunity to rebut the same. [] A presumption runs afoul of due process where “(1) it encroaches on an interest protected by the due process clause; (2) the presumption is not universally true; and (3) reasonable alter[n]ative means exist for ascertaining the presumed fact.” An opportunity to challenge the “paramount factor” must be presented to the defendant, which, in SORNA, is the conclusion that “[s]exual offenders pose a high risk of committing sexual offenses.” See 42 Pa.C.S.A. [§] 9799.11(a)(4) and In re J.B., 107 A.2d at 14-15. No such opportunity exists under SORNA or Act 10.

Memorandum in Support of Post-Sentence Motions, 10/9/18, at 15-16, citing Dep’t of Transp. v. Clayton, 684 A.2d 1060, 1065 (Pa. 1996). Asher ____________________________________________

Pa. Const. art. I, § 1. Additionally, Article I, Section 11 similarly provides for the protection by due course of law of a person’s reputation, along with lands, goods and person: All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

Id.

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contended that the Pennsylvania Supreme Court’s holding in J.B.—that the use of an irrebuttable presumption violated juveniles’ constitutionally protected interest in their reputation—should apply as well to an adult sex offender. Post-Sentence Motion Memorandum, supra at 17. Asher concluded, therefore, that the irrebuttable presumption does not survive the three-pronged test set forth in Clayton. Id. at 19.

Asher’s post-sentence motion was denied by operation of law. See Order, 6/11/19; Pa.R.Crim.P. 720(B)(3)(a), (c).9 Asher filed this timely appeal. Both Asher and the trial court complied with Rule 1925(b). See Pa.R.A.P. 1925(b) Statement, 7/30/19.

Asher raises one issue for our review: Whether SORNA II contravenes the 5th, 6th and 14th Amendments [to] the United States Constitution and Article 1, § 1 of the Pennsylvania Constitution as a criminal punishment, without appropriate due process[,] requiring that each fact necessary to ____________________________________________

See Order, 6/11/19; see also Pa.R.Crim.P. 720(B)(3)(c) (“When a post- sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in Rule 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.”).

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support the imposition of punishment over which the court has no control is submitted to a jury and proven beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, [570 U.S. 99] (2013)?

Appellant’s Brief, at 2.

Asher argues Revised Subchapter H remains punitive and, therefore, “the sentencing process, as well as the trial itself, must satisfy the requirements of the due process clause.” Id. at 14. “A trial court cannot impose a punishment . . . for a specific offense or an enhanced or mandatory minimum sentence unless the element requiring a mandatory minimum sentence is proven beyond a reasonable doubt.” Id. at 14, citing Apprendi, supra and Alleyne, supra. Further, Asher argues SORNA II violates Apprendi and Alleyne because it “continues to contain an irrebuttable presumption” that an offender poses “a high risk of committing additional sexual offenses” which cannot be challenged by the accused at trial or at sentencing. Id. at 16, citing 42 Pa.C.S.A. §§ 9799.10(A)(4), 9799.11(A)(4), (B)(1).

Asher’s argument challenges the irrebuttable presumption as violating the tenets of Apprendi/Alleyne, where neither a judge nor a jury has established beyond a reasonable doubt that Asher poses a high risk of recidivating. As such, Asher contends, Revised Subchapter H cannot survive constitutional scrutiny. Appellant’s Brief, at 17.

While this case was pending on appeal, the Pennsylvania Supreme Court decided Torsilieri, supra. That case came before the Court pursuant to its

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original jurisdiction after the Chester County Court of Common Pleas found Revised Subchapter H of SORNA II violated several provisions of both the United States and Pennsylvania Constitutions.10 In Torsilieri, the trial court concluded the statute violated Apprendi and Alleyne 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.” Torsilieri, supra at 575, quoting Trial Court Order, 7/10/18, at 3. The Pennsylvania Supreme Court, emphasizing that deference to legislative policy-making is subject to constitutional limitations, considered the trial court’s conclusions in two categories: (1) an irrebuttable presumption challenge, see Clayton, supra;11 and (2) based on its determination of punitive effect, the trial court ____________________________________________

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concluded that the registration requirements, which can result in lifetime registration branding an offender as at high risk of recidivating, violated (a) the requirements of Apprendi and Alleyne, (b) imposed sentences in excess of the statutory maximum sentence, (c) constituted cruel and unusual punishment, and (d) violated the separation of powers doctrine by preventing trial courts from imposing individualized sentences. Torsilieri, supra at 582- 83.

For our purposes, we focus solely on the Torsilieri Court’s analysis of the “branding [of] an offender as at high risk of recidivating” as it relates to Asher’s due process claim pursuant to Apprendi/Alleyne. The Pennsylvania Supreme Court applied the Mendoza-Martinez12 factors and evaluated “the ____________________________________________

argument and evidence to address whether a scientific consensus has developed to overturn the legislative determinations in regard to adult sexual offenders’ recidivation rates and the effectiveness of a tier-based registration and notification system as they relate to the prongs of the irrebuttable presumption doctrine.

Id. at 588-89.

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degree to which the trial court’s conclusions [were] based upon the scientific evidence presented by [Torsilieri].” Torsilieri, supra at 588. At his post- sentence hearing, Torsilieri had presented the affidavits and supporting documents of three expert witnesses “concluding that sexual offenders generally have low recidivism rates and questioning the effectiveness of sexual offender registration systems such as SORNA.” Id. at 574. The Commonwealth stipulated to the content of the exhibits, but not to their validity or relevance, and did not offer any rebuttal expert testimony or documents with respect to these witnesses. Id. The Court stated: We observe that the scientific evidence presented by [Torsilieri] during the post-sentence motion arguably influenced the trial court’s consideration of all five relevant factors and overtly drove the analysis of three. Accordingly, we conclude that its labeling of Revised Subchapter H as punitive was impacted by its assessment of [Torsilieri’s] expert evidence such that reevaluation of the balancing of the seven Mendoza- Martinez factors is appropriate following presentation of additional scientific evidence on remand. The trial court’s conclusion that Revised Subchapter H is punitive inevitably resulted in the court’s determination that the registration requirements were part of [Torsilieri’s] criminal sentence, and thus, subject to the various constitutional and statutory protections. Evaluating each challenge raised by [Torsilieri], the trial court concluded that [] Revised Subchapter H violated the dictates of Apprendi and Alleyne because it subjected offenders to increased registration provisions without a jury determining that the offender posed a risk of future dangerousness beyond a reasonable doubt[.]

Id. at 594 (emphasis added). Essentially, the Pennsylvania Supreme Court directed the trial court to reevaluate the Mendoza-Martinez factors, this time

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considering not only the defense’s scientific evidence, but that of the Commonwealth as well.

Here, although Asher properly preserved his challenges at sentencing and in post-sentence motions, there is no factual record. Therefore, in accordance with Torsilieri, we vacate and remand for a hearing at which the parties can present evidence for and against the relevant legislative determinations discussed above. See Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020) (where defense counsel attempted to introduce evidence of scientific studies at hearing on motion to bar application of SORNA, this Court remanded in accordance with Torsilieri for evidentiary proceedings on whether SORNA creates facially unconstitutional irrebuttable presumption against sexual offenders).

Judgment of sentence affirmed. Order denying post-sentence motion vacated and case remanded for proceedings consistent with Torsilieri.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2020

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