Com. v. Chai, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

v. :

: :

JERRY CHAI :

:

Appellant : No. 135 WDA 2018 Appeal from the Judgment of Sentence Entered September 25, 2017 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0005246-2014

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.* CONCURRING MEMORANDUM BY BOWES, J.: FILED: APRIL 13, 2021

Although I find no legal error in the Majority’s analysis, I write separately to express my belief that the decision of Commonwealth v. Reslink, ___ A.3d ___, 2020 WL 7415959 (Pa.Super. 2020), was wrongly decided.

Like Appellant in the instant case, Reslink was subject to tier-based registration under Subchapter H of the Pennsylvania Sentencing Code. See 42 Pa.C.S. § 9799.14(b)(6). He asserted for the first time on appeal that Subchapter H creates “an irrefutable and irrebuttable presumption against the offender” and is, therefore, unconstitutional. Reslink, supra at *3. In relevant part, Reslink claimed that his registration obligations under Subchapter H constituted “cruel and unusual punishment” 1 and also violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed; . . . such facts must be established by proof beyond a reasonable doubt.”).

These constitutional claims for relief sounded in legality of sentence. See Commonwealth v. Newman, 99 A.3d 86, 91 (Pa.Super. 2014) (en banc) (“[A] challenge to a sentence premised upon Apprendi implicates the legality of that sentence[.]”); Commonwealth v. Yasipour, 957 A.2d 734, 740 n.3 (Pa.Super. 2008) (“[A]n appellant who challenges the constitutionality of his sentence of imprisonment on a claim that it violates his right to be free from cruel and unusual punishment raises a legality of sentencing claim since he is challenging the trial court’s authority in imposing the sentence.”).

While Pa.R.A.P. 302(a) provides that “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal,” it is a well- established precept of Pennsylvania law that such waiver does not apply to claims for relief that implicate the legality of a defendant’s sentence. See Commonwealth v. Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“[L]egality-of- sentence claims are not subject to traditional waiver doctrine.”); Commonwealth v. Hodges, 193 A.3d 428, 432-33 (Pa.Super. 2018) ("Rule 302’s prohibition does not apply to claims of an illegal sentence[.]”). Nonetheless, this Court found these legality-of-sentence claims waived due to Reslink’s failure to raise them in the trial court, without acknowledging the apparent inconsistency of this holding. Reslink, supra at *4.

Turning to the instant case, a significant portion of Appellant’s constitutional arguments implicate the prohibitions against cruel and unusual punishment contained in the United States and Pennsylvania Constitutions. See Appellant’s brief at 67-69. This claim for relief clearly implicates the legality of Appellant’s sentence.2 See Yasipour, supra at 740 n.3. However, the Majority correctly concludes that we are bound to find Rule 302(a) waiver under Reslink because Appellant did not raise this argument in the trial court. Cf. Wolfe, supra at 660; Hodges, supra at 432-33.

Accordingly, I am constrained to concur in the Majority’s holding.3 However, in my view, Reslink was wrongly decided and it constitutes a significant deviation from our established precedent concerning the ambit of waiver under Rule 302(a).

I reluctantly concur.

Judge Strassburger did not participate in the consideration or decision of this Concurring Memorandum.