J-S10043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HOLLY DAWN METZLER : : Appellant : No. 1169 WDA 2023 Appeal from the Judgment of Sentence Entered August 28, 2023 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000215-2019 BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: JULY 22, 2024 Holly Dawn Metzler (“Metzler”) appeals from the judgment of sentence imposed following her nolo contendere pleas to various sexual offenses.

Metzler solely challenges the constitutionality of Revised Subchapter H of the Sexual Offender Registration and Notification Act (“SORNA II”) 1 as applied to her. We affirm. ____________________________________________

We need not discuss the facts underlying Metzler’s convictions. We only note that Metzler pleaded nolo contendere to dissemination of explicit sexual material to minors, corruption of minors, and unlawful contact with a minor2 in connection with her sending a seventeen-year-old child nude photographs and videos of herself. See Trial Court Opinion, 12/16/23, at 1-2 (unnumbered). Before entering her plea on August 28, 2023, Metzler agreed not to proceed with a SORNA II hearing. See N.T., 8/28/23, at 4, 12. Instead, Meltzer’s counsel stated that he “will file a post[-]sentence motion to protect her Torsilieri rights. . ..”3 Id. at 4-5. The trial court accepted Metzler’s plea ____________________________________________

an offense on or after April 22, 1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I contains less stringent reporting requirements than Revised Subchapter H, which applies to offenders who committed an offense on or after December 20, 2012. See 42 Pa.C.S.A. §§ 9799.10-9799.42.

Hence, the Torsilieri I Court remanded the matter to the trial court for further evidentiary proceedings. Specifically, the Torsilieri I Court directed the trial court to consider whether the registration and notification requirements applicable to sexual offenders constituted criminal punishment, and in doing (Footnote Continued Next Page)

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and immediately sentenced her to a period of five years’ probation. Because of her nolo contendere plea to unlawful contact with a minor, the trial court classified Metzler as a Tier II sexual offender under Revised Subchapter H of SORNA II and directed her to register for a period of twenty-five years.4 See Pa.C.S.A. §§ 9799.14(c)(5), 9799.15(a)(2). Notwithstanding her counsel’s representations to the trial court, Metzler did not file a post-sentence motion.

Metzler filed a timely notice of appeal. Both Metzler and the trial court complied with Pa.R.A.P. 1925.

Metzler presents two issues for our review: 1. Whether [SORNA II] is unconstitutional as applied to [Metzler]?

2. Whether [SORNA II] is unconstitutional for violation of Article 1, Section 1 of the Pennsylvania Constitution[?]

Metzler’s Brief at 7.5 The constitutionality of a statute presents a pure question of law, over which our standard of review is de novo, and our scope of review is plenary.

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so, to address five of the seven factors set in Kennedy v. Mendoza- Martinez, 372 U.S. 144, (1963). Following remand, the matter then returned to our High Court, where it remained pending at the time of Metzler’s sentencing.

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See Commonwealth v. Brooker, 103 A.3d 325, 334 (Pa. Super. 2014).

Moreover, our Supreme Court has declared: In addressing constitutional challenges to legislative enactments, we are ever cognizant that “the General Assembly may enact laws which impinge on constitutional rights to protect the health, safety, and welfare of society,” but also that “any restriction is subject to judicial review to protect the constitutional rights of all citizens.” In re J.B., . . . 107 A.3d 1, 14 ([Pa.] 2014). We emphasize that “a party challenging a statute must meet the high burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution.” Id. Torsilieri I, 232 A.3d at 575.

For the first time on appeal, Metzler claims that SORNA II is unconstitutional under Article I, Section 1 of the Pennsylvania Constitution as it applies to her because she has no prior criminal history, she received a probationary sentence because she was not deemed to pose any significant future risk, and her reputation will suffer far beyond the period of her probation. Metzler further claims that the registration requirement constitutes cruel and unusual punishment under Article 1, Section 13 of the Pennsylvania Constitution, noting that the period of registration is greater than any sentence which could be imposed for her conviction. Finally, Metzler contends that her sentence is illegal pursuant to Alleyne v. United States, 570 U.S. 99 (2013), because, even if the sentences which could have been imposed at the statutory maximum in this matter were to be run consecutively, they would not reach an aggregate twenty-five-year period.

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Initially, we must determine whether we may address Metzler’s issues.

Generally, issues not properly raised and preserved before the trial court are waived and cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a) (providing that issues not raised in lower court are waived and cannot be raised for first time on appeal). However, a challenge which implicates the legality of an appellant’s sentence is an exception to the issue preservation requirement. See Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa. 2022) (holding that “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”).

Recently, our Supreme Court held that constitutional challenges to SORNA II — Revised Subchapter H, when framed as an Apprendi6-based claim that lifetime registration requirements constitute cruel and unusual punishment, implicate the legality of a sentence, and cannot be waived on the basis that such claims were raised for the first time on appeal. Id. at 1198.

Metzler’s first constitutional challenge asserts that the clause within Article I, Section I of the Pennsylvania Constitution recognizing individual rights to protect one’s reputation precludes the imposition of SORNA II’s

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Revised Subchapter H, Tier II twenty-five-year registration.7 Metzler’s argument of harm to her to reputation implicates alleged due process violations. However, this Court has historically rejected attempts to style constitution-based due process claims as pertaining to the legality of a defendant’s sentence. See, e.g., Commonwealth v. Wallace, 533 A.2d 1051, 1053-54 (Pa. Super. 1987) (collecting cases and noting that constitutional issues, even sentencing issues based on the constitution, are waived if not properly raised in the trial court). Accordingly, we conclude that Metzler’s constitutional claims predicated solely upon alleged due process violations under Article I, Section I of the Pennsylvania Constitution are waived based on her failure to raise them in the trial court. See Commonwealth v. MacFarlane, 311 A.3d 613 (Pa. Super. 2023) (unpublished memorandum) (holding that appellant’s claims of due process violations predicated on his right to reputation pursuant to Article 1, Sections 1 and 11 of the Pennsylvania Constitution failed to implicate the legality of his sentence and were subject to waiver); see also Commonwealth v. Snyder, 292 A.3d 1106 (Pa. Super. 2023) (unpublished memorandum) (same).8

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In Metzler’s remaining constitutional challenge raised for the first time on appeal, she posits that the Revised Subchapter H, Tier II registration and reporting requirements: (1) inflict cruel and unusual punishment on her in contravention of the Pennsylvania Constitution’s Article I, Section 13; and (2) are predicated upon facts that were not determined by a jury as required by Alleyne, 570 U.S. at 108 (holding that any fact which, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt), and Apprendi, 530 U.S. at 466 (holding that any fact which increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt).

Metzler contends that her lifetime registration requirement constitutes an illegal sentence because it violates the constitutional prohibition against cruel and unusual punishment. Such claims indisputably implicate the legality of one’s sentence and cannot be waived on the basis that it was raised for the first time on appeal. See Thorne, 276 A.3d at 1196, 1198. A challenge to the legality of sentence is a question of law; our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014).

During the pendency of this appeal, our Supreme Court issued its decision in Commonwealth v. Torsilieri, No. 97 MAP 2022, 2024 LEXIS 799 (Pa. 2024) (“Torsilieri II”). Therein, our High Court initially considered whether the trial court erred by determining that the presumption contained -7- J-S10043-24

in section 9799.11(a)(4) of SORNA II — that individuals convicted of sexual offenses pose a high risk of committing additional sexual offenses — was an unconstitutional irrebuttable presumption.9 See Torsilieri II, No. 97 MAP 2022, 2024 Pa. LEXIS 799 at *20. The High Court observed that the defendant’s own experts conceded that adult sexual offenders reoffend at a rate of at least three times higher than other individuals convicted of non- sexual offenses, and determined that such evidence, in fact, validates the statutory underpinnings of Revised Subchapter H. Id. at *56. The High Court went on to conclude that the defendant failed to meet his heavy burden to demonstrate that the irrebuttable presumption at issue was constitutionally infirm. Id. The Torsilieri II Court then considered whether the trial court erred in determining that the registration and notification requirements of Revised Subchapter H are punitive. After considering and balancing five of the Mendoza-Martinez factors,10 the High Court determined that two weighed in ____________________________________________

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favor of finding Subchapter H to be punitive in effect, and three weighed in favor of finding the legislation to be nonpunitive, with the sixth and seventh factors being given the greatest weight. Nonetheless, the Torsilieri II Court ruled that weighing the Mendoza-Martinez factors did not compel a conclusion that Revised Subchapter H is punitive. Id. at **84-85. The Court additionally concluded that the defendant’s constitutional challenges failed because he did not meet his heavy burden, by the clearest of evidence, to rebut the General Assembly’s stated non-punitive purpose of informing and protecting the public. Id. at *86.

Instantly, we observe that Metzler chose not to proceed with a SORNA II hearing in which she could have submitted evidence in support of her constitutional claims. Accordingly, the trial court did not conduct an evidentiary hearing on her constitutional claims and no evidence was admitted into the record to support those claims. Thus, on the record before us, Metzler’s constitutional challenges must fail because she cannot meet her heavy burden, by the clearest of evidence, to rebut the General Assembly’s stated non-punitive purpose of informing and protecting the public. Id. at ____________________________________________

punishment—retribution and deterrence; (4) whether they may be rationally connected to an alternate purpose; and (5) whether they are excessive in relation to the alternative purpose. Torsilieri II, No. 97 MAP 2022, 2024 Pa. LEXIS 799 at *13. Consistent with prior case law, the High Court determined that Mendoza-Martinez factor 3, a finding of scienter, and factor 5, past criminal misconduct, provided little guidance in determining whether Revised Subchapter H is punitive, and, thus, did not consider these factors. See Torsilieri I, 232 A.3d at 58; see also Torsilieri II, No. 97 MAP 2022, 2024 Pa. LEXIS 799 at *13 n.8.

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*86; see also Commonwealth v. Villanueva-Pabon, 304 A.3d 1210, 1218 (Pa. Super. 2023) (holding appellant failed to satisfy the high burden to prove unconstitutionality of SORNA II provisions applicable to him where the record was devoid of evidence because appellant decided to forego an evidentiary hearing). Moreover, the Torsilieri II Court ruled that weighing the Mendoza-Martinez factors did not compel a conclusion that Revised Subchapter H is punitive. Id. at **84-85. Accordingly, we affirm.

Judgment of sentence affirmed.

DATE: 7/22/2024

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