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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAIME JIMENEZ JR. :
:
Appellant : No. 2111 EDA 2018
Appeal from the Judgment of Sentence Entered February 13, 2018
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000193-2016
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 17, 2019
Appellant, Jaime Jimenez, Jr., appeals from the judgment of sentence
entered on February 13, 2018, following his guilty plea convictions for criminal
use of a communication facility and criminal attempt of corruption of minors
by course of conduct.1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On August 2, 2015, police posing as a 14-year-old female responded
to a classified advertisement entitled “Pocono Fun” posted on Craigslist by
Appellant. Appellant arranged to have sex and smoke marijuana with the
alleged minor and drove from New Jersey to a prearranged location in Monroe
County, Pennsylvania to meet her. On August 9, 2015, police arrested
Appellant at the designated location and recovered marijuana from his car and
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1 18 Pa.C.S.A. §§ 7512 and 903/6301(a)(1)(ii), respectively.
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three condoms from his person. On August 10, 2015, the Commonwealth
charged Appellant with the aforementioned offenses, as well as criminal
attempt of statutory sexual assault and two counts of unlawful sexual contact
with a minor.
On November 21, 2017, Appellant entered into a negotiated guilty plea
to criminal use of a communication facility and criminal attempt of corruption
of minors by course of conduct. The plea agreement, however, left the
sentence open for the trial court to decide. At the plea hearing, the trial court
ordered the sexual offender assessment board (SOAB) to conduct an
assessment. Appellant subsequently filed a motion to preclude the SOAB
evaluation on December 1, 2017. Appellant and the Commonwealth
submitted briefs on their respective positions regarding an evaluation by the
SOAB. On January 25, 2018, the trial court denied Appellant’s motion to
preclude the report.
The trial court held a sentencing hearing on February 12, 2018. By
order entered on February 13, 2018, the trial court sentenced Appellant to a
term of nine to 23 months of incarceration for criminal attempt of corruption
of minors, plus a consecutive term of two years of probation for criminal use
of communication facility. The trial court also classified Appellant as a Tier I
sexual offender subject to a 15-year registration period pursuant to the Sexual
Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §9799.23.
Appellant filed a motion for reconsideration on February 15, 2018. The trial
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court denied relief by opinion and order entered on June 13, 2018. This
timely appeal resulted.2
On appeal, Appellant presents the following issues3 for our review:
1. Did the court abuse its discretion at sentencing when it
required Appellant to register under SORNA?
2. Did the [trial] court abuse its discretion at sentencing when it
is a violation of Appellant’s due process constitutional rights
under the United States and Pennsylvania Constitutions where
SORNA’s requirements are punitive and not just civil
requirements?
3. Is it a violation of Appellant’s due process constitutional rights
under the United States and Pennsylvania Constitutions where
mandatory reporting compliance with SORNA’s requirements
are an affirmative restraint upon Appellant and such a restraint
is punitive?
4. Did the [trial] court abuse its discretion at sentencing by
allowing the [SOAB] [a]ssessment to be considered at the time
of sentencing for purposes other than [a] determination if
Appellant was a Sexually Violent Predator [(SVP)], where all
the information is already available to the [trial] court and
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2 Appellant filed a notice of appeal on July 13, 2018. On July 17, 2018, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 14,
2018, relying largely upon its prior opinion entered on June 13, 2018
explaining its rationale in denying Appellant’s post-sentence motion.
3 Initially, we note that the Public Defender from Monroe County, currently
representing Appellant on appeal, has presented virtually identical arguments
to this Court in two other cases and we denied relief in unpublished
memoranda decisions. See Commonwealth v. Bender, 2019 WL 364206
(Pa. Super. 2019) (unpublished memorandum); Commonwealth v. Sauers,
2019 WL 1411188 (Pa. Super. 2019) (unpublished memorandum). In this
case, we have reordered the issues slightly for ease of discussion and
disposition.
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Appellant did not have the chance to confront the person[s]
who did the evaluation about their opinions and professional
determinations, when [] Appellant cannot be declared a [SVP]?
5. Is it a violation of Appellant’s due process constitutional rights
under the United States and Pennsylvania Constitutions where
compliance with SORNA’s requirements are invested in the
state police?
6. Did the [trial] court abuse[] its discretion when saying SORNA
applied to Appellant when after his release from custody he will
be returning to his home in New Jersey and will not have
resided in Pennsylvania for registration to apply?
Appellant’s Brief at 6-7 (suggested answers omitted).
In the first three issues presented above,4 Appellant alleges that the
trial court abused its discretion by requiring Appellant to register pursuant to
SORNA. Appellant predicates these claims on our Supreme Court’s opinion
announcing the judgment of court in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017). More specifically, Appellant claims that the trial court
abused its discretion at sentencing by ordering compliance with SORNA’s
punitive registration requirements in violation of Appellant’s due process
rights.5 Id. at 13-19 and 23-24. He claims that the registration requirements
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4We note that while Appellant sets forth three separate issues in his brief, in
essence, however, he presents the same argument three times, with slight
variations, and relies upon the same case law.
5 While Appellant’s statement of questions presented refers to due process
violations, Appellant does not explain, or provide any legal discussion,
detailing how his due process rights were violated. This Court “will not act as
counsel and will not develop arguments on behalf of an appellant.” In re
R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (citation omitted). Regardless, we
fail to see how Appellant’s procedural due process rights were violated.
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create an affirmative, onerous, punitive restraint on Appellant and that
registration, therefore, violated his constitutional rights. Id. at 14, 18-19,
and 23.
In Muniz, our Supreme Court held that SORNA’s registration
requirements constitute criminal punishment rather than a civil consequence
and, thus, retroactive application to crimes committed prior to SORNA's
effective date, December 20, 2012, violated the ex post facto clause of the
United States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1192-
1193. However, “the Muniz court did not find SORNA unenforceable in all
contexts; rather, the Supreme Court held that SORNA was [only]
unconstitutional as applied to Muniz because it changed his registration
requirement from ten years to lifetime registration, and thus, increased his
punishment for indecent assault after he committed the offense.”
Commonwealth v. Haughwout, 198 A.3d 403, 405 (Pa. Super. 2018)
(emphasis added). The Muniz Court, however, did not declare SORNA
unconstitutional.
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Appellant had notice and a meaningful opportunity to be heard. See
Commonwealth v. Turner, 80 A.3d 754, 761 (Pa. 2013) (citation omitted)
(recognizing that the essential requisites of procedural due process are notice
and meaningful opportunity to be heard). “[F]or substantive due process
rights to attach there must first be the deprivation of a property right or other
interest that is constitutionally protected.” Khan v. State Bd. of Auctioneer
Examiners, 842 A.2d 936, 946 (Pa. 2004). As discussed below, registration
requirements under SORNA, for offenses committed after December 20, 2012,
have not been declared unconstitutional.
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In this case, Appellant concedes that Muniz only applies ex post facto,
or to cases in which a defendant committed his or her offenses before
SORNA’s effective date. See Appellant’s Brief at 17. He argues, however,
that for the reasons that Muniz determined that registration requirements
“are punishment [under the] ex post facto clause, they are punishment for
someone required to register after December 20, 2012.” Id. Appellant’s
argument focuses exclusively on our Supreme Court’s analysis in Muniz, as
he generously quotes language from that case discussing the punitive nature
of registration requirements. While it is true that the Muniz Court held that
SORNA’s registration requirements constitute criminal punishment, it only did
so in the context of determining whether retroactive application was
permissible. The constitutionality of SORNA registration requirements as
applied to defendants after December 20, 2012 has not been drawn into doubt
by Muniz. Here, there is no dispute that Appellant placed the advertisement
at issue in 2015, he pled guilty in 2017, and the trial court sentenced him in
2018. Accordingly, the trial court properly applied SORNA registration
requirements to Appellant and his first three issues as set forth above are
without merit.
In his fourth issue as set forth above, Appellant asserts that the trial
court wrongly considered an assessment by the SOAB in fixing his sentence.
Appellant relies upon this Court’s decision in Commonwealth v. Butler, 173
A.3d 1212 (Pa. Super. 2017), which held that SVP designations are
unconstitutional under Alleyne v. United States, 570 U.S. 99, 133 S.Ct.
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2151 (2013).6 He claims that because he could not be designated an SVP,
there was no reason to conduct an SOAB assessment normally used for SVP
determinations. Because the SOAB assessment was prejudicial to him and he
was not able to cross-examine the SOAB evaluator, Appellant argues that the
trial court should not have considered the SOAB report. Appellant’s Brief at
10-12. We explain our rejection of this argument below.
In Butler, a panel of this Court concluded that because Muniz held that
registration requirements under SORNA are punitive and an SVP
determination increases the registration period, trial courts cannot apply
SORNA’s increased registration requirement to SVPs because SORNA does not
require a fact-finder to make a determination, beyond a reasonable doubt,
that a defendant is an SVP. Butler, 173 A.3d 1217-1218 (citation omitted).
The Butler Court further found that 42 Pa.C.S.A. § 9799.24(e)(3), pertaining
specifically to SVP hearings, was unconstitutional and that “trial courts may
no longer designate convicted defendants as SVPs, nor may they hold SVP
hearings[.]” Id. at 1218. However, we directed trial courts to “notify a
defendant that he or she is required to register for 15 years if he or she is
convicted of a Tier I sexual offense[.]” Id.
In this case, the trial court did not conduct an SVP hearing and never
determined that Appellant was an SVP. Instead, the trial court properly
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6 Alleyne held that any fact that increases the mandatory minimum sentence
for a crime is an element that must be submitted to a jury and determined
beyond a reasonable doubt. See Butler, 173 A.3d at 1217.
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notified Appellant of his obligation to register under the applicable tier-based
registration period based solely on Appellant’s conviction, as set forth in
Butler. Moreover, upon our reading of Muniz and Butler, SOAB
assessments, standing alone, have not been rendered unconstitutional.
Instead, using SOAB assessments to declare that an individual is an SVP is
what is constitutionally unsound. Thus, we see no per se legal impediment to
a trial court’s consideration of an SOAB assessment in imposing sentence.
Furthermore, to the extent that Appellant argues that the trial court
abused its discretion by relying on an SOAB assessment at sentencing, we
note the following. In order to reach the merits of a discretionary aspects of
sentencing claim,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether the appellant preserved his or
her issue; (3) whether the appellant's brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the Sentencing Code.
Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (citation and
brackets omitted).
Herein, Appellant’s appeal is timely and he preserved his sentencing
issue in a post-trial motion. Appellant failed to include in his appellate brief a
concise statement of the reasons that the trial court abused its discretion as
required under Pa.R.A.P. 2119(f). Because the Commonwealth did not object
to this omission, we may still reach his challenge to the discretionary aspects
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of sentencing. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.
Super. 2006) (“[I]n the absence of any objection from the Commonwealth,
we are empowered to review claims that otherwise fail to comply with Rule
2119(f)[.]”).
Appellant, however, has failed to raise a substantial question. “A
defendant presents a substantial question when he sets forth a plausible
argument that the sentence violates a provision of the sentencing code or is
contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (internal
citation omitted). Aside from arguing that SOAB assessments are
unconstitutional, Appellant does not argue that the use of an SOAB
assessment is contrary to a specific sentencing provision of the Sentencing
Code or to the fundamental norms of sentencing. In Pennsylvania, a
sentencing court must impose an individualized sentence that is appropriate
in light of the facts of the case and the defendant’s circumstances. See
Commonwealth v. Fortson, 165 A.3d 10, 19 (Pa. Super. 2017). We have
previously stated:
Prior to imposing sentence a sentencing judge may appropriately
conduct an inquiry broad in scope, largely unlimited either as to
the kind of information he may consider, or the source from which
it may come.
Nevertheless, the discretion of a sentencing judge is not
unfettered; a defendant has the right to minimal safeguards to
ensure that the sentencing court does not rely on factually
erroneous information, and any sentence predicated on such false
assumptions is inimicable [sic] to the concept of due process.
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Obviously, the probability of receiving accurate pre-sentence
information is considerably enhanced when the defendant has an
opportunity to review and dispute the facts and allegations
available to the sentencing judge.
Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa. Super. 2009) (internal
citations, quotations, and most original brackets omitted).
In this case, Appellant does not challenge the information provided in
the SOAB report and merely contests the consideration of the entire SOAB
assessment. We already determined that the trial court’s reliance on an SOAB
assessment was constitutionally permissible. Further, Appellant does not
contest any facts set forth in the SOAB report and concedes that “[t]he
author[s] of the [SOAB] report had the same information available to them as
did the probation officer that did the pre-[s]entence [i]nvestigation [report].”
See Appellant’s Brief at 12. If the trial court had the same information
available from another source, which Appellant does not contest, Appellant
failed to show how the trial court relied upon impermissible information at
sentencing. As such, Appellant failed to establish that the trial court’s reliance
upon the SOAB assessment was contrary to the norms of sentencing. For all
of the foregoing reasons, we conclude that Appellant did not raise a substantial
question and we will not review the merits of Appellant’s discretionary
sentencing claim.
In the fifth issue we review, Appellant challenges the standing of the
Pennsylvania State Police (PSP) over SORNA reporting requirements, claiming
that the trial court should instead “monitor” compliance. See Appellant’s Brief
at 20-22. He argues that it is a violation of his due process rights where
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compliance with SORNA is vested in the PSP. Id. at 20. Appellant cites
principally to Commonwealth v. Harmon, CP-51-CR-6706-2015 (First
Judicial District Court of Common Pleas March 13, 2018)7 and
Commonwealth v. Cheeseboro, 91 A.3d 714 (Pa. Super. 2014) for these
propositions.
Cheeseboro does not support Appellant’s claim. In that case, the
Philadelphia Court of Common Pleas accepted plea agreements between the
Commonwealth and 73 defendants, wherein the Commonwealth agreed that
the defendants were not required to register as sexual offenders under
SORNA. The PSP appealed those decisions arguing “that the General
Assembly unequivocally determined who must register as sexual offenders
under SORNA and that neither the Commonwealth, defense counsel, nor the
trial court have the ability to exempt or modify the mandatory terms of sexual
offender registration pursuant to a plea agreement.” Cheeseboro, 91 A.3d
at 721. Ultimately, this Court concluded that the PSP lacked standing to
challenge the trial court’s decision not to apply SORNA reporting requirements
because the PSP was not aggrieved by the exemptions. Id. at 722.
Relevant herein, however, the Cheeseboro Court noted:
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7 Harmon is a trial court decision and, thus, is not binding upon this Court.
See Echeverria v. Holley, 142 A.3d 29, 36 n.2 (Pa. Super. 2016). Moreover,
while Appellant provides a citation to Harmon, we were unable to locate that
decision and Appellant did not append it to his brief under Pa.R.A.P. 2111(b).
Finally, while Appellant baldly claims that the issues in this case are similar to
those in Harmon, Appellant fails to discuss Harmon or otherwise
demonstrate similarities. As such, we will not consider that decision.
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PSP was not expressly granted broad authority and discretionary
powers under SORNA. Unlike the Uniform Firearms Act, 18
Pa.C.S.A. §§ 6101–6127, which provides PSP with a determinative
role as to whether an applicant is prohibited from receiving or
possessing a firearm, PSP's role under SORNA may be viewed
as more ministerial in nature than adjudicative. See, e.g.,
42 Pa.C.S.A. §§ 9799.32(1)-(4), (6)-(9) (maintaining of sexual
offender registry by PSP and gathering, recording, storing,
updating, and sharing offender information); 42 Pa.C.S.A.
§§ 9799.22 and 9799.32(5) (regarding limited enforcement
duties of PSP in notifying authorities when an individual fails to
comply with registration, penalty, or counseling provisions).
Furthermore, it is not until after the underlying offenses have been
litigated that PSP is notified that an individual is subject to the
sexual offender registration requirements. Cf. 42 Pa.C.S.A.
§ 9799.13 (regarding applicability of registration with PSP
requirements for individuals convicted/adjudicated delinquent of
a sexually violent offense); Commonwealth v. J.H., 759 A.2d
1269 (Pa. 2000) (holding that PSP was without standing to contest
an order to expunge criminal record or the order compelling PSP
to expunge the same under the Criminal History Record
Information Act, 18 Pa.C.S.A. §§ 9101–9183, where PSP was not
aggrieved by either, and notification to PSP was not required until
after an expungement order was entered, such that standing was
not derived from the statute); Hunt v. Pennsylvania State
Police, 983 A.2d 627 (Pa. 2009) (holding that PSP lacks standing
to challenge the underlying merits of an expungement order
through preliminary objections raised in a mandamus action).
Thus, SORNA does not appear to confer standing upon PSP.
Id. at 721–722 (emphasis added).
The Cheeseboro Court’s analysis of the PSP’s duties under SORNA
provides guidance in this case. Therein, after examining the relevant statutory
provisions pertaining to the administration of SORNA reporting requirements,
a prior panel of this Court determined that the PSP’s role is more ministerial
in nature than adjudicative. The PSP merely administers SORNA’s reporting
requirements and does not adjudicate failures to comply. The Crimes Code
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specifically delineates a criminal offense for failing to comply with registration
requirements at 18 Pa.C.S.A. § 4915.1. It confers upon police the right to
arrest a person without a warrant when the officer has probable cause to
believe that an individual has committed a registration violation. 18 Pa.C.S.A.
§ 4915.1(e). However, the PSP does not adjudicate the claim; a trial court
does. See, e.g., Commonwealth v. Hogentogler, 53 A.3d 866 (Pa. Super.
2012). Thus, to the extent that Appellant argues that his due process rights
are in jeopardy because of the PSP’s involvement with SORNA’s registration
requirements, his claim fails.
In sum, there is no due process violation because the PSP’s involvement
in monitoring SORNA’s registration requirements and there is no issue that
Appellant is subject to those requirements. Based upon his convictions, he is
required to register as a Tier-I offender. The PSP administers compliance with
reporting obligations, but subsequent reporting offenses are adjudicated by
the courts. Accordingly, for all of the foregoing reasons, we conclude that
Appellant’s reliance on Harmon and Cheeseboro8 fails.
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8 Finally, we note that following the 2014 Cheeseboro decision, the
Pennsylvania Legislature enacted 42 Pa.C.S.A. § 9799.42, effective June 12,
2018, which states:
Except for petitions filed under section 9799.15(a.2) (relating to
period of registration), the Pennsylvania State Police shall have
standing to appear and contest a filing in a court of this
Commonwealth which seeks to challenge in any way the obligation
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Finally, in his last issue presented, Appellant claims that the trial court
abused its discretion by applying SORNA requirements to him after his release
from prison because “Pennsylvania’s SORNA requirements are for
Pennsylvania residents.” Appellant’s Brief at 25. Appellant claims he has
never been a resident of Pennsylvania and intends to return to New Jersey.
Id. Appellant’s contention that he will not live in Pennsylvania is, however,
entirely speculative and not justiciable presently. “Generally, our judicial
system requires a real or actual controversy before it will embrace a matter
for review and disposition.” Bayada Nurses, Inc. v. Com., Dept. of Labor
and Industry, 8 A.3d 866, 874 (Pa. 2010). This Court previously
determined:
The ripeness doctrine is [a] prerequisite for a court to exercise
judicial review and examine the merits of a case. To be ripe, an
actual case or controversy must exist at every stage of the judicial
process. The rationale for the ripeness doctrine is to prevent
premature adjudications.
Treski v. Kemper Nat. Ins. Companies, 674 A.2d 1106, 1113 (Pa. Super.
1996) (internal citations omitted); see also Rivera v. Pennsylvania Dept.
of Corrections, 837 A.2d 525, 527 (Pa. Super. 2003) (“It is impermissible
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of an individual required to register with the Pennsylvania State
Police under this subchapter.
42 Pa.C.S.A. § 9799.42.
Although abrogated by statute on other grounds, Cheeseboro’s
analysis of the PSP’s role, which we have cited above, still remains valid.
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for courts to render purely advisory opinions.”). Here, Appellant’s claim that
he intends to move to New Jersey following his release from prison, thereby
rendering Pennsylvania’s registration requirements inapplicable to him, is
simply not an issue that is currently ripe for our review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/19
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