J-A17025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BONNIE MARIE ROHN :
:
Appellant : No. 1858 EDA 2019
Appeal from the Judgment of Sentence Entered February 1, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001417-2018
BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McCAFFERY, J.: FILED: FEBRUARY 19, 2021
Bonnie Marie Rohn (Appellant) appeals from the judgment of sentence1
entered in the Northampton County Court of Common Pleas, following her
guilty plea to statutory sexual assault.2 Appellant was also directed to register
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1 While Appellant purported to appeal from the May 24, 2019, order denying
her post-sentence motion, the appeal lies properly from the judgment of
sentence entered February 1, 2019. See Commonwealth v. Borovichka,
18 A.3d 1242, 1245 n.1 (Pa. Super. 2010). Accordingly, we have amended
the caption.
Furthermore, we note the Commonwealth had also taken an appeal from
Appellant’s judgment of sentence, docketed in this Court at 1867 EDA 2019.
On December 30, 2019, however, the Commonwealth discontinued its appeal.
2 18 Pa.C.S. § 3122.1(b) (“A person commits a felony of the first degree when
that person engages in sexual intercourse with a complainant under the age
of 16 years and that person is 11 or more years older than the complainant
and the complainant and the person are not married to each other.”).
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for life under the Pennsylvania Sex Offender Registration and Notification Act3
(SORNA). On appeal, she argues: (1) Subchapter H of SORNA is
unconstitutional as violative of due process; and (2) the registration
requirements are overly onerous and thus constitute cruel and unusual
punishment. After careful review, we vacate the order denying Appellant’s
post-sentence motion, and remand in accordance with our Supreme Court’s
decision in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020).
Otherwise, we affirm the judgment of sentence.
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3 42 Pa.C.S. §§ 9799.10 to 9799.42. This Court has summarized:
SORNA was originally enacted on December 20, 2011, effective
December 20, 2012. Act 11 was amended on July 5, 2012, also
effective December 20, 2012, and amended on February 21,
2018, effective immediately, known as Act 10 of 2018, and, lastly,
reenacted and amended on June 12, 2018. Acts 10 and 29 of
2018 are referred to collectively as SORNA II. Through Act 10, as
amended in Act 29 (collectively, SORNA II), the General Assembly
split SORNA I’s former Subchapter H into a Revised Subchapter H
and Subchapter I. Subchapter I applies to sexual offenders who
committed 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.
Commonwealth v. Asher, ___ A.3d ___, ___, 2020 WL 7487519 at *2 n.5
(Pa. Super. 2020) (some citations to legislative history omitted).
Here, Appellant’s offenses occurred in 2017; thus, she is subject to
registration under Revised Subchapter H.
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From January 2017 through December 2017, Appellant, who was 33 to
34 years old, engaged in oral, vaginal, and anal intercourse with a male victim,
who was then 15 to 16 years old. Order of Court, 5/24/19, at 1-2. The victim
was living with Appellant, N.T. Plea, 10/26/18, at 8, and was “in her care.”
Affidavit of Probable Cause, 2/9/18, at 1. On October 26, 2018, Appellant
pleaded guilty to one count of statutory sexual assault, graded as a felony of
the first degree.
On February 1, 2019, the trial court sentenced Appellant to 12 months,
less two days to 24 months, less one day’s imprisonment, to be followed by
eight years’ probation.4 The court also ordered Appellant to comply with
lifetime registration under SORNA.5 Appellant objected on the record, arguing
that SORNA registration “has been found to be unconstitutional in 36 of our
neighboring counties.” N.T., 2/1/19, at 57. The Commonwealth responded
that the “legislature has enacted Act 29, which is Constitutional unless the
courts deem otherwise.” Id. at 57-58.
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4This “sentence was in the mitigated range by two days.” Order of Court at
3. Appellant was not found to be a sexually violent predator. N.T.
Sentencing, 9/1/19, at 58.
5At the sentencing hearing, the parties referred to “lifetime registration under
Megan’s Law.” N.T., 9/1/19, at 57.
Nevertheless, we note statutory sexual assault under 18 Pa.C.S.
§ 3122.1(b) — to which Appellant pleaded guilty — is a “Tier III” offense,
carrying lifetime registration. See 42 Pa.C.S. § 9799.14(d)(3) (Tier III sexual
offenses), 9799.15(a)(3) (individual convicted of a Tier III sexual offense shall
register for life).
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On February 11, 2019, both the Commonwealth and Appellant filed
timely post-sentence motions. The Commonwealth challenged the terms of
Appellant’s sentence, whereas Appellant argued SORNA is punitive in nature
and violates due process under the United States and Pennsylvania
Constitutions. Appellant relied on the decision in Torsilieri, in which the
Chester County Court of Common Pleas had ruled Subchapter H
unconstitutional. Appellant averred SORNA “punishes a person based on the
application of an irrebuttable presumption,” and “impairs the fundamental
right of reputation without notice and opportunity to be heard.” Appellant’s
Motion for Post-Sentence Relief, 2/11/19, at 3. Appellant thus requested the
court to declare SORNA unconstitutional and to vacate the portion of her
sentence requiring her to register.
The trial court issued a detailed order on May 24, 2019, denying both
parties’ post-sentence motions and setting forth its rationale.
On June 21, 2019, Appellant filed a timely notice of appeal, and on June
24th, the Commonwealth filed a timely notice of appeal. The trial court
entered separated orders, directing each party to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Both parties timely complied.
The Commonwealth’s appeal was docketed in this Court at 1867 EDA 2019.
On December 30, 2019, however, the Commonwealth filed a praecipe to
discontinue its appeal.
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At the present docket, 1858 EDA 2019, Appellant presents two issues
for our review:
A. Does the application of SORNA including its amendments of
February 21, 2018 signed into law as Act 10 of 2018 (H.B. 631)
deny [Appellant] and all of those defendants like situated due
process under Articles 1 and 11 of the Pennsylvania Constitution
by creating an irrebuttable presumption that those convicted of
enumerated offenses under the Act “pose a high risk of
committing additional sexual offenses” depriving them of their
fundamental right to reputation and rendering the statute
unconstitutional?
B. Does the application of SORNA including its amendments of
February 21, 2018 signed into law as Act 10 of 2018 (H.B. 631)
constitute criminal penalties and therefore its imposition of a
mandatory life time registration constitutes cruel and unusual
punishment for [Appellant] and all of those defendants like
situated in violation of the Fifth and Fourteenth Amendments [to]
the United States Constitution and Article 1 Section 13 of the
Pennsylvania Constitution?
Appellant’s Brief at 3.
In her first issue, Appellant avers “the use of an irrebuttable
presumption[,] to classify an individual as a person who is a high risk to
reoffend[,] is a constitutional violation.” Appellant’s Brief at 10. Appellant
relies on In re J.B., 107 A.3d 1 (Pa. 2014) (J.B.), in which the Pennsylvania
Supreme Court held the application of SORNA to juvenile offenders is
unconstitutional. Appellant notes the J.B. Court applied the following test for
determining whether an irrebutable presumption is unconstitutional: (1)
whether the presumption “encroaches on an interest protected by the due
process clause; (2) the presumption is not universally true; and (3)
reasonable alternative means exist for ascertaining the presumed fact.”
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Appellant’s Brief at 11 (citation omitted). Applying these factors to the instant
matter, Appellant maintains: (1) she has a fundamental right to reputation
that is “protected by the due process clause [and] which is encroached upon;”
(2) “there was evidence from an expert psychologist that Appellant “presents
as a low-risk offender,” and furthermore, that “research on female sex
offenders indicates that in general, they tend to be at a low risk for sexual re-
offending;” and (3) there exists a reasonable alternative means for
ascertaining the presumed fact — a sexually violent predator assessment or
similar assessment to determine the likelihood of re-offense. Id. at 14-16.
After careful review of the procedural history, the parties’ arguments,
and the applicable law, we conclude this issue is governed by this Court’s
recent decision in Asher, 2020 WL 7487519. In that case, we stated:
While this case was pending on appeal, the Pennsylvania
Supreme Court decided Torsilieri[. T]he Chester County Court
of Common Pleas found Revised Subchapter H of SORNA II
violated several provisions of both the United States and
Pennsylvania Constitutions.[ T]he trial court concluded the
statute violated Apprendi[6] and Alleyne[7] 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
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6 Apprendi v. N.J., 530 U.S. 466, 490 (2000) (other than the fact of a prior
conviction, any fact that increases penalty for crime beyond prescribed
statutory maximum must be submitted to jury and proved beyond reasonable
doubt; it is unconstitutional for legislature to remove from jury the assessment
of facts that increase prescribed range of penalties).
7 Alleyne v. U.S., 570 U.S. 99, 108 (2013) (any fact that increases mandatory
minimum sentence for crime is an element that must be submitted to jury and
found beyond reasonable doubt).
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doubt.” Torsilieri, [232 A.3d] 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, and
(2) based on its determination of punitive effect, the trial court
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
[sic]. Torsilieri, [232 A.3d] at 582-83.
[In Torsilieri, t]he Pennsylvania Supreme Court applied the
Mendoza-Martinez factors and evaluated “the degree to which
the trial court’s conclusions [were] based upon the scientific
evidence presented by [Torsilieri.” 8] Torsilieri, [232 A.3d]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
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8Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Court in Muniz
explained: the Mendoza-Martinez factors are
a framework for determining whether the provisions of the Alaska
statute were so punitive in effect as to negate the legislature’s
intention to identify the scheme as civil. The Mendoza-Martinez
factors are as follows: “[w]hether the sanction involves an
affirmative disability or restraint, whether it has historically been
regarded as a punishment, whether it comes into play only on a
finding of scienter, whether its operation will promote the
traditional aims of punishment — retribution and deterrence,
whether the behavior to which it applies is already a crime,
whether an alternative purpose to which it may rationally be
connected is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned[.]”
Muniz, 164 A.3d at 1200 (OAJC) (citation omitted).
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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 considering not only the
defense’s scientific evidence, but that of the Commonwealth as
well.
Asher, ___ A.3d at ___, 2020 WL 7487519 at **3-4 (some citations omitted).
The Asher Court then addressed the procedural history and issues
before it:
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
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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).
Id. at *4.
Again, we conclude Appellant’s first claim is governed by Asher.
Accordingly, we vacate the order denying her post-sentence motion and
remand for proceedings consistent with Torsilieri.
Appellant’s second claim on appeal is that SORNA’s registration
requirements “are so onerous as to render them a punishment and violative
of [the] 5th and 14th Amendments [to] the United States Constitution and
Article 1 Section 1 of the Pennsylvania Constitution.” Appellant’s Brief at 17.
In support, she presents the following arguments: in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017) (plurality), the Pennsylvania Supreme Court
applied the Mendoza-Martinez factors and determined “SORNA’s
registration provisions constitute punishment notwithstanding the General
Assembly’s identification of the provisions as nonpunitive . . . .” Appellant’s
Brief at 17, quoting Muniz, 164 A.3d at 1193 (opinion announcing the
judgment of the court) (OAJC). Appellant reviews each Mendoza-Martinez
factor and argues the Act 10 amendments should likewise be found punitive
in nature. Appellant’s Brief at 18-26. Pertinently, it was “the in-person
reporting requirements [that] constituted the direct restraint upon the
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registrant and under the Act 10 modification[,] that requirement still exists,
[although] modified.” Id. at 19. Presently, “[t]he actual number of times
that a lifetime registrant like [Appellant] will have to appear in person will vary
but for the first 3 years[,] it will be at least 12 times with an additional 40
times if she lives to be 78.” Id.
Pursuant to Mickley — cited in the Asher opinion — we conclude no
relief is due. In Mickley, the defendant averred “the imposition of mandatory
twenty-five (25)-year sex offender registration for all Tier II offenses under
SORNA is a cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and Article I,
Section 13 of the Pennsylvania Constitution.” Mickley, 240 A.3d at 960. This
Court stated:
The Torsilieri Court did not reach the merits of any of the
constitutional claims at issue, determining instead that the factual
record was not sufficiently developed in the trial court. The Court
concluded a remand was appropriate “to allow the parties to
address whether a consensus has developed to call into question
the relevant legislative policy decisions impacting offenders’
constitutional rights.” [Torsilieri, 232 A.3d at 587.]
Mickley, 240 A.3d at 962. The Mickey panel likewise remanded the case
before it: “Here, despite defense counsel’s attempt [sic], no evidence was
presented at the hearing on Mickley’s post-sentence motion. Thus, in
accordance with Torsilieri, we vacate the order denying Mickley’s post-
sentence motion and remand for a hearing at which the parties can present
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evidence for and against the relevant legislation determinations discussed
above.” Id. at 963.
Although the defendant was a Tier II offender and was subject to a 25-
year registration term, and Appellant in this case is a Tier III offender and
thus required to register for life, we conclude the discussion in Mickley is
applicable. Thus, we do not reach the merits of Appellant’s constitutional
challenge to lifetime registration requirements on cruel and unusual
punishment grounds. Instead, on remand, the parties may present argument
and evidence to the trial court on this issue.
For the foregoing reasons, we vacate the order denying Appellant’s post-
sentence motion and remand for a hearing at which the parties may present
evidence for and against the relevant legislation determinations discussed
above.
Judgment of sentence affirmed. Order denying Appellant’s post-
sentence motion vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
President Judge Emeritus Ford Elliott did not participate in the
consideration or decision of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/21
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