J-S12029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY ALLEN HOFFMAN :
:
Appellant : No. 2425 EDA 2019
Appeal from the Judgment of Sentence Entered May 17, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001065-2018
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 24, 2021
Timothy Allen Hoffman (Appellant) appeals from the judgment of
sentence entered in the Monroe County Court of Common Pleas, following his
plea of nolo contendere to indecent assault of a complainant less than 13 years
of age1 (indecent assault). Appellant was also directed to register for life
under the Pennsylvania Sexual Offenders Registration and Notification Act2
(SORNA), although the record does not indicate whether a particular
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3126(a)(7).
2 42 Pa.C.S. §§ 9799.10 to 9799.75.
J-S12029-20
subchapter was applied.3 Relying on Commonwealth v. Torsilieri, 232 A.3d
567 (Pa. 2020) — which was decided during the pendency of this appeal —
Appellant presents one issue on appeal: whether Subchapter H of SORNA is
unconstitutional. After careful review, we conclude that because the date of
his sole underlying offense was not established, Appellant is entitled to the
lower reporting requirements found in Subchapter I of SORNA.4 Thus,
Appellant’s challenge to Subchapter H merits no relief. Nevertheless, we
affirm in part, vacate in part, and remand with instructions.
Appellant committed years-long sexual abuse of his grandchild, when
the grandchild was three to 11 years old. N.T. Sentencing, 5/17/19, at 23.
He was charged with indecent assault and related offenses. We note that with
respect to the indecent assault count, the information did not allege a specific
date of commission, but rather averred the underlying conduct was committed
“[b]etween January 22, 2006 and November 20, 2013.” Information,
5/22/18, at 1.
____________________________________________
3As will be discussed infra, Subchapter H of SORNA (Sections 9799.10 to
9799.42) applies to a defendant who committed sexual offenses after
December 20, 2012, while Subchapter I (Sections 9799.51 to 9799.75)
applies to a defendant who committed sexual offenses between April 22, 1996,
and December 20, 2012. 42 Pa.C.S. §§ 9799.11(c), 9799.52(1).
4 See Commonwealth v. Alston, 212 A.3d 526, 530 (Pa. Super. 2019)
(“[W]hen an appellant’s offenses straddle the effective dates of Subchapters
H and I of SORNA, he is entitled to the lower reporting requirements of
Subchapter I, absent a specific finding of when the offenses related to the
convictions actually occurred.”).
-2-
J-S12029-20
On August 22, 2018, Appellant pleaded nolo contendere to one count of
indecent assault, graded as a felony of the third degree. At the plea hearing,
the factual summary stated on the record was brief:
If this were to proceed to trial . . . the Commonwealth would
demonstrate that between January 26, 2006 and November
20, 2013 in Monroe County, Polk Township, [Appellant] had
indecent contact with [the victim], who [was] less than 13 years
of age at that time.
N.T. Nolo Contendere Plea, 8/22/18, at 8-9. Although Appellant pleaded guilty
to a single count, no further explanation was provided with respect to the date
of the offense. Nevertheless, the court advised Appellant, without reference
to any particular SORNA provision, that he would be subject to lifetime sexual
offender’s registration. Id. at 9-10.
Appellant then underwent a sexually violent predator (SVP) assessment
by the Sexual Offenders Assessment Board (SOAB), which produced “a report
indicating [Appellant] would meet the criteria” for classification as an SVP.
N.T., 5/17/19, at 2. However, after this Court issued a decision in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I) —
but before the Pennsylvania Supreme Court reversed the decision, see
Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (Butler II)— the
-3-
J-S12029-20
Commonwealth abandoned its intent to seek an SVP designation. 5 N.T.,
5/17/19, at 2-3.
On May 17, 2019, the trial court sentenced Appellant to 18 to 72 months’
imprisonment.6 N.T., 5/17/19, at 26. Again, there was no indication that
Appellant’s plea was based on any particular offense date. The court advised
Appellant he was “classified as a Tier 3 offender under Megan’s Law[7] and is
subject to a lifetime registration requirement as set forth in . . . 42 Pa.C.S.A.
§ 9799.23 pertaining to Megan’s Law.” Id. at 27. We note this cited statute,
42 Pa.C.S. § 9799.23, appears under Subchapter H of SORNA, but does not
set forth any registration requirements. Instead, that section provides, inter
alia, that “[a]t the time of sentencing, . . . the court shall inform the sexual
offender of the provisions of this subchapter.” 42 Pa.C.S. § 9799.23(a). On
the same day, Appellant also signed a form entitled “Notification of Megan’s
____________________________________________
5 In Butler I, this Court concluded the SVP-determination scheme, under
Section 9799.24(e)(3), violated Apprendi v. New Jersey, 530 U.S. 466
(2000), and Alleyne v. United States, 570 U.S. 99 (2013), and was thus
unconstitutional. Butler II, 226 A.3d at 976-77. On March 26, 2020,
however, our Supreme Court reversed, concluding the registration,
notification, and counseling requirements for SVPs are not subject to Alleyne
and thus pass constitutional muster. Id. at 993.
6 At the time of sentencing, Appellant was 71 years old. N.T., 5/17/19, at 25.
7 As will be discussed infra, SORNA replaced Megan’s Law in 2012.
Nevertheless, at the May 2019 sentencing hearing, the trial court referred to
the registration statute as Megan’s Law.
-4-
J-S12029-20
Law Sex Offender Registration Duties.” This form did not refer to any
particular SORNA statute nor set forth the particular registration requirements
applicable to Appellant. Instead, in the form, Appellant merely acknowledged
that his sex offender registration, reporting, and compliance obligations had
been explained to him.
Appellant filed a timely post-sentence motion, arguing, inter alia, that
SORNA should be found unconstitutional. Appellant pointed out that following
the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017),8 our legislature amended SORNA on February 21, 2018.
Appellant’s Motion to Reconsider Sentence, 5/24/19, at 2 (unpaginated).
Appellant averred, however: “The amendments do not so substantially alter
the nature or character of the requirements of SORNA such that it is non-
punitive or that its constitutionality has changed.” Id. Appellant relied on the
Chester County Court of Common Pleas’ then-recent decision in Torsilieri,
which was pending review before the Pennsylvania Supreme Court. Appellant
averred he was presenting “the same” issues as those raised in Torsilieri,
including due process challenges to SORNA’s “irrebuttable presumption that
those convicted of enumerated offenses ‘pose a high risk of committing
____________________________________________
8 See Muniz, 164 A.3d at 1193 (holding: (1) SORNA’s registration provisions
constitute punishment notwithstanding the General Assembly’s identification
of the provisions as nonpunitive; and (2) retroactive application of SORNA’s
registration provisions violates ex post facto clauses of United States and
Pennsylvania Constitutions) (opinion announcing judgment of the court).
-5-
J-S12029-20
additional sexual offenses.’” Id. at 3-4. While Appellant’s post-sentence
motion did not cite any particular section of SORNA, we note Torsilieri
addressed only Subchapter H. See Torsilieri, 232 A.3d at 581 n.16 (“In
[Lacombe, 234 A.3d 602,] we are reviewing a trial court’s declaration of
Subchapter I’s provisions as punitive and thus, as an unconstitutional violation
of the ex post facto clause, whereas, in the case at bar, we consider only
Revised Subchapter H.”) (emphasis added).
The trial court denied Appellant’s post-sentence motion on July 19,
2019. Appellant filed a timely notice of appeal and complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.9
____________________________________________
9 The trial court’s Rule 1925(b) order was entered on the docket on August
21, 2019, and directed Appellant to file a statement within 21 days, or by
Wednesday, September 11th. Appellant’s statement was filed one day
thereafter, on September 12th, and thus appears to be untimely. Upon closer
review of the trial docket, however, we note that while service of the court’s
Rule 1925(b) order was made on the public defender’s office via “Clerk of
Court’s Boxes” on August 21st, service was not made on Appellant’s assistant
public defender personally until August 22nd, by “eService.” Criminal Docket,
9/25/19, at 20. See Pa.R.Crim.P. 114(C)(2) (“The docket entries shall
contain . . . the date of service of the order or court notice.”). When we
calculate the 21-day filing period from the latter August 22nd notice date,
Appellant’s filing on September 12th is timely. See Commonwealth v. Hess,
810 A.2d 1249, 1254-55 (Pa. 2002) (declining to find waiver for failure to file
court-ordered Pa.R.A.P. 1925(b) statement where trial docket sheet failed to
indicate, in contravention of Pa.R.Crim.P. 114, date or manner of service to
appellant).
-6-
J-S12029-20
Appellant presents seven issues, all challenging the constitutionality of
Subchapter H of SORNA:
1. Whether the court erred when it found that SORNA does not
deny . . . Appellant due process under Articles 1 and 11 of the
Pennsylvania Constitution because it creates an irrebuttable
presumption that those convicted of the enumerated offenses [ ]
“pose a high risk of committing additional sexual offenses”
depriving those individuals of the fundamental right to reputation?
2. Whether the court erred when it found that SORNA does not
deny . . . Appellant procedural due process under Article 11 of the
Pennsylvania Constitution because it unlawfully impinges on the
right to reputation without notice and an opportunity to be heard?
3. Whether th[e] court erred when it found that SORNA does not
deny . . . Appellant procedural due process under the Fifth and
Fourteenth Amendments to the United States Constitution
because it unlawfully restricts liberty and privacy without notice
and an opportunity to be heard?
4. Whether the court erred when it found that SORNA does not
violate substantive due process under the Pennsylvania and
federal Constitutions, U.S. Const. Amend. XIV, Pa. Const. Art. I,
§ 1, because SORNA deprives individuals of inalienable rights and
fails to satisfy strict scrutiny?
5. Whether the court erred when it found that SORNA does not
constitute criminal punishment and therefore violates the
separation of powers doctrine because it usurps the exclusive
judicial function of imposing a sentence?
6. Whether the court erred when it found that SORNA does not
contravene the Fifth, Sixth, and Fourteenth Amendments of the
United States Constitution and the corresponding protections of
the Pennsylvania Constitution because as a criminal punishment,
SORNA cannot be [i]mposed without due process, notice, and
opportunity to con[t]est its imposition, and ensuring that each fact
necessary to support the mandatory sentence is submitted to a
jury and proven beyond a reasonable doubt pursuant to Apprendi
v. New Jersey, 530 U.S. 266 (2000) and Alleyne v. United
States, 1570 U.S. 99 (2013)?
-7-
J-S12029-20
7. Whether the court erred when it found that SORNA does not
constitute criminal penalties and therefore the imposition of
mandatory lifetime sex offender registration for nearly all of Tier
III offenses is not 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?
Appellant’s Brief at 7-9.
For ease of review, we first consider the legislative history of SORNA:
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[, known as Act 29].
Acts 10 and 29 of 2018 are referred to collectively as SORNA II.
Through [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 [to] 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 [to] 9799.42.
Commonwealth v. Asher, ___ A.3d ___, ___, 2020 WL 7487519 at * 1 n.5
(Pa. Super. Dec. 21, 2020) (emphasis added and some citations omitted).
As discussed above, the record does not indicate the factual basis for
the trial court’s conclusion, and parties’ agreement, that Appellant was subject
to lifetime sexual offender registration. Furthermore, no mention was made
of the applicable statutory authority, aside from reference, in the same
sentence, to the long-ago expired statute, Megan’s Law and to the statute in
Subchapter H of SORNA as to what a trial court must undertake at sentencing.
-8-
J-S12029-20
See N.T., 5/17/19, at 27 (“[Appellant] is classified as a Tier 3 offender under
Megan’s Law and is subject to a lifetime registration requirement as set forth
in . . . 42 Pa.C.S.A. § 9799.23[.]”); Notification of Megan’s Law Sex Offender
Registration Duties, 5/17/19. See also 42 Pa.C.S. § 9799.23; Torsilieri, 232
A.3d at 575 (Megan’s Law I deemed unconstitutional in 1999), 576 (Megan’s
Law II enacted in 2000), 577 (SORNA adopted in 2012, replacing Megan’s Law
II).
On appeal, however, Appellant avers his “convictions subject him to
lifetime registration” pursuant to 42 Pa.C.S. § 9799.55(b). Appellant’s Brief
at 66. That statute appears in Subchapter I. See 42 Pa.C.S. § 9799.55.
Furthermore, pursuant to Section 9799.55(a), it appears Appellant’s
conviction of indecent assault, 18 Pa.C.S. § 3126(a)(7), a felony of the third
degree, would trigger only a 10-year term of registration. See 42 Pa.C.S.
§ 9799.55(a)(1)(i)(A).
In any event, the remainder of Appellant’s extensive, seven-issue, 55-
page argument challenges the constitutionality of Subchapter H. See
Appellant’s Brief at 15-69. He discusses nine statutes under Subchapter H,
but makes no further mention of any Subchapter I provision. See id.
(discussing 42 Pa.C.S. §§ 9799.11, 9799.12, 9799.13, 9799.14, 9799.15,
9799.19, 9799.23, 9799.24, 9799.25).
As stated above, however, an offense may trigger Subchapter H or I,
depending on the offense date:
-9-
J-S12029-20
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 [to] 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 [to] 9799.42.
See Asher, ___ A.3d ___, 2020 WL 7487519 at * 1 n.5. This Court has held
“that when an appellant’s offenses straddle the effective dates of Subchapters
H and I of SORNA, he is entitled to the lower reporting requirements of
Subchapter I, absent a specific finding of when the offenses related to the
convictions actually occurred.” Alston, 212 A.3d at 530.
Here, both the criminal information and the oral factual summary at the
plea hearing averred Appellant committed indecent assault between January
of 2006 and November of 2013. N.T., 8/22/18, at 8; Information at 1. The
Commonwealth did not allege — and the trial court did not make a finding of
fact as to — any particular date of the offense. Accordingly, as Appellant’s
offense “straddle[s] the effective dates of Subchapters H and I of SORNA, he
is entitled to the lower reporting requirements of Subchapter I[.]” See
Alston, 212 A.3d at 530. Thus, Appellant is not entitled to relief on his claims,
all of which challenge the constitutionality of Subchapter H.
In any event, even if we were to apply Appellant’s same arguments as
a challenge to the constitutionality of Subchapter I, no relief would be due. In
the recent decision of Commonwealth v. Lacombe, 234 A.3d 602 (Pa.
2020), the Pennsylvania Supreme Court held:
- 10 -
J-S12029-20
Subchapter I does not constitute criminal punishment, and the ex
post facto claims forwarded by [the defendants] necessarily fail.
See Muniz, 164 A.3d at 1208 (“Our decision regarding violation
of [the ex post facto] clause depends on a determination of
whether SORNA’s retroactive application to [Muniz] constitutes
punishment.”).
Lacombe, 234 A.3d at 626-27.
In light of foregoing discussion, we vacate that portion of the judgment
of sentence regarding Appellant’s lifetime reporting requirements, and we
remand the case to the trial court to instruct Appellant on his proper
registration and reporting requirements. We affirm the judgment of sentence
in all other respects.
Judgment of sentence affirmed in part and vacated in part solely as to
SORNA reporting requirements. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2021
- 11 -
Com. v. Hoffman, T.
Combined Opinion