J-A06012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL CHITTESTER :
:
Appellant : No. 256 WDA 2020
Appeal from the Judgment of Sentence Entered December 12, 2019
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000053-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLEN CHITTESTER :
:
Appellant : No. 257 WDA 2020
Appeal from the Judgment of Sentence Entered December 12, 2019
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000449-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JANUARY 04, 2023
Appellant, Michael Allen Chittester, appeals from the aggregate
judgment of sentence of 37½ to 75 years’ incarceration, followed by 15 years’
probation, imposed after he was convicted of various sexual offenses in two
separate, but consolidated cases.1 Herein, Appellant solely challenges the
____________________________________________
1 This Court sua sponte consolidated Appellant’s appeals by per curiam order
filed July 17, 2020.
J-A06012-21
constitutionality of Revised Subchapter H of the Sexual Offender Registration
and Notification Act (“SORNA II”).2 After careful review, we affirm Appellant’s
judgment of sentence, but remand for further proceedings consistent with this
memorandum decision.
We need not discuss the facts underlying Appellant’s convictions. We
only note that he was convicted of numerous sexual offenses — including rape
of a child less than 13 years of age, aggravated assault, and involuntary
deviate sexual intercourse — based on his “having oral and anal sex with his
stepdaughter … when she was between the ages of five and ten.” Appellant’s
Brief at 5. Appellant’s offenses occurred in both Elk and McKean Counties,
and took place between the dates of October 1, 2014, and October 6, 2018.
Id. On December 12, 2019, the court imposed the aggregate sentence stated
____________________________________________
2See 42 Pa.C.S. §§ 9799.10-9799.42. We observe that SORNA was originally
enacted on December 20, 2011, effective December 20, 2012. See Act of
Dec. 20, 2011, P.L. 446, No. 111, § 12, effective in one year or Dec. 20, 2012
(Act 11 of 2011). Act 11 was amended on July 5, 2012, also effective
December 20, 2012, see Act of July 5, 2012, P.L. 880, No. 91, effective Dec.
20, 2012 (Act 91 of 2012), and amended on February 21, 2018, effective
immediately, known as Act 10 of 2018, see Act of Feb. 21, 2018, P.L. 27, No.
10, §§ 1-20, effective Feb. 21, 2018 (Act 10 of 2018), and, lastly, reenacted
and amended on June 12, 2018, P.L. 140, No. 29, §§ 1-23, effective June 12,
2018 (Act 29 of 2018). Acts 10 and 29 of 2018 are generally referred to
collectively as SORNA II. Through Act 10, as amended in Act 29, the General
Assembly split SORNA I’s former Subchapter H into a Revised Subchapter H
and Subchapter I. Subchapter I addresses sexual offenders who committed
an offense on or after April 22, 1996, but before December 20, 2012. See 42
Pa.C.S. §§ 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. §§
9799.10-9799.42.
-2-
J-A06012-21
supra. Appellant was not deemed to be a sexually violent predator, but he
was notified that he is subject to lifetime registration as a Tier III sex offender
under Revised Subchapter H of SORNA II. See 42 Pa.C.S. § 9799.14(d)(16).
Appellant filed a timely, post-sentence motion, which was denied on
January 28, 2020. He then filed a timely notice of appeal, after which his
counsel sought, and was granted, leave to withdraw. The court appointed
new counsel for Appellant, and after delays due to the COVID-19 pandemic,
counsel complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court filed a Rule
1925(a) opinion on August 20, 2020. Herein, Appellant raises five issues for
our review:
A. Whether [SORNA II] violates substantive due process under
Article 11 of the Pennsylvania Constitution because it deprives
individuals of the fundamental right to reputation and fails to
satisfy strict scrutiny?
B. Whether [SORNA II] violates due process under Articles 1 and
11 of the Pennsylvania Constitution because it creates an
irrebuttable presumption that those convicted of enumerated
offenses “pose a high risk of committing additional sexual
offenses” depriving those individuals of their fundamental right to
reputation when this presumption is not universally true?
C. Whether lifetime registration under [SORNA II] denied
Appellant procedural due process under the Pennsylvania and
Federal Constitutions because it unlawfully impinges the right to
reputation without notice and an opportunity to be heard?
D. Whether lifetime registration under [SORNA II] constitutes
criminal punishment and[,] therefore[,] violates the separation of
powers doctrine because it usurps exclusive judicial adjudicatory
and sentencing authority?
-3-
J-A06012-21
E. Whether lifetime registration under [SORNA II] is punishment
under the Mendoza-Martinez[3] test and it contravenes the 5th,
6th and 14th Amendments of the United States Constitution and
the corresponding protections of the Pennsylvania Constitution,
[see] Apprendi [v. New Jersey], [530 U.S. 466] (2000)[,] and
Alleyne [v. United States], 570 U.S. 99 (2013), when not every
fact necessary to support the imposition of a mandatory[-]
minimum sentence must be found by a jury beyond a reasonable
doubt?
Appellant’s Brief at 4.
Appellant’s issues all challenge the constitutionality of Revised
Subchapter H of SORNA II. “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.” 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.
Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020).
As Appellant recognizes, the claims he raises herein mirror those
addressed by our Supreme Court in Torsilieri. See Appellant’s Brief at 16
(“[T]he issues raised by Torsilieri are controlling to Appellant’s appeal.”); id.
at 17 (“Appellant currently raises the same issues as Torsilieri.”). See also
____________________________________________
3 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
-4-
J-A06012-21
Trial Court Opinion, 8/17/20, at 2 (finding that Appellant’s “constitutional
challenges are similar to what the Supreme Court of Pennsylvania addressed
in Torsilier[i]”) (unnumbered). There, Torsilieri challenged his registration
requirements under Revised Subchapter H in post-sentence proceedings. The
foundation of his arguments consisted of expert scientific evidence indicating
that “sexual offenders generally have low recidivism rates and questioning the
effectiveness of sexual offender registration systems[.]” Torsilieri, 232 A.3d
at 574. Based largely upon this evidence, the trial court declared Revised
Subchapter H unconstitutional under several interrelated theories, including
that Subchapter H impaired Torsilieri’s “right to reputation” under the
Pennsylvania Constitution by utilizing an “irrebuttable presumption” that all
registrants pose a high risk of recidivism. Id. at 574-75.
The Torsilieri trial court also concluded that Revised Subchapter H was
“punitive” pursuant to the seven factors set forth in Mendoza-Martinez. Id.
at 588-94. This conclusion “inevitably resulted” in a number of additional
rulings:
[T]he trial court concluded that (1) [Revised] Subchapter H
violated the dictates of Alleyne … and Apprendi … 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; (2) the registration
periods constituted illegal sentences in excess of the statutory
maximum terms of incarceration; (3) the provisions resulted in an
excessive sentence in violation of the federal and state
constitutional provisions related to cruel and unusual
punishments; and (4) [Revised] Subchapter H violated the
separation of powers doctrine by encroaching upon the judiciary’s
fact-finding and individualized sentencing responsibilities.
-5-
J-A06012-21
Id. at 594.
On direct appeal, our Supreme Court determined that the trial court had
correctly considered Torsilieri’s scientific evidence. Id. at 584. However, the
Court ultimately remanded the case for further development of the record and
arguments, reasoning:
[A]s the trial court did not have the benefit of the opposing
science, if any, the evidence currently in the record does not
provide a sufficient basis to overturn the legislative determination.
Accordingly, we conclude that the proper remedy is to remand to
the trial court to provide both parties an opportunity to develop
arguments and present additional evidence and to allow the trial
court to weigh that evidence in determining whether [Torsilieri]
has refuted the relevant legislative findings supporting the
challenged registration and notification provisions of Revised
Subchapter H.
Id. at 596.
Pertinent to the instant case, after Torsilieri, this Court decided
Commonwealth v. Reslink, 276 A.3d 1192 (Pa. Super. 2020), holding that
Reslink’s constitutional challenges to Revised Subchapter H were waived due
to his failure to raise them in the trial court. Because, here, Appellant also
did not assert his constitutional challenges to Revised Subchapter H in his
post-sentence motion but, instead, presented them for the first time in his
Rule 1925(b) statement, this panel originally concluded that Appellant had
waived his claims for our review under the rationale of Reslink.4
____________________________________________
4 The Honorable Daniel D. McCaffery filed a concurring statement, joined by
this author and the Honorable Anne E. Lazarus, agreeing that we were bound
by Reslink to find waiver, but urging our Supreme Court to consider whether
constitutional challenges to a sentence are subject to waiver.
-6-
J-A06012-21
However, on June 22, 2022, our Supreme Court issued
Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022), expressly
disapproving of Reslink, and holding that Thorne “did not waive
his Apprendi-based and cruel and unusual punishment challenges to the
lifetime registration requirement set forth in Revised Subchapter H by raising
them for the first time in his brief to the Superior Court, because such claims
implicate the legality of a sentence and, therefore, cannot be waived.”
Thorne, 276 A.3d at 1197-98. Following Thorne, Appellant filed a timely
petition for allowance of appeal with our Supreme Court. On August 30, 2022,
the Court granted Appellant’s petition, vacated our panel decision, and
remanded for us to reconsider our decision in light of Thorne. We now
conclude that, under Thorne, Appellant’s constitutional challenges to Revised
Subchapter H implicate the legality of his sentence and, thus, are not waived
based on his failure to raise them below. Accordingly, we will address the
merits of Appellant’s claims herein.
Again, Appellant acknowledges that his constitutional challenges to
Revised Subchapter H mirror those presented in Torsilieri. They also are the
same claims recently raised and addressed by this Court in Commonwealth
-7-
J-A06012-21
v. Escabal, No. 1928 EDA 2021, unpublished memorandum at *2-3 (Pa.
Super. filed Oct. 11, 2022).5 There, the Escabal panel observed that,
[t]his Court recently rejected claims asserting, as [Escabal] does,
that we may venture beyond our Supreme Court’s ruling
in Torsilieri and uphold constitutional challenges to Revised
Subchapter H as a matter of law in the absence of factual
development: 1) demonstrating a consensus of scientific evidence
disproving the legislature’s presumptions concerning the risk of
re-offense or 2) establishing the clear proof needed to overcome
a statutory declaration that a provision is not punitive. See
Commonwealth v. Wolf, 276 A.3d 805, 813 (Pa. Super. 2022).
Moreover, our Supreme Court has been clear that it has not yet
declared that Revised Subchapter H is punitive in nature or that
Apprendi-based and cruel and unusual punishment challenges to
registration under Revised Subchapter H will succeed on the
merits. See … Thorne, 276 A.3d [at] 1198 … ([stating that] “our
decision [in Thorne] does not in any way establish that Revised
Subchapter H is punitive in nature and/or that [Thorne’s]
underlying [Apprendi-based and cruel and unusual punishment]
claims will be successful on the merits”) (emphasis added).5
[Escabal] has not presented compelling reasons to depart from
these recent pronouncements and we perceive none. Accordingly,
we reject [Escabal’s] request that we declare Revised Subchapter
H in violation of constitutional principles and statutory provisions
as a matter of law.
5Since the law in Pennsylvania presently holds that Revised
Subchapter H is not punitive, [Escabal’s] statutory claims,
which rest on the contention that registration pursuant to
Revised Subchapter H constitutes a criminal sentence, are
without merit.
Id. at *6.
____________________________________________
5 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for
their persuasive value).
-8-
J-A06012-21
Notably, Escabal “presented pre- and post-sentence motions
challenging the validity of Revised Subchapter H,” but “the trial court did not
entertain evidence relating to those objections.” Id. at *7. Thus, the Escabal
panel “vacate[d] the orders denying [Escabal’s] pre- and post-sentence
motions and remanded for further proceedings at which the parties [could]
present evidence for and against the relevant legislative determinations and
the challenges discussed above.” Id. (citing Commonwealth v. Mickley,
240 A.3d 957, 963 (Pa. Super. 2020) (vacating the order denying post-
sentence motion and remanding for evidentiary hearing at which the parties
could submit evidence pertinent to legislative determinations and application
of Revised Subchapter H)).
Here, by contrast, Appellant never presented his constitutional
challenges to Revised Subchapter H to the trial court in a pre- or post-sentence
motion.6 Nevertheless, considering our Supreme Court’s holding in Thorne
that Appellant’s issues constitute non-waivable challenges to the legality of
his sentence, we believe it is appropriate to remand to the trial court for
Appellant to have the opportunity to file, within 10 days of the date of this
memorandum decision, a nunc pro tunc post-sentence motion asserting his
constitutional challenges to Revised Subchapter H. If Appellant does so, the
court shall hold a hearing to “provide both parties an opportunity to develop
____________________________________________
6We note that, unlike in Escabal, the Court’s decision in Torsilieri was filed
months after Appellant’s judgment of sentence was imposed and the time
expired for him to file a post-sentence motion.
-9-
J-A06012-21
arguments and present additional evidence” so that the court may then “weigh
that evidence in determining whether [Appellant] has refuted the relevant
legislative findings supporting the challenged registration and notification
provisions of Revised Subchapter H.” Torsilieri, 232 A.3d at 596.
Judgment of sentence affirmed. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2023
- 10 -