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2020 PA Super 293
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHILLIP ANDREW ASHER :
:
Appellant : No. 1133 MDA 2019
Appeal from the Judgment of Sentence Entered June 6, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002454-2017
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
OPINION BY LAZARUS, J.: FILED DECEMBER 21, 2020
Phillip Andrew Asher appeals1 from the judgment of sentence, entered
in the Court of Common Pleas of Luzerne County, following his conviction of
500 counts of child pornography,2 seven counts of dissemination of
photographs/film of child sex acts,3 and four counts of criminal use of a
communication facility.4 After careful review, we vacate the order denying
Asher’s post-sentence motion and remand in accordance with our Supreme
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1On May 29, 2020, this Court issued an order staying disposition of this case
pending this Court’s en banc decisions in Commonwealth v. Albright, 517
MDA 2019, and Commonwealth v. Poteet, 1456 MDA 2018. In light of this
Court’s orders of August 5, 2020, vacating the certification orders in those
cases, we now lift the stay order and proceed to address the merits of this
appeal.
2 18 Pa.C.S.A. § 6312(d).
3 18 Pa.C.S.A. § 6312(c).
4 18 Pa.C.S.A. § 7512(a).
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Court’s recent decision in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa.
2020). Otherwise, we affirm the judgment of sentence.
On January 18, 2018, Asher entered a guilty plea to the above offenses.
The offenses occurred on or about September 4, 2016. Pursuant to the plea
agreement, Asher agreed to a Sexual Offenders Assessment Board (SOAB)
evaluation. On May 12, 2018, Asher was determined not to be a sexually
violent predator (SVP).
On June 6, 2018, the court sentenced Asher to an aggregate term of
imprisonment of five to ten years. At sentencing, the Commonwealth
informed Asher he was required to register as a Tier II offender pursuant to
the Sexual Offenders Registration and Notification Act (SORNA).5 See N.T.
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5 SORNA was originally enacted on December 20, 2011, effective December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 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. Here, Asher’s offenses
occurred in 2016; thus, he is subject to registration under Revised Subchapter
H.
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Sentencing Hearing, 6/6/18, at 7-9. Defense counsel objected to the
imposition of SORNA requirements on several constitutional grounds,
including that it subjects sex offenders to an “irrebuttable presumption” that
they are a high risk for reoffending. Id. at 10-11. Asher filed a timely post-
sentence motion, again challenging the constitutionality of Revised
Subchapter H under Apprendi v. New Jersey6 and Alleyne v. United
States,7 and as a violation of due process because it subjects him “to an
irrebuttable presumption that ‘he poses a high risk of committing additional
sexual offenses’ and deprives him of his fundamental right to reputation[.]”
See Post-Sentence Motion, 6/18/18, at ¶ 11(a)-(e). In his memorandum of
law in support of post-sentence motions, Asher argued:
SORNA [II] sends a message that all registrants “pose a high risk
of committing additional sexual offenses.” [42 Pa.C.S.A. §]
9799.11(A)(4). Such an implication impinges on the registrant’s
reputation. However, a registrant has no meaningful way to
challenge this presumption of dangerousness and, therefore, the
presumption violates due process. [] The right to reputation is a
fundamental right under the Pennsylvania Constitution. In re
J.B., 107 A.3d 1, 16 (Pa. 2014)[;] Pa. Const. Art. 1, section 1.
This right cannot be abridged without complying with the state
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6 Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any facts,
other than fact of prior conviction, that subject defendant to any additional
penalty beyond statutory maximum must be submitted to jury and be found
proved beyond reasonable doubt).
7 Alleyne v. United States,
570 U.S. 99 (2013) (holding that any fact that
increases mandatory minimum sentence for crime is fact that must be
submitted to jury and found beyond reasonable doubt). Alleyne is an
extension of Apprendi.
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constitutional standards of due process set forth in Pa. Cons.
Article 1, section 11.[8] [] SORNA declares that every registrant
is a danger to the community and incapable of rehabilitation, [42
Pa.C.S.A. §] 9799.11(a)(6)-(8), a presumption that cannot be
rebutted because the individual is not given the opportunity to
rebut the same. [] A presumption runs afoul of due process where
“(1) it encroaches on an interest protected by the due process
clause; (2) the presumption is not universally true; and (3)
reasonable alter[n]ative means exist for ascertaining the
presumed fact.” An opportunity to challenge the “paramount
factor” must be presented to the defendant, which, in SORNA, is
the conclusion that “[s]exual offenders pose a high risk of
committing sexual offenses.” See 42 Pa.C.S.A. [§] 9799.11(a)(4)
and In re J.B., 107 A.2d at 14-15. No such opportunity exists
under SORNA or Act 10.
Memorandum in Support of Post-Sentence Motions, 10/9/18, at 15-16, citing
Dep’t of Transp. v. Clayton, 684 A.2d 1060, 1065 (Pa. 1996). Asher
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8 Article I, Section 1 of the Pennsylvania Constitution designates the right to
reputation as an inherent and indefeasible right:
All men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing
and protecting property and reputation, and of pursuing their own
happiness.
Pa. Const. art. I, § 1. Additionally, Article I, Section 11 similarly provides for
the protection by due course of law of a person’s reputation, along with lands,
goods and person:
All courts shall be open; and every man for an injury done him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale,
denial or delay. Suits may be brought against the Commonwealth
in such manner, in such courts and in such cases as the Legislature
may by law direct.
Id.
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contended that the Pennsylvania Supreme Court’s holding in J.B.—that the
use of an irrebuttable presumption violated juveniles’ constitutionally
protected interest in their reputation—should apply as well to an adult sex
offender. Post-Sentence Motion Memorandum, supra at 17. Asher
concluded, therefore, that the irrebuttable presumption does not survive the
three-pronged test set forth in Clayton. Id. at 19.
Asher’s post-sentence motion was denied by operation of law. See
Order, 6/11/19; Pa.R.Crim.P. 720(B)(3)(a), (c).9 Asher filed this timely
appeal. Both Asher and the trial court complied with Rule 1925(b). See
Pa.R.A.P. 1925(b) Statement, 7/30/19.
Asher raises one issue for our review:
Whether SORNA II contravenes the 5th, 6th and 14th Amendments
[to] the United States Constitution and Article 1, § 1 of the
Pennsylvania Constitution as a criminal punishment, without
appropriate due process[,] requiring that each fact necessary to
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9 We note that Asher filed a “Motion for Extension or Enlargement of time for
the Court to Decide Post-Sentence Motions” pursuant to Pa.R.Crim.P.
720(B)(3)(b) (“Upon motion of the defendant within the 120-day disposition
period, for good cause shown, the judge may grant one 30-day extension for
decision on the motion. If the judge fails to decide the motion within the 30-
day extension period, the motion shall be deemed denied by operation of
law.”). The trial court denied this motion on October 15, 2018, however, an
order pursuant to Rule 720(B)(3)(c) was not entered until June 11, 2019.
See Order, 6/11/19; see also Pa.R.Crim.P. 720(B)(3)(c) (“When a post-sentence motion is denied by operation of law, the clerk of courts shall
forthwith enter an order on behalf of the court, and, as provided in Rule 114,
forthwith shall serve a copy of the order on the attorney for the
Commonwealth, the defendant’s attorney, or the defendant if unrepresented,
that the post-sentence motion is deemed denied. This order is not subject to
reconsideration.”).
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support the imposition of punishment over which the court has no
control is submitted to a jury and proven beyond a reasonable
doubt under Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Alleyne v. United States, [570 U.S. 99] (2013)?
Appellant’s Brief, at 2.
Asher argues Revised Subchapter H remains punitive and, therefore,
“the sentencing process, as well as the trial itself, must satisfy the
requirements of the due process clause.” Id. at 14. “A trial court cannot
impose a punishment . . . for a specific offense or an enhanced or mandatory
minimum sentence unless the element requiring a mandatory minimum
sentence is proven beyond a reasonable doubt.” Id. at 14, citing Apprendi,
supra and
Alleyne, supra. Further, Asher argues SORNA II violates
Apprendi and Alleyne because it “continues to contain an irrebuttable
presumption” that an offender poses “a high risk of committing additional
sexual offenses” which cannot be challenged by the accused at trial or at
sentencing. Id. at 16, citing 42 Pa.C.S.A. §§ 9799.10(A)(4), 9799.11(A)(4),
(B)(1).
Asher’s argument challenges the irrebuttable presumption as violating
the tenets of Apprendi/Alleyne, where neither a judge nor a jury has
established beyond a reasonable doubt that Asher poses a high risk of
recidivating. As such, Asher contends, Revised Subchapter H cannot survive
constitutional scrutiny. Appellant’s Brief, at 17.
While this case was pending on appeal, the Pennsylvania Supreme Court
decided Torsilieri, supra. That case came before the Court pursuant to its
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original jurisdiction after the Chester County Court of Common Pleas found
Revised Subchapter H of SORNA II violated several provisions of both the
United States and Pennsylvania Constitutions.10 In Torsilieri, the trial court
concluded the statute violated Apprendi and Alleyne 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 doubt.” Torsilieri, supra 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, see Clayton,
supra;11 and (2) based on its determination of punitive effect, the trial court
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10 See 42 Pa.C.S.A. § 722(7) (providing Supreme Court with exclusive
jurisdiction over “[m]atters where the court of common pleas has held
[statutes] invalid as repugnant to the Constitution . . . of the United States,
or to the Constitution of this Commonwealth.”).
11 The Court’s due process/irrebuttable presumption analysis reviewed the
trial court’s application of the three-pronged Clayton test. Torsilieri, supra
at 585-89. The Court stated:
A review of the court’s conclusions clearly reveals that the court’s
analysis of each of the three prongs of the irrebuttable presumption
doctrine relies heavily upon the scientific evidence presented by
[Torsilieri]. As noted, the Commonwealth parties awaited this appeal
to proffer evidence to rebut [Torsilieri’s] experts. Given the procedures
leading to this point, the importance of the underlying issue, and our
deference to legislative policy determinations, we decline to render a
conclusion on the basis of the record before us. Instead, we conclude
that remand is necessary to allow the parties to present additional
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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. Torsilieri, supra at 582-
83.
For our purposes, we focus solely on the Torsilieri Court’s analysis of
the “branding [of] an offender as at high risk of recidivating” as it relates to
Asher’s due process claim pursuant to Apprendi/Alleyne. The Pennsylvania
Supreme Court applied the Mendoza-Martinez12 factors and evaluated “the
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argument and evidence to address whether a scientific consensus has
developed to overturn the legislative determinations in regard to adult
sexual offenders’ recidivation rates and the effectiveness of a tier-based
registration and notification system as they relate to the prongs of the
irrebuttable presumption doctrine.
Id. at 588-89.
12 Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963). The Supreme
Court held, absent conclusive evidence of congressional intent as to the penal
nature of a statute, the factors to be considered in determining whether the
statute, on its face, is penal or regulatory in character are: (1) whether the
sanction involves an affirmative disability or restraint; (2) whether it has
historically been regarded as a punishment; (3) whether it comes into play
only on a finding of scienter; (4) whether its operation will promote the
traditional aims of punishment, that is, retribution and deterrence; (5)
whether the behavior to which it applies is already a crime; (6) whether an
alternative purpose to which it may rationally be connected is assignable for
it; and (7) whether it appears excessive in relation to the alternative purpose
assigned.
Id. at 146.
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degree to which the trial court’s conclusions [were] based upon the scientific
evidence presented by [Torsilieri].” Torsilieri, supra 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 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
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considering not only the defense’s scientific evidence, but that of the
Commonwealth as well.
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 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).
Judgment of sentence affirmed. Order denying post-sentence motion
vacated and case remanded for proceedings consistent with Torsilieri.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2020
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