J-S25032-20
2020 PA Super 206
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEWIS A. MANZANO :
:
Appellant : No. 895 MDA 2019
Appeal from the Judgment of Sentence Entered April 26, 2019
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000904-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEWIS A. MANZANO :
:
Appellant : No. 901 MDA 2019
Appeal from the Judgment of Sentence Entered April 26, 2019
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000776-2018
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
OPINION BY KING, J.: FILED AUGUST 21, 2020
Appellant, Lewis A. Manzano, appeals from the judgments of sentence
entered in the Cumberland County Court of Common Pleas, following his nolo
contendere pleas to one count each of rape of a child and aggravated indecent
assault of a child, and three counts of indecent assault of a child.1 We affirm.
____________________________________________
1 18 Pa.C.S.A. §§ 3121(c); 3125(b); and 3126(a)(7), respectively.
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The relevant facts and procedural history of this case are as follows. On
January 18, 2019, Appellant entered a negotiated plea of nolo contendere at
docket No. CP-21-CR-0000776-2018, to one count of rape of a child, and at
docket No. CP-21-CR-0000904-2018, to one count of aggravated indecent
assault of a child and three counts of indecent assault of a child. Appellant’s
convictions stem from sexual offenses he committed between December 22,
2017 and February 21, 2018. Pursuant to the terms of the plea bargain, the
parties agreed on a minimum sentence between 11 and 15 years’
imprisonment (with the maximum to be decided by the court), that Appellant
would be subject to the registration requirements under Revised Subchapter
H of the Sexual Offender Registration and Notification Act (“SORNA II”)2 and
register as a Tier III offender, and Appellant would undergo an evaluation by
____________________________________________
2 Following Commonwealth v. Muniz, 640 Pa. 699,
164 A.3d 1189 (2017)
(plurality), cert. denied, ___ U.S. ___,
138 S.Ct. 925,
200 L.Ed.2d 213 (2018)
and Commonwealth v. Butler,
173 A.3d 1212 (Pa.Super. 2017) (“Butler
I”), rev’d, ___ Pa. ___,
226 A.3d 972 (2020) (“Butler II”), the Pennsylvania
General Assembly enacted legislation to amend SORNA I. See Act of Feb. 21,
2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several provisions of SORNA
I, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42,
9799.51-9799.75. In addition, the Governor of Pennsylvania signed new
legislation striking the Act 10 amendments and reenacting several SORNA I
provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No.
29 (“Act 29”). 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 addresses 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.
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the Sexual Offender Assessment Board (“SOAB”) to determine if he satisfied
the criteria for designation as a sexually violent predator (“SVP”).
On April 5, 2019, Appellant filed a motion for stay of his SVP
determination pending the Supreme Court’s review of Butler I. Appellant
also filed a motion to declare his lifetime registration requirements under
SORNA II unconstitutional and to strike those requirements from his sentence,
relying on decisions from the Chester County and Montgomery County Court
of Common Pleas, which were pending before the Pennsylvania Supreme
Court at that time. See Commonwealth v. Torsilieri, 37 MAP 2018, and
Commonwealth v. Lacombe, 35 MAP 2018.
On April 9, 2019, the court denied Appellant’s motions. Appellant
proceeded to sentencing on April 26, 2019. Following an evaluation from the
SOAB, the court designated Appellant a SVP under Revised Subchapter H.
See 42 Pa.C.S.A. § 9799.24. Additionally, the court sentenced Appellant to
an aggregate 15 to 30 years’ imprisonment, plus 51 years of probation.
Appellant timely filed post-sentence motions on May 6, 2019. Among
other things, Appellant again requested a stay of his registration requirements
and SVP designation in light of Butler I, Torsilieri, and Lacombe, which
remained pending before the Supreme Court. The Commonwealth filed a
response on May 20, 2019, and the court denied Appellant’s post-sentence
motions on May 23, 2019.
Appellant timely filed notices of appeal at each underlying trial court
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docket on June 4, 2019.3 On June 10, 2019, the court ordered Appellant to
file concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), which Appellant timely filed on June 28, 2019. On July 24, 2019,
this Court consolidated the appeals sua sponte.4
Appellant raises two issues for our review:
Did the court err when it proceeded with the current [SVP]
assessment in light of [SVP designations] being declared
unconstitutional by [Butler I]?
Did the court err when it required [Appellant] to register as
a sex offender under [Revised] Subchapter H of chapter 97
of the Judicial Code, because sexual offender registration is
unconstitutional?
(Appellant’s Brief at 3).
In his first issue, Appellant asserts that in Butler I, this Court held that
a designation of SVP status under SORNA I violates the federal and state
constitutions, because SVP status increases the criminal penalty to which a
defendant is exposed without the factfinder making necessary factual findings
____________________________________________
3 Appellant included both underlying trial court docket numbers on each notice
of appeal, in violation of Commonwealth v. Creese, 216 A.3d 1142
(Pa.Super. 2019). Nevertheless, this Court has recently overruled Creese to
the extent that it required the Superior Court to quash appeals when an
appellant files multiple notices of appeal and each notice of appeal lists all of
the underlying trial court docket numbers. See Commonwealth v.
Johnson, ___ A.3d ___,
2020 PA Super 164 (filed July 9, 2020) (en banc).
Thus, Appellant’s notices of appeal are properly before us.
4 On July 27, 2020, this Court issued an order staying disposition of this case
pending this Court’s en banc disposition in Commonwealth v. Albright, 517
MDA 2019. In light of this Court’s recent order decertifying Albright for en
banc reargument, we now lift the stay and proceed to address this appeal.
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beyond a reasonable doubt. Appellant argues that the SVP assessment
provision of Revised Subchapter H in SORNA II contains the same erroneous
“clear and convincing” evidence language, instead of requiring the relevant
fact-finding to be decided beyond a reasonable doubt. In light of Butler I,
Appellant claims the SVP procedure in Revised Subchapter H of SORNA II
could be valid only if the Supreme Court declared that Revised Subchapter H
is not punitive. Appellant insists the registration requirements under Revised
Subchapter H are punitive. Appellant concludes the court erred by proceeding
with his SVP assessment after Butler I, and this Court should vacate and
remand for resentencing without Appellant’s SVP designation. We disagree.
Appellant purports to challenge the legality of his sentence, which is a
question of law. Therefore, our standard of review is de novo, and our scope
of review is plenary. Commonwealth v. Hawkins, 45 A.3d 1123, 1130
(Pa.Super. 2012).
In Butler I, this Court held that the provision of SORNA I requiring a
court to designate a defendant a SVP by clear and convincing evidence violates
the federal and state constitutions because it increases a defendant’s criminal
penalty without the fact-finder making necessary factual findings beyond a
reasonable doubt. See Butler I, supra. While Appellant’s appeal was
pending, however, the Pennsylvania Supreme Court reversed Butler I. See
Butler II, supra. Initially, the Butler II Court explained:
…SVPs are different from the non-SVP SORNA registrants at
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issue in Muniz[5] due to heightened public safety concerns
based on the determination SVPs have “a mental
abnormality or personality disorder that makes the
individual likely to engage in predatory sexually violent
offenses.” 42 Pa.C.S.A. § 9799.12. Therefore, a simple
extrapolation from the analysis in Muniz is insufficient to
determine whether the [registration, notification, and
counseling] requirements [applicable to SVPs] constitute
criminal punishment.
Butler II, supra at ___, 226 A.3d at 987.
In deciding whether the provisions of Revised Subchapter H applicable
to SVPs were punitive, the Court explained:
We first consider whether the General Assembly’s “intent
was to impose punishment, and, if not, whether the
statutory scheme is nonetheless so punitive either in
purpose or effect as to negate the legislature’s nonpunitive
intent.” If we find the General Assembly intended to enact
a civil scheme, we then must determine whether the law is
punitive in effect by considering the Mendoza-Martinez[6]
factors. We recognize only the “clearest proof” may
____________________________________________
5 In Muniz, our Supreme Court held that the registration provisions of SORNA
I were punitive, such that application of those provisions to offenders who
committed their crimes prior to SORNA I’s effective date violated ex post facto
principles. See Muniz, supra.
6 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69,
83 S.Ct. 554, 567-
68,
9 L.Ed.2d 644 (1963) (delineating seven-factor test as framework for
determining whether statute is so punitive as to negate legislature’s intention
to identify scheme as civil or regulatory: “[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 are all relevant to the inquiry…”) (internal
footnotes omitted).
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establish that a law is punitive in effect. Furthermore, in
determining whether a statute is civil or punitive, we must
examine the law’s entire statutory scheme.
Id. at ___, 226 A.3d at 987 (quoting Muniz, supra at 732,
164 A.3d at 1208).
Concluding the stated purpose of Revised Subchapter H is non-punitive,7
the Court next evaluated the Mendoza-Martinez factors. Butler II, supra
at ____, 226 A.3d at 988-92.
In balancing these factors, the Court explained:
Although we recognize the [registration, notification, and
counseling] requirements impose affirmative disabilities or
restraints upon SVPs, and those requirements have been
historically regarded as punishment, our conclusions in this
regard are not dispositive on the larger question of whether
the statutory requirements constitute criminal punishment.
This is especially so where the government in this case is
concerned with protecting the public, through counseling
and public notification rather than deterrent threats, not
from those who have been convicted of certain enumerated
crimes, but instead from those who have been found to be
dangerously mentally ill. Under these circumstances, and
also because we do not find the [registration, notification,
and counseling] requirements to be excessive in light of the
heightened public safety concerns attendant to SVPs, we
conclude the [registration, notification, and counseling]
requirements do not constitute criminal punishment.
Id. at ___, 226 A.3d at 992. Therefore, the Court determined that “the
procedure for designating individuals as SVPs under Section 9799.24(e)(3) is
____________________________________________
7 See 42 Pa.C.S.A. § 9799.11(b)(2) (stating Revised Subchapter H “shall not
be construed as punitive”).
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not subject to the requirements of Apprendi and Alleyne[8] and remains
constitutionally permissible.” Id. at ___, 226 A.3d at 976.
Instantly, in light of the Supreme Court’s decision in Butler II, we
conclude that because SVP adjudication is not criminal punishment, the trial
court did not err in designating Appellant a SVP under SORNA II. See id. See
also Commonwealth v. Groner, ___ A.3d ___, ___, 2020 PA Super 124
(filed May 27, 2020) (holding: “In light of our Supreme Court’s decision in
Butler II, we conclude SORNA II’s [registration, notification, and counseling]
requirements for SVPs—essentially unchanged from those in SORNA [I]—are
likewise non-punitive, such that its procedural framework for designating SVPs
by clear and convincing evidence” is constitutionally sound). Thus, Appellant’s
first issue merits no relief.
In his second issue, Appellant argues Revised Subchapter H is
unconstitutional because it (a) creates an irrebuttable presumption of
dangerousness in violation of the right to reputation protected by the
Pennsylvania Constitution; (b) increases punishment based on facts found by
the legislature as opposed to a jury in violation of Apprendi and Alleyne; (c)
creates an illegal sentence by requiring registration for a period in excess of
the maximum term of incarceration; (d) is excessive under the U.S. and
____________________________________________
8 See Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348,
147 L.Ed.2d
435 (2000) and Alleyne v. United States,
570 U.S. 99,
133 S.Ct. 2151,
186
L.Ed.2d 314 (2013).
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Pennsylvania Constitutions; and (e) violates separation of powers principles.
For these reasons, Appellant concludes this Court must vacate his registration
requirements. We disagree.
To begin:
When an appellant challenges the constitutionality of a
statute, the appellant presents this Court with a question of
law. See Commonwealth v. Atwell, 785 A.2d 123, 125
(Pa.Super. 2001) (citation omitted). Our consideration of
questions of law is plenary. See id.,785 A.2d at 125
(citation omitted). A statute is presumed to be
constitutional and will not be declared unconstitutional
unless it clearly, palpably, and plainly violates the
constitution. See Commonwealth v. Etheredge, 794
A.2d 391, 396 (Pa.Super. 2002) (citations omitted). Thus,
the party challenging the constitutionality of a statute has a
heavy burden of persuasion. See id.,794 A.2d at 396
(citation omitted).
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004).
Significantly, during the pendency of this appeal, our Supreme Court
issued its decisions in Torsilieri and Lacombe. See Commonwealth v.
Torsilieri, ___ Pa. ___, ___ A.3d ___, 2020 WL 3241625 (filed June 16,
2020). See also Commonwealth v. Lacombe, ___ Pa. ___, ___ A.3d ___,
2020 WL 4150283 (filed July 21, 2020).9
____________________________________________
9 In Lacombe, our Supreme Court held that Subchapter I of SORNA II is
nonpunitive and does not violate the constitutional prohibition against ex post
facto laws. As Lacombe applies only to Subchapter I, and Appellant’s
registration requirements arise under Revised Subchapter H, Lacombe is not
applicable to Appellant’s claims and we need not discuss it further. To the
extent Appellant suggests that Lacombe dealt with Revised Subchapter H, he
is mistaken. See Lacombe, supra.
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In Torsilieri, our Supreme Court addressed the constitutionality of the
provisions of Revised Subchapter H that are not applicable to SVPs. See
Torsilieri, supra at *1 n.2 (reiterating holding in Butler II that registration,
notification, and counseling requirements applicable to SVPs do not constitute
criminal punishment and therefore SVP designation procedure is
constitutionally permissible; as Butler II involves registration provisions
related to SVPs, it is not relevant to defendant, who was not designated SVP).
Specifically, at the post-sentence motion stage of litigation, the defendant had
challenged his reporting requirements under Revised Subchapter H as
violating his due process rights under the Pennsylvania Constitution. The
defendant expressly challenged the presumption in SORNA II that all sex
offenders are dangerous and pose a high risk of recidivism, necessitating
registration and notification procedures to protect the public from recidivist
sex offenders. The defendant further claimed the presumption was not
supported by current research and threatens public safety by preventing the
re-integration of offenders as law-abiding citizens. Although the
Commonwealth argued that a post-sentence motion hearing was not the
proper forum to adjudicate a challenge to the constitutionality of a statute,
the trial court permitted the defendant to introduce affidavits and supporting
documents of three experts concluding that sex offenders generally have low
recidivism rates and questioning the effectiveness of sex offender registration
systems. The Commonwealth did not offer any rebuttal expert testimony or
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documents regarding the defendant’s expert witnesses. Id. at *2-*3.
The trial court declared the provisions of Revised Subchapter H
applicable to the defendant unconstitutional based largely on the scientific
evidence the defendant had advanced at the hearing. The trial court
concluded that the registration and notification provisions of Revised
Subchapter H violated the defendant’s right to due process by impairing his
right to reputation through utilization of an irrebuttable presumption and
because the statutory system failed to provide requisite notice and opportunity
to be heard. The trial court further held Revised Subchapter H violated the
separation of powers doctrine because it removed the trial court’s ability to
fashion an individualized sentence. Finally, the trial court held that Revised
Subchapter H violated Alleyne/Apprendi by allowing for enhanced
punishment neither determined by the fact-finder nor premised upon proof
beyond a reasonable doubt. Id. at *3. Consequently, the trial court vacated
the defendant’s sentence to the extent that it required compliance with
Revised Subchapter H’s registration provisions. Id.
On appeal, our Supreme Court initially rejected the Commonwealth’s
argument that the trial court lacked authority to consider the constitutionality
of Revised Subchapter H. Id. at *11 (stating: “[A] viable challenge to
legislative findings and related policy determinations can be established by
demonstrating a consensus of scientific evidence where the underlying
legislative policy infringes constitutional rights. In such cases, it is the
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responsibility of the court system to protect the rights of the public”). Next,
the Supreme Court acknowledged that, based on the evidence the
defendant had presented in the trial court, he posed “colorable
constitutional challenges” to Revised Subchapter H’s registration and
notification provisions based upon his asserted refutation of two critical
legislative determinations: (1) that all sex offenders pose a high risk of
recidivism; and (2) that the tier-based registration system of Revised
Subchapter H protects the public from the alleged danger of recidivist sex
offenses. Id.
Notwithstanding the defendant’s proffered evidence, however, the Court
decided it was unable to conclude based upon the record before it whether the
defendant had sufficiently undermined the validity of the legislative findings
supporting Revised Subchapter H’s registration and notification provisions,
especially in light of the Commonwealth’s contradictory scientific evidence
produced on appeal. Noting that “it is not the role of an appellate court to
determine the validity of the referenced studies based on mere citations rather
than allowing the opportunity for the truths to develop through a hearing on
the merits of the evidence,” the Court remanded to allow the parties to
address whether a consensus has developed to call into question the relevant
legislative policy decisions impacting sex offenders’ constitutional rights. Id.
at *12.
Further, in examining the trial court’s analysis of the irrebuttable
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presumption doctrine and the Mendoza-Martinez factors, the Court
emphasized that the trial court had relied heavily upon its review of the
defendant’s proffered scientific evidence. Id. at *14-*20. The Court
reiterated that although the defendant presented a colorable argument that
the General Assembly’s factual presumptions have been undermined by recent
scientific studies, the Court was unable to affirm the court’s conclusions
“because the evidence of record does not demonstrate a consensus of
scientific evidence…to find a presumption not universally true…, nor the
‘clearest proof’ needed to overturn the General Assembly’s statements that
the provisions are not punitive, which we have noted requires more than
merely showing disagreement among relevant authorities.” Id. at *21.
Accordingly, the Court remanded so the trial court could re-evaluate the
defendant’s proffered evidence weighed against contrary evidence, if any
exists. Id.
Instantly, we initially note that Appellant fails to articulate what
registration requirements, if any, he is subject to in Revised Subchapter H that
fall outside of those requirements specifically applicable to SVPs, which our
Supreme Court has already declared are constitutional. See Butler II,
supra. While Appellant suggests this Court should adopt the trial court’s
analysis in Torsilieri, Appellant ignores the crucial fact that Torsilieri
involved the non-SVP provisions of Revised Subchapter H. Because Appellant
was designated a SVP and our Supreme Court has already declared the
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provisions of Revised Subchapter H applicable to SVPs are constitutional,
Appellant’s second issue arguably fails on this basis alone. See Butler II.
Additionally, unlike the defendant in Torsilieri, Appellant has produced
no scientific evidence whatsoever to support his claims that the underlying
legislative policy infringes on Appellant’s rights. Rather, Appellant merely
attached the Chester County and Montgomery County Court of Common Pleas’
decisions in Torsilieri and Lacombe to his filings in the trial court, in the
attempt to persuade the trial court in his case to reach the same conclusion.
Likewise, Appellant’s appellate brief is mostly a “copy and paste” of various
excerpts from the trial court’s disposition in Torsilieri, but without any
attribution to the Chester County Court of Common Pleas. Compare
Appellant’s Brief at 11-23 with Commonwealth v. Torsilieri, No. 15-CR-
0001570-2016 (Chester Cty CCP, filed August 31, 2018, at 41-45; 47-50; 52-
53; 73-77; 78-80).
In fact, the only significant omissions in Appellant’s brief as compared
to the trial court’s disposition in Torsilieri, are the trial court’s numerous
citations to the scientific evidence presented in that case, and the trial court’s
thorough analysis of the Mendoza-Martinez factors, which Appellant does
not even mention. See Commonwealth v. Cosby, 224 A.3d 372 (Pa.Super.
2019), appeal granted in part, ___ A.3d ___,
2020 WL 3425277 (Pa. June 23,
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2020)10 (holding appellant failed to develop on appeal his challenge to
constitutionality of SORNA II where appellant cited, but did not adequately
apply, Mendoza-Martinez test to challenged provisions of SORNA II; while
appellant identified several aspects of SORNA II that have remained virtually
unchanged since SORNA I, he failed to provide any discussion, whatsoever,
concerning alterations made by General Assembly in crafting SORNA II in
response to Muniz and Butler I; this omission was fatal under Pa.R.A.P.
2119, as discussion of such changes is critical to any pertinent analysis of
whether challenged portion of SORNA II is punitive and, thus, subject to state
and federal prohibitions of ex post facto laws; further, appellant’s failure to
address changes between SORNA I and SORNA II showed he cannot overcome
heavy burden of persuasion to demonstrate that challenged provisions of
SORNA II clearly, palpably, and plainly violate state and federal ex post facto
clauses). Therefore, Appellant has failed to satisfy his burden to prove that
the Revised Subchapter H provisions applicable to him “clearly, palpably, and
plainly” violate the constitution. See id.; Howe, supra. Based upon the
foregoing, Appellant’s issues merit no relief. Accordingly, we affirm.
____________________________________________
10 The Supreme Court’s partial grant of allowance of appeal was on grounds
unrelated to the constitutionality of SORNA II.
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Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2020
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