J-S09024-20
2020 PA Super 233
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN MARK MICKLEY :
:
Appellant : No. 1258 EDA 2019
Appeal from the Judgment of Sentence Entered January 9, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003143-2018
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
OPINION BY LAZARUS, J.: Filed: September 24, 2020
Steven Mark Mickley appeals from the judgment of sentence, entered in
the Court of Common Pleas of Lehigh County, following his convictions of
sexual abuse of children/dissemination of child pornography1 and sexual
abuse of children/possession of child pornography.2 After our review, we
vacate and remand.
In February 2018, following an investigation by the Bethlehem Police
Department, police executed a search warrant at Mickley’s residence. Police
retrieved child pornography from Mickley’s computer, including various
images of toddlers being sexually abused.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6312(c).
2 18 Pa.C.S.A. § 6312(d).
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On October 17, 2018, Mickley entered a negotiated guilty plea to the
abovementioned charges. The court ordered a presentence investigation
(PSI) and a Sexual Offenders Assessment Board (SOAB) evaluation. On
January 4, 2019, Mickley filed a motion to bar application of Pennsylvania’s
Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§
9799.10-9799.42.3 Following argument, the court denied the motion.
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3 SORNA was originally enacted on December 20, 2011, effective December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. As our Supreme Court recently explained in
Commonwealth v. Torsilieri, --- A.3d ---, 2020 WL 3241625 (Pa. filed June
16, 2020),
Act 10 split SORNA, which was previously designated in the
Sentencing Code as Subchapter H, into two subchapters. Revised
Subchapter H applies to crimes committed on or after December
20, 2012, whereas Subchapter I applies to crimes committed after
April 22, 1996, but before December 20, 2012. In essence,
Revised Subchapter H retained many of the provisions of SORNA,
while Subchapter I imposed arguably less onerous requirements
on those who committed offenses prior to December 20, 2012, in
an attempt to address this Court’s conclusion in [Commonwealth
v.] Muniz[, 164 A.3d 1189 (Pa. 2017)] that application of the
original provisions of SORNA to these offenders constituted an ex
post facto violation.
Id. at *11 (emphasis added). Subchapter I was designed to ensure that those
required to retroactively register under SORNA—and therefore entitled to
relief following Muniz—will still have to do so. Because Mickley was convicted
of offenses committed after December 20, 2012, Subchapter H applies and ex
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The court sentenced Mickley to a term of imprisonment of twelve
months, less one day, to twenty-four months, less one day, followed by five
years’ probation. The SOAB determined Mickley was not an SVP; however,
pursuant to SORNA, Mickley was classified as a Tier II sex offender, which
required that he register for a period of twenty-five years. 42 Pa.C.S.A. §
9799.12, 14(c).
Mickley filed a timely post-sentence motion, seeking to bar application
of SORNA. The court held a hearing on the motion on April 1, 2019, and,
thereafter, denied Mickley’s motion. Mickley filed this timely appeal. Both
Mickley and the trial court have complied with Pa.R.A.P. 1925. Mickley raises
seven issues for our review:
1. Whether SORNA (Act 10) denies the appellant due process
under 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 without notice and an
opportunity to be heard?
2. Whether SORNA (Act 10) denies the 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?
3. Whether SORNA (Act 10) violates substantive due process
under the state and federal constitutions, U.S. Const.
Amend. XIV; Pa. Const. Art. I, § 1, because SORNA deprives
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post facto principles have no application to his sentence. The Torsilieri Court
refers to Subchapter H as Revised Subchapter H.
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individuals of inalienable rights and fails to satisfy strict
scrutiny?
4. Whether the recent amendment to SORNA, Act 10, is in all
material respects identical to SORNA and therefore a
punitive law?[4]
5. Does SORNA (Act 10), as a penal law, violate the separation
of powers doctrine because it usurps the exclusive judicial
function of imposing a sentence?
6. Whether SORNA (Act 10) contravenes the 5th, 6th and 14th
Amendments of the United States Constitution and the
corresponding protections of the Pennsylvania Constitution
because[,] as a criminal punishment, SORNA cannot be
imposed without due process, notice and opportunity to
contest its imposition and ensuring that each fact necessary
to support the mandatory sentence and a sentence beyond
the authorized statutory maximum is submitted to a jury
and proven beyond a reasonable doubt pursuant to
Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Alleyne v. United States, 1570 U.S. 99 (2013)?[5]
7. Whether 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
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4 Recently, in Commonwealth v. Lacombe, ___ A.3d ___, 2020 WL
4148262 (Pa. filed July 21, 2020), the Pennsylvania Supreme Court held that
“Subchapter I does not constitute criminal punishment, and the ex post facto
claims . . . necessarily fail.”
Id., slip op. at 35. The instant case, like
Torsilieri, raises constitutional challenges to Revised Subchapter H, which
applies “to individuals who committed a sexually violent offense on or after
December 20, 2012, for which the individual was convicted.” 42 Pa.C.S.A. §
9799.11(c).
5 The trial court’s opinion relied on Commonwealth v. Martin,
205 A.3d 1247
(Pa. Super. 2019), to dispose of this issue. However, in Martin, the argument
was presented in terms of Apprendi/Alleyne– the fact that defendant posed
a high risk of recidivism was not proven beyond a reasonable doubt. There
was no argument with respect to the fundamental right to reputation. The
trial court (and the Commonwealth’s brief on appeal) conflate the reputation
issue and the Apprendi/Alleyne issue.
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Constitution and Article I, Section 13 of the Pennsylvania
Constitution?
Appellant’s Brief, at 5-6.
At sentencing, counsel for Mickley raised and preserved the issue of
whether Revised Subchapter H was punitive and whether it violated due
process by creating an irrebuttable presumption that a sex offender is likely
to reoffend. See N.T. Sentencing, 1/9/19, at 5-12. The court recognized the
decision of the Chester County Court of Common Pleas in Commonwealth v.
Torsilieri, No 15-CR-1570-2016, which found Act 10 (Revised Subchapter H)
unconstitutional, was pending before the Pennsylvania Supreme Court at that
time. Id.6 At the conclusion of sentencing, the court issued an order from
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6 See 42 Pa.C.S.A. § 722(7) (relating to our Supreme Court’s exclusive
jurisdiction of appeals from final orders of the court of common pleas in
matters where the court of common pleas has held, inter alia, a statute
unconstitutional). In Torsilieri, the trial judge, the Honorable Anthony J.
Sarcione, provided a comprehensive review of the various substantive and
procedural due process claims, in particular, the irrebuttable
presumption/reputation issue, also at issue here. The court applied the
constitutionality of irrebuttable presumptions test and concluded: (1) the label
of high-risk sex offender impacts one’s fundamental right to reputation; (2)
the evidence presented to the court demonstrates the presumption that all
sex offenders pose a high risk of reoffending is not universally true (the court
cites to numerous studies, and points out that the fact that some studies may
suggest otherwise illustrates the point that the presumption is not universally
true); and (3) reasonable alternatives exist to accomplish the legislative goal
(ascertaining the likelihood of reoffending/reducing sexual offense recidivism),
i.e., risk assessment tools, specialized treatment programs and professional
support systems. The court cited to In re J.B., 107 A.3d 1 (Pa. 2014), where
our Supreme Court determined SVP assessments could ascertain the risk of
sex offense recidivism for juveniles nearing adulthood, and thus “it is no great
leap to conclude that the application of individualized risk assessments via a
pre-deprivation hearing of adult offenders is not only possible, but is also
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the bench denying Mickley’s motion to bar application of SORNA. See N.T.
Sentencing, supra at 12. Mickley filed a timely post-sentence motion,
incorporating by reference the reasoning of the common pleas court’s decision
in Torsilieri. See Motion for Modification of Sentence to Bar Application of
Registration, 1/15/19, at 3. The court scheduled a hearing for April 1, 2019.
At the outset of the hearing, the court stated the matter “is really a question
of argument.” See N.T. Post-Sentence Motion Hearing, 4/1/20, at 3. The
Court continued: “And partly, I scheduled today's date to see if there would
be any change in the law from the date of the sentencing to today. I think
it's fair to say that there has not been a change of the law.” Id. Counsel for
Mickley argued as follows:
MR. COLLINS: We are still dealing with Subchapter H. And the
change there is that it applied to the cases that occurred after
December 20th, 2012. . . . What [the court of common pleas in]
Torsilieri did was look at [Subchapter H] in the prism of Muniz and
say, look it still constitutes a punishment using the
Mendoza/Martinez factors regarding punishment, whether it’s
affirmative disability or restraint, historical regards, traditional
aims of punishment, was the behavior already criminal under the
alternative means of addressing it and was the– was the statute
excessive. And they did the balancing in light of what Muniz said
about SORNA, pre-[A]ct 10 interpreted it after these changes
made with Act 10 and said on balance it’s– it is still a
punishment[.]
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actually available to the criminal justice system, and constitutes a reasonable,
more effective alternative for identifying high-risk recidivists and reducing
sexual re-offending than the draconian public shaming/warning procedures,
so reminiscent of colonial-age stocks and scarlet letters, currently in place for
all adult sexual offenders regarding of risk under SORNA.” Commonwealth
v. Torsilieri, No 15-CR-1570-2016, at 49.
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…
THE COURT: And you concede, of course, that Torsilieri right
now has no pre[ce]dential value because it’s a [c]ourt of
[c]ommon [p]leas decision.
MR. COLLINS: Oh, I understand. I know I am going to lose today.
THE COURT: Right.
MR. COLLINS: I understand that. I just wanted to preserve the
issue. . . . The only other thing I wanted to bring up in the
Torsilieri opinion is that . . . they actually had a hearing on the
Post-Sentence Motion, they actually– they presented affidavits
from a number of experts regarding whether the purpose of
SORNA is being served and that is to protect the public and ensure
the safety of the public. And also, whether . . . it’s punitive. And
the studies indicate that the – and I want to incorporate them into
my argument and that is that sexual offenders have less a rate of
recidivism then the general population– criminal justice
population. They are less likely to recidivate yet, the statute
unfairly tags them, our argument[] as a potential threat in the
future to reoffend and that [a]ffects the reputation, it's an
unconstitutional –
MR. EDWARDS: Judge, I just wanted to say . . . that Attorney
Collins would like to incorporate studies and stuff like that, but I
haven’t seen them so I would object to any of that stuff.
THE COURT: Whether they are studies or not studies really comes
down to what the Supreme Court is going to do –
Id. at 7-19 (emphasis added). At that point, the court issued an order from
the bench denying Mickley’s motion to bar application of SORNA.
While Mickley’s case was pending on appeal to this Court, our Supreme
Court decided Commonwealth v. Torsilieri, --- A.3d ---, 2020 WL 3241625
(Pa. filed June 16, 2020). Mickley’s claims on appeal are identical to those
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raised by the Commonwealth in Torsilieri.7 As these constitutional challenges
pertain to Subchapter H, and not Subchapter I, the Court’s recent decision in
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7 Of note, Mickley first argues Revised Subchapter H deprives him of
procedural due process because it creates an irrebuttable presumption of
recidivism, thus depriving him of his right to his reputation without notice and
opportunity to be heard. The legislative findings explicitly state that sexual
offenders “pose a high risk of committing additional sexual offenses and
protection of the public from this type of offender is a paramount
governmental interest.” 42 Pa.C.S.A. § 9799.11(a)(4). Article I, § 1, cited
by Mickley, reads: “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.
Article I, §11, also cited by Mickley, is Pennsylvania’s open courts
requirement. That declaration provides:
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.
Pa.Const. Art. 1, § 11. In R. v. Department of Public Welfare, 636 A.2d
142, 149 (Pa. 1994), the Pennsylvania Supreme Court held that:
[I]n Pennsylvania, reputation is an interest that is recognized and
protected by our highest state law; our Constitution. Section 1
and 11 of Article I makes explicit reference to “reputation,”
providing the basis for this Court to regard it as a fundamental
interest which cannot be abridged without compliance with
constitutional standards of due process and equal protection.
Id. at 146. Accordingly, reputation is among the fundamental rights that
cannot be abridged without compliance with state constitutional standards of
due process.
Id. Mickley contends the presumption, that “[s]exual offenders
pose a high risk of committing additional sexual offenses[,]” 42 Pa.C.S.A. §
9799.11(a)(4), is not universally true and a reasonable alternative means of
ascertaining that presumed fact [is] available.” Commonwealth, Dep't of
Transp., Bureau of Driver Licensing v. Clayton,
684 A.2d 1060, 1063 (Pa.
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Lacombe is not applicable, see supra n.4, and, as the Torsilieri Court
acknowledged, “Subchapter I imposed arguably less onerous requirements on
those who committed offenses prior to December 20, 2012[.]” Torsilieri,
supra at *11.
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.” Id. at *13. The Court stated:
We recognize that the Commonwealth parties relied upon our
recent statement in Muniz, rejecting [ ] expert evidence calling
into question the legislature’s assessment of sexual offender
recidivism risks and the effectiveness of tier-based registration
systems. In light of this reliance, we emphasize that all cases are
evaluated on the record created in the individual case. Thus, a
court need not ignore new scientific evidence merely because a
litigant in a prior case provided less convincing evidence. Indeed,
this Court will not turn a blind eye to the development of scientific
research, especially where such evidence would demonstrate
infringement of constitutional rights.
Nevertheless, we also emphasize that it will be the rare situation
where a court would reevaluate a legislative policy determination,
which can only be justified in a case involving the infringement of
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1996). Mickley suggests that empirical risk-based assessments and SVP
assessments exist for determining whether sexual offenders are likely to
reoffend. See Appellant’s Brief, at 12-13. Cf. Commonwealth v. Lee, 935
A.2d 865, 885 (Pa. 2007) (observing in regard to adult sexual offenders that
“[t]here is little question that the threat to public safety and the risk of
recidivism among sex offenders is sufficiently high to warrant careful recordkeeping and continued supervision.”).
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constitutional rights and a consensus of scientific evidence
undermining the legislative determination. We reiterate that while
courts are empowered to enforce constitutional rights, they should
remain mindful that “the wisdom of a public policy is one for the
legislature, and the General Assembly’s enactments are entitled
to a strong presumption of constitutionality rebuttable only by a
demonstration that they clearly, plainly, and palpably violate
constitutional requirements.”
…
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 [the
Commonwealth] has refuted the relevant legislative findings
supporting the challenged registration and notification provisions
of Revised Subchapter H.
Id. at *21 (emphasis added) (citations omitted).
Here, despite defense counsel’s attempt, 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 evidence for and against
the relevant legislation determinations discussed above.
Vacated and remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/20
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