J-S27036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PATRICK J. KELLY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2162 EDA 2019

Appeal from the Order Entered June 27, 2019

In the Court of Common Pleas of Carbon County Criminal Division at 

No(s): CP-13-CR-0000551-2013

BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 17, 2021

Appellant Patrick J. Kelly appeals the June 27, 2019 order of the Court 

of Common Pleas of Carbon County denying his “Motion to Bar Applicability of 

Sex Offender Registration and/or Petition for Writ of Habeas Corpus,” which

the lower court characterized as an untimely petition under the PostConviction Relief Act (PCRA).1

 

This appeal is before us pursuant to the Pennsylvania Supreme Court’s 

order of January 22, 2021, which vacated our June 29, 2020 disposition which 

affirmed the lower court’s decision. The Supreme Court remanded for 

reconsideration in light of its decision in Commonwealth v. Lacombe, 

____Pa.____, 234 A.3d 602, 618 (2020), in which the Court “decline[d] to 

find the PCRA, or any other procedural mechanism, is the exclusive method 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
J-S27036-20

- 2 -

for challenging sexual offender registration statutes.” After consideration of 

Lacombe, we affirm the order dismissing Appellant’s filing, but do so on 

grounds different than those of the lower court.2

On June 18, 2013, Appellant was charged with Aggravated Indecent 

Assault of a Child, Aggravated Indecent Assault of a Complainant Less than 

13 years old, Aggravated Indecent Assault of a Complainant less than 16 years 

old, Indecent Assault of a Person Less than 13 years old, and Indecent 

Exposure. The criminal information accused Appellant of committing said 

crimes between January 1, 2011 and December 31, 2012. The criminal 

information was later amended to include a charge of Indecent Assault.

On April 29, 2016, Appellant pled guilty to one count of Indecent 

Assault. In his oral plea colloquy, Appellant agreed that he had committed 

sexual assaults of a minor in a period “spanning the time frame of 2011 and 

2012.” Notes of Testimony (N.T.), 4/29/16, at 4. Following an evaluation, 

the Sexual Offender Assessment Board (SOAB) determined that Appellant was 

not a sexually violent predator. 

On July 5, 2016, the trial court imposed a sentence of incarceration. As 

part of the plea process, Appellant gave written and verbal acknowledgment

that he would be required to register pursuant to Pennsylvania Sex Offender 

____________________________________________

2 See Commonwealth v. Wilcox, 174 A.3d 670, 674 n.4 (Pa.Super. 2017) 

(explaining that the Superior Court is not bound by the lower court’s rationale 

and may affirm the lower court's order on any basis supported by the record).
J-S27036-20

- 3 -

Registration and Notification Act (SORNA)3for a fifteen-year period. Appellant 

did not file a direct appeal.

On September 15, 2017, Appellant filed the instant “Motion to Bar 

Applicability of Sex Offender Registration and/or Petition for Writ of Habeas 

Corpus.” Appellant cited to Commonwealth v. Muniz, 640 Pa. 699, 164 

A.3d 1189 (2017), in which our Supreme Court held that the retroactive 

application of SORNA’s registration and reporting requirements violated the 

ex post facto clauses of the United States and Pennsylvania Constitutions.

Appellant asserted that he cannot be required to comply with SORNA’s 

registration requirements as his offenses occurred prior to the effective date 

of the original SORNA statute (December 20, 2012).

In addition, Appellant claimed in his petition that the “retroactive 

application of SORNA also violates Pennsylvania’s Due Process Clause because 

it creates an irrefutable presumption of dangerousness, denying [Appellant] 

the fundamental right of reputation.” Petition, 9/15/17, at 3. Appellant did 

not develop this claim beyond this assertion.

On November 27, 2018, the lower court held a hearing on Appellant’s 

petition. The parties focused on Appellant’s argument that he was not subject 

to sex offender registration requirements as he alleged that his offenses were 

____________________________________________

3 42 Pa.C.S.A. §§ 9799.10-9799.42 (“SORNA I”). SORNA was originally 

enacted on December 20, 2011 and became effective December 20, 2012. As 

discussed infra, SORNA I was later amended by Acts 10 and 29 of 2018 

(known collectively as “SORNA II”). See Act of Feb. 21, 2018, P.L. 27, No. 

10, §§ 1-20 (Act 10 of 2018); Act of June 12, 2018, P.L. 140, No. 29, §§ 1-

23 (Act 29 of 2018).
J-S27036-20

- 4 -

committed before the effective date of the original SORNA statute. Neither

the parties nor the lower court acknowledged that SORNA was modified by Act 

10 and Act 29 of 2018 (collectively referred to as “SORNA II”) after Appellant 

filed his petition in this case. See supra note 1. At the evidentiary hearing 

before the lower court, Appellant did not mention or present any evidence or 

authority in support of his claim raised in his petition that SORNA created an 

“irrefutable presumption of dangerousness.” 

At the conclusion of the hearing, the lower court indicated that it would 

take these matters under advisement and gave the parties an opportunity to 

submit supplemental briefs in support of their respective positions. 

On January 9, 2019, Appellant filed a “Brief in Support of Removal from 

SORNA registration.” On January 10, 2019, Appellant filed a “Supplemental 

Brief in Support of Removal from SORNA Registration” in which he raised new 

issues that had not been included in his petition or addressed at the hearing.

Specifically, Appellant stated that “in addition to those arguments made 

in [Appellant’s] original brief, [Appellant] supplements those arguments on 

the basis of the decision of the Court of Common Pleas of Chester County, 

Pennsylvania in Commonwealth v. Torsilieri, No. 15-CR-1570-2016, 

wherein that Court found both SORNA facially unconstitutional on various 

grounds.” Supplemental Brief, 1/10/19, at 1. Appellant listed the issues that 

the defendant presented to the Court of Common Pleas in Torsilieri without 

further development. Appellant noted that this case was pending before the 

Pennsylvania Supreme Court at that time. 
J-S27036-20

- 5 -

Thereafter, on June 27, 2019, the lower court issued a memorandum 

and order, construing Appellant’s filing as an untimely PCRA petition that failed 

to invoke any of the PCRA timeliness exceptions. In the alternative, the lower 

court also asserted that even if Appellant’s petition were deemed to be timely 

filed, it found Appellant’s arguments pursuant to Muniz were meritless. The 

lower court made a specific finding that Appellant’s own testimony and plea 

colloquies demonstrated that “his criminal conduct occurred in part after the 

December 20, 2012 SORNA effective date and lacks in part the 

unconstitutional retroactive application of SORNA to [Appellant] that has been 

ruled impermissible in [Muniz].” Trial Court Opinion (T.C.O.), 6/28/19, at 19. 

In addition, the lower court indicated that it “decline[d] to substantively 

address [Appellant’s] contention that SORNA in its entirety violates the 

Pennsylvania and United States Constitution.” T.C.O., 6/28/19, at 19 n.7. 

On appeal, this Court affirmed the lower court’s order denying 

Appellant’s petition as untimely filed under the PCRA. Commonwealth v. 

Kelly, 2162 EDA 2019 (Pa.Super. June 29, 2020) (unpublished 

memorandum). This Court did not reach the merits of Appellant’s claims. 

Appellant filed a Petition for Allowance of Appeal to the Supreme Court.

On July 21, 2020, our Supreme Court filed its decision in Lacombe, in 

which Supreme Court rejected the proposition that challenges to sexual 

offender registration requirements must be raised in a timely PCRA petition 

and “declined to find that the PCRA, or any other procedural mechanism, is 

the exclusive method for challenging sexual offender registration statutes.” 
J-S27036-20

- 6 -

Lacombe, 234 A.3d at 617. The Court recognized that “frequent changes to 

sexual offender registration statutes, along with more onerous requirements 

and retroactive application, complicate registrants’ ability to challenge new 

requirements imposed years after their sentences become final.” Id. at 617. 

Accordingly, the Supreme Court concluded that the trial court had jurisdiction 

to consider Lacombe's “Petition to Terminate His Sexual Offender Registration 

Requirements.”

Thereafter, in the instant case, the Supreme Court granted Appellant’s 

petition for allowance of the appeal, vacated our June 29, 2020 disposition 

and remanded this case for our consideration of its decision in Lacombe. 

In light of the Supreme Court’s holding in Lacombe, we conclude that 

Appellant’s September 15, 2017 “Motion to Bar Applicability of Sex Offender 

Registration and/or Petition for Writ of Habeas Corpus” should not be 

construed as a PCRA petition as the lower court had jurisdiction to consider 

Appellant’s challenges to his sex offender registration requirements outside 

the confines of the PCRA. 

However, we need not remand the case for the lower court for further 

proceedings as the lower court included an alternative merits analysis in its 

opinion filed pursuant to Pa.R.A.P. 1925(a). Accordingly, we may address the 

merits of the claim Appellant raised in his petition. In his concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant 

raised the following issues for review:
J-S27036-20

- 7 -

1. Whether the Honorable Trial Court’s finding that the crime of 

conviction of Indecent Assault, graded as a misdemeanor of the 

second degree, was committed on or after the effective date of 

SORNA, was an abuse of discretion and against the weight of 

the evidence? 

2. Whether SORNA applies to Appellant’s conviction for Indecent 

Assault, graded as a misdemeanor of the second degree, where 

the predicate facts established that the crime was not 

committed on or after December 20, 2012, the effective date 

of SORNA? 

3. Whether that portion of the sentence requiring Appellant to 

comply with SORNA should be vacated?

4. Whether the Trial Court erred in finding that Appellant’s filing 

was untimely?

5. Whether SORNA is unconstitutional on its face and as applied 

to Appe[]llant, for the following reasons: 

a. 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?

b. 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?

c. 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 individuals of inalienable rights and fails 

to satisfy strict scrutiny?

d. Whether the recent amendment to SORNA, Act 10, is in 

all material respects identical to SORNA and therefore a 

punitive law?
J-S27036-20

- 8 -

e. 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?

f. Whether SORNA 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 

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)?

g. Whether the imposition of mandatory fi[]fteen year sex 

offender registration for all Tier II offenses under SORNA 

is a cruel and unusual punishment in violation of the 

Eight[h] and Fourteenth Amendments to the United 

States Constitution and Article I, Section 13 of the 

Pennsylvania Constitution?

Concise Statement, 8/12/19, at 1-3.

In the first three claims, Appellant argued that the lower court erred in 

refusing to vacate his sex offender registration requirements under SORNA as 

he alleged that all of his offenses occurred prior to the effective date of the 

original SORNA statute. As noted above, in his petition, Appellant cited to 

Muniz for the proposition that the retroactive application of SORNA violated 

the ex post facto clauses of the United States and Pennsylvania Constitutions. 

Appellant alleged that there was no support for the lower court’s factual 

finding that Appellant’s crimes were committed after December 20, 2012, the 

effective date of SORNA I. 

We initially note that Appellant did not raise or develop this claim in his 

appellate brief. “[W]here an appellate brief fails to provide any discussion of 
J-S27036-20

- 9 -

a claim with citation to relevant authority or fails to develop the issue in any 

other meaningful fashion capable of review, that claim is waived.” 

Commonwealth v. Donoughe, ___A.3d___, 2020 PA Super 288 (Pa.Super. 

2020) (quoting Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d 

915, 924 (2009)). As such, Appellant’s claim is waived on appeal.

However, we feel compelled to note that the neither the parties nor the 

lower court recognized that, before the evidentiary hearing was held in this 

case, the Legislature passed Acts 10 and 29 of 2018 (“SORNA II”), which 

amended the original legislation in response to the Supreme Court’s decision 

in Muniz. As our Supreme Court recently explained in Commonwealth v. 

Torsilieri, ___ Pa.____, 232 A.3d 567 (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 Muniz, that 

application of the original provisions of SORNA to these offenders

constituted an ex post facto violation.

Id. at 580. This Court has clarified that “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. Commonwealth

v. Mickley, 240 A.3d 957, 958 n.3 (Pa.Super. 2020). 
J-S27036-20

- 10 -

At the time of the lower court’s hearing on Appellant’s petition in this 

case, Appellant was no longer subject to the requirements of SORNA I as the 

General Assembly had enacted SORNA II. As such, the lower court erred in 

relying on SORNA I and should have assessed whether Appellant was required 

to register under Revised Subchapter H or Subchapter I of SORNA II. 

Commonwealth v. Smith, 240 A.3d 654, 657 (Pa. Super. 2020) (noting that 

“[b]ecause offender registration requirements evolve pursuant to the 

legislative decisions of our General Assembly, registrants must comply with 

current law”) (emphasis in original).

The parties do not dispute that Appellant pled guilty to offenses that 

occurred before December 20, 2012. The lower court found that Appellant 

pled guilty to criminal conduct with a date range beginning on January 1, 2011 

and ending on December 31, 2012. This Court has held that “when an 

appellant’s offenses straddle the effective dates of Subchapters H and I or 

SORNA, he is entitled to the lower reporting requirements in Subchapter I....” 

Commonwealth v. Alston, 212 A.3d 526, 530 (Pa.Super. 2019). As a result, 

we find that Appellant is subject to the reporting requirements set forth in 

Subchapter I.4

____________________________________________

4 Moreover, to the extent that the lower court should have reviewed 

Appellant’s ex post facto claim in light of his current registration requirements 

under Subchapter I, we note that in Lacombe, our Supreme Court held that 

“Subchapter I is nonpunitive and does not violate the constitutional prohibition 

against ex post facto laws.” Lacombe, 234 A.3d at 605–606.
J-S27036-20

- 11 -

In Appellant’s remaining claim on appeal, Appellant argues that SORNA 

is unconstitutional in its entirety for various reasons, including those raised 

before the Court of Common Pleas of Chester County in Commonwealth v. 

Torsilieri, No. CP-15-CR-1570-2016 (C.C.P. Chester 2018), wherein the trial 

court found SORNA facially unconstitutional on multiple grounds.5

However, Appellant did not raise these claims before the lower court in 

his September 25, 2017 “Motion to Bar Applicability of Sex Offender 

Registration and/or Petition for Writ of Habeas Corpus.” To the extent that 

Appellant made a general allegation in his petition that SORNA violated his 

constitutional right of reputation through an irrefutable presumption, we note 

that Appellant did not mention this claim at the evidentiary hearing or attempt 

to provide any evidence, citation to authority, or analysis to support this bald 

assertion. 

As such, we agree with the trial court that all of these issues are waived 

as our rules of appellate procedure provide that “[i]ssues not raised in the trial 

court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 

302(a). Moreover, this Court has recently found that a defendant’s failure to 

present scientific evidence to support his claim that the underlying legislative 

policy in Subchapter H infringes on his constitutional rights resulted in waiver 

____________________________________________

5 We acknowledge that the Supreme Court has since filed a decision in 

Commonwealth v. Torsilieri, ___Pa.___, 232 A.3d 567 (2020). Given that 

our conclusion that Appellant failed to properly preserve a challenge on the 

same theory before the trial court, we need not discuss the holding in that 

decision.
J-S27036-20

- 12 -

as the appellant “failed to satisfy his burden to prove that Revised Subchapter 

H provisions applicable to him clearly, palpably, and plainly violate the 

constitution.” Commonwealth v. Manzano, 237 A.3d 1175, 1182 

(Pa.Super. 2020). 

We are not persuaded by Appellant’s claim that he properly raised these 

claims before the trial court in his January 10, 2019 “Supplemental Brief in 

Support of Removal from SORNA Registration.” Appellant did not raise these 

claims in his petition or seek the lower court’s permission to file an amended 

petition at any time, but listed these issues in a supplemental brief filed after 

the evidentiary hearing on Appellant’s petition had been held.

As such, it was proper for the lower court to decline to address the 

merits of these claims, which were not properly preserved in a related 

challenge in Appellant’s petition or in an authorized amended petition. This 

Court has held:

[a] petition for habeas corpus must specifically aver facts which, 

if true, would entitle the relator to an award of a writ of habeas 

corpus and a hearing thereon. Moreover, it is a general rule that 

the petition may be denied summarily and without a hearing 

where it fails to allege facts making out a prima facie case for the 

issuance of the writ.

Balsamo v. Mazurkiewicz, 611 A.2d 1250, 1253 (Pa.Super. 1992) (citations 

omitted).

For the foregoing reasons, we affirm the order dismissing Appellant’s 

petition.

Order affirmed.
J-S27036-20

- 13 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/17/2021