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

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN THOMAS CONROY

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2441 EDA 2019 Appeal from the Judgment of Sentence Entered May 17, 2019 In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP

- 45

- CR

- 0001315

- 2018

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J. *
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 17, 2021
Appellant, Kevin Thomas Conroy , appeals from the aggregate judgment

of sentence of 78 to 180 months of confinement, which was imposed after he
pleaded guilty to one count of criminal atte mpt to commit involuntary deviate

sexual intercourse with a child, two counts of endangeri ng welfare of children , and one count of child pornography. 1 After careful review , we affirm.
Appellant engaged in a pattern of criminal behavior between 2008 and
2015. On November 1, 2018, he pleaded guilty to the aforementioned
charges, and , on May 17, 2019, he was sentenced. On May 23, 2019,
Appellant filed timely post

- sentence motion s , which he amended the next day,

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 901( a) (to commit § 3123(b)), § 4304 (a)(1), and § 6312(d), respectively.J

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including : (1) a motion to bar application of Pennsylvania’s Sex Offender
Registration and Notifica tion Act (“SORNA”), 42 Pa.C.S. §§ 9799.10

- 9799.4 2, 2
and (2) a request that a “ no contact provision with [the victim,] R.C. [,] be
subject to the victim’ s request for co ntact, contact pursuant to R.C.’s

counselor’ s recommendation, or contact if the victim desires after she is of the
age of majority. ” Amended Post Sentence Motion and Reconsideration of
Sentence, 5/24/2019, at 6. For the former challenge , Appellant contended:

SORNA denies [Appellant] [d] ue [p] rocess under Article 1 and 11 [ sic ] of the Pennsylvania Constitution because it creates an irrebuttable presumption that those convicted of enumerated offenses “ pose a high risk of committing additional sexual

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2 Act of December 20, 2011, P.L. 446, No. 111, § 12 ; amended by Act of Feb ruary 21 , 2018, P.L. 27, No. 10, §§ 1

- 20, effective immediately ( “ Act 10 ” ); and re
- enacted and amended by Act of June 12, 2018, P.L. 140, No. 29, §§ 1

- 23, effective immediately

. 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, Revise d 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) (plurality),] that application of the original provisions of SORNA to these offenders constituted an ex post facto violation.

Commonwealth v. Torsilieri , 232 A.3d 567, 580

– 81 (Pa. 2020) (emphasis added). Subchapter I was designed to ensure that those required to register retroactively under SORNA

— and therefore entitled to relief following Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017) (plurality)

— will still h ave to do so.J

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offenses ” depriving those individuals of the fundamental right to reputation.

. . . SORNA constitutes criminal punishment and therefore violates the separation of powers doctrine because it usurps the exclusive judicial function of imposing a sentence.

Id. at 4

- 5.
On May 31, 2019, the Court of Common Pleas of Monroe County sat en

banc to hear Appellant’s SORNA challenge along with a number of other
defendants who had likewise challenged SORNA’s constitutionality. At the
hearing, Appellant’s counsel joined with the arguments of the other

defenda nts’ counsel, N.T., 5/31/2019, at 22, that SORNA was punitive and
violated due process by creating a rebuttable presumption that a sex offender
is likely to reoffend. Id. at 9

- 11, 15

- 19. The panel and counsel discussed

scientific studies about the rate o f recidivism amongst sexual offenders
compared to other criminals, but the studies themselves were never

introduced into evidence. Id. at 20

- 21 , 26

- 27. In fact, no evidence was
presented at the hearing on Appellant’s post

- sentence motion. See generally

id. Finally, Appellant and the other defendants requested that the en banc
panel declare SORNA unconstitutional in its entirety, citing to a decision from
the Chester County Court of Common Pleas, Commonwealth v. Torsilieri ,
Docket Number CP

- 15

- CR

- 0001570

- 2016, 3 which found Subcha pter H to be

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3 At the time of the en banc panel of the Court of Common Pleas of Monroe County, two appeals of the Torsilieri decision from the Court of Common Pleas of Chester County were pending: one appeal by Defendant Torsilieri before this Court, Commonwealth v. Torsilieri , 221 A.3d 280 (Pa. Super.J

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unconstitutional. Id. at 23. A “J uly 18, 2019 Order disposed of the

constitutional issue raised by Appellant.” Trial Court Opinion, dated
September 19, 2019, at 1. On August 16, 2019 , Appellant filed this timely
direct appeal. 4
Appellant presents the following issues for our review:

[1.] Whether the trial court erred as a matter o f law and abused its discretion in failing t o provide that [Appellant] can have contact with R.C. only at R.C.’ s desire after t hey are of the age of majority
or pursuant to R.C.’ s counselor ’ s r ecommendation?
[2.] W hether the trial court erred as a matter o f law and abused its discretion in failing t o find that SORNA denies [Appellant] due process under A rticle 1 and 11 [ sic ] of the Pennsy lvania constitution because it c reates an irrebuttable presumption that t hose convicted of enumerated offenses “ pose a high risk of committing additional sexual offenses” [ 5 ] depriving those i ndividuals of the fundamental right to r eputation? [3.] Whether the trial court erred as a matter o f law and abused its discretion in failing t o find that SORNA denies [Appellant]

_________________ __________ ______ ____ _______ filed August 16, 2019); and a second appeal by the Commonwealth filed directly to the Supreme Court of Pennsylvania pursuant to 42 Pa.C.S. § 722(7) (relating to the Supreme Court’s exclusive jurisdiction over appeals from final orders of the Court of Common Pleas in matters where the Court of Common Pleas has held, inter alia , a statute to be unconstitutional), Commonwealth v. Torsilieri , 232 A.3d 567 (Pa. 2020)

. In the former, this Court affirmed, and Defendant Torsilieri petitioned for allowance of appeal with the Pennsylvania Supreme Court, which our Supreme Court denied. Commonwealth v. Torsilieri , 230 A.3d 338 (Pa. 2020).

4 Appellant filed his statement of errors complained of on appeal on September 10, 2019. The trial court entered its opini on on September 19, 2019

.

5 The section of SORNA entitled “Legislative f indings, declaration of policy and scope ” explicitly asserts: “ Sexual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type o f offender is a paramount governmental interest. ” 42 Pa.C.S. § 9799.11(a)(4).J

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procedural due process under A rticle 11 [ sic ] of the P ennsylvania constitution because i t unlawfully impinges on the right to

r eputation wit hout notice and an o pportunity to be hear d ? [4.] W hether the trial court erred as a matter o f law and abused its discretion in failing t o find that SORNA denies [Appellant] p r ocedural due process under the F ifth and Fourteenth A mendments to the U nited Stat es C onstitution because it unlawfully r estricts liberty and privacy without n otice and an opportunity to be heard? [5.] W hether the trial court erred as a matter o f law and abused its discretion in failing t o find that SORNA violates substantive d ue proces s under the state and federal constitutions, U.S. Const. Amend. XIV, P a. Const. Art. I, § 1, because SORNA deprives i ndividuals of inalienable rights and f ails to satisfy strict scrutiny? [6.] Whether t he trial court erred as a matte r o f law and abused its discretion in failing t o find that SORNA constitutes criminal p unishment and therefore violates the s eparation of powers doctrine because it u surps the exclusive judicial function of i mposing a sentence? [7.] W hether the trial court erred as a matter o f law and abused its discretion in failing t o find that SORNA contravenes the 5th, 6th and 14th amendments of the United St ates Constitution and the corresponding protections of the P ennsylvania c onstitution because as a criminal p unishment, SORNA cannot be imposed

w ithout due process, notice and o pportunity to contest its imposition, and e nsuring that each fact necessary to s upport the mandatory sentence is s ubmitted to a jury and proven beyond a reasonable doubt pursuant to A pprendi v. New J ersey , 530 U.S. 266 (2000) and A lleyne v . United S tates , 1570 U.S. 99 (2013)?
[8.] Whether the trial court erred as a matter o f law and abused its discretion in failing t o find SORNA constitutes criminal punishment, therefore 42 Pa. C.S.A. § 9799.24(e)(3) violates th e Sixth A mendment t o the United States C onstitution and the
c orresponding provision of the Pennsylvania constitution as it enhances t he degree of punishment beyond the o therwise proscribed SORNA requirements o n a finding of clear and convincing e vidence as o pposed to beyond a r easonable doubt and [Appellant] does n ot have an ability to submit the question t o a jury?J

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[ 9 .] Whether the trial court erred as a matter o f law and abused its discretion in failing t o find SORNA constitutes criminal p enalties and there fore the imposition of m andatory lifetime sex offender

r egistration for nearly all T ier III o ffenses is a cruel and unusual punishment in violation of the Ei ghth and Fourteenth A mendments to the U nited States Constitution and Article I , section 13 of the P ennsylvania constitution? Appellant’s Brief at 5

- 9 (issues reordered to facilitate disposition) (headings,
suggested answers, and unnecessary capitalization omitted).
Appellant first contends that “the trial court erred as a matter of law

and abused its discretion in failing to provide that [Appellant] can have contact
with R.C. only at R.C .’ s desire after they are of the age of majority or pursuant

to R.C .’s counselor’ s recommendation. ” Id. at 64. Appellant’s brief provides
no law in support of his cha llenge to the “no contact provision , ” s ee id. at 64

- 65, and, accordingly, this claim is waived. Pa.R.A.P. 2119(a) (argument shall
include citation of authorities); Kelly v. Carman Corporation , 229 A.3d 634,
656 (Pa. Super. 2020) (citing Commonwealth v. Sp otz , 18 A.3d 244, 281
n.21 (Pa. 2011) (without a “developed, reasoned, supported , or even
intelligible argument[, t]he matter is waived for lack of development”

(emphasis added) ); In re Estate of Whitley , 50 A.3d 203, 209 (Pa. Super.
2012) (“The argument portion of an appellate brief must include a pertinent
discussion of the particular point raised along with discussion and citation of
pertinent authorities[; t]his Court will not consider the merits of a n argument
which fails to cite relevant case or statutory authority” (internal citations and

quotation marks omitted)); Lackner v. Glosser , 892 A.2d 21, 29

- 30 (Pa.J

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Super. 2006) (explaining appellant’s arguments must adhere to rules of

appellate procedure, and arguments which are not appropriately developed
are waived on appeal; arguments not appropriately developed include those
where party has failed to cite any authority in support of contention)).
Appellant’s remaining claims concern his sexual offender registration

requirements . Preliminarily , the question of whether current Subchapte r H or
Subchapter I of SORNA applies to Appellant is a crucial starting point. In the
current case, Appellant committed his crimes between 2008 and 2015

– i.e. ,
both befo re and after December 20, 2012. According to Commonwealth v.

Alston , 212 A.3d 526, 528, 530 (Pa. Super. 2019), “when an appellant’s
offenses straddle the effective dates of Subchapters H and I of SORNA” and
“the jury did not specifically find the date of the offenses,” the application of
Subchapter H is unconstitutional, as it “mirrors the version of SORNA found

unconstitutional in ” Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017)
(plurality) ; “instead, the court should apply Subchapter I.” However, Alston
involves jury trial convictions, where “the jury did not specifically find the date
of the offenses[.]” Id. at 527

- 28. In the current action, Appellant pleaded
guilty, and this Court has not issued a published opinion applying Alston to a
guilty plea in volving a range of offenses straddling the operative dates of
Subchapters H and I. Accordingly, we cannot assume that Alston applies to
the current appeal.J

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“ Appellant bore the burden of establishing the unconstitutionality of a

statute, [and] it follows that Appellant was required to argue to the [lower]
court which subchapter applies as a threshold for a constitutional challenge
and to sustain his challenge with affirmative proof and legal support. ”

Commonwealth v. Beard , No. 3306 EDA 2019, unpublished memorandum
at 17 (Pa. Super. filed December 30, 2020). 6 In the current action, Appellant
did not attempt to esta blish which subchapter applied. Accordingly,
uncertainty remains as to whether Appellant is actually subject to curre nt
Subchapter H or Subcha pter I, and Appellant did not preserve any arguments

in the trial court nor address these issues on appeal. Se e Pa.R.A.P. 302(a)
(“ Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal. ”). For these reasons, as in Beard , No. 3306 EDA 2019,

at 8, we affirm.
Judg ment of sentence affirmed.

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6 Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019):
(1) As used in this rule, “non

- precedential decision” refers to an unpublished non

- precedential memorandum decision of th e Superio r Court filed after May 1, 2019 . . . (2) Non

- precedential decisions as defined in (b)(1) may be cited for their persuasive value.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/17/2021