J-S25032-20

2020 PA Super 206

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LEWIS A. MANZANO 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

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

Appellee

v.

LEWIS A. MANZANO 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

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. 
J-S25032-20

- 2 -

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.
J-S25032-20

- 3 -

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 
J-S25032-20

- 4 -

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.
J-S25032-20

- 5 -

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 
J-S25032-20

- 6 -

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).
J-S25032-20

- 7 -

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”). 
J-S25032-20

- 8 -

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). 
J-S25032-20

- 9 -

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.
J-S25032-20

- 10 -

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 
J-S25032-20

- 11 -

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 
J-S25032-20

- 12 -

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 
J-S25032-20

- 13 -

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 
J-S25032-20

- 14 -

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-CR0001570-2016 (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, 
J-S25032-20

- 15 -

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.
J-S25032-20

- 16 -

Judgments of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2020