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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DARRIUS J. PRINCE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3007 EDA 2018

Appeal from the Judgment of Sentence Entered August 6, 2018

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

No(s): CP-09-CR-0000025-2018

COMMONWEALTH OF PENNSYLVANIA

v.

DARRIUS J. PRINCE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1243 EDA 2019

Appeal from the Judgment of Sentence Entered August 6, 2018

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

No(s): CP-09-CR-0000025-2018

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021

In the above-captioned cases, Appellant, Darrius J. Prince, appeals from 

the judgment of sentence entered August 6, 2018, which, as explained infra, 

was made final by the order entered in the Court of Common Pleas of Bucks 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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County on March 18, 2019. In addition, the Commonwealth has filed a motion 

to quash the appeal at docket number 1243 EDA 2019. After a thorough 

review, we deny the motion to quash, consolidate the above-captioned 

appeals, affirm the judgment of sentence but vacate the order denying 

Appellant’s post-sentence motion that challenged the constitutionality of the 

Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. 

§§ 9799.10-9799.42, and we remand for further proceedings.

The trial court set forth the pertinent factual and procedural history of 

this case as follows:

On August 6, 2018, [Appellant] pleaded guilty to two (2) 

counts of Rape of a Child,1 one (1) count of Statutory Sexual 

Assault,2two (2) counts of Involuntary Deviate Sexual Intercourse 

with a Child,3 one (1) count of Involuntary Deviate Sexual 

Intercourse with a Person Less Than 16 Years of Age,4two (2) 

counts of Aggravated Indecent Assault of a Child,5 one (1) count 

of Aggravated Indecent Assault of a Complainant Less than 16,6

one (1) count of Corruption of Minors,7two (2) counts of Indecent 

Assault of a Person Less than 13 Years of Age,8 and one (1) count 

of Indecent Assault of a Person Less than 16 Years of Age.9

1 18 Pa.C.S.A. § 3121(c)

2 18 Pa.C.S.A. § 3122.1(b)

3 18 Pa.C.S.A. § 3123(b)

4 18 Pa.C.S.A. § 3123(a)(7)

5 18 Pa.C.S.A. § 3125(b)

6 18 Pa.C.S.A. § 3125(a)(ii)

7 18 Pa.C.S.A. § 6301(a)(1)(ii)

8 18 Pa.C.S.A. § 3126(a)(7)

9 18 Pa.C.S.A. § 3126(a)(8)

Immediately following his guilty plea, the trial court judge, 

the Honorable Raymond F. McHugh, sentenced Appellant to a 

period of incarceration of not less than seven (7) years but not 

more than twenty (20) years on Count 1 Rape of a Child, and to 

a period of twenty (20) years of probation for Count 4 IDSI with 
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a Child, to be served consecutive to the sentence imposed under 

Count 1. Appellant was also ordered to register as a Tier[-]III 

sexual offender and he was directed to undergo an assessment by 

the [Sexual Offender Assessment Board (“SOAB”)] to determine 

if he is a sexually violent predator [(“SVP”)], to which he objected. 

No further penalties were imposed on the remaining counts:

On August 8, 2018, Appellant filed a Motion to Vacate Order 

and a Motion to Withdraw Plea. On August 31, 2018, in 

conjunction with other Defendants, Appellant filed his “Motion to 

Declare SORNA 42 Pa.C.S.A. 9799 et seq. Unconstitutional, Motion 

to Vacate/Bar SOAB Evaluation, Objection, to Commonwealth’s 

Petition for Sexually Violent Predator Hearing, Motion for 

Continuance/Abeyance/Evidentiary Hearing and/or Motion to Bar 

Imposition of an Illegal Sentence.”

On September 19, 2018, two days after the September 17, 

2018 en banc hearing on [Appellant’s] constitutional challenges to 

SORNA, the trial court held a hearing on Appellant’s Motion to 

Withdraw his Guilty Plea, which Judge McHugh thereafter denied.

On September 27, 2018, the Commonwealth filed its 

Supplemental Memorandum of Law in Opposition to [Appellant’s]

Motions to Quash. On October 4, 2018, Appellant filed his 

“Responsive Brief in Support of the Motion to Find Sexual Violent 

Predator Classification Procedure and the Entirety of SORNA II 

Unconstitutional.” 

On October 11, 2018, Appellant filed a Notice of Appeal from 

the [September 19, 2018] Order denying his motion to withdraw 

his Guilty Plea[, which received Superior Court docket number 

3007 EDA 2018.]

Trial Court Opinion, 7/10/19, at 1-2.

As previously indicated, the trial court held an en banc hearing on 

September 17, 2018. Thereafter, Appellant and the Commonwealth filed 

additional briefs with the en banc court.

On December 17, 2018, after Appellant had filed the notice of appeal 

docketed at 3007 EDA 2018, the en banc panel of the trial court filed a 
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memorandum opinion holding that the current version of SORNA, as amended 

by Act 29, was punitive and therefore unconstitutional. The Commonwealth 

filed a motion for reconsideration, arguing that even if because Act 29 were

punitive, it is not unconstitutional. The Commonwealth further noted that the 

en banc court’s determination failed to identify the constitutional provision 

violated as a result of Act 29 being punitive.

On February 13, 2019, the trial court held a brief hearing and ordered 

the filing of additional briefs. The Commonwealth filed a brief on February 22, 

2019, and Appellant filed a brief on February 25, 2019. On March 18, 2019, 

the en banc panel court filed an order clarifying the implications of the court’s 

December 17, 2018 determination. Specifically, the March 18, 2019 order 

vacated the portion of the December 17, 2018 memorandum opinion that held 

Act 29 to be unconstitutional. The court further clarified that although 

punitive, Subchapter H of Act 29 is constitutional except as to SVP 

determinations.

On April 17, 2019, Appellant filed an appeal from the March 18, 2019 

order entered by the en banc court, which received Superior Court docket 

number 1243 EDA 2019. Appellant and the trial court complied with Pa.R.A.P. 

1925.

Appellant presents the following issue in his appeal docketed at 3007 

EDA 2018:

A. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW THE 

APPELLANT TO WITHDRAW HIS GUILTY PLEA AFTER HE 
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ASSERTED HIS INNOCENCE AND STATED THE GUILTY PLEA 

RESULTED FROM FEELING PRESSURE TO PLEAD FROM HIS WIFE?

Appellant’s Brief at 4. (capitalization in original)

In his appeal docketed at 1243 EDA 2019, Appellant sets forth the 

following issues for our review:

A. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated the United 

States Constitution and the enhanced protections under the 

Pennsylvania Constitution on its face and as applied?

B. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated the United 

States and Pennsylvania Constitution Due Process prohibition 

against ex post facto laws?

C. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated United States 

and Pennsylvania Constitutional Due Process protections because 

it deprives Appellant of the Right to Reputation under the 

Pennsylvania Constitution, it creates an irrebuttable presumption, 

treats all offenders universally as high-risk, violates individualized 

punishment, overly inclusive of offenders and charges, ignores 

reasonable alternative means exist to identify offender risk, 

denies any meaningful opportunity to be heard, exceeds the least 

restrictive means requirement, and otherwise violates substantive 

Due Process protections?

D. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violate the United States 

and Pennsylvania Constitutions as it constitutes cruel and unusual 

punishment where registration is based upon empirically false 

myths, fails to deter first time offenders, fails to reduce recidivism, 

threatens public safety, forces registrants and their families to 

suffer, creates an impassable barrier to reintegration into lawabiding society, and fails to address each offender individually?

E. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violate the United States 

and Pennsylvania Constitutions’ Separation of Powers Doctrine, as 
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it gave judicial powers to the Legislature and Pennsylvania State 

Police?

F. Whether the Lower Court erred when it failed to find that 

ACT 29 and its registration requirements violated United States 

and Pennsylvania Constitutions’ Due Process provisions as it 

increased the maximum sentence without proof beyond a 

reasonable doubt to a jury in violation of Alleyne v. United 

States, 570 U.S. 99 (2013), and that said provisions are not 

severable?

Appellant’s Briefs at 4-5.

Prior to addressing the issues set forth by Appellant, we address the 

Commonwealth’s motion to quash the appeal docketed at 1243 EDA 2019. 

The Commonwealth argues that once Appellant filed a notice of appeal on 

October 11, 2018, from the order of denying the post-sentence motion to 

withdraw his guilty plea, which was docketed at 30037 EDA 2018, the lower 

court no longer had jurisdiction. The Commonwealth posits that the trial court 

lost jurisdiction when Appellant filed the premature notice of appeal on 

October 11, 2018, prior to disposition of his pending supplemental postsentence motion challenging the provisions of SORNA. The Commonwealth 

relies upon Pa.R.A.P. 1701, which provides: “Except as otherwise prescribed 

by these rules, after an appeal is taken or review of a quasijudicial order is 

sought, the trial court or other government unit may no longer proceed further 

in the matter.” Motion to Quash, 5/28/19, at 4 (citing Pa.R.A.P. 1701). 

Therefore, the Commonwealth characterizes the trial court’s March 18, 2019 

order denying Appellant’s supplemental post-sentence motion as a legal 

nullity. We disagree.
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In Commonwealth v. Rojas, 874 A.2d 638 (Pa. Super. 2005), the 

appellant filed a notice of appeal prior to disposition of his post-sentence 

motion. Id. at 641. In Rojas, the Commonwealth argued that the appeal 

divested the lower court of jurisdiction over the pending post-sentence 

motion, and the order dismissing the appellant’s post-sentence motion was a 

nullity, entered without jurisdiction. Id. The Rojas Court disagreed. Citing 

Commonwealth v. Borrero, 692 A.2d 158 (Pa. Super. 1997), we found,

pursuant to Pa.R.Crim.P. 720, that the judgment of sentence does not become 

final for appeal purposes until the trial court disposes of the post-sentence 

motion or it is denied by operation of law. Id. at 643. We concluded the 

appellant’s direct appeal was improperly filed from a non-final order and did 

not divest the trial court of jurisdiction to decide the post-sentence motion. 

Id. at 643.

In Borrero, we noted the following in explaining that the appellant filed 

a premature direct appeal before his timely post-sentence motions were 

disposed of by the trial court or denied by operation of law:

[T]he appeal did not divest the trial court of jurisdiction in this 

instance. As previously indicated, the comment to Rule [720] 

explicitly prohibits the filing of an appeal while post-sentencing 

motions are pending. Comment to Pa.R.Crim.P., Rule [720] ... . 

The comment further provides that a judgment of sentence does 

not become final until post-sentencing motions are ruled upon by 

the trial court or are denied by operation of law. Id. Moreover, 

a trial court may proceed further in any matter in which a 

nonappealable order has been entered, notwithstanding the filing 

of a notice of appeal. Pa.R.A.P., Rule 1701(b)(6) ... . 

Consequently, [the] appellant’s improper appeal did not divest the 
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trial court of jurisdiction to decide [the] appellant’s postsentencing motion or deny it by operation of law.

Borrero, 692 A.2d at 161 n.4.

Our review of the record reflects that Appellant’s judgment of sentence 

was entered on August 6, 2018. On August 16, 2018, Appellant filed a timely 

post-sentence motion seeking to withdraw his guilty plea. Thus, the trial court 

had 120 days, or until December 14, 2018, in which to dispose of the postsentence motion. See Pa.R.Crim.P. 720(B)(3)(a) (“the judge shall decide the 

post-sentence motions, including any supplemental motion, within 120 days 

of the filing of the motion”). While the original post-sentence motion was 

pending, Appellant filed a timely supplemental post-sentence motion on 

August 31, 2018, in which he challenged various aspects of SORNA.1 On 

September 19, 2018, the trial court denied Appellant’s original post-sentence 

motion, but the supplemental post-sentence motion challenging SORNA 

remained pending. Notwithstanding the fact that the supplemental postsentence motion was pending, Appellant filed a notice of appeal from the 

judgment of sentence on October 11, 2018, and the appeal received the 

docket number 3007 EDA 2018. However, the filing of an appeal while postsentence motions are pending is explicitly prohibited. Borrero, 692 A.2d at 

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1 We note that Pa.R.Crim.P. 720 permits the filing of supplemental postsentence motions provided that the decision on the supplemental motion can 

be decided within the time limits set forth at Pa.R.Crim.P. 720(B)(3). 

Accordingly, Appellant’s supplemental post-sentence motion, which was filed 

while the original motion was pending, was timely filed.
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161 n.4. Accordingly, Appellant’s direct appeal was improperly filed from a 

non-final order and did not divest the trial court of jurisdiction to decide the 

post-sentence motion. Rojas, 874 A.2d at 643.

When the trial court ruled on Appellant’s supplemental post-sentence 

motion on March 18, 2019, Appellant’s judgment of sentence became final for 

appeal purposes.2 Despite having filed a premature notice of appeal, the 

instant appeal is not from an interlocutory judgment of sentence, and, 

therefore, this Court has jurisdiction. See Pa.R.A.P. 905(a)(5) (“A notice of 

appeal filed after the announcement of a determination but before the entry 

of an appealable order shall be treated as filed after such entry and on the 

day thereof.”). Moreover, the notice of appeal filed after the entry of the 

March 18, 2019 order, which received docket number 1243 EDA 2019, was 

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2 Again, we observe that the 120-day period in which to address postsentence motions tolled on December 14, 2018, without the trial court 

addressing Appellant’s supplemental post-sentence motion. However, the 

clerk of courts neither entered nor served upon the parties an order reflecting 

that Appellant’s supplemental post-sentence motion was denied by operation 

of law as required by Pa.R.Crim.P. 720(B)(3)(c). Consequently, the trial court 

ruled on Appellant’s supplemental post-sentence motion on December 18, 

2018, and then on March 18, 2019, when it addressed the Commonwealth’s 

motion for reconsideration/clarification. In light of the fact that the clerk of 

courts failed to follow the dictates of Rule 720(B)(3)(c), we hold that said 

failure constitutes a breakdown in the court system. See Commonwealth v.

Braykovich, 664 A.2d 133, 138 (Pa. Super. 1995) (concluding that the clerk 

of court’s failure to enter the requisite order deeming a post-sentence motion 

denied by operation of law constitutes “a breakdown in the court system” and 

authorizes the Superior Court to grant nunc pro tunc appeal). Accordingly, 

we conclude that the entry of the order on March 18, 2019, was the triggering 

mechanism for the purposes of appeal.
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superfluous because the previously filed notice of appeal is treated as having 

been filed the day after the entry of the March 18, 2019 order. Hence, we 

deny the Commonwealth’s motion to quash. Accordingly, we consolidate the 

above captioned cases and will dispose of each in turn.

3007 EDA 2018

In his sole issue presented at 3007 EDA 2018, Appellant argues that the 

trial court erred in denying his post-sentence motion to withdraw his guilty 

plea. Appellant’s 3007 EDA 2018 Brief at 9-11. Appellant contends that he 

presented specific facts to substantiate his innocence and that his plea was 

based on pressure from his wife. Id. at 10. He also alleges that he was not 

engaged in “sentence testing” when he accepted the negotiated guilty plea. 

Id. at 11.

We begin by setting forth our standard of review. In 

Commonwealth v. Broaden, 980 A.2d 124 (Pa. Super. 2009), 

we summarized the principles governing post-sentence motions 

to withdraw pleas:

[P]ost-sentence motions for withdrawal are subject to 

higher scrutiny since courts strive to discourage entry 

of guilty pleas as sentence-testing devices. A 

defendant must demonstrate that manifest injustice 

would result if the court were to deny his postsentence motion to withdraw a guilty plea. Manifest 

injustice may be established if the plea was not 

tendered knowingly, intelligently, and voluntarily. In 

determining whether a plea is valid, the court must 

examine the totality of circumstances surrounding the 

plea. A deficient plea does not per se establish 

prejudice on the order of manifest injustice.

Id. at 129 (citations omitted). “It is well-settled that the decision 

whether to permit a defendant to withdraw a guilty plea is within 
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the sound discretion of the trial court." Commonwealth v. Hart, 

174 A.3d 660, 664 (Pa. Super. 2017) (applying abuse of discretion 

in post-sentencing context). The term discretion

imports the exercise of judgment, wisdom and skill so 

as to reach a dispassionate conclusion, and 

discretionary power can only exist within the 

framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judges. 

Discretion must be exercised on the foundation of 

reason, as opposed to prejudice, personal 

motivations, caprice or arbitrary action. Discretion is 

abused when the course pursued represents not 

merely an error of judgment, but where the judgment 

is manifestly unreasonable or where the law is not 

applied or where the record shows that the action is a 

result of partiality, prejudice, bias or ill will.

Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 751 

(Pa. 1998) (citation omitted).

Commonwealth v. Kehr, 180 A.3d 754, 756-757 (Pa. Super. 2018).

In addressing Appellant’s issue, the trial court offered the following 

discussion:

[W]e engaged in an extensive [guilty plea] colloquy with 

Appellant. The colloquy covered the terms and conditions of his 

guilty plea negotiations. The elements of each crime were 

explained clearly to him. He was advised of the maximum 

penalties for each count of criminal conduct. He was advised of 

the recommendations of the sentencing guidelines. Appellant was 

repeatedly asked if he understood the proceedings and answered 

affirmatively each time. He was emotional but an active 

participant during the entire process. We found him to be 

credible.

* * *

Appellant has not suggested he was incompetent at the time 

he entered his plea of guilty. He has never made a clear 

proclamation of innocence. His testimony at the hearing on his 

Motion to Withdraw Guilty Plea was vague and unconvincing. It 
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was clearly insufficient to satisfy his burden of proving his plea 

entered the month before was involuntary.

Trial Court Opinion, 9/13/19, at 8-9.

Upon review of the record, we conclude there is no evidence of record 

supporting Appellant’s claim that his wife coerced him into pleading guilty. At 

his guilty plea hearing, after Appellant specifically was asked if “anyone 

threatened you or forced you or coerced you or promised you anything in 

return for your plea of guilty[,]” Appellant responded in the negative. N.T., 

8/6/18, at 19. When asked if he was entering into this plea of his “own free 

will," Appellant responded, “Yes sir.” Id. at 6. Appellant never indicated 

during the hearing that his wife pressured or coerced him into pleading guilty, 

and he has not subsequently provided any evidence of coercion. “A defendant 

is bound by the statements made during the plea colloquy, and a defendant 

may not later offer reasons for withdrawing the plea that contradict 

statements made when he pled.” Commonwealth v. Brown, 48 A.3d 1275, 

1277 (Pa. Super. 2012). Accordingly, we conclude that the trial court did not 

abuse its discretion in denying Appellant’s post-sentence motion to withdraw 

his guilty plea. Hence, Appellant’s issue lacks merit.

1243 EDA 2019
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We next address the issues presented by Appellant at 1243 EDA 2019.3 

In these six issues, Appellant raises challenges to the constitutionality of the 

order requiring him to register under SORNA as a Tier-III offender.

Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020), instructs 

that the proper remedy herein is to remand for an evidentiary hearing on 

Appellant’s challenges to SORNA. In Mickley, this Court observed that the 

appellant’s constitutional challenges to SORNA were identical to arguments 

raised in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). 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 in Torsilieri concluded that 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 587. Based on Torsilieri, 

Mickley held:

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 

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3 We note that in the notice of appeal docketed at 1243 EDA 2019, Appellant 

purported to appeal from the trial court’s March 18, 2019 order denying his 

supplemental post-sentence motions. In Commonwealth v. Chamberlain, 

658 A.2d 395 (Pa. Super. 1995), we explained that “the order denying postsentence motions acts to finalize the judgment of sentence for purposes of 

appeal. Thus, the appeal is taken from the judgment of sentence, not the 

order denying post-sentence motions.” Id. at 397. We have corrected the 

caption accordingly.
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the parties can present evidence for and against the relevant 

legislation determinations discussed above.

Mickley, 240 A.3d at 963; see also Commonwealth v. Asher, ___ A.3d 

___, 2020 PA Super 293, at *4 (Pa. Super. filed December 21, 2020) (citing 

Torsilieri and Mickley and concluding that where the defendant preserved 

his constitutional challenges to SORNA, but the trial court denied relief without 

developing a factual record, remand was proper for a hearing at which the 

parties could present evidence for and against relevant legislative 

determinations).

Upon review of the record, we conclude that the same remedy is 

appropriate here. As noted by the Commonwealth, the SORNA issues raised 

by Appellant are the same as those raised in Torsilieri. Commonwealth’s 

Brief at 21 n.7. At the en banc hearing held September 17, 2018, Appellant’s 

counsel noted that the record was not complete and sought to present into 

evidence various affidavits “relevant to the due process challenges.” N.T., 

9/17/18, at 5. Appellant’s counsel indicated the desire to create a record 

similar to Torsilieri. Id. at 5-6. However, the Commonwealth was hesitant 

to stipulate to the admission of the evidence. After extensive discussion and 

a brief recess, the en banc court reached the following conclusion:

We’ve decided [to] proceed with the remaining arguments 

but not proceed on the due process issue today, and we’re 

ordering both sides to meet within ten days and to endeavor to 

see whether or not you can reach an agreement as to what the 

record will be, whether there will be a stipulation as to the 

admissibility of affidavits and curriculum vitae for experts for us 

to consider.
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The second thing we’re asking you to meet and discuss is 

for what purpose are we to consider those expert reports. See if 

you can reach an agreement, and if you cannot, you’ll let us know 

that as well and what your position is. And then we can decide 

how we proceed on the due process issue.

Id. at 32-33.

The record further reflects that the parties were not able to reach an 

agreement as requested by the en banc court. Moreover, the en banc court 

failed to address the due-process claims presented by Appellant in either its 

memorandum opinion entered on December 17, 2018, or in its subsequent 

order entered March 18, 2019. Hence, the proper remedy under these 

circumstances is to remand for a hearing at which the parties can present 

evidence relating to Appellant’s SORNA arguments.

Motion to quash denied. Cases at docket numbers 3007 EDA 2018 and 

1243 EDA 2019 consolidated. Judgment of sentence affirmed. Order entered 

March 18, 2019, denying supplemental post-sentence motion vacated and 

case remanded for proceedings consistent with Torsilieri. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/21