J-S10043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HOLLY DAWN METZLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1169 WDA 2023

Appeal from the Judgment of Sentence Entered August 28, 2023

In the Court of Common Pleas of Blair County Criminal Division at No(s): 

CP-07-CR-0000215-2019

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: JULY 22, 2024

Holly Dawn Metzler (“Metzler”) appeals from the judgment of sentence 

imposed following her nolo contendere pleas to various sexual offenses. 

Metzler solely challenges the constitutionality of Revised Subchapter H of the 

Sexual Offender Registration and Notification Act (“SORNA II”)1 as applied to 

her. We affirm.

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1 See 42 Pa.C.S.A. §§ 9799.10-9799.42. We observe that 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originally enacted on December 20, 2011, effective December 20, 2012.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. Through Act 10, as amended in Act 29, 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 

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We need not discuss the facts underlying Metzler’s convictions. We only 

note that Metzler pleaded nolo contendere to dissemination of explicit sexual 

material to minors, corruption of minors, and unlawful contact with a minor2

in connection with her sending a seventeen-year-old child nude photographs 

and videos of herself. See Trial Court Opinion, 12/16/23, at 1-2 

(unnumbered). Before entering her plea on August 28, 2023, Metzler agreed 

not to proceed with a SORNA II hearing. See N.T., 8/28/23, at 4, 12. Instead, 

Meltzer’s counsel stated that he “will file a post[-]sentence motion to protect 

her Torsilieri rights. . ..”3 Id. at 4-5. The trial court accepted Metzler’s plea 

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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.

2 See 18 Pa.C.S.A. §§ 5903(c)(1), 6301(a)(1), 6318(a)(4).

3 See Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020) 

(“Torsilieri I”). In Torsilieri I, a divided majority of our Supreme Court 

vacated the portion of the trial court’s order declaring the registration and 

notification requirements of Revised Subchapter H unconstitutional. While the 

High Court found that the defendant’s evidence raised a colorable argument 

to debunk the settled view of sexual offender recidivation rates and the 

effectiveness of tier-based sexual offender registration systems underlying the 

General Assembly’s findings as well as various decisions of the High Court and 

the United States Supreme Court, the Torsilieri I Court noted the lack of 

opposing science in the record, as well as the fact that the record did not, at 

that time, provide a sufficient basis to overturn the legislative presumption. 

Hence, the Torsilieri I Court remanded the matter to the trial court for further 

evidentiary proceedings. Specifically, the Torsilieri I Court directed the trial 

court to consider whether the registration and notification requirements 

applicable to sexual offenders constituted criminal punishment, and in doing 

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and immediately sentenced her to a period of five years’ probation. Because 

of her nolo contendere plea to unlawful contact with a minor, the trial court 

classified Metzler as a Tier II sexual offender under Revised Subchapter H of 

SORNA II and directed her to register for a period of twenty-five years.4 See

42 Pa.C.S.A. §§ 9799.14(c)(5), 9799.15(a)(2). Notwithstanding her counsel’s 

representations to the trial court, Metzler did not file a post-sentence motion. 

Metzler filed a timely notice of appeal. Both Metzler and the trial court 

complied with Pa.R.A.P. 1925.

Metzler presents two issues for our review:

1. Whether [SORNA II] is unconstitutional as applied to [Metzler]? 

2. Whether [SORNA II] is unconstitutional for violation of Article 

1, Section 1 of the Pennsylvania Constitution[?]

Metzler’s Brief at 7.5

The constitutionality of a statute presents a pure question of law, over 

which our standard of review is de novo, and our scope of review is plenary. 

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so, to address five of the seven factors set in Kennedy v. MendozaMartinez, 372 U.S. 144, (1963). Following remand, the matter then returned 

to our High Court, where it remained pending at the time of Metzler’s 

sentencing.

4 Although the trial court did not specify which subchapter of SORNA applied 

Metzler’s convictions, the record is clear that Revised Subchapter H applies to 

her convictions, including its twenty-five-year reporting requirement, as each 

of her offenses occurred after December 20, 2012. See Affidavit of Probable 

Cause, 1/25/19, at 2 (indicating that all of Metzler’s offending conduct 

occurred in 2018).

5 As Metzler’s issues are interrelated, we will address them together.
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See Commonwealth v. Brooker, 103 A.3d 325, 334 (Pa. Super. 2014). 

Moreover, our Supreme Court has declared:

In addressing constitutional challenges to legislative enactments, 

we are ever cognizant that “the General Assembly may enact laws 

which impinge on constitutional rights to protect the health, 

safety, and welfare of society,” but also that “any restriction is 

subject to judicial review to protect the constitutional rights of all 

citizens.” In re J.B., . . . 107 A.3d 1, 14 ([Pa.] 2014). We 

emphasize that “a party challenging a statute must meet the high 

burden of demonstrating that the statute clearly, palpably, and 

plainly violates the Constitution.” Id.

Torsilieri I, 232 A.3d at 575.

For the first time on appeal, Metzler claims that SORNA II is 

unconstitutional under Article I, Section 1 of the Pennsylvania Constitution as 

it applies to her because she has no prior criminal history, she received a 

probationary sentence because she was not deemed to pose any significant 

future risk, and her reputation will suffer far beyond the period of her 

probation. Metzler further claims that the registration requirement constitutes 

cruel and unusual punishment under Article 1, Section 13 of the Pennsylvania 

Constitution, noting that the period of registration is greater than any 

sentence which could be imposed for her conviction. Finally, Metzler contends 

that her sentence is illegal pursuant to Alleyne v. United States, 570 U.S. 

99 (2013), because, even if the sentences which could have been imposed at 

the statutory maximum in this matter were to be run consecutively, they 

would not reach an aggregate twenty-five-year period.
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Initially, we must determine whether we may address Metzler’s issues. 

Generally, issues not properly raised and preserved before the trial court are

waived and cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a)

(providing that issues not raised in lower court are waived and cannot be

raised for first time on appeal). However, a challenge which implicates the

legality of an appellant’s sentence is an exception to the issue preservation

requirement. See Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa. 

2022) (holding that “an appellate court can address an appellant’s challenge

to the legality of his sentence even if that issue was not preserved in the trial

court; indeed, an appellate court may [even] raise and address such an issue

sua sponte”).

Recently, our Supreme Court held that constitutional challenges to 

SORNA II — Revised Subchapter H, when framed as an Apprendi6-based 

claim that lifetime registration requirements constitute cruel and unusual

punishment, implicate the legality of a sentence, and cannot be waived on the 

basis that such claims were raised for the first time on appeal. Id. at 1198.

Metzler’s first constitutional challenge asserts that the clause within 

Article I, Section I of the Pennsylvania Constitution recognizing individual 

rights to protect one’s reputation precludes the imposition of SORNA II’s 

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6 See Apprendi v. New Jersey, 530 U.S. 466 (2000).
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Revised Subchapter H, Tier II twenty-five-year registration.

7

 Metzler’s 

argument of harm to her to reputation implicates alleged due process 

violations. However, this Court has historically rejected attempts to style 

constitution-based due process claims as pertaining to the legality of a 

defendant’s sentence. See, e.g., Commonwealth v. Wallace, 533 A.2d 

1051, 1053-54 (Pa. Super. 1987) (collecting cases and noting that 

constitutional issues, even sentencing issues based on the constitution, are 

waived if not properly raised in the trial court). Accordingly, we conclude that 

Metzler’s constitutional claims predicated solely upon alleged due process 

violations under Article I, Section I of the Pennsylvania Constitution are waived

based on her failure to raise them in the trial court. See Commonwealth v. 

MacFarlane, 311 A.3d 613 (Pa. Super. 2023) (unpublished memorandum) 

(holding that appellant’s claims of due process violations predicated on his 

right to reputation pursuant to Article 1, Sections 1 and 11 of the Pennsylvania 

Constitution failed to implicate the legality of his sentence and were subject 

to waiver); see also Commonwealth v. Snyder, 292 A.3d 1106 (Pa. Super. 

2023) (unpublished memorandum) (same).8

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7 The Pennsylvania Constitution provides that “[a]ll 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.

8 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this 

Court filed after May 1, 2019, for their persuasive value).
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In Metzler’s remaining constitutional challenge raised for the first time 

on appeal, she posits that the Revised Subchapter H, Tier II registration and 

reporting requirements: (1) inflict cruel and unusual punishment on her in 

contravention of the Pennsylvania Constitution’s Article I, Section 13; and (2) 

are predicated upon facts that were not determined by a jury as required by 

Alleyne, 570 U.S. at 108 (holding that any fact which, by law, increases the 

penalty for a crime is an “element” that must be submitted to the jury and 

found beyond a reasonable doubt), and Apprendi, 530 U.S. at 466 (holding 

that any fact which increases the maximum penalty for a crime must be 

charged in an indictment, submitted to a jury, and proven beyond a 

reasonable doubt).

Metzler contends that her lifetime registration requirement constitutes 

an illegal sentence because it violates the constitutional prohibition against 

cruel and unusual punishment. Such claims indisputably implicate the legality 

of one’s sentence and cannot be waived on the basis that it was raised for the 

first time on appeal. See Thorne, 276 A.3d at 1196, 1198. A challenge to 

the legality of sentence is a question of law; our standard of review is de novo

and our scope of review is plenary. See Commonwealth v. Cardwell, 105 

A.3d 748, 750 (Pa. Super. 2014).

During the pendency of this appeal, our Supreme Court issued its 

decision in Commonwealth v. Torsilieri, No. 97 MAP 2022, 2024 LEXIS 799 

(Pa. 2024) (“Torsilieri II”). Therein, our High Court initially considered 

whether the trial court erred by determining that the presumption contained 
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in section 9799.11(a)(4) of SORNA II — that individuals convicted of sexual 

offenses pose a high risk of committing additional sexual offenses — was an 

unconstitutional irrebuttable presumption.9 See Torsilieri II, No. 97 MAP 

2022, 2024 Pa. LEXIS 799 at *20. The High Court observed that the 

defendant’s own experts conceded that adult sexual offenders reoffend at a 

rate of at least three times higher than other individuals convicted of nonsexual offenses, and determined that such evidence, in fact, validates the 

statutory underpinnings of Revised Subchapter H. Id. at *56. The High Court 

went on to conclude that the defendant failed to meet his heavy burden to 

demonstrate that the irrebuttable presumption at issue was constitutionally 

infirm. Id.

The Torsilieri II Court then considered whether the trial court erred in 

determining that the registration and notification requirements of Revised 

Subchapter H are punitive. After considering and balancing five of the 

Mendoza-Martinez factors,10 the High Court determined that two weighed in 

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9 To challenge such assumptions under the irrebuttable presumption doctrine, 

a challenging party must demonstrate: (1) an interest protected by the due 

process clause; (2) utilization of a presumption that is not universally true; 

and (3) the existence of a reasonable alternative means to ascertain the 

presumed fact. See Torsilieri II, No. 97 MAP 2022, 2024 Pa. LEXIS 799 at 

*4.

10 The Mendoza-Martinez factors considered by the Torsilieri II Court, in 

relation to the registration and notification requirements of Revised 

Subchapter H, were: (1) whether the requirements involve an affirmative 

disability or restraint; (2) whether they have been historically regarded as 

punishment; (3) whether their operation will promote the traditional aims of 

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favor of finding Subchapter H to be punitive in effect, and three weighed in 

favor of finding the legislation to be nonpunitive, with the sixth and seventh 

factors being given the greatest weight. Nonetheless, the Torsilieri II Court 

ruled that weighing the Mendoza-Martinez factors did not compel a 

conclusion that Revised Subchapter H is punitive. Id. at **84-85. The Court 

additionally concluded that the defendant’s constitutional challenges failed 

because he did not meet his heavy burden, by the clearest of evidence, to 

rebut the General Assembly’s stated non-punitive purpose of informing and 

protecting the public. Id. at *86.

Instantly, we observe that Metzler chose not to proceed with a SORNA

II hearing in which she could have submitted evidence in support of her 

constitutional claims. Accordingly, the trial court did not conduct an 

evidentiary hearing on her constitutional claims and no evidence was admitted 

into the record to support those claims. Thus, on the record before us, 

Metzler’s constitutional challenges must fail because she cannot meet her

heavy burden, by the clearest of evidence, to rebut the General Assembly’s 

stated non-punitive purpose of informing and protecting the public. Id. at 

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punishment—retribution and deterrence; (4) whether they may be rationally 

connected to an alternate purpose; and (5) whether they are excessive in 

relation to the alternative purpose. Torsilieri II, No. 97 MAP 2022, 2024 Pa. 

LEXIS 799 at *13. Consistent with prior case law, the High Court determined 

that Mendoza-Martinez factor 3, a finding of scienter, and factor 5, past 

criminal misconduct, provided little guidance in determining whether Revised 

Subchapter H is punitive, and, thus, did not consider these factors. See

Torsilieri I, 232 A.3d at 58; see also Torsilieri II, No. 97 MAP 2022, 2024 

Pa. LEXIS 799 at *13 n.8.
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*86; see also Commonwealth v. Villanueva-Pabon, 304 A.3d 1210, 1218 

(Pa. Super. 2023) (holding appellant failed to satisfy the high burden to prove 

unconstitutionality of SORNA II provisions applicable to him where the record 

was devoid of evidence because appellant decided to forego an evidentiary 

hearing). Moreover, the Torsilieri II Court ruled that weighing the 

Mendoza-Martinez factors did not compel a conclusion that Revised 

Subchapter H is punitive. Id. at **84-85. Accordingly, we affirm.

Judgment of sentence affirmed.

DATE: 7/22/2024