J-S03027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAIME JIMENEZ JR. 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2111 EDA 2018

Appeal from the Judgment of Sentence Entered February 13, 2018

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

No(s): CP-45-CR-0000193-2016

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED MAY 17, 2019

Appellant, Jaime Jimenez, Jr., appeals from the judgment of sentence 

entered on February 13, 2018, following his guilty plea convictions for criminal 

use of a communication facility and criminal attempt of corruption of minors

by course of conduct.

1

 We affirm.

We briefly summarize the facts and procedural history of this case as 

follows. On August 2, 2015, police posing as a 14-year-old female responded 

to a classified advertisement entitled “Pocono Fun” posted on Craigslist by 

Appellant. Appellant arranged to have sex and smoke marijuana with the 

alleged minor and drove from New Jersey to a prearranged location in Monroe 

County, Pennsylvania to meet her. On August 9, 2015, police arrested 

Appellant at the designated location and recovered marijuana from his car and 

____________________________________________

1 18 Pa.C.S.A. §§ 7512 and 903/6301(a)(1)(ii), respectively. 
J-S03027-19

- 2 -

three condoms from his person. On August 10, 2015, the Commonwealth 

charged Appellant with the aforementioned offenses, as well as criminal 

attempt of statutory sexual assault and two counts of unlawful sexual contact 

with a minor. 

On November 21, 2017, Appellant entered into a negotiated guilty plea 

to criminal use of a communication facility and criminal attempt of corruption 

of minors by course of conduct. The plea agreement, however, left the

sentence open for the trial court to decide. At the plea hearing, the trial court 

ordered the sexual offender assessment board (SOAB) to conduct an 

assessment. Appellant subsequently filed a motion to preclude the SOAB

evaluation on December 1, 2017. Appellant and the Commonwealth 

submitted briefs on their respective positions regarding an evaluation by the 

SOAB. On January 25, 2018, the trial court denied Appellant’s motion to 

preclude the report. 

The trial court held a sentencing hearing on February 12, 2018. By 

order entered on February 13, 2018, the trial court sentenced Appellant to a

term of nine to 23 months of incarceration for criminal attempt of corruption 

of minors, plus a consecutive term of two years of probation for criminal use 

of communication facility. The trial court also classified Appellant as a Tier I 

sexual offender subject to a 15-year registration period pursuant to the Sexual 

Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §9799.23. 

Appellant filed a motion for reconsideration on February 15, 2018. The trial 
J-S03027-19

- 3 -

court denied relief by opinion and order entered on June 13, 2018. This 

timely appeal resulted.2

On appeal, Appellant presents the following issues3for our review:

1. Did the court abuse its discretion at sentencing when it 

required Appellant to register under SORNA?

2. Did the [trial] court abuse its discretion at sentencing when it 

is a violation of Appellant’s due process constitutional rights 

under the United States and Pennsylvania Constitutions where 

SORNA’s requirements are punitive and not just civil 

requirements?

3. Is it a violation of Appellant’s due process constitutional rights 

under the United States and Pennsylvania Constitutions where 

mandatory reporting compliance with SORNA’s requirements 

are an affirmative restraint upon Appellant and such a restraint 

is punitive?

4. Did the [trial] court abuse its discretion at sentencing by 

allowing the [SOAB] [a]ssessment to be considered at the time 

of sentencing for purposes other than [a] determination if 

Appellant was a Sexually Violent Predator [(SVP)], where all 

the information is already available to the [trial] court and 

____________________________________________

2

 Appellant filed a notice of appeal on July 13, 2018. On July 17, 2018, the 

trial court ordered Appellant to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The 

trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 14, 

2018, relying largely upon its prior opinion entered on June 13, 2018 

explaining its rationale in denying Appellant’s post-sentence motion. 

3

 Initially, we note that the Public Defender from Monroe County, currently 

representing Appellant on appeal, has presented virtually identical arguments 

to this Court in two other cases and we denied relief in unpublished 

memoranda decisions. See Commonwealth v. Bender, 2019 WL 364206 

(Pa. Super. 2019) (unpublished memorandum); Commonwealth v. Sauers, 

2019 WL 1411188 (Pa. Super. 2019) (unpublished memorandum). In this 

case, we have reordered the issues slightly for ease of discussion and 

disposition. 
J-S03027-19

- 4 -

Appellant did not have the chance to confront the person[s]

who did the evaluation about their opinions and professional 

determinations, when [] Appellant cannot be declared a [SVP]?

5. Is it a violation of Appellant’s due process constitutional rights 

under the United States and Pennsylvania Constitutions where 

compliance with SORNA’s requirements are invested in the 

state police?

6. Did the [trial] court abuse[] its discretion when saying SORNA 

applied to Appellant when after his release from custody he will 

be returning to his home in New Jersey and will not have

resided in Pennsylvania for registration to apply?

Appellant’s Brief at 6-7 (suggested answers omitted).

In the first three issues presented above,

4 Appellant alleges that the 

trial court abused its discretion by requiring Appellant to register pursuant to 

SORNA. Appellant predicates these claims on our Supreme Court’s opinion 

announcing the judgment of court in Commonwealth v. Muniz, 164 A.3d 

1189 (Pa. 2017). More specifically, Appellant claims that the trial court 

abused its discretion at sentencing by ordering compliance with SORNA’s 

punitive registration requirements in violation of Appellant’s due process 

rights.5 Id. at 13-19 and 23-24. He claims that the registration requirements 

____________________________________________

4 We note that while Appellant sets forth three separate issues in his brief, in 

essence, however, he presents the same argument three times, with slight 

variations, and relies upon the same case law.

5 While Appellant’s statement of questions presented refers to due process 

violations, Appellant does not explain, or provide any legal discussion, 

detailing how his due process rights were violated. This Court “will not act as 

counsel and will not develop arguments on behalf of an appellant.” In re 

R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (citation omitted). Regardless, we 

fail to see how Appellant’s procedural due process rights were violated. 
J-S03027-19

- 5 -

create an affirmative, onerous, punitive restraint on Appellant and that 

registration, therefore, violated his constitutional rights. Id. at 14, 18-19, 

and 23. 

In Muniz, our Supreme Court held that SORNA’s registration 

requirements constitute criminal punishment rather than a civil consequence

and, thus, retroactive application to crimes committed prior to SORNA's 

effective date, December 20, 2012, violated the ex post facto clause of the 

United States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1192-

1193. However, “the Muniz court did not find SORNA unenforceable in all 

contexts; rather, the Supreme Court held that SORNA was [only] 

unconstitutional as applied to Muniz because it changed his registration 

requirement from ten years to lifetime registration, and thus, increased his 

punishment for indecent assault after he committed the offense.” 

Commonwealth v. Haughwout, 198 A.3d 403, 405 (Pa. Super. 2018)

(emphasis added). The Muniz Court, however, did not declare SORNA 

unconstitutional.

____________________________________________

Appellant had notice and a meaningful opportunity to be heard. See 

Commonwealth v. Turner, 80 A.3d 754, 761 (Pa. 2013) (citation omitted)

(recognizing that the essential requisites of procedural due process are notice 

and meaningful opportunity to be heard). “[F]or substantive due process 

rights to attach there must first be the deprivation of a property right or other 

interest that is constitutionally protected.” Khan v. State Bd. of Auctioneer 

Examiners, 842 A.2d 936, 946 (Pa. 2004). As discussed below, registration 

requirements under SORNA, for offenses committed after December 20, 2012, 

have not been declared unconstitutional.
J-S03027-19

- 6 -

In this case, Appellant concedes that Muniz only applies ex post facto, 

or to cases in which a defendant committed his or her offenses before

SORNA’s effective date. See Appellant’s Brief at 17. He argues, however, 

that for the reasons that Muniz determined that registration requirements 

“are punishment [under the] ex post facto clause, they are punishment for 

someone required to register after December 20, 2012.” Id. Appellant’s 

argument focuses exclusively on our Supreme Court’s analysis in Muniz, as 

he generously quotes language from that case discussing the punitive nature 

of registration requirements. While it is true that the Muniz Court held that 

SORNA’s registration requirements constitute criminal punishment, it only did 

so in the context of determining whether retroactive application was 

permissible. The constitutionality of SORNA registration requirements as 

applied to defendants after December 20, 2012 has not been drawn into doubt 

by Muniz. Here, there is no dispute that Appellant placed the advertisement 

at issue in 2015, he pled guilty in 2017, and the trial court sentenced him in 

2018. Accordingly, the trial court properly applied SORNA registration 

requirements to Appellant and his first three issues as set forth above are 

without merit. 

In his fourth issue as set forth above, Appellant asserts that the trial 

court wrongly considered an assessment by the SOAB in fixing his sentence. 

Appellant relies upon this Court’s decision in Commonwealth v. Butler, 173 

A.3d 1212 (Pa. Super. 2017), which held that SVP designations are 

unconstitutional under Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 
J-S03027-19

- 7 -

2151 (2013).

6 He claims that because he could not be designated an SVP, 

there was no reason to conduct an SOAB assessment normally used for SVP 

determinations. Because the SOAB assessment was prejudicial to him and he 

was not able to cross-examine the SOAB evaluator, Appellant argues that the 

trial court should not have considered the SOAB report. Appellant’s Brief at 

10-12. We explain our rejection of this argument below.

In Butler, a panel of this Court concluded that because Muniz held that 

registration requirements under SORNA are punitive and an SVP 

determination increases the registration period, trial courts cannot apply 

SORNA’s increased registration requirement to SVPs because SORNA does not 

require a fact-finder to make a determination, beyond a reasonable doubt, 

that a defendant is an SVP. Butler, 173 A.3d 1217-1218 (citation omitted).

The Butler Court further found that 42 Pa.C.S.A. § 9799.24(e)(3), pertaining 

specifically to SVP hearings, was unconstitutional and that “trial courts may 

no longer designate convicted defendants as SVPs, nor may they hold SVP 

hearings[.]” Id. at 1218. However, we directed trial courts to “notify a 

defendant that he or she is required to register for 15 years if he or she is 

convicted of a Tier I sexual offense[.]” Id.

In this case, the trial court did not conduct an SVP hearing and never 

determined that Appellant was an SVP. Instead, the trial court properly 

____________________________________________

6

 Alleyne held that any fact that increases the mandatory minimum sentence 

for a crime is an element that must be submitted to a jury and determined 

beyond a reasonable doubt. See Butler, 173 A.3d at 1217.
J-S03027-19

- 8 -

notified Appellant of his obligation to register under the applicable tier-based 

registration period based solely on Appellant’s conviction, as set forth in 

Butler. Moreover, upon our reading of Muniz and Butler, SOAB 

assessments, standing alone, have not been rendered unconstitutional. 

Instead, using SOAB assessments to declare that an individual is an SVP is 

what is constitutionally unsound. Thus, we see no per se legal impediment to 

a trial court’s consideration of an SOAB assessment in imposing sentence. 

Furthermore, to the extent that Appellant argues that the trial court 

abused its discretion by relying on an SOAB assessment at sentencing, we 

note the following. In order to reach the merits of a discretionary aspects of 

sentencing claim,

we must engage in a four part analysis to determine: (1) whether 

the appeal is timely; (2) whether the appellant preserved his or 

her issue; (3) whether the appellant's brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question that the 

sentence is appropriate under the Sentencing Code.

Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (citation and 

brackets omitted).

Herein, Appellant’s appeal is timely and he preserved his sentencing 

issue in a post-trial motion. Appellant failed to include in his appellate brief a 

concise statement of the reasons that the trial court abused its discretion as 

required under Pa.R.A.P. 2119(f). Because the Commonwealth did not object 

to this omission, we may still reach his challenge to the discretionary aspects 
J-S03027-19

- 9 -

of sentencing. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. 

Super. 2006) (“[I]n the absence of any objection from the Commonwealth, 

we are empowered to review claims that otherwise fail to comply with Rule 

2119(f)[.]”). 

Appellant, however, has failed to raise a substantial question. “A 

defendant presents a substantial question when he sets forth a plausible 

argument that the sentence violates a provision of the sentencing code or is 

contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (internal 

citation omitted). Aside from arguing that SOAB assessments are 

unconstitutional, Appellant does not argue that the use of an SOAB 

assessment is contrary to a specific sentencing provision of the Sentencing 

Code or to the fundamental norms of sentencing. In Pennsylvania, a 

sentencing court must impose an individualized sentence that is appropriate 

in light of the facts of the case and the defendant’s circumstances. See 

Commonwealth v. Fortson, 165 A.3d 10, 19 (Pa. Super. 2017). We have 

previously stated:

Prior to imposing sentence a sentencing judge may appropriately 

conduct an inquiry broad in scope, largely unlimited either as to 

the kind of information he may consider, or the source from which 

it may come.

Nevertheless, the discretion of a sentencing judge is not 

unfettered; a defendant has the right to minimal safeguards to 

ensure that the sentencing court does not rely on factually 

erroneous information, and any sentence predicated on such false 

assumptions is inimicable [sic] to the concept of due process. 
J-S03027-19

- 10 -

Obviously, the probability of receiving accurate pre-sentence 

information is considerably enhanced when the defendant has an 

opportunity to review and dispute the facts and allegations 

available to the sentencing judge.

Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa. Super. 2009) (internal 

citations, quotations, and most original brackets omitted). 

In this case, Appellant does not challenge the information provided in 

the SOAB report and merely contests the consideration of the entire SOAB 

assessment. We already determined that the trial court’s reliance on an SOAB 

assessment was constitutionally permissible. Further, Appellant does not 

contest any facts set forth in the SOAB report and concedes that “[t]he 

author[s] of the [SOAB] report had the same information available to them as 

did the probation officer that did the pre-[s]entence [i]nvestigation [report].” 

See Appellant’s Brief at 12. If the trial court had the same information 

available from another source, which Appellant does not contest, Appellant 

failed to show how the trial court relied upon impermissible information at 

sentencing. As such, Appellant failed to establish that the trial court’s reliance 

upon the SOAB assessment was contrary to the norms of sentencing. For all 

of the foregoing reasons, we conclude that Appellant did not raise a substantial 

question and we will not review the merits of Appellant’s discretionary 

sentencing claim. 

In the fifth issue we review, Appellant challenges the standing of the 

Pennsylvania State Police (PSP) over SORNA reporting requirements, claiming

that the trial court should instead “monitor” compliance. See Appellant’s Brief 

at 20-22. He argues that it is a violation of his due process rights where 
J-S03027-19

- 11 -

compliance with SORNA is vested in the PSP. Id. at 20. Appellant cites 

principally to Commonwealth v. Harmon, CP-51-CR-6706-2015 (First 

Judicial District Court of Common Pleas March 13, 2018)7 and 

Commonwealth v. Cheeseboro, 91 A.3d 714 (Pa. Super. 2014) for these

propositions. 

Cheeseboro does not support Appellant’s claim. In that case, the

Philadelphia Court of Common Pleas accepted plea agreements between the 

Commonwealth and 73 defendants, wherein the Commonwealth agreed that 

the defendants were not required to register as sexual offenders under 

SORNA. The PSP appealed those decisions arguing “that the General 

Assembly unequivocally determined who must register as sexual offenders 

under SORNA and that neither the Commonwealth, defense counsel, nor the 

trial court have the ability to exempt or modify the mandatory terms of sexual 

offender registration pursuant to a plea agreement.” Cheeseboro, 91 A.3d 

at 721. Ultimately, this Court concluded that the PSP lacked standing to 

challenge the trial court’s decision not to apply SORNA reporting requirements 

because the PSP was not aggrieved by the exemptions. Id. at 722.

Relevant herein, however, the Cheeseboro Court noted:

____________________________________________

7 Harmon is a trial court decision and, thus, is not binding upon this Court. 

See Echeverria v. Holley, 142 A.3d 29, 36 n.2 (Pa. Super. 2016). Moreover, 

while Appellant provides a citation to Harmon, we were unable to locate that 

decision and Appellant did not append it to his brief under Pa.R.A.P. 2111(b). 

Finally, while Appellant baldly claims that the issues in this case are similar to 

those in Harmon, Appellant fails to discuss Harmon or otherwise 

demonstrate similarities. As such, we will not consider that decision. 
J-S03027-19

- 12 -

PSP was not expressly granted broad authority and discretionary 

powers under SORNA. Unlike the Uniform Firearms Act, 18 

Pa.C.S.A. §§ 6101–6127, which provides PSP with a determinative 

role as to whether an applicant is prohibited from receiving or 

possessing a firearm, PSP's role under SORNA may be viewed 

as more ministerial in nature than adjudicative. See, e.g., 

42 Pa.C.S.A. §§ 9799.32(1)-(4), (6)-(9) (maintaining of sexual 

offender registry by PSP and gathering, recording, storing, 

updating, and sharing offender information); 42 Pa.C.S.A. 

§§ 9799.22 and 9799.32(5) (regarding limited enforcement 

duties of PSP in notifying authorities when an individual fails to 

comply with registration, penalty, or counseling provisions). 

Furthermore, it is not until after the underlying offenses have been 

litigated that PSP is notified that an individual is subject to the 

sexual offender registration requirements. Cf. 42 Pa.C.S.A. 

§ 9799.13 (regarding applicability of registration with PSP 

requirements for individuals convicted/adjudicated delinquent of 

a sexually violent offense); Commonwealth v. J.H., 759 A.2d 

1269 (Pa. 2000) (holding that PSP was without standing to contest 

an order to expunge criminal record or the order compelling PSP 

to expunge the same under the Criminal History Record 

Information Act, 18 Pa.C.S.A. §§ 9101–9183, where PSP was not

aggrieved by either, and notification to PSP was not required until 

after an expungement order was entered, such that standing was 

not derived from the statute); Hunt v. Pennsylvania State 

Police, 983 A.2d 627 (Pa. 2009) (holding that PSP lacks standing 

to challenge the underlying merits of an expungement order 

through preliminary objections raised in a mandamus action). 

Thus, SORNA does not appear to confer standing upon PSP.

Id. at 721–722 (emphasis added).

The Cheeseboro Court’s analysis of the PSP’s duties under SORNA 

provides guidance in this case. Therein, after examining the relevant statutory 

provisions pertaining to the administration of SORNA reporting requirements,

a prior panel of this Court determined that the PSP’s role is more ministerial 

in nature than adjudicative. The PSP merely administers SORNA’s reporting 

requirements and does not adjudicate failures to comply. The Crimes Code 
J-S03027-19

- 13 -

specifically delineates a criminal offense for failing to comply with registration 

requirements at 18 Pa.C.S.A. § 4915.1. It confers upon police the right to 

arrest a person without a warrant when the officer has probable cause to 

believe that an individual has committed a registration violation. 18 Pa.C.S.A. 

§ 4915.1(e). However, the PSP does not adjudicate the claim; a trial court 

does. See, e.g., Commonwealth v. Hogentogler, 53 A.3d 866 (Pa. Super. 

2012). Thus, to the extent that Appellant argues that his due process rights 

are in jeopardy because of the PSP’s involvement with SORNA’s registration 

requirements, his claim fails. 

In sum, there is no due process violation because the PSP’s involvement 

in monitoring SORNA’s registration requirements and there is no issue that

Appellant is subject to those requirements. Based upon his convictions, he is 

required to register as a Tier-I offender. The PSP administers compliance with 

reporting obligations, but subsequent reporting offenses are adjudicated by 

the courts. Accordingly, for all of the foregoing reasons, we conclude that 

Appellant’s reliance on Harmon and Cheeseboro8fails. 

____________________________________________

8 Finally, we note that following the 2014 Cheeseboro decision, the 

Pennsylvania Legislature enacted 42 Pa.C.S.A. § 9799.42, effective June 12, 

2018, which states:

Except for petitions filed under section 9799.15(a.2) (relating to 

period of registration), the Pennsylvania State Police shall have 

standing to appear and contest a filing in a court of this 

Commonwealth which seeks to challenge in any way the obligation 
J-S03027-19

- 14 -

Finally, in his last issue presented, Appellant claims that the trial court 

abused its discretion by applying SORNA requirements to him after his release

from prison because “Pennsylvania’s SORNA requirements are for 

Pennsylvania residents.” Appellant’s Brief at 25. Appellant claims he has 

never been a resident of Pennsylvania and intends to return to New Jersey. 

Id. Appellant’s contention that he will not live in Pennsylvania is, however, 

entirely speculative and not justiciable presently. “Generally, our judicial 

system requires a real or actual controversy before it will embrace a matter 

for review and disposition.” Bayada Nurses, Inc. v. Com., Dept. of Labor 

and Industry, 8 A.3d 866, 874 (Pa. 2010). This Court previously 

determined:

The ripeness doctrine is [a] prerequisite for a court to exercise 

judicial review and examine the merits of a case. To be ripe, an 

actual case or controversy must exist at every stage of the judicial 

process. The rationale for the ripeness doctrine is to prevent 

premature adjudications. 

Treski v. Kemper Nat. Ins. Companies, 674 A.2d 1106, 1113 (Pa. Super. 

1996) (internal citations omitted); see also Rivera v. Pennsylvania Dept. 

of Corrections, 837 A.2d 525, 527 (Pa. Super. 2003) (“It is impermissible 

____________________________________________

of an individual required to register with the Pennsylvania State 

Police under this subchapter.

42 Pa.C.S.A. § 9799.42.

Although abrogated by statute on other grounds, Cheeseboro’s 

analysis of the PSP’s role, which we have cited above, still remains valid.
J-S03027-19

- 15 -

for courts to render purely advisory opinions.”). Here, Appellant’s claim that 

he intends to move to New Jersey following his release from prison, thereby 

rendering Pennsylvania’s registration requirements inapplicable to him, is 

simply not an issue that is currently ripe for our review. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/19