Pennsylvania Supreme Court Announces Challenge to SORNA-Based Illegality of Sentence Claim Cannot Be Waived, Allowing for Challenge at Any Time — Even if First Raised on Appeal
by Anthony W. Accurso
The Supreme Court of Pennsylvania held that challenges to the legality of an imposed sentence — including registration requirements under SORNA — cannot be waived and can thus be brought at any time.
For various sexually-related offenses, Shaune Jarel Thorne, Sr. was sentenced on April 9, 2019, to an aggregate term of ten-to-20 years’ imprisonment. Because of the nature of his offenses, the trial court informed Thorne that he would be required to register as a sexual offender for the remainder of his life due to his classification as a Tier III offender pursuant to Revised Subchapter H of the Pennsylvania Sex Offender Registration and Notification Act (“SORNA”).
Thorne filed a timely post-sentence motion, but it was denied. He then filed a notice of appeal, listing several issues in his Pennsylvania Rule of Appellate Procedure (“Pa. RAP”) Rule 1925(b) statement — none of which are germane to this summary. However, in his appellate brief, Thorne raised two additional issues he had not raised in any previous motion or notice: (1) whether his lifetime registration constitutes an illegal sentence comprised of punishment beyond the statutory maximum without a jury’s finding of future dangerousness in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and (2) whether lifetime registration constitutes an illegal sentence for being cruel and unusual.
While the Superior Court made rulings on his other issues (denying them), it refused to rule on the merits of Thorne’s SORNA registration challenges on the grounds that he waived those issues by not raising them in his earlier filings with the trial court.
The Pennsylvania Supreme Court certified his appeal of the Superior Court’s refusal to rule on his clams and to determine whether such challenges can be waived by failing to raise them in earlier filings.
Generally, issues not properly raised and preserved before the trial court “are waived and cannot be raised for the first time on appeal.” Pa. RAP 302(a). Issues not raised with the trial court in a timely manner are considered waived. Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016).
However, challenges to the legality of a sentence are an exception to this rule and may be raised at any time. Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020). “Stated succinctly, 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.” Id.
In its ruling that Thorne waived his legality of sentencing claims by failing to raise them with the trial court, the Superior Court relied on its prior ruling in Commonwealth v. Reslink, 257 A.3d 21 (Pa. Super. 2020). The Reslink Court found an appellant’s challenge to SORNA was waived where he failed to raise the claim first with the trial court, a decision that relied on badly misinterpreting a previous line of cases. The Court criticized Reslink for not even addressing the principle that the legality of sentences cannot be waived, much less provide any rationale for why that principle should be ignored in that case.
Thus, the Court wrote, “for purposes of clarification, we expressly disapprove Reslink to the extent that it unnecessarily limits a sexual offender’s ability to raise constitutional challenges to [SORNA] by requiring that those challenges be raised before the trial court.” It continued, “we, ourselves, cannot discern any reason as to why this Court’s legality of sentencing jurisprudence should not apply equally to constitutional challenges to [SORNA].”
Accordingly, the Court reversed, in part, the order of the Superior Court and remanded for further proceedings consistent with its opinion. See: Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022).
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