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[U] Commonwealth v. Zen

Superior Court of Pennsylvania

February 11, 2014

EDWARD V. ZEN, Appellant


Appeal from the Order entered December 14, 2012, in the Court of Common Pleas of Monroe County, Criminal Division, at No(s): CP-45-CR-0001910-2011




Edward V. Zen (Appellant) appeals from the December 14, 2012 order which classified him as a Tier I sexual offender and required him to comply with the registration and reporting requirements of the Sex Offender Registration and Notification Act (SORNA), [1] which became effective on December 20, 2012. We affirm.

Appellant was charged with numerous crimes following an incident that occurred in August 2011. In August 2012, Appellant pled guilty to indecent assault without consent[2] and three non-sexual offenses. On December 3, 2012, Appellant was sentenced, in aggregate, to four to twelve years of incarceration.[3] His sentencing order additionally provided that, beginning on December 20, 2012, he must comply with the registration requirements of the amended Megan's Law;[4] and scheduled a colloquy on those registration requirements to take place on December 14, 2012.

At the colloquy, the trial court informed the group of individuals who would be required to register under SORNA of their registration and reporting duties. The trial court then addressed the individuals separately to advise each of his or her classification and specific registration and reporting requirements. Additionally, the trial court informed all assembled that it would entertain challenges to the application of SORNA, and set January 8, 2013, as the hearing date for any such motions filed before the individual was supposed to register. N.T., 12/14/2012, at 24.

Appellant attended the colloquy, at which the trial court classified Appellant as a Tier I offender and provided Appellant with the required notice. Appellant did not, however, file a motion challenging SORNA's application to his case, and did not participate in the January 8, 2013 hearing. Instead, on January 10, 2013, Appellant filed a notice of appeal from the order of December 14, 2012. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied.

Appellant presents three questions for this Court's consideration.

I. Was the order issued by the honorable trial court pursuant to Pa.R.Crim.P. 720 a final appealable order pursuant to Pa.R.A.P. 341?
II. Does the SORNA's requirement that persons convicted of offenses committed prior to SORNA's effective date register as sex offenders pose additional punishment in violation of the ex post facto clauses of the Pennsylvania constitution and the United States constitution?
III. Does the SORNA violate the separation of powers doctrine by seizing for the legislature power to proscribe practices and procedure(s) in the courts and their judicial employees and officers?

Appellant's Brief at 5 (some capitalization omitted).

Appellant's first question arises from the trial court's expressed belief that Appellant waived his challenge to the applicability of SORNA by failing to file a direct appeal from his December 3, 2012 judgment of sentence, which was "the first order that directed him to comply with Megan's Law IV."[5] Trial Court Opinion, 3/12/2013, at 11.

We disagree with the trial court. Appellant's sentencing order expressly provided for additional proceedings before the precise application of SORNA to Appellant was finalized. Further, the docket reflects that the same day that the sentencing order was filed, an order scheduling "Post Sentence Motions" also was entered; and the trial court's order classifying Appellant as a Tier I offender and specifying his reporting and registration requirements is captioned by the trial court as an order regarding a "post-sentence motion." See Pa.R.Crim.P. 720(A) (providing notice of appeal must be filed within 30 days of disposition of post-sentence motion). Therefore, we hold that Appellant properly and timely appealed from the appropriate order, and turn to Appellant's substantive questions.

This Court has addressed these issues in another case arising out of the December 14, 2012 Monroe County mass colloquy. Under the same posture as that of the instant case, we held as follows.

The trial court notified [Miller] of his new registration requirements, then informed [Miller] that he, along with the other offenders present, could raise challenges to the registration requirements by filing a motion with the trial court and appearing at a hearing on January 8, 2013. [Miller] did not file a motion or appear at the hearing. Instead, on January 10, 2013, [Miller] filed a direct appeal, and raised constitutional claims for the first time. Specifically, [Miller] asserts that Megan's Law IV is punitive, and that the retroactive application of Megan's Law IV violates the ex post facto clauses of Article 1, § 10 of the United States Constitution and Article 1, § 17 of the Pennsylvania Constitution. Additionally, [Miller] claims that Megan's Law IV violates the separation of powers doctrine. Upon careful review, we conclude that [Miller]'s ex post facto claim, which was raised for the first time in his Pa.R.A.P.1925(b) statement after he filed direct appeal, is waived. [Miller]'s separation of powers claim, which was raised for the first time in his appellate brief before this Court, is also waived.
* * *
Issue preservation is foundational to proper appellate review…. By requiring that an issue be considered waived if raised for the first time on appeal, our courts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue. This jurisprudential mandate is also grounded upon the principle that a trial court … must be given the opportunity to correct its errors as early as possible. Related thereto, we have explained in detail the importance of this preservation requirement as it advances the orderly and efficient use of our judicial resources. Finally, concepts of fairness and expense to the parties are implicated as well.
… [Miller]'s failure to raise his constitutional claims before the trial court impedes appellate review, and his failure to develop the record before the trial court interferes with our ability to conduct a meaningful evaluation of the issues raised in [Miller]'s brief.

Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.Super. 2013) (footnote, citations, and quotations omitted).

In the instant case, Appellant, represented by the same counsel as Miller, raises the same arguments as Miller, in the same manner as Miller, i.e., without having filed a motion presenting the issues to the trial court but instead raising them for the first time in his 1925(b) statement or his appellate brief. Accordingly, Appellant, just as Miller, has waived his issues on appeal.[6]

Order affirmed.

Judge Donohue concurs in the result.

Judgment Entered.

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