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HOLLIDAYSBURG -- A Blair County senior judge has scheduled arguments in May to consider a constitutional challenge to state law requiring convicted sex offenders to regularly register their addresses and related information with state police.
In recent orders, Senior Judge Timothy M. Sullivan set an April 11 sentencing date for Colby James Wagner of Tyrone and a May 12 hearing date to consider the constitutional challenges being raised on Wagner's behalf to the state's Sexual Offender Registration and Notification Act.
Wagner, 22, who pleaded guilty in March 2022 to 17 child sexual offenses involving a 9-year-old boy, has been in Blair County Prison since his November 2021 arrest and has yet to be sentenced, partly because of the pending constitutional challenges.
In December, several briefs were filed with the Pennsylvania Supreme Court, which is being asked to examine an Aug. 23, 2022, ruling by Chester County Judge Allison Bell Royer deeming SORNA to be unconstitutional when she ruled in Commonwealth v. George Torsilieri.
While Royer's ruling applied only to the Torsilieri case, the subsequent appeal filed with the state Supreme Court could lead to a ruling affecting similar cases throughout the state.
Without knowing when or how the state Supreme Court will address the Torsilieri appeal, First Assistant District Attorney Nichole Smith recently asked Sullivan to proceed with Wagner's sentence to address his guilty pleas, then convene another hearing to consider the constitutional challenges.
Smith said the constitutional issues will require in-court testimony in Blair County because "the matter cannot simply rest on what Chester County did."
Sullivan, who agreed, reviewed his calendar to come up with two dates.
At Wagner's sentencing on April 11, Sullivan will be asked to consider a recommended sentence negotiated for Wagner's guilty pleas to felony counts of unlawful contact with a minor, disseminating sexually explicit material to a minor, corruption of minors and to misdemeanor counts of indecent assault of someone less than 16.
Tyrone police, who filed the charges, accused Wagner of sexually touching the boy and watching pornography with him.
Prosecutors are on record recommending that Wagner be sentenced to two -to four years' incarceration, followed by three years' probation.
On May 12, Sullivan will be asked to consider the constitutional issues of the state's law imposing lifetime registration requirements, as reflected in testimony, legal arguments and any related documents.
In Chester County, Judge Royler's ruling recognized that defense experts there were able to demonstrate that 80 to 95 percent of all sex offenders will not reoffend. That was part of the argument the judge used in concluding that SORNA requirements were excessive and that they amounted to cruel and unusual punishment.
In response to Sullivan's order, Assistant Public Defender John Siford, whose office has been representing Wagner, indicated that his office would need to pursue expert witnesses for the challenge.
Smith also indicated that her office will initiate a similar pursuit.
Blair County also has other cases that could be affected by Sullivan's ruling or by a state Supreme Court ruling in deciding Torsilieri's appeal.
In October, Senior Judge Daniel J. Milliron declined to immediately address a SORNA challenge filed on behalf of Corey George Fowler, who pleaded no contest in 2019 to indecent assault of an 11-year-old girl and related child pornography offenses. Fowler was sentenced in 2020 to serve five to 10 years in prison, followed by 10 years probation.
Milliron, who was scheduled in October to conduct a hearing with expert testimony to decide if Fowler meets the definition of sexually violent predator -- another provision in the state's SORNA law -- opted to delay the hearing, based on the developing challenges reported by Chief Public Defender Russ Montgomery.
Mirror Staff Writer Kay Stephens is at 814-946-7456.