J-S06027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
              v.                 :
                                 :
                                 :
    KURR S. FARRALES             :
                                 :
                   Appellant     :             No. 3868 EDA 2016
                                 :

              Appeal from the Order Entered November 28, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0003335-2010


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED MARCH 23, 2018

        Kurr S. Farrales appeals from the order designating him as a sexually

violent predator (”SVP”) under Pennsylvania’s Sex Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.41. We affirm in part,

reverse in part, and remand.

        The facts and procedural history relevant to our disposition are as

follows. On May 2, 2016, Farrales entered an open guilty plea to three counts

of involuntary deviate sexual intercourse/child less than 16 years of age,1 four

counts of involuntary deviate sexual intercourse/child less than 13 years of




____________________________________________


1   18 Pa.C.S.A. § 3123(a)(7).
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age,2 four counts of statutory sexual assault,3 five counts of indecent

assault/person less than 13 years of age,4 three counts of indecent

assault/person less than 16 years of age,5 and one count of corruption of

minors.6 The victim in this case was Farrales’ stepdaughter, whom Farrales

sexually abused from the time she was eight years old until she was

approximately 13 or 14 years old.

        Farrales waived his right to have his SVP status determined prior to

sentencing, instead agreeing to an SVP hearing to be conducted thereafter.

On October 13, 2016, the trial court sentenced Farrales to 12 to 30 years in

prison followed by 11 years of probation. The court subsequently held an SVP

hearing on November 28, 2016 pursuant to SORNA, and, on that same day,

issued an order finding Farrales to be an SVP. Farrales filed a timely notice of

appeal, in December 2016, and the trial court-ordered Pa.R.A.P. 1925(a)

statement. The trial court issued a Pa.R.A.P. 1925(b) opinion in April 2017.

        Farrales raises a single issue for our review:

        Whether the evidence was sufficient as a matter of law to find
        [Farrales] to be a sexually violent predator.

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2   18 Pa.C.S.A. § 3123(b).

3   18 Pa.C.S.A. § 3122.1(b).

4   18 Pa.C.S.A. § 3126(a)(7).

518   Pa.C.S.A. § 3126(a)(8).

6   18 Pa.C.S.A. § 6301(a)(1).


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Farrales’ Brief at 8.

      Farrales argues that the trial court erroneously determined that the

expert testimony of Sexual Offender Assessment Board (“SOAB”) member Dr.

Jennifer Hahn, Ph.D. was sufficient to establish that he was an SVP because

Dr. Hahn failed to interview him and declined to consider various mitigating

factors. However, for the reasons that follow, we do not reach the merits of

Farrales’ claim.

      While Farrales’ instant appeal was pending, the Pennsylvania Supreme

Court issued its decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017) (OAJC), cert. denied sub nom. Pennsylvania v. Muniz, No. 17-575,

2018 WL 491630 (U.S. Jan. 22, 2018). In Muniz, the Court held that the

registration   requirements   set   forth   under   SORNA    constitute   criminal

punishment as opposed to a mere civil penalty, and therefore their retroactive

application violates the Ex Post Facto clause of the U.S. Constitution. 164 A.3d

at 1218.

      SORNA provides that a defendant found guilty of certain enumerated

offenses is subject to one of three different “tiers” of registration periods – 15

years, 25 years, or lifetime registration – depending solely on whether the

defendant’s offense of conviction is a Tier I, Tier II, or Tier III offense. See 42

Pa.C.S.A. § 9799.14 (setting forth tier system). Notwithstanding the three-

tier system, SORNA also subjects to lifetime registration those that the trial

court at sentencing (rather than the fact-finder at trial) finds to be SVPs by




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clear and convincing evidence(rather than beyond a reasonable doubt). See

42 Pa.C.S.A. § 9799.24(e)(3)).

       In the wake of Muniz, this Court held that applying SORNA’s aggravated

registration periods for those found to be SVPs is unconstitutional, even when

not applied retroactively. Commonwealth v. Butler, 173 A.3d 1212, 1217

(Pa.super. 2017).7 We concluded in Butler that because Muniz held SORNA’s

registration requirements are punitive, and an SVP designation increases the

registration period, trial courts cannot apply SORNA’s increased registration

requirement for SVPs because SORNA does not require a fact-finder to

determine, beyond a reasonable doubt, that the defendant is an SVP. Id. at

1217-18 (citing Alleyne v. United States, 570 U.S. 99 (2013)).

       Accordingly, in Butler, we directed trial courts to apply only the

applicable tier-based registration period, as those periods apply based on the

conviction itself, and not due to any additional fact not found, under SORNA’s

procedures, by the fact-finder. Butler, 173 A.3d at 1218. We further held that

the application of SORNA’s increased registration period for SVPs constituted

an illegal sentence that we could (and did) raise sua sponte. Id. at 1215. We

therefore reversed the order finding the defendant to be an SVP and remanded



____________________________________________


7 This Court denied reargument in Butler on January 3, 2018. The
Commonwealth filed a petition for allowance of appeal to the Pennsylvania
Supreme Court on February 1, 2018. That petition is still pending as of this
writing.



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to the trial court for the sole purpose of issuing appropriate notice8 of the

defendant’s tier-based registration period. Id. at 1218.

       Therefore, in the case sub judice, in light of Muniz and Butler, we

conclude that Farrales’ SVP designation constitutes an illegal sentence. In this

case, the trial court conducted an SVP hearing and determined Farrales to be

an SVP via clear and convincing evidence, rather than beyond a reasonable

doubt. Therefore, we vacate Farrales’ SVP status, pursuant to Butler, and

remand to the trial court to issue appropriate notice to Farrales pursuant to

42 Pa.C.S.A. § 9799.23.

       Order vacated. Judgment of sentence affirmed in all other respects.

Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18




____________________________________________


8  See 42 Pa.C.S.A. § 9799.23 (providing for court notification and
classification requirements).

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