J-S80025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
ERNESTO LEON                              :
                                          :
                   Appellant              :   No. 560 EDA 2017

           Appeal from the Judgment of Sentence June 14, 2016
 In the Court of Common Pleas of Lehigh County Criminal Division at No(s):
                         CP-39-CR-0004802-2015



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

JUDGMENT ORDER BY SHOGAN, J.:                    FILED FEBRUARY 06, 2018

      Appellant, Ernesto Leon, appeals nunc pro tunc from the judgment of

sentence of thirty-three months to ten years of imprisonment entered June

14, 2016. Appellant filed this direct appeal after his appellate rights were

reinstated as a result of a petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.           After review, we affirm the

judgment of sentence. However, we reverse the order finding that Appellant

is a Sexually Violent Predator (“SVP”) and remand for the trial court to

advise Appellant of his obligations under Pennsylvania’s Sex Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10–

9799.41.

      The trial court summarized the relevant facts and procedural history of

the case, as follows:
J-S80025-17


     On January 21, 2016, [Appellant] entered a plea of guilty to the
     charge of Statutory Sexual Assault (8 to 11 years old) (18 Pa.
     C.S.A. § 3122.1(a)(2)). The Commonwealth agreed to cap
     [Appellant’s] minimum sentence at the top of the aggravated
     range of the Sentencing Guidelines, which was determined to be
     thirty-three (33) months. A Pre-Sentence Investigation report
     and a Sexually Violent Predator[] Assessment were ordered. On
     June 14, 2016, a hearing was conducted to determine whether
     [Appellant] met the criteria of a Sexually Violent Predator[]
     pursuant to Pennsylvania statute.        The evaluations of Dr.
     Veronique Valliere and Dr. Christopher Lorah were both
     submitted for review by this [c]ourt, and argument was made by
     both attorneys. After hearing, this [c]ourt found [Appellant] to
     be a Sexually Violent Predator. On the same date, [Appellant]
     was sentenced to a term of state imprisonment of not less than
     thirty-three (33) months nor more than ten (10) years. No
     appeal followed. Thereafter, on November 23, 2016, [Appellant]
     filed a Motion for Post Conviction Collateral Relief, as amended
     on January 5, 2017. [Appellant] requested to have his appeal
     rights reinstated nunc pro tunc. By agreement of counsel,
     [Appellant’s] Motion for Post Conviction Collateral Relief was
     granted on January 31, 2017, and [Appellant] was granted leave
     to file an appeal nunc pro tunc within thirty (30) days thereof.
     [Appellant’s] within appeal followed on February 8, 2017.

Trial Court Opinion, 3/3/17, at 1–2 (internal citations omitted).             Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

     The   sole   issue   raised   on   appeal   challenges   the   trial   court’s

determination that the record contains clear and convincing evidence that

Appellant is an SVP. Appellant’s Brief at 8. For the reasons that follow, we

cannot address the merits of that claim.

     Applying Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United

States, 570 U.S. 99 (2013), this Court, in Commonwealth v. Butler, 173

A.3d 1212 (Pa. Super. 2017), found that 42 Pa.C.S. § 9799.24(e)(3) of

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SORNA is unconstitutional.    As a result, this Court held that “trial courts

cannot designate convicted defendants SVPs (nor may they hold SVP

hearings) until our General Assembly enacts a constitutional designation

mechanism.” Butler, 173 A.3d at 1218. Here, Appellant was determined to

be an SVP under the now unconstitutional SVP mechanism.

      As the propriety of the determination that Appellant is an SVP is the

sole issue before us, we affirm the judgment of sentence. However, in light

of Butler, we must reverse the trial court’s SVP order and remand this case

to the trial court for the sole purpose of issuing the appropriate notice under

42 Pa.C.S. § 9799.23. Butler, 173 A.3d at 1218.

      June 14, 2016 SVP order reversed. Judgment of sentence affirmed in

all other respects. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/18




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