J-S84030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
TAVEN JAQUIN GLASGOW                           :
                                               :
                       Appellant               :   No. 618 MDA 2017

                  Appeal from the Order Entered March 8, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0006177-2014


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 13, 2018

        Taven Jaquin Glasgow appeals from the order, entered in the Court of

Common Pleas of Dauphin County, finding Glasgow to be a sexually violent

predator 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.

        Glasgow was convicted following a plea of nolo contendere1 to two

counts each of involuntary deviate sexual intercourse (IDSI),2 unlawful




____________________________________________


1 The term “convicted” includes conviction by entry of plea of guilty or nolo
contendere. See 42 Pa.C.S. § 9799.12.

2   18 Pa.C.S. § 3123(b).
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contact with a minor,3 incest,4 indecent assault (victim under age 13),5 and

corruption of minors.6 The victims, Glasgow’s two half-brothers, were ages

three and seven when the abuse began; the sexual abuse continued from

2009 to 2012, until the victims were ages five and nine, respectively. During

that time, Glasgow was 16 to 18 years old.

        The court sentenced Glasgow to an aggregate term of imprisonment of

one to two years, followed by a term of ten years’ probation. The

Commonwealth filed a notice of intent to have Glasgow classified as a sexually

violent predator (SVP), and, following a hearing on March 8, 2017 before the

Honorable John F. Cherry, the court determined Glasgow was a SVP.7

        On April 6, 2017, Glasgow filed a notice of appeal from the SVP

determination.      On May 1, 2017, he filed a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, in which he raised the following

claim:     whether the court’s classification of Glasgow as an SVP was

____________________________________________


3   18 Pa.C.S. § 6318(a)(6).

4   18 Pa.C.S. § 4302(b)(1).

5   18 Pa.C.S. § 3126(a)(7).

6   18 Pa.C.S. § 6301(a)(1)(ii).

7 Under SORNA, sexual offenses are classified in a three-tiered system. 42
Pa.C.S. § 9979.14(a)-(d). Individuals convicted of these offenses are required
to register with the Pennsylvania State Police as follows: for a Tier I offense
– 15 years; for a Tier II offense- 25 years; for a Tier III offense- lifetime. 42
Pa.C.S. § 9799.15(a). An SVP requires lifetime registration. See 42 Pa.C.S.
§§ 9799.14, 9799.15(d). See also 42 Pa.C.S. § 9799.15(a)(6) (“A sexually
violent predator shall register for the life of the individual.”).

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unsupported by the evidence where the evidence did not support the expert’s

opinion that he had a mental abnormality and antisocial personality disorder

based upon the diagnosis criteria set forth in the DSM-IV? In his brief on

appeal, Glasgow phrases his issue somewhat differently, stating that the

Commonwealth’s expert did not perform an independent risk assessment as

to the likelihood of re-offense and, instead, concluded essentially that “all

persons who have committed [] sexual offenses and who are diagnosed with

pedophilic disorder, ipso facto, are “likely” to reoffend[.]” Appellant’s Brief,

at 5. This discrepancy, however, is immaterial because, while this case was

on appeal, this Court decided Commonwealth v. Butler, 173 A.3d 1212,

1218    (Pa.   Super.   2017),   holding   section   9799.24(e)(3)   of   SORNA

unconstitutional as it “specifies clear and convincing evidence as the burden

of proof required to designate a convicted defendant as an SVP.”            We,

therefore, are compelled to sua sponte reverse an illegal aspect of Glasgow’s

sentence, namely, the March 8, 2017 order finding him an SVP.               See

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

requirements under SORNA were not civil in nature, but punitive).

       Under SORNA, an individual convicted of a sexually violent offense, such

as sexually corrupting minors in this case, must be evaluated by the Sexual

Offenders Assessment Board (“SOAB”). 42 Pa.C.S. § 9799.24(a). The SOAB

conducts a 15–factor analysis to determine if the individual should be

designated an SVP, 42 Pa.C.S. § 9799.24(b), then submits a report to the

prosecuting authority. 42 Pa.C.S. § 9799.24(d).          Upon praecipe by the

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prosecuting authority, the court schedules an SVP hearing.        42 Pa.C.S. §

9799.24(e)(1).   At the conclusion of that hearing, “the court [determines]

whether the Commonwealth has proved by clear and convincing evidence that

the individual is [an SVP].” 42 Pa.C.S. § 9799.24(e)(3) (emphasis added). It

is this last step in the process, section 9799.24(e)(3), that Butler found

unconstitutional in light of Muniz, supra. See Alleyne v. United States,

570 U.S. 99 (2013) (any fact that increases penalty for crime is element that

must be submitted to jury and found beyond reasonable doubt); Apprendi v.

New Jersey, 530 U.S. 466 (2000); cf. Commonwealth v. Lee, 935 A.2d

865, 880 (Pa. 2007) (if registration requirements are punishment, then facts

leading to registration requirements need to be found by fact-finder beyond

reasonable doubt).   The Butler Court stated:

     [O]ur Supreme Court’s holding that registration requirements
     under SORNA constitute a form of criminal punishment is
     dispositive of the issue presented in this case. In other words,
     since our Supreme Court has held that SORNA registration
     requirements are punitive or a criminal penalty to which
     individuals are exposed, then under Apprendi and Alleyne, a
     factual finding, such as whether a defendant has a “mental
     abnormality or personality disorder that makes [him or her] likely
     to engage in predatory sexually violent offenses [,]” 42 Pa.C.S.A.
     § 9799.12, that increases the length of registration must be found
     beyond a reasonable doubt by the chosen fact-finder. Section
     9799.24(e)(3) identifies the trial court as the finder of fact in all
     instances and specifies clear and convincing evidence as the
     burden of proof required to designate a convicted defendant as an
     SVP. Such a statutory scheme in the criminal context cannot
     withstand constitutional scrutiny. Accordingly, we are constrained
     to hold that section 9799.24(e)(3) is unconstitutional and [the
     a]ppellant's judgment of sentence, to the extent it required him
     to register as an SVP for life, was illegal. . . . Moreover, we are
     constrained to hold trial courts cannot designate convicted

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      defendants SVPs (nor may they hold SVP hearings) until our
      General Assembly enacts a constitutional designation mechanism.
      Instead, trial courts must notify a defendant that he or she is
      required to register for 15 years if he or she is convicted of a Tier
      I sexual offense, 25 years if he or she is convicted of a Tier II
      sexual offense, or life if he or she is convicted of a Tier III sexual
      offense.

Id. at 1218 (emphasis added).

      The trial court here conducted an SVP hearing and designated Glasgow

to be an SVP without making that necessary factual finding beyond a

reasonable doubt.    Accordingly, pursuant to Butler, we are constrained to

reverse the order finding that Glasgow is an SVP as such a determination is

no longer valid. We remand for the sole purpose of having the trial court issue

the appropriate notice under 42 Pa.C.S § 9799.23 as to Glasgow’s registration

requirements. Id. See also Commonwealth v. Campinelli, --- A.3d ---,

2018 WL 461515, *8 (filed January 17, 2018).

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

Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2018




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