J-S43026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGEL L. OQUENDO                           :
                                               :
                       Appellant               :     No. 368 MDA 2019

        Appeal from the Judgment of Sentence Entered February 6, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003007-2016


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY DUBOW, J.:                                  FILED MAY 05, 2020

        Appellant, Angel L. Oquendo, appeals from the Judgment of Sentence

rendered final on February 6, 2019, when the trial court entered an Order

designating Appellant a sexually violent predator (“SVP”).1 Appellant asserts

that the trial court imposed an illegal criminal sentence when it designated

him a SVP using the clear and convincing evidentiary standard. Our Supreme

Court has determined that the clear and convincing evidentiary standard is

constitutionally     permissible    because    the   registration,   notification,   and

counseling (“RNC”) requirements applicable to SVPs do not constitute criminal

punishment. Commonwealth v. Butler, --- A.3d ---, 25 WAP 2018, * 1, 16

(Pa. filed Mar. 26, 2020) (“Butler II”). Accordingly, we affirm.

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   See Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa. Super. 2016).
J-S43026-19



        The underlying facts are not in dispute. During the summer of 2014,

continuing into 2015, Appellant sexually abused his niece while she was in his

care. At the time of the abuse, Appellant’s niece was fourteen and then fifteen

years old; Appellant was approximately fifty-three years old.         See N.T.

Sentencing, 11/3/16, at 6-7.

        In November 2016, Appellant entered a negotiated guilty plea to

Statutory Sexual Assault and Endangering the Welfare of Children. 2          In

exchange for his plea, the trial court imposed a sentence of five to ten years

of incarceration, followed by seven years of probation. Id. at 12-13.

        The trial court notified Appellant that, as a convicted sexual offender,

he was required to register with the Pennsylvania State Police. See id. at 13;

Notification, 11/3/16.       In addition, the court ordered the State Sexual

Offenders Assessment Board (“SOAB”) to assess whether Appellant met the

statutory criteria of a SVP, including whether Appellant suffered from a mental

abnormality or personality disorder that makes it likely he will engage in

predatory sexually violent offenses. See 42 Pa.C.S. §§ 9799.12, 9799.24.

After reviewing the expert reports submitted by the parties, on February 6,

2019, the court designated Appellant a SVP. Order, 2/6/19.3
____________________________________________


2   18 Pa.C.S. §§ 3122.1(b), 4304(a)(1), respectively.

3 There was a considerable delay between Appellant’s plea and the court’s
designation of him as a SVP. We note, however, that Appellant waived his
right to a pre-trial assessment by the SOAB and also waived his right to attend
a SVP hearing. Further, this Court had suspended SVP assessments pending
legislative amendments to ensure the constitutionality of the process. See
infra.

                                           -2-
J-S43026-19



       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The trial court issued a responsive Opinion.

       Appellant raises the following issue on appeal:

       Whether the sentencing court erred as a matter of law and
       imposed an illegal increased criminal sentence of registration and
       counseling pursuant to the Sex Offender Registration and
       Notification Act [SORNA] . . . when the court, without a jury, found
       the Commonwealth had met its burden of proving by clear and
       convincing evidence that Appellant is a [SVP] rather than requiring
       a jury to make this finding beyond a reasonable doubt. See
       Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
       [(“Butler I”)] (holding that because SORNA is punitive, Apprendi
       and Alleyne[4] require that the factual finding of whether a
       defendant is a[] SVP must be found beyond a reasonable doubt
       by the jury).

Appellant’s Br. at 6.

       Appellant asserts that the trial court imposed an illegal sentence when

it designated him a SVP based upon clear and convincing evidence. Id. at 11

(citing Butler I).

       In Butler I, this Court determined that, pursuant to Commonwealth

v. Muniz, 164 A.3d 1189 (Pa. 2017), a SVP-designation triggered enhanced

RNC requirements constituting punishment.         173 A.3d at 1215-16.        We

reasoned that, as punishment, a trial court could not impose these enhanced

requirements absent proof beyond a reasonable doubt that the sexual offender

was likely to engage in predatory sexual offenses.       Id. at 1217-18 (citing

Apprendi and Alleyne).

____________________________________________


4 Apprendi v. United States, 530 U.S. 466 (2000); Alleyne v. United
States, 570 U.S. 99 (2013).

                                           -3-
J-S43026-19



      However, the Pennsylvania Supreme Court recently reversed our

determination. Butler II, supra, at * 1, 16. The Court distinguished the

RNC requirements applicable to all sexual offenders from those enhanced

requirements applicable only to SVPs and concluded that the latter were not

punitive in effect because the government’s primary concern was to protect

the public from those individuals found to be “dangerously mentally ill.” Id.

at * 15. The Supreme Court held, therefore, that it remains constitutionally

permissible to designate an individual a SVP based upon clear and convincing

evidence. Id. at * 1, 16.

      We are bound by this recent precedent.       See Commonwealth v.

Morris, 958 A.2d 569, 580 n.1 (Pa. Super. 2008) (en banc). Accordingly,

Appellant’s claim merits no relief.

      Judgment of Sentence affirmed.

      President Judge Emeritus Stevens joins the Judgment Order.

      President Judge Emeritus Gantman did not participate.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/05/2020




                                      -4-
