J-S16010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RALPH EDWARD CRAIG, JR.                    :
                                               :
                       Appellant               :   No. 1283 MDA 2018

                   Appeal from the Order Entered July 5, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0006406-2017

BEFORE: OTT, J.*, MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                      FILED: APRIL 14, 2020

       Ralph Edward Craig, Jr. (Appellant) appeals from the order designating

him a sexually violent predator (SVP) under the Pennsylvania Sexual Offender

Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41.

For the reasons that follow, we affirm.1

       Appellant was convicted of two counts of sexual assault2 arising from an

incident that occurred in the Lancaster County Prison on September 26, 2017.

On February 28, 2018, Appellant entered a nolo contendere plea. The same

day, the trial court sentenced Appellant to 8 to 20 years of incarceration. The

court also ordered Appellant to undergo an evaluation by the Sexual Offenders

Assessment Board (SOAB).

____________________________________________


1   This case was reassigned to this author on October 18, 2019.

2   18 Pa.C.S.A. § 3124.1.


*Judge Ott did not participate in this decision.
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       On July 3, 2018, Appellant filed a motion to vacate the order for an

SOAB assessment.            Appellant asserted that this Court’s decision in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal

granted, 190 A.3d 581 (Pa. 2018), precluded the trial court from designating

him as an SVP. Before ruling on Appellant’s motion, the trial court on July 5,

2018 convened a hearing on the SOAB’s assessment. At the conclusion of the

hearing, the trial court entered the underlying order designating Appellant an

SVP. On July 9, 2018, the trial court formally denied Appellant’s motion to

vacate the order for an SOAB assessment. On August 3, 2018, Appellant filed

this timely appeal.3

       Appellant presents the following issue for our review:

       Did the trial court err in finding that [Appellant] could be
       designated a sexually violent predator, where SORNA II
       constitutes criminal punishment, thus requiring that the
       determination of whether a defendant is a sexually violent
       predator must be made by the defendant’s chosen fact-finder
       beyond a reasonable doubt?

Appellant’s Brief at 4 (unnumbered).

       In his sole issue, Appellant argues that his SVP designation is

unconstitutional. Appellant relies primarily on our Supreme Court’s decision

in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and this Court’s



____________________________________________


3  On August 6, 2018, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). On August 27, 2018, Appellant filed a timely
Rule 1925(b) statement.

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subsequent decision in Butler. Appellant asserts that these cases hold that

the current procedure for SVP designation is unconstitutional. In light of our

Supreme Court’s recent decision in Commonwealth v. Butler, 25 WAP 2018,

___ A.3d ___ (Pa. Mar. 26, 2020), we conclude that Appellant’s SVP

designation was proper.

      At the outset, we acknowledge that a challenge to the SORNA

registration   requirements   presents    a   legality   of   sentence   issue.

Commonwealth v. Horning, 193 A.3d 411, 414 (Pa. Super. 2018).

“Because [these] issue[s] present[] a question of law, our standard of review

is de novo and our scope of review is plenary.” Id.

      “The Pennsylvania General Assembly passed SORNA as Act 111 of 2011,

signed December 20, 2011. In so doing, it provided for the expiration of prior

registration requirements, commonly referred to as Megan’s Law, 42 Pa.C.S.A.

§§ 9791–9799.9, as of December 20, 2012, and for the effectiveness of

SORNA on the same date.” In re J.B., 107 A.3d 1, 3 (Pa. 2014). In Muniz,

our Supreme Court addressed the constitutionality of SORNA’s sex offender

registration and reporting requirements. The Court concluded that retroactive

application of SORNA’s registration and reporting requirements violated ex

post facto prohibitions under both the United States and Pennsylvania

Constitutions. Muniz, 164 A.3d at 1223. The Muniz Court reasoned that

despite the legislature’s characterization of SORNA’s provisions as civil, its

registration and reporting requirements were in fact punitive, and therefore


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criminal in nature. Id. at 1196, 1218. Consequently, as criminal punishment,

the Supreme Court determined that trial courts may not apply SORNA’s

registration and reporting provisions to criminal defendants for offenses

committed prior to SORNA’s effective date.       See id. at 1218; see also

Commonwealth v. Lippincott, 208 A.3d 143, 150 (Pa. Super. 2019) (en

banc) (explaining that “application of SORNA to sex offenders for offenses

committed before its effective date violates the ex post facto clauses of the

United States and Pennsylvania Constitutions”). While Muniz is not a majority

decision, the concurring opinion joins the Supreme Court’s lead opinion to the

extent it concludes that SORNA is punitive and that courts cannot retroactively

apply registration and reporting provisions to criminal defendants.         See

Muniz, 164 A.3d at 1232-33 (Wecht, J., concurring).

      This   Court   subsequently     applied   Muniz     in   addressing   the

constitutionality of SORNA’s SVP designation procedures in Butler.           In

addressing the constitutionality of Pennsylvania’s procedural mechanism for

SVP designation, this Court in Butler first recognized that “[i]n [Apprendi v.

New Jersey, 530 U.S. 466 (2013)], the Supreme Court of the United States

held that other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Butler, 173

A.3d at 1216 (quoting Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa.

Super. 2014)). We further recognized that in Alleyne v. United States, 570


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U.S. 99 (2013), “the [Supreme Court of the United States] held that any fact

that increases the mandatory minimum sentence for a crime is an element

that must be submitted to the jury and found beyond a reasonable doubt.”

Butler, 173 A.3d at 1217 (quoting Conaway, 105 A.3d at 761).

       Mindful of Apprendi, Alleyne, and Muniz, this Court in Butler held

that   Pennsylvania’s   statutory   procedure    for    SVP     designation    was

unconstitutional. Id. at 1217-18. We reasoned:

           [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 Appellant’s judgment of
       sentence, to the extent it required him to register as an SVP for
       life, was illegal.

Id. at 1217-18 (emphasis added).

       The   Pennsylvania   Generally   Assembly       sought   to   resolve   the

constitutional defects of SORNA by passing legislation to replace the

invalidated provisions addressed by Muniz and Butler (“Act 10” on February

21, 2018, amended and reenacted as “Act 29” on June 12, 2018, hereinafter

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SORNA II).4      Notably, SORNA II did not amend the SVP procedures of 42

Pa.C.S.A. § 9799.24, which was the specific statute pursuant to which the trial

court, in this case, designated Appellant an SVP. See Trial Court Opinion,

10/3/18, at 1.

       On March 26, 2020, however, the Pennsylvania Supreme Court reversed

this Court’s Butler decision. See Butler, 25 WAP 2018 at 30-31. Specifically,

our Supreme Court held that the registration, notification, and reporting (RNC)

requirements “applicable to SVPs do not constitute criminal punishment,”

and therefore, SORNA’s procedural mechanism for designating sex offenders

as SVPs set forth in Section 9799.24 does not violate “the principles set forth

in Apprendi or Alleyne[.]” Id. at 30-31 (citing Commonwealth v. Lee,

935 A.2d 865, 880 (Pa. 2007) (Apprendi claims cannot succeed where

sanctions do not constitute punishment)). The Supreme Court explained:

           Although we recognize the RNC requirements impose
       affirmative disabilities or restraints upon SVPs, and those
       requirements have been historically regarded as punishment, our
       conclusions in this regard are not dispositive on the larger
       question of whether the statutory requirements constitute
       criminal punishment. This is especially so where the government
       in this case is concerned with protecting the public, through
       counseling and public notification rather than deterrent threats,
       not from those who have been convicted of certain enumerated
       crimes, but instead from those who have been found to be
____________________________________________


4 The General Assembly enacted SORNA on December 20, 2011. SORNA
became effective on December 20, 2012. The General Assembly amended
SORNA on February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa.
2018), Act 10 of 2018. The Legislature further amended SORNA on June 12,
2018, by H.B. 1952, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018.


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      dangerously mentally ill. Under the circumstances, and also
      because we do not find the RNC requirements to be excessive in
      light of the heightened public safety concerns attendant to SVPs,
      we conclude the RNC requirements do not constitute criminal
      punishment.

Id. at 30 (citation omitted).

      Given our Supreme Court’s recent pronouncement in Butler, we

conclude that the procedure by which the trial court imposed Appellant’s SVP

designation in this case was constitutional. See id. Accordingly, we affirm

the trial court’s July 5, 2018 order that designated him as an SVP.

      Order affirmed.

      Judge Musmanno joins the memorandum.

      Judge Ott did not participate in the consideration or decision of this case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/14/2020




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