J-A10040-19

                                   2019 PA Super 178



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JAMAL ALSTON                               :
                                               :
                       Appellant               :       No. 1505 EDA 2018

          Appeal from the Judgment of Sentence September 23, 2016
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0007162-2013


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

OPINION BY GANTMAN, P.J.E.:                               FILED JUNE 06, 2019

       Appellant, Jamal Alston, appeals nunc pro tunc from the judgment of

sentence entered in the Montgomery County Court of Common Pleas, following

his jury trial convictions for three counts of statutory sexual assault, two

counts each of rape of a child and involuntary deviate sexual intercourse

(“IDSI”) of a child less than 16, and one count each of indecent assault of a

child less than 13, sexual abuse of children, criminal use of a communication

facility, unlawful contact with a minor, and corruption of minors.1 We affirm

in part, vacate in part, and remand with instructions.

       The relevant facts and procedural history of this case are as follows.

Appellant sexually abused Victim from May 28, 2009 to May 1, 2013.

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1 18 Pa.C.S.A. §§ 3122.1(a), 3121(c), 3123(a)(7), 3126(a)(7), 6312(b),
7512(a), 6318(a)(1), and 6301(a)(1), respectively.
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          The three-day jury trial began on February 10, 2016. The
          jury heard evidence of the ongoing sexual relationship that
          [Appellant] initiated with [the] 11 year-old [Victim], and
          continued through the time [Victim] was 15 years old, when
          the abuse was uncovered by [Victim’s] sister. At the
          conclusion of the trial, the jury found [Appellant] guilty of
          the aforementioned offenses. Sentencing and a Sexually
          Violent Predator (“SVP”) hearing were held on September
          23, 2016.      [Appellant] was found to be [an] SVP.[2]
          [Appellant] was also sentenced to an aggregate term of 15
          to 40 years’ incarceration. A post-sentence motion was filed
          and denied. A direct appeal was not filed.

          On August 22, 2017, [Appellant] filed a pro se petition
          seeking post-conviction relief pursuant to the Post-
          Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. PCRA
          counsel was appointed, and ultimately relief was granted,
          reinstating [Appellant’s] direct appeal right nunc pro tunc
          on May 8, 2018. A notice of appeal was thereafter timely
          filed.   In accordance with Pa.R.A.P. 1925, [the c]ourt
          ordered [Appellant] to submit a concise statement of errors
          complained of on appeal. After an extension of time was
          granted, a statement was filed.

(Trial Court Opinion, filed July 30, 2018, at 2).

       Appellant raises the following issue for our review:

          DID THE TRIAL COURT IMPROPERLY IMPOSE A LIFETIME
          REPORTING REQUIREMENT ON [APPELLANT] PURSUANT TO
          [SORNA], 42 PA.C.S. §§ 9799.10 TO 9799.41?

(Appellant’s Brief at 2).

       Appellant argues the court unconstitutionally designated him an SVP by

clear and convincing evidence, instead of proof beyond a reasonable doubt.


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2 Rape of a child and IDSI with a person less than 16 are both Tier III offenses
under the Sexual Offender Registration and Notification Act (“SORNA”), which
require an offender to register and report for life. See 42 Pa.C.S.A. §§
9799.14(d), 9799.15(a)(3).

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Appellant contends his SVP designation amounts to an illegal sentence

pursuant to Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017),

cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018), and

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

appeal granted, ___ Pa. ___, 190 A.3d 581 (2018).         Appellant avers the

application of Subchapter H of Act 29 to him on remand would also be

unconstitutional. Appellant posits Subchapter H, which applies to offenders

who committed offenses on or after the effective date of SORNA, mirrors the

version of SORNA found unconstitutional in Muniz. Appellant reasons the jury

did not specifically find the date of the offenses, so the court cannot apply

Subchapter H to him on remand; instead the court should apply Subchapter

I. Appellant concludes this Court should vacate his SVP status and SORNA

registration requirements, and remand for the trial court to impose

registration requirements under Subchapter I. We agree.

     A challenge to the legality of sentence is a question of law; our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014), appeal denied, 632 Pa. 690,

121 A.3d 494 (2015).

     Our Supreme Court declared SORNA unconstitutional, to the extent it

violates the ex post facto clauses of both the United States and Pennsylvania

Constitutions. Muniz, supra. The Muniz court determined SORNA’s purpose

was punitive in effect, despite the General Assembly’s stated civil remedial


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purpose. Id. at 748-49, 164 A.2d at 1218. SORNA also violates the ex post

facto clause of the Pennsylvania Constitution because it places a unique

burden on the right to reputation and undermines the finality of sentences by

demanding more severe registration requirements. Id. at 756-57, 164 A.2d

at 1223.     The effective date of SORNA, December 20, 2012, controls for

purposes of an ex post facto analysis. Commonwealth v. Lippincott, ___

A.3d ___ (Pa.Super. 2019) (en banc).

       In light of Muniz, this Court also held: “[U]nder Apprendi [v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] and Alleyne

[United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)] a

factual finding, such as whether a defendant has a mental abnormality or

personality disorder that makes him…likely to engage in predatory sexually

violent offenses, that increases the length of registration must be found

beyond a reasonable doubt by the chosen fact-finder.” Butler, supra at 173

(addressing SVP status sua sponte as illegal sentence) (internal quotations

and citations omitted).       See also Alleyne, supra (holding any fact that

increases mandatory minimum sentence for crime is considered element of

crime to be submitted to factfinder and found beyond reasonable doubt). This

Court further held: “Section 9799.24(e)(3) of SORNA[3] violates the federal


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3 See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the hearing prior to
sentencing, the court shall determine whether the Commonwealth has proved
by clear and convincing evidence that the individual is a sexually violent
predator”).

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and state constitutions because it increases the criminal penalty to which a

defendant is exposed without the chosen fact-finder making the necessary

factual findings beyond a reasonable doubt.” Id. at 1218. The Butler Court

concluded that trial courts can no longer designate convicted defendants as

SVPs or hold SVP hearings, “until [the] General Assembly enacts a

constitutional designation mechanism.” Id. (vacating appellant’s SVP status

and remanding to trial court for sole purpose of issuing appropriate notice

under 42 Pa.C.S.A. § 9799.23, governing reporting requirements for sex

offenders, as to appellant’s registration obligation).4

       Following Muniz and Butler, the Pennsylvania General Assembly

enacted legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No.

10 (“Act 10”). Act 10 amended several provisions of SORNA, and also added

several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In

addition, the Governor of Pennsylvania signed new legislation striking the Act

10 amendments and reenacting several SORNA provisions, effective June 12,

2018. See Act of June 12, 2018, P.L. 1952, No. 29 (“Act 29”). Through Act

10, as amended in Act 29, the General Assembly created Subchapter I, which

addresses sexual offenders who committed an offense on or after April 22,



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4 The Pennsylvania Supreme Court has granted review of Butler. Unless and
until our Supreme Court rules otherwise, however, Butler remains binding
authority. See Commonwealth v. Martin, ___ A.3d ___ (Pa.Super. 2019)
(stating this Court is bound by existing precedent and continues to follow
controlling precedent unless it is overturned by our Supreme Court).

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1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75.

Subchapter I contains less stringent reporting requirements than Subchapter

H, which applies to offenders who committed an offense on or after December

20, 2012. See 42 Pa.C.S.A. §§ 9799.13, 9799.54.

      Instantly, Appellant committed sexual offenses between May 28, 2009,

and May 1, 2013.      A jury convicted Appellant of three counts of statutory

sexual assault, two counts each of rape of a child and IDSI of a child less than

16, and one count each of five other offenses. The court sentenced Appellant

to an aggregate term of 15 to 40 years’ imprisonment; during the sentencing

hearing, the court also designated Appellant as an SVP and required Appellant

to register and report for life under SORNA.

      Here, the court designated Appellant an SVP by clear and convincing

evidence under Section 9799.24(e)(3), which violates the federal and state

constitutions. See Butler, supra. Therefore, we must vacate Appellant’s

SVP status. See id.

      Further, the jury did not specifically find the dates when Appellant

committed his offenses. Appellant’s offenses straddle the operative dates for

Subchapters H and I. Without a specific finding by the chosen factfinder of

when the offenses occurred, Appellant is entitled to the lowest punishment.

See 42 Pa.C.S.A. §§ 9799.13, 9799.54; Alleyne, supra; Muniz, supra. Cf.

Commonwealth v. Weimer, 167 A.3d 78 (Pa.Super. 2017), appeal denied,

644 Pa. 336, 176 A.3d 838 (2017) (holding in context of unlawful contact with


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minor conviction, if jury does not specifically find most serious underlying

offense for which defendant contacted minor, court must use lowest offense

grading for purposes of sentencing). Therefore, on remand, the court must

impose SORNA requirements under Subchapter I.

      Based upon the foregoing, we hold that Appellant’s SVP designation is

unconstitutional pursuant to Butler and must be vacated. We further hold

that when an appellant’s offenses straddle the effective dates of Subchapters

H and I of SORNA, he is entitled to the lower reporting requirements of

Subchapter I, absent a specific finding of when the offenses related to the

convictions actually occurred.    Accordingly, we vacate that portion of the

judgment of sentence regarding Appellant’s SVP status and SORNA reporting

requirements, and we remand the case to the trial court to instruct Appellant

on his proper registration and reporting requirements.       We affirm the

judgment of sentence in all other respects.

      Judgment of sentence affirmed in part and vacated in part solely as to

SVP status and SORNA reporting requirements; case remanded with

instructions. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/19

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