J-S46007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL K. KELLY                           :
                                               :
                       Appellant               :   No. 147 EDA 2019

       Appeal from the Judgment of Sentence Entered December 5, 2018
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0003204-2015


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                               FILED MAY 01, 2020

        Michael K. Kelly appeals from the judgment of sentence entered on

December 5, 2018, following his guilty plea to 50 counts of sexual abuse of

children (possession of child pornography).1 He claims his classification as a

sexually violent predator (“SVP”) pursuant to Subchapter H of the

Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA

II”)2 is unconstitutional in light of Commonwealth v. Muniz, 164 A.3d 1189

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

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*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. § 6312(d).

2 See 42 Pa.C.S.A. §§ 9799.10-9799.41. Subchapter H imposed certain
obligations on offenders who committed offenses on or after December 20,
2012. Kelly committed the offenses on April 13, 2015, when he was found in
possession of the child pornography.
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(“Butler I”). Additionally, he challenges the sufficiency of the SVP finding.

Based on the following, we affirm.

       On October 15, 2015, Kelly entered an open guilty plea to possessing

approximately 50 videos or images of children under 13 years of age engaging

in sexual activity. At the June 26, 2018 SVP hearing, Dr. Jennifer Hahn, Ph.D.,

a member of the Pennsylvania Sex Offender Assessment Board (“SOAB”),

testified that Kelly suffered from a pedophilic disorder, which would make him

likely to engage in predatory sexually violent acts.

       Subsequently, at sentencing, the trial court designated Kelly an SVP

based on a clear and convincing evidence standard. See N.T., 12/5/2018, at

31. Kelly was notified of his registration requirements as an SVP under

Subchapter H. See id. at 32-33. The trial court then sentenced him to not less

than one, nor more than four years’ incarceration, followed by a term of ten

years’ probation. Kelly did not file post-sentence motions, but did file a timely

notice of appeal.3



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3The trial court imposed Kelly’s judgment of sentence on December 5, 2018.
Therefore, he had until January 4, 2019 to file a timely notice of appeal. Kelly’s
pro se notice of appeal was docketed on January 7, 2019; however, it was
dated January 4, 2019. Accordingly, pursuant to the prisoner mailbox rule it
was timely. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).
Furthermore, we note that Kelly, though represented by counsel, filed his
notice of appeal pro se. “This Court is required to docket a pro se notice of
appeal despite Appellant being represented by counsel.” Commonwealth v.
Williams, 151 A.3d 621, 624 (Pa. Super. 2016). Consequently, we hold that
Kelly’s notice of appeal was timely.


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       In his first issue, Kelly argues his designation as an SVP is

unconstitutional following Muniz and Butler I. Kelly asserts the “paucity of

changes found in Act 29 do nothing to make the SVP provisions less punitive.”

Appellant’s Brief, at 14. Consequently, he contends that because the SVP

designation provisions still provide that the trial court determine SVP status

by clear and convincing evidence, his SVP designation is unconstitutional and

must be vacated.

       A challenge to the legality of a sentence is a question of law. Therefore,

our standard of review is de novo, and our scope of review is plenary. See

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).

       At the time when Kelly filed his brief, the state of case law concerning

SORNA and SVPs was in flux. In Muniz, the Pennsylvania Supreme Court

concluded the registration requirements of SORNA I,4 as applied retroactively,

were punitive pursuant to the seven-factor test set forth by the United States

Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963),

and therefore unconstitutional under the ex post facto clauses of the United

States and Pennsylvania Constitutions. See Muniz, 164 A.3d at 1223.

       Subsequently, in Butler I, a panel of this Court, relying upon Muniz,

concluded SORNA I’s statutory mechanism for designating a defendant as an

SVP, as set forth in 42 Pa.C.S. § 9799.24(e)(3), was “constitutionally flawed”


____________________________________________


4 Act of Dec. 20, 2011, P.L. 446, No. 111, as amended, 42 Pa.C.S. §§ 9799.10
to 9799.41 (effective Dec. 20, 2012).

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because it permitted a trial court to make the determination based upon clear

and convincing evidence. Butler I, 173 A.3d at 1218. The Butler I Court

held: “[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.” Id.

Accordingly, the Butler I panel held “trial courts may no longer designate

convicted defendants as SVPs, nor may they hold SVP hearings, until our

General Assembly enacts a constitutional designation mechanism.” Id.

Furthermore, the Butler I Court determined lifetime registration, notification,

and counseling requirements (“RNC requirements”) applicable to SVPs,

pursuant to 42 Pa.C.S.A. § 9799.15, 9799.16, 9799.26, 9799.27, and

9799.36, constituted increased criminal punishment that were in violation of

Alleyne/Apprendi.5

       In response to Muniz and Butler I, the Pennsylvania General Assembly

and the Governor of Pennsylvania enacted certain legislation to address the

SORNA concerns. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”);6 Act of




____________________________________________


5 Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000).
6 See 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75.




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June 12, 2018, P.L. 1952, No. 29 (“Act 29”).7 Act 10 and Act 29 are collectively

known as “SORNA II.”8

        However, Butler I was recently reversed by the Pennsylvania Supreme

Court. See Commonwealth v. Butler, __ A.3d __ [25 WAP 2018] (Pa., filed

March 26, 2020) (“Butler II”).

        In reversing, the Butler II Court opined:

        SVPs are different from the non-SVP SORNA registrants at issue
        in Muniz due to heightened public safety concerns based on the
        determination SVPs have “a mental abnormality or personality
        disorder that makes the individual likely to engage in predatory
        sexually violent offenses.” 42 Pa.C.S. §9799.12. Therefore, a
        simple extrapolation from the analysis in Muniz is insufficient to
        determine whether the RNC requirements constitute criminal
        punishment.

Butler II, __ A.3d __, __ [25 WAP 2018, *30-31] (Pa., filed March 26, 2020).

        The Supreme Court conducted an examination of the RNC requirements

as applicable to SVPs using the two-part inquiry employed in both

Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (“Williams II”)9 and

Muniz.10 First, the Butler II Court determined the General Assembly’s

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7   See Commonwealth v. Alston, 212 A.3d 526, 529 (Pa. Super. 2019).

8 See Commonwealth v. Lee Andrew Moore, 222 A.3d 16 (Pa. Super.
2019).

9 In Williams II, the Pennsylvania Supreme Court determined the RNC
requirements of SORNA’s predecessor, Megan’s Law II, were constitutional
and not intended to be criminal punishment in nature.

10   The two-part inquiry is set forth in Muniz, 164 A.3d at 1208.



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intention with respect to Subchapter H was nonpunitive in nature. Butler II,

__ A.3d __, __ [25 WAP 2018, *31-34] (Pa., filed March 26, 2020). Next, the

Court considered the Mendoza-Martinez factors11 and determined the

punitive factors did not outweigh the nonpunitive ones. Id., at *34-44. The

Court held:

       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 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 *44 (citation omitted; emphasis added). The Court further determined

“the   procedure      for   designating        individuals   as   SVPs   under   Section

9799.24(e)(3) is not subject to the requirements for Apprendi and Alleyne

and remains constitutionally permissible.” Id., at *2.

       Turning the present matter, in light of the Supreme Court’s decision in

Butler II, we conclude the trial court did not err in designating Kelly an SVP.

Accordingly, Kelly’s first argument fails.


____________________________________________



11See Williams II, 832 A.2d at 973 (describing the Mendoza-Martinez
seven-factor balancing test).

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      In his second issue, Kelly challenges the sufficiency of the evidence to

support the trial court’s determination that he is an SVP. Specifically, he claims

the Commonwealth did not prove by clear and convincing evidence that he

was likely to engage in future predatory sexually violent offenses. We

disagree.

      “[I]n   reviewing   the   sufficiency   of   the   evidence   regarding   the

determination of SVP status, we will reverse the trial court only if the

Commonwealth has not presented clear and convincing evidence sufficient to

enable the trial court to determine that each element required by the statute

has been satisfied.” Commonwealth v. Moody, 843 A.2d 402, 408 (Pa.

Super. 2004) (citation omitted).

      Clear and convincing evidence means that witnesses must be
      found to be credible, that the facts to which they testify are
      distinctly remembered and the details thereof narrated exactly
      and in due order, and that their testimony is so clear, direct,
      weighty, and convincing as to enable the jury to come to a clear
      conviction, without hesitancy, of the truth of the precise facts in
      issue.

Id. (citation and internal quotation marks omitted). An SVP is defined as “an

individual who committed a sexually violent offense” and “who is determined

to be a sexually violent predator ... due to a mental abnormality or personality

disorder that makes the individual likely to engage in predatory sexually

violent offenses.” 42 Pa.C.S.A. § 9799.12.

      There is no question that Kelly was convicted of sexually violent

offenses; therefore, he only challenges the trial court’s finding that he suffers


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from a mental disorder that makes him likely to re-offend. Subsection H sets

out several areas that need to be considered when making a sexually violent

predator determination:

     (1)     Facts of the current offense, including:

           (i)    Whether the offense involved multiple victims.

           (ii)   Whether the individual exceeded the means
                  necessary to achieve the offense.

           (iii) The nature of the sexual contact with the victim.

           (iv) Relationship of the individual to the victim.

           (v)    Age of the victim.

           (vi) Whether the offense included a display of unusual
                cruelty by the individual during the commission of
                the crime.

           (vii) The mental capacity of the victim.

     (2)     Prior offense history, including:

            (i)   The individual’s prior criminal record.

            (ii) Whether the      individual   completed     any   prior
                 sentences.

            (iii) Whether the individual participated in available
                  programs for sexual offenders.

     (3)     Characteristics of the individual, including:

            (i)   Age.

            (ii) Use of illegal drugs.

            (iii) Any mental illness, mental disability or mental
                  abnormality.


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           (iv) Behavioral characteristics that contribute to the
                individual’s conduct.

      (4) Factors that are supported in a sexual offender assessment
      field as criteria reasonably related to the risk of reoffense.

42 Pa.C.S.A. § 9799.24(b).

      Here, the Commonwealth presented the testimony of Dr. Hahn, a

member of the SOAB. She testified that Kelly met the criteria for a mental

abnormality with respect to sexually deviate interests and sexual interest in

prepubescent children. See N.T., 6/26/2018, at 46. She further opined he met

the full criteria for pedophilic disorder—sexual interest in prepubescent

children. See id.

      Dr. Hahn explained that while pedophilic disorder can be managed, it is

a lifetime chronic condition that cannot be cured. See id., at 46-47. Further,

the expert stated, “Sexually deviate interests are the single strongest

predictor of sexual reoffending. People with pedophilic disorder are known to

be likely to engage in predatory sexually violent acts.” Id., at 48.

      Dr. Hahn testified that she considered the factors set forth in Subsection

H noting that here, there were multiple victims, all strangers generally aged

eight to 14, and though the mental capacity of the victims was not fully known,

they were obviously minors and unable to give consent. See id., at 50-53.

She recognized there was no unusual cruelty presented and that Kelly had no

prior offense history. See id., at 52-53.




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      Dr. Hahn also considered that Kelly was 42 years old when he was

arrested and had been viewing child pornography since at least age 25. See

id., at 53. He did not have a history of substance abuse. See id., at 53-54.

He did meet the criteria for pedophilic disorder. See id., at 54. Finally, she

noted Kelly has had no age appropriate sexual relationships in over 20 years.

See id. at 51-54. Ultimately, given the totality of the circumstances, Dr. Hahn

concluded that, in her expert opinion, Kelly was an SVP. See id. at 55.

      We conclude this evidence of record was sufficiently clear and convincing

to allow the trial court to find that Kelly is an SVP. Accordingly, his second

issue does not merit relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2020




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