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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MARK LEE TITUS                          :
                                         :
                   Appellant             :   No. 231 MDA 2019

    Appeal from the Judgment of Sentence Entered September 20, 2018
              In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0000621-2017

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                          FILED MAY 22, 2020

     Mark Lee Titus appeals from the judgment of sentence entered on

September 20, 2018, after he pled guilty to one count of attempted rape by

forcible compulsion, see 18 Pa.C.S.A. § 901(a), and one count of aggravated

assault, see 18 Pa.C.S.A. § 3126(a)(1). On appeal, Titus challenges his post-

sentencing classification as a sexually violent predator (“SVP”) pursuant to

Subchapter H of the Pennsylvania’s Sexual Offender Registration and

Notification Act (“SORNA II”), see 42 Pa.C.S.A. § 9799.10 et seq., arguing

the manner that he was found to be an SVP is unconstitutional under our

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

(“Butler I”), as well as the United States Supreme Court opinions Apprendi

v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570

U.S. 99 (2013). As we are bound by our Supreme Court’s recent holding in
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Commonwealth v. Butler, __ A.3d __, 25 WAP 2018, 2020 WL 1466299

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

       Following his negotiated plea but before sentencing, the trial court

directed Titus to undergo an evaluation by the Sexual Offenders Assessment

Board (“SOAB”). After hearing from the SOAB evaluator, the court sentenced

Titus to 156 months to 312 months of incarceration and additionally

designated him as both a Tier III sexual offender and SVP.

      Titus filed a post-sentence motion, which was denied by operation of

law. Upon this denial, Titus then filed a timely notice of appeal. Both Titus and

the trial court have complied with the dictates of Pa.R.A.P. 1925. As such,

Titus’s appeal is properly before our Court.

      In his brief, Titus raises one issue for our review:

      Does SORNA II contravene the 5th, 6th, and 14th Amendments of
      the United States Constitution and Pennsylvania Constitution
      because Subchapter H’s SVP determination constitutes criminal
      punishment and is adjudicated without appropriate due process
      requiring that each fact necessary to support the imposition of
      designation of Titus as a SVP be submitted to a fact finder or jury
      and proven beyond a reasonable doubt?

Appellant’s Brief, at 2.

      Titus contends that his designation as an SVP is unconstitutional

following our Supreme Court’s Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017), decision when it is read in conjunction with our holding in Butler

I. Although Muniz addressed an earlier iteration of SORNA (“SORNA I”), it

held that “SORNA’s registration provisions constitute punishment[.]” 164 A.3d
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at 1193. Titus, tracking the language of this pronouncement, states that the

newly enacted SORNA II’s “Subchapter H remains nearly identical to [the]

original SORNA and has not changed at all regarding designation as an SVP.”

Appellant’s Brief, at 5. Titus concludes by asserting that “SORNA II as applied

to those who may be or are designated as SVP remains punitive or

punishment.” Id.

      Titus bolsters his argument that SORNA registration is punishment with

this Court’s decision in Butler I. The Butler I panel concluded that pursuant

to Muniz, a determination that a defendant was an SVP under SORNA I

“increase[d] the criminal penalty to which a defendant [was] exposed without

the chosen fact-finder making the necessary factual findings beyond a

reasonable doubt.” Id. Accordingly, the panel held that “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. Titus asks us to apply Butler I to his case because he was

designated an SVP by clear and convincing evidence rather than evidence that

has been considered beyond a reasonable doubt.

      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).

      Titus is correct that Muniz established that SORNA I’s registration

requirements, as applied retroactively, were punitive and constituted
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punishment. In reaching that decision, the Court in Muniz employed the

seven-factor test set forth by the United States Supreme Court in Kennedy

v. Mendoza-Martinez, 372 U.S. 144 (1963), and found that those

registration requirements were violative of the ex post facto clauses of the

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

      Similarly, Titus is also right that Butler I held that a necessary corollary

to Muniz was that an SVP determination required constitutional procedural

safeguards. In so finding, Butler I relied heavily on the United States

Supreme Court cases Apprendi and Alleyne. See Butler I, 173 A.3d at

1216-18. To summarize, Apprendi found that “it [was] unconstitutional for a

legislature to remove from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal defendant is exposed.” Id.,

at 1216. Moreover, “such facts must be established by proof beyond a

reasonable doubt.” Id., at 1217. Subsequently, Alleyne mandated 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.”

Id.

      The panel in Butler I emphasized that “Apprendi and Alleyne apply

to all types of punishment, not just imprisonment.” Id. Therefore, if any

factual determination results in an increased punishment-based sentence,

that finding must be adjudicated beyond a reasonable doubt.
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      In utilizing the precepts contained within Apprendi and Alleyne,

Butler I also illuminated our Supreme Court’s determination in Muniz,

wherein the Court designated the registration requirements under SORNA to

be a form of criminal punishment. See id. Accordingly, Butler I made the

connection that “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 … that increases

the length of registration must be found beyond a reasonable doubt[.]” Id.

      In response, the General Assembly enacted responsive legislation

known collectively as SORNA II, which our Governor thereafter signed into

law. See Act of Feb. 21 2018, P.L. 27, No. 10; Act of June 12, 2018, P.L.

1952, No. 29. The legislation explicitly notes that it was passed in response to

Muniz and Butler I.

      Recently, however, our Supreme Court reviewed Butler I and reversed

much of its legal analysis and underpinnings. Butler II, __ A.3d __, 25 WAP

2018, 2020 WL 1466299 (Pa., filed March 26, 2020). In distinguishing itself

from the facts of Muniz, the Court remarked:

      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 [Registration, Notification, and
      Counseling] requirements constitute criminal punishment.
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Id., 2020 WL 1466299 at *10.

     In continuing its discussion, the Supreme Court conducted an

examination of    the   registration,   notification, and   counseling   (“RNC”)

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

Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (“Williams II”)1,

and subsequently in Muniz. See Muniz, 164 A.3d at 1208 (analyzing first the

General Assembly’s intent and second a series of enumerated factors).

     First, the Butler II Court determined the General Assembly’s intention

with respect to Subchapter H was non-punitive in nature. See Butler II, 2020

WL 1466299 at *11. Next, the Court considered the Mendoza-Martinez

factors2 and determined the punitive factors did not outweigh the non-punitive

ones. See id., at *12-15. 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


1 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.
2
 See Williams II, 832 A.2d at 973 (describing the Mendoza-Martinez
seven-factor balancing test).
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      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 *15 (citation omitted) (emphasis added). Most importantly and of

greatest relevance here was the Court’s determination that “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 *1.

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

in Butler II, we conclude that because SVP adjudication is not criminal

punishment and, as such, passes muster under both Apprendi and Alleyne,

the trial court did not err in designating Titus an SVP under SORNA II. See

Commonwealth v. Shaffer, 734 A.2d 840, 844 (Pa. 1999) (remarking that

it is the Superior Court’s “duty to effectuate the decisional law of [the

Supreme] Court”). Accordingly, his argument necessarily fails, and we affirm

his judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 05/22/2020
