J-S13014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    ANTHONY PETER OSCHE,

                             Appellant                   No. 916 WDA 2018


               Appeal from the PCRA Order Entered May 25, 2018
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0002166-2013


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 31, 2019

        Appellant, Anthony Peter Osche, appeals from the order denying his

timely petition filed pursuant to the Post Conviction Relief Act, (PCRA).1 After

careful review, we vacate in part, and affirm in part.

        The facts underlying Appellant’s convictions are not germane to this

appeal, other than that he
        was charged, by information filed on December 31, 2013, with five
        counts … of Distribution of Child Pornography, 18 Pa.C.S. §
        6312(c)(1); thirty counts … of Possession of Child Pornography,
        18 Pa.C.S. § 6312(d)(1); and one count … of Criminal Use of a
        Communications Facility, 18 Pa.C.S. § 7512(a). Following a [jury]
        trial on February 9-10, 2015, [Appellant] was found guilty of all
        counts.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S. §§ 9541-9546.
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     Pursuant to 42 Pa.C.S. §9795.4, the [trial c]ourt directed the
     Sexual Offender Assessment Board (SOAB) to issue a report on
     [Appellant]. At the Sexually Violent Predator [(SVP)] [h]earing
     and [s]entencing on October 5, 2015, the Commonwealth and the
     defense agreed to stipulate to the assessment provided by the
     SOAB. N.T., 10/05/[]15, at … 2-3. Based upon that stipulation,
     the [c]ourt determined [Appellant] was a[n SVP] and subject to
     lifetime registration under Megan’s Law….

     The Commonwealth provided notice to the defense that they were
     seeking the mandatory sentence of 25 to 50 years. [Id.] at …
     3[]. At [s]entencing, the [c]ourt found that there had been a prior
     conviction, and as a result, it was treated as a repeat offense
     under 42 Pa.C.S.[ §] 9718.2. [Id.] at … 6[]. In the Sentencing
     Order dated October 5, 2015, for Counts 1-35, [Appellant] was
     ordered to pay the costs of prosecution and sentenced to undergo
     imprisonment for 25–50 years, with sentences for all counts to be
     served concurrently. For Count 36, [Appellant] was ordered to
     pay the costs of prosecution with no further penalty.

     [Appellant] filed an appeal with the Superior Court….     The
     [j]udgment of [s]entence … was affirmed … on November 18,
     2016, and on that same date[,] [Appellant] filed a request for
     reargument of that decision, which was subsequently denied on
     January 11, 2017.

     On January 10, 2018, [Appellant] filed [the instant PCRA petition].
     [Therein, Appellant] requested the [PCRA c]ourt appoint a lawyer
     to represent him. The [c]ourt granted the request for counsel and
     appointed Michael Jewart, Esquire, to represent [him] in this
     matter[,] and also permitted leave for an amended petition. A
     [h]earing was held on March 21, 2018, at which [Appellant]
     appeared represented by Attorney Jewart. An oral amendment
     was made by counsel for [Appellant] to withdraw the allegation of
     ineffective assistance of counsel, and replace [it] with an assertion
     that the [mandatory minimum] sentence was illegal.

     [Appellant] request[ed] to be resentenced without application of
     the mandatory minimum sentence and without the SVP
     designation. The Commonwealth submit[ted] that [Appellant]’s
     [PCRA] petition should be dismissed.

     Following oral argument, the [c]ourt directed the parties to file
     briefs in support of their arguments. The Commonwealth filed a

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      Memorandum of Law on April 10, 2018, and [Appellant] filed a
      Brief in Support of [his] PCRA [p]etition on April 24, 2018.

      In [its] submission, the Commonwealth raised concerns regarding
      the timeliness of the PCRA [p]etition. Following an appeal to [the]
      Superior Court[,] the decision was affirmed on November 18,
      2016, and on that same date[,] [Appellant] filed a request for
      reargument of that decision, which was subsequently denied on
      January 11, 2017. [Commonwealth v. Osche, 159 A.3d 593
      (Pa. Super. 2016) (memorandum).] [Appellant]’s PCRA [p]etition
      was filed on January 10, 2018. Based on this sequence of events,
      the [c]ourt f[ound] the PCRA [p]etition was filed in a timely
      manner.

PCRA Court Opinion (PCO), 5/25/18, at 1 (footnote omitted).

      The PCRA court denied Appellant’s PCRA petition on May 25, 2018.

Appellant filed a timely notice of appeal, and a timely, court-ordered Pa.R.A.P.

1925(b) statement. On August 6, 2018, the PCRA court issued a statement

pursuant to Rule 1925(a) indicating that its opinion dated May 25, 2018,

adequately addressed the issues raised in Appellant’s Rule 1925(b) statement.

See Opinion in Compliance with Rule 1925(a), 8/6/18, at 1.

      Appellant now presents the following questions for our review:

      1. Did [the] PCRA [c]ourt commit an error of law when it denied
      … Appellant’s [PCRA p]etition and found that the sentence
      pursuant [to] 42 Pa.C.S.[] § 9718.2 was legal and not in violation
      of the Constitution of the Commonwealth of Pennsylvania and the
      United States Constitution?

      2. Did the PCRA [c]ourt commit an error of law when it denied …
      Appellant’s [PCRA p]etition and determined that the classification
      of … Appellant as a[n SVP] under the Sexual Offender Registration
      and Notification Act [(SORNA)] was proper[,] in contravention of
      Commonwealth v. Butler, 173 A.3d 1212 [(Pa. Super. 2017)?]

Appellant’s Brief at 4.




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      “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (cleaned up). Both of Appellant’s claims in the

instant matter exclusively concern the PCRA court’s conclusions of law.

      In his first issue, Appellant asserts that his mandatory minimum

sentence of 25-50 years’ incarceration was illegal pursuant to Alleyne v.

United States, 570 U.S. 99 (2013). “The Alleyne Court held that any fact

that, by law, increases the penalty for a crime must be treated as an element

of the offense, submitted to a jury rather than a judge, and found beyond a

reasonable doubt.”    Commonwealth v. Wolfe, 140 A.3d 651, 653 (Pa.

2016).

      The trial court sentenced Appellant pursuant to the following provision

of the Sentencing Code:

         Any person who is convicted in any court of this
         Commonwealth of an offense set forth in section 9799.14
         (relating to sexual offenses and tier system) shall, if at the
         time of the commission of the current offense the person
         had previously been convicted of an offense set forth in
         section 9799.14 or an equivalent crime under the laws of
         this Commonwealth in effect at the time of the commission
         of that offense or an equivalent crime in another jurisdiction,
         be sentenced to a minimum sentence of at least 25 years of
         total confinement….

42 Pa.C.S. § 9718.2(a)(1).

      Appellant does not dispute that he satisfied the criteria for sentencing

pursuant to Section 9718.2(a)(1). Instead, Appellant contends this provision


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was effectively rendered unconstitutional pursuant to Alleyne and its

Pennsylvania progeny, including Wolfe. In Wolfe, our Supreme Court held

that Section 9718(c), the proof-at-sentencing provision of the various

mandatory-minimum       sentences    set   forth   in    Section   9718(a),   was

constitutionally infirm. That provision, inter alia, stated that the “provisions

of this section shall not be an element of the crime” and mandated that

sentencing courts “determine, by a preponderance of the evidence, if this

section is applicable[.]” 42 Pa.C.S. § 9718(c). The Wolfe Court held that

Section 9718(c) clearly violated Alleyne, and was not severable from Section

9718 as a whole.

      In the case sub judice, Section 9718.2(a)(1) provides for a mandatory-

minimum sentence based on a defendant’s prior convictions.           The statute

contains a provision, Section 9718.2(c), which, like Section 9718(c), dictates

that “provisions of this section shall not be an element of the crime” and that

the sentencing court “shall … determine, by a preponderance of the evidence,

the previous convictions of the offender….”             42 Pa.C.S. § 9718.2(c).

Consequently, Appellant argues that Section 9718.2 is unconstitutional under

the reasoning of Wolfe.

      However, the Alleyne decision provided for an exception to the general

rule it prescribed. Prior convictions, by their very nature, already result from

the submission of facts to a factfinder under the beyond-a-reasonable-doubt

standard. As such, mandatory-minimum sentences based on prior convictions




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inherently satisfy the requirements of Alleyne.         As this Court noted in

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014):

      The Supreme Court’s decision in Almendarez–Torres v. United
      States, 523 U.S. 224 … (1998)[,] held that the fact of a prior
      conviction does not need to be submitted to the jury and found
      beyond a reasonable doubt. Id. at 246…. Alleyne explicitly
      noted that Almendarez–Torres remains good law.                    See
      Alleyne, supra at 2160 n.1 (stating, “[i]n Almendarez–Torres,
      we recognized a narrow exception … for the fact of a prior
      conviction[; however, b]ecause the parties do not contest that
      decision’s vitality, we do not revisit it for purposes of our decision
      today[ ]”).

      Here, the only fact that can trigger the mandatory-minimum sentence

set forth in Section 9718.2(a)(1) is a prior conviction. Accordingly, Section

9718.2(a)(1) can never run afoul of Alleyne. Moreover, although Section

9718.2(c) is similar to Section 9718(c), the proof-at-sentencing provision

deemed unconstitutional in Wolfe, no judicial fact-finding beyond recognizing

the existence of a prior conviction occurs when Section 9718.2 is applied.

Consequently, Appellant’s sentence is not illegal, and he is therefore not

entitled to relief for this claim.   Thus, in this respect, we affirm the order

denying PCRA relief.

      Next, Appellant asserts that the PCRA court erred when it denied his

claim seeking to vacate his SVP designation as an illegal sentence, as the SVP

assessment statute, 42 Pa.C.S. § 9799.24, was deemed unconstitutional in

Butler.   In that case, we synthesized Alleyne with our Supreme Court’s

decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding,

inter alia, that SORNA’s registration provisions are not merely civil sanctions,


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but instead constitute criminal punishment), to hold that, because SVPs are

subjected to registration requirements under SORNA that constitute criminal

punishment pursuant to Muniz, and because a sexual offender may be

designated an SVP by clear and convincing evidence by a judge rather than

by proof beyond a reasonable doubt by a jury, Section 9799.24 is

unconstitutional.   Moreover, in Commonwealth v. Rivera-Figueroa, 174

A.3d 674, 678 (Pa. Super. 2017), we held that Muniz-based claims apply

retroactively on collateral review. As the Butler decision is an application of

Muniz, it applies retroactively on collateral review as well.

      The Commonwealth does not dispute that Appellant’s SVP designation

was rendered illegal in Butler. Instead, the Commonwealth argues that 1)

our decision in Butler is currently under review in our Supreme Court, see

Commonwealth v. Butler, 190 A.3d 581 (Pa. 2018) (granting the

Commonwealth’s petition for allowance of appeal); and 2) the legislature has,

subsequent to Butler, amended SORNA to ostensibly cure the constitutional

defects identified in Muniz. Indeed, as this Court recently explained:

      In response to our Supreme Court’s decision in Muniz and this
      Court’s later decision in … Butler …, the Pennsylvania General
      Assembly passed Acts 10 and 29 of 2018. The express purpose
      of these legislative enactments was, inter alia, to “[p]rotect the
      safety and general welfare of the people of this Commonwealth by
      providing for registration, community notification and access to
      information regarding sexually violent predators and offenders
      who are about to be released from custody and will live in or near
      their neighborhood[,]” and to cure SORNA’s constitutional defects
      by “address[ing] [Muniz and Butler].” See 42 Pa.C.S.[] §
      9799.51(b)(1),(4).



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     Specifically, our General Assembly modified Subchapter H’s
     registration requirements for those offenders convicted of
     committing offenses that occurred on or after SORNA’s effective
     date of December 20, 2012. The General Assembly also added
     Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
     forth the registration requirements that apply to all offenders
     convicted of committing offenses on or after Megan’s Law I’s
     effective date (April 22, 1996), but prior to SORNA’s effective
     date.

Commonwealth v. Bricker, 198 A.3d 371, 375–76 (Pa. Super. 2018).

     First, regarding our Supreme Court’s decision to accept allowance of

appeal in Butler, we cannot predict that Court’s ultimate ruling. Indeed, the

Court could affirm or reverse Butler, or even change its decision to grant

review. Accordingly, until the Supreme Court acts, Butler remains good law

in this Commonwealth.

     Regarding the legislature’s amendments to SORNA, no amendments

were made to Section 9799.24.        Moreover, regardless of whether the

legislature adequately cured the defects addressed in Butler, Appellant was

designated an SVP under the prior version of the statute. Moreover, the trial

court notified Appellant of his registration and reporting requirements as an

SVP in 2015 under the prior version of SORNA, not as they exist today. Thus,

the constitutional defects in Appellant’s SVP designation have not been cured

by the amendments.

     Therefore, we vacate the order denying PCRA relief in part, and vacate

Appellant’s sentence to the extent that it designates him an SVP under SORNA,

and we remand for the lower court to determine what, if any, registration

requirements apply to Appellant.


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     Order vacated in part, affirmed in part. Case remanded for further

proceedings. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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