J-S43042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DALVIN MARTINEZ-OLACIO                     :
                                               :
                       Appellant               :   No. 468 MDA 2019

        Appeal from the Judgment of Sentence Entered February 6, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003325-2017


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED: APRIL 27, 2020

        Appellant, Dalvin Martinez-Olacio, appeals from the judgment of

sentence entered in the Court of Common Pleas of Berks County after the

court accepted his guilty plea on two counts of Robbery-Inflict or Threaten

Bodily Injury1 and two counts of Indecent Assault-Without Consent.2        The

court also deemed Appellant a Sexually Violent Predator (“SVP”) after a

hearing conducted under a clear-and-convincing-evidence standard pursuant

to the dictates of the current version of Pennsylvania’s Sex Offender

Registration and Notification Act (“SORNA II”), 42 Pa.C.S. § 9799.10 et seq.

        At sentencing, Appellant received an aggregate term of two to four

years’ incarceration, to be followed by four years of special probation and

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1   18 Pa.C.S. § 3701(a)(1)(iv).

2   18 Pa.C.S. § 3126(a)(1).
____________________________________
* Former Justice specially assigned to the Superior Court.
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lifetime registration under SORNA II as an SVP, with the possibility of

obtaining an exemption from such registration requirements after 25 years if

he proves he meets certain conditions. See Section 9799.15(a)(2), (a.2).

     Herein, Appellant challenges the constitutionality of the SORNA II

regulatory scheme implementing a clear-and-convincing evidence standard

for an SVP determination that results in increased registration, notification,

and counseling (RNC) requirements. In light of our Supreme Court’s recent

decision in Commonwealth v. Butler, 25 WAP 2018, --- A.3d ---- (Pa. Mar.

26, 2020) (Butler II), which held that RNC requirements for SVPs under

SORNA are not punishment, such that SVP assessment by clear and

convincing evidence standard is constitutional, we conclude that Appellant’s

SVP designation was constitutional under SORNA II.

     Appellant’s convictions stem from two robberies he committed within a

24-hour period in April of 2017.   In his first robbery, Appellant took $15.00

cash from a woman while threatening her with bodily injury. In the course of

committing this crime, he grabbed the victim’s buttocks for the purpose of his

own arousal without her consent.      In the second robbery, Appellant took

$5.00 cash and a gold watch from a woman while threatening her with bodily

injury. During this robbery, Appellant touched intimate parts of the victim’s

body for the purpose of his own arousal without her consent.

     On May 4, 2017, authorities filed a criminal complaint against Appellant,

and he pleaded guilty to the above-mentioned charges on June 11, 2018. On

the same day, the court ordered the Sex Offender Assessment Board (“SOAB”)

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to perform a sexually violent predator assessment of Appellant pursuant to

Section 9799.24 of SORNA II, Subchapter H of Act 29. On February 6, 2019,

after receiving the SOAB assessment, the court conducted a hearing pursuant

to Section 9799.24(e) and concluded that clear and convincing evidence

established Appellant was an SVP subject to the RNC requirements for SVPs

under Subchapter H.        Following the denial of Appellant’s post-sentence

motion, Appellant filed this timely direct appeal.

      Appellant raises one issue for our review:

      [Is] 42 Pa.C.S. § 9799.24 [ ] unconstitutional where it increases
      the length of a criminal punishment on a finding that an offender
      is a sexually violent predator on the mere basis of clear and
      convincing evidence, violating the due process clause of the
      Fourteenth Amendment to the United States Constitution[?]

Appellant’s brief, at 4.

      To support his claim, Appellant relies on our Supreme Court’s decision

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

subsequent decision in Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa.

Super. 2017). Appellant asserts these cases hold that the current procedure

for SVP designation is unconstitutional.

      In addressing Appellant’s challenge, we find salient the following

summary discussing the evolution of sex offender registration schemes

leading up to SORNA II and explaining how judicial decisions have reviewed

the constitutionality of each one:

            Courts have also referred to SORNA as the Adam
            Walsh Act. SORNA [I was] the General Assembly's


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          fourth enactment of the law commonly referred to as
          Megan's Law. Megan's Law I, the Act of October 24,
          1995, P.L. 1079 (Spec. Sess. No. 1), was enacted on
          October 24, 1995, and became effective 180 days
          thereafter. Megan's Law II was enacted on May 10,
          2000[,] in response to Megan's Law I being ruled
          unconstitutional    by   our    Supreme     Court    in
          Commonwealth v. Williams, ... 557 Pa. 285, 733
          A.2d 593 ([Pa.] 1999). Our Supreme Court held that
          some portions of Megan's Law II were unconstitutional
          in Commonwealth v. Gomer Williams, ... 574 Pa.
          487, 832 A.2d 962 ([Pa.] 2003), and the General
          Assembly responded by enacting Megan's Law III on
          November 24, 2004. The United States Congress
          expanded the public notification requirements of state
          sexual offender registries in the Adam Walsh Child
          Protection and Safety Act of 2006, 42 U.S.C. §§
          16901-16945, and the Pennsylvania General
          Assembly responded by passing SORNA [I] on
          December 20, 2011[,] with the stated purpose of
          “bring[ing] the Commonwealth into substantial
          compliance with the Adam Walsh Child Protection and
          Safety Act of 2006.” 42 Pa. C.S. § 9799.10(1).
          SORNA [I] went into effect a year later on December
          20, 2012. Megan's Law III was also struck down by
          our Supreme Court for violating the single subject rule
          of Article III, Section 3 of the Pennsylvania
          Constitution. [Commonwealth] v. Neiman, ... 624
          Pa. 53, 84 A.3d 603, 616 ([Pa.] 2013). However, by
          the time it was struck down, Megan's Law III had been
          replaced by SORNA [I].

     M.S. v. Pennsylvania State Police, 212 A.3d 1142, 1143 n.1
     (Pa.Cmwlth. 2019) (quoting Dougherty v. Pennsylvania State
     Police, 138 A.3d 152, 155 n.8 (Pa.Cmwlth. 2016) (en banc)).

     SORNA I also failed to withstand constitutional scrutiny.      In
     [Muniz, supra], our Supreme Court held that

          1) SORNA's registration provisions constitute
          punishment notwithstanding the General Assembly's
          identification of the provisions as nonpunitive; 2)
          retroactive application of SORNA's registration
          provisions violates the federal ex post facto clause;

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              and 3) retroactive application of SORNA's registration
              provisions also violates the ex post facto clause of the
              Pennsylvania Constitution.

       Id. at 1193. The Muniz Court deemed SORNA I's registration
       provisions to be punitive by applying the seven-factor test
       established in Kennedy v. Mendoza–Martinez, 372 U.S. 144,
       83 S.Ct. 554, 9 L.Ed.2d 644 (1963).

       Applying Muniz, in conjunction with Alleyne v. United States,
       570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), this Court
       deemed unconstitutional the SVP assessment provision of SORNA
       I, 42 Pa.C.S. § 9799.24, 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.” Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa.
       Super. 2017), reargument denied (Jan. 3, 2018), appeal granted,
       190 A.3d 581 (Pa. 2018).

Commonwealth v. Cosby, --- A.3d. ----, 2019 WL 6711477 (Pa.Super. filed

December 10, 2019).

       In response to Muniz and Butler, our General Assembly amended

SORNA with legislation, “Act 10” on February 21, 2018, amended and

reenacted as “Act 29” on June 12, 2018 (hereinafter “SORNA II”), with the

stated intent to “address the Pennsylvania Supreme Court's decision in …

Muniz …, and the Pennsylvania Superior Court's decision in ... Butler....”

See 42 Pa.C.S. § 9799.51(d)(4).3 Significantly for purposes of the instant

____________________________________________


3 The General Assembly divided SORNA II into two distinct subchapters—
Subchapter H, which applies to “individuals who committed a sexually violent
offense on or after December 20, 2012, for which the individual was
convicted[,]” 42 Pa.C.S. § 9799.11(c), and Subchapter I, which applies to
individuals who committed a sexually violent offense “on or after April 22,
1996, but before December 20, 2012,” and whose period of registration has
not yet expired or whose registration requirements under a former sexual



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case, SORNA II did not amend the SVP procedures of 42 Pa.C.S.A. § 9799.24,

the statute pursuant to which the trial court, in this case, designated Appellant

an SVP.

       Instantly, Appellant claims that because the RNC provisions of SORNA

II are punitive under Muniz, it follows that the SVP assessment procedure

under the statutory scheme violates Butler, as the designation turns on a

clear and convincing standard of proof rather than on a beyond a reasonable

doubt standard.

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

this Court’s Butler decision. In Butler II, our Supreme Court held that the

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

such that 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 [v. New Jersey, 530 U.S. 466 (2013)] 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
____________________________________________


offender registration law have not expired. 42 Pa.C.S. § 9799.52. As Appellant
committed his offenses in 2017, Subchapter H applies to his case.



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      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 30 (citation omitted).

      In light of our Supreme Court’s decision in Butler II, we conclude that

the procedure by which the trial court imposed Appellant’s SVP designation

was constitutional. Accordingly, Appellant’s challenge is without merit.

      Judgment of sentence is affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/27/2020




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