J-S20020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANKLIN DAVID WILLIAMS                    :
                                               :
                       Appellant               :   No. 1173 WDA 2018

               Appeal from the PCRA Order Entered July 18, 2018
      In the Court of Common Pleas of Warren County Criminal Division at
                        No(s): CP-62-CR-0000265-2015,
              CP-62-CR-0000266-2015, CP-62-CR-0000343-2015


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED JUNE 21, 2019

        Franklin David Williams appeals from the order denying his petition for

relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We

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

        Williams entered three negotiated pleas in 2015 to three counts of

aggravated indecent assault without consent.1 The charges were based on

indecent assaults that occurred in 2013, 2014, and 2015, in which Williams

digitally penetrated girls aged 5, 7, and 8, one of whom was his

granddaughter. The court sentenced Williams on February 26, 2016, after a

hearing, to three consecutive aggravated sentences of 78 to 156 months’

incarceration. The court also declared Williams to be a sexually violent

predator (“SVP”) and advised Williams that he was classified as a tier three
____________________________________________


1   See 18 Pa.C.S.A § 3125(a)(1).
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sexual offender under the Sexual Offender Registration and Notification Act

(“SORNA”)2 and would be subject to SORNA’s registration requirements.

Williams filed a motion for post-sentence relief on the basis that his sentence

was excessive. The court denied relief, and Williams did not file a direct appeal.

        On February 24, 2017, Williams filed a timely pro se PCRA petition. The

PCRA court appointed counsel, who filed an amended petition. The court held

a hearing, at which Williams, Williams’ trial counsel, and the detective who

had investigated the underlying charges each testified. At the close of the

hearing, the court dismissed the petition.

        Williams appealed,3 and presents the following issues:

        1. The application of SVP status is Unconstitutional as an increase
        of punishment without finding beyond a reasonable doubt and
        SHOULD [sic] apply to [Williams’] case on Collateral Review.

        2. SORNA is Unconstitutional, as previous sexual offender
        registration statutes, and should not be applied to [Williams].

        3. SORNA is discrimination against age and gender of [Williams].


____________________________________________


2   See 42 Pa.C.S.A. §§ 9799.10-9799.42.

3 This Court issued a Rule to Show Cause directing Williams to explain why his
appeal should not be quashed in light of Pa.R.A.P. 341 and Commonwealth
v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each of those cases”). Williams responded, explaining that
although he styled the notice of appeal as a single document referencing the
three docket numbers he sought to appeal, he filed a separate copy of the
notice of appeal upon each of the trial court dockets. Our review of the record
reflects that Williams filed a separate copy of the notice of appeal upon each
trial court docket. As Williams effectively filed three notices of appeal rather
than one, we are satisfied that he has complied with Rule 341 and Walker.

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        4. Allowance of Appeal regarding the discretionary aspects of
        sentencing is requested as appeal issue presents a substantial
        question that imposition of his sentence violates the fundamental
        norms underlying the sentencing process. Sentence imposed is
        unreasonable, improper and malicious violating the fundamental
        norms of the sentencing process as [its] imposition discriminates
        against his age.

Williams’ Br. at 2 (unpaginated).

        “When reviewing the denial of a PCRA petition, this Court’s standard of

review is limited ‘to whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.’” Commonwealth v.

Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew,

189 A.3d 486, 488 (Pa.Super. 2018)).

        Williams first challenges his designation as an SVP under SORNA.

Williams argues “current precedent” has established that the SVP statute is

unconstitutional because it allows a court to make an SVP determination

without requiring the court to make that finding beyond a reasonable doubt.

Williams’ Br. at 11 (unpaginated).

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

granted, 190 A.3d 581 (Pa. 2018), this Court held that the section of SORNA

under which Williams’ SVP determination was made4 violated the federal and

state constitutions because it increased a defendant’s exposure to criminal




____________________________________________


4   42 Pa.C.S.A. § 9799.24.



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penalty5 without requiring the fact-finder to make the SVP determination

beyond a reasonable doubt. Id. at 1218.6 We thus reversed the trial court’s

order declaring the defendant an SVP, and remanded for the trial court to

issue new notice to the defendant regarding his registration requirements

under SORNA. Id.

       Butler was based on the United States Supreme Court’s decision in

Alleyne v. United States, 570 U.S. 99 (2013), in which the Court held that

any fact that increases the penalty for a crime must be submitted to the jury

and found beyond a reasonable doubt. Accordingly, this Court recently held

that “a PCRA petitioner can obtain relief from an illegal sentence under Butler,

if the petition is timely filed, as long as the relevant judgment of sentence

became final after June 17, 2013, the date Alleyne was decided.”

Commonwealth v. Adams-Smith, ___ A.3d ____, 2019 WL 1997650, at *8

(Pa.Super. May 7, 2019) (emphasis omitted).

       Williams was declared an SVP under an unconstitutional statute, his

judgment of sentence became final after the date of the Alleyne decision, and

he sought relief in a timely PCRA petition. We therefore vacate those portions

of his judgment of sentence related to his SVP status, and remand for
____________________________________________


5 Butler was decided in the wake of Commonwealth v. Muniz, 164 A.3d
1189, 1218 (Pa. 2017), cert. denied sub nom. Pennsylvania v. Muniz, 138
S. Ct. 925 (2018), which declared that SORNA’s registration requirements are
punitive in effect.

6 The statute required the court to determine whether the Commonwealth
proved the defendant is an SVP by clear and convincing evidence. 42 Pa.C.S.A.
§ 9799.24(e)(3).

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proceedings consistent with this memorandum. Adams-Smith, 2019 WL

1997650, at *9.

      In his second issue, Williams contends that SORNA as a whole is

unconstitutional, arguing only that “[e]ach previous attempt at registration

requirements through a sexual offender statute in Pennsylvania has been

determined unconstitutional based on one aspect or another; specific wording,

overly broad language, inappropriate burden.” Williams’ Br. at 12. Williams

does not explain in what way SORNA violates the state or federal constitutions.

      We find this argument wholly inadequate to merit our review, and

consider it waived. See Commonwealth v. Walter, 966 A.2d 560, 566-67

(Pa. 2009) (holding claims waived by appellant’s failure to develop them in

appellate brief); Commonwealth v. Thoeun Tha, 64 A.3d 704, 713

(Pa.Super. 2013) (same).

      Similarly, in his third issue, Williams baldly contends that SORNA is

discriminatory against his age and gender. Williams presents no argument in

support of this contention. Thus, it is waived. Walter, 966 A.2d at 566-67.

Moreover, the PCRA court noted that the issue was not raised prior to Williams’

reference to it in his Rule 1925(b) statement of errors complained of on

appeal. The issue is therefore waived for that reason as well. See Pa.R.A.P.

302(a) (issues not presented to the trial court may not be raised for the first

time on appeal).

      In his final issue, Williams argues that we should grant allowance of

appeal over the discretionary aspects of his sentence. Williams again fails to

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provide any argument, thus waiving his issue. Walter, 966 A.2d at 566-67.

Moreover, this issue is not cognizable under the PCRA. See Commonwealth

v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007). Williams does not argue that

his sentence is greater than the lawful maximum, or that his trial counsel was

ineffective for failing to pursue a challenge to the discretionary aspects of his

sentence on direct appeal. See 42 Pa.C.S.A. § 9543(a)(ii), (vii) (stating PCRA

provides relief for claims of ineffective assistance of counsel or the imposition

of sentence greater than lawful maximum). He has therefore failed to establish

any collateral relief is due under this issue.

      As Williams has raised only one issue meriting relief we affirm the

remaining portions of the order of the PCRA court denying Williams relief on

his other issues.

      PCRA Order affirmed in part; SORNA requirements and SVP status

vacated; case remanded with instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2019




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