J-S01038-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                   Appellee            :
                                       :
          v.                           :
                                       :
HECTOR G. GONZALES,                    :
                                       :
                   Appellant           :    No. 930 EDA 2018

            Appeal from the Judgment of Sentence March 15, 2018
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013381-2013

BEFORE:        BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:               FILED FEBRUARY 25, 2020

       Hector G. Gonzales (Appellant) appeals from the March 15, 2018

judgment of sentence following remand from this Court, which, inter alia,

designated Appellant a sexually violent predator (SVP).   Upon review, we

vacate in part and affirm in part.

       This Court previously detailed the underlying facts of this case,

wherein Appellant accosted two women, C.Q. and M.R., and attempted to

rape M.R.      See Commonwealth v. Gonzales, 181 A.3d 433 (Pa. Super.

2017) (unpublished memorandum at 2-5) (quoting Trial Court Opinion,

11/16/2016, at 4-7). Appellant was charged at docket 13381-2013 for the

offenses against M.R., and at docket 13380-2013 for the offenses against

C.Q.   Following a jury trial, Appellant was convicted of attempted rape by

forcible compulsion, attempted involuntary deviate sexual intercourse (IDSI)


*Retired Senior Judge assigned to the Superior Court.
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by forcible compulsion, unlawful restraint – serious bodily injury, indecent

exposure, and indecent assault by forcible compulsion.        “Following the

preparation of a presentence report and mental health evaluation, a

combined sentencing and [SVP] hearing was conducted on July 31, 2015. At

the conclusion thereof, the court imposed an aggregate sentence of 21 to 42

years’ incarceration, and determined that Appellant is an SVP.”           Id.

(unpublished memorandum at 5).

      On direct appeal to this Court, we sua sponte vacated the portion of

Appellant’s sentencing order deeming him an SVP.      Specifically, this Court

held as follows.

      In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our
      Supreme Court held that the registration requirements under
      SORNA[1] constitute criminal punishment, thus overturning prior
      decisions deeming those registration requirements civil in
      nature. Id. at 1218. On October 31, 2017, this Court ruled that,

            since our Supreme Court has held [in Muniz] that
            SORNA registration requirements are punitive or a
            criminal penalty to which individuals are exposed,
            then under Apprendi [v. New Jersey, 530 U.S. 466
            (2000),] and Alleyne [v. United States, 570 U.S.
            99 (2013)], a factual finding, such as whether a
            defendant has a “mental abnormality or personality
            disorder that makes [him or her] likely to engage in
            predatory sexually violent offenses[,]” 42 Pa.C.S.[]
            § 9799.12,     that   increases     the   length    of
            registration[,] must be found beyond a reasonable
            doubt by the chosen fact-finder. S[ubs]ection
            9799.24(e)(3) identifies the trial court as the finder

1 Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S.
§§ 9799.10-9799.41.      The prior versions of the statute governing sex
offender registration were referred to colloquially as Megan’s Law.

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            of fact in all instances and specifies clear and
            convincing evidence as the burden of proof required
            to designate a convicted defendant as an SVP. Such
            a statutory scheme in the criminal context cannot
            withstand constitutional scrutiny.

      [Commonwealth v. ]Butler, [173 A.3d 1212, 1217-18 (Pa.
      Super. 2017)2]. Accordingly, the Butler panel held that 42
      Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at [1218]. In
      light of Butler, we are compelled to conclude that the portion of
      Appellant’s sentencing order deeming him an SVP is illegal. See
      id.[] Accordingly, we vacate only that aspect of Appellant’s
      judgment of sentence, and remand his case for the trial court to
      determine under what tier of SORNA Appellant must register,
      and to provide him with the appropriate notice of his registration
      obligations under 42 Pa.C.S. § 9799.23. See id.[]

Gonzales, 181 A.3d 433 (unpublished memorandum at 10).

      On remand, the trial court held an evidentiary hearing on March 15,

2018.3 The trial court followed our directive in notifying Appellant that he

was subject to Tier III registration based upon his convictions, but went one

step further and again found Appellant to be an SVP. N.T., 3/15/2018, at

21-22.

      [The trial] court incorporated into the record the Megan’s Law
      Assessment Evidentiary Hearing held before [the trial] court on
      July 31, 2015 (which found that Appellant has a mental
      abnormality personality disorder that makes him likely to engage
      in predatory sexual violent offenses and that it [] should increase
      the length and breadth of his registration requirements) and
      marked it as Exhibit 1. After reviewing all submissions and


2  Our Supreme Court has granted the Commonwealth’s petition for
allowance of appeal. Commonwealth v. Butler, 190 A.3d 581 (Pa. 2018).
3Prior to this hearing, Appellant filed a petition for allowance of appeal with
our Supreme Court. On May 14, 2018, our Supreme Court denied that
petition. Commonwealth v. Gonzales, 185 A.3d 964 (Pa. 2018).

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        documentation regarding Appellant[,] including the psychiatric
        report, the presentence investigative report, and notice of
        registration; hearing from both the Commonwealth and defense
        counsel[;] and in light of the current law found at 42 Pa.C.S.[]
        § 9799.15, th[e trial] court found beyond a reasonable doubt
        that Appellant not only qualified as a Tier III lifetime
        registr[ant], but that he also was a[n SVP] as defined within the
        current statute; he was to be given notice of th[e trial] court’s
        findings (he was present in the courtroom and received notice)
        and he was to register consistent with the requirements of [an
        SVP].

Trial Court Opinion, 6/26/2019, at 1-2 (unnecessary capitalization and

footnote omitted).

        This timely-filed appeal followed.4 On appeal, Appellant contends the

trial court imposed an illegal sentence by again designating him an SVP.

Appellant’s Brief at 2-5. The Commonwealth agrees. Commonwealth’s Brief

at 5-6.

        The trial court relies on House Bill 631 to justify its SVP finding on

remand.     According to the trial court, its hearing on remand would have

stopped at this Court’s directive to determine Appellant’s registration tier

“but for the legislatures’ [sic] intervention in enacting House Bill 631[.]”

Trial Court Opinion, 6/26/2019, at 3.     The trial court describes House Bill

631 as a “Megan’s Law ‘fix.’” Id.

        The trial court is correct that the Pennsylvania Legislature has

endeavored to resolve the issues raised in Muniz and Butler by passing a

new law to replace the invalidated portions of SORNA.        After this Court’s

4   Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

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directive remanding Appellant’s case to the trial court, but prior to his

remand hearing, House Bill 631 amended SORNA.          See Act 10 of 2018.5

However, the Act 10 amendments still utilized subsection 9799.24(e)(3) for

determining whether a defendant should be designated as an SVP. This is

the same subsection found to be unconstitutional by the Butler Court.

Thus, the trial court’s designation of Appellant as an SVP pursuant to

subsection 9799.24(e)(3) on remand is in direct contravention of this Court’s

vacating Appellant’s designation as an SVP on direct appeal pursuant to

Butler’s finding subsection 9799.24(e)(3) unconstitutional.

      The trial court attempts to circumvent its clear violation of Butler by

stating that it made its determination “beyond a reasonable doubt as the

fact finder, who is the same jurist who oversaw the jury trial at issue.” Trial

Court Opinion, 6/26/2019, at 6 n.5 (quoting N.T., 3/15/2018, at 22). This

argument ignores the holding in Butler that a factual finding “that increases

5   After Appellant’s remand hearing, and “[i]n direct response
to Muniz and Butler, our General Assembly passed SORNA II[, Act 29 of
2018], which became effective on June 12, 2018. See 42 Pa.C.S.
§ 9799.51(d)(4) (indicating the “intention of the General Assembly” to
“[a]ddress the Pennsylvania Supreme Court’s decision in ... Muniz..., and
the    Pennsylvania    Superior   Court’s   decision    in   ... Butler....”).
Commonwealth v. Cosby, ___ A.3d ___, 2019 WL 6711477, at *44 (Pa.
Super. 2019). SORNA II includes, inter alia, a new provision for assessing
SVP status, see 42 Pa.C.S. § 9799.58, but still employs the same
requirement that the court need only determine that the defendant is an SVP
by clear and convincing evidence.      42 Pa.C.S. § 9799.58(e)(3).       The
constitutionality of SORNA II as a whole is currently before our Supreme
Court in Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018). We do
not address SORNA II herein as the trial court designated Appellant as an
SVP on remand pursuant to Act 10, not Act 29.

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the length of registration must be found beyond a reasonable doubt by the

chosen fact-finder.”   Butler, 173 A.3d at 1217.   Appellant’s chosen fact-

finder was a jury.        Accordingly, we agree with Appellant and the

Commonwealth that Appellant’s designation as an SVP is illegal.

      This Court again vacates the portion of Appellant’s sentencing order

designating him an SVP. Because Appellant’s Tier III status is based upon

his convictions, and he received notice of those registration requirements

following our prior remand, we need not remand again.6

      SVP order vacated.      Judgment of sentence affirmed in all other

respects. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/20




6 We note that neither Appellant nor the Commonwealth has requested
remand as part of Appellant’s relief.

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