J-A08010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LEON FULTON                              :
                                          :
                    Appellant             :   No. 2649 EDA 2016

            Appeal from the Judgment of Sentence April 8, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010329-2014
                                        CP-51-CR-0010330-2014


BEFORE:    PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 31, 2018

      Following a hearing, Appellant, Leon Fulton, was found to meet the

statutory requirements to be classified as a “sexually violent predator”

pursuant to the assessment provision of then current version of the Sex

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.24.

He now appeals that designation in light of the Pennsylvania Supreme Court’s

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

denied, 138 S.Ct. 925 (2018).

      The main argument presented by Fulton is that the retroactive

application of SORNA violates the ex post facto clauses of the federal and state

constitutions because the offenses to which he pleaded guilty occurred prior

to the effective date of SORNA. He also contends that the standard of proof of

clear and convincing evidence relating to SVPs is no longer constitutionally
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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sufficient because the consequences of the designation under SORNA have

been deemed punitive in nature, therefore requiring proof beyond a

reasonable doubt.1 Fulton’s brief was filed before our published decision in

Commonwealth v. v. Butler, 173 A.3d 1212, 1217 (Pa. Super. 2017).

       On November 4, 2014, Fulton entered a negotiated guilty plea in two

separate cases. In the first, docketed at CP-51-CR-0010329-2014, he pled

guilty to two counts: Indecent Assault, 18 Pa.C.S.A. § 3126, graded as a felony

of the third degree, and Corruption of Minors, 18 Pa.C.S.A. § 6301, graded as

a misdemeanor of the first degree. In the second, docketed at CP-51-

0010330-2014, he pled guilty to Involuntary Deviate Sexual Intercourse, 18

Pa.C.S.A. § 3123, a felony of the first degree, and Corruption of Minors, 18

Pa.C.S.A. § 6301, again graded as a misdemeanor of the first degree. At the

time of his guilty plea, the Commonwealth summarized the factual foundation

to support the plea as follows:

              As to . . . No. 10329-2014, the complaining witness in that
       case is a -- was an 11-year-old female, initials S.F. She stated
       that while inside of 400 North, I believe it’s Busti Street . . . , here
       in Philadelphia, apartment 1502, her uncle, the defendant here at
       the bar of the Court, touched her private parts on multiple
       occasions with her [sic] hands on the top of her clothes. She
       stated that the defendant would touch and rub her buttocks and
       chest with his hands. She stated that the defendant told her that
       if he – if she told anybody he would kill her and her brother.


____________________________________________


1Fulton also contends that the evidence presented at the SVP hearing did not
prove that he suffers from Pedophilic Disorder, the underlying basis for his
designation as a sexually violent predator. In light of our decision that the
order must be reversed, we do not reach that issue.

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              She also stated this subject would lock her and her brother
       in a closet after beating them with a belt. She recalled –
       recollected that this incident happened sometime during the
       course of 2008.

             As to . . . Docket No. 10330, the victim is a 15-year-old
       male, C.S., who I believe is the brother. He was interviewed and
       stated that while inside that same residence, his uncle, the
       defendant, sexually abused him on one occasion. The complainant
       stated that he was in the bathroom when the defendant pulled
       down his pants and tried to put his penis in the complainant’s
       buttocks. The complainant stated that he felt like he was being
       raped and that his buttocks hurt when the subject tried to put his
       penis in there. He indicates that this incident happened when he
       was approximately 8 to 9 years old or what would have been
       2009.

Transcript, Guilty Plea, 11-4-2014, at 9-10.

       A bifurcated SVP hearing was held on November 9, 2015, and March 10,

2016. At the first hearing, Dr. Barbara Ziv testified on behalf of the

Commonwealth, and at the second hearing, Dr. Timothy Foley testified on

behalf of Fulton. At the conclusion of the March 10 hearing, the trial court

found that Fulton should be designated as a sexually violent predator.

Transcript, Hearing Volume I, 3-10-2016 at 4-9.2

       On April 8, 2016, Fulton received an aggregate sentence of six to twelve

years of incarceration, to be followed by ten years of supervision.


____________________________________________


2 “The Commonwealth has shown the defendant meets the criteria, mental
abnormality or personal disorder, likely to engage in predatory sexual
offenses.” Transcript, Hearing Volume I, 3-10-2016 at 9.




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      Fulton filed a timely counseled post sentence motion. In the Motion,

Fulton’s sole issue challenged his classification as a Sexually Violent Predator.

The Motion was denied by the trial court on August 15, 2016. This appeal

follows.

      Fulton raises five issues. In the first three, Fulton contends that his

designation as a SVP should be vacated in light of Muniz, as well as the

application of the federal and state constitutional prohibitions against ex post

factor sanctions. In his fourth, he argues that the Commonwealth did not

present sufficient evidence to satisfy the statutory definition of a sexually

violent predator. In his last issue, he requested permission to raise other

matters that are addressed in Muniz in the event this case is remanded for a

new SVP hearing. Fulton does not challenge his conviction or his sentence.

      The Commonwealth, in its brief, does not oppose the reversal of the trial

court’s remand for a new SVP hearing. The Commonwealth states that it “does

not oppose the reversal of the order below to the extent that it retroactively

applies the registration requirements of SORNA. Because defendant does not

challenge the validity of his guilty plea or the imposition of the negotiated

sentence, the judgments of sentence should be affirmed in all other aspects.”

Appellee’s Brief at 6-7 (footnote omitted).

      In Muniz, the Pennsylvania Supreme Court found the registration

conditions of the former version of SORNA to be punitive. The Court held that

retroactive application of SORNA’s then registration requirements constituted


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a violation of both the United States and Pennsylvania’s constitutional

provisions against ex post facto laws. Consequently, the Court deemed such

retroactive applications unconstitutional and therefore invalid.

      We     subsequently      applied     Muniz     in    Commonwealth          v.

v. Butler, 173 A.3d 1212, 1217 (Pa. Super. 2017), to hold that trial courts

cannot constitutionally apply SORNA’s SVP procedures. There, we explained

that doing so would unconstitutionally deprive a criminal defendant of the right

to have a jury determine whether the Commonwealth had proven all elements

of the crime charged beyond a reasonable doubt:

      In sum, we are constrained to hold that section 9799.24(e)(3) of
      SORNA violates the federal and state constitutions 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. Moreover, we are constrained
      to hold trial courts cannot designate convicted defendants SVPs
      (nor may they hold SVP hearings) until our General Assembly
      enacts a constitutional designation mechanism. Instead, trial
      courts must notify a defendant that he or she is required to
      register for 15 years if he or she is convicted of a Tier I sexual
      offense, 25 years if he or she is convicted of a Tier II sexual
      offense, or life if he or she is convicted of a Tier III sexual offense.
      We, therefore, vacate the trial court's order of July 25, 2016 which
      found Appellant to be an SVP and, we remand this case to the trial
      court for the sole purpose of issuing the appropriate notice under
      42 Pa.C.S.A. § 9799.23 as to Appellant's registration obligation
      for a period of 15 years. As we reverse the trial court's SVP order,
      we need not address the issues he raises on appeal, which contest
      his SVP designation on other grounds.

Id., at 1218 (emphasis added).

      Applying Butler in a later decision, we said:

      Butler determined that, as a result of Muniz, the SVP procedure
      is subject to the constitutional requirement that the facts

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      constituting that punishment must be found by a fact-finder
      beyond a reasonable doubt. Thus, 42 Pa.C.S. § 9799.24(e)(3),
      which requires the trial court to find the relevant facts by clear
      and convincing evidence, was deemed unconstitutional.

Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018).

      The Pennsylvania Legislature has endeavored to resolve the issues

raised in Muniz by passing a law to replace the invalidated portions of SORNA.

See 2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June 12, 2018)

(“Act 29”), amending Title 42 (Judicial Procedure) of the Pennsylvania

Consolidated Statutes. Though Act 29 was enacted during the pendency of

this appeal, it became effective immediately. However, it does not amend the

SVP provisions in 42 Pa.C.S.A. § 9799.24. See 42 PA.C.S.A. § 9799.52 and

9799.55.

      In light of Muniz and Butler, Appellant's SVP status constitutes an

illegal sentence. Therefore, we vacate that portion of Appellant's sentence

finding him to be an SVP and remand to the trial court to issue a revised notice

to Appellant pursuant to 42 Pa.C.S.A. § 9799.23 (governing reporting

requirements of sex offenders). Accordingly, we vacate the trial court’s

imposition of SVP status, but affirm the judgment of sentence in all other

respects.




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       Since Fulton was convicted of a Tier III offense, he is still required to

register for life. See 42 Pa.C.S. § 9799.14(d) (classifying Involuntary Deviate

Sexual Intercourse as a Tier III offense).3

       Judgment of sentence affirmed in part and vacated in part. Case

remanded for proceedings consistent with this memorandum. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/18




____________________________________________


3Involuntary Deviate Sexual Intercourse also required lifetime registration
under Megan’s Law, 42 Pa.C.S.A. § 9795.1(b)(2) (repealed).

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