J-S33014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 E. R.                                    :
                                          :
                    Appellant             :   No. 3391 EDA 2017

           Appeal from the Judgment of Sentence August 4, 2017
               In the Court of Common Pleas of Wayne County
            Criminal Division at No(s): CP-64-CR-0000369-2016


BEFORE:    OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

CONCURRING STATEMENT BY OTT, J.:                FILED NOVEMBER 15, 2018

      While I agree with the ultimate holding of the majority, I write

separately to express a different basis for vacating E.R.’s determination of

being an SVP.

      The majority follows Butler, supra, in vacating E.R.’s SVP status.

However, Butler is based upon the United States Supreme Court decision of

Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), which held that any fact that increases the mandatory minimum

sentence for a crime is an element that must be submitted to the jury and

found beyond a reasonable doubt.

      E.R. is a Tier III offender under SORNA and SVP status has no effect on

the registration and reporting requirements of a Tier III offender. Accordingly,

Alleyne is inapplicable to a Tier III offender, and so is arguably not

unconstitutional as applied.

____________________________________
* Former Justice specially assigned to the Superior Court.
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       Nonetheless, I agree E.R.’s SVP status must be revoked.

       As noted, Commonwealth v. Butler, supra, declared Section

9799.24(e)(3) unconstitutional as it violates the dictates of Alleyne, supra.

In brief, SVP status increases the mandatory registration requirements of Tier

I and Tier II sexual offenders by requiring those offenders to register with the

proper authorities for their lifetimes.1         Because, pursuant to Section

9799.24(e)(3), SVP status is determined by the judge upon a clear and

convincing standard of proof, rather than being determined by a jury beyond

a reasonable doubt, the process represents an unconstitutional violation of

due process. Butler, supra.

       However, SORNA uses a three-tier classification scheme for sexual

offenders. Registration requirements for Tier III offenders, such as E.R., are

not so affected by SVP designation, as lifetime registration is required of them

regardless of SVP status. Therefore, the legal reasoning for finding Section

9799.24(e)(3) unconstitutional is not applicable to Tier III offenders.      As

applied to Tier III offenders, the process is arguably constitutional.

       Section 9799.24(e)(3) states, in toto:

       At the hearing prior to sentencing, the court shall determine
       whether the Commonwealth has proved by clear and convincing
       evidence that the individual is a sexually violent predator.

42 Pa.C.S. § 9799.24(e)(3).

____________________________________________


1 Absent SVP classification, a Tier I offender must register for 15 years and a
Tier II offender must register for 25 years.


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        The plain language of the Section provides no mention of the Tiers nor

any differentiation between the Tiers. The Section merely provides a uniform

and unified process that does not contemplate severability. Accordingly, even

though the legal reasoning for finding Section 9799.24(e)(3) unconstitutional

does not apply to Tier III offenders, the provision, as a whole, has been

declared unconstitutional.       Even though the SVP designation for a Tier III

offender does not run afoul of Alleyne, I believe it is invalid because the

determination as to Tier III offenders was not intended to be and cannot be

severed from the otherwise unconstitutional aspects of the Section.

        Pursuant to 42 Pa.C.S. § 9799.36, all persons designated as an SVP and

who are not incarcerated, must attend monthly counseling sessions. Because

this requirement is based solely on SVP status, this aspect of E.R.’s sentence

must also be vacated.

        Therefore, I agree with the majority that E.R.’s SVP status must be

vacated, based upon different reasoning.

        Finally, our Legislature has enacted Subchapter I,2 regarding the

continued registration of sexual offenders, apparently to replace the

constitutionally invalid portions of Subchapter H.3 I believe that upon remand,




____________________________________________


2   42 Pa.C.S. § 9799.51 et seq.

3   42 Pa.C.S. § 9799.10 et seq.

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the trial court should also address the possible applicability of the newly

enacted legislative scheme.




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