J-S76012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

DENNIS LEE DAVIS,

                          Appellant                   No. 377 WDA 2018


      Appeal from the Judgment of Sentence Entered August 11, 2017
            In the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000407-2008


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 28, 2019

      Appellant, Dennis Lee Davis, appeals from the August 11, 2017

judgment of sentence of 18 months’ to 5 years’ incarceration, imposed after

he pled guilty to one count of indecent assault, 18 Pa.C.S. § 3126(a)(3). On

appeal, Appellant solely challenges the legality of his designation as a Sexually

Violent Predator (SVP) under Pennsylvania’s Sex Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.14-9799.42.           After careful

review, we vacate the judgment of sentence to the extent it deems Appellant

an SVP, and remand for further proceedings.

      The facts underlying Appellant’s conviction are not necessary to our

disposition of the issues he presents on appeal.      We need only note that

Appellant pled guilty to the above-stated offense and was sentenced on

August 11, 2017, to the term of incarceration stated supra.        He was also
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deemed to be an SVP subject to a lifetime registration requirement under

SORNA.    Appellant filed a timely post-sentence motion, which was denied

following a hearing.

      Appellant then filed a timely notice of appeal, and he also timely

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Therein, Appellant set forth the

two issues he now raises on appeal, which are as follows:

      1. Whether, as applied to [] [A]ppellant as part of the judgment
      of sentence imposed on August 11, 2017, the registration
      mandates of SORNA … for an offender determined to be a[n SVP]
      (as the term … is defined at 42 Pa.C.S. § 9799.12), which []
      [A]ppellant was determined to be on August 11, 2017, for the
      offense of … indecent assault in violation of 18 Pa.C.S. §
      3126(a)(3), which violation occurred on May 2, 2008, contravene
      the ex post facto clause of the United States Constitution, Article
      1, Section 10, and the ex post facto clause of the Pennsylvania
      Constitution, Article 1, Section 17?

      2. Whether the designation under 42 Pa.C.S. § 9799.24(e)(3) of
      [] [A]ppellant as a[n SVP] (as the term … is defined at 42 Pa.C.S.
      § 9799.12) constituted an illegal sentence to the extent that such
      designation required [] [A]ppellant to register as a[n SVP] for life,
      thereby increasing the criminal penalty without due process, and
      contravened [] [A]ppellant’s constitutionally-protected rights and
      privileges, including, but not limited to, the right to a jury trial and
      the reasonable doubt standard guaranteed by the Sixth
      Amendment and the Fourteenth Amendment to the United States
      Constitution and by Article I, Section 6 and Section 9, of the
      Pennsylvania Constitution, rendering any waiver of a jury trial in
      [] [Appellant’s] guilty plea unknowing and involuntary with
      respect to determination of [SVP] status by failing to advise []
      [Appellant] that the right to a jury trial as applied to such
      determination?

Appellant’s Brief at 6-7.




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J-S76012-18



       On July 10, 2018, the trial court sent this Court a letter, in lieu of a Rule

1925(a) opinion, conceding that Appellant’s SVP designation is illegal under

our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017) (holding that SORNA’s registration provisions constitute criminal

punishment that cannot be retroactively applied to a defendant whose crimes

were committed prior to SORNA’s enactment), and this Court’s subsequent

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

(concluding that SORNA’s SVP provision, which requires the trial court to

determine if an individual is an SVP based on clear and convincing evidence,

is unconstitutional under Alleyne v. United States, 570 U.S. 99 (2013)).1

See Trial Court Letter, 1/10/18, at 1-2 (unnumbered).

       We need not discuss Appellant’s issues in depth, as it is clear that Butler

renders his SVP designation under SORNA illegal, as the trial court

acknowledges. Therefore, we vacate Appellant’s August 11, 2017 sentence to

the extent that it designates him an SVP under SORNA, and we remand for

the trial court to determine what, if any, registration requirements apply to

Appellant.
____________________________________________


1 Following Muniz and Butler, the Pennsylvania General Assembly enacted
legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act
10”). Act 10 amended several provisions of SORNA, and it also added several
new sections found at 42 Pa.C.S. §§ 9799.42, 9799.51-9799.75. In addition,
the Governor of Pennsylvania recently signed new legislation striking the Act
10 amendments and reenacting several SORNA provisions, effective June 12,
2018. See Act of June 12, 2018, P.L. 1952, No. 29. These modifications do
not apply to Appellant’s SVP designation, however, which the trial court
imposed in 2017 under the original SORNA.


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J-S76012-18



      Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2019




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