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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GERALD CARROL CLARK

                            Appellant                 No. 58 MDA 2016


             Appeal from the Judgment of Sentence June 16, 2014
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0001094-2013


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 02, 2016

        Gerald Clark appeals from his judgment of sentence following his guilty

plea for failure to comply with the registration requirements applicable to

sexual offenders and indecent assault. Clark contends that the court erred

by declaring him a sexually violent predator (“SVP”).1 We affirm.

        On January 17, 2014, Clark entered a negotiated plea agreement for a

sentence of an aggregate term of six years and three months to fifteen

years’ imprisonment. The court continued the sentencing hearing in order

for the Pennsylvania Sexual Offenders Board (“Board”) to evaluate whether

Clark qualified as an SVP under the Sexual Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10 et seq.         Following the
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1
    18 Pa.C.S. §§ 4915.1 and 3126(a)(7), respectively.
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Board’s assessment, the Commonwealth filed a notice of intention to classify

Clark as an SVP.

        On June 16, 2014, the court held a classification hearing. The parties

stipulated to the qualifications of the Board’s examining physician, Dr.

Robert Stein, and the results of Dr. Stein’s examination. Clark, represented

by counsel, did not present any evidence. Based upon this evidence, the

Court found that Clark was an SVP.

        Clark did not file a direct appeal but did file a timely Post Conviction

Relief Act2 petition alleging that his attorney was ineffective for failing to

perfect a timely direct appeal.        On December 21, 2015, the court granted

Clark’s petition and reinstated his direct appeal rights nunc pro tunc. Clark

then filed a timely notice of appeal, and both Clark and the court complied

with Pa.R.A.P. 1925.

        Clark raises the following issues in this appeal:

        1. Was the evidence insufficient to find [] Clark to be [an SVP]?

        2. Was [] Clark’s sentence illegal, when he was sentenced to five
        to ten year for a second failure to register pursuant to Megan’s
        Law when the Supreme Court’s holding in Neiman made []
        Clark’s prior failure to register conviction unconstitutional?

        3. Was [] Clark’s due process rights violated by depriving him of
        a jury on the issue of whether or not he was [an SVP]?

        4. Was [] Clark’s due process rights violated by depriving him of
        proof beyond a reasonable doubt?
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2
    42 Pa.C.S. § 9541 et seq.



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      5. Was [] Clark illegally sentenced though the [SVP] section of
      Megan’s Law that is constitutionally vague?

      6. Are assessment provisions of Megan’s Law, which require that
      [] Clark give testimony against himself or suffer a negative
      inference unconstitutional?

Brief For Appellant, at 5.

      Clark’s first argument requires us to review whether the evidence was

sufficient to classify him as an SVP. An SVP is a

      person who has been convicted of a sexually violent offense as
      set forth in [42 Pa.C.S.] section 9799.14 (relating to sexual
      offenses and tier system)] and who is determined to be a
      sexually violent predator under [42 Pa.C.S.] section 9799.24
      (relating to assessments) due to a mental abnormality or
      personality disorder that makes a person likely to engage in
      predatory sexually violent offenses.

42 Pa.C.S. § 9799.12. A “mental abnormality” is “[a] congenital or acquired

condition of a person that affects the emotional or volitional capacity of the

person in a manner that predisposes that person to the commission of

criminal sexual acts to a degree that makes the person a menace to the

health and safety of other persons.”    Id.    “Predatory” conduct is “an act

directed at a stranger or at a person with whom a relationship has been

instituted, established, maintained, or promoted, in whole or in part, in order

to facilitate or support victimization.” Id. The “salient inquiry for the trial

court is the identification of the impetus behind the commission of the crime,

coupled with the extent to which the offender is likely to reoffend.”

Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa.Super.2006). However,


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the risk of re-offending is but one factor to be considered when making an

assessment; it is not an “independent element.” Commonwealth v.

Morgan, 16 A.3d 1165, 1170–72 (Pa.Super.2011) (citations omitted).

     When the defendant is convicted of an offense listed in 42 Pa.C.S. §

9799.14, the trial court orders the Board to evaluate whether to recommend

classifying the defendant as an SVP.   Commonwealth v. Hollingshead,

111 A.3d 186, 189 (Pa.Super.2015). The evaluator whom the Board selects

to perform the assessment must weigh the following 15 factors: whether the

instant offense involved multiple victims; whether the defendant exceeded

the means necessary to achieve the offense; the nature of the sexual

contact with the victim(s); the defendant’s relationship with the victim(s);

the victim(s)’ age(s); whether the instant offense included a display of

unusual cruelty by the defendant during the commission of the offense; the

victim(s)’ mental capacity(ies); the defendant’s prior criminal record;

whether the defendant completed any prior sentence(s); whether the

defendant participated in available programs for sexual offenders; the

defendant’s age; the defendant’s use of illegal drugs; whether the defendant

suffers from a mental illness, mental disability, or mental abnormality;

behavioral characteristics that contribute to the defendant’s conduct; and

any other factor reasonably related to the defendant’s risk of reoffending.

42 Pa.C.S.A. § 9799.24(b).     It is not necessary for all factors, or any




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particular number of them, to be present to support an SVP designation.

Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa.Super.2008).

      The Board must submit its written assessment to the district attorney,

42 Pa.C.S. § 9799.24(c), who then files a praecipe to schedule an SVP

hearing. 42 Pa.C.S. § 9799.24(e)(1). The Commonwealth has the burden

at the hearing of proving by clear and convincing evidence that the

defendant is an SVP.        42 Pa.C.S. § 9799.24(e)(3).         The Commonwealth

meets its burden by submitting evidence that is “so clear, direct, weighty,

and convincing as to enable the [trier of fact] to come to a clear conviction,

without   hesitancy,   of    the   truth   of   the   precise    facts   at   issue.”

Commonwealth v. Meals, 912 A.2d 213, 219 (Pa.2006).

      Our standard and scope of review is well-settled:

      In order to affirm an SVP designation, we, as a reviewing court,
      must be able to conclude that the fact-finder found clear and
      convincing evidence that the individual is a[n SVP]. As with any
      sufficiency of the evidence claim, we view all evidence and
      reasonable inferences therefrom in the light most favorable to
      the Commonwealth. We will reverse a trial court’s determination
      of SVP status only if the Commonwealth has not presented clear
      and convincing evidence that each element of the statute has
      been satisfied.

Hollingshead, 115 A.3d at 189.

      Here, Clark’s crime of indecent contact for the purpose of arousing

sexual desire with a child under the age of 13 is a sexually violent offense

under section 9799.14. On multiple occasions in August 2013, Clark lowered

the clothing of a 12-year-old female while she was sleeping, and the girl’s


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mother observed Clark rubbing the girl’s naked buttocks. During a forensic

interview, the girl indicated that Clark had been touching her “private area”

on a nightly basis for approximately one month before being observed by

the child’s mother. At the time of this crime, Clark was already required to

register as a sexual offender due to a sex offense conviction in Maryland in

2003. Charging documents from the Maryland offense included allegations

that Clark digitally penetrated the vaginal area of a thirteen-year-old girl.

      At the time of the present offense, Clark had a prior conviction on

October 21, 2008 under 18 Pa.C.S. § 4915 for failing to register as a sex

offender.

      The only evidence submitted during the SVP hearing was Dr. Stein’s

report.     Dr. Stein opined that Clark is an SVP based on multiple section

9799.24 factors. Dr. Stein observed that the victim’s age (12) and the 31-

year age difference between Clark and the victim were consistent with

sexual deviance.     Clark also had (1) a history of illegal drug use; (2) a

history of noncompliance with prior sentences, including one prior failure to

register as a sex offender; and (3) a prior sex offense against a young girl in

Maryland in 2003. Dr. Stein opined that Clark’s history was consistent with

a paraphilic disorder, i.e., an intense and persistent sexual interest in other

than physically mature, consenting partners whose satisfaction has entailed

personal harm to others.     This disorder, Dr. Stein concluded, is a lifetime

condition which is not curable and overrode emotional/volitional control, and


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there is a likelihood that Clark will re-offend in the future if permitted

unsupervised contact with young girls.     Dr. Stein also determined Clark’s

multiple acts of sexually touching a minor child served to promote a sexually

victimizing relationship and constituted “predatory” behavior under the Act.

      Having carefully reviewed the evidence, we agree with the trial court

that the Commonwealth provided clear and convincing evidence that Clark is

an SVP. Accordingly, Clark’s first argument fails.

      In his second argument, Clark contends that his 2008 conviction is

invalid because the version of Megan’s Law then in effect (Megan’s Law III)

was held unconstitutional in Commonwealth v. Neiman, 84 A.3d 603

(Pa.2013).    Thus, Clark concludes, his designation as an SVP is invalid

because it rests upon his illegal 2008 conviction.

      This argument fails because Clark cannot use this appeal to make a

collateral attack on his 2008 conviction.     “Any collateral attack [on an]

underlying conviction must be raised in a petition pursuant to the Post

Conviction Relief Act … The PCRA provides the sole means for obtaining

collateral review of a judgment of sentence.” Commonwealth v. Infante,

63 A.3d 358, 365 (Pa.Super.2013).

      We will examine Clark’s final four arguments together.     Clark argues

that SORNA is unconstitutional because it deprives him of his right to a jury,

deprives him of proof beyond a reasonable doubt, is unconstitutionally

vague, and requires him to testify against himself. Pennsylvania courts have


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consistently held that a statute may only be found to be unconstitutional if it

clearly, palpably, and plainly violates constitutional rights. Commonwealth

v. Pennybacker, 121 A.3d 530, 533 (Pa.Super.2015).             The challenger

bears a heavy burden of persuasion to show the statute is unconstitutional,

because there is a strong presumption that legislative enactments do not

violate the Constitution. Id.

      SORNA does not violate Clark’s constitutional due process rights.

Pennsylvania courts have previously held that Megan Law’s and SORNA’s

registration, notification, and counseling requirements are not punitive in

nature and are constitutional. Commonwealth v. Williams, 832 A.2d 962

(Pa.2003); Commonwealth v. Perez, 97 A.3d 747 (Pa.Super.2014).

Registration requirements are merely “a collateral consequence of a

conviction.” Commonwealth v. Leidig, 956 A.2d 399, 406 (Pa.2008).

Because SORNA does not constitute criminal punishment, it does not require

proof beyond a reasonable doubt, entitle Clark to trial by jury, or violate his

right against self–incrimination.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/2/2016

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