J-S76018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 DAVID PAUL ELLENBERGER,                   :
                                           :
                     Appellant.            :   No. 446 WDA 2018


                Appeal from the PCRA Order, February 27, 2018,
                 in the Court of Common Pleas of Butler County,
              Criminal Division at No(s): CP-10-CR-0002049-2014.


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

MEMORANDUM BY KUNSELMAN, J.:                         FILED MARCH 22, 2019

      David Ellenberger appeals from the order denying his first petition for

post-conviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:
             On or about February 18, 2015, [Ellenberger] entered
         pleas of guilty to one count each of unlawful contact with a
         minor and criminal use of a communications facility. There
         was no agreed recommended sentence as part of the plea
         agreement pursuant to which [Ellenberger] entered his
         guilty pleas. On September 15, 2015, the Court sentenced
         [Ellenberger] as a sexually violent predator pursuant to the
         recidivism statute, 42 Pa.C.S.A. § 9718.2, to undergo
         imprisonment of twenty-five to fifty years on the count of
         unlawful contact with a minor, and a concurrent term of six
         to twelve months on the count of criminal use of a
         communications facility. Prior to the acts underlying the
         charges in the above captioned-matter, at Butler County
         C.A. No. 1253 of 2006, [Ellenberger] pled guilty to, and was
J-S76018-18


        sentenced pursuant to a negotiated plea agreement for
        charges of disseminating child pornography and criminal use
        of a communications facility. [Ellenberger] was under
        supervision at CP No. 1253 of 2006 when the conduct
        underlying the charges in this matter took place.

            [Ellenberger], represented by [prior counsel] filed a post-
        sentence motion on September 28, 2015, alleging the
        Court’s sentence was “excessive for the crime that was
        committed and amounts to cruel and unusual punishment”
        and was imposed “based on an unconstitutional statute.” At
        the hearing held on [Ellenberger’s] post-sentence motion,
        [prior counsel] argued, among other things, that 42
        Pa.C.S.A. § 9718.2 violates the holding of Alleyne v.
        United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (U.S.
        2013). The court relied on and cited to Commonwealth v.
        Pennybaker, 121 A.3d 530 (Pa.Super. Ct. 2015), in finding
        that the imposition of a mandatory sentence based on a
        prior conviction was not unconstitutional. The Court also
        found, under Commonwealth v. Baker, 78 A.3d 1044 (Pa.
        2013), that [Ellenberger’s] punishment was not cruel and
        unusual under the Eighth Amendment to the Federal
        Constitution.     The Court denied [Ellenberger’s] post-
        sentence motion on October 30, 2015. [Ellenberger] did not
        file an appeal to the Superior Court of Pennsylvania.

           On July 27, 2016, [Ellenberger] filed a [pro se PCRA
        petition] in which he raised numerous grounds on which he
        claimed he was eligible for relief. The Court appointed
        counsel and directed that counsel file an amended [PCRA]
        petition. On July 7, 2017, [PCRA] counsel filed an [amended
        PCRA petition].

PCRA Court Opinion, 2/27/18, at 1-2.

     The PCRA court scheduled an evidentiary hearing for December 15,

2017. The PCRA court detailed what occurred at the hearing as follows:

           At the time of the hearing, counsel for [Ellenberger]
        orally moved to amend his petition to include a claim that,
        pursuant to Commonwealth v. Butler, [173 A.3d 1212
        (Pa. Super. Ct. 2017)], he was improperly classified as a
        sexually violent predator.       The attorney for the


                                     -2-
J-S76018-18


          Commonwealth was unopposed to the Court considering
          [Ellenberger’s] claim under Butler. That claim, therefore,
          is appropriately before the Court at this time. Counsel for
          [Ellenberger] also indicated that [Ellenberger] was waiving
          or abandoning his claim relating to the ineffective assistance
          of [prior counsel]. . . . Accordingly, before the Court at this
          time are claims that [Ellenberger’s] classification as a
          sexually violent predator is improper under Butler, that his
          sentence is cruel and unusual, and that his mandatory
          minimum sentence is unconstitutional.

PCRA Court Opinion, 2/27/18, at 4. Finding no merit to any of Ellenberger’s

claims, the PCRA court denied Ellenberger post-conviction relief.

       This timely appeal follows. Both Ellenberger and the PCRA court have

complied with Pa.R.A.P. 1925.           Ellenberger raises the following issues on

appeal:

          1. Did the PCRA court commit an error of law when it denied
             Ellenberger’s PCRA petition and found that the sentence
             pursuant to 42 Pa.C.S.A. § 9718.2 was legal and not in
             violation of the Constitution of the Commonwealth of
             Pennsylvania and the United States Constitution?

          2. Did the PCRA court commit an error of law when it denied
             Ellenberger’s PCRA petition and determined that the
             classification of Ellenberger as a sexually violent predator
             under SORNA was proper in contravention of Butler,
             supra?

See Ellenberger’s Brief at 4.1




____________________________________________


1Although Ellenberger also raised a claim that the imposition of the mandatory
minimum constituted cruel and unusual punishment, his counsel has
withdrawn the issue in light of our Supreme Court’s decision in
Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013).


                                           -3-
J-S76018-18


      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      In his first issue, Ellenberger relies upon our Supreme Court’s per curiam

order in Commonwealth v. Pennybaker, 145 A.3d 720 (Pa. 2016), to argue

that sentencing him to a mandatory minimum based on his prior convictions

pursuant to 42 Pa.C.S.A. § 9718.2 violates Alleyne.

      In Pennybaker, the trial court sentenced Pennybaker to a mandatory

minimum sentence pursuant to 42 Pa.C.S.A. § 9718.4 based upon his failure

to comply with his prior SORNA registration requirement. Pennybaker filed an

appeal to this in which he questioned the constitutionality of section 9718.4

in light of Alleyne. We held that section 9718.4 is not unconstitutional under

Alleyne because the “fact” triggering application of the statute—the length of

the defendant’s registration requirement—“was mechanical and capable of

objective proof.” Pennybaker, 121 A.3d 530, 534 (Pa. Super. 2015). In a

per curiam order, our Supreme Court reversed this Court’s decision and

remanded “for resentencing without application 42 Pa.C.S. § 9718.4.”

Pennybaker, supra.




                                      -4-
J-S76018-18


     Although Ellenberger acknowledges Pennybaker did not involve

previous convictions, he notes that in the per curiam order our Supreme Court

cited cases that struck down statutes that included similar “Proof at

Sentencing” language as used in Section 9718.2. See Pennybaker, 145 A.3d

at 720 (citing Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) and

Commonwealth v. Wolfe, 140 A.3d (Pa. 2016)).                From this order,

Ellenberger extrapolates that the imposition of a mandatory minimum upon

him based upon his prior conviction likewise violates Alleyne and its

Pennsylvania progeny. According to Ellenberger, “it was this language that

the Wolfe court found so offensive when declaring § 9718 unconstitutional

and the same language that renders § 9718.2 the same.” See Ellenberger’s

Brief at 11. We cannot agree.

     In rejecting Ellenberger’s claim, the PCRA court discussed in detail other

cases, some decided subsequent to the 2016 per curiam order in

Pennybaker, to establish the continued viability of the “prior exceptions”

exception to Alleyne. See PCRA Court Opinion, 2/27/18, at 8-10. The court

then concluded:

           We are unaware of any published decision of the Superior
        Court of Pennsylvania, or any decision of the Supreme Court
        of Pennsylvania, finding that the recidivist mandatory
        minimums contained in 42 Pa.C.S.A. § 9718.2(a), are
        constitutionally infirm. Absent clear, precedential direction
        from our appellate courts, we are constrained to find that
        the Defendant’s mandatory sentence imposed pursuant to
        42 Pa.C.S.A. § 9718.2, a mandatory that is based on a prior
        conviction, is constitutional under Alleyne.


                                    -5-
J-S76018-18



PCRA Court Opinion, 2/27/18, at 8-10 (footnotes omitted).

      Our review of the cases cited by the PCRA court support its conclusion.

See, e.g., Commonwealth v. Golson, 189 A.2d 944, 1000-02 (Pa. Super.

2018) (upholding imposition of mandatory 25 to 50 year mandatory minimum

pursuant to 42 Pa.C.S.A. § 9718.2, based upon a prior conviction); see also

Commonwealth v. Resto, 179 A.3d 18, 21 n.1 (Pa. 2018) (plurality) (noting

that “under prevailing federal jurisprudence, [previous] convictions are not

treated as a type of fact implicating Alleyne”); Commonwealth v. Bragg,

133 A.3d 328, 333 (Pa. Super. 2016), affirmed, 169 A.3d 1024 (Pa. 2017)

(per curiam) (acknowledging that the United States Supreme Court has

recognized a “narrow exception” to Alleyne for prior convictions).           Thus,

Ellenberger’s first claim does not entitle him to relief from this Court, as we

are bound by our precedent on this issue.

      In his second issue, Ellenberger takes issue with the PCRA court’s

determination that this Court’s decision in Butler, supra, does not apply upon

collateral review. The PCRA court reached this conclusion after engaging in a

retroactivity analysis utilizing the framework set forth by the United States

Supreme Court’s plurality in Teague v. Lane, 489 U.S. 288 (1989).             See

PCRA Court Opinion, 2/2/18, at 5-6. The PCRA court then concluded that,

“[a]s the holding in Butler is procedural, we conclude that it does not apply

on collateral review. [Ellenberger], in the Court’s view, is not entitled to relief

under Butler.” Id. at 6.




                                       -6-
J-S76018-18



       According to Ellenberger, “the holding in Butler is a substantive

Constitutional rule” that should apply on collateral review. Ellenberger’s Brief

at 13. We cannot agree.

       In Butler, Butler challenged his SVP designation on direct appeal. This

Court concluded that, in light of our Supreme Court’s decision in Muniz

classifying registration requirements as punitive, “[sub]section 9799.24(e) of

SORNA [relating to SVP designation] 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.” Butler, 173 A.3d at 1218.

       Our Supreme Court has granted allowance of appeal in Butler in order

to determine whether this Court “erred in vacating the trial court’s Order

finding   [Butler]    to   be   [an    SVP]    by   extrapolating   the    decision   in

[Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017),] to declare

SVP    hearings    and     designations unconstitutional     under    42    Pa.C.S.   §

9799.24(4)(3).” See Commonwealth v. Butler, 190 A.3d 581 (Pa. 2018).

Given that our Supreme Court has yet to approve of this Court’s analysis, it is

clear that the Court has yet to determine whether this Court’s Butler holding

should apply retroactively.2
____________________________________________


2 However, if our Supreme Court issues a decision holding that Butler applies
retroactively, Ellenberger may file another PCRA petition within one year of
that decision, attempting to invoke a time-bar exception in subsection
9545(b)(1)(iii). See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and 3
(recent amendment to the PCRA).


                                           -7-
J-S76018-18



      We note, however, that this Court’s reasoning in Butler relied on the

United States Supreme Court’s decision in Alleyne, which our Supreme Court

has since held does not apply retroactively where, as here, judgment of

sentence is final. See Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016) (holding that “Alleyne does not apply retroactively to cases

pending on collateral review”).     Accordingly, we decline to apply Butler

retroactively to cases pending on collateral review. Because Ellenberger did

not file a direct appeal to this Court, his judgment of sentence became final

on November 30, 2015, which predates Butler, and we therefore agree with

the PCRA court that Ellenberger is not entitled to relief on this claim.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2019




                                      -8-
