J-S21012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                                  :         PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    ZACHARIAH MORROW                              :
                                                  :
                       Appellant                  :    No. 939 WDA 2017

             Appeal from the Judgment of Sentence April 27, 2017
      In the Court of Common Pleas of Butler County Criminal Division at
                       No(s): CP-10-CR-0000447-2015


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                FILED NOVEMBER 05, 2018

       Appellant, Zachariah Morrow, appeals from the judgment of sentence

entered on April 27, 2017, following his guilty plea to one count each of

involuntary deviate sexual intercourse, incest, aggravated indecent assault,

and indecent assault.1 Upon review, we vacate the portion of Appellant’s

sentence deeming him to be a sexually violent predator (SVP) and remand for

additional proceedings consistent with this memorandum.

       We briefly summarize the facts and procedural history relevant to this

appeal as follows. The Commonwealth charged Appellant with multiple sexual

abuse and child pornography crimes for conduct that occurred between 2009

and 2015 with his niece, who was six-years-old when the abuse began. On

September 7, 2016, Appellant pled guilty to the crimes as specified above.
____________________________________________


1  18 Pa.C.S.A.       §§    3123(a)(1),        4302,   3125(a)(1),   and   3126(a)(7),
respectively.
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The trial court accepted Appellant’s guilty plea and ordered the Sexual

Offender Assessment Board (SOAB) to conduct an evaluation to determine if

Appellant was an SVP.         N.T., 10/7/2016, at 11.     The trial court deferred

sentencing until it received the SVP evaluation. Id. The trial court held a

sentencing/SVP hearing on April 27, 2017 wherein the Commonwealth

presented the testimony of a member of the SOAB who opined that Appellant

met the statutory definition of an SVP. N.T., 4/27/2017, at 7. Ultimately, the

trial court found “that [Appellant] meets the criterion to be determined a

sexually violent predator and he will be sentenced as such[].” Id. at 13. The

trial court also sentenced Appellant in accordance to his guilty plea agreement

to an aggregate term of five to 15 years of imprisonment for the four

aforementioned crimes. The trial court notified Appellant that as an SVP he

was required to register “as a tier three sexual offender for [his] lifetime.” Id.

at 17. The trial court gave Appellant written notice of the SVP registration

requirements under “42 Pa.C.S.A. Chapter 97, Subchapter H” (Subchapter H).

See Appellant’s Brief, Exhibit 2.          The trial court, however, did not file a

supporting order designating Appellant an SVP. This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:3
____________________________________________


2 Appellant filed a notice of appeal on May 23, 2017. Appellant and the trial
court timely complied with Pa.R.A.P. 1925.

3 Both of Appellant’s issues implicate the legality of his sentence and, thus,
we may reach them. See Commonwealth v. Golson, 189 A.3d 994, 1003
n.8 (Pa. Super. 2018) (while issues not raised before the trial court are
generally waived for appellate purposes, a challenge to the legality of a
sentence is non-waivable).

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       I.     Whether the sentenc[ing] court erred by finding that []
              Appellant met the criteria of a [SVP]?

       II.    Whether the sentenc[ing] court         erred   in   sentencing
              Appellant to an illegal sentence?

Appellant’s Brief at 12.

       Appellant’s arguments are inter-related and we will examine them

together. In his first issue, Appellant claims that his SVP designation is illegal.

Id. at 22-27.     In the alternative, in his second issue presented, Appellant

contends that sentencing him to a lifetime registration under SORNA4 is illegal

because such punitive requirements exceed his statutorily mandated

maximum aggregate sentence of 45 years. Id. at 27-42.

       Pennsylvania courts have examined the jurisprudence surrounding SVP

determinations and the registration requirements under SORNA in two seminal

decisions -- Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and

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

our Supreme Court held that SORNA’s Subchapter H registration requirements

constitute criminal punishment. Muniz, 164 A.3d at 1218. Accordingly, our

Supreme Court held that retroactive application of SORNA’s Subchapter H



____________________________________________


4 The Sex Offender Registration and Notification Act, 42 Pa.C.S.A.
§§ 9799.10–9799.41. “SORNA was enacted on December 20, 2011, and
became effective on December 20, 2012. SORNA recently was amended on
February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act
10 of 2018.” Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa. Super.
2018). The Act was further amended on June 12, 2018, by H.B. 1952, 202
Gen. Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018.

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requirements to defendants whose crimes occurred prior to SORNA’s effective

date (December 20, 2012) violated the ex post facto clause. Id. at 1218.

     Thereafter,

     in light of Muniz, this Court determined that “a factual finding,
     such as whether a defendant has a mental abnormality or
     personality disorder that makes him ... likely to engage in
     predatory sexually violent offenses, that increases the length of
     registration must be found beyond a reasonable doubt by the
     chosen fact–finder.” Butler, 173 A.3d at 1217 (internal quotations
     and citations omitted). The Butler Court further held “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.” Id. at
     1218. The Court therefore concluded that trial courts no longer
     can designate convicted defendants as SVPs or hold SVP hearings
     “until our General Assembly enacts a constitutional designation
     mechanism.” Id. The Butler Court directed trial courts to apply
     only the applicable tier–based registration period, as those periods
     apply based on the conviction itself, and not due to any additional
     fact not found, under SORNA's procedures, by the fact–finder. The
     Court ultimately reversed the order finding the defendant to be an
     SVP and remanded to the trial court for the sole purpose of issuing
     appropriate notice of the defendant's tier–based registration
     period. Id.

Golson, 189 A.3d at 1002–1003.

     In response to our Supreme Court’s decision in Muniz and this Court’s

decision in Butler, as briefly mentioned above, the Pennsylvania General

Assembly passed Acts 10 and 29 of 2018.        The express purpose of both

legislative enactments was to cure SORNA’s constitutional defects. See 42

Pa.C.S.A. § 9799.51(b)(4) (“it is the intention of the General Assembly to

address [Muniz and Butler].”) Specifically, our General Assembly modified

Subchapter H’s registration requirements for those offenders convicted of

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committing offenses that occurred on or after SORNA’s effective date, i.e.,

December 20, 2012. Our General Assembly also added Subchapter I to Title

42, Part VII, Chapter 97.             Subchapter I sets forth the registration

requirements that apply to all offenders convicted of committing offenses on

or after Megan’s Law I’s effective date (April 22, 1996), but prior to SORNA’s

effective date.

       Here, the trial court determined that Appellant was an SVP. Based upon

Muniz and Butler, however, the trial court’s designation of Appellant as an

SVP pursuant to SORNA’s Subsection H conflicted with the U.S. and

Pennsylvania Constitutions by exposing Appellant to additional criminal

penalties in the absence of a fact-finder making the required factual

determinations beyond a reasonable doubt.5         Thus, we are constrained to

vacate the trial court’s SVP designation of Appellant.       Moreover, we are

required to remand the matter to the trial court for the sole purpose of issuing

appropriate notice of Appellant’s tier–based registration period.



____________________________________________


5  We note that, on July 31, 2018, the Pennsylvania Supreme Court granted
a petition for allowance of appeal in Butler to address the following issue:

       Whether the Superior Court of Pennsylvania erred in vacating the
       trial court's Order finding [Respondent] to be [a Sexually Violent
       Predator (“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(e)(3).

Commonwealth v. Butler, 2018 WL 3633945, at *1 (Pa. 2018).

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        This does not end our inquiry, however.                 We note that the

Commonwealth alleged, and Appellant pled guilty to, criminal conduct that

occurred between 2009 and 2015. Because SORNA was enacted in December

2012, Appellant’s criminal conduct appears to have straddled SORNA’s

enactment date. Thus, on remand, a determination should be made as to

when the crimes occurred for which Appellant pled guilty so as to determine

which    registration    requirements          apply.   Moreover,   on   appeal,   the

Commonwealth argues that Act 10 remedied the issues presented in Muniz.

Commonwealth’s Brief at 8-9.           Thus, on remand, the Commonwealth may

argue that the trial court consider whether Act 10 and Act 29 (which amended

Act 10) remedied the issues raised in Muniz. Further, the parties may argue

which, if any, registration provision constitutionally applies to Appellant. The

trial court shall then determine whether Act 10 or Act 29 remedied the issues

raised in Muniz and, depending on resolution of that inquiry, which

registration provision applies in this case.6

        Finally, we reject Appellant’s second argument that punitive lifetime

registration requirements are illegal because such requisites exceed his

maximum sentence of 45 years. This Court has recently rejected this precise

argument. See Commonwealth v. Strafford, 2018 WL 3717081, at *3 (Pa.

Super. 2018) (SORNA's registration requirements are authorized punitive

____________________________________________


6   We note that the Supreme Court recently granted review, in its original
jurisdiction, to determine the issue of whether Acts 10 and 29 are
constitutional. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

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measures separate and apart from a defendant's term of incarceration, the

legislature did not limit the authority of a court to impose registration

requirements only within the maximum allowable term of incarceration, and

in fact, the legislature requires courts to impose registration requirements in

excess of the maximum allowable term of incarceration). As such, Appellant’s

second issue lacks merit.

      Judgment of sentence vacated in part. Case remanded for additional

proceedings consistent with this memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2018




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