J-S05001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN F. DAVIS                              :
                                               :
                       Appellant               :   No. 705 WDA 2018

              Appeal from the Judgment of Sentence April 24, 2018
       In the Court of Common Pleas of Butler County Criminal Division at
                        No(s): CP-10-CR-0001630-2016


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 15, 2019

        John F. Davis appeals from the judgment of sentence imposed following

his guilty plea to indecent assault of a person less than thirteen years of age

and related sexual offenses. He claims his designation as a sexually violent

predator (“SVP”) under the Sexual Offender Registration and Notification Act

(“SORNA”)1 was an unconstitutional application of an ex post facto law. We

recognize that under controlling case law the SVP designation procedure under

SORNA has been held to be unconstitutional.          Accordingly, we reverse the

imposition of SVP status, but affirm the judgment of sentence in all other

respects.


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S.A. § 9799.24(e)(3).
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        On March 6, 2017, Davis pleaded guilty to indecent assault (person less

than thirteen years of age), 18 Pa.C.S.A. § 3126(a)(7); unlawful contact with

a minor, 18 Pa.C.S.A. § 6318(a)(1); and three counts of endangering the

welfare of children, 18 Pa.C.S.A. § 4304(a)(1). Davis committed the offenses

on children between the ages of two and six at the day care service operated

by his wife in their home. See N.T. Plea Proceedings, 3/06/17, at 3-4. The

trial court accepted Davis’s guilty plea.

        On April 24, 2018, after evaluation by a member of the Sexual Offenders

Assessment Board (SOAB) and a hearing, the court found Davis to be a

sexually violent predator (SVP).2              See Order, 4/24/18.   The court then

imposed an aggregate sentence of not less than eleven and one-half nor more

than twenty-three months’ imprisonment followed by one hundred and twenty

months of probation, with credit for time served. See N.T. SVP and Sentence

Proceedings, 4/24/18, at 38. This timely appeal followed.3

        Davis presents two questions for our review on appeal:

        I. Whether the current statutory mechanism by which defendants
        are deemed sexually violent predators is unconstitutional where it
        exposes defendants to increased [penalties] with the required
        fact-finding to be made by the trial court by clear and convincing
        evidence and not proof beyond a reasonable doubt?
____________________________________________


2 See 42 Pa.C.S.A. § 9799.58; Act 2018, Feb. 21, P.L. 27, No. 10, § 19,
immediately effective (“Act 10”); reenacted 2018, June 12, P.L. 140, No. 29,
§ 18, immediately effective (“Act 29”).

3   Both Davis and the trial court complied with Pa.R.A.P. 1925.




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       II. Whether the new SORNA provisions [applied] to Appellant
       constituted an ex post facto law?

Appellant’s Brief, at 10 (unnecessary capitalization omitted).4

       Appellant’s argument relies chiefly on our Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (Opinion Announcing

the Judgment of the Court), cert. denied, Pennsylvania v. Muniz, 138 S. Ct.

925 (2018), and this Court’s subsequent holding in Commonwealth v.

Butler, 173 A.3d 1212, 1213 (Pa. Super. 2017), reargument denied (Jan. 3,

2018), appeal granted, 190 A.3d 581 (Pa. 2018).         He argues these cases

render the current procedure for designating a convicted defendant an SVP to

be unconstitutional.5 See Appellant’s Brief, at 17. Under Muniz and Butler,

we agree.

____________________________________________


4 In addition to Appellant’s Brief, and the Brief for the Appellee by the First
Assistant District Attorney of Butler County, we also have the benefit of a brief
for the Pennsylvania State Police, and the Pennsylvania Office of the Attorney
General, as Intervenors, filed, with permission, by the Office of the Attorney
General.

5It bears noting that our Supreme Court has granted allowance of appeal in
Butler:

       AND NOW, this 31st day of July, 2018, the Petition for Allowance
       of Appeal is GRANTED. The issue, as stated by Petitioner, is as
       follows:

          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



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       The Butler Court concluded that a challenge to the SORNA registration

requirements, determined to be a criminal punishment in Muniz, presented

an issue of legality of sentence. See Butler, 173 A.3d at 1215 (citing Muniz,

164 A.3d at 1218); see also 42 Pa.C.S.A. § 9799.24(e)(3).

       “We review the legality of a sentence de novo and our scope of review

is plenary.” Butler, 173 A.3d at 1215 (citation omitted). Moreover, “[o]ur

Supreme Court has instructed that we must presume that statutes are

constitutional and in order to declare a statute unconstitutional it must clearly,

plainly, and palpably violate the constitution.” Id. (some brackets and citation

omitted).

       In Muniz, a plurality of the Pennsylvania Supreme Court concluded that

the registration requirements of the former version of SORNA (42 Pa.C.S.A.

§§ 9799.10–9799.41), as applied retroactively, were punitive, and therefore

unconstitutional under the ex post facto clauses of the United States and

Pennsylvania Constitutions. See Muniz, 164 A.3d at 1223.




____________________________________________


          A.3d 1189 (2017),] to declare SVP              hearings and
          designations   unconstitutional under           42    Pa.C.S.
          § 9799.24(e)(3).

       The Prothonotary is directed to provide notice of this Order to the
       Attorney General, who is invited to participate as an amicus
       curiae.

Commonwealth v. Butler, 190 A.3d 581, 582 (Pa. 2018) (brackets in
original).

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      A panel of this Court subsequently applied Muniz in Butler, 173 A.3d

1212, 1217 (Pa. Super. 2017), holding that trial courts cannot constitutionally

apply SORNA’s SVP determination procedures. We explained that doing so

would unconstitutionally deprive a criminal defendant of the right to have a

jury determine whether the Commonwealth had proven all elements of the

crime charged beyond a reasonable doubt. See Butler, 173 A.3d at 1217.

      Similarly, applying Butler in a later decision, we said:

      Butler determined that, as a result of Muniz, the SVP procedure
      is subject to the constitutional requirement that the facts
      constituting that punishment must be found by a fact-finder
      beyond a reasonable doubt. Thus, 42 Pa.C.S. § 9799.24(e)(3),
      which requires the trial court to find the relevant facts by clear
      and convincing evidence, was deemed unconstitutional.

Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018).

      The Butler Court concluded that trial courts cannot designate convicted

defendants SVPs, nor may they hold SVP hearings, until our General Assembly

enacts a constitutional designation mechanism. Instead, as we have

previously noted, trial courts must notify a defendant that he or she is required

to register for life if, as here, he or she is convicted of a Tier III sexual offense.

See Butler, 173 A.3d at 1218.

      The Pennsylvania Legislature has endeavored to resolve the issues

raised in Muniz (and later, Butler) by passing a law to replace the invalidated




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portions of SORNA, (“Act 10,” amended and reenacted as “Act 29”).6 However,

Act 29 does not amend the SVP provisions in 42 Pa.C.S.A. § 9799.24,

Assessments, which still provides that the trial court determine SVP status by

the less stringent standard of “clear and convincing evidence” rather than by

the standard of proof beyond a reasonable doubt required for criminal

punishment. See 42 Pa.C.S.A. § 9799.24(e)(3).

       Following the holdings in Muniz and Butler, we conclude that the

procedure by which the trial court imposed Davis’ SVP status constituted an

illegal sentence. Therefore, we vacate the trial court’s imposition of SVP

status, but affirm the judgment of sentence in all other respects. We remand

to the trial court “for the purpose of issuing revised notice of [the applicable]

registration requirements.”7 Appellant’s Brief, at 35.

       Because we vacate the trial court’s SVP order, as requested by Davis,

we need not address the remaining issues he raises on appeal, which contest

his SVP designation on other grounds.



____________________________________________


6 SORNA was enacted on December 20, 2011, and became effective on
December 20, 2012. SORNA was amended on February 21, 2018, by H.B.
631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 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.

7 See Commonwealth v. Luciani, 201 A.3d 802, 808 (Pa. Super. 2018)
(remanding to trial court to discern, in first instance, what registration
provisions applied to appellant).



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      Sexually Violent Predator designation reversed. Case remanded to the

trial court for proceedings consistent with this memorandum. Judgment of

sentence affirmed in all other aspects. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2019




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