J-A07011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY MICHAEL MAYEWSKI                   :
                                               :
                       Appellant               :   No. 687 MDA 2019

       Appeal from the Judgment of Sentence Entered November 20, 2018
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0002018-2017


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 18, 2020

        Appellant, Timothy Michael Mayewski, appeals from the judgment of

sentence entered on November 20, 2018, as made final by the denial of his

post-sentence motion on March 27, 2019, following his guilty plea to

aggravated indecent assault of a child less than 13 years old.1 We affirm.

        The trial court accurately summarized the factual and procedural history

of this case as follows.

        [In 2017, Appellant] was charged with one count of aggravated
        indecent assault, two counts of indecent assault, one count of
        corruption of minors and one count of endangering [the] welfare
        of children.   On May 21, 2018, [Appellant pled guilty] to
        aggravated indecent assault of a child less than [13 years old.]

        At the time of his guilty plea, [Appellant] was made aware of the
        maximum possible sentence[,] as well as his lifetime registration
        requirement pursuant to 42 Pa.C.S.A. [§] 9799.15 (a)(3). He was
        also advised of his requirement to undergo an evaluation by the
____________________________________________


1   18 Pa.C.S.A. § 3125(a)(7).
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       Sexual Offenders Assessment Board. Sentencing was scheduled
       for August 3, 2018.

       On August 1, 2018, the Commonwealth submitted a motion to
       schedule [a Sexually Violent Predator (SVP)] hearing pursuant to
       42 Pa.C.S.A. [§] 9799.24(e). As a result of the motion, a hearing
       was scheduled for August 31, 2018 and sentencing did not occur
       on August 3[, 2018]. Prior to the hearing, [Appellant filed] a
       motion in opposition to [the SVP] hearing . . . and the
       Commonwealth filed a response. The hearing scheduled for
       August 31, 2018 was continued at the request of [Appellant].
       Sentencing and the hearing to determine if [Appellant] would be
       [assigned SVP status] took place on November 20, 2018.

       Immediately prior to the imposition of sentence on November 20,
       2018, [a] hearing was held to determine whether [Appellant] was
       [an SVP]. Defense counsel again objected to the SVP hearing as
       well as the reporting and registration requirements imposed by
       the Sexual Offender Registration Notification Act [(SORNA)].
       [See] 42 Pa.C.S.A. [§]9799.10 et seq. At the conclusion of the
       hearing, th[e trial court] determined [that Appellant was an SVP,]
       thereby subjecting him to a lifetime registration requirement.
       [Appellant] was also subject to [] lifetime registration as a result
       of his status as a Tier III offender. The Assistant District Attorney
       provided [Appellant] with notice of his reporting requirements by
       reading them into the record.          [Thereafter, the trial court
       sentenced Appellant to 36 to 120 months’ incarceration] in a state
       correctional institution. This sentence was within the standard
       range of the guidelines. [Appellant] also received credit for
       serving 546 days of incarceration prior to sentencing.

       On November 30, 2018, [Appellant filed a] post[-]sentence
       motion[ which raised] various constitutional challenges . . . [to
       SORNA] as well as [Appellant’s] designation as [an SVP].
       [Appellant] also sought [] reconsideration of his sentence. The
       [trial court denied Appellant’s] post[-]sentence motion[] . . . [on]
       March 27, 2019. [This timely appeal followed.2]
____________________________________________


2 Appellant filed a notice of appeal on April 23, 2019.    On April 26, 2019, the
trial court entered an order directing Appellant to file   a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P.       1925(b)(1). Appellant
timely complied. The trial court issued an opinion         pursuant to Pa.R.A.P.
1925(a) on June 21, 2019.


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J-A07011-20



Trial   Court     Opinion,   6/21/19,   at     *1-2   (un-paginated)     (superfluous

capitalization omitted) (footnote added).

        Appellant raises the following issue on appeal:

         I.   [Whether SORNA II contravenes the Fifth, Sixth and 14th
              Amendments of the United States’ Constitution and corresponding
              provisions of the Pennsylvania Constitution as a criminal
              punishment without appropriate due process when Appellant’s
              designation as an SVP was not submitted to a fact finder or jury
              and proven beyond a reasonable doubt pursuant to
              Commonwealth v. Butler, 173 A.3d 1212, 1213 (Pa. Super.
              2017)(“Butler I”); Apprendi v. New Jersey, 560 U.S. 466
              (2000); and Alleyne v. United States, 570 U.S. 99 (2013)?]


See generally Appellant’s Brief at 2.

        Herein,    Appellant   argues   that    his   designation   as   an   SVP   is

unconstitutional in view of our Supreme Court’s decision in Commonwealth

v. Muniz, 164 A.3d 1189 (Pa. 2017). Appellant’s Brief at 5-7. Specifically,

Appellant argues that, while Muniz dealt with an earlier version of SORNA

(“SORNA I”), “the amendments made to Subchapter H of Title 42, by Act 29[]

of 2018 (referred to as ‘SORNA II’), which apply to Appellant, are de minimis.”

Id. at 5.     As such, Appellant asserts Subchapter H of SORNA II “remains

punitive or punishment” and, therefore, is unconstitutional. Id. at 6. Further,

Appellant contends that the procedure by which he was designated as an SVP

is unconstitutional pursuant to this Court’s decision in Butler I, as well as the

United States Supreme Court’s opinions in Apprendi and Alleyne. Id. at 7.

Accordingly, Appellant asks this Court to vacate his SVP designation. Id.




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     Appellant’s claim challenges the legality of his sentence.     An issue

relating to legality of sentence presents a question of law for our review.

Commonwealth v. Jacobs, 39 A.3d 977, 982 (Pa. 2012) (citation omitted).

“When addressing such questions of law, we employ a plenary scope of review,

and our standard of review is de novo.” Id.

     This Court recently explained:

     [Appellant] is correct that Muniz established that SORNA I’s
     registration requirements, as applied retroactively, were punitive
     and constituted punishment. In reaching that decision, the Court
     in Muniz employed the seven-factor test set forth by the United
     States Supreme Court in Kennedy v. Mendoza-Martinez, 372
     U.S. 144 (1963), and found that those registration requirements
     were violative of the ex post facto clauses of the United States
     and Pennsylvania Constitutions. See Muniz, 164 A.3d at 1223.

     Similarly, [Appellant] is also right that Butler I held that a
     necessary corollary to Muniz was that an SVP determination
     required constitutional procedural safeguards. In so finding,
     Butler I relied heavily on the United States Supreme Court cases
     Apprendi and Alleyne. See Butler I, 173 A.3d at 1216-[12]18.
     To summarize, Apprendi found that “it [was] unconstitutional for
     a legislature to remove from the jury the assessment of facts that
     increase the prescribed range of penalties to which a criminal
     defendant is exposed.” Id.[] at 1216. Moreover, “such facts must
     be established by proof beyond a reasonable doubt.” Id.[] at
     1217. Subsequently, Alleyne mandated that “any fact that
     increases the mandatory minimum sentence for a crime is an
     element that must be submitted to the jury and found beyond a
     reasonable doubt.” Id.

     The panel in Butler I emphasized that “Apprendi and Alleyne
     apply to all types of punishment, not just imprisonment.” Id.
     Therefore, if any factual determination results in an increased
     punishment-based sentence, that finding must be adjudicated
     beyond a reasonable doubt.

     In utilizing the precepts contained within Apprendi and Alleyne,
     Butler I also illuminated our Supreme Court’s determination in
     Muniz, wherein the Court designated the registration

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J-A07011-20


     requirements under SORNA to be a form of criminal punishment.
     See id. Accordingly, Butler I made the connection that “since
     our Supreme Court has held that SORNA registration
     requirements are punitive or a criminal penalty to which
     individuals are exposed, then under Apprendi and Alleyne, a
     factual finding ... that increases the length of registration must be
     found beyond a reasonable doubt[.]” Id.

     In response, the General Assembly enacted responsive legislation
     known collectively as SORNA II, which our Governor thereafter
     signed into law. See Act of Feb. 21 2018, P.L. 27, No. 10; Act of
     June 12, 2018, P.L. 1952, No. 29. The legislation explicitly notes
     that it was passed in response to Muniz and Butler I.

     Recently, however, our Supreme Court reviewed Butler I and
     reversed much of its legal analysis and underpinnings.
     [Commonwealth v. Butler, 2020 WL 1466299 (Pa. March 26,
     2020) (“Butler II”)]. In distinguishing [the facts underlying
     Butler I and II] itself from the facts of Muniz, the Court
     remarked:

        SVPs are different from the non-SVP SORNA registrants at
        issue in Muniz due to heightened public safety concerns
        based on the determination [that] SVPs have “a mental
        abnormality or personality disorder that makes the
        individual likely to engage in predatory sexually violent
        offenses.” 42 Pa.C.S. § 9799.12. Therefore, a simple
        extrapolation from the analysis in Muniz is insufficient to
        determine whether the RNC [registration, notification, and
        counseling] requirements constitute criminal punishment.

     Id.[] 2020 WL 1466299 at *10.

     In continuing its discussion, the Supreme Court conducted an
     examination of the [RNC] requirements as applicable to SVPs
     using the two-part inquiry employed in Commonwealth v.
     Williams, 832 A.2d 962 (Pa. 2003) . . . and subsequently in
     Muniz. See Muniz, 164 A.3d at 1208 (analyzing first the General
     Assembly’s intent and second a series of enumerated factors).

     First, the Butler II Court determined [that] the General
     Assembly’s intention with respect to Subchapter H was
     non-punitive in nature. See Butler II, 2020 WL 1466299 at *11.
     Next, the Court considered the Mendoza-Martinez factors and
     determined the punitive factors did not outweigh the non-punitive
     ones. See id.[] at *12-15. The Court held:

                                     -5-
J-A07011-20


         Although we recognize [that] the RNC requirements impose
         affirmative disabilities or restraints upon SVPs, and those
         requirements have been historically regarded as
         punishment, our conclusions in this regard are not
         dispositive on the larger question of whether the statutory
         requirements constitute criminal punishment.        This is
         especially so where the government in this case is
         concerned with protecting the public, through counseling
         and public notification rather than deterrent threats, not
         from those who have been convicted of certain enumerated
         crimes, but instead from those who have been found to be
         dangerously mentally ill. Under the circumstances, and also
         because we do not find the RNC requirements to be
         excessive in light of the heightened public safety concerns
         attendant to SVPs, we conclude the RNC requirements do
         not constitute criminal punishment.

      Id.[] at *15 (citation omitted) (emphasis [omitted]). Most
      importantly and of greatest relevance here was the Court’s
      determination that “the procedure for designating individuals as
      SVPs under Section 9799.24(e)(3) is not subject to the
      requirements for Apprendi and Alleyne and remains
      constitutionally permissible.” Id.[] at *1.

Commonwealth v. Titus, 2020 WL 2617029, at *2-3 (Pa. Super. May 22,

2020).

      Herein, in light of our Supreme Court’s decision in Butler II, we

conclude that Subchapter H is not punitive and that the trial court did not err

in designating Appellant as an SVP under SORNA II.        We therefore affirm

Appellant’s judgment of sentence.




                                     -6-
J-A07011-20




     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2020




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