J-S16030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 WILLIAM CHANDLER BYERS                 :
 AUGUSTA                                :   No. 749 MDA 2017
                                        :
                    Appellant           :

         Appeal from the Judgment of Sentence February 28, 2017
 In the Court of Common Pleas of Cumberland County Criminal Division at
                    No(s): CP-21-CR-0000068-2016,
           CP-21-CR-0002014-2015, CP-21-CR-0002934-2015


BEFORE:    BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                            FILED APRIL 27, 2018

      William Chandler Byers Augusta (Appellant) appeals from the trial

court’s determination that he is a sexually violent predator (SVP). We vacate

Appellant’s SVP designation under SORNA, but note that he remains subject

to lifetime registration and otherwise affirm his judgment of sentence.

      On October 18, 2016, Appellant pled guilty to a multitude of sexual

offenses, including numerous counts of rape of a child, aggravated indecent

assault of a child, sexual abuse of children, and criminal conspiracy.      On

February 28, 2017, the trial court sentenced him to an aggregate 45 to 90

years of incarceration, followed by 30 years of probation. The trial court also




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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ordered that Appellant comply with the requirements of SORNA.1 That same

day, by separate order, the trial court found Appellant to be a sexually violent

predator, stating “upon conclusion of the mandated SVP hearing, review of

both Doctors’ reports, [Appellant] is found to be a sexually violent predator as

defined by statute.” Order, 2/28/17. The trial court, counsel and Appellant

all signed “Acknowledgment of Notification Pursuant to 42 Pa.C.S. § 9799.23”,

which specified that Appellant was classified as an SVP (as opposed to a Tier

I, II, or III Offender).

       Appellant filed a post-sentence motion for modification of sentence on

March 9, 2017, which the trial court denied on April 7, 2017. Appellant filed

this appeal on May 5, 2017, and on May 8, 2017, the trial court directed him

to comply with Pa.R.A.P. 1925(b). On May 26, 2017, Appellant’s counsel filed

a statement of intent to file an Anders/McClendon brief.2 The trial court did

not file an opinion. On October 31, 2017, this Court decided Commonwealth

v. Butler, 173 A.3d 1212 (Pa. Super. 2017), in which we held that the portion

of SORNA governing SVP status was unconstitutional. Accordingly, Appellant’s

counsel did not file an Anders/McClendon brief, and as a result, Appellant

presents the following issue:



____________________________________________


1Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), 42
Pa.C.S.A. §§ 9799.10-9799.41.
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).

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      WHETHER THE PORTION OF [APPELLANT’S] SENTENCE DEEMING
      HIM A SEXUALLY VIOLENT PREDATOR IS ILLEGAL.

Appellant’s Brief at 2.

      Preliminarily, we note that Appellant’s challenge to the legality of his

sentence is non-waiveable. See, e.g., Commonwealth v. Foster, 17 A.3d

332 (Pa. 2011). Moreover, even had Appellant not raised this issue, we may

address it sua sponte. See Commonwealth v. Randal, 837 A.2d 1211 (Pa.

Super. 2003) (en banc).

      Appellant accurately states, “the trial court conducted an SVP hearing

and determined the Appellant to be a sexually violent predator using the clear

and   convincing    evidence    standard    as   prescribed    by   42   Pa.C.S.

§9799.24(e)(3).” Appellant’s Brief at 5. He further cites Butler, holding that

42 Pa.C.S.A. § 9799.24(e)(3) was unconstitutional.            Id.   at 6-7.   We

explained:

      [O]ur Supreme Court’s holding [in Commonwealth v. Muniz,
      164 A.3d 1189 (Pa. 2017)] that registration requirements under
      SORNA constitute a form of criminal punishment is dispositive of
      the issue presented in this case. In other words, since our
      Supreme Court has held that SORNA registration requirements are
      punitive or a criminal penalty to which individuals are exposed,
      then under Apprendi [v. New Jersey, 530 U.S. 466 (2000)] and
      Alleyne [v. United States, 570 U.S. 99 (2013)], a factual
      finding, such as whether a defendant has a “mental abnormality
      or personality disorder that makes [him or her] likely to engage
      in predatory sexually violent offenses [,]” 42 Pa.C.S.A. § 9799.12,
      that increases the length of registration must be found beyond a
      reasonable    doubt    by the      chosen fact-finder. Section
      9799.24(e)(3) identifies the trial court as the finder of fact in all
      instances and specifies clear and convincing evidence as the
      burden of proof required to designate a convicted defendant as an
      SVP. Such a statutory scheme in the criminal context cannot

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       withstand constitutional scrutiny. Accordingly, we are constrained
       to hold that section 9799.24(e)(3) is unconstitutional and
       Appellant’s judgment of sentence, to the extent it required him to
       register as an SVP for life, was illegal.

       As the sole statutory mechanism for SVP designation is
       constitutionally flawed, there is no longer a legitimate path
       forward for undertaking adjudications pursuant to section
       9799.24. As such, trial courts may no longer designate
       convicted defendants as SVPs, nor may they hold SVP
       hearings,     until   our   General   Assembly     enacts   a
       constitutional designation mechanism.

Butler, 173 A.3d at 1217–1218 (emphasis added).

       Consistent with the foregoing, we agree with Appellant that his

designation as an SVP under SORNA was illegal.3 We therefore vacate that

portion of Appellant’s sentence.         See Commonwealth v. Tighe, 2018 PA

Super 86 (Apr. 12, 2018). However, because Appellant was convicted of rape,

which is a Tier III offense, we note that he is still subject to lifetime

registration. Id., citing 42 Pa.C.S.A. § 9799.14 (classifying rape as a Tier III

offense).

       SVP designation vacated. Judgment of sentence otherwise affirmed.




____________________________________________


3 The Commonwealth notes that a petition for allowance of appeal in Butler
is pending at 47 WAL 2018, but concedes that at present, Appellant’s SVP
designation is illegal. Commonwealth Brief at 8 (“If or until Butler is
overturned, [Appellant’s] SVP designation is illegal.”)

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/27/18




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