J-S22032-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANK DANIEL WEIAND                        :
                                               :
                       Appellant               :   No. 1380 MDA 2018

          Appeal from the Judgment of Sentence Entered June 7, 2018
       In the Court of Common Pleas of Mifflin County Criminal Division at
                        No(s): CP-44-CR-0000395-2017


BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                  FILED: MAY 20, 2019

        Frank Daniel Weiand (Weiand) appeals from the judgment of sentence

imposed by the Mifflin County Court of Common Pleas following his entry of a

plea of nolo contendere to one count of statutory sexual assault.1 Specifically,

he challenges his designation as a sexually violent predator (SVP). We vacate

the judgment of sentence with respect to the SVP designation and affirm in all

other respects.

        We derive the following relevant facts and procedural history of this case

from our independent review of the record.           On March 9, 2018, Weiand

entered a nolo contendere plea to the above-referenced offense. The charge

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1   18 Pa.C.S. § 3122.1(b).


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* Retired Senior Judge assigned to the Superior Court.
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stems from his long-term sexual abuse of his daughter beginning when she

was three or four years old, from approximately January 2013 through

November 2016. On June 7, 2018, the trial court designated him an SVP,

using a clear and convincing evidence standard of proof.              (See N.T.

Sentencing, 6/07/18, at 27).         It sentenced him to a term of not less than

eleven-and-a-half nor more than twenty-three months’ incarceration. This

timely appeal followed.2

       Weiand challenges his SVP designation on appeal and argues that it

should be vacated because it is unconstitutional under Commonwealth v.

Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa.

2018). (See Weiand’s Brief, at 5-7) (unpaginated).3 The response of the trial

court and the Commonwealth is that any constitutional defects in the SVP

designation process have been remedied by the passage of subsequent

legislation. (See Trial Court Opinion, 8/02/18, at 1-2; Commonwealth’s Brief,

at 4-5).


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2 The record reflects that counsel for Weiand did not file a concise statement
of errors complained of on appeal as directed by the trial court. See Pa.R.A.P.
1925(b). However, because the trial court addressed the issue raised by
Weiand on appeal in its August 2, 2018 opinion, it is unnecessary to remand.
See Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016),
appeal denied, 165 A.3d 892 (Pa. 2017); Pa.R.A.P. 1925(c)(3).

3 “We review the legality of a sentence de novo and our scope of review is
plenary.” Butler, supra at 1215 (citation omitted).




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        By way of background, the Butler Court considered the constitutionality

of the Sexual Offender Registration and Notification Act’s (“SORNA’s”)4

framework for designating a convicted defendant an SVP. See Butler, supra

at 1213. The Court determined that because the relevant provision employed

a clear and convincing evidence burden of proof rather than a beyond a

reasonable doubt standard, the statutory scheme could not withstand

constitutional scrutiny under applicable precedent.          See id. at 1218.

Specifically, it held that “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. It further directed that “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.” Id. “Instead, trial courts must notify a defendant

that he or she is required to register for 15 years if he or she is convicted of

a Tier I sexual offense, 25 years if he or she is convicted of a Tier II sexual

offense, or life if he or she is convicted of a Tier III sexual offense.” Id.5




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4   42 Pa.C.S. §§ 9799.10-9799.41.

5Statutory sexual assault is classified as a Tier III sexual offense. See 42
Pa.C.S. § 9799.14(d).


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       In response, “the Pennsylvania General Assembly passed Acts 10 and

29 of 2018.” Commonwealth v. Wood, 2019 WL 1595871, at *8 (Pa. Super.

filed Apr. 15, 2019) (en banc).          The express purpose of these legislative

enactments was, inter alia, to remedy the constitutional defects of SORNA by

addressing Butler.          See 42 Pa.C.S. § 9799.11(b)(4); 42 Pa.C.S. §

9799.51(b)(4). However, this legislation did not alter the clear and convincing

evidence burden of proof used by trial courts to determine SVP status. See

42 Pa.C.S. § 9799.24(e)(3). Because the Butler Court held that this standard

is unconstitutional, we are bound by its decision. See Commonwealth v.

Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (“This Court is bound by existing

precedent under the doctrine of stare decisis and continues to follow

controlling precedent as long as the decision has not been overturned by our

Supreme Court.”) (citation omitted). Accordingly, we vacate Weiand’s SVP

status and, in accord with Butler, remand this case to the trial court for the

sole purpose of issuing appropriate notice to him of his registration obligation.6

       SVP designation vacated. Judgment of sentence affirmed in all other

respects. Case remanded with instructions. Jurisdiction relinquished.

       Judge Dubow joins the memorandum.

       Judge Shogan concurs in the result.


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

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2019




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