J-S17019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    JOHN WAYNE BUTZ

                             Appellant              No. 1235 MDA 2019


      Appeal from the Judgment of Sentence Entered September 23, 2016
                In the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0002488-2011


BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 03, 2020

       Appellant John Wayne Butz appeals nunc pro tunc from the September

23, 2016 judgment of sentence entered in the Court of Common Pleas of

Luzerne County (“trial court”), following a resentencing hearing held pursuant

to Alleyne and Wolfe.1 Upon review, we affirm in part and reverse in part.

       The facts and procedural history of this case are undisputed. 2     In

connection with incidents that occurred between May 2008 and January 2010,
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1 Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt) and
Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa. Super. 2014) (holding
that, consistent with Alleyne, a mandatory minimum sentence imposed
pursuant to 42 Pa.C.S.A. § 9718 for offenses against infant persons is
unconstitutional), aff’d, 140 A.3d 651 (Pa. 2016).
2Unless otherwise specified, these facts come from the trial court’s September
25, 2019 opinion and this Court’s February 27, 2014 Memorandum. See Trial
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Appellant was charged with rape of a child, involuntary deviate sexual

intercourse (“IDSI”) of a person less than sixteen years old, statutory sexual

assault, aggravated indecent assault of a person less than sixteen years old,

indecent assault of a person less than thirteen years old, and corruption of

minors.3 On October 24, 2012, a jury found Appellant guilty of the foregoing

crimes. Prior to sentencing, the trial court ordered a presentence investigation

(PSI) report and a Sexual Offender Assessment Board (SOAB) evaluation. On

March 15, 2013, the trial court held a sentencing hearing, at which a

representative of SOAB testified that Appellant had met the criteria to be

classified as a sexually violent predator (SVP).4        Based on the evidence

presented, the trial court determined Appellant to be a SVP. The trial court

also sentenced Appellant to an aggregate term of 22 to 44 years’

imprisonment. Finally, the trial court ordered Appellant to register for life as

a Tier III sexual offender under SORNA.5         Appellant did not file any post-
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Court Opinion, 9/25/19, at 1-3; see Commonwealth v. Butz, No. 734 MDA
2013, unpublished memorandum, at 1-2 (Pa. Super. filed February 27, 2014).
318 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3122.1, 3125(a)(8), 3126(a)(7) and
6301(a)(1)(i), respectively.
4 When Appellant committed the crimes, sexual offender registration and
notification requirements were set forth in what was commonly referred to as
Megan’s Law, 42 Pa.C.S.A. §§ 9791-9799.9. However, at the time of his
sentencing, Megan’s Law had been replaced by the Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41,
effective December 20, 2012.
5 See 42 Pa.C.S.A. § 9799.14(d) (defining, inter alia, rape, aggravated
indecent assault, and indecent assault of a person less than 13 years of age
as a Tier III offense); 42 Pa.C.S.A. § 9799.15(a)(3) (requiring Tier III
offenders to register as sex offender for life).

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sentence motions.     On February 27, 2014, a panel of this Court affirmed

Appellant’s judgment of sentence. See Commonwealth v. Butz, 97 A.3d

816 (Pa. Super. filed February 27, 2014). On August 13, 2014, our Supreme

Court    denied   Appellant’s   petition   for   allowance   of   appeal.   See

Commonwealth v. Butz, 97 A.3d 742 (Pa. 2014).

        Appellant subsequently sought and was granted post-conviction relief

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46, on his

mandatory minimum sentence claim under Alleyne and Wolfe.                   On

September 23, 2016, the trial court resentenced Appellant to an aggregate

term of 17 to 39 years’ imprisonment. Appellant filed post-sentence motions,

which the trial court denied. Appellant did not file a direct appeal.

        On September 11, 2017, Appellant pro se filed a PCRA petition, seeking

the reinstatement of his direct appeal rights.       The PCRA court appointed

counsel, who filed a supplemental petition challenging Appellant’s SVP

designation and his lifetime registration requirement under SORNA. Following

a hearing, the PCRA court reinstated nunc pro tunc Appellant’s direct appeal

rights on June 28, 2019. Appellant timely filed a notice of appeal. The trial

court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Appellant complied. In response, the trial court

issued a Pa.R.A.P. 1925(a) opinion.




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       On appeal, Appellant presents two issues for our review.6                First,

Appellant argues that, under Commonwealth Muniz, 164 A.3d 1189 (Pa.

2017),     his   lifetime     registration     and   reporting   requirements     are

unconstitutional. Second, he argues that, under Commonwealth v. Butler,

173 A.3d 1212 (Pa. Super. 2017) (Butler I), his SVP designation is illegal.

       Because Appellant’s issues on appeal implicate legality of sentence and

thus present a question of law, our standard of review is de novo and our

scope of review is plenary. See Muniz, 164 A.3d at 1195.

       We first address Appellant’s argument that his lifetime registration and

reporting requirements under SORNA are unconstitutional under Muniz. Like

the Commonwealth and the trial court, we agree.

       The legislature enacted SORNA on December 20, 2011, and it became

effective one year later, on December 20, 2012.              Although SORNA and

Megan’s Law both carry lifetime registration requirements for, inter alia, rape,

SORNA has more extensive reporting requirements than Megan’s Law.

Whereas Megan’s Law required registrants to appear in-person annually, 42

Pa.C.S.A. § 9796(b) (expired December 20, 2012), SORNA requires Tier III

offenders such as Appellant to report every ninety days for life and post

personal information on the Pennsylvania State Police website. 42 Pa.C.S.A.


____________________________________________


6  Appellant seemingly abandoned his third issue challenging the
constitutionality of Act 10, Act of February 21, 2018, P.L. 27, No. 10.
Appellant’s Brief at 7. In so doing, Appellant states that because he “has yet
to be sentenced under Act 10, said issue is not ripe for disposition.” Id.

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§§ 9799.15(e)(3), 9799.25(a)(3); Commonwealth v. Lippincott, 208 A.3d

143, 148 (Pa. Super. 2019) (en banc).

      The Muniz Court considered whether SORNA was unconstitutional as

applied to a defendant subjected to an increased registration period under

SORNA.    Muniz, 164 A.3d at 1192-93.      Muniz was convicted of indecent

assault in 2007 and subject to a ten-year registration requirement pursuant

to then-extant Megan’s Law III (42 Pa.C.S.A. § 9795.1 et seq. (expired)). Id.

at 1193. Muniz absconded prior to sentencing. In 2014, he was apprehended,

sentenced, and subjected to a lifetime reporting requirement under SONRA.

Id. Our Supreme Court held that SORNA is punitive rather than civil, and that

retroactive application of SORNA to past sexual offenders violates the ex post

facto clauses of the United States and Pennsylvania Constitution. The Court

reasoned that SORNA was unconstitutional as applied to Muniz because it

increased the punishment for indecent assault after he committed the offense.

      Instantly, it is uncontested that Appellant committed the offenses for

which he was convicted between May 2008 and January 2010, i.e., prior to

the enactment and effective dates of SORNA. Thus, consistent with Muniz,

the retroactive application of SORNA to Appellant’s crimes, which occurred

prior to SORNA’s enactment and effective dates, is unconstitutional.      We

remand this case to the trial court to determine the appropriate registration

and reporting requirements for Appellant. Accordingly, we vacate the portion

of Appellant’s judgment of sentence requiring him to register and report under

SORNA.

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       We next address Appellant’s argument that he is entitled to relief under

Butler I in connection with his SVP designation.            In light of our Supreme

Court’s recent decision in Commonwealth v. Butler, __ A.3d __, 2020 WL

1466299 (Pa. 2020) (Butler II), we are constrained to disagree.

       In Butler I, this Court concluded that, in light of our Supreme Court’s

decision in Muniz, “Section 9799.24(e)(3) of SORNA [regarding SVP

designation] 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.”

Butler, 173 A.3d at 1218. This Court’s reasoning in Butler I was based on

the United States Supreme Court’s decision in Alleyne.

       During the pendency of this appeal, on March 26, 2020, our Supreme

Court reversed this Court’s decision in Butler I. See Butler, __ A.3d at __,

2020 WL 1466299, at *1, 15-16.                 The Court concluded that the SVP

designation—as       well   as   the   registration,   notification,   and   counseling

requirements specific to SVPs—“do not constitute criminal punishment and

therefore the procedure for designating individuals as SVPs under Section

9799.24(e)(3) is not subject to the requirements of Apprendi[7] and Alleyne

and remains constitutionally permissible.” Id. at __, 2020 WL 1466299 at *1.

In other words, under Butler II, SVP designation is not a criminal punishment
____________________________________________


7 Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any facts,
other than the fact of a prior conviction, that subject a defendant to any
additional penalty beyond a statutory maximum must be submitted to a jury
and be found proved beyond a reasonable doubt).

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and, as such, passes muster under both Apprendi and Alleyne. Thus, we

cannot   conclude    that   Appellant’s   SVP   designation   under   SONRA     is

unconstitutional. The sole basis upon which he relies, that is Butler I, has

been overturned expressly by our Supreme Court in Butler II. Accordingly,

Appellant is not entitled to relief.

      In sum, we affirm in part and vacate in part Appellant’s judgment of

sentence and remand this matter to the trial court to determine the

appropriate registration and reporting requirements for Appellant.

      Affirmed in part.      Vacated in part.    Case remanded.       Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2020




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