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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES LUTHER KING                        :
                                          :
                    Appellant             :   No. 678 WDA 2018

            Appeal from the Judgment of Sentence May 3, 2017
    In the Court of Common Pleas of Clarion County Criminal Division at
                      No(s): CP-16-CR-0000150-2016

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                       FILED DECEMBER 24, 2018

      James Luther King (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of committing numerous sex offenses.

Appellant’s appellate counsel (Counsel) seeks to withdraw from representation

pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009). After careful consideration, we affirm

in part and vacate in part Appellant’s judgment of sentence, deny Counsel’s

petition to withdraw, and remand for proceedings consistent with this decision.

      From approximately 2006 to 2015, Appellant sexually assaulted five

females ranging in age from 5 to 20. The victims reported these crimes to

the Pennsylvania State Police (PSP) in December 2015.        On February 22,

2016, the Commonwealth filed a criminal complaint in which it charged

Appellant with 35 counts of various sex offenses. On August 24, 2016, a jury

found Appellant guilty of 21 charges, including one count of rape by forcible
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compulsion,1 one count of rape of a child,2 four counts of corruption of minors,3

three counts of indecent assault of a complainant less than 13 years of age,4

three counts of indecent exposure,5 one count of disseminating explicit sexual

material to a minor,6 five counts of indecent assault without the complainant’s

consent,7 one count of indecent assault by forcible compulsion,8 one count of

indecent assault of a complainant less than 16 years of age,9 and one count

of invasion of privacy.10

        After Appellant’s convictions, the trial court, pursuant to the provisions

of 42 Pa.C.S.A. § 9799.24, ordered the Pennsylvania Sexual Offenders

Assessment Board (SOAB) to assess Appellant to determine whether he was

a Sexually Violent Predator (SVP). On April 7, 2017, the trial court held a



____________________________________________


1    18 Pa.C.S.A. § 3121(a)(1).

2    18 Pa.C.S.A. § 3121(c).

3    18 Pa.C.S.A. § 6301(a)(1)(ii).

4    18 Pa.C.S.A. § 3126(a)(7).

5    18 Pa.C.S.A. § 3127(a).

6    18 Pa.C.S.A. § 5903(c)(1).

7    18 Pa.C.S.A. § 3126(a)(1).

8    18 Pa.C.S.A. § 3126(a)(2).

9    18 Pa.C.S.A. § 3126(a)(8).

10   18 Pa.C.S.A. § 7507.1(a)(1).

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hearing on Appellant’s SVP status, at the conclusion of which it found that the

Commonwealth had proved its burden of establishing by clear and convincing

evidence that Appellant met all of the criteria of an SVP. On April 10, 2017,

the trial court entered an order classifying Appellant as an SVP.

        On May 3, 2017, the trial court sentenced Appellant to an aggregate

term of 24 to 48 years of incarceration. The trial court’s sentencing order

specifically instructed Appellant to register as an SVP pursuant to SORNA.

Appellant did not file any post-sentence motions or a direct appeal.

        On September 28, 2017, Appellant filed a pro se petition pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA

court appointed counsel and on January 31, 2018, Appellant filed an amended

PCRA petition. On April 9, 2018, the PCRA court entered an order granting

Appellant’s PCRA petition, and reinstating his direct appeal rights nunc pro

tunc.    In the same order, the PCRA court appointed Counsel to represent

Appellant for his direct appeal. On May 7, 2018, Appellant filed a timely notice

of appeal from his judgment of sentence. Both the trial court and Appellant

have complied with Rule 1925 of the Pennsylvania Rules of Appellate

Procedure.

        On October 16, 2018, Counsel filed petition to withdraw as counsel with

this Court and an Anders brief. There are particular mandates that counsel

seeking to withdraw pursuant to Anders must follow. These mandates and

the significant protection they provide to an Anders appellant arise because


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a criminal defendant has a constitutional right to a direct appeal and to counsel

on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.

2007). We have summarized these requirements as follows:

      Direct appeal counsel seeking to withdraw under Anders must file
      a petition averring that, after a conscientious examination of the
      record, counsel finds the appeal to be wholly frivolous. Counsel
      must also file an Anders brief setting forth issues that might
      arguably support the appeal along with any other issues necessary
      for the effective appellate presentation thereof.

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and remand
      the case with appropriate instructions (e.g., directing counsel
      either to comply with Anders or file an advocate’s brief on
      Appellant’s behalf).

Id. (citations omitted).

      Additionally, there are requirements as to precisely what an Anders

brief must contain:

      [T]he Anders brief that accompanies court-appointed counsel’s
      petition to withdraw . . . must: (1) provide a summary of the
      procedural history and facts, with citations to the record; (2) refer
      to anything in the record that counsel believes arguably supports
      the appeal; (3) set forth counsel’s conclusion that the appeal is
      frivolous; and (4) state counsel’s reasons for concluding that the
      appeal is frivolous. Counsel should articulate the relevant facts of
      record, controlling case law, and/or statutes on point that have
      led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. When faced with a purported Anders brief, we

may not review the merits of the underlying issues without first deciding


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whether     counsel   has   properly   requested   permission   to   withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted).    If counsel has met these obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.

      Instantly, we conclude that Counsel has complied with the requirements

outlined above. Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Petition for

Leave to Withdraw as Counsel, 10/16/18, at ¶ 2.         In conformance with

Santiago, Counsel’s brief includes summaries of the facts and procedural

history of the case and discusses the only issue he believes might arguably

support Appellant’s appeal. See Anders Brief at 9-16. Counsel’s brief sets

forth his conclusion that the appeal is frivolous and includes citation to

relevant authority. See id. Finally, Counsel has attached to his petition to

withdraw the letter that he sent to Appellant, which enclosed Counsel’s

petition and Anders brief and advised Appellant of his right to proceed pro se

or with private counsel and to raise any additional issues that he deems worthy

of this Court’s consideration.

      Accordingly, we must determine whether Appellant’s appeal is wholly

frivolous. Based upon our independent review of the record, we conclude that

Appellant’s appeal is not frivolous.     Appellant seeks to raise ineffective


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assistance of counsel claims on direct appeal. See Anders Brief at 14-16.

Counsel correctly asserts that, generally, a criminal defendant may not assert

claims of ineffective    assistance   of counsel on direct appeal.          See

Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013). Our Supreme

Court has held that “[g]enerally, claims of ineffectiveness of counsel are not

ripe until collateral review.” Commonwealth v. Knox, 165 A.3d 925, 928

(Pa. Super. 2017) (citing Holmes, 79 A.3d at 576), appeal denied, 173 A.3d

257 (Pa. 2017). Ineffective assistance of counsel claims are permitted on

direct review, at the discretion of the trial court, only where there exists: (1)

extraordinary circumstances, or (2) good cause accompanied by a knowing

and express waiver of PCRA rights. Holmes, 79 A.3d at 577-80. Exceptional

circumstances exist where “a claim (or claims) of ineffectiveness is both

meritorious and apparent from the record so that immediate consideration

and relief is warranted.” Id. at 577. Here, Appellant makes no argument that

extraordinary circumstances exist nor has he waived PCRA review. Therefore,

insofar as Appellant challenges his trial counsel’s effectiveness, such claims

must await collateral review.

      Were this Appellant’s only conceivable claim, Counsel would be correct

that Appellant’s appeal is wholly frivolous. See id. However, based on this

Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017), appeal granted, 190 A.3d 581 (Pa. 2018), we conclude that

Appellant’s case presents an issue that entitles him to relief.


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      In Butler, instead of reaching the appellant’s issues, this Court

concluded sua sponte that the appellant’s SVP designation constituted an

illegal sentence. Id. at 1214 (stating that questions regarding the legality of

a sentence are non-waivable and that this Court may raise them sua sponte).

This Court explained:

          To understand the issue presented in this case, it is necessary
      to review the relevant portions of SORNA that address SVPs.
      Under SORNA, an individual convicted of a sexually violent offense
      . . . must be evaluated by the SOAB. 42 Pa.C.S.A. § 9799.24(a).
      The SOAB conducts a 15-factor analysis to determine if the
      individual should be designated an SVP.            42 Pa.C.S.A. §
      9799.24(b). The SOAB then submits a report to the prosecuting
      authority. 42 Pa.C.S.A. § 9799.24(d). Upon praecipe by the
      prosecuting authority, the trial court schedules an SVP hearing.
      42 Pa.C.S.A. § 9799.24(e)(1). At the conclusion of that hearing,
      “the court [determines] whether the Commonwealth has proved
      by clear and convincing evidence that the individual is a[n SVP].”
      42 Pa.C.S.A. § 9799.24(e)(3). It is this last step in the process,
      section 9799.24(e)(3), that is at issue in this case.

        As relevant to the issue presented in this case, an SVP faces
      mandatory lifetime registration under SORNA. 42 Pa.C.S.A §
      9799.15(a)(6).

Butler, 173 A.3d at 1215.

      In   addressing   the   constitutionality   of   Pennsylvania’s   procedural

mechanism for SVP designations, we first acknowledged that “[i]n [Apprendi

v. New Jersey, 530 U.S. 466 (2013)], the Supreme Court of the United

States held that other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Butler,

173 A.3d at 1216 (quoting Commonwealth v. Conaway, 105 A.3d 755, 761

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(Pa. Super. 2014)). We further recognized that in Alleyne v. United States,

570 U.S. 99 (2013), “the [Supreme Court of the United States] held 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.”

Butler, 173 A.3d at 1217 (quoting Conaway, supra).

     Mindful of Apprendi, Alleyne, and our Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), this Court held that

the Pennsylvania statutory procedure for designating individuals as SVPs was

unconstitutional. Id. at 1217-18. We reasoned:

        [O]ur Supreme Court’s holding [in Muniz] 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 and
     Alleyne, 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 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.

Id. at 1217-18.

     Thus, the Court concluded:

     As the sole statutory mechanism for SVP designation is
     constitutionally flawed, there is no longer a legitimate path

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      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.

Id. at 1218. Ultimately, the Court reversed the order finding the appellant to

be an SVP and remanded the case to the trial court for the sole purpose of

issuing appropriate notice of the tier–based registration period.

      Here, our review of the certified record reveals that the trial court, which

did not have the benefit of the Butler decision, designated Appellant as an

SVP without making the required factual findings beyond a reasonable doubt.

See N.T., 4/7/17, at 43-47. Therefore, we conclude that Appellant’s appeal

is not wholly frivolous, and vacate Appellant’s judgment of sentence only to

the extent it ordered him to register as an SVP under SORNA and designated

him as an SVP. We affirm the judgment of sentence in all other respects. In

light of this decision, we deny Counsel’s petition to withdraw and remand this

matter to the trial court for the sole purpose of issuing appropriate notice of

Appellant's tier–based registration period.

      Judgment of sentence affirmed in part and vacated in part. Counsel’s

petition to withdraw denied. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.


Date: 12/24/2018


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