J-S18024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    PHILLIP SMITH                              :
                                               :
                       Appellant               :      No. 1278 MDA 2019

       Appeal from the Judgment of Sentence Entered December 10, 2018
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001791-2018


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY KING, J.:                    FILED: MAY 11, 2020

        Appellant, Phillip Smith, appeals from the judgment of sentence entered

in the Luzerne County Court of Common Pleas, following his guilty plea to

statutory sexual assault and corruption of minors. On September 6, 2018,

Appellant entered a guilty plea to one count each of statutory sexual assault

and corruption of minors.         The court sentenced Appellant on December 5,

2018, to an aggregate term of 51 to 156 months’ incarceration. The court

also informed Appellant of his lifetime obligation to register and report as a

Tier III sexual offender under the Sexual Offender Registration and

Notification Act (“SORNA”). Following a hearing on December 10, 2018, the

court adjudicated Appellant a sexually violent predator (“SVP”) and entered


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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an amended sentencing order to reflect Appellant’s SVP status. On December

11, 2018, Appellant timely filed a post-sentence motion, which was denied by

operation of law on June 29, 2019. Appellant filed a timely notice of appeal

on July 29, 2019. The court ordered Appellant on August 6, 2019, to file a

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

On September 4, 2019, Appellant filed a petition for leave to file a Rule

1925(b) statement nunc pro tunc and a proposed concise statement. The

court granted Appellant’s petition and accepted Appellant’s Rule 1925(b)

statement nunc pro tunc on September 9, 2019.

     In his only issue on appeal, Appellant challenges the validity of his SVP

adjudication in light of Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d

1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213

(2018) (holding registration requirements under SORNA constitute criminal

punishment) and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.

2017) (“Butler I”) (holding provision of SORNA which requires court to

designate defendant SVP by clear and convincing evidence violates federal

and state constitutions because it increases defendant’s criminal penalty

without fact-finder making necessary factual findings beyond reasonable

doubt).   While Appellant’s appeal was pending, however, the Pennsylvania

Supreme Court reversed Butler I. See Commonwealth v. Butler, 25 WAP

2018, ___ Pa. ___, ___ A.3d ___, 2020 WL 1466299 (Pa. filed March 26,

2020) (“Butler II”) (providing SVP registration, notification, and counseling


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requirements do not constitute criminal punishment, and thus, adjudication of

SVPs    by   clear   and   convincing   evidence   standard   is   constitutionally

permissible). In light of the foregoing, Appellant’s sole issue on appeal merits

no relief. See id. Accordingly, we affirm.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:05/11/2020




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