J. S51045/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
HAKEEM BRYANT,                          :         No. 2867 EDA 2017
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, August 30, 2017,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0005374-2015


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED OCTOBER 19, 2018

     Hakeem Bryant appeals from the August 30, 2017 judgment of

sentence entered by the Court of Common Pleas of Philadelphia County

following his conviction of unlawful contact with a minor, statutory sexual

assault, sexual assault, endangering the welfare of a child, corruption of

minors, indecent exposure, indecent assault, rape of a child, and involuntary

deviate sexual intercourse.1   We affirm appellant’s conviction, vacate the

determination of sexually violent predator (“SVP”), and remand to the trial

court to determine whether any registration requirements exist.




1  18 Pa.C.S.A. §§ 6318(a)(1), 3211.1(b), 3124.1, 4304(a)(1),
6301(a)(1)(ii), 3127(a), 3126(a)(7), 3121(c), and 3123(b), respectively.
The trial court sentenced appellant to an aggregate sentence of 9-18 years’
imprisonment to be followed by 7 years’ probation. Appellant does not
challenge the discretionary aspects of his sentence.
J. S51045/18

      The trial court summarized the procedural history of this case as

follows:

            On May 7, 2015 [a]ppellant was arrested and
            charged with Rape of a Child and related offenses.
            On January 10, 2017, following a waiver trial before
            [the trial court], appellant was found guilty of these
            charges.     On August 30, 2017 by stipulation of
            counsel for the Commonwealth and [a]ppellant, [the
            trial court] determined that [a]ppellant was a
            Sexualy     Viol[ent]   Predator    [].    Thereafter,
            [a]ppellant was sentenced to a lengthy term of
            incarceration followed by several years of state
            supervised sex offender probation. Appellant was
            designated a Tier III lifetime registrant.

Trial court opinion, 4/17/18 at 1.

      Appellant filed a pro se notice of appeal to this court on September 5,

2017, despite the fact that he was still represented by counsel.               On

September 6, 2017, appellant’s counsel filed a motion to reconsider

sentence; and on September 8, 2017, appellant’s counsel filed a motion for

judgment of acquittal.       The trial court denied appellant’s motion to

reconsider sentence on October 27, 2017.

      On December 4, 2017, this court entered a rule to show cause order,

directing appellant to show cause why his appeal should not be considered

interlocutory because the trial court had not entered an order pertaining to

the   counseled   post-sentence      motions   filed   on   September   8,   2017.

Additionally, appellant filed his notice of appeal prior to the expiration of the

120-day period in which the trial court may, by rule, review a post-sentence

motion. Prior to the expiration of the 10-day period required by this court


                                       -2-
J. S51045/18

for a response to the rule, on December 6, 2017, the trial court issued an

order directing appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).

        Appellant’s trial counsel filed a motion to withdraw, which the trial

court granted on December 20, 2017.        The trial court continued the case

until   appellate   counsel   was   appointed   to   represent   appellant   on

December 21, 2017. The trial court issued a “corrected” Rule 1925(b) order

on January 16, 2018, following the appointment of appellate counsel for

appellant.    On January 29, 2018, appellant’s counsel responded to this

court’s rule to show cause order stating that appellant’s appeal was

interlocutory and should be quashed so the trial court could rule on

appellant’s September 8, 2017 post-sentence motion.          That same day,

appellant’s counsel requested that the trial court rescind its January 16,

2018 Rule 1925(b) order based on his response to this court’s rule to show

cause order and because appellant’s counsel had yet to receive the

sentencing hearing transcript. On February 15, 2018, the trial court issued a

third Rule 1925(b) order, with which appellant timely complied on March 12,

2018.    The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on

April 17, 2018.

        On April 20, 2018, this court discharged the rule to show cause order,

referring the issue of appealability to this panel. Accordingly, we shall first

determine whether appellant’s appeal should be quashed as interlocutory.



                                     -3-
J. S51045/18

          First,   appellant’s     appeal       should   not    be    quashed       because   the

September 8, 2017 post-sentence motion was not filed with leave of the trial

court.       The Pennsylvania Rules of Criminal Procedure mandate that all

requests       for   relief   be    “consolidated        in    the   post-sentence      motion.”

Pa.R.Crim.P.         720(B)(1)(a).          A    defendant      may    file    a    supplemental

post-sentence motion at the judge’s discretion. Pa.R.Crim.P. 720(B)(1)(b).

There is nothing of record to indicate that the trial court granted appellant

leave to file a supplemental post-sentence motion, and there is no order of

record disposing of appellant’s September 8, 2017 post-sentence motion for

judgment of acquittal.             Second, the September 8, 2017 post-sentence

motion raises claims of ineffective assistance of counsel.                     Such claims are

generally not considered on direct appeal and are reserved for collateral

relief.      Commonwealth v. Blye, 33 A.3d 9, 11 (Pa.Super. 2011).

Therefore, appellant’s appeal should not be quashed as interlocutory.

          We shall now address the effect of appellant’s pro se notice of appeal.

In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), the defendant filed

a “snap” pro se notice of appeal, despite being represented by counsel. Id.

at 995.       Thereafter, the defendant’s counsel filed a timely post-sentence

motion which was ultimately denied by the trial court.                        Id.   Our supreme

court held that the pro se notice of appeal should be treated as a premature

appeal as if it had been filed after denial of the post-sentence motion in

accordance with Pa.R.A.P. 905(a)(5).” Id.



                                                 -4-
J. S51045/18

      In light of our supreme court’s holding in Cooper, we find that we

have all the necessary material before us to reach a decision in appellant’s

appeal on the merits and need not quash appellant’s appeal, despite

appellant’s premature filing of a notice of appeal. Appellant’s sole issue on

appeal was raised in his Rule 1925(b) statement, and the trial court

discusses the issue in its Rule 1925(a) opinion.      Additionally, both parties

have briefed the issue before us.       Appellant’s sole issue on appeal is as

follows:   “must appellant’s designation as an SVP be vacated because it

constitutes an illegal and unconstitutional sentence?” (Appellant’s brief at 3

(full capitalization omitted).)

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

sentence is non-waivable.         Commonwealth v. Butler, 173 A.3d 1212,

1214 (Pa.Super. 2017) (citations omitted).           In this appeal, appellant

contends that pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017) (OAJC), cert. denied sub nom. Pennsylvania v. Muniz, 138 S.Ct.

925 (2018), application of the registration requirements in SORNA2

constitute additional criminal punishment, and that the factors governing

whether an individual is deemed an SVP must be determined by a fact-finder

beyond a reasonable doubt. (Appellant’s brief at 9.)




2  Sexual Offender Registration         and   Notification   Act,   42   Pa.C.S.A.
§§ 9799.10-9799.41.


                                       -5-
J. S51045/18

      Prior to appellant’s sentencing, our supreme court held that SORNA’s

registration requirements constitute criminal punishment, as opposed to a

mere civil penalty.   Muniz, 164 A.3d at 1192. Thereafter, in Butler, this

court concluded that because Muniz held that SORNA’s registration

requirements are punitive and an SVP designation increases the registration

period,   trial   courts   cannot    apply   SORNA’s   increased   registration

requirements to SVPs because SORNA does not require a fact-finder to

determine, beyond a reasonable doubt, that the defendant is an SVP.

Butler, 173 A.3d at 1217-1218, citing Alleyne v. United States, 570 U.S.

99 (2013). We further found 42 Pa.C.S.A. § 9799.24(e)(3) unconstitutional

and directed trial courts to apply only the applicable tier-based registration

period, as those periods apply based on the conviction itself, and not due to

any additional fact not found, under SORNA’s procedures, by the fact-finder.

Butler 173 A.3d at 1218. As such, we reversed the order designating the

defendant as an SVP and remanded to the trial court for the sole purpose of

issuing appropriate notice of the defendant’s tier-based registration period.

Id.

      In the case before us, the trial court accepted a stipulation from

appellant and the Commonwealth that appellant was an SVP. A stipulation

from the defense of facts that must be found beyond a reasonable doubt by

the fact-finder does not provide a remedy to the unconstitutionality of

42 Pa.C.S.A. § 9799.24(e)(3).       Indeed, as noted above, a trial court may



                                       -6-
J. S51045/18

only apply a tier-based registration period based on a defendant’s

conviction.   See Butler, 173 A.3d at 1218.     Despite the stipulation that

appellant is an SVP, the trial court did not have a constitutional method by

which it could adjudicate appellant as such.

      Accordingly, in light of Muniz and Butler, we find that appellant’s

SVP designation constitutes an illegal sentence.         Therefore, we affirm

appellant’s conviction, vacate that portion of appellant’s sentence finding

appellant to be an SVP, and remand to the trial court to determine whether

any registration requirements exist.

      Judgment of sentence affirmed in part and vacated in part.        Case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/19/18




                                       -7-
