J-S59014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellee             :
                                          :
                v.                        :
                                          :
 ROBERT A. JACKSON                        :
                                          :
                     Appellant            :         No. 617 EDA 2018

               Appeal from the PCRA Order January 29, 2018
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001955-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 30, 2018

      Appellant, Robert A. Jackson, appeals pro se from the order entered in

the Chester County Court of Common Pleas, which denied his first petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. We affirm the order denying PCRA relief but vacate Appellant’s

designation as a sexually violent predator (“SVP”) and remand with

instructions.

      The relevant facts and procedural history of this case are as follows.

Between February and May of 2013, Appellant sexually abused two brothers,

J.G. and C.G., ages six and nine, respectively. On August 8, 2014, a jury

convicted Appellant of involuntary deviate sexual intercourse with a child, four

counts each of aggravated indecent assault on a child without consent and

aggravated indecent assault on a child, and two counts each of endangering
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the welfare of children, corruption of minors, and indecent assault on a child.

On November 10, 2014, the court sentenced Appellant to an aggregate term

of 83 to 167 years’ imprisonment, which included some mandatory minimums.

The court also informed Appellant of his lifetime reporting requirements as a

Tier III offender under the Sexual Offender Registration and Notification Act

(“SORNA”) and designated Appellant as a SVP. This Court, on December 30,

2015, vacated the judgment of sentence and remanded for resentencing

without the mandatory minimums pursuant to 42 Pa.C.S.A. § 9718.           See

Commonwealth v. Jackson, 135 A.3d 669 (Pa.Super. 2015).              The court

resentenced Appellant on April 14, 2016, to an aggregate term of 83 to 167

years’ imprisonment without any mandatory minimums. Appellant’s sentence

still included SORNA registration and SVP status. Appellant did not file post-

sentence motions or a direct appeal.

       Appellant timely filed a pro se PCRA petition on November 10, 2016,

and the PCRA court appointed counsel on November 17, 2016. On August 18,

2017, counsel filed a petition to withdraw and a Turner/Finley1 no-merit

letter. The PCRA court issued notice on December 21, 2017, of its intent to

dismiss pursuant to Pa.R.Crim.P. 907; Appellant did not respond. On January

29, 2018, the PCRA court denied relief and granted counsel’s petition to

withdraw. Appellant timely filed a pro se notice of appeal on February 26,


____________________________________________


1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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2018. On February 28, 2018, the PCRA court ordered Appellant pro se to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). The PCRA court issued an order in lieu of a Rule 1925(a) opinion on

April 10, 2018, stating Appellant did not file a Rule 1925(b) statement which

waived his issues.      Appellant filed a Rule 1925(b) statement on April 30,

2018.2

       Appellant raises the following issues for our review:

          DOES APPELLANT’S FAILURE TO FILE [A PA.R.A.P.] 1925(B)
          STATEMENT WAIVE A CHALLENGE TO [THE] PCRA COURT
          DECISION BASED ON FRAUD VIOLATIVE OF THE LAW [18
          PA.C.S.A. §] 4911(A)(1) RENDERING SAID JUDGMENT
          VOID?

          DID [THE PCRA] COURT AND PCRA COUNSEL COMPLY WITH
          THIS COURT’S FINLEY DECISION AND [THE] SUPREME
          COURT’S TURNER DECISION?

(Appellant’s Pro Se Brief at 6).

       As a prefatory matter, we observe the failure to file a court-ordered Rule

1925(b)     statement      generally     constitutes   a   waiver   of   all   issues.

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). “[T]o preserve

their claims for appellate review, [a]ppellants must comply whenever the trial

court orders them to file a Statement of [Errors] Complained of on Appeal


____________________________________________


2 On September 24, 2018, Appellant filed pro se in this Court a “Petition for
Rule to Show Cause Why Clerk of Court Should Not Be Held in Contempt of
Court.” Appellant’s petition asks this Court to issue a rule to show cause on
the clerk of courts for Chester County for an alleged failure to send documents.
We deny Appellant’s petition without prejudice to his right to file a similar
petition in the court of common pleas.

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pursuant to Pa.R.A.P. 1925.   Any issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived.”      Commonwealth v. Castillo, 585 Pa.

395, 403, 888 A.2d 775, 780 (2005) (citing Lord, supra at 420, 719 A.2d at

309). An untimely filed Rule 1925(b) statement is equivalent to a complete

failure to file. Commonwealth v. Burton, 973 A.2d 428, 423 (Pa.Super.

2009) (en banc).

     Here, Appellant is proceeding pro se on appeal. The PCRA court ordered

Appellant on February 28, 2018, to file a Rule 1925(b) statement. Appellant

did not timely comply with the PCRA court’s order.      Therefore, we deem

Appellant’s issues on appeal waived.    See Castillo, supra; Lord, supra;

Burton, supra.

     Nevertheless, we are mindful of recent case law calling into question the

validity of SVP status. Given the timeliness of Appellant’s PCRA petition, we

elect to review the legality of the sentence sua sponte. See Commonwealth

v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges

to illegal sentence cannot be waived and may be raised by this Court sua

sponte, assuming jurisdiction is proper; illegal sentence must be vacated).

     Our Supreme Court has held that the registration requirements under

the Sexual Offender Registration and Notification Act (“SORNA”) constitute

criminal punishment.   Commonwealth v. Muniz, ___ Pa. ___, 164 A.3d

1189 (2017).   In light of Muniz, this Court held: “[U]nder Apprendi and

Alleyne, a factual finding, such as whether a defendant has a mental


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abnormality or personality disorder that makes him…likely to engage in

predatory sexually violent offenses, that increases the length of registration

must be found beyond a reasonable doubt by the chosen fact-finder.”3

Commonwealth v. Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017)

(addressing SVP status sua sponte as illegal sentence) (internal quotations

and citations omitted).       This Court further held: “Section 9799.24(e)(3) of

SORNA[4] 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.

at 1218. The Butler Court concluded that trial courts can no longer designate

convicted defendants as SVPs or hold SVP hearings, “until [the] General

Assembly enacts a constitutional designation mechanism.”          Id. (vacating

appellant’s SVP status and remanding to trial court for sole purpose of issuing

appropriate notice under 42 Pa.C.S.A. § 9799.23, governing reporting

requirements for sex offenders, as to appellant’s registration obligation).

       Here, following an assessment by the Sexual Offender Assessment

Board, the court imposed SVP status on Appellant on November 10, 2014.


____________________________________________


3 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).

4 See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the hearing prior to
sentencing, the court shall determine whether the Commonwealth has proved
by clear and convincing evidence that the individual is a sexually violent
predator”).

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Appellant’s SVP status carried a lifetime registration requirement.     See 42

Pa.C.S.A. § 9799.15(a)(6).      This Court vacated Appellant’s judgment of

sentence on December 30, 2015, and remanded to the trial court, which

resentenced Appellant on April 14, 2016. Appellant did not file a direct appeal.

The new judgment of sentence occurred after the United States Supreme

Court had decided Alleyne on June 17, 2013. Relying on Alleyne, this Court

decided Butler on October 31, 2017, which deemed unconstitutional the

current mechanism for imposition of SVP status used in the present case and

stated trial courts cannot impose SVP status in that manner. See Butler,

supra.    Both Muniz and Butler were decided during the pendency of

Appellant’s timely PCRA petition.   Under these new cases, Appellant’s SVP

status constitutes an illegal sentence subject to correction. See 42 Pa.C.S.A.

§ 9542 (stating persons serving illegal sentence may obtain collateral relief);

Commonwealth v. DiMatteo, ___ Pa. ___, 177 A.3d 182 (2018) (allowing

Alleyne relief in PCRA context, so long as judgment of sentence was not final

before Alleyne was decided) (citing Commonwealth v. Ruiz, 131 A.3d 54

(Pa.Super. 2015) (applying Alleyne to correct illegal sentence in context of

timely-filed PCRA petition)). Accordingly, we affirm the denial of PCRA relief,

vacate Appellant’s SVP status, and remand for a revised notice of

registration/reporting under 42 Pa.C.S.A. § 9799.23. See Butler, supra.

      Order affirmed; SVP status vacated; case remanded with instructions.

Jurisdiction is relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/18




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