J-S50026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTT ARTHUR BROZIK                        :
                                               :
                       Appellant               :   No. 318 WDA 2019

             Appeal from the PCRA Order Entered February 13, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0001106-2016

BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                              FILED OCTOBER 4, 2019

        Scott Arthur Brozik (Appellant) appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The PCRA court summarized the pertinent facts and procedural history:

           [Appellant] admitted that on September 3, 2015, he invited the
        victim, who was a runaway, into his residence, removed her
        clothing and then performed oral sex on her. On that date,
        [Appellant] was [49] years of age and the victim was [15] years
        of age. A DNA sample was taken from the victim and was
        determined to match the DNA of Appellant.

           On September 12, 2017, at the time of his plea, Appellant
        executed a written colloquy [that] informed him that his plea to
        Statutory Sexual Assault, Indecent Assault, and Corruption of
        Minor subjected him to a lifetime registration requirement.
        Appellant was sentenced to a term of incarceration of three years
        six months to seven years at the felony one charge of Statutory
        Sexual Assault[,] which is a Tier III charge under SORNA and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S50026-19


        requires lifetime registration. 42 Pa.C.S.[A.] § 9799.15. No direct
        appeal was filed in this case.

PCRA Court Opinion, 3/13/19, at 1-2 (unnumbered).

        On August 7, 2018, Appellant filed a pro se PCRA petition.               On

September 21, 2018, following the appointment of counsel, Appellant filed an

amended PCRA petition in which he challenged his lifetime registration

requirement      under    the   Pennsylvania     Sex   Offender   Registration   and

Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41. On February 13,

2019, after a hearing on Appellant’s PCRA petition, the PCRA court denied

relief. This timely appeal followed.1

        On appeal, Appellant presents the following issue for review:

        WHETHER APPELLANT SHOULD BE SUBJECT TO THE REPORTING
        REQUIREMENTS OF SEXUAL OFFENDER REGISTRATION AND
        NOTIFICATION ACT (SORNA)?

Appellant’s Brief at 3.

        We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.




____________________________________________


1   Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.

                                           -2-
J-S50026-19


      In his sole issue on appeal, Appellant argues that the PCRA court erred

by failing to find that his sentence is illegal. Specifically, Appellant asserts

that his sentence is illegal because the trial court determined that he was a

Tier III sex offender and subject to lifetime registration under SORNA.

Appellant contends that his lifetime registration requirement is illegal under

our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017), and this Court’s decision in Commonwealth v. Butler, 173 A.3d

1212, 1213 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018).

      In Muniz, our Supreme Court determined that SORNA’s registration and

reporting provisions are punitive and that retroactive application of SORNA’s

provisions violates the federal and state ex post facto clauses of the United

States and Pennsylvania Constitutions.     Id. at 1193.   Here, the trial court

correctly determined that because Appellant committed the crime of statutory

indecent assault, 18 Pa.C.S.A. § 3122.1(b), on September 3, 2015, Appellant

was a Tier III sex offender under SORNA, with a lifetime registration

requirement. See 42 Pa.C.S.A. §§ 9799.14(d)(3), 9799.15(a)(3); see also

PCRA Court Opinion, at 1-2 (unnumbered). Because SORNA became effective

on December 20, 2012, well before the date Appellant committed his crimes,

the trial court did not retroactively apply SORNA’s registration and reporting

requirements to Appellant. Thus, Muniz affords Appellant no relief.

      Appellant also cites Butler, where we addressed the constitutionality of

Pennsylvania’s procedural mechanism for designating individuals as sexually


                                     -3-
J-S50026-19


violent predators (SVP).   We acknowledged that “[i]n [Apprendi v. New

Jersey, 530 U.S. 466 (2000) ], 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 (Pa.

Super. 2014)). We further recognized that in Alleyne v. United States, 570

U.S. 99 (2013), “the [Supreme Court] 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.” Id. at 1217

(quoting Conaway, supra).

     Mindful of Apprendi, Alleyne, and Muniz, this Court in Butler held

that Pennsylvania’s statutory procedure for designating individuals as SVPs

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

     [O]ur Supreme Court’s holding 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

                                     -4-
J-S50026-19


      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.

      In this case, however, it is undisputed that the trial court did not find

Appellant to be a SVP.    Instead, the trial court correctly determined that

Appellant was a Tier III sex offender under SORNA with a lifetime registration

requirement. See 42 Pa.C.S.A. § 9799.14(d)(3), (8); see also PCRA Court

Opinion, at 1-2 (unnumbered). Butler does not apply because it addressed

the constitutionality of the procedures set forth in SORNA for designating

individuals as SVPs. See Butler, 173 A.3d at 1216-18. Butler says nothing

about the existing procedure for designating individuals as Tier III sex

offenders who are subject to lifetime registration. See id. Indeed, Appellant

cites no authority indicating that it is unconstitutional to designate an

individual as a Tier III sex offender with a lifetime registration requirement,

and we discern no basis for disturbing the PCRA court’s denial of Appellant’s

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2019

                                     -5-
J-S50026-19




              -6-
