J-S29026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA

JONATHAN HORTIS

Appellant : No. 2846 EDA 2018

Appeal from the Judgment of Sentence Entered
January 19, 2018 In the Court of
Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000491-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 24, 2019

Jonathan Hortis appeals from the order,! entered in the Court of
Common Pleas of Carbon County, denying his motion to modify sentence

following his convictions of sexual assault,? corruption of minors,? indecent

 

1 Although Hortis filed his notice of appeal from the June 25, 2018 order
denying his post-sentence motion, we have amended the caption to reflect
that the appeal is technically taken from the January 19, 2018 judgment of
sentence. See Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super.
1995) (order denying post-sentence motion acts to finalize judgment of
sentence; thus, appeal is taken from judgment of sentence, not order denying
post-sentence motion). The June 25, 2018 order denying Hortis’ post-
sentence motion finalized the judgment of sentence for purposes of appeal.
Thus, the appeal is taken from judgment of sentence, not from the order
denying post-sentence motions. Id.

218 Pa.C.S.A. § 3124.1.

3.18 Pa.C.S.A. § 6301(a)(1)(ii).
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assault of a person less than thirteen years of age,* and indecent assault-
forcible compulsion.® Upon review, we vacate the order deeming Hortis to be
a sexually violent predator (SVP), and we remand for additional proceedings
consistent with this decision. We affirm the judgment of sentence in all other
respects.

On May 25, 2017, Hortis entered a guilty plea to the abovementioned
offenses. The court deferred sentencing to allow the Sexual Offenders
Assessment Board (SOAB) to evaluate whether Hortis was a SVP. The court
held a hearing on October 26, 2017, at which Dr. Mary Muscari testified that
it was her conclusion that Hortis met the definition of an SVP. Following the
hearing, the court determined Hortis was an SVP as defined in 42 Pa.C.S.A. §
9799.12. Order of Court, 11/9/17. On January 19, 2018, the court sentenced
Hortis to an aggregate term of imprisonment of eight to twenty years.®

On January 26, 2018, Hortis filed a motion to modify sentence, which
the court denied. Hortis filed a timely appeal. Both the trial court and Hortis
have complied with Pa.R.A.P. 1925.

Hortis raises the following issue for our review:

Whether the [t]rial [c]ourt’s finding that Jonathan Hortis was a

Sexually Violent Predator violated the United States [Constitution ]

and [the] Pennsylvania Constitution because the [t]rial [cJourt
made this finding without sufficient constitutional protections as

 

418 Pa.C.S.A. § 3126(a)(7).
5 18 Pa.C.S.A. § 3126(a)(2).

6 Hortis received credit for 1,039 days previously served.

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held in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2017)?

Appellant’s Brief, at 4.

On July 19, 2017, the Pennsylvania Supreme Court decided
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (OAJC), cert. denied
sub nom. Pennsylvania v. Muniz, 138 S. Ct. 925 (2018), which held the
registration requirement under the Sexual Offender Registration and
Notification Act (“SSORNA”),’ constituted punishment under Article I, Section
17 of the Pennsylvania Constitution’s Ex Post Facto Clause. Thereafter, we
concluded in Butler that because Muniz held SORNA’s registration
requirements are punitive, and an SVP designation increases the registration
period, trial courts cannot apply SORNA’s increased registration requirement
for SVPs because SORNA does not require a fact-finder to determine, beyond
a reasonable doubt, that the defendant is anSVP. Butler, 173 A.3d at 1217-
18 (citing Alleyne v. United States, 570 U.S. 99 (2013)). Therefore, the
portion of SORNA that requires a court to find a defendant to be a SVP by
clear and convincing evidence, 42 Pa.C.S.A. § 9799.24(e)(3), is

unconstitutional. See Butler, 173 A.3d at 1217-18.

The /Butler/] Court therefore concluded that trial courts no longer
can designate convicted defendants as SVPs or hold SVP hearings
“until our General Assembly enacts a constitutional designation
mechanism.” Id. The Butler Court 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. The

 

742 Pa.C.S. §§ 9799.10 et seq.
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Court ultimately reversed the order finding the defendant to be 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.

Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa. Super. 2018).®
In light of Muniz and Butler, we conclude that Hortis’ SVP designation

constitutes an illegal sentence.’ We, therefore, are constrained to vacate the

 

8 In response to our Supreme Court’s decision in Muniz and this Court’s
decision in Butler, the Pennsylvania General Assembly passed Acts 10 and 29
of 2018. The express purpose of both legislative enactments was to cure
SORNA’s constitutional defects. See 42 Pa.C.S.A. § 9799.51(b)(4) C [I]t is
the intention of the General Assembly to address [Muniz and Butler|.”)
Specifically, our General Assembly modified Subchapter H’s registration
requirements for those offenders convicted of committing offenses that
occurred on or after SORNA’s effective date, i.e., December 20, 2012. Our
General Assembly also added Subchapter I to Title 42, Part VII, Chapter 97.
Subchapter I sets forth the registration requirements that apply to all
offenders convicted of committing offenses on or after the effective date of
Megan’s Law I (April 22, 1996), but prior to SORNA’s effective date.

2 We note the Commonwealth’s argument that Act 10, as amended by Act
29, has “rendered the registration requirements non-punitive[,] and that Act
10 as amended by Act 29 transforms SORNA from a criminal [sic] to non-
punitive in legal effect, and therefore, the registration requirements are,
again, a ‘collateral consequence’ of the underlining [sic] crime.” Appellee’s
Brief, at 5. The Commonwealth appears to argue that this means the burden
of proof for determining SVP status is again “clear and convincing.” We
disagree. On July 31, 2018, the Pennsylvania Supreme Court granted a
petition for allowance of appeal in Butler to address the following issue:

Whether the Superior Court of Pennsylvania erred in vacating the
trial court's Order finding [Respondent] to be [a Sexually Violent
Predator (“SVP”) | by extrapolating the decision in
[Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
(2017),] to declare SVP hearings and _ designations
unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).
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court’s order of November 9, 2017 finding him to be an SVP. We remand to
the trial court to issue a revised notice to Hortis pursuant to 42 Pa.C.S.A. §
9799.23 (governing reporting requirements of sex offenders).!° Accordingly,
we vacate the court’s imposition of SVP status, remand with instructions, and
affirm the judgment of sentence in all other respects.

Order vacated. Judgment of sentence affirmed in all other respects.

Case remanded. Jurisdiction relinquished.

 

Commonwealth v. Butler, 2018 WL 3633945, at *1 (Pa. 2018). As of
today, however, our decision in Butler remains the law. Commonwealth v.
Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (“This Court is bound by existing
precedent under the doctrine of stare decisis and continues to follow
controlling precedent as long as the decision has not been overturned by our
Supreme Court.”).

We note also that the Supreme Court recently granted review, in its
Original jurisdiction, to determine the issue of whether Acts 10 and 29 are
constitutional. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

10 See 42 Pa.C.S.A. § 9799.11(c) (Subchapter H shall apply to individuals who
committed a sexually violent offense on or after December 20, 2012, for which
the individual was convicted). See also 42 Pa.C.S.A. 9799.14 (sexual
offenses and tier system); 42 Pa.C.S.A. 9799.15 (period of registration).
Hortis has been convicted of Tier I, II and III offenses; he will be required to
register for his lifetime. See 42 Pa.C.S.A. § 9799.14(b), (c), (d); see also
42 Pa.C.S.A. 9799.15(a) (3) CAn individual convicted of a Tier III sexual
offense shall register for the life of the individual.”).

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Judgment Entered.

 

Joseph D. Seletyn, Est
Prothonotary

Date: 6/24/19
