J-S39031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MELVIN DANIEL MANEVAL,                     :
                                               :
                       Appellant               :      No. 1622 MDA 2017

          Appeal from the Judgment of Sentence September 13, 2017
              in the Court of Common Pleas of Lycoming County,
             Criminal Division at No(s): CP-41-CR-0000815-2016

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 31, 2018

        Melvin Daniel Maneval (“Maneval”) appeals from the judgment of

sentence entered following his guilty plea to one count of aggravated indecent

assault.1 We vacate the judgment of sentence and remand with instructions.

        On April 21, 2016, a forensic interviewer from Janet Weis Children’s

Hospital, Child Advocacy Center, in Sunbury, Pennsylvania, interviewed the

14-year-old victim.       At that time, the victim related that Maneval, her

biological uncle and adoptive father, had sexually assaulted her from the ages

of seven to eleven years old. She told the interviewer that the abuse stopped

after she confronted Maneval. When interviewed, Maneval admitted to the

incidents.

        On December 2, 2016, Maneval pled guilty to one count of aggravated

indecent assault, complainant less than 16 years old. On September 12, 2017,
____________________________________________


1   See 18 Pa.C.S.A. § 3125(a)(8).
J-S39031-18



after a hearing, the trial court found, by clear and convincing evidence, that

Maneval met the criteria under the Sexual Offender Registration and

Notification Act (“SORNA”)2 to be designated as a sexually violent predator

(“SVP”). That same day, the trial court sentenced Maneval to a prison term

of four to ten years. Maneval filed a post-sentence Motion, which the trial

court denied. Thereafter, Maneval filed the instant timely appeal, followed by

a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

        Maneval presents the following issues for our review:

        I.    In light of [the Superior] Court’s opinion in Commonwealth
              v. Butler, 173 A.3d 1212 [(Pa. Super. 2017)], should [the]
              trial court’s determination in [its] Order dated September
              13, 2017, that [Maneval] met the criteria to be classified as
              [an SVP,] be vacated as not complying with permissible
              constitutional mechanisms[?]

        II.   Did the trial court abuse its discretion when imposing a
              minimum sentence of forty-eight (48) months, representing
              the top-end of the [aggravated] range, for [Maneval’s] plea
              to one (1) count of [a]ggravated [i]ndecent [a]ssault[,]
              where [Maneval] had no prior record despite being in his
              sixties, and had provided several examples demonstrating
              his remorse and responsibility taken for his crimes[?]

Brief for Appellant at 4.




____________________________________________


2   See 42 Pa.C.S.A. §§ 9799.10-9799.41.


                                               2
J-S39031-18



       Maneval first challenges the legality of his sentence. Brief for Appellant

at 10. Maneval argues that his classification as an SVP under SORNA should

be vacated in light of this Court’s decision in Butler, which, applying the

Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), held that SORNA’s registration requirements are

punitive, and therefore, trial courts cannot apply SORNA’s increased

registration requirement to SVPs.3             Brief for Appellant at 10.     Maneval

additionally challenges recent changes enacted by the General Assembly,

addressing     the    SVP    classification    procedure,   such   as   42   Pa.C.S.A.

§ 9799.23(e)(3), which, he claims, “left in place the ‘clear and convincing’

language as the evidentiary burden to show [that] a defendant meets the SVP

designation.”        Brief for Appellant at 10 (citation omitted).            Maneval

acknowledges that the changes enacted by the General Assembly include a

means by which an SVP registrant may seek relief after 25 years. Id. at 11.

However, Maneval argues, the registration requirements are still punitive,

despite subsequent legislative attempts to fix them.           Id.      Thus, Maneval

asserts that his SVP designation should be vacated. Id.




____________________________________________


3Maneval points out that the decision in Butler was filed one month after his
sentence was imposed. Brief for Appellant at 10.


                                               3
J-S39031-18



       After the trial court sentenced Maneval, our Supreme Court in Muniz

held that SORNA’S registration requirements constitute criminal punishment,

as opposed to a mere civil penalty, and therefore, their retroactive application

violates the ex post facto clause of the U.S. Constitution. Muniz, 164 A.3d at

1192. In the wake of Muniz, this Court concluded in Butler that,

       since our Supreme Court has held that SORNA registration
       requirements are punitive or a criminal penalty to which
       individuals are exposed, then under 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)], 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….

Butler, 173 A.3d at 1217. Consequently, trial courts cannot apply SORNA’s

increased registration requirement to SVPs.4 Id. at 1217-18. In addition, this

Court further concluded that 42 Pa.C.S.A. § 9799.24(e)(3) is unconstitutional,

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

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

facts not found by the fact-finder. Butler, 173 A.3d at 1218.



____________________________________________


4 This Court denied reargument in Butler on January 3, 2018.             The
Commonwealth has filed a petition for allowance of appeal to the Pennsylvania
Supreme Court.



                                               4
J-S39031-18



      The General Assembly subsequently responded to the Muniz decision

by amending SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”).

Act 10 amended several existing provisions of SORNA, and also added several

new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75.             In

addition, the Governor of Pennsylvania recently signed new legislation striking

the Act 10 amendments and reenacting new SORNA provisions, effective June

12, 2018. See Act of June 12, 2018, P.L. 1952, No. 29.

      In its Opinion, the trial court agreed that Maneval’s judgment of

sentence should be vacated; his classification as an SVP reversed; and the

case remanded for resentencing. See Trial Court Opinion, 12/5/17, at 4. We

agree.   In light of this Court’s decision in Butler, we vacate Maneval’s

judgment of sentence, vacate his designation as an SVP, and remand for

resentencing.   However, we decline to address Maneval’s challenge to the

legality of resentencing him under Act 10 and its subsequent revisions.

Because Maneval was not sentenced under Act 10 or its recent revisions, any

ruling on its constitutionality in the instant appeal would be premature.

      Maneval next claims that the trial court abused its discretion when it

sentenced him to a prison term of 48 months to 120 months for aggravated

indecent assault. Brief for Appellant at 11. Maneval’s claim implicates the

discretionary aspects of his sentence.     Such a claim does not entitle an

appellant to review as a matter of right. Commonwealth v. Swope, 123


                                      5
J-S39031-18



A.3d 333, 337 (Pa. Super. 2015). Rather, before this Court can address such

a discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:
      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has
      a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

      Here, Maneval filed a post-sentence Motion raising his sentencing claim,

followed by a timely Notice of Appeal to this Court. He has also included in

his brief a Concise Statement of reasons relied upon for allowance of appeal,

in accordance with Pa.R.A.P. 2119(f).       We therefore next determine whether

Maneval has raised a substantial question that his sentence is not appropriate

under the Sentencing Code.

      Maneval acknowledges that he was initially charged with seven counts

related to his sexual abuse of his adoptive daughter, while she was between

the ages of seven and eleven. Brief for Appellant at 7. Maneval states that

the facts, “accepted by the judge on the date of the guilty plea, showed that

[Maneval], on at least one occasion, over a roughly four[-]year[-]period, did


                                        6
J-S39031-18



digitally penetrate the vagina of his adopted daughter[,] while she was

between the ages of seven and eleven.”      Id.   Maneval acknowledges that

although there were estimated to be between fourteen and seventeen

incidents, he pled guilty to only one count of aggravated indecent assault. Id.

However, Maneval claims that the sentence is excessive in light of the

mitigating evidence, including testimony that his likelihood of re-offense was

minimal, and that he was remorseful and accepted responsibility for his

actions. Id. at 8.

      This Court has concluded that a substantial question was presented by

an excessiveness claim combined with allegations that the trial court failed to

consider mitigating factors. Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa. Super. 2014). Accordingly, we will review the merits of Maneval’s claim.

      Our standard of review of the discretionary aspects of a sentence is as

follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted).




                                      7
J-S39031-18



            In determining whether a sentence is manifestly excessive,
      the appellate court must give great weight to the sentencing
      court’s discretion, as he or she is in the best position to measure
      factors such as the nature of the crime, the defendant’s character,
      and the defendant’s display of remorse, defiance, or indifference.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).

      Maneval argues that his minimum sentence of 48 months is at the top

end of the aggravated guidelines range, and his maximum sentence of 120

months is the statutory maximum penalty for the offense. Brief for Appellant

at 12.   Maneval contends that a sentence in the standard range of the

guidelines is more appropriate. Id. at 13. In support, Maneval directs our

attention   to    testimony   by   the   Sexual   Offenders   Assessment    Board

representative, Townsend Velkoff, that offenders in Maneval’s age group (63

years old) pose a diminished risk for re-offense. Id. (citing N.T., 9/13/17, at

19-20). Maneval further directs our attention to the testimony of Dr. Scott

Scotilla, who confirmed that individuals similarly situated to Maneval pose a

diminished risk of re-offense.     Id. at 13.

      Maneval also argues that, considering the gravity of the offense and the

risk to the community, a sentence at the middle to upper end of the standard

range is more appropriate. Id. According to Maneval, it was unreasonable

for the trial court to consider the number of times that the conduct occurred

over the four-year time span as a factor in imposing an aggravated-range

sentence.   Id.    Finally, Maneval contends his “history, characteristic, and


                                         8
J-S39031-18



rehabilitative needs … supports a middle of the standard range sentence.” Id.

at 14 (emphasis in original).

      In its Opinion, the trial court addressed Maneval’s claim and concluded

that it lacks merit. See Trial Court Opinion, 12/5/17, at 4-7. We agree with

the sound reasoning of the trial court, as set forth in its Opinion, and affirm

on this basis as to Maneval’s second claim. See id.

      Judgment of sentence vacated.         Case remanded with instructions.

Superior Court jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/31/2018




                                       9
                                                                   Circulated 07/30/2018 12:59 PM




IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

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                          OPINION IN SUPPORT OF ORDER
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                      IN COMPLIANCE WITH RULE 1925 (a) OF
                      THE RULES OF APPELLATE PROCEDURE

               By Order dated September 13, 2017, following a hearing, the court found that

the Commonwealth proved by clear and convincing evidence that Appellant, who was

convicted of an aggravated indecent assault, a felony of the second degree, met the criteria to

be classified as a sexually violent predator (SVP).

               By Order dated September 13, 2017, again following a hearing, the court

sentenced Appellant to a term of incarceration in a state correctional institution, the minimum

of which was four years and the maximum of which was ten years. Appellant filed a timely

motion for sentence reconsideration, which the court summarily denied on October 1, 2017.

On October 12, 2017, Appellant filed a notice of appeal. In response to the court's directive

that Appellant file a concise statement of matters complained of on appeal, Appellant filed

said concise statement on November 2, 2017.

               Appellant raises two issues in his concise statement. First, Appellant avers that

the sentencing court abused its discretion by sentencing him to a sentence "that was at the

very top of the aggravated range." Second, Appellant argues that in light of the Superior

Court's decision in Commonwealth v. Butler, 2017 PA Super 344, 2107 Pa. Super. LEXIS


                                                  1
873 (October 31, 2017), the court's determination that Appellant was an SVP "was in error."

                The court will first address defendant's Butler argument. Subsequent to the

court's September 13, 2017 Order finding that Appellant met the criteria to be designated an

SVP, the Superior Court issued its Opinion in Butler. The Superior Court specifically held

that the portion of the Sexual Offender Registration and Notification Act (SORNA) for

designating a convicted defendant as a sexually violent predator, 42 Pa. C.S.A. § 9799.24 (e)

(3), violates the federal and state constitutions.

                The court reasoned that in accordance with the Supreme Court's decision in

Commonwealth Muniz, 164 A.3d 1189 (Pa. 2017), SORNA registration requirements are

deemed to be punitive and part of the criminal punishment imposed upon a convicted

defendant. Because SORNA's increased registration requirements constitute punishment

under the federal and/or state constitutions, retroactive application of SORNA's registration

requirements violates the federal and/or state constitutions. Muniz, at 1208. "Thus, as our

Supreme Court has stated, if registration requirements are punishment, then the facts leading

to registration requirements need to be found by the fact-finder chosen by the defendant, be it

a judge or jury, beyond a reasonable doubt." Butler, at *10 (citations omitted).

                The court concluded that the Supreme Court's holding in Muniz that

registration requirements under SORNA constitute a form of punishment was dispositive to

the issue in Butler, which is similar to that raised by the appellant in this case.

               [S]ince our Supreme Court has held that SORNA registration
        requirements are punitive or a criminal penalty to which individuals are
        exposed, then under Apprendi [v. New Jersey, 530 U.S. 466 (2000)] and
        Alleyne [ v. United States, 133 S. Ct. 2151 (2013)], a factual finding, such
        as whether the defendant has a 'mental abnormality or personality disorder


                                                     2
          that makes [him or her] likely to engage in predatory sexual 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
          factfinder.

Butler, at *l 1�12.

                 Thus, the Superior Court concluded that the SORNA statutory criminal

scheme for designating and proving a convicted defendant as a sexually violent predator

"cannot withstand constitutional scrutiny." Butler, at *12. The court concluded that "trial

courts may no longer designate a convicted defendant as an SVP, nor may they hold SVP

hearings, until our General Assembly enacts a constitutional designation mechanism." Butler,

at *12.

                 Defendant did not raise this issue prior to, during or following his sentencing

or SVP hearing. Defendant raised this issue for the first time on appeal. Generally, issues not

raised before the trial court are waived for appellate purposes. Pa.R.A.P. 302 (a). However

and as clearly set forth in Butler, these general principles are not applicable to illegal

sentences, which may be addressed on direct appeal without proper preservation of the issue

in the lower court.

                 Butler, though, might not ultimately apply in this case. First, a petition for

reargument or reconsideration was filed in the Butler case on November 13, 2017, and

remains pending. Second, the SVP designation in this case did not increase the length of

Appellant's registration period. Appellant was convicted of aggravated indecent assault,

which is a Tier III offense. 42 Pa.C.S.A. §9799.14(d)(7). An individual convicted of a Tier

III offense must register quarterly for life. 42 Pa.C.S.A. §9799.15(a)(3), (e). An SVP also



                                                 3
must register quarterly for life. 42 Pa.C.S.A. §9799.lS(d), (f). Therefore, unlike Butler who,

absent the SVP designation, would have only been required to register for 15 years as a Tier I

offender convicted of corruption of minors, Appellant is required to register quarterly for life

regardless of the SVP designation.

                Nevertheless, the court acknowledges the broad holding in Butler that courts

may not designate a convicted defendant as an SVP until the General Assembly creates a

constitutional designation mechanism, and it anticipates that the Order designating Appellant

as an SVP and directing him to comply with the SORN A requirements because of such

designation will be reversed and the case will be remanded in order that Appellant be re-

sentenced consistent with those SORNA provisions that do not apply to an SVP.

                The second issue asserted by Appellant is his claim that the court abused its

discretion in imposing a sentence at the top of the aggravated range.

                More specifically, the issue is not whether the court abused its discretion, but

rather if the court exhibited a manifest abuse of discretion. Commonwealth v. Bricker, 41

A.3d 872, 875 (Pa. Super. 2012). A manifest abuse of discretion "is more than a mere error of

judgment; thus, a sentencing court will not have abused its discretion unless the record

discloses that the judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will." Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007).

                Appellant argues that "sufficient evidence was present at sentencing that

dispelled some of the reasoning the court cited in justifying its aggravated range sentence,

namely any perceived lack of remorse that the defendant had for his crimes." This statement

 in and of itself fails to even allege a basis for finding a manifest abuse of discretion.


                                                  4
                In imposing a sentence, "the court shall follow the general principle that the

sentence imposed should call for confinement that is consistent with the protection of the

public, the gravity of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant." 42 Pa. C.S.A. § 9721 (b). The

court objectively weighed these considerations and imposed a sentence it decided was

appropriate under all of the circumstances. The sentence was consistent with the protection of

the public and reflected the substantial impact of the crime on the community and the victim.

While the court considered Appellant's remorse, it found it to be somewhat lacking and

found the other interests to be far more compelling.

                As the court specifically noted in its sentencing order, it was aware that the

sentence was an aggravated range sentence. In supporting such it noted as follows:

                "This was not a single act; it occurred over a series of years on a number of
                different occasions; the [c]ourt is of the opinion that [Appellant] does not fully
                accept the responsibility; the [c]ourt is of the opinion that [Appellant's]
                remorse is somewhat lacking; but most importantly and perhaps
                determinatively, this conduct was perpetrated on a young innocent child who
                was particularly vulnerable being a member of the family and there was a
                significant breach of trust." (Sentencing Order, pp. 1-2).

                These conclusions are supported by the record. Although Appellant only pled

guilty to one count of aggravated indecent assault, he acknowledged at his guilty plea hearing

that the conduct occurred 14-15 times when the child was between seven and eleven years

old. Guilty Plea Transcript, December 2, 2016, at 8-9. Furthermore, the court did not

indicate that Appellant completely lacked remorse. Instead, the court found that Appellant

did not fully accept responsibility and his remorse was somewhat lacking. The court

expressed this opinion because Appellant made statements where he was rationalizing or


                                                 5
minimizing his culpability. For example, Appellant made statements, which were referenced

in the Pre-Sentence Investigation report (PSI) that the victim initiated the contact by sitting

on his lap and squirming around, which resulted in him becoming aroused. Sentencing

Transcript, September 13, 2017 at 52-53. In one of the reports, Appellant indicated that he

never penetrated the victim. Sentencing Transcript, at 53. At his guilty plea and in his

sentencing hearing, Appellant also was making distinctions concerning the amount of

penetration. Guilty Plea Transcript, December 2, 2016, at 9; Sentencing Transcript,
                                                            1



September 13, 2017, at 58-59.2 Finally, the impact on the victim was profound. She

explained how much the abuse hurt, how she was afraid that if she told anyone she would not

have a family anymore, and how the events negatively affected her self-esteem. Sentencing


I
  The following exchange took place during the guilty plea hearing:
THE COURT: And during this time period did you engage in digital penetration of her vagina?
[DEFENSE COUNSEL]: Your Honor, I believe that he would agree that he had a skin-to-skin contact with the
victim and that he did touch her vaginal area, and that during these occasions he told police at least 14 to 15 -
his fingertips penetrated her vagina. I believe he'd be willing to agree to that.
THE COURT: Do you agree to that?
[APPELLANT]: Yes.
2
  The following exchange occurred at the sentencing hearing:
THE COURT: ... any changes, modifications, additions to the Pre-Sentence report?
[DEFENSE COUNSEL]: Just commentary, your Honor, with regard to the penetration questions which the
[c]ourt has raised. I think there's some issue with the however slight matter, what occurred at the allocution in
conjunction with Mr. Maneval maybe not necessarily expressing himself correctly, and that also goes to some of
the issues that the writer of the PSI had had.
TIIE·COURT: Well, let me just stop you. If he's not admitting that there was penetration then we're done. I'm
vacating the guilty plea and we're going to trial.
[DEFENSE COUNSEL]: I think with regard to however slight. I think it was a different understanding of
penetration.
THE COURT: WeJI, what did he mean when he said penetration? Penetration kind of means penetration. It
goes through or in the opening, past the outside.
[DEFENSE COUNSEL): However slight.
THE COURT: That's how I would think it - that's how I would interpret it.
[DEFENSE COUNSEL]: Yes.
THE COURT: However slight. All right, you can-we can talk about it, um, all we want. I understand. And,
you know, without getting entirely too graphic here, there's different types of penetration. I understand that.
[DEFENSE COUNSEL]: Yes, and I think that was the issue and we have no desire to withdrawor-
THE COURT: Okay.
[DEFENSE COUNSEL]: Would ask the [c]ourt not to pursue that route.

                                                        6
•   I




        Transcript, September 13, 2017, at 60-63.

                       Under all of the circumstances, the court's decision with respect to the

        sentence was just, fair and appropriate. Appellant and his interests were not the only

        considerations at sentencing. In simplistic but concise terms, crimes hurt people and society.

        Appellant's crime changed a young woman's life forever and had a permanent impact on the

        community.



               /Jv-5> {"1
        Date:-----------                              By The Court,




                                                      Marc F. Lovecchio, Judge


        cc:    Ken Osokow, Esquire (ADA)
               Matthew Welickovitch, Esquire (APD)
               Work File
               Gary Weber, Lycoming Reporter
               Superior Court (original and 1)




                                                       7
