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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 WILLIE HART                             :
                                         :
                   Appellant             :   No. 3643 EDA 2017

        Appeal from the Judgment of Sentence September 22, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013669-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.:                           FILED APRIL 04, 2019

     Willie Hart appeals from the judgment of sentence entered on

September 22, 2017, after being found guilty of multiple crimes of sexual

violence. Upon review, we vacate the portion of Hart’s sentence deeming him

to be a sexually violent predator (“SVP”) and remand for additional

proceedings consistent with this memorandum.

     We briefly summarize the facts and procedural history relevant to this

appeal as follows. Hart sexually assaulted and raped a relative (“the victim”)

for months after she moved in with him to escape an abusive husband. On

October 12, 2013, Hart was charged after he repeatedly punched the victim

in the face when she attempted to avoid further sexual assault. After a bench

trial, the court found him guilty of rape, sexual assault, incest, indecent
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exposure, indecent assault, and simple assault. Sentencing was deferred for

preparation of a Sexual Offenders Assessment Board (“SOAB”) report.

       On January 8, 2016, the trial court denied Hart’s post-trial motion for a

new trial and sentenced Hart to an aggregate term of thirty to sixty years’

incarceration. At the same hearing, the court found Hart to be an SVP upon

the SOAB’s recommendation. N.T., 1/8/2016, at 4.

       On direct appeal, this Court found that this sentence violated his jury

waiver agreement. See Commonwealth v. Hart, 381 EDA 2016, at 12-14

(Pa. Super., filed January 24, 2017) (unpublished memorandum). On

September 22, 2017, the court resentenced Hart to an aggregate term of

fourteen to twenty-eight years’ incarceration and reimposed his designation

as an SVP. N.T., 9/22/2017, at 36. This appeal followed.

       Hart’s sole argument1 is that his SVP designation should be vacated and

the matter remanded to the trial court to issue a revised determination and

notice of SORNA reporting requirements because the SVP designation

procedure under SORNA has since been held to be unconstitutional and illegal



____________________________________________


1 Hart’s counsel filed a statement of intent to file an Anders brief in lieu of
the statement of matters complained of in this Court. However, counsel has
recognized the intervening Butler decision. We thus review this issue despite
any claim of waiver due to Hart’s failure to include it in his Pa.R.A.P. 1925
statement. See Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super.
2013) (“Legality of sentence questions are not waivable and may be raised
sua sponte by [an appellate court]”). All other issues are waived for purposes
of this appeal. See Commonwealth v. Hill, 6 A.3d 484 (Pa. 2011) (“Any
issues not raised in a 1925(b) statement will be deemed waived.”).

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under    Commonwealth v. Muniz,            164   A.3d 1189      (Pa. 2017) and

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

        The Commonwealth, in its brief, agrees that Hart’s SVP designation

should be vacated. The Commonwealth states that upon review of the record,

and pursuant to Butler, Hart’s SVP designation should be vacated but “the

remaining portions of his sentence should not be disturbed.” Appellee’s Brief,

at 7. The trial court also concedes that Butler renders Hart’s SVP designation

illegal. See Trial Court Opinion, 3/16/18, at 2-3.

        “Issues relating to the legality of a sentence are questions of law…. Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017)

(en banc) (citation omitted).

        In Muniz, our Supreme Court held that the registration requirements

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

constitute criminal punishment. Then, in Butler, a panel of this Court

concluded that, in light of Muniz classifying registration requirements as

punitive, “section 9799.24(e) of SORNA [relating to SVP designation] 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.” 173 A.3d at 1218.

Because the statute outlining SVP designation, 42 Pa.C.S.A. § 9799.24(e)(3),

identifies the trial court as the sole fact-finder for SVP designations, the Butler


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court found this section unconstitutional2. See id. So, the Butler panel

vacated the appellant’s SVP status and remanded to the trial court to issue

appropriate notice under 42 Pa.C.S.A. § 9799.23, as to appellant’s registration

obligation. See id.

       In light of Muniz and Butler, Hart’s SVP status constitutes an illegal

sentence. Therefore, we vacate that portion of Hart’s sentence finding him to

be an SVP and remand to the trial court to issue a revised notice to Hart

pursuant to 42 Pa.C.S.A. § 9799.23 (governing reporting requirements of sex

offenders).

       Judgment of sentence vacated in part. Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/19




____________________________________________


2 The Pennsylvania Legislature has endeavored to resolve the issues raised in
Muniz by passing a law to replace the invalidated portions of SORNA. See
2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June 12, 2018)
(“Act 29”), amending Title 42 (Judicial Procedure) of the Pennsylvania
Consolidated Statutes. However, it does not amend the SVP provisions in 42
Pa.C.S.A. § 9799.24. See 42 PA.C.S.A. § 9799.52 and 9799.55.


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