J-A23043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GEORGE J. BEDNAR                           :
                                               :
                      Appellant                :   No. 741 EDA 2016

           Appeal from the Judgment of Sentence November 9, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004130-2014

BEFORE:      PANELLA, DUBOW, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED DECEMBER 18, 2017

        Appellant, George J. Bednar, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas after he pleaded

guilty to sexual abuse of children (possessing child pornography)1 and criminal

use of a communication facility.2         Appellant challenges the sufficiency and

weight of the evidence that he is a sexually violent predator (“SVP”). While

this appeal was pending, this Court decided Commonwealth v. Butler, ---


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*   Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 6312(d). Although the trial court intimated that Appellant was
convicted of sexual abuse of children under section 6312(b) (photographing,
videotaping, depicting on computer or filming sexual acts), the record
confirms that Appellant pleaded guilty to possession of child pornography
under section 6312(d).

2   18 Pa.C.S. § 7512.
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A.3d ---, 2017 WL 4914155 (Pa. Super., Oct. 31, 2017), which held

unconstitutional the provision for designating defendants as SVPs. In light of

Butler, we vacate the judgment of sentence in part, reverse the order

designating Appellant as an SVP, and remand for further proceedings.

       Appellant committed the above-stated offenses in November 2012 and

was arrested on March 3, 2014.3 On July 29, 2014, Appellant pleaded guilty

to the aforementioned charges.4 The trial court deferred sentencing pending

a Sexual Offenders Assessment Board (“SOAB”) assessment. Barbara Ziv,

M.D. conducted the SOAB assessment, and Appellant retained an expert,

Timothy P. Foley, Ph.D. On November 9, 2015, the trial court convened an

SVP and sentencing hearing during which both Drs. Ziv and Foley offered

opinions regarding Appellant’s status as an SVP. The trial court determined

that Appellant was an SVP and sentenced him to an aggregate probationary

term of ten years, which fell below the mitigated range of the Sentencing

Guidelines.

       The     Commonwealth          filed     a   post-sentence   motion   seeking

reconsideration of the sentence, which the trial court denied by operation of

law on March 7, 2016. Appellant, who did not file a post-sentence motion,
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3 Appellant was sixty-nine years old at the time of the offense and seventy-
one years old at the time of his arrest. The police initially received information
that Appellant downloaded child pornography in November 2012. The police
executed a search warrant, analyzed Appellant’s computer and found child
pornography.

4The Commonwealth withdrew a charge of possessing an instrument of crime
and agreed to a non-mandatory minimum sentence.

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timely appealed on March 8, 2016 and complied with the trial court’s order to

submit a Pa.R.A.P. 1925(b) statement.

      Appellant presents two questions for review, which we have reordered

as follows:

         Was not the evidence insufficient as a matter of law to
         sustain the finding that [A]ppellant met the statutory
         definition of [an SVP], where the expert opinion offered by
         the Commonwealth rested its conclusion on the mistaken
         belief that the current offense of [an SVP] must be
         “predatory”, and where the expert rested her conclusion
         that this definition was met on the unsupportable assertion
         that the act of merely possessing and viewing child
         pornography fell within the statutory definition of
         “predatory”?

         Did not the [trial] court abuse its discretion in designating
         [Appellant as an SVP] where the weight of the evidence is
         against finding that he suffered from a personality disorder,
         that he was likely to engage in future misconduct, or that
         his actions were predatory?

Appellant’s Brief at 5.

      Before addressing these issues, however, we consider our recent

decision in Butler. There, the defendant pleaded guilty to statutory sexual

assault and corruption of minors, and his conviction for corruption of minors

would have carried a fifteen-year registration period.      Butler, 2017 WL

4914155, at *1, *3. However, the court determined that the defendant was

an SVP, which increased his “registration exposure” from fifteen years to life.

Id. at *3. The defendant appealed and asserted that (1) the evidence was

insufficient to sustain his designation as an SVP, and (2) the SVP designation




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violated his constitutional right to protect his reputation under Article I,

Section 1 of the Pennsylvania Constitution. Id. at *2.

        Instead of reaching the defendant’s issues, the Butler court concluded

sua sponte that the defendant’s designation as an SVP constituted an illegal

sentence. Id. at *2 (noting that this Court may raise questions regarding the

legality of sentence sua sponte), *5.            The Court reasoned that under the

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

164 A.3d 1189 (Pa. 2017), the registration requirements of the Sexual

Offender Registration and Notification Act5 (“SORNA”) must be deemed a

criminal punishment. Id. at *4. The defendant’s conviction alone required

the imposition of a fifteen-year registration period, but the finding that he was

an SVP—i.e. that he “suffered from mental abnormality or personality disorder

that ma[d]e [him] likely to engage in predatory sexually violent offenses”—

subjected him to a lifetime registration requirement. Id. at *3-*5 (quoting

42 Pa.C.S. § 9799.12). Section 9799.24(e)(3), however, permitted the trial

judge to find the defendant to be an SVP by a clear and convincing standard.

Id. at *3 (discussing 42 Pa.C.S. § 9799.24(e)(3)).               Therefore, under

Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United

States, 133 S.Ct. 2151 (2013), which require that facts increasing the range

of punishment be found by a jury beyond a reasonable doubt, the trial court’s




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5   42 Pa.C.S. §§ 9799.10-9799.41.

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SVP determination unconstitutionally increased the range of punishment that

could be imposed on the defendant. Id. at *4-*5.

        The Butler Court concluded:

           As the sole statutory mechanism for SVP designation is
           constitutionally flawed, there is no longer a legitimate path
           forward for undertaking adjudications pursuant to section
           9799.24. As such, trial courts may no longer designate
           convicted defendants as SVPs, nor may they hold SVP
           hearings, until our General Assembly enacts a constitutional
           designation mechanism. Cf. Commonwealth v. Hopkins,
           . . . 117 A.3d 247, 258-262 ([Pa.] 2015) (finding that trial
           courts cannot impose mandatory minimum sentences until
           the General Assembly enacts a statute which provides a
           constitutional mechanism to determine if the defendant is
           subject to the mandatory minimum sentence) . . . .

           Instead, trial courts must notify a defendant that he or she
           is required to register for 15 years if he or she is convicted
           of a Tier I sexual offense, 25 years if he or she is convicted
           of a Tier II sexual offense, or life if he or she is convicted of
           a Tier III sexual offense.

Id. at *5-*6 (citing 42 Pa.C.S. § 9799.23).

        In accordance with Butler, we conclude that Appellant’s designation as

an SVP constitutes an illegal sentence, and we reverse that order. We note

that while Appellant’s conviction for sexual abuse of children constitutes a Tier

I offense, see 42 Pa.C.S. § 9799.14(b)(9), it appears that Appellant was

previously convicted of committing sexual offenses in 1986.6 See 42 Pa.C.S.

§ 9799.14(d)(16) (stating that “[t]wo or more convictions of offenses listed

as Tier I or Tier II sexual offenses” constitute a Tier III offense). Therefore,

we remand for the trial court to determine the appropriate tier under 42
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6   Appellant’s prior record is not in the certified record.

                                           -5-
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Pa.C.S. § 9799.14, and to provide Appellant with the notice of his registration

obligations under 42 Pa.C.S. § 9799.23.7

       Judgment of sentence affirmed in part and vacated in part.         Case

remanded for further proceedings in accordance with this memorandum.

Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




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7 Given our disposition, we need not consider Appellant’s challenges to the
sufficiency and weight of the evidence presented at the SVP hearing.

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