J-S67028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :    IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    MANUEL CORTES SANCHEZ                        :
                                                 :
                       Appellant                 :    No. 1172 MDA 2019

         Appeal from the Judgment of Sentence Entered June 13, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0000952-2018


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY DUBOW, J.:                                   FILED MAY 05, 2020

        Appellant, Manuel Cortes Sanchez, appeals from the Judgment of

Sentence entered June 13, 2019, following his guilty plea to two counts of

Indecent Assault.1 Appellant asserts that the trial court imposed an illegal

criminal sentence when it designated him a sexually violent predator (“SVP”)

using the clear and convincing evidentiary standard. Our Supreme Court has

determined      that   the    clear    and     convincing   evidentiary    standard    is

constitutionally     permissible      because   the   registration,   notification,   and

counseling (“RNC”) requirements applicable to SVPs do not constitute criminal

punishment. Commonwealth v. Butler, --- A.3d ---, 25 WAP 2018, * 1, 16

(Pa. filed Mar. 26, 2020) (“Butler II”). Accordingly, we affirm.

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 3126(a)(7).
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      The underlying facts are not in dispute. In December 2018, Appellant

entered a negotiated guilty plea to two counts of Indecent Assault.        In

exchange for his plea, the trial court imposed a sentence of one to five years

of incarceration. Sentencing Order, 6/13/19.

      In June 2019, the court held a hearing to determine whether Appellant

met the criteria to be classified as a SVP.    After reviewing the evidence,

including an assessment by the Sexual Offenders Assessment Board, the court

found by clear and convincing evidence that Appellant is a SVP. SVP Order,

6/13/19.

      Appellant timely filed a Post Sentence Motion challenging his SVP-

designation, which the trial court denied. Appellant timely appealed and filed

a court-ordered Pa.R.A.P. 1925(b) Statement. The court issued a responsive

Opinion.

      Appellant raises the following issue on appeal:

      Whether the [trial court] erred in ordering that Appellant be
      designated a [SVP], thus requiring him to register as a lifetime
      offender under [the Sex Offender Registration and Notification Act
      (“SORNA”)].

Appellant’s Br. at 4.

      Appellant asserts that the trial court imposed an illegal sentence when

it designated him a SVP based upon clear and convincing evidence. See id.

at 10-16 (citing in relevant part Commonwealth v. Butler, 173 A.3d 1212

(Pa. Super. 2017) (“Butler I”)).




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       In Butler I, this Court determined that, pursuant to Commonwealth

v. Muniz, 164 A.3d 1189 (Pa. 2017), a SVP-designation triggered enhanced

RNC requirements constituting punishment.        173 A.3d at 1215-16.    We

reasoned that, as punishment, a trial court could not impose these enhanced

requirements absent proof beyond a reasonable doubt that the sexual offender

was likely to engage in predatory sexual offenses.    Id. at 1217-18 (citing

Apprendi and Alleyne).2

       However, the Pennsylvania Supreme Court recently reversed our

determination. Butler II, supra, at * 1, 16. The Court distinguished the

RNC requirements applicable to all sexual offenders from those enhanced

requirements applicable only to SVPs and concluded that the latter were not

punitive in effect because the government’s primary concern was to protect

the public from those individuals found to be “dangerously mentally ill.” Id.

at * 15. The Supreme Court held, therefore, that it remains constitutionally

permissible to designate an individual a SVP based upon clear and convincing

evidence. Id. at * 1, 16.

       We are bound by this recent precedent.      See Commonwealth v.

Morris, 958 A.2d 569, 580 n.1 (Pa. Super. 2008) (en banc). Accordingly,

Appellant’s claim merits no relief.

       Judgment of Sentence affirmed.



____________________________________________


2 Apprendi v. United States, 530 U.S. 466 (2000); Alleyne v. United
States, 570 U.S. 99 (2013).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/05/2020




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