J-A21024-17
                             2017 PA Super 344

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

JOSEPH DEAN BUTLER,

                        Appellant                   No. 1225 WDA 2016


          Appeal from the Judgment of Sentence August 4, 2016
              In the Court of Common Pleas of Butler County
           Criminal Division at No(s): CP-10-CR-0001538-2014

BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

OPINION BY OLSON, J.:                            FILED OCTOBER 31, 2017

      Appellant, Joseph Dean Butler, appeals from the judgment of sentence

entered on August 4, 2016, as made final by the denial of his post-sentence

motion on August 10, 2016.          In this case, we are constrained by our

Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017), to hold that 42 Pa.C.S.A. § 9799.24(e)(3), a portion of the

Sexual Offender Registration and Notification Act’s (“SORNA’s”) framework

for designating a convicted defendant a Sexually Violent Predator (“SVP”),

violates the federal and state constitutions. As such, we are compelled to

reverse the trial court’s July 25, 2016 order finding that Appellant is an SVP

and we remand for the sole purpose of having the trial court issue the

appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s

registration requirements.
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        The factual background and procedural history of this case are as

follows.     Between October 2013 and June 2014, Appellant, then 21 years

old, had sexual intercourse with a 15-year-old female approximately 50

times. On September 23, 2014, the Commonwealth charged Appellant via

criminal information with statutory sexual assault,1 manufacturing child

pornography,2 criminal use of a communication facility,3 and corruption of

minors.4 On July 27, 2016, Appellant pled guilty to statutory sexual assault

and corruption of minors.      Pursuant to SORNA, the trial court ordered the

Sexual Offender Assessment Board (“SOAB”) to evaluate whether Appellant

met the criteria for designation as an SVP and deferred sentencing until that

evaluation was completed.5

        On    July   25,   2016,   after   receiving   evidence   from   both   the

Commonwealth and Appellant, the trial court entered an order finding that

the Commonwealth proved by clear and convincing evidence that Appellant


1
    18 Pa.C.S.A. § 3122.1(a)(1).
2
    18 Pa.C.S.A. § 6312(b).
3
    18 Pa.C.S.A. § 7512(a).
4
    18 Pa.C.S.A. § 6301(a)(1)(ii).

5
  Pursuant to section 9799.24(a) of SORNA, “[a]fter conviction but before
sentencing, a court shall order an individual convicted of a sexually violent
offense to be assessed by the [SOAB].”         42 Pa.C.S.A. § 9799.24(a)
(emphasis added).      Appellant’s conviction for corruption of minors, a
sexually violent offense as defined by SORNA, required the trial court to
order an SVP evaluation of Appellant.



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was an SVP and designated him as such. On August 4, 2016, the trial court

sentenced Appellant to an aggregate term of 12 to 30 months’ imprisonment

followed by 90 months’ probation. As the trial court designated Appellant an

SVP, it issued notice pursuant to section 9799.23 of SORNA that he is

required to register with the Pennsylvania State Police for life.      See 42

Pa.C.S.A § 9799.15(a)(6).6      Thereafter, Appellant filed a post-sentence

motion which the trial court denied on August 10, 2016. This timely appeal

followed.7

       Appellant presents two issues for our review:

    1. Whether the Commonwealth presented sufficient evidence to
       prove [by] clear and convincing evidence . . . that [A]ppellant is
       [an SVP?]

    2. Whether the [SVP] designation as provided under [SORNA] is
       unconstitutional and violates Appellant’s fundamental right to
       protect his reputation as secured by Pennsylvania Constitution
       Article I[,] Section 1?

Appellant’s Brief at 1 (complete capitalization and quotation marks omitted).

       Prior to addressing the issues presented by Appellant, we sua sponte

address the impact of our Supreme Court’s decision in Muniz on the legality

of Appellant’s judgment of sentence with particular focus on the process by

which Appellant was designated an SVP. Generally, issues not raised before


6
  Section 9799.15(a)(6) of SORNA provides that an SVP “shall register for
the life of the individual.” 42 Pa.C.S.A. § 9799.15(a)(6).
7
  Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.



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

Similarly, this Court generally may not reverse, modify, or vacate an order

or judgment of sentence for a reason not raised by the parties.             See

Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016) (citations

omitted). Notwithstanding these general rules, “[a] challenge to the legality

of a particular sentence may be reviewed by any court on direct appeal; it

need not be preserved in the lower courts to be reviewable and may even be

raised by an appellate court sua sponte.”    Commonwealth v. Batts, 163

A.3d 410, 434 (Pa. 2017) (citation omitted). Therefore, if Muniz rendered

Appellant’s judgment of sentence illegal, we may raise that issue sua sponte.

      We are unaware of any Pennsylvania case law directly addressing

whether the framework for designating a convicted defendant an SVP, which

in this case increased Appellant’s minimum registration requirement,

implicates the legality of his or her sentence. Therefore, we proceed with an

analysis under general principles regarding the legality of sentences.

      Our Supreme Court defined what constitutes an illegal sentencing

claim in Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016).                In that

case, a majority of our Supreme Court adopted the definition proposed by

the opinion announcing the judgment of the court in Commonwealth v.

Foster, 17 A.3d 332 (Pa. 2011).            See Barnes, 151 A.3d at 127.

Specifically, our Supreme Court held that “legality of sentence issues occur

generally either: (1) when a trial court’s traditional authority to use



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discretion in the act of sentencing is somehow affected and/or (2) when the

sentence imposed is patently inconsistent with the sentencing parameters

set forth by the General Assembly.”     Foster, 17 A.3d at 342 (Baer, J.,

opinion announcing the judgment of the court). Applying that definition in

Barnes, our Supreme Court held that “where the mandatory minimum

sentencing authority on which the sentencing court relied is rendered

[unconstitutional], and no separate mandatory authority supported the

sentence, any sentence entered under such purported authority is an illegal

sentence for issue preservation purposes on direct appeal.”   Barnes, 151

A.3d at 127.

     As we detail below, Appellant’s designation as an SVP exposed him to

an increased minimum registration requirement.     Until Muniz, registration

requirements were deemed to be civil in nature and not punitive.    Muniz,

164 A.3d at 12038 (“the [Commonwealth v. Williams, 832 A.2d 962 (Pa.

2003)] Court established the registration, notification, and counseling

requirements imposed under Megan’s Law II [, a predecessor to SORNA,]

were not punitive”). Muniz was a sea change in the longstanding law of this

Commonwealth as it determined that the registration requirements under

SORNA are not civil in nature but a criminal punishment.       Id. at 1218


8
  For clarity, when citing to the portions of the Muniz opinion which
garnered a majority, we do not use a parenthetical; however, when citing to
the portions of the Muniz decision which failed to garner a majority, we use
the parenthetical (Dougherty, J., OAJC).



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(Dougherty, J., OAJC) (“SORNA involves affirmative disabilities or restraints,

its sanctions have been historically regarded as punishment, including

deterrence and retribution, and its registration requirements are excessive in

relation to its stated nonpunitive purpose”).     Hence, SORNA registration

requirements are now deemed to be punitive and part of the criminal

punishment imposed upon a convicted defendant. Accordingly, the general

principles regarding illegal sentences are applicable to the case before us,

and when applied, we find that the inquiry above implicates the legality of

Appellant’s sentence and we may raise it sua sponte.

      We review the legality of a sentence de novo and our scope of review

is plenary.   Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super.

2017) (citation omitted).      Moreover, “[o]ur Supreme Court has instructed

that we must presume that statutes are constitutional and [in order to

declare a statute unconstitutional] it [must] clearly, plainly, and palpably

violate[] the constitution.”    Commonwealth v. Felder, 75 A.3d 513, 516

(Pa. Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014) (citation omitted).

      To understand the issue presented in this case, it is necessary to

review the relevant portions of SORNA that address SVPs. Under SORNA, an

individual convicted of a sexually violent offense, such as sexually corrupting

minors in this case, must be evaluated by the SOAB.              42 Pa.C.S.A.

§ 9799.24(a). The SOAB conducts a 15-factor analysis to determine if the

individual should be designated an SVP.      42 Pa.C.S.A. § 9799.24(b).    The



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SOAB then submits a report to the prosecuting authority.          42 Pa.C.S.A.

§ 9799.24(d).     Upon praecipe by the prosecuting authority, the trial court

schedules an SVP hearing. 42 Pa.C.S.A. § 9799.24(e)(1). At the conclusion

of that hearing, “the court [determines] whether the Commonwealth has

proved by clear and convincing evidence that the individual is a[n SVP].” 42

Pa.C.S.A. § 9799.24(e)(3).       It is this last step in the process, section

9799.24(e)(3), that is at issue in this case.

      As relevant to the issue presented in this case, an SVP faces

mandatory lifetime registration under SORNA. 42 Pa.C.S.A § 9799.15(a)(6).

In this case, if Appellant were not designated an SVP, he would be required

to register for only 15 years.          See 42 Pa.C.S.A §§ 9799.14(b)(8),

9799.15(a)(1) (individuals convicted of sexually corrupting minors, a Tier I

sexual offense under SORNA, must register for 15 years).9,10           In other


9
   Under SORNA, sexual offenses are classified in a three-tiered system
composed of Tier I sexual offenses, Tier II sexual offenses, and Tier III
sexual offenses. 42 Pa.C.S.A. § 9799.14. Generally, a person convicted of a
Tier I sexual offense must register for a period of 15 years. 42 Pa.C.S.A.
§ 9799.15(a)(1). A person convicted of a Tier II sexual offense must
register for 25 years and a conviction of a Tier III sexual offense carries a
mandatory lifetime registration requirement. 42 Pa.C.S.A. § 99799.15(a)(2)
and (3). Under SORNA, trial courts have no discretion when imposing
registration requirements. Instead, an adult convicted of a sexually violent
offense must register for 15 years, 25 years, or the remainder of his or her
life. See generally 42 Pa.C.S.A. § 9799.15. As such, these registration
requirements are the functional equivalent of both a mandatory minimum
and maximum sentence.
10
  An individual is not required to register following a conviction for statutory
sexual assault under 18 Pa.C.S.A. § 3122.1(a)(1), which encompasses
(Footnote Continued Next Page)


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J-A21024-17


words, the SVP designation increased Appellant’s registration exposure from

15 years to life.

      Having set forth the SVP statutory framework included as part of

SORNA, we turn to our Supreme Court’s recent decision in Muniz.                       In

Muniz,    our    Supreme        Court    considered       whether   applying   SORNA’s

registration requirements to an individual “convicted of sex offenses prior to

SORNA's effective date but sentenced afterwards” violates the federal and/or

state ex post facto clauses. Muniz, 164 A.3d at 1193. Our Supreme Court’s

resolution of this issue “depend[ed] on a determination of whether SORNA’s

retroactive application [] constitutes punishment.” Muniz, 164 A.3d at 1208

(Dougherty, J., OAJC) (citations omitted). If SORNA’s increased registration

requirements     constitute      punishment       under    the   federal   and/or   state

constitution,    then      retroactive     application     of    SORNA’s     registration

requirements violates the federal and/or state constitution. See id. On the

other hand, if, as federal courts have held, id. at 1219 (citations omitted),

SORNA’s registration requirements do not constitute punishment, then

retroactive application of SORNA’s registration requirements does not violate

the federal and/or state constitution.


                       _______________________
(Footnote Continued)
crimes where the victim was four to eight years younger than the defendant.
In this case, the victim was six years younger than Appellant. Thus,
Appellant’s conviction for statutory sexual assault does not require Appellant
to register under SORNA.




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J-A21024-17


     In determining whether the registration requirements of SORNA

constitute punishment, our Supreme Court analyzed and weighed the factors

set forth in Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963).              Our

Supreme Court

     determined four of the five factors to which [it gave] weight—all
     except for whether there is an alternative purpose to which the
     statute may be rationally connected—weigh[ed] in favor of
     finding SORNA to be punitive in effect despite its expressed civil
     remedial purpose. [It] conclude[d] SORNA involves affirmative
     disabilities or restraints, its sanctions have been historically
     regarded as punishment, its operation promotes the traditional
     aims of punishment, including deterrence and retribution, and its
     registration requirements are excessive in relation to its stated
     nonpunitive purpose.

Muniz, 164 A.3d at 1218 (Dougherty, J., OAJC).           Thus, according to our

Supreme    Court,   the   registration    requirements   of   SORNA   constitute

punishment for purposes of the federal and state constitutions. Id.; id. at

1233 (Wecht, J., concurring) (“SORNA is punitive”).

     We next turn to the implications of our Supreme Court’s holding in

Muniz.

     In Apprendi [v. New Jersey, 530 U.S. 466 (2000)], the
     Supreme Court of the United States held that other than the fact
     of a prior conviction, any fact that increases the penalty for a
     crime beyond the prescribed statutory maximum must be
     submitted to a jury, and proved beyond a reasonable doubt.
     Stated another way, it is unconstitutional for a legislature to
     remove from the jury the assessment of facts that increase the
     prescribed range of penalties to which a criminal defendant is
     exposed. It is equally clear that such facts must be established
     by proof beyond a reasonable doubt.

     Subsequently in Alleyne v. United States, 133 S.Ct. 2151
     (2013), the [Supreme Court of the United States] held that any


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J-A21024-17


     fact that increases the mandatory minimum sentence for a crime
     is an element that must be submitted to the jury and found
     beyond a reasonable doubt. The Alleyne majority reasoned that
     while Harris v. United States, 536 U.S. 545 (2002), limited
     Apprendi to facts increasing the statutory maximum, the
     principle applied in Apprendi applies with equal force to facts
     increasing the mandatory minimum.          This is because it is
     impossible to dissociate the floor of a sentencing range from the
     penalty affixed to the crime, and it is impossible to dispute that
     facts increasing the legally prescribed floor aggravate the
     punishment. Thus, this reality demonstrates that the core crime
     and the fact triggering the mandatory minimum sentence
     together constitute a new, aggravated crime, each element of
     which must be submitted to the jury.

Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super. 2014),

appeal denied, 118 A.3d 1107 (Pa. 2015) (internal alterations, ellipses,

quotation marks, and citations omitted).

     Apprendi and Alleyne apply to all types of punishment, not just

imprisonment. See S. Union Co. v. United States, 567 U.S. 343, 346-360

(2012). 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 a jury,

beyond a reasonable doubt. See Commonwealth v. Lee, 935 A.2d 865,

880 (Pa. 2007).   In Lee, our Supreme Court considered whether Megan’s

Law II’s requirement that SVPs register for life violated Apprendi.       Our

Supreme Court stated that defendants only succeeded on their claim

     if [our Supreme Court] accept[s] the premise, which [it had] all
     but categorically rejected in [its] prior cases, that
     the registration, notification, and counseling provisions of
     Megan’s Law II [were] punitive in the constitutional sense, thus
     requiring observance of all the due process protections that


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J-A21024-17


        attend criminal prosecution, especially those identified by the
        [Supreme Court of the United States’] decision in Apprendi.

Id.11

        We   recognize    that    our   Supreme   Court   did   not   consider   the

ramifications of its decision in Muniz with respect to individuals designated

as SVPs for crimes committed after SORNA’s effective date.            Nonetheless,

our Supreme Court’s holding that registration requirements under SORNA

constitute a form of criminal punishment is dispositive of the issue presented

in this case. In other words, since our Supreme Court has held that SORNA

registration requirements are punitive or a criminal penalty to which

individuals are exposed, then under Apprendi and Alleyne, 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.      Section 9799.24(e)(3) identifies the trial court as the

finder of fact in all instances and specifies clear and convincing evidence as

the burden of proof required to designate a convicted defendant as an SVP.

Such a statutory         scheme    in the    criminal context   cannot withstand

constitutional scrutiny. Accordingly, we are constrained to hold that section

11
  In Muniz, our Supreme Court recognized that its holding was a major
departure from its prior jurisprudence. Our Supreme Court explained this
departure by stating that “SORNA is broader in application than previous
Megan’s Law statutes[.]” Muniz, 164 A.3d at 1209 (Dougherty, J., OAJC).



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J-A21024-17


9799.24(e)(3) is unconstitutional and Appellant’s judgment of sentence, to

the extent it required him to register as an SVP for life, was illegal.

      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.12     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




12
   Allowing a jury or the trial court (in a waiver trial) to make an SVP
determination during the guilt phase of a trial runs counter to the plain
language of section 9799.24(e)(3) of SORNA and raises a myriad of other
constitutional concerns. Because of these problems, and because Muniz
now deems SORNA a punitive statute and no longer a collateral civil
consequence of a sex offense conviction, we are constrained to hold that the
adjudicative provisions found in section 9799.24(e)(3) are no longer
constitutional and not severable from the remainder of the SVP designation
framework.



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J-A21024-17


Tier II sexual offense, or life if he or she is convicted of a Tier III sexual

offense.13

      In sum, we are constrained to hold that section 9799.24(e)(3) of

SORNA 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.

Moreover, we are constrained to hold trial courts cannot designate convicted

defendants SVPs (nor may they hold SVP hearings) until our General

Assembly enacts a constitutional designation mechanism.            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. We, therefore, vacate the trial court’s order of July

25, 2016 which found Appellant to be an SVP and, we remand this case to

the trial court for the sole purpose of issuing the appropriate notice under 42

Pa.C.S.A. § 9799.23 as to Appellant’s registration obligation for a period of

15 years. As we reverse the trial court’s SVP order, we need not address

the issues he raises on appeal, which contest his SVP designation on other

grounds.




13
  We note that “[t]wo or more convictions of offenses listed as Tier I or Tier
II sexual offenses” qualify as a Tier III conviction.          42 Pa.C.S.A.
§ 9799.14(d)(16).



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J-A21024-17


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

Case remanded. Jurisdiction relinquished.

     Bender, P.J.E. joins this opinion.

     Stabile, J. notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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