J-S74009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARRY GERARD BROWN                         :
                                               :
                       Appellant               :   No. 1410 EDA 2019

           Appeal from the Judgment of Sentence Entered April 5, 2019
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0000555-2018


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 21, 2020

        Appellant, Garry Gerard Brown, appeals from the judgment of sentence

of 1-4 years’ incarceration, imposed following his nolo contendere plea to

indecent assault, corruption of minors, and endangering the welfare of

children.1 The trial court also designated Appellant to be a sexually violent

predator (SVP) pursuant to 42 Pa.C.S. § 9799.24. Appellant challenges the

legality of his SVP designation on multiple constitutional grounds. After careful

review, we vacate the order designating Appellant to be an SVP, and remand

for a new SVP hearing, but affirm Appellant’s judgment of sentence in all other

respects.




____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   Respectively, 18 Pa.C.S. §§ 3126(a)(1), 6301(a)(1)(ii), and 4304(a).
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      The facts underlying Appellant’s conviction are not germane to this

matter. Appellant entered into a negotiated guilty plea to the aforementioned

offenses on August 30, 2018. Trial Court Opinion (TCO), 6/28/19, at 1. The

trial court ordered him to undergo an SVP assessment, but during the

assessment process, Appellant indicated an unwillingness to admit guilt,

despite his prior plea. Id. As a result, on January 7, 2019, Appellant withdrew

his guilty plea and entered a nolo contendere plea to the same charges.

Subsequently, the trial court held a joint SVP/sentencing hearing on April 5,

2019. At that proceeding, after hearing testimony from the Commonwealth’s

expert and argument from both parties, the trial court designated Appellant

to be an SVP. Id. at 1-2. The court then imposed a sentence of 1-4 years’

incarceration pursuant to the negotiated terms of the plea. Id. at 2.

      Appellant filed a timely notice of appeal from the judgment of sentence,

and a timely, court-ordered Pa.R.A.P. 1925(b) statement.       The trial court

issued its Rule 1925(a) opinion on June 28, 2019. Appellant now presents the

following questions for our review:

         1. Is the determination of Appellant as a[n] [SVP] and Act 29
            punitive as a whole?

         2. Is [Section] 9799.24 of Act 29, subchapter H[,] a violation
            of Appellant’s Federal and Pennsylvania constitutional rights
            because the registration requirements are a punitive,
            criminal penalty and, therefore, a greater degree of proof
            than what is imposed under [Section] 9799.24(e)(3) is
            needed to find Appellant an SVP?

         3. Does [Section] 9799.24, subchapter H[,] violate the
            Pennsylvania Constitution because it deprives Appellant of



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            the fundamental right to reputation without due process of
            law?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      As background, the General Assembly passed the Sexual Offender

Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41

(effective December 20, 2012), ostensibly to improve upon Pennsylvania’s

previous sex offender registration and reporting system.           However, in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court

concluded that the registration requirements for sex offenders under SORNA

constituted criminal, rather than merely civil, sanctions.     Id. at 1218.   In

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

synthesizing Muniz and Alleyne v. United States, 570 U.S. 99 (2013), held

that Section 9799.24(e)(3), which provided that an SVP designation be proven

by only clear and convincing evidence,       “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.” Butler, 173 A.3d at 1218. Subsequently, the

General Assembly sought to amend SORNA to address the constitutional

defects identified by our Supreme Court in Muniz. Act 10 amended portions

of SORNA and added the provisions set forth in 42 Pa.C.S. §§ 9799.42 and

9799.51-9799.75.    Act 10 became effective immediately on February 21,

2018. SORNA and Act 10 were further amended by Act 29, which came into

effect on June 12, 2018.



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      Here, Appellant challenges the constitutionality of the current version of

SORNA, as it exists following the modifications made by the General Assembly

in Act 10 and Act 29 (Current SORNA). It is clear that Current SORNA should

have applied in this case, as Appellant’s SVP/sentencing hearing occurred on

April 5, 2019, long after Act 29’s effective date. However, it is not at all clear

that Current SORNA was applied at Appellant’s SVP hearing, or in the court’s

recitation of Appellant’s registration and reporting requirements. Indeed, the

Commonwealth concedes that “the written and oral colloquies that Appellant

completed at the time of his plea were based on the sex offender registration

law as it existed prior to the passage of Act 10 and Act 29.” Commonwealth’s

Brief at 7. Consequently, the Commonwealth recommends that we remand

“for Appellant to be properly advised of registration and notification

requirements under the current applicable law.” Id.

       The trial court attempts to avoid all constitutional concerns by

declaring, with virtually no analysis, that “the evidence presented by the

Commonwealth at the SVP hearing was sufficient to declare Appellant a[n]

SVP beyond a reasonable doubt.” TCO at 3. The trial court made no other

attempt to address Appellant’s constitutional claims in its opinion.

      We note that in Butler, this Court deemed Section 9799.24(e)(3)

unconstitutional.   That provision’s replacement under Current SORNA, 42

Pa.C.S. § 9799.58(e)(3), contains identical text. That constitutional defect (if

it remains a defect under Current SORNA), cannot be cured by ad hoc

modifications by non-legislative bodies. In Commonwealth v. Valentine,

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1010 A.3d 801 (Pa. Super. 2014), this Court considered an analogous scheme

where, in order to salvage a mandatory-minimum sentencing provision

rendered unconstitutional by Alleyne, the trial court allowed the submission

of interrogatories to a jury to determine if the defendant had possessed a

weapon, rather than determining that fact at sentencing under a lesser

standard of proof, as the unconstitutional provision of the statute dictated.

We rejected that ad hoc procedure, holding that “the trial court performed an

impermissible legislative function by creating a new procedure in an effort to

impose the mandatory-minimum sentences in compliance with Alleyne.”

Valentine, 101 A.3d at 811. Similarly, here, the trial court cannot correct or

avoid potential constitutional infirmities in Current SORNA by applying a

different standard than decreed by the General Assembly in the applicable

statute.

      Out of an abundance of caution, due to these irregularities in the trial

court’s designating Appellant to be an SVP, and in the court’s advising him of

the applicable registration and reporting requirements that accompany his

SVP status, and because Appellant’s constitutional claims are not properly

before us if he was not subject to Current SORNA registration and reporting

requirements below, we decline to address Appellant’s claims at this time. We

instead vacate Appellant’s SVP designation, and remand for a new SVP

hearing, at which the trial court is instructed to apply Current SORNA as is,




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without any ad hoc modifications to the standard.2 Appellant may then file a

direct appeal following the trial court’s entry of a new SVP order. However,

we affirm Appellant’s judgment of sentence in all other respects.

       Judgment of sentence affirmed in part.          SVP order vacated.   Case

remanded for a new SVP hearing.            Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/20




____________________________________________


2 We leave it to the trial court’s discretion whether to entertain additional
testimony, or to simply incorporate the testimony provided at the April 5, 2019
hearing.

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