Commonwealth v. Lippincott , 208 A.3d 143 ( 2019 )

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2019 PA Super 118COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON ALLEN LIPPINCOTT :
:
Appellant : No. 2057 EDA 2014
Appeal from the Order June 17, 2014
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003839-2012,
CP-48-CR-0003840-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.
OPINION BY MURRAY, J.: FILED APRIL 15, 2019
Jason Allen Lippincott (Appellant) appeals from the order designating
him as a sexually violent predator (SVP) pursuant to the Pennsylvania Sex
Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-
9799.41. After careful consideration, we vacate the order and remand to the
trial court for further proceedings consistent with this decision.
On January 24, 2013, at Docket Number CP-48-CR-0003839-2012
(3839-2012), Appellant pled guilty to one count each of aggravated indecent
assault and corruption of minors.1 These charges arose from Appellant’s
sexual assault of a 14-year-old female in May 2012. The same day, at Docket
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1 18 Pa.C.S.A. §§ 3125(a)(8), 6301(a)(1)(i).
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Number CP-48-CR-0003840-2012 (3840-2012), Appellant pled guilty to one
count each of statutory sexual assault, corruption of minors, and indecent
assault.2 These charges resulted from Appellant’s sexual assault of a different
14-year-old female, which occurred on five occasions between October 2011
and April 2012.
On August 21, 2013, the trial court sentenced Appellant at both dockets
to an aggregate term of 30 to 60 months of incarceration, followed by 72
months of probation. The same day, the trial court heard testimony from Dr.
Veronique Valliere (Dr. Valliere) of the Sexual Offenders Assessment Board.
Dr. Valliere opined that Appellant met the definition of an SVP. On November
25, 2013, Appellant filed a motion in which he asked the court to appoint an
expert witness to conduct an independent SVP evaluation. On December 27,
2013, the trial court held a hearing on Appellant’s motion. At the conclusion
of the hearing, the court denied the motion. On June 17, 2014, the trial court
entered an order classifying Appellant as an SVP.
On July 10, 2014, Appellant filed a timely notice of appeal. On January
17, 2017, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b) of the
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2 18 Pa.C.S.A. §§ 3122.1(b), 6301(a)(1)(i), 3126(a)(1).
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Pennsylvania Rules of Appellate Procedure.3 On February 8, 2017, Appellant
filed his Rule 1925(b) statement.
On appeal to this Court, the parties initially filed briefs on the sole issue
raised in Appellant’s Rule 1925(b) statement, i.e., whether the trial court erred
in denying Appellant’s request for a court-appointed expert to conduct an
independent SVP evaluation. However, on July 19, 2017, our Supreme Court
decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In Muniz,
our Supreme Court held that retroactive application of the registration and
reporting requirements of SORNA violated the ex post facto clauses of the
United States and Pennsylvania Constitutions. Id. at 1223. Consequently,
on September 13, 2017, Appellant filed an application seeking permission to
file a supplemental brief with this Court to address Muniz. We granted the
application on October 23, 2017.
On April 20, 2018, this Court certified this case for en banc review4 and
directed the parties to brief the following issues:
(1) In consideration of Appellant’s having committed the relevant
crimes between October 2011 and May 2012, whether the
enactment date or the effective date of the Sex Offender
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3 We recognize the substantial gap between Appellant’s notice of appeal and
the trial court’s Rule 1925 order. Based on our review of the record, it appears
the delay is the result of the trial court’s improper consideration of numerous
premature petitions Appellant filed pursuant to the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546, during the pendency of this appeal.
4 This Court also certified Commonwealth v. Wood, 1193 & 1194 MDA
2017, which involves the same issues, for en banc review.
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Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§
9799.10-9799.41, controls for purposes of offenses committed
between the enactment date and the effective date?
(2) Whether there is an ex post facto violation to a defendant who
is sentenced under SORNA for criminal acts committed after the
enactment date of SORNA (December 20, 2011) but before the
effective date of SORNA (December 20, 2012)?
(3) Whether this Court must address if the Act of Feb. 21, 2018,
P.L. 27, No. 10 (HB 631 of 2017; “Act 10”), applies in the instant
case and all cases governed by SORNA and, if so, whether Act 10
renders the registration provisions of SORNA non-punitive?
(4) If Act 10 applies in the instant matter, whether Act 10’s
potential effects on Appellant, as a result of the crimes having
been committed between October 2011 to May 2012, violate the
ex post facto clause of the United States or Pennsylvania
Constitutions?
Order Directing En Banc Certification, 4/20/18. In addition to these issues,
Appellant also argues that with respect to his SVP evaluation, “[t]he [t]rial
[c]ourt erred and abused its discretion by failing to appoint a psychological
expert upon Appellant’s request where Appellant was indigent and without
funds to retain his own expert.”5 Appellant’s Brief at 4.
We begin by addressing the first two issues. Appellant argues that he
should not be subject to SORNA’s registration and reporting requirements.
Appellant asserts that although the General Assembly enacted SORNA on
December 20, 2011, prior to the time he committed several of his crimes in
April and May 2012, SORNA did not go into effect until December 20, 2012.
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5 In the order, we also informed Appellant that he may raise any appealable
or preserved issue(s) of his choosing for en banc consideration.
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Therefore, Appellant contends that the application of SORNA to his sentence
violates the ex post facto clause of the United States and Pennsylvania
Constitutions under Muniz.6 Because this issue presents a question of law,
our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Lee, 935 A.2d 865, 876 (Pa. 2007).
“The Pennsylvania General Assembly passed SORNA as Act 111 of 2011,
signed December 20, 2011. In so doing, it provided for the expiration of prior
registration requirements, commonly referred to as Megan’s Law, 42 Pa.C.S.A.
§§ 9791–9799.9, as of December 20, 2012, and for the effectiveness of
SORNA on the same date.” In re J.B., 107 A.3d 1, 3 (Pa. 2014).
For purposes of registration, SORNA classifies sex offenders into three
tiers:
Those convicted of Tier I offenses are subject to registration
for a period of fifteen years and are required to verify their
registration information and be photographed, in person at an
approved registration site, annually. 42 Pa.C.S.[A.] §
9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are
subject to registration for a period of twenty-five years and are
required to verify their registration information and be
photographed, in person at an approved registration site, semi-
annually. 42 Pa.C.S.[A.] § 9799.15(a)(2), (e)(2).
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6 See Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (citation
omitted) (“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.”);
see also Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013)
(quotations and internal citations omitted) (“As long as the reviewing court
has jurisdiction, a challenge to the legality of the sentence is non-waivable
and the court can even raise and address it sua sponte.”).
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Those convicted of Tier III offenses are subject to lifetime
registration and are required to verify their registration
information and be photographed, in person at an approved
registration site, quarterly. 42 Pa.C.S.[A.] § 9799.15(a)(3),
(e)(3).
Muniz, 164 A.3d at 1206-07 (footnotes omitted).
The offenses that constitute Tier I, II, and III offenses are set forth in
42 Pa.C.S.A. § 9799.14(b)-(d). Here, there is no dispute that Appellant would
be a Tier III sex offender under SORNA due to his conviction of statutory
sexual assault and aggravated indecent assault. See 42 Pa.C.S.A. §
9799.14(d)(3), (8). As a Tier III offender, Appellant would be subject to
lifetime registration and quarterly reporting requirements. See 42 Pa.C.S.A.
§ 9799.15(a)(3), (e)(3). Because he committed all of his offenses prior to
when SORNA became effective, Appellant argues that under Muniz, the
application of SORNA to his sentence violates the ex post facto clauses of the
United States and Pennsylvania Constitutions.
In Muniz, our Supreme Court in a plurality decision explained that the
ex post facto clauses of both the United States and Pennsylvania Constitutions
ensure “that individuals are entitled to fair warning about what constitutes
criminal conduct, and what the punishments for that conduct entail.” Muniz,
164 A.3d at 1195 (citations omitted). “Critical to relief under the Ex Post Facto
Clause is not an individual’s right to less punishment, but the lack of fair notice
and governmental restraint when the legislature increases punishment beyond
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what was prescribed when the crime was consummated.” Id. (quoting
Weaver v. Graham, 450 U.S. 24 (1981)).
Muniz identified the four types of laws that deny the protections that
the ex post facto prohibitions seek to afford: (1) Every law that makes an
action done before the passing of the law, and which was innocent when done,
criminal; and punishes such action; (2) Every law that aggravates a crime, or
makes it greater than it was, when committed; (3) Every law that changes
the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed; and (4) Every law that alters the
legal rules of evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offense, in order to convict the
offender. Muniz, 164 A.3d at 1195 (citing Calder v. Bull, 3 U.S. 386, 390
(1798) (emphasis added). The Court explained that laws that fall within any
of the above four Calder designations and which disadvantage a defendant
are ex post facto laws and constitutionally infirm. Id. at 1196.
The Supreme Court in Muniz then addressed the constitutionality of
SORNA. The Court concluded that SORNA violated ex post facto prohibitions
under both the United States and Pennsylvania Constitutions. Id. at 1223.
The Muniz Court reasoned that despite the legislature’s designation of SORNA
as a civil remedy, it was punitive in nature, and consequently, SORNA, as a
criminal penalty, fell within the third Calder category (i.e., application of the
statute would inflict greater punishment than the law in effect at the time the
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defendant committed his crimes). Id. at 1196, 1218. Accordingly, the
Supreme Court vacated the portion of the judgment of sentence that required
the appellant to comply with SORNA. While Muniz is not a majority decision,
the concurring opinion joins the Supreme Court’s lead opinion to the extent it
concludes that SORNA is punitive and that it was unconstitutional as applied
to the appellant, in violation of both state and federal ex post facto
prohibitions.7
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7 Justice Wecht’s concurrence, joined by Justice Todd, agrees with the lead
opinion that retroactive application of SORNA violates the ex post facto
provision of the Pennsylvania Constitution. However, the concurrence takes
issue with the lead opinion’s position that Pennsylvania’s ex post facto clause
grants greater protection than the federal ex post facto clause. The concurring
opinion asserts instead that “the United States Supreme Court’s interpretation
of the federal ex post facto clause is entirely consistent with our understanding
of Pennsylvania’s clause,” and that the Pennsylvania Supreme Court “has gone
to great lengths to align our own ex post facto jurisprudence with decisions
from the United States Supreme Court.” Muniz, 164 A.3d at 1225, 1228.
The concurrence finds no justification for a departure from federal ex post
facto precedent when interpreting the Pennsylvania ex post facto clause.
Nevertheless, the concurrence concludes that even “applying federal ex post
facto standards . . . SORNA is punitive and cannot be applied retroactively.”
Id. at 1232-33. Thus, the concurrence agrees with the holding of the lead
opinion that SORNA violates federal and state ex post facto prohibitions. See
MacPherson v. Magee Memorial Hosp. for Convalescence, 128 A.3d
1209, 1229 (Pa. Super. 2015), (quoting Commonwealth v. Brown, 23 A.3d
544, 556 (Pa. Super. 2011) (“[i]n cases where a concurring opinion
enumerates the portions of the plurality’s opinion in which the author joins or
[]agrees, those portions of agreement gain precedential value . . . .
[H]owever, [if] the concurrence does not explicitly state its agreement or
disagreement with the plurality, we must look to the substance of the
concurrence to determine the extent to which it provides precedential value
to points of agreement.”).
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Like Muniz, this case implicates the ex post facto clauses of the United
States and Pennsylvania Constitutions because application of SORNA’s
registration and reporting requirements would impose greater punishment on
Appellant than the law in effect at the time he committed his crimes. See id.
at 1195-96. Although SORNA increased the registration period for some
crimes, the registration requirement for individuals convicted of aggravated
indecent assault remained lifetime registration. Compare 42 Pa.C.S.A. §
9795.1(b)(2) (expired) with 42 Pa.C.S.A § 9799.14(d). While SORNA did not
enhance the registration period for aggravated indecent assault, it did
augment the registration and reporting requirements for Tier III offenders,
which included the addition of quarterly in-person reporting and the posting
of personal information on the Pennsylvania State Police website. Muniz, 164
A.3d at 1210-11. As our Supreme Court pointed out in Muniz, these
additional registration and reporting requirements constitute a greater
punishment than what Megan’s Law would have imposed, and consequently,
their retroactive application violates the ex post facto clauses of the United
States and Pennsylvania Constitutions. Id. at 1193-1196, 1216.
Appellant argues that the application of SORNA to his sentence was
illegal under Muniz. He contends that at the time he committed his offenses
in 2011 and 2012, he would have been subject to then-effective Megan’s Law,
under which lifetime registration and reporting requirements were less
stringent. Appellant asserts that the application of SORNA retroactively
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inflicted upon him a punishment greater than what he would have received
under the law in effect at the time he committed the crimes. Further, although
his guilty plea and sentencing occurred after SORNA’s effective date, Appellant
contends that for purposes of an ex post facto analysis, the date upon which
the crime was committed is dispositive, and not the date of his plea,
conviction, or sentencing.
The Commonwealth counters that although SORNA became effective on
December 20, 2012 (after Appellant committed his offenses), SORNA was
enacted one year earlier on December 20, 2011 (before Appellant committed
several of his offenses). Thus, the Commonwealth asserts that Appellant had
sufficient notice of SORNA’s impending registration requirements at the time
he committed his offenses at Docket Number 3839-2012 and at least some of
his offenses at Docket Number 3840-2012, and consequently, there was no
ex post facto violation.
As Appellant argues, this Court has held that the critical inquiry for
determining whether the application of SORNA to a convicted sex offender
violates ex post facto prohibitions is the date of the offense. Commonwealth
v. Horning, 193 A.3d 411, 417 (Pa. Super. 2018). Additionally, the parties
do not dispute that the application of SORNA to a sex offender for offenses
committed prior to SORNA’s enactment constitutes an ex post facto violation
in light of Muniz. Instead, the parties dispute whether it is also an ex post
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facto violation to apply SORNA to an individual who committed sex offenses
prior to its effective date.
In support of his argument, Appellant relies in part on the United States
Supreme Court’s decision in Weaver v. Graham, 450 U.S. 24 (1981), in
which the Court expounded on ex post facto prohibitions. In that case, the
Supreme Court stated that “[t]he ex post facto prohibition forbids the
Congress and the States to enact any law which imposes a punishment for an
act which was not punishable at the time it was committed; or imposes
additional punishment to that then prescribed.” Id. at 28 (quotations and
citations omitted). With the ex post facto prohibition, “the Framers sought to
assure that legislative Acts give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed.” Id. at 28-29.
Importantly, “the ex post facto prohibition . . . forbids the imposition of
punishment more severe than the punishment assigned by law when the act
to be punished occurred.” Id. at 30. “Critical to relief under the Ex Post Facto
Clause is not an individual’s right to less punishment, but the lack of fair notice
and governmental restraint when the legislature increases punishment beyond
what was prescribed when the crime was consummated.” Id.Consonant with Weaver, we hold that, for purposes of our ex post facto
analysis, it is SORNA’s effective date, not its enactment date, which triggers
its application. Although the Supreme Court in Weaver at times used the
concepts of “effective date” and “enactment date” interchangeably, a holistic
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review of the decision reveals that the Court intended for the effective date of
a statute to be the relevant date for ex post facto determinations. See id. at
31 (stating that “[t]he critical question is whether the law changes the legal
consequences of acts completed before its effective date”). The Supreme
Court made clear in Weaver that the Framers designed the ex post facto
clause to preclude legislatures from passing laws that increased the
punishment beyond what was in effect at the time the crime was committed.
See id. To conclude otherwise would render a statute’s effective date
meaningless. As our Supreme Court has explained, “[i]t is presumed that
every word, sentence or provision of a statute is intended for some purpose
and accordingly must be given effect[.]” Commonwealth v. Lobiondo, 462
A.2d 662, 664 (Pa. 1983). We decline to interpret SORNA in a manner that
does not give effect to the statute’s effective date.
Moreover, reliance on the enactment date as the triggering date would
result in disparate treatment for convicted sex offenders. If we relied on the
enactment date as the trigger for application of SORNA, it could potentially
result in different registration and reporting requirements for sex offenders
who committed the exact same crime on the exact same day. If an offender
committed a sex offense in early 2012 and was convicted and sentenced prior
to December 20, 2012, SORNA could not apply because it was not yet
effective. If another offender committed the same crime on the same day,
but was not convicted and sentenced until after December 20, 2012, under
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the Commonwealth’s position, that offender would be subject to SORNA’s
registration and reporting provisions. This improperly gives effect only to the
dates of conviction and sentencing, when we have explicitly held that the date
of the offense is the relevant inquiry when determining whether an ex post
facto violation has occurred. See Horning, 193 A.3d at 417.
To apply SORNA to offenders whose crimes were committed before its
effective date would increase punishment for sex offenses from the
punishment that existed at the time of the offense. Therefore, we hold that
application of SORNA to sex offenders for offenses committed before its
effective date violates the ex post facto clauses of the United States and
Pennsylvania Constitution.
This conclusion comports with other persuasive authority on the issue.
See U.S. v. Tykarsky, 446 F.3d 458, 480 (3d Cir. 2006) (“if a defendant
completes a crime before an increased penalty takes effect, it would violate
his right not to be subject to ex post facto legislation to impose the increased
penalty upon him”); Coady v. Vaughn, 770 A.2d 287, 289 (Pa. 2001) opinion
after certified question answered, 251 F.3d 480 (3d Cir. 2001) (“A state law
violates the ex post facto clause if it was adopted after the complaining party
committed the criminal acts and inflicts a greater punishment than the law
annexed to the crime, when committed”); Commonwealth v. Quintanilla-
Pineda, 736 MDA 2017 (January 23, 2018) (unpublished memorandum)
(vacating portion of sentence requiring the defendant to comply with SORNA
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for offenses committed when Megan’s Law III was still applicable, even though
defendant’s guilty plea and sentence occurred after SORNA’s effective date);
1 Pa.C.S.A. § 1701 (Statutory Construction Act) (“except as otherwise
provided in this chapter all statutes enacted finally at any regular session of
the General Assembly not containing a specified effective date shall be
effective on the date specified by that one of the following rules of construction
in effect on the date of final enactment of the statute”) (emphasis added); 1
Pa.C.S.A § 1926 (Statutory Construction Act) (“no statute shall be construed
to be retroactive unless clearly and manifestly so intended by the General
Assembly”); Commonwealth v. Johnson, 553 A.2d 897, 899 (Pa. 1989)
(“The principle embodied in the Statutory Construction Act, that the legislature
must clearly manifest an intent to apply an act retroactively, is also recognized
in case law”); Witmer v. Exxon Corp., 394 A.2d 1276, 1284 (Pa. 1978) aff’d
434 A.2d 1222 (1981) (a court cannot accelerate the date chosen by the
legislature for a statute to become effective).
Instantly, Appellant committed his crimes no later than May 2012. The
General Assembly explicitly stated that SORNA became effective on December
20, 2012. See Commonwealth v. Martinez, 147 A.3d 517, 522 (Pa. 2016)
(reiterating that “SORNA provided for the expiration of Megan’s Law as of
December 20, 2012, and for the effectiveness of SORNA on the same date.”).
Thus, Appellant committed his crimes at least seven months prior to SORNA’s
effective date. Given the foregoing, and in reliance on our Supreme Court’s
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decision in Muniz, we agree with Appellant that application of SORNA’s
registration and reporting requirements in this case violated ex post facto
prohibitions, as it inflicted a greater punishment upon Appellant than the law
in effect at the time he committed his crimes.
In support of its argument, the Commonwealth relies on
Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016). Kizak was
arrested for DUI on two separate occasions in three months – on September
24, 2014 and on December 10, 2014. Id. at 855. During that period, the
General Assembly amended Section 3806 of the Motor Vehicle Code, “which
addresses the calculation of prior DUI offenses to determine whether a
defendant is a repeat offender for sentencing purposes.” Id. at 858-59. The
amendment to Section 3806 was enacted on October 27, 2014 and took effect
on December 26, 2014.8 Id. at 859. “[U]nder the 2014 amendment, the ten-
year ‘look back’ period for determining prior offenses became the date of
sentencing and was no longer the date that the offense occurred.” Id. “Also,
Section 2 of Act 2014-189 provides that the amendment of [S]ection 3806(b)
shall apply to persons sentenced on or after [December 26, 2014,] the
effective date of this section.” Id. (citation omitted, emphasis in original).
Kizak argued the trial court’s treatment of her December 10, 2014 DUI as a
second DUI offense violated ex post facto prohibitions when the amendment
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8 Section 3806 has since been amended again. See 75 Pa.C.S.A. § 3806
(S.B. 290, 200 Gen. Assemb., Reg. Sess. (Pa. 2016), Act 33 of 2016).
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of Section 3806 did not become effective until December 26, 2014, which was
after her December 10, 2014 DUI. Id. at 856.
In rejecting Kizak’s ex post facto claim, this Court explained:
The amendment to the law in question was signed by the
Governor of Pennsylvania on October 27, 2014. Over six weeks
later, on December 10, 2014, Appellant committed the instant DUI
offense. The amendment to [S]ection 3806(b) took effect on
December 26, 2014. Furthermore, the legislature specified in the
statute that the amendment of section 3806(b) “shall apply to
persons sentenced on or after [December 26, 2014,] the
effective date of this section.” Act 2014-189 § 2 (emphasis
added).
Appellant was charged with the instant DUI offense on January
23, 2015. On May 20, 2015, Appellant entered her guilty plea.
Thereafter, on July 14, 2015, the trial court, applying the
amendment to section 3806(b), imposed Appellant's judgment of
sentence.
Here, the new law was not applied to events occurring before
its enactment, that being October 27, 2014, because the instant
offense was committed on December 10, 2014. Moreover,
Appellant had fair notice of the change in the statute as her
offense occurred more than six weeks after the amendment to the
statute was signed into law. Accordingly, we are satisfied that
there was no ex post facto violation in the instant matter.
Id. at 860; see also Commonwealth v. McGarry, 172 A.3d 60 (Pa. Super.
2017) (applying the Kizak holding to an identical ex post facto claim involving
the 2014 amendment to Section 3806).
We find Kizak distinguishable. In Kizak, the DUI statute at issue,
Section 3806, expressly stated that it applied to persons sentenced after its
effective date. Kizak, 148 A.3d at 859. This Court therefore elected in
Kizak to honor the expressly stated intent of the General Assembly and apply
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the statute to sentences imposed after its enactment date, even for DUIs
committed before the effective date. SORNA, however, does not include
language such as that contained in Section 3806 (i.e., that SORNA is to apply
to any sex offender convicted after its effective date, regardless of the date
the offense was committed). Thus, Kizak is not applicable to matters arising
under SORNA. Further, to the extent Kizak would hold that the relevant date
in conducting an ex post facto analysis is always the enactment date of the
statute, as opposed to the effective date, we overrule such a holding.
We acknowledge that in our order directing en banc certification of this
case, we asked the parties to brief whether Act of Feb. 21, 2018, P.L. 27, No.
10 (HB 631 of 2017; Act 10) renders the registration provisions of SORNA
non-punitive, and if so, whether application of Act 10 to Appellant would
violate the ex post facto clauses of the United States and Pennsylvania
Constitutions. However, we decline in this instance to address the
constitutional implications of Act 10.
This Court recently explained:
In response to our Supreme Court’s decision in Muniz and this
Court’s later decision in Commonwealth v. Butler, 173 A.3d
1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 [] (Pa.
July 31, 2018) (holding certain sexually violent predator
provisions of SORNA were constitutionally infirm), the
Pennsylvania General Assembly passed Acts 10 and 29 of 2018.
The express purpose of these legislative enactments was, inter
alia, to “[p]rotect the safety and general welfare of the people of
this Commonwealth by providing for registration, community
notification and access to information regarding sexually violent
predators and offenders who are about to be released from
custody and will live in or near their neighborhood[,]” and to cure
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SORNA’s constitutional defects by “address[ing] [Muniz and
Butler].” See 42 Pa.C.S.A. § 9799.51(b)(1),(4).
Specifically, our General Assembly modified Subchapter H’s
registration requirements for those offenders convicted of
committing offenses that occurred on or after SORNA’s effective
date of December 20, 2012. The General Assembly also added
Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets
forth the registration requirements that apply to all offenders
convicted of committing offenses on or after Megan’s Law I’s
effective date (April 22, 1996), but prior to SORNA's effective
date.
Commonwealth v. Bricker, --- A.3d ---, 2018 WL 5093265 at *4 (Pa. Super.
2018).
When the trial court sentenced Appellant in August 2013 at Docket
Numbers 3839-2012 and 3840-2012, it did so pursuant to Subchapter H of
SORNA as it existed at that time. Although the General Assembly recently
amended Subchapter H, Appellant has not received a sentence under the
amended provision. Consequently, the question of whether Act 10 and Act 29
are constitutional is not before us. We also recognize that our Supreme Court
recently granted review to determine the issue of whether Acts 10 and 29 are
constitutional. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).
Accordingly, we decline to address those issues in this appeal.
Because retroactive application of SORNA’s registration and reporting
requirements to Appellant violated the ex post facto clauses of the United
States and Pennsylvania Constitutions, we conclude that Appellant is not
required to register as a sex offender under SORNA. Accordingly, we remand
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this matter to the trial court to determine the appropriate registration and
reporting requirements for Appellant.
Finally, we address Appellant’s claim relating to his SVP designation.
Initially, Appellant challenged his SVP designation by asserting that the trial
court erred in declining to appoint an expert to assist him and conduct an
independent SVP evaluation on his behalf. Appellant now also asserts that we
must vacate his SVP designation in light of this Court’s decision in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
granted, 190 A.3d 581 (Pa. 2018).
This Court in Butler explained:
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
. . . 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 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).
Butler, 173 A.3d at 1215.
In addressing the constitutionality of Pennsylvania’s procedural
mechanism for SVP designations, we first acknowledged that “[i]n [Apprendi
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v. New Jersey, 530 U.S. 466 (2013)], 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.” Id. at
1216 (quoting Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super.
2014)). We further recognized that in Alleyne v. United States, 570 U.S.
99 (2013), “the [Supreme Court of the United States] held that any 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.” Id. at
1217 (quoting Conaway, supra).
Mindful of Apprendi, Alleyne, and Muniz, this Court held that
Pennsylvania’s statutory procedure for designating individuals SVPs was
unconstitutional. Id. at 1217-18. We reasoned:
[O]ur 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 9799.24(e)(3) is unconstitutional and
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Appellant’s judgment of sentence, to the extent it required him to
register as an SVP for life, was illegal.
Id. at 1217-18.
Our review of the certified record reveals that the trial court, which did
not have the benefit of our Butler decision, designated Appellant as an SVP
without making the required factual findings beyond a reasonable doubt.
Accordingly, we vacate the trial court’s designation of Appellant as an SVP. In
light of this decision, we do not address Appellant’s initial argument that the
trial court erred in denying his request for the appointment of an expert to
assist him at his SVP hearing.
Order vacated. Case remanded. Jurisdiction relinquished.
President Judge Gantman, President Judge Emeritus Bender and Judges
Bowes, Panella, Lazarus, Ott, and Dubow join the Opinion.
Judge Stabile files a concurring opinion in which President Judge Emeritus
Bender and Judge Bowes join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/19
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