Commonwealth v. Butler ( 2017 )

J-A21024-17
2017 PA Super 344COMMONWEALTH 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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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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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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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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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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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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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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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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