Com. v. Davis, D. ( 2019 )

J-S76012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DENNIS LEE DAVIS,
Appellant No. 377 WDA 2018
Appeal from the Judgment of Sentence Entered August 11, 2017
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000407-2008
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 28, 2019
Appellant, Dennis Lee Davis, appeals from the August 11, 2017
judgment of sentence of 18 months’ to 5 years’ incarceration, imposed after
he pled guilty to one count of indecent assault, 18 Pa.C.S. § 3126(a)(3). On
appeal, Appellant solely challenges the legality of his designation as a Sexually
Violent Predator (SVP) under Pennsylvania’s Sex Offender Registration and
Notification Act (SORNA), 42 Pa.C.S. §§ 9799.14-9799.42. After careful
review, we vacate the judgment of sentence to the extent it deems Appellant
an SVP, and remand for further proceedings.
The facts underlying Appellant’s conviction are not necessary to our
disposition of the issues he presents on appeal. We need only note that
Appellant pled guilty to the above-stated offense and was sentenced on
August 11, 2017, to the term of incarceration stated supra. He was also
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deemed to be an SVP subject to a lifetime registration requirement under
SORNA. Appellant filed a timely post-sentence motion, which was denied
following a hearing.
Appellant then filed a timely notice of appeal, and he also timely
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Therein, Appellant set forth the
two issues he now raises on appeal, which are as follows:
1. Whether, as applied to [] [A]ppellant as part of the judgment
of sentence imposed on August 11, 2017, the registration
mandates of SORNA … for an offender determined to be a[n SVP]
(as the term … is defined at 42 Pa.C.S. § 9799.12), which []
[A]ppellant was determined to be on August 11, 2017, for the
offense of … indecent assault in violation of 18 Pa.C.S. §
3126(a)(3), which violation occurred on May 2, 2008, contravene
the ex post facto clause of the United States Constitution, Article
1, Section 10, and the ex post facto clause of the Pennsylvania
Constitution, Article 1, Section 17?
2. Whether the designation under 42 Pa.C.S. § 9799.24(e)(3) of
[] [A]ppellant as a[n SVP] (as the term … is defined at 42 Pa.C.S.
§ 9799.12) constituted an illegal sentence to the extent that such
designation required [] [A]ppellant to register as a[n SVP] for life,
thereby increasing the criminal penalty without due process, and
contravened [] [A]ppellant’s constitutionally-protected rights and
privileges, including, but not limited to, the right to a jury trial and
the reasonable doubt standard guaranteed by the Sixth
Amendment and the Fourteenth Amendment to the United States
Constitution and by Article I, Section 6 and Section 9, of the
Pennsylvania Constitution, rendering any waiver of a jury trial in
[] [Appellant’s] guilty plea unknowing and involuntary with
respect to determination of [SVP] status by failing to advise []
[Appellant] that the right to a jury trial as applied to such
determination?
Appellant’s Brief at 6-7.
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On July 10, 2018, the trial court sent this Court a letter, in lieu of a Rule
1925(a) opinion, conceding that Appellant’s SVP designation is illegal under
our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189(Pa. 2017) (holding that SORNA’s registration provisions constitute criminal
punishment that cannot be retroactively applied to a defendant whose crimes
were committed prior to SORNA’s enactment), and this Court’s subsequent
holding in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
(concluding that SORNA’s SVP provision, which requires the trial court to
determine if an individual is an SVP based on clear and convincing evidence,
is unconstitutional under Alleyne v. United States, 570 U.S. 99 (2013)).1
See Trial Court Letter, 1/10/18, at 1-2 (unnumbered).
We need not discuss Appellant’s issues in depth, as it is clear that Butler
renders his SVP designation under SORNA illegal, as the trial court
acknowledges. Therefore, we vacate Appellant’s August 11, 2017 sentence to
the extent that it designates him an SVP under SORNA, and we remand for
the trial court to determine what, if any, registration requirements apply to
Appellant.
____________________________________________
1 Following Muniz and Butler, the Pennsylvania General Assembly enacted
legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act
10”). Act 10 amended several provisions of SORNA, and it also added several
new sections found at 42 Pa.C.S. §§ 9799.42, 9799.51-9799.75. In addition,
the Governor of Pennsylvania recently signed new legislation striking the Act
10 amendments and reenacting several SORNA provisions, effective June 12,
2018. See Act of June 12, 2018, P.L. 1952, No. 29. These modifications do
not apply to Appellant’s SVP designation, however, which the trial court
imposed in 2017 under the original SORNA.
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Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2019
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