Com. v. Craig, R., Jr. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RALPH EDWARD CRAIG, JR. :
:
Appellant : No. 1283 MDA 2018
Appeal from the Order Entered July 5, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006406-2017
BEFORE: OTT, J.*, MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: APRIL 14, 2020
Ralph Edward Craig, Jr. (Appellant) appeals from the order designating
him a sexually violent predator (SVP) under the Pennsylvania Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41.
For the reasons that follow, we affirm.1
Appellant was convicted of two counts of sexual assault2 arising from an
incident that occurred in the Lancaster County Prison on September 26, 2017.
On February 28, 2018, Appellant entered a nolo contendere plea. The same
day, the trial court sentenced Appellant to 8 to 20 years of incarceration. The
court also ordered Appellant to undergo an evaluation by the Sexual Offenders
Assessment Board (SOAB).
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1 This case was reassigned to this author on October 18, 2019.
2 18 Pa.C.S.A. § 3124.1.
*Judge Ott did not participate in this decision.
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On July 3, 2018, Appellant filed a motion to vacate the order for an
SOAB assessment. Appellant asserted that this Court’s decision in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
granted, 190 A.3d 581 (Pa. 2018), precluded the trial court from designating
him as an SVP. Before ruling on Appellant’s motion, the trial court on July 5,
2018 convened a hearing on the SOAB’s assessment. At the conclusion of the
hearing, the trial court entered the underlying order designating Appellant an
SVP. On July 9, 2018, the trial court formally denied Appellant’s motion to
vacate the order for an SOAB assessment. On August 3, 2018, Appellant filed
this timely appeal.3
Appellant presents the following issue for our review:
Did the trial court err in finding that [Appellant] could be
designated a sexually violent predator, where SORNA II
constitutes criminal punishment, thus requiring that the
determination of whether a defendant is a sexually violent
predator must be made by the defendant’s chosen fact-finder
beyond a reasonable doubt?
Appellant’s Brief at 4 (unnumbered).
In his sole issue, Appellant argues that his SVP designation is
unconstitutional. Appellant relies primarily on our Supreme Court’s decision
in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and this Court’s
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3 On August 6, 2018, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). On August 27, 2018, Appellant filed a timely
Rule 1925(b) statement.
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subsequent decision in Butler. Appellant asserts that these cases hold that
the current procedure for SVP designation is unconstitutional. In light of our
Supreme Court’s recent decision in Commonwealth v. Butler, 25 WAP 2018,
___ A.3d ___ (Pa. Mar. 26, 2020), we conclude that Appellant’s SVP
designation was proper.
At the outset, we acknowledge that a challenge to the SORNA
registration requirements presents a legality of sentence issue.
Commonwealth v. Horning, 193 A.3d 411, 414 (Pa. Super. 2018).
“Because [these] issue[s] present[] a question of law, our standard of review
is de novo and our scope of review is plenary.” Id.
“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). In Muniz,
our Supreme Court addressed the constitutionality of SORNA’s sex offender
registration and reporting requirements. The Court concluded that retroactive
application of SORNA’s registration and reporting requirements violated ex
post facto prohibitions under both the United States and Pennsylvania
Constitutions. Muniz, 164 A.3d at 1223. The Muniz Court reasoned that
despite the legislature’s characterization of SORNA’s provisions as civil, its
registration and reporting requirements were in fact punitive, and therefore
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criminal in nature. Id. at 1196, 1218. Consequently, as criminal punishment,
the Supreme Court determined that trial courts may not apply SORNA’s
registration and reporting provisions to criminal defendants for offenses
committed prior to SORNA’s effective date. See id. at 1218; see also
Commonwealth v. Lippincott, 208 A.3d 143, 150 (Pa. Super. 2019) (en
banc) (explaining 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 Constitutions”). 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 courts cannot retroactively
apply registration and reporting provisions to criminal defendants. See
Muniz, 164 A.3d at 1232-33 (Wecht, J., concurring).
This Court subsequently applied Muniz in addressing the
constitutionality of SORNA’s SVP designation procedures in Butler. In
addressing the constitutionality of Pennsylvania’s procedural mechanism for
SVP designation, this Court in Butler first recognized that “[i]n [Apprendi 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.” Butler, 173
A.3d at 1216 (quoting Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa.
Super. 2014)). We further recognized that in Alleyne v. United States, 570
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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.”
Butler, 173 A.3d at 1217 (quoting Conaway, 105 A.3d at 761).
Mindful of Apprendi, Alleyne, and Muniz, this Court in Butler held
that Pennsylvania’s statutory procedure for SVP designation 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 Appellant’s judgment of
sentence, to the extent it required him to register as an SVP for
life, was illegal.
Id. at 1217-18 (emphasis added).
The Pennsylvania Generally Assembly sought to resolve the
constitutional defects of SORNA by passing legislation to replace the
invalidated provisions addressed by Muniz and Butler (“Act 10” on February
21, 2018, amended and reenacted as “Act 29” on June 12, 2018, hereinafter
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SORNA II).4 Notably, SORNA II did not amend the SVP procedures of 42
Pa.C.S.A. § 9799.24, which was the specific statute pursuant to which the trial
court, in this case, designated Appellant an SVP. See Trial Court Opinion,
10/3/18, at 1.
On March 26, 2020, however, the Pennsylvania Supreme Court reversed
this Court’s Butler decision. See Butler, 25 WAP 2018 at 30-31. Specifically,
our Supreme Court held that the registration, notification, and reporting (RNC)
requirements “applicable to SVPs do not constitute criminal punishment,”
and therefore, SORNA’s procedural mechanism for designating sex offenders
as SVPs set forth in Section 9799.24 does not violate “the principles set forth
in Apprendi or Alleyne[.]” Id. at 30-31 (citing Commonwealth v. Lee,
935 A.2d 865, 880 (Pa. 2007) (Apprendi claims cannot succeed where
sanctions do not constitute punishment)). The Supreme Court explained:
Although we recognize the RNC requirements impose
affirmative disabilities or restraints upon SVPs, and those
requirements have been historically regarded as punishment, our
conclusions in this regard are not dispositive on the larger
question of whether the statutory requirements constitute
criminal punishment. This is especially so where the government
in this case is concerned with protecting the public, through
counseling and public notification rather than deterrent threats,
not from those who have been convicted of certain enumerated
crimes, but instead from those who have been found to be
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4 The General Assembly enacted SORNA on December 20, 2011. SORNA
became effective on December 20, 2012. The General Assembly amended
SORNA on February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa.
2018), Act 10 of 2018. The Legislature further amended SORNA on June 12,
2018, by H.B. 1952, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018.
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dangerously mentally ill. Under the circumstances, and also
because we do not find the RNC requirements to be excessive in
light of the heightened public safety concerns attendant to SVPs,
we conclude the RNC requirements do not constitute criminal
punishment.
Id. at 30 (citation omitted).
Given our Supreme Court’s recent pronouncement in Butler, we
conclude that the procedure by which the trial court imposed Appellant’s SVP
designation in this case was constitutional. See id. Accordingly, we affirm
the trial court’s July 5, 2018 order that designated him as an SVP.
Order affirmed.
Judge Musmanno joins the memorandum.
Judge Ott did not participate in the consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2020
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