Com. v. Martinez-Olacio, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DALVIN MARTINEZ-OLACIO :
:
Appellant : No. 468 MDA 2019
Appeal from the Judgment of Sentence Entered February 6, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003325-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 27, 2020
Appellant, Dalvin Martinez-Olacio, appeals from the judgment of
sentence entered in the Court of Common Pleas of Berks County after the
court accepted his guilty plea on two counts of Robbery-Inflict or Threaten
Bodily Injury1 and two counts of Indecent Assault-Without Consent.2 The
court also deemed Appellant a Sexually Violent Predator (“SVP”) after a
hearing conducted under a clear-and-convincing-evidence standard pursuant
to the dictates of the current version of Pennsylvania’s Sex Offender
Registration and Notification Act (“SORNA II”), 42 Pa.C.S. § 9799.10 et seq.
At sentencing, Appellant received an aggregate term of two to four
years’ incarceration, to be followed by four years of special probation and
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1 18 Pa.C.S. § 3701(a)(1)(iv).
2 18 Pa.C.S. § 3126(a)(1).
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* Former Justice specially assigned to the Superior Court.
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lifetime registration under SORNA II as an SVP, with the possibility of
obtaining an exemption from such registration requirements after 25 years if
he proves he meets certain conditions. See Section 9799.15(a)(2), (a.2).
Herein, Appellant challenges the constitutionality of the SORNA II
regulatory scheme implementing a clear-and-convincing evidence standard
for an SVP determination that results in increased registration, notification,
and counseling (RNC) requirements. In light of our Supreme Court’s recent
decision in Commonwealth v. Butler, 25 WAP 2018, --- A.3d ---- (Pa. Mar.
26, 2020) (Butler II), which held that RNC requirements for SVPs under
SORNA are not punishment, such that SVP assessment by clear and
convincing evidence standard is constitutional, we conclude that Appellant’s
SVP designation was constitutional under SORNA II.
Appellant’s convictions stem from two robberies he committed within a
24-hour period in April of 2017. In his first robbery, Appellant took $15.00
cash from a woman while threatening her with bodily injury. In the course of
committing this crime, he grabbed the victim’s buttocks for the purpose of his
own arousal without her consent. In the second robbery, Appellant took
$5.00 cash and a gold watch from a woman while threatening her with bodily
injury. During this robbery, Appellant touched intimate parts of the victim’s
body for the purpose of his own arousal without her consent.
On May 4, 2017, authorities filed a criminal complaint against Appellant,
and he pleaded guilty to the above-mentioned charges on June 11, 2018. On
the same day, the court ordered the Sex Offender Assessment Board (“SOAB”)
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to perform a sexually violent predator assessment of Appellant pursuant to
Section 9799.24 of SORNA II, Subchapter H of Act 29. On February 6, 2019,
after receiving the SOAB assessment, the court conducted a hearing pursuant
to Section 9799.24(e) and concluded that clear and convincing evidence
established Appellant was an SVP subject to the RNC requirements for SVPs
under Subchapter H. Following the denial of Appellant’s post-sentence
motion, Appellant filed this timely direct appeal.
Appellant raises one issue for our review:
[Is] 42 Pa.C.S. § 9799.24 [ ] unconstitutional where it increases
the length of a criminal punishment on a finding that an offender
is a sexually violent predator on the mere basis of clear and
convincing evidence, violating the due process clause of the
Fourteenth Amendment to the United States Constitution[?]
Appellant’s brief, at 4.
To support his claim, Appellant relies on our Supreme Court’s decision
in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and this Court’s
subsequent decision in Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa.
Super. 2017). Appellant asserts these cases hold that the current procedure
for SVP designation is unconstitutional.
In addressing Appellant’s challenge, we find salient the following
summary discussing the evolution of sex offender registration schemes
leading up to SORNA II and explaining how judicial decisions have reviewed
the constitutionality of each one:
Courts have also referred to SORNA as the Adam
Walsh Act. SORNA [I was] the General Assembly's
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fourth enactment of the law commonly referred to as
Megan's Law. Megan's Law I, the Act of October 24,
1995, P.L. 1079 (Spec. Sess. No. 1), was enacted on
October 24, 1995, and became effective 180 days
thereafter. Megan's Law II was enacted on May 10,
2000[,] in response to Megan's Law I being ruled
unconstitutional by our Supreme Court in
Commonwealth v. Williams, ... 557 Pa. 285, 733
A.2d 593 ([Pa.] 1999). Our Supreme Court held that
some portions of Megan's Law II were unconstitutional
in Commonwealth v. Gomer Williams, ... 574 Pa.
487, 832 A.2d 962 ([Pa.] 2003), and the General
Assembly responded by enacting Megan's Law III on
November 24, 2004. The United States Congress
expanded the public notification requirements of state
sexual offender registries in the Adam Walsh Child
Protection and Safety Act of 2006, 42 U.S.C. §§
16901-16945, and the Pennsylvania General
Assembly responded by passing SORNA [I] on
December 20, 2011[,] with the stated purpose of
“bring[ing] the Commonwealth into substantial
compliance with the Adam Walsh Child Protection and
Safety Act of 2006.” 42 Pa. C.S. § 9799.10(1).
SORNA [I] went into effect a year later on December
20, 2012. Megan's Law III was also struck down by
our Supreme Court for violating the single subject rule
of Article III, Section 3 of the Pennsylvania
Constitution. [Commonwealth] v. Neiman, ... 624
Pa. 53, 84 A.3d 603, 616 ([Pa.] 2013). However, by
the time it was struck down, Megan's Law III had been
replaced by SORNA [I].
M.S. v. Pennsylvania State Police, 212 A.3d 1142, 1143 n.1
(Pa.Cmwlth. 2019) (quoting Dougherty v. Pennsylvania State
Police, 138 A.3d 152, 155 n.8 (Pa.Cmwlth. 2016) (en banc)).
SORNA I also failed to withstand constitutional scrutiny. In
[Muniz, supra], our Supreme Court held that
1) SORNA's registration provisions constitute
punishment notwithstanding the General Assembly's
identification of the provisions as nonpunitive; 2)
retroactive application of SORNA's registration
provisions violates the federal ex post facto clause;
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and 3) retroactive application of SORNA's registration
provisions also violates the ex post facto clause of the
Pennsylvania Constitution.
Id. at 1193. The Muniz Court deemed SORNA I's registration
provisions to be punitive by applying the seven-factor test
established in Kennedy v. Mendoza–Martinez, 372 U.S. 144,
83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
Applying Muniz, in conjunction with Alleyne v. United States,
570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), this Court
deemed unconstitutional the SVP assessment provision of SORNA
I, 42 Pa.C.S. § 9799.24, 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.” Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa.
Super. 2017), reargument denied (Jan. 3, 2018), appeal granted,
190 A.3d 581 (Pa. 2018).
Commonwealth v. Cosby, --- A.3d. ----, 2019 WL 6711477 (Pa.Super. filed
December 10, 2019).
In response to Muniz and Butler, our General Assembly amended
SORNA with legislation, “Act 10” on February 21, 2018, amended and
reenacted as “Act 29” on June 12, 2018 (hereinafter “SORNA II”), with the
stated intent to “address the Pennsylvania Supreme Court's decision in …
Muniz …, and the Pennsylvania Superior Court's decision in ... Butler....”
See 42 Pa.C.S. § 9799.51(d)(4).3 Significantly for purposes of the instant
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3 The General Assembly divided SORNA II into two distinct subchapters—
Subchapter H, which applies to “individuals who committed a sexually violent
offense on or after December 20, 2012, for which the individual was
convicted[,]” 42 Pa.C.S. § 9799.11(c), and Subchapter I, which applies to
individuals who committed a sexually violent offense “on or after April 22,
1996, but before December 20, 2012,” and whose period of registration has
not yet expired or whose registration requirements under a former sexual
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case, SORNA II did not amend the SVP procedures of 42 Pa.C.S.A. § 9799.24,
the statute pursuant to which the trial court, in this case, designated Appellant
an SVP.
Instantly, Appellant claims that because the RNC provisions of SORNA
II are punitive under Muniz, it follows that the SVP assessment procedure
under the statutory scheme violates Butler, as the designation turns on a
clear and convincing standard of proof rather than on a beyond a reasonable
doubt standard.
On March 26, 2020, however, the Pennsylvania Supreme Court reversed
this Court’s Butler decision. In Butler II, our Supreme Court held that the
RNC requirements “applicable to SVPs do not constitute criminal punishment,”
such that 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 [v. New Jersey, 530 U.S. 466 (2013)] 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
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offender registration law have not expired. 42 Pa.C.S. § 9799.52. As Appellant
committed his offenses in 2017, Subchapter H applies to his case.
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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 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).
In light of our Supreme Court’s decision in Butler II, we conclude that
the procedure by which the trial court imposed Appellant’s SVP designation
was constitutional. Accordingly, Appellant’s challenge is without merit.
Judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/2020
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