Com. v. Fulton, L.

J-A08010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEON FULTON :
:
Appellant : No. 2649 EDA 2016
Appeal from the Judgment of Sentence April 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010329-2014
CP-51-CR-0010330-2014
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 31, 2018
Following a hearing, Appellant, Leon Fulton, was found to meet the
statutory requirements to be classified as a “sexually violent predator”
pursuant to the assessment provision of then current version of the Sex
Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.24.
He now appeals that designation in light of the Pennsylvania Supreme Court’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert.
denied, 138 S. Ct. 925 (2018).
The main argument presented by Fulton is that the retroactive
application of SORNA violates the ex post facto clauses of the federal and state
constitutions because the offenses to which he pleaded guilty occurred prior
to the effective date of SORNA. He also contends that the standard of proof of
clear and convincing evidence relating to SVPs is no longer constitutionally
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* Retired Senior Judge assigned to the Superior Court.
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sufficient because the consequences of the designation under SORNA have
been deemed punitive in nature, therefore requiring proof beyond a
reasonable doubt.1 Fulton’s brief was filed before our published decision in
Commonwealth v. v. Butler, 173 A.3d 1212, 1217 (Pa. Super. 2017).
On November 4, 2014, Fulton entered a negotiated guilty plea in two
separate cases. In the first, docketed at CP-51-CR-0010329-2014, he pled
guilty to two counts: Indecent Assault, 18 Pa.C.S.A. § 3126, graded as a felony
of the third degree, and Corruption of Minors, 18 Pa.C.S.A. § 6301, graded as
a misdemeanor of the first degree. In the second, docketed at CP-51-
0010330-2014, he pled guilty to Involuntary Deviate Sexual Intercourse, 18
Pa.C.S.A. § 3123, a felony of the first degree, and Corruption of Minors, 18
Pa.C.S.A. § 6301, again graded as a misdemeanor of the first degree. At the
time of his guilty plea, the Commonwealth summarized the factual foundation
to support the plea as follows:
As to . . . No. 10329-2014, the complaining witness in that
case is a -- was an 11-year-old female, initials S.F. She stated
that while inside of 400 North, I believe it’s Busti Street . . . , here
in Philadelphia, apartment 1502, her uncle, the defendant here at
the bar of the Court, touched her private parts on multiple
occasions with her [sic] hands on the top of her clothes. She
stated that the defendant would touch and rub her buttocks and
chest with his hands. She stated that the defendant told her that
if he – if she told anybody he would kill her and her brother.
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1Fulton also contends that the evidence presented at the SVP hearing did not
prove that he suffers from Pedophilic Disorder, the underlying basis for his
designation as a sexually violent predator. In light of our decision that the
order must be reversed, we do not reach that issue.
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She also stated this subject would lock her and her brother
in a closet after beating them with a belt. She recalled –
recollected that this incident happened sometime during the
course of 2008.
As to . . . Docket No. 10330, the victim is a 15-year-old
male, C.S., who I believe is the brother. He was interviewed and
stated that while inside that same residence, his uncle, the
defendant, sexually abused him on one occasion. The complainant
stated that he was in the bathroom when the defendant pulled
down his pants and tried to put his penis in the complainant’s
buttocks. The complainant stated that he felt like he was being
raped and that his buttocks hurt when the subject tried to put his
penis in there. He indicates that this incident happened when he
was approximately 8 to 9 years old or what would have been
2009.
Transcript, Guilty Plea, 11-4-2014, at 9-10.
A bifurcated SVP hearing was held on November 9, 2015, and March 10,
2016. At the first hearing, Dr. Barbara Ziv testified on behalf of the
Commonwealth, and at the second hearing, Dr. Timothy Foley testified on
behalf of Fulton. At the conclusion of the March 10 hearing, the trial court
found that Fulton should be designated as a sexually violent predator.
Transcript, Hearing Volume I, 3-10-2016 at 4-9.2
On April 8, 2016, Fulton received an aggregate sentence of six to twelve
years of incarceration, to be followed by ten years of supervision.
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2 “The Commonwealth has shown the defendant meets the criteria, mental
abnormality or personal disorder, likely to engage in predatory sexual
offenses.” Transcript, Hearing Volume I, 3-10-2016 at 9.
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Fulton filed a timely counseled post sentence motion. In the Motion,
Fulton’s sole issue challenged his classification as a Sexually Violent Predator.
The Motion was denied by the trial court on August 15, 2016. This appeal
follows.
Fulton raises five issues. In the first three, Fulton contends that his
designation as a SVP should be vacated in light of Muniz, as well as the
application of the federal and state constitutional prohibitions against ex post
factor sanctions. In his fourth, he argues that the Commonwealth did not
present sufficient evidence to satisfy the statutory definition of a sexually
violent predator. In his last issue, he requested permission to raise other
matters that are addressed in Muniz in the event this case is remanded for a
new SVP hearing. Fulton does not challenge his conviction or his sentence.
The Commonwealth, in its brief, does not oppose the reversal of the trial
court’s remand for a new SVP hearing. The Commonwealth states that it “does
not oppose the reversal of the order below to the extent that it retroactively
applies the registration requirements of SORNA. Because defendant does not
challenge the validity of his guilty plea or the imposition of the negotiated
sentence, the judgments of sentence should be affirmed in all other aspects.”
Appellee’s Brief at 6-7 (footnote omitted).
In Muniz, the Pennsylvania Supreme Court found the registration
conditions of the former version of SORNA to be punitive. The Court held that
retroactive application of SORNA’s then registration requirements constituted
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a violation of both the United States and Pennsylvania’s constitutional
provisions against ex post facto laws. Consequently, the Court deemed such
retroactive applications unconstitutional and therefore invalid.
We subsequently applied Muniz in Commonwealth v.
v. Butler, 173 A.3d 1212, 1217 (Pa. Super. 2017), to hold that trial courts
cannot constitutionally apply SORNA’s SVP procedures. There, we explained
that doing so would unconstitutionally deprive a criminal defendant of the right
to have a jury determine whether the Commonwealth had proven all elements
of the crime charged beyond a reasonable doubt:
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.
Id., at 1218 (emphasis added).
Applying Butler in a later decision, we said:
Butler determined that, as a result of Muniz, the SVP procedure
is subject to the constitutional requirement that the facts
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constituting that punishment must be found by a fact-finder
beyond a reasonable doubt. Thus, 42 Pa.C.S. § 9799.24(e)(3),
which requires the trial court to find the relevant facts by clear
and convincing evidence, was deemed unconstitutional.
Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018).
The Pennsylvania Legislature has endeavored to resolve the issues
raised in Muniz by passing a law to replace the invalidated portions of SORNA.
See 2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June 12, 2018)
(“Act 29”), amending Title 42 (Judicial Procedure) of the Pennsylvania
Consolidated Statutes. Though Act 29 was enacted during the pendency of
this appeal, it became effective immediately. However, it does not amend the
SVP provisions in 42 Pa.C.S.A. § 9799.24. See 42 PA.C.S.A. § 9799.52 and
9799.55.
In light of Muniz and Butler, Appellant's SVP status constitutes an
illegal sentence. Therefore, we vacate that portion of Appellant's sentence
finding him to be an SVP and remand to the trial court to issue a revised notice
to Appellant pursuant to 42 Pa.C.S.A. § 9799.23 (governing reporting
requirements of sex offenders). Accordingly, we vacate the trial court’s
imposition of SVP status, but affirm the judgment of sentence in all other
respects.
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Since Fulton was convicted of a Tier III offense, he is still required to
register for life. See 42 Pa.C.S. § 9799.14(d) (classifying Involuntary Deviate
Sexual Intercourse as a Tier III offense).3
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/18
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3Involuntary Deviate Sexual Intercourse also required lifetime registration
under Megan’s Law, 42 Pa.C.S.A. § 9795.1(b)(2) (repealed).
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