Com. v. Weiand, F.

J-S22032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK DANIEL WEIAND :
:
Appellant : No. 1380 MDA 2018
Appeal from the Judgment of Sentence Entered June 7, 2018
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000395-2017
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 20, 2019
Frank Daniel Weiand (Weiand) appeals from the judgment of sentence
imposed by the Mifflin County Court of Common Pleas following his entry of a
plea of nolo contendere to one count of statutory sexual assault.1 Specifically,
he challenges his designation as a sexually violent predator (SVP). We vacate
the judgment of sentence with respect to the SVP designation and affirm in all
other respects.
We derive the following relevant facts and procedural history of this case
from our independent review of the record. On March 9, 2018, Weiand
entered a nolo contendere plea to the above-referenced offense. The charge
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1 18 Pa.C.S. § 3122.1(b).
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* Retired Senior Judge assigned to the Superior Court.
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stems from his long-term sexual abuse of his daughter beginning when she
was three or four years old, from approximately January 2013 through
November 2016. On June 7, 2018, the trial court designated him an SVP,
using a clear and convincing evidence standard of proof. (See N.T.
Sentencing, 6/07/18, at 27). It sentenced him to a term of not less than
eleven-and-a-half nor more than twenty-three months’ incarceration. This
timely appeal followed.2
Weiand challenges his SVP designation on appeal and argues that it
should be vacated because it is unconstitutional under Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa.
2018). (See Weiand’s Brief, at 5-7) (unpaginated).3 The response of the trial
court and the Commonwealth is that any constitutional defects in the SVP
designation process have been remedied by the passage of subsequent
legislation. (See Trial Court Opinion, 8/02/18, at 1-2; Commonwealth’s Brief,
at 4-5).
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2 The record reflects that counsel for Weiand did not file a concise statement
of errors complained of on appeal as directed by the trial court. See Pa.R.A.P.
1925(b). However, because the trial court addressed the issue raised by
Weiand on appeal in its August 2, 2018 opinion, it is unnecessary to remand.
See Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016),
appeal denied, 165 A.3d 892 (Pa. 2017); Pa.R.A.P. 1925(c)(3).
3 “We review the legality of a sentence de novo and our scope of review is
plenary.” Butler, supra at 1215 (citation omitted).
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By way of background, the Butler Court considered the constitutionality
of the Sexual Offender Registration and Notification Act’s (“SORNA’s”)4
framework for designating a convicted defendant an SVP. See Butler, supra
at 1213. The Court determined that because the relevant provision employed
a clear and convincing evidence burden of proof rather than a beyond a
reasonable doubt standard, the statutory scheme could not withstand
constitutional scrutiny under applicable precedent. See id. at 1218.
Specifically, it held 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.” Id. It further directed that “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.” Id. “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.” Id.5
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4 42 Pa.C.S. §§ 9799.10-9799.41.
5Statutory sexual assault is classified as a Tier III sexual offense. See 42
Pa.C.S. § 9799.14(d).
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In response, “the Pennsylvania General Assembly passed Acts 10 and
29 of 2018.” Commonwealth v. Wood, 2019 WL 1595871, at *8 (Pa. Super.
filed Apr. 15, 2019) (en banc). The express purpose of these legislative
enactments was, inter alia, to remedy the constitutional defects of SORNA by
addressing Butler. See 42 Pa.C.S. § 9799.11(b)(4); 42 Pa.C.S. §
9799.51(b)(4). However, this legislation did not alter the clear and convincing
evidence burden of proof used by trial courts to determine SVP status. See
42 Pa.C.S. § 9799.24(e)(3). Because the Butler Court held that this standard
is unconstitutional, we are bound by its decision. See Commonwealth v.
Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (“This Court is bound by existing
precedent under the doctrine of stare decisis and continues to follow
controlling precedent as long as the decision has not been overturned by our
Supreme Court.”) (citation omitted). Accordingly, we vacate Weiand’s SVP
status and, in accord with Butler, remand this case to the trial court for the
sole purpose of issuing appropriate notice to him of his registration obligation.6
SVP designation vacated. Judgment of sentence affirmed in all other
respects. Case remanded with instructions. Jurisdiction relinquished.
Judge Dubow joins the memorandum.
Judge Shogan concurs in the result.
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6 We note that the Pennsylvania Supreme Court in Commonwealth v.
Lacombe, 35 MAP 2018 (Pa. 2018) recently granted review in its original
jurisdiction to determine the issue of whether Acts 10 and 29 are
constitutional.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2019
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