Com. v. Fleming, R.

J-S36032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT STEPHEN FLEMING :
:
Appellant : No. 1404 EDA 2017
Appeal from the Judgment of Sentence November 23, 2015
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003920-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
JUDGMENT ORDER BY DUBOW, J.: FILED DECEMBER 18, 2020
Appellant Robert Stephen Fleming appealed his Judgment of Sentence
imposed after a jury convicted him of committing repeated sexual assaults of
his minor daughter. This Court affirmed his Judgment of Sentence but vacated
Appellant’s Sexually Violent Predator (“SVP”) designation pursuant to
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I).
See Commonwealth v. Fleming, No. 1404 EDA 2017 (Pa. Super. filed Oct.
10, 2018 (vacating and remanding for notification of registration
requirements). The Commonwealth filed a Petition for Allowance of Appeal
with the Pennsylvania Supreme Court, which that Court granted. The Supreme
Court summarily vacated our Order and remanded the case to this Court for
reconsideration in light of Commonwealth v. Butler, 226 A.3d 972 (Pa.
J-S36032-18
2020) (Butler II). Our reconsideration is now the sole issue now before this
panel.1, 2
Relevant Background
Relevant to our review, we note the following background. The same
day that the sentencing court imposed an aggregate term of 37 to 86 years’
incarceration, it adjudicated Appellant a sexually violent predator (“SVP”) and
informed Appellant of his lifetime registration requirement under the Sex
Offender Registration and Notification Act (“SORNA”) at 42 Pa.C.S.A. §§
9799.10-9799.41, as both a Tier III offender and a SVP. On appeal, this Court
affirmed Appellant’s Judgment of Sentence in all respects, but sua sponte
vacated Appellant’s SVP status pursuant to Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017), and Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017) (Butler I), allowance of appeal granted, __ A.3d __ (Pa. 2018).
We then remanded the case to the trial court for the sole purpose of issuing
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1 Because the Pennsylvania Supreme Court did not vacate our affirmance of
Appellant’s Judgment of Sentence and remanded solely to reconsider our
previous sua sponte vacatur of Appellant’s SVP status, our disposition of the
issues raised in Appellant’s Brief addressed in Commonwealth v. Fleming,
No. 1404 EDA 2017 (Pa. Super. filed Oct. 10, 2018), remains the same.
2 On December 11, 2020, Appellant filed a “Motion for Discharge” challenging
the trial court’s subject matter jurisdiction. He argues that the legislature
improperly enacted and wrongly published the statutes under which the
Commonwealth charged him, and his convictions are, thus, void ab initio.
Motion for Discharge, at 6-13, 27-29, 34-35, 39-41. Based on our review of
relevant authority, we conclude the trial court properly exercised subject
matter jurisdiction and Appellant’s contentions are meritless. We, thus, deny
Appellant’s Motion for Discharge with prejudice.
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appropriate notice of Appellant’s registration obligation under 42 Pa.C.S.A. §
9799.23. The Commonwealth filed a Petition for Allowance of Appeal with the
Pennsylvania Supreme Court.
During the pendency of the allocatur petition, the Pennsylvania Supreme
Court reversed Butler I. See Commonwealth v. Butler, 226 A.3d 972 (Pa.
2020) (Butler II). The Supreme Court then granted allowance of appeal in
the instant case, summarily vacated our prior Order directing remand to the
trial court, and remanded to this Court for reconsideration in light of Butler
II.
Butler I and II
This Court based its previous sua sponte remand on Butler I. In Butler
I, this Court concluded that, in light of Muniz, “Section 9799.24(e)(3) of
SORNA [regarding SVP designation] violates the federal and state
constitutions because it increases the criminal penalty to which a defendant is
exposed without the chosen factfinder making the necessary factual findings
beyond a reasonable doubt.” Butler I, 173 A.3d at 1218.3 However, on March
26, 2020, our Supreme Court reversed this Court’s decision in Butler I. See
Butler II, 226 A.3d 972, 976 (Pa. 2020).
In Butler II, the Pennsylvania Supreme Court concluded that the SVP
designation—as well as the registration, notification, and counseling
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3 The Muniz Court relied on Apprendi and Alleyne, infra.
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requirements specific to SVPs—“do not constitute criminal punishment and
therefore the procedure for designating individuals as SVPs under Section
9799.24(e)(3) is not subject to the requirements of Apprendi[4] and
Alleyne[5] and remains constitutionally permissible.” Id. In other words,
pursuant to Butler II, SVP designation is not a criminal punishment and, as
such, passes muster under both Apprendi and Alleyne.
Thus, pursuant to Butler II, we cannot conclude that Appellant’s SVP
designation under SORNA is unconstitutional. Accordingly, Appellant’s
sentence is legal. We, thus, affirm Appellant’s Judgment of Sentence.
Motion for Discharge denied with prejudice. Judgment of Sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/20
____________________________________________
4 Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any facts,
other than the fact of a prior conviction, that subject a defendant to any
additional penalty beyond a statutory maximum must be submitted to a jury
and be found proved beyond a reasonable doubt).
5 Alleyne v. United States, 570 U.S. 99 (2013) (holding that any fact other
than a prior conviction that triggers a mandatory minimum sentence must be
found by a jury beyond a reasonable doubt).
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