Com. v. Albright, J.

J-S60033-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES ASHTON ALBRIGHT :
:
Appellant : No. 517 MDA 2019
Appeal from the Judgment of Sentence Entered February 19, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006269-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORADUM BY PELLEGRINI, J.: FILED SEPTEMBER 23, 2020
James Ashton Albright (Albright) appeals from the judgment of sentence
imposed in the Court of Common Pleas of York County (trial court) after a jury
convicted him of one count each of Rape of a Child, 18 Pa.C.S. § 3121(c), and
related offenses.1 Specifically, he challenges the ex post facto application of
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* Retired Senior Judge assigned to the Superior Court.
1The related offenses were: Involuntary Deviate Sexual Intercourse (IDSI)—
Person Less Than 16 Years of Age, 18 Pa.C.S. §§ 3123(a)(7); Unlawful Contact
with a Minor, 18 Pa.C.S. § 6318(a)(1); Sexual Assault, 18 Pa.C.S. § 3124.1;
Statutory Sexual Assault—Person 11 Years or Older, 18 Pa.C.S. § 3122.1(b);
Corruption of Minors, 18 Pa.C.S. § 6301(a)(1)(ii); 3122.1(b), Indecent
Assault—Person Less than 16 Years of Age, 18 Pa.C.S. § 3126(a)(8); IDSI
with a Child, 18 Pa.C.S. § 3123(b); and Aggravated Indecent Assault—
Complainant Less Than 13 Years Old, 18 Pa.C.S. § 3125(a)(7).
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Sexual Offenders Registration and Notification Act (SORNA) II’s2 registration
requirements to him, as well as the constitutionality of his Sexually Violent
Predator (SVP) designation. We affirm.
I.
We take the following factual background and procedural history from
the trial court’s August 30, 2019 opinion and our independent review of the
certified record. On August 27, 2017, the Commonwealth filed the above
charges against Albright for the sexual assault and rape of his stepdaughter
from 2008 through July 2017. The incidents began when the victim was
approximately nine years old and ended when she reached the age of
eighteen.
On November 8, 2018, at the conclusion of Albright’s trial, the jury
convicted him of the charges and the trial court ordered the completion of a
Pre-Sentence Investigation (PSI) and an assessment by the Sexual Offenders
Assessment Board (SOAB). On February 19, 2019, at the sentencing hearing,
Dr. Robert Stein, a licensed psychologist and member of the SOAB, testified
about his assessment of Albright and the resulting report, and its conclusion
that Albright met the criteria to be classified as an SVP. (See Sentencing
Hearing, 2/19/19, at 5-14). After consideration of Dr. Stein’s testimony and
his SOAB report, the trial court found that Albright met the criteria to be
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2 42 Pa.C.S. §§ 9799.10-9799.75.
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classified as an SVP and notified him that he was required to register pursuant
to statute. (See id. at 15, 20-24). The court sentenced the 58-year-old
Albright to an aggregate term of not less than 78 nor more than 156 years’
incarceration. (See Sentence Order, 2/19/19, at 1-2) (Imposing periods of
incarceration and identifying Albright as an SVP). Albright timely appealed.
Both he and the court have complied with Rule 1925. See Pa.R.A.P. 1925.
On appeal, Albright contends that:
 Based on the conduct occurring before December 20, 2012
when SORNA I was effective, he may be required to register as a
sex offender under Subchapter H of Chapter 97 of the Judicial
Code. See 42 Pa.C.S. §§9799.11(c), 9799.14(c)(1.3).
 The sex offender registration scheme of Subchapter I is no
less punitive than the scheme it replaced under SORNA and found
unconstitutional by the Pennsylvania Supreme Court in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
Appellant’s sentence is therefore illegal.
 The trial court erred by finding Appellant to be a[n SVP] as
the statutory scheme under which the SVP designation is rendered
is unconstitutional pursuant to Commonwealth v. Butler, 17[3]
A.3d 1212, 1213 (Pa. Super 2017)[, appeal granted, 190 A.3d 581
(Pa. 2018)]. Act 10/Act 29 did not address the “clear and
convincing” standard by which courts render the SVP
determination under SORNA and found unconstitutional under
Butler, and thus they also remain.3
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3 Lawfully enacted statutes are presumptively constitutional. See
Commonwealth v. Lee, 935 A.2d 865, 876 (Pa. 2007). Constitutional
challenges present pure questions of law, for which our standard of review is
de novo and the scope of review is plenary. See Commonwealth v. Moore,
222 A.3d 16, 18 (Pa. Super. 2019); Commonwealth v. Dixon, 907 A.2d
468, 472 (Pa. 2006).
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To address Albright’s arguments, it is necessary briefly to address the
sex offender registration statutes in Pennsylvania, as well as our Supreme
Court’s decision in Muniz and its recent decision in Commonwealth v.
Lacombe, ____ A.3d ____, 2020 WL 4150283 (Pa. filed July 21, 2020).
II.
A.
SORNA I4 was enacted on December 20, 2011, and became effective on
December 20, 2012, with the goal of strengthening the Commonwealth’s laws
regarding registration of sexual offenders and bringing Pennsylvania into
compliance with the federal Adam Walsh Child Protection and Safety Act of
2006, 42 U.S.C. §§ 16901–16945. Section 9799.11(a)(1), (2) of SORNA I,
42 Pa.C.S. § 9799.11(a)(1), (2) (repealed). It was the fourth enactment by
the General Assembly of the law commonly referred to as Megan’s Law.
Offenders who failed to register, verify their information at the
appropriate time or provide accurate information were subject to prosecution
and incarceration under 18 Pa.C.S. § 4915.1 (failure to comply with
registration requirements). See 42 Pa.C.S. § 9799.21(a) (repealed).
In Muniz, after applying the factors set forth in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 83 S. Ct. 554 (1963), our Supreme Court held that
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4 42 Pa.C.S. §§ 9799.10-9799.42.
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the provisions of SORNA I were punitive and that their retroactive application
violates the ex post facto clause of the Pennsylvania Constitution. See U.S.
Const., Art. 1, § 10; Pa. Const., Art. 1, § 17.5
B.
In response to Muniz, the General Assembly enacted Act 10 of 2018
(SORNA II). It creates a two-track system, one contained at Subchapter H
that relates to offenses committed after December 20, 2012, and Subchapter
I that relates to those who are convicted of an enumerated offense which was
committed between April 22, 1996, and December 20, 2012. Subchapter I
was designed to ensure that those required to register under prior registration
laws will still have to do so.
As to sexually violent predator6 (SVP) designation, SORNA II provides,
as is relevant to this case, that the trial court determines whether the
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5 “A state law violates the ex post facto clause if it was adopted after the
complaining party committed the criminal acts and inflicts a greater
punishment than the law annexed to the crime, when committed.”
Commonwealth v. Wall, 867 A.2d 578, 580 (Pa. Super. 2005) (citation and
internal quotation marks omitted). Hence, only if a statute constitutes
punishment can it violate the ex post facto clause. See Muniz, supra at
1208.
6 “Sexually violent predator” is defined as “a person who has been convicted
of a sexually violent offense and who is determined to be a sexually violent
predator under section 9799.58 (relating to assessments) due to a mental
abnormality or personality disorder that makes the person likely to engage in
predatory sexually violent offenses or who has ever been determined by a
court to have a mental abnormality or personality disorder that makes the
person likely to engage in predatory sexually violent offenses under a former
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Commonwealth has proved by clear and convincing evidence that an individual
convicted of a sexual violent offense is an SVP. See 42 Pa.C.S.
§ 9799.24(e)(3).
C.
On July 21, 2020, while Albright’s appeal was pending in this Court, our
Supreme Court decided Lacombe7 where it addressed whether, despite the
significant differences between Subchapter I and the original SORNA statute,
Subchapter I remains punitive and its retroactive application unconstitutional
under an ex post facto analysis.
Lacombe applied the two-part analysis set forth by Muniz to determine
whether the retroactive application of Subchapter I constitutes criminal
punishment, thus violating the ex post facto clause. The Court first observed
the General Assembly’s clear intent as stated in the statute was that
Subchapter I shall not be construed as punitive. See Lacombe, supra at
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sexual offender registration law of this Commonwealth. The term includes an
individual determined to be a sexually violent predator where the
determination occurred in the United States or one of its territories or
possessions, another state, the District of Columbia, the Commonwealth of
Puerto Rico, a foreign nation or by court martial.” 42 Pa.C.S. § 9799.53.
7 Lacombe involved two defendants, Lacombe and Witmayer. Lacombe was
convicted of several sex crimes in 1997. Witmayer was convicted in 2014 of
sex crimes committed between January 2006 and December 2012. Both men
were subject to the retroactive application of Section I of SORNA II and, after
the defendants filed motions, the trial court found that Subchapter I of SORNA
II was punitive in effect and its application was a violation of the ex post facto
clause. The Commonwealth appealed.
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*12. It then weighed the Mendoza-Martinez factors to determine if
Subchapter I was punitive in effect, concluding that:
Subchapter I effected significant changes from the original version
of SORNA, retroactive application of which we found
unconstitutional in Muniz. To summarize, we find three of the
five factors weigh in favor of finding Subchapter I nonpunitive.
Additionally, we give little weight to the fact Subchapter I
promotes the traditional aims of punishment and give significant
weight to the fact Subchapter I is narrowly tailored to its
nonpunitive purpose of protecting the public. As we have not
found the requisite “clearest proof” Subchapter I is punitive, we
may not “override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty[.]”
Id. at *18 (citations omitted). Hence, Lacombe “[held] Subchapter I does
not constitute criminal punishment, and the ex post facto claims forwarded by
appellees necessarily fail.” Id.
III.
In this appeal, Albright raises two issues premised on an assumption
that SORNA II is punitive in effect. First, he maintains that because
Subchapters H and I of SORNA II remain punitive in effect, the retroactive
application of SORNA II’s registration requirement is an unconstitutional
violation of the ex post facto clause.8 Next, he posits that the mechanism for
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8 “As a general rule, an actual case or controversy must exist at all stages of
the judicial process, or a case will be dismissed as moot.” Commonwealth
v. Mauk, 185 A.3d 406, 410 (Pa. Super. 2018) (citation omitted). The trial
court and the Commonwealth maintain that Albright’s SORNA II issues are
moot. Specifically, they argue that because Albright would be 136 years old
when he reaches his minimum sentence of 78 years, the registration
provisions of the act will never be triggered. (See Trial Court Opinion,
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declaring him an SVP is unconstitutional because it only requires a finding by
clear and convincing evidence. Albright is due no relief.
A.
Albright’s argument as to Subchapter H is moot. He committed the
subject crimes continuously from 2008 through 2017, thus straddling the
effective dates of Subchapters H and I. The jury did not make a specific
finding as to when the offenses occurred. Therefore, Albright is only subject
to the lower registration requirements of Subchapter I and Subchapter H is
irrelevant. See Commonwealth v. Alston, 212 A.3d 526, 529 (Pa. Super.
2019) (“[W]here [a]ppellant’s offenses straddle the operative dates for
Subchapters H and I[,]” he is entitled to the lower punishment found in
Subsection I if there is not a “specific finding by the chosen factfinder of when
the offenses occurred.”).
B.
Turning to Subchapter I, as previously noted, because the recent case
of Lacombe held that Subsection I is not punitive, its retroactive application
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8/30/19, at 11-12; Commonwealth’s Brief, at 15-19). Albright counters that
he currently is subject to the registration requirement and, therefore, his
SORNA II claims are not moot. (See Albright’s Brief, at 17-24).
Pursuant to Section 9799.19(l)(1) of SORNA II, Albright was required to
register immediately upon sentencing. (See Trial Ct. Op., at 12); 42 Pa.C.S.
§ 9799.19(l)(1). Accordingly, because he already is subject to registration,
Albright’s challenge to the registration requirements of SORNA II are not
moot.
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does not violate the ex post facto clause. Because this is dispositive of the
retroactivity issue, we necessarily conclude that Albright’s claim that the
application of Section I to him unconstitutionally violated the ex post facto
clause lacks merit.
C.
Next, we address Albright’s argument that the trial court erred in finding
him to be an SVP. (See Albright’s Brief, at 57-65). Specifically, he maintains
that Butler, supra, concluded that the “clear and convincing” standard under
which courts render the SVP determination is unconstitutional requiring that
his SVP classification must be vacated. (See id.).
In Butler, we considered, in relevant part, that an appellant’s claim that
the SVP designation provided in SORNA I was unconstitutional, thus rendering
his sentence illegal. See Butler, supra at 1214. Dispositive to its analysis
was the Muniz “Court’s holding that registration requirements under SORNA
constitute a form of criminal punishment” and the Court considered the impact
of Muniz on the legality of “the process by which Appellant was designated
an SVP.” Id. at 1214, 1217.
Because we found that Muniz declared that SORNA I’s registration
requirements were punitive, the act’s mechanism by which a court made an
SVP determination by clear and convincing evidence was unconstitutional
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pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.
United States, 570 U.S. 99 (2013).9 See Butler, supra at 1218.
However, on appeal from our decision in Butler, our Supreme Court
reversed, finding that the SVP designation of SORNA I was neither punishment
nor unconstitutional. See Commonwealth v. Butler, 226 A.3d 972 (Pa.
2020) (Butler II). The Butler II Court concluded, under the two-part
analysis applied in Muniz, the Legislative intent or purpose with regard to an
offender determined to be a SVP was not to punish them, and, applying the
Mendoza-Martinez factors, the punitive factors did not outweigh the non-
punitive ones under SORNA. Because our Supreme Court in Butler II held
that the trial court did not err in designating Butler an SVP under SORNA
where an SVP adjudication is not criminal punishment, as well as Lacombe’s
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9 In Apprendi, the United States Supreme Court held: “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.” Apprendi, supra at 489. Further, in Alleyne,
the United States Supreme Court expanded “Apprendi’s basic jury-
determination rule to mandatory minimum sentences.” Alleyne, supra at
2167 (Breyer, J., concurring). Specifically, the Alleyne Court held that where
an “aggravating fact” increases a mandatory minimum sentence, “the fact is
an element of a distinct and aggravated crime. [The fact] must, therefore, be
submitted to the jury and found beyond a reasonable doubt.” Id. at 2162-
63.
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holding that Subsection I’s registration requirements are not punitive but civil
in nature, his designation passes muster under both Apprendi and Alleyne.10
Accordingly, Albright’s claim that the mechanism for determining SVP
status violated his constitutional rights fails. We affirm the judgment of
sentence requiring Albright to comply with the registration requirements of
Subsection I and declaring him an SVP.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/23/2020
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10 Although both Butler I and Butler II considered SORNA I, the relevant
language in both SORNA I and II is identical. Like SORNA I, pursuant to
SORNA II, after receiving an SOAB report, the trial court schedules an SVP
hearing. See 42 Pa.C.S. § 9799.58; see also 42 Pa.C.S. § 9799.24(e)(1).
“At the hearing prior to sentencing, the court shall determine whether the
Commonwealth has proved by clear and convincing evidence that the
individual is a sexually violent predator.” 42 Pa.C.S. § 9799.58(e)(3)
(emphasis added); 42 Pa.C.S. § 9799.24(e)(3) (emphasis added).
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