Commonwealth v. Butler

226 A.3d 972

COMMONWEALTH of Pennsylvania, Appellant

v.Joseph Dean BUTLER, Appellee

No. 25 WAP 2018

Supreme Court of Pennsylvania.

Argued: October 16, 2019

Decided: March 26, 2020

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to determine whether the procedure used to designate certain individuals convicted of sexual offenses as sexually violent predators (SVPs),¹ codified at 42 Pa.C.S. § 9799.24(e)(3),² is constitutionally permissible in light of our recent decision in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (registration requirements under Pennsylvania's Sex Offender Registration and Notification Act (SORNA) constitute criminal punishment and retroactive application is ex post facto violation). The Superior Court extrapolated from our decision in Muniz to hold the lifetime registration, notification, and counseling requirements (RNC requirements) applicable to SVPs pursuant to 42 Pa.C.S. §§ 9799.15, 9799.16, 9799.26, 9799.27, and 9799.36 are increased criminal punishment such that the procedure for conducting SVP determinations violates the requirements of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).³ For the following reasons, we reverse and hold the RNC requirements 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 and Alleyne and remains constitutionally permissible.

I. Background

On July 27, 2015, appellee Joseph Dean Butler pled guilty to statutory sexual assault and corruption of minors⁴ after engaging in sexual intercourse with a 15-year-old female victim on approximately 50 occasions between October 1, 2013 and June 6, 2014. N.T. 7/27/2015 at 2. Due to his conviction for corruption of minors, SORNA required appellee to undergo an assessment by the Sexual Offender Assessment Board (SOAB) to evaluate whether he should be designated as an SVP and the court deferred sentencing until the assessment was completed. Id. at 12-13. Following the procedures outlined in Section 9799.24(e), the trial court conducted a hearing, found the Commonwealth provided clear and convincing evidence that appellee was an SVP, and ordered appellee be designated as such. N.T. 5/25/16 at 10-11. The court later sentenced appellee to 12 to 30 months' incarceration followed by 90 months' probation. N.T. 8/4/16 at 8-9. The court subsequently denied appellee's post-sentence motions and he appealed to the Superior Court.

In a divided, published opinion, a three-judge panel of the Superior Court considered, sua sponte , whether the procedure for making SVP determinations under Section 9799.24(e)(3) violated Apprendi and Alleyne . Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017).⁵ The panel determined sua sponte review was necessary due to its interpretation of Muniz as indicating appellee's SVP determination exposed him to an increased minimum registration requirement, and thus implicated the legality of his sentence.⁶ Id. at 1214, citing Commonwealth v. Barnes , 637 Pa. 493, 151 A.3d 121, 127 (2016) ("where the mandatory minimum sentencing authority on which the sentencing court relied is rendered [unconstitutional], and no separate mandatory authority supported the sentence, any sentence entered under such purported authority is an illegal sentence for issue preservation purposes on direct appeal"). The panel majority concluded Muniz was dispositive — without conducting any analysis regarding either the differences between the RNC requirements and the requirements at issue in Muniz or the differences between SVPs and other sex offenders. In doing so, the majority stated:

[S]ince our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne , a factual finding, such as whether a defendant has a "mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]" 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder. Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP. Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny. Accordingly, we are constrained to hold that [S]ection 9799.24(e)(3) is unconstitutional and Appellant's judgment of sentence, to the extent it required him to register as an SVP for life, was illegal.

Id. at 1217-18.

The Commonwealth filed a petition for allowance of appeal in this Court and we granted review of the following question: "Whether the Superior Court of Pennsylvania erred in vacating the trial court's [o]rder finding [appellee] to be [an SVP] by extrapolating the decision in [ Muniz ] to declare SVP hearings and designations unconstitutional under [ Section] 9799.24(e)(3) ?" Commonwealth v. Butler , 647 Pa. 526, 190 A.3d 581 (2019) (per curiam ).

Briefly, the parties dispute whether the Muniz Court's holding regarding criminal punishment automatically applies to all individuals falling under the purview of SORNA, including SVPs, or whether a separate analysis of the RNC requirements must be conducted with a specific focus on SVPs. The parties also dispute whether the judicial fact-finding required under Section 9799.24(e)(3) remains constitutionally permissible under Oregon v. Ice , 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009),⁷ even if we find the RNC requirements constitute criminal punishment. As we consider the arguments of the parties in greater detail below, "we recognize there is a general presumption that all lawfully enacted statutes are constitutional. In addition, as this case presents questions of law, our scope of review is plenary and we review the lower courts' legal determinations de novo ." Muniz , 164 A.3d at 1195 (internal citation omitted).

II. Muniz and Commonwealth v. Williams , 574 Pa. 487, 832 A.2d 962 (2003) ( Williams II )

We first summarize the reasoning in Williams II and Muniz as the analyses employed in those cases will frame our discussion of whether the RNC requirements constitute punishment. Since we thoroughly summarized Williams II in Muniz , we reproduce that summation here:

In Williams II , this Court considered whether the [RNC] requirements of Megan's Law II,^[8] applicable to [SVPs], constituted criminal punishment such that their imposition on the defendants violated their rights to due process under the United States and Pennsylvania Constitutions. Williams II , 832 A.2d at 964. This Court analyzed the statute's provisions under the same two-level inquiry used by the U.S. Supreme Court in Smith [v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ]. Id. at 971. As to the first question, whether the General Assembly's intent was to punish, the Williams II Court determined the statute's statement of purpose was clear in that its intent was to identify potential recidivists and avoid recidivism by providing awareness of particular risks to members of the public[,] and providing treatment to offenders. Id. at 971–72. The Court stated the statute's purpose was therefore "not to punish, but to promote public safety through a civil, regulatory scheme." Id. at 972.

The Williams II Court then examined the [ Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)⁹ ] factors to determine whether the sanctions are "so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty." Id. , quoting [ United States v. ] Ward , 448 U.S. [242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) ]. The Court first found the registration requirements of Megan's Law II did not directly impose a deprivation or restraint upon [SVPs] as they "remain free to live where they choose, come and go as they please, and seek whatever employment they may desire." Id. at 973, quotingFemedeer v. Haun , 227 F.3d 1244, 1250 (10th Cir. 2000). Thus, the Court held it could not find the clearest proof the requirements were "so onerous as to constitute an affirmative disability or restraint." Williams [ II ], 832 A.2d at 975. The Court further found it was not clear the notification requirements of Megan's Law II were analogous to public shaming, or other historical forms of punishment, as "the disclosure of factual information concerning the local presence of a potentially harmful individual is aimed, not at stigmatizing that individual, but allowing potentially vulnerable members of the public to avoid being victimized." Id. at 976.

The Court then found applicability of Megan's Law II does not depend only upon a finding of scienter^[10] since some predicate offenses can be committed whether or not the defendant is aware his conduct is criminal, e.g. , the statute applies to the crime of sexual abuse of children, where the defendant may be convicted despite the good faith belief the child was over eighteen years of age. Id. at 977–78. The Williams II Court further found since there was a substantial period of incarceration attached to the predicate offenses of rape and involuntary deviate sexual intercourse, the prospects of registration and notification would have little deterrent effect upon [an SVP]. Id. at 978. The Court also found the measures were not retributive as they do not "require [an SVP to] ‘pay his debt to society,’ through the impositions of fines, restitution, or confinement." Id. , quotingWilliams v. Illinois , 399 U.S. 235, 261, 90 S.Ct. 2018, 26 L.Ed.2d 586 [ ] (1970) (Harlan, J., concurring).

The Williams II Court found the crucial determination of [SVP] status under Megan's Law II was not based upon the particular criminal

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