Commonwealth v. Butler

173 A.3d 1212

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph Dean BUTLER, Appellant

No. 1225 WDA 2016

Superior Court of Pennsylvania.

Submitted August 15, 2017

Filed October 31, 2017

Reargument Denied January 3, 2018

Joseph L. Smith, Public Defender, Butler, for appellant.

Terri M. Schultz, Assistant District Attorney, Butler, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

OPINION BY OLSON, J.:

Appellant, Joseph Dean Butler, appeals from the judgment of sentence entered on August 4, 2016, as made final by the denial of his post-sentence motion on August 10, 2016. In this case, we are constrained by our Supreme Court's recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), to hold that 42 Pa.C.S.A. § 9799.24(e)(3), a portion of the Sexual Offender Registration and Notification Act's ("SORNA's") framework for designating a convicted defendant a Sexually Violent Predator ("SVP"), violates the federal and state constitutions. As such, we are compelled to reverse the trial court's July 25, 2016 order finding that Appellant is an SVP and we remand for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant's registration requirements.

The factual background and procedural history of this case are as follows. Between October 2013 and June 2014, Appellant, then 21 years old, had sexual intercourse with a 15–year–old female approximately 50 times. On September 23, 2014, the Commonwealth charged Appellant via criminal information with statutory sexual assault,¹ manufacturing child pornography,² criminal use of a communication facility,³ and corruption of minors.⁴ On July 27, 2016, Appellant pled guilty to statutory sexual assault and corruption of minors. Pursuant to SORNA, the trial court ordered the Sexual Offender Assessment Board ("SOAB") to evaluate whether Appellant met the criteria for designation as an SVP and deferred sentencing until that evaluation was completed.⁵

On July 25, 2016, after receiving evidence from both the Commonwealth and Appellant, the trial court entered an order finding that the Commonwealth proved by clear and convincing evidence that Appellant was an SVP and designated him as such. On August 4, 2016, the trial court sentenced Appellant to an aggregate term of 12 to 30 months' imprisonment followed by 90 months' probation. As the trial court designated Appellant an SVP, it issued notice pursuant to section 9799.23 of SORNA that he is required to register with the Pennsylvania State Police for life. See 42 Pa.C.S.A § 9799.15(a)(6).⁶ Thereafter, Appellant filed a post-sentence motion which the trial court denied on August 10, 2016. This timely appeal followed.⁷

Appellant presents two issues for our review:

1. Whether the Commonwealth presented sufficient evidence to prove [by] clear and convincing evidence ... that [A]ppellant is [an SVP?]

2. Whether the [SVP] designation as provided under [SORNA] is unconstitutional and violates Appellant's fundamental right to protect his reputation as secured by Pennsylvania Constitution Article I[,] Section 1?

Appellant's Brief at 1 (complete capitalization and quotation marks omitted).

Prior to addressing the issues presented by Appellant, we sua sponte address the impact of our Supreme Court's decision in Muniz on the legality of Appellant's judgment of sentence with particular focus on the process by which Appellant was designated an SVP. Generally, issues not raised before the trial court are waived for appellate purposes. Pa.R.A.P. 302(a). Similarly, this Court generally may not reverse, modify, or vacate an order or judgment of sentence for a reason not raised by the parties. See Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016) (citations omitted). Notwithstanding these general rules, "[a] challenge to the legality of a particular sentence may be reviewed by any court on direct appeal; it need not be preserved in the lower courts to be reviewable and may even be raised by an appellate court sua sponte." Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (citation omitted). Therefore, if Muniz rendered Appellant's judgment of sentence illegal, we may raise that issue sua sponte.

We are unaware of any Pennsylvania case law directly addressing whether the framework for designating a convicted defendant an SVP, which in this case increased Appellant's minimum registration requirement, implicates the legality of his or her sentence. Therefore, we proceed with an analysis under general principles regarding the legality of sentences.

Our Supreme Court defined what constitutes an illegal sentencing claim in Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016). In that case, a majority of our Supreme Court adopted the definition proposed by the opinion announcing the judgment of the court in Commonwealth v. Foster, 609 Pa. 502, 17 A.3d 332 (2011). See Barnes, 151 A.3d at 127. Specifically, our Supreme Court held that "legality of sentence issues occur generally either: (1) when a trial court's traditional authority to use discretion in the act of sentencing is somehow affected and/or (2) when the sentence imposed is patently inconsistent with the sentencing parameters set forth by the General Assembly." Foster, 17 A.3d at 342 (Baer, J., opinion announcing the judgment of the court). Applying that definition in Barnes, our Supreme Court held that "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." Barnes, 151 A.3d at 127.

As we detail below, Appellant's designation as an SVP exposed him to an increased minimum registration requirement. Until Muniz, registration requirements were deemed to be civil in nature and not punitive. Muniz, 164 A.3d at 1203⁸ ("the [ Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003) ] Court established the registration, notification, and counseling requirements imposed under Megan's Law II [, a predecessor to SORNA,] were not punitive"). Muniz was a sea change in the longstanding law of this Commonwealth as it determined that the registration requirements under SORNA are not civil in nature but a criminal punishment. Id. at 1218 (Dougherty, J., OAJC) ("SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose"). Hence, SORNA registration requirements are now deemed to be punitive and part of the criminal punishment imposed upon a convicted defendant. Accordingly, the general principles regarding illegal sentences are applicable to the case before us, and when applied, we find that the inquiry above implicates the legality of Appellant's sentence and we may raise it sua sponte.

We review the legality of a sentence de novo and our scope of review is plenary. Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super. 2017) (citation omitted). Moreover, "[o]ur Supreme Court has instructed that we must presume that statutes are constitutional and [in order to declare a statute unconstitutional] it [must] clearly, plainly, and palpably violate [ ] the constitution." Commonwealth v. Felder, 75 A.3d 513, 516 (Pa. Super. 2013), appeal denied, 624 Pa. 671, 85 A.3d 482 (2014) (citation omitted).

To understand the issue presented in this case, it is necessary to review the relevant portions of SORNA that address SVPs. Under SORNA, an individual convicted of a sexually violent offense, such as sexually corrupting minors in this case, must be evaluated by the SOAB. 42 Pa.C.S.A. § 9799.24(a). The SOAB conducts a 15–factor analysis to determine if the individual should be designated an SVP. 42 Pa.C.S.A. § 9799.24(b). The SOAB then submits a report to the prosecuting authority. 42 Pa.C.S.A. § 9799.24(d). Upon praecipe by the prosecuting authority, the trial court schedules an SVP hearing. 42 Pa.C.S.A. § 9799.24(e)(1). At the conclusion of that hearing, "the court [determines] whether the Commonwealth has proved by clear and convincing evidence that the individual is a[n SVP]." 42 Pa.C.S.A. § 9799.24(e)(3). It is this last step in the process, section 9799.24(e)(3), that is at issue in this case.

As relevant to the issue presented in this case, an SVP faces mandatory lifetime registration under SORNA. 42 Pa.C.S.A § 9799.15(a)(6). In this case, if Appellant were not designated an SVP, he would be required to register for only 15 years. See 42 Pa.C.S.A §§ 9799.14(b)(8), 9799.15(a)(1) (individuals convicted of sexually corrupting minors, a Tier I sexual offense under SORNA, must register for 15 years).^{9 ,10} In other words, the SVP designation increased Appellant's registration exposure from 15 years to life.

Having set forth the SVP statutory framework included as part of SORNA, we turn to our Supreme Court's recent decision in Muniz. In Muniz, our Supreme Court considered whether applying SORNA's registration requirements to an individual "convicted of sex offenses prior to SORNA's effective date but sentenced afterwards" violates the federal and/or state ex post facto clauses. Muniz, 164 A.3d at 1193. Our Supreme Court's resolution of this issue "depend[ed] on a determination of whether SORNA's retroactive application [ ] constitutes punishment." Muniz, 164 A.3d at 1208 (Dougherty, J., OAJC) (citations omitted). If SORNA's increased registration requirements constitute punishment under the federal and/or state constitution, then retroactive application of SORNA's registration requirements violates the federal and/or state constitution. See id. On the other hand, if, as federal courts have held, id. at 1219 (citations omitted), SORNA's registration requirements do not constitute punishment, then retroactive application of...