Commonwealth v. Lippincott

208 A.3d 143

COMMONWEALTH of Pennsylvania

v.Jason Allen LIPPINCOTT, Appellant

No. 2057 EDA 2014

Superior Court of Pennsylvania.

Argued October 23, 2018

Filed April 15, 2019

Matthew J. Deschler, Bethlehem, for appellant.

John M. Morganelli, Assistant District Attorney, and Rebecca J. Kulik, Assistant District Attorney, Easton, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

OPINION BY MURRAY, J.:

Jason Allen Lippincott (Appellant) appeals from the order designating him as a sexually violent predator (SVP) pursuant to the Pennsylvania Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10 - 9799.41. After careful consideration, we vacate the order and remand to the trial court for further proceedings consistent with this decision.

On January 24, 2013, at Docket Number CP-48-CR-0003839-2012 (3839-2012), Appellant pled guilty to one count each of aggravated indecent assault and corruption of minors.¹ These charges arose from Appellant's sexual assault of a 14-year-old female in May 2012. The same day, at Docket Number CP-48-CR-0003840-2012 (3840-2012), Appellant pled guilty to one count each of statutory sexual assault, corruption of minors, and indecent assault.² These charges resulted from Appellant's sexual assault of a different 14-year-old female, which occurred on five occasions between October 2011 and April 2012.

On August 21, 2013, the trial court sentenced Appellant at both dockets to an aggregate term of 30 to 60 months of incarceration, followed by 72 months of probation. The same day, the trial court heard testimony from Dr. Veronique Valliere (Dr. Valliere) of the Sexual Offenders Assessment Board. Dr. Valliere opined that Appellant met the definition of an SVP. On November 25, 2013, Appellant filed a motion in which he asked the court to appoint an expert witness to conduct an independent SVP evaluation. On December 27, 2013, the trial court held a hearing on Appellant's motion. At the conclusion of the hearing, the court denied the motion. On June 17, 2014, the trial court entered an order classifying Appellant as an SVP.

On July 10, 2014, Appellant filed a timely notice of appeal. On January 17, 2017, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.³ On February 8, 2017, Appellant filed his Rule 1925(b) statement.

On appeal to this Court, the parties initially filed briefs on the sole issue raised in Appellant's Rule 1925(b) statement, i.e. , whether the trial court erred in denying Appellant's request for a court-appointed expert to conduct an independent SVP evaluation. However, on July 19, 2017, our Supreme Court decided Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017). In Muniz , our Supreme Court held that retroactive application of the registration and reporting requirements of SORNA violated the ex post facto clauses of the United States and Pennsylvania Constitutions. Id. at 1223. Consequently, on September 13, 2017, Appellant filed an application seeking permission to file a supplemental brief with this Court to address Muniz . We granted the application on October 23, 2017.

On April 20, 2018, this Court certified this case for en banc review⁴ and directed the parties to brief the following issues:

(1) In consideration of Appellant's having committed the relevant crimes between October 2011 and May 2012, whether the enactment date or the effective date of the Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. §§ 9799.10 - 9799.41, controls for purposes of offenses committed between the enactment date and the effective date?

(2) Whether there is an ex post facto violation to a defendant who is sentenced under SORNA for criminal acts committed after the enactment date of SORNA (December 20, 2011) but before the effective date of SORNA (December 20, 2012)?

(3) Whether this Court must address if the Act of Feb. 21, 2018, P.L. 27, No. 10 (HB 631 of 2017; "Act 10"), applies in the instant case and all cases governed by SORNA and, if so, whether Act 10 renders the registration provisions of SORNA non-punitive?

(4) If Act 10 applies in the instant matter, whether Act 10's potential effects on Appellant, as a result of the crimes having been committed between October 2011 to May 2012, violate the ex post facto clause of the United States or Pennsylvania Constitutions?

Order Directing En Banc Certification, 4/20/18. In addition to these issues, Appellant also argues that with respect to his SVP evaluation, "[t]he [t]rial [c]ourt erred and abused its discretion by failing to appoint a psychological expert upon Appellant's request where Appellant was indigent and without funds to retain his own expert."⁵ Appellant's Brief at 4.

We begin by addressing the first two issues. Appellant argues that he should not be subject to SORNA's registration and reporting requirements. Appellant asserts that although the General Assembly enacted SORNA on December 20, 2011, prior to the time he committed several of his crimes in April and May 2012, SORNA did not go into effect until December 20, 2012. Therefore, Appellant contends that the application of SORNA to his sentence violates the ex post facto clause of the United States and Pennsylvania Constitutions under Muniz .⁶ Because this issue presents a question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Lee , 594 Pa. 266, 935 A.2d 865, 876 (2007).

"The Pennsylvania General Assembly passed SORNA as Act 111 of 2011, signed December 20, 2011. In so doing, it provided for the expiration of prior registration requirements, commonly referred to as Megan's Law, 42 Pa.C.S.A. §§ 9791 – 9799.9, as of December 20, 2012, and for the effectiveness of SORNA on the same date." In re J.B. , 630 Pa. 408, 107 A.3d 1, 3 (2014).

For purposes of registration, SORNA classifies sex offenders into three tiers:

Those convicted of Tier I offenses are subject to registration for a period of fifteen years and are required to verify their registration information and be photographed, in person at an approved registration site, annually. 42 Pa.C.S.[A.] § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are subject to registration for a period of twenty-five years and are required to verify their registration information and be photographed, in person at an approved registration site, semi-annually. 42 Pa.C.S.[A.] § 9799.15(a)(2), (e)(2).

Those convicted of Tier III offenses are subject to lifetime registration and are required to verify their registration information and be photographed, in person at an approved registration site, quarterly. 42 Pa.C.S.[A.] § 9799.15(a)(3), (e)(3).

Muniz , 164 A.3d at 1206-07 (footnotes omitted).

The offenses that constitute Tier I, II, and III offenses are set forth in 42 Pa.C.S.A. § 9799.14(b) - (d). Here, there is no dispute that Appellant would be a Tier III sex offender under SORNA due to his conviction of statutory sexual assault and aggravated indecent assault. See 42 Pa.C.S.A. § 9799.14(d)(3), (8). As a Tier III offender, Appellant would be subject to lifetime registration and quarterly reporting requirements. See 42 Pa.C.S.A. § 9799.15(a)(3), (e)(3). Because he committed all of his offenses prior to when SORNA became effective, Appellant argues that under Muniz , the application of SORNA to his sentence violates the ex post facto clauses of the United States and Pennsylvania Constitutions.

In Muniz , our Supreme Court in a plurality decision explained that the ex post facto clauses of both the United States and Pennsylvania Constitutions ensure "that individuals are entitled to fair warning about what constitutes criminal conduct, and what the punishments for that conduct entail." Muniz , 164 A.3d at 1195 (citations omitted). "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Id. (quoting Weaver v. Graham , 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ).

Muniz identified the four types of laws that deny the protections that the ex post facto prohibitions seek to afford: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; (2) Every law that aggravates a crime, or makes it greater than it was, when committed; (3) Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed ; and (4) Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Muniz , 164 A.3d at 1195 (citing Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (emphasis added). The Court explained that laws that fall within any of the above four Calder designations and which disadvantage a defendant are ex post facto laws and constitutionally infirm. Id. at 1196.

The Supreme Court in Muniz then addressed the constitutionality of SORNA. The Court concluded that SORNA violated ex post facto prohibitions under both the United States and Pennsylvania Constitutions. Id. at 1223. The Muniz Court reasoned that despite the legislature's designation of SORNA as a civil remedy, it was punitive in nature, and consequently, SORNA, as a criminal penalty, fell within the third Calder category (i.e. , application of the statute would inflict greater punishment than the law in effect at the time the defendant committed his crimes). Id. at 1196, 1218. Accordingly, the Supreme Court vacated the portion of the judgment of sentence that required the appellant to comply with SORNA....