Opinion
No. 3307 EDA 2017
12-21-2020
COMMONWEALTH of Pennsylvania v. Phil LEONE, Appellant
Matthew James Deschler, Bethlehem, for appellant. John Michael Morganelli, Assistant District Attorney, Easton, for Commonwealth, appellee. Katherine R. Kurnas, Assistant District Attorney, Easton, for Commonwealth, appellee.
Matthew James Deschler, Bethlehem, for appellant.
John Michael Morganelli, Assistant District Attorney, Easton, for Commonwealth, appellee.
Katherine R. Kurnas, Assistant District Attorney, Easton, for Commonwealth, appellee.
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS , P.J.E.
Former Justice specially assigned to the Superior Court.
OPINION BY STEVENS, P.J.E.: This matter is before us on remand from the Pennsylvania Supreme Court for reconsideration of our prior holding vacating that portion of the trial court's June 5, 2017, Order finding Appellant Phil Leone to be a sexually violent predator ("SVP") based on Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) and Commonwealth v. Butler , 173 A.3d 1212 (Pa.Super. 2017) in light of the Supreme Court's holding in Commonwealth v. Butler , ––– Pa. ––––, 226 A.3d 972 (2020).
Appellant previously had filed with this Court an appeal from the judgment of sentence entered in the Court of Common Pleas of Northampton County on June 5, 2017, following his convictions of Involuntary Deviate Sexual Intercourse with a child (IDSI) and related offenses. At that time, Appellant raised nine questions for our consideration.
Appellant was convicted of IDSI, 18 Pa.C.S.A. § 3123(b) ; Aggravated Indecent Assault(Complainant less than 13 years), 18 Pa.C.S.A. § 3125(a)(7) ; Indecent Assault: course of conduct, 18 Pa.C.S.A. § 3126(a)(7) ; Endangering the Welfare of a Child: course of conduct, 18 Pa.C.S.A. § 4304(b) ; Corruption of Minors: sexual nature, 18 Pa.C.S.A. § 6301(a)(1)(ii) ; Sexual Abuse of Children: photographing, videotaping, depicting on computer or filming sexual acts, 18 Pa.C.S.A. § 6312(b)(2) ; and Sexual Abuse of Children: child pornography, 18 Pa.C.S.A. § 6312(d)(1).
After review, we vacated the portion of Appellant's sentence requiring him to comply with SORNA, affirmed in all other respects, and remanded for further proceedings with regard to the SORNA issues to determine what, if any, registration requirements apply to Appellant. See Commonwealth v. Leone , No. 3307 EDA 2017 unpublished memorandum at *1-31, 2018 WL 5813648 (Pa.Super. filed Nov. 6, 2018).
Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L. 140, No. 29 (Act 29) (collectively, SORNA II). See also Act of Dec. 20, 2011, P.L. 446, No. 111, as amended , 42 Pa.C.S.A. §§ 9799.10 to 9799.41 (SORNA I).
Both Appellant and the Commonwealth filed petitions for allowance of appeal with the Pennsylvania Supreme Court. Appellant filed his Petition for Allowance of Appeal with the Supreme Court on December 6, 2018, and the Court denied the same on May 14, 2019. On December 10, 2018, the Commonwealth filed its Cross-Petition for Allowance of Appeal wherein it indicated that although it agreed with this Court's disposition as to seven of the nine claims Appellant raised on appeal, it wished to challenge our decision that Appellant's designation as an SVP under SORNA was illegal under prior caselaw. Consequently, the Commonwealth presented the following question for our Supreme Court's review:
Did the Superior Court err in vacating the order finding Respondent to be a sexually violent predator ("SVP") based on Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017) and Commonwealth v. Butler , 173 A.3d 1212 (Pa.Super. 2017), while disregarding newly enacted legislation that went into
effect during the pendency of this appeal and directly affects Respondent's SVP status?
See Cross-Petition for Allowance of Appeal Petition at 3.
In its Order entered on May 14, 2019, our Supreme Court held the Commonwealth's Cross-Petition for Allowance of Appeal pending its disposition of Butler , supra . On September 1, 2020, the Supreme Court granted the Commonwealth's Cross-Petition for Allowance of Appeal.
In doing so, the Supreme Court vacated that portion of this Court's prior Order which had vacated the trial court's finding Appellant is an SVP who must comply with SORNA's registration requirements and remanded for a determination of what, if any registration requirements applied to him, and remanded the matter to us for reconsideration in light Butler .
Appellant's final two claims raised on direct appeal which are at issue herein pertained to SORNA. First, Appellant asserted his designation as an SVP under SORNA was rendered illegal under the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) and this Court's decision in Commonwealth v. Butler , 173 A.3d 1212, 1215 (Pa.Super. 2017). In addition, Appellant maintained SORNA is applicable only to his conviction for sexual abuse of children, possession of child pornography under 18 Pa.C.S.A. § 6312(d)(1) as that was the sole offense of which he was convicted that occurred after December 20, 2012, the effective date of SORNA. Brief for Appellant at 35. While Appellant conceded "that SORNA's Tier l registration requirement should apply to his conviction for possession of child pornography, thereby requiring a 15-year registration period[,]" he reasoned that he could not have had fair warning of SORNA's penalties at the time he committed the other offenses which occurred between 2005 and 2011. Id . at 35-36.
In Muniz , our Supreme Court held that the registration requirements under SORNA constitute criminal punishment. Id . at 1218. In light of Muniz , this Court later determined: "[U]nder 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) ] a factual finding, such as whether a defendant has a mental abnormality or personality disorder that makes him ... likely to engage in predatory sexually violent offenses, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder." Commonwealth v. Butler , 173 A.3d 1212, 1217 (Pa.Super. 2017) (internal quotations and citations omitted). This Court further held "section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt." Id. at 1218. We therefore concluded that trial courts can no longer designate convicted defendants as SVPs or hold SVP hearings "until our General Assembly enacts a constitutional designation mechanism." Id.
SORNA, at 42 Pa.C.S.A. §§ 9799.10 -9799.41, was enacted on December 20, 2011, and became effective on December 20, 2012. SORNA was recently amended on February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018. In doing so, the Legislature added Section 9799.55 which states:
(b) Lifetime registration.— The following individuals shall be subject to lifetime registration:
* * *
(2) Individuals convicted:
(i)(A) in this Commonwealth of the following offenses, if committed on or after April 22, 1996, but before December 20, 2012:
18 Pa.C.S. § 3121 (relating to rape);
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse);
18 Pa.C.S. § 3124.1 (relating to sexual assault);
18 Pa.C.S. § 3125 (relating to aggravated indecent assault);
or
18 Pa.C.S. § 4302 (relating to incest) when the victim is under 12 years of age; ...
* * *
42 Pa.C.S.A. § 9799.55(b)(2)(i)(A).
The trial court had held a sentencing and an SVP hearing in accordance with Section 9799.24(e) of SORNA on June 5, 2017. At the conclusion of the hearing, the trial court found Appellant to be an SVP, informed him of his registration requirements, and sentenced him to an aggregate term of 337 months to 1,056 months (28-88) years in prison. N.T., 6/5/17, at 42-48. Following the denial of his post-sentence motion, Appellant filed a notice of appeal on October 11, 2017.
At the outset of the hearing, the trial court stated its purpose as "sentencing and for a hearing to determine whether or not [Appellant] [ ], will be designated as a sexually violent predator under Megan's Law." N.T., 6/5/17, at 3.
While Appellant's appeal was pending, this Court decided Butler, supra , on October 31, 2017, which deemed unconstitutional the current mechanism for imposition of SVP status used in the present case. In finding that Appellant was not entitled to the removal of his designation as an SVP or the removal of his registration requirements under SORNA, the trial court stressed that it followed the procedure for declaring an individual to be an SVP set forth in 42 Pa.C.S.A. § 9799.24, the then-current state if the law. Trial Court Order, filed 10/5/17, at 17.
This Court held in Butler that Subsection 9799.24(e)(3) of SORNA, regarding the procedure for determining whether a defendant is a sexually violent predator, violates the federal and state constitutions "because it increases the criminal penalty to which he is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt." Butler , 173 A.3d at 1218.
This statute stated that at a hearing, prior to sentencing, the trial court should determine, based on clear and convincing evidence, whether the defendant was an SVP. See 42 Pa.C.S.A. § 9799.24(e)(3).
However, our Supreme Court recently reversed this Court's Butler decision after conducting a comprehensive review of the constitutionality of Act 29. See Commonwealth v. Butler , ––– Pa. ––––, 226 A.3d 972, 975 (2020). The Pennsylvania Supreme Court concluded, under the two-part analysis applied in Muniz , that the Legislative intent or purpose with regard to an offender determined to be a SVP was not to punish him. Also, applying the factors set forth in Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), the Court further found that the punitive factors did not outweigh the non-punitive ones under SORNA.
Specifically, our Supreme Court held that the registration, notification, and reporting requirements "applicable to SVPs do not constitute criminal punishment," and therefore, the procedural mechanism in Pennsylvania for designating sex offenders as SVPs set forth in 42 Pa.C.S.A. § 9799.24 is constitutional. Butler , supra at 993.
As our Supreme Court has declared Pennsylvania's statutory mechanism for designating sex offenders as SVPs to be constitutional, Appellant's challenges to his SVP designation and registration requirements do not warrant relief. In light of the foregoing, we affirm the trial court's finding that Appellant is an SVP and a lifetime registrant.
Although both this Court's and the Pennsylvania Supreme Court's decisions in Butler considered SORNA I, the relevant language in both SORNA I and II is identical. As was the case with SORNA I, SORNA II directs that after receiving a Sexual Offender Assessment Board (SOAB) report, the trial court schedules an SVP hearing. See 42 Pa.C.S.A. § 9799.58 ; see also 42 Pa.C.S.A. § 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.A. § 9799.58(e)(3) (emphasis added).
As noted above, we previously affirmed Appellant's judgment of sentence in all other respects, and the Pennsylvania Supreme Court has denied Appellant's petition for allowance of appeal as to that decision.
Judgment of sentence affirmed.
P.J.E. Bender joins the Opinion.
Judge Bowes files a Concurring Opinion.
CONCURRING OPINION BY BOWES, J.:
I concur in the learned Majority's overall holding that Appellant's claims regarding his designation as a sexually violent predator ("SVP"), are meritless in light of our Supreme Court's holding in Commonwealth v. Butler , ––– Pa. ––––, 226 A.3d 972 (2020). But I must note my disagreement with respect to a number of matters that I believe the Majority has misconstrued.
This case was remanded to us from the Supreme Court of Pennsylvania, which granted the Commonwealth's cross-petition for allowance of appeal in a per curiam order vacating the entirety of this Court's earlier holding. See Order, 9/1/20, at 1 ("The order of the Superior Court is VACATED , and the matter is REMANDED for reconsideration in light of [ Butler ]." (emphases in original)). The Majority has interpreted this order as vacating only a "portion" of our prior order affirming in part, and vacating in part, Appellant's judgment of sentence. See Majority Opinion at 34–35. I must respectfully disagree.
With respect to the scope and effect of per curiam orders, our Supreme Court has stated that the entry of such an order "reversing the final order of a lower tribunal" signifies the High Court's "disagreement with the lower tribunal's final disposition of the matter on appeal[.]" Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 904 (1996). Accordingly, such order "becomes the law of the case." Id . Furthermore, this holding also provides that per curiam orders must be interpreted with specificity as to the language utilized and the resulting legal effect. See , e.g. , id . ("Unless we indicate that the opinion of the lower tribunal is affirmed per curiam , our order is not to be interpreted as adopting the rationale employed by the lower tribunal in reaching its final disposition." (emphasis in original)). Recent precedent from our Supreme Court has also explicitly disapproved of reading "limiting language" into the text of clearly drafted per curiam orders. See , e.g. , Commonwealth v. Johnson , ––– Pa. ––––, 231 A.3d 807, 816-17 (2020).
The above-quoted discussion in Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 904 (1996), concerned the precedential value of cases affirmed in per curiam orders and is not in perfect procedural parity with the circumstances of this case. Nonetheless, the necessity of strictly and precisely effectuating the commands of the Supreme Court is evident from the holding.
Instantly, the language of the September 1, 2020 per curiam order betrays no equivocation in vacating the entirety of our prior holding. Moreover, the order does not affirm any aspect of our first disposition of this case. Where a per curiam order is phrased in this fashion, without language limiting its effect or explicitly affirming any aspect of this Court's prior treatment of the case, our Supreme Court's discussion of fairly analogous issues strongly suggests that we should strictly interpret it as such. Accord Johnson , supra at 816-17 ; Tilghman , supra at 904. Here, the plain language of the September 1, 2020 per curiam order directs that our prior holding be vacated, without reservation, and directs us to generally re-evaluate the appeal in the light of Butler . As such, I believe that no aspect of our prior holding has survived the natural consequences of such an unambiguous order.
This distinction is not a mere procedural formality. In total, Appellant has raised nine appellate issues for our review. See Appellant's brief at 11-12. However, the Majority's opinion only addresses two of these arguments. See Majority Opinion at 34–35. As our prior writing has been vacated, the ultimate effect of the Majority's holding is to deny, sub silentio , the lion's share of Appellant's claims for relief. Accordingly, I respectfully note my disagreement as to the Majority's decision to bypass the nine appellate issues originally raised and discussed by Appellant. I would substantively address these seven remaining issues along the same decisional lines previously discussed in the Majority's original memorandum and my initial concurrence.
Additionally, I also note that the Majority erroneously suggests that: (1) the Supreme Court's holding in Butler "considered SORNA I;" and (2) the "relevant language" in "SORNA I and II" concerning SVP designations is "identical." Majority Opinion at 36–37 n.8. I disagree as to both points.
As used in the Majority's writing, "SORNA I" refers to the version of the statutory scheme at 42 Pa.C.S. §§ 9799.10 -9799.41, that was in legal force until February 21, 2018. Thereafter, significant amendments to Subchapter H, commonly referred to as Act 10 of 2018, took effect. The General Assembly also passed Act 29 of 2018, which also amended Subchapter H. The Majority collectively refers to these amendments as "SORNA II." In deference to the Supreme Court's designation in Commonwealth v. Butler , ––– Pa. ––––, 226 A.3d 972, 981 n.11 (2020), I refer to this statutory scheme as "Subchapter H."
Contrary to the Majority's writing, our Supreme Court considered only the amended version of Subchapter H in rendering its decision in Butler . See Butler , supra at 981 n.11 (noting that the Supreme Court is evaluating the "Act 29 version" of the SVP provisions of Subchapter H). Moreover, the Supreme Court explicitly noted in Butler that the amended and unamended versions of Subchapter H were not identical in all relevant aspects. Id . ("The only relevant change with regard to SVPs under Subchapter H is the addition of a provision allowing SVPs, and other lifetime registrants, to petition for removal from the registry after 25 years."). This lack of precision creates the potential for future confusion in an already fraught area of Pennsylvania law.
To summarize, I believe that the Majority has failed to give full effect to our Supreme Court's per curiam remand order and misrepresents our Supreme Court's holding in Butler . Nonetheless, I concur in the Majority's analysis of those issues it has addressed.