Com. v. Groner, T.

J-S18035-20

2020 PA Super 124

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TYLER A. GRONER :

:

Appellant : No. 942 MDA 2019

Appeal from the Order Entered January 3, 2019

In the Court of Common Pleas of Luzerne County Criminal Division at

No(s): CP-40-CR-0000015-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TYLER GRONER :

:

Appellant : No. 943 MDA 2019

Appeal from the Order Entered January 3, 2019

In the Court of Common Pleas of Luzerne County Criminal Division at

No(s): CP-40-CR-0000968-2017

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: MAY 27, 2020

Appellant, Tyler Groner, appeals from the order designating him a

sexually violent predator (“SVP”) under the Pennsylvania Sexual Offender

Registration and Notification Act (“SORNA II”), 42 Pa.C.S.A. §§ 9799.10 et

seq. For the reasons that follow, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S18035-20

On March 19, 2018, Appellant pled guilty on two separate dockets in

which he was charged with committing various first-degree felony sexual

assault crimes against a minor in 2010 and 2012, respectively. On June 5,

2018, the court sentenced him to 60 to 120 months’ incarceration on the first

docket, and 17 to 34 years’ incarceration on the second docket, with the

sentences to run concurrently to one another. On January 3, 2019, the court,

informed by the Sexual Offender Assessment Board’s evaluation, conducted

an SVP hearing. At the hearing’s conclusion, the court found Appellant to be

an SVP and entered an order containing the determination.

Appellant filed two separate direct appeals, each listing one docket

number, and this Court entered an order consolidating the two appeals under

the above caption. Herein, he raises the following issue for our consideration:

[Does] SORNA II contravene[] the 5th, 6th, and 14th Amendments

of the United States Constitution and Pennsylvania Constitution as

a criminal punishment, without appropriate due process requiring

that each fact necessary to support the imposition of designation

of the Appellant as a sexually violent predator be submitted to a

fact-finder or jury and proven beyond a reasonable doubt under

Commonwealth v. Butler, 173 A.3d 1212, 1213 (Pa.Super.

2017), Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Alleyne v. United States, 570 U.S. 99 (2013)?

Appellant’s brief, at 2.

Initially, we acknowledge that a challenge to the SORNA registration

requirements presents a legality of sentence issue. Commonwealth v.

Greco, 203 A.3d 1120, 1123 (Pa.Super. 2019). “Issues relating to the legality

of a sentence are questions of law.... Our standard of review over such

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questions is de novo and our scope of review is plenary.” Commonwealth v.

Barnes, 167 A.3d 110, 116 (Pa.Super. 2017) (en banc ) (citation omitted).

Appellant challenges the constitutionality of the SORNA II SVP

assessment scheme because it provides for increased registration,

notification, and counseling (“RNC”) requirements for a defendant deemed an

SVP by clear and convincing evidence. To support his claim, Appellant relies

on our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017 (holding RNC requirements of SORNA are punitive in effect,

such that retroactive application violated ex post facto prohibitions under both

the United States and Pennsylvania Constitutions)1, and this Court’s

subsequent decision in Butler (holding because SORNA RNC requirements are

punitive, any factual finding leading to SVP designation and corresponding

increased RNC requirements must be found beyond a reasonable doubt by a

fact-finder).

Appellant asserts that because SORNA II’s procedures for SVP

designation are identical to those in SORNA,2 the current procedure

predicating SVP fact-finding on a clear and convincing evidence standard is

likewise unconstitutional under Muniz and Butler.

____________________________________________

1 While Muniz is not a majority decision, the concurring opinion joins the

Supreme Court's lead opinion to the extent it concludes that SORNA is punitive

and that it was unconstitutional as applied to the appellant, in violation of both

state and federal ex post facto prohibitions.

2 A review of 42 Pa.C.S.A. § 9799.24. Assessments, under SORNA, and its

counterpart at 42 Pa.C.S.A. § 9799.58. Assessments, under SORNA II,

reveals the two sections to be identical in all pertinent parts.

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J-S18035-20

On March 26, 2020, however, the Pennsylvania Supreme Court reversed

this Court’s Butler decision. In Commonwealth v. Butler, 25 WAP 2018, -

-- A.3d ---- (Pa. Mar. 26, 2020) (Butler II), our Supreme Court held that the

RNC requirements “applicable to SVPs do not constitute criminal punishment,”

such that SORNA’s procedures for designating sex offenders as SVPs set forth

in Section 9799.24 do not violate “the principles set forth in Apprendi or

Alleyne[.]” Id. at 30-31 (citing Commonwealth v. Lee, 935 A.2d 865, 880

(Pa. 2007) (Apprendi claims cannot succeed where sanctions do not

constitute punishment)). Our Supreme Court explained:

Although we recognize the RNC requirements impose affirmative

disabilities or restraints upon SVPs, and those requirements have

been historically regarded as punishment, our conclusions in this

regard are not dispositive on the larger question of whether the

statutory requirements constitute criminal punishment. This is

especially so where the government in this case is concerned with

protecting the public, through counseling and public notification

rather than deterrent threats, not from those who have been

convicted of certain enumerated crimes, but instead from those

who have been found to be dangerously mentally ill. Under the

circumstances, and also because we do not find the RNC

requirements to be excessive in light of the heightened public

safety concerns attendant to SVPs, we conclude the RNC

requirements do not constitute criminal punishment.

Id. at 30 (citation omitted).

In light of our Supreme Court’s decision in Butler II, we conclude

SORNA II’s RNC requirements for SVPs—essentially unchanged from those in

SORNA—are likewise non-punitive, such that its procedural framework for

designating SVPs by clear and convincing evidence does not run afoul of

Apprendi or Alleyne. Accordingly, Appellant’s challenge is without merit.

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J-S18035-20

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/27/2020

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