Commonwealth v. Lippincott

J-E03005-18

2019 PA Super 118

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JASON ALLEN LIPPINCOTT :

:

Appellant : No. 2057 EDA 2014

Appeal from the Order June 17, 2014

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0003839-2012,

CP-48-CR-0003840-2012

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.: FILED APRIL 15, 2019

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

____________________________________________

1 18 Pa.C.S.A. §§ 3125(a)(8), 6301(a)(1)(i).

J-E03005-18

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

____________________________________________

2 18 Pa.C.S.A. §§ 3122.1(b), 6301(a)(1)(i), 3126(a)(1).

-2-

J-E03005-18

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, 164 A.3d 1189 (Pa. 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

____________________________________________

3 We recognize the substantial gap between Appellant’s notice of appeal and

the trial court’s Rule 1925 order. Based on our review of the record, it appears

the delay is the result of the trial court’s improper consideration of numerous

premature petitions Appellant filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546, during the pendency of this appeal.

4 This Court also certified Commonwealth v. Wood, 1193 & 1194 MDA

2017, which involves the same issues, for en banc review.

-3-

J-E03005-18

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.

____________________________________________

5 In the order, we also informed Appellant that he may raise any appealable

or preserved issue(s) of his choosing for en banc consideration.

-4-

J-E03005-18

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, 935 A.2d 865, 876 (Pa. 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., 107 A.3d 1, 3 (Pa. 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).

____________________________________________

6 See Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (citation

omitted) (“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.”);

see also Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013)

(quotations and internal citations omitted) (“As long as the reviewing court

has jurisdiction, a challenge to the legality of the sentence is non-waivable

and the court can even raise and address it sua sponte.”).

-5-

J-E03005-18

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

-6-

J-E03005-18

what was prescribed when the crime was consummated.” Id. (quoting

Weaver v. Graham, 450 U.S. 24 (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. 386, 390

(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

-7-

J-E03005-18

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. 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.7

____________________________________________

7 Justice Wecht’s concurrence, joined by Justice Todd, agrees with the lead

opinion that retroactive application of SORNA violates the ex post facto

provision of the Pennsylvania Constitution. However, the concurrence takes

issue with the lead opinion’s position that Pennsylvania’s ex post facto clause

grants greater protection than the federal ex post facto clause. The concurring

opinion asserts instead that “the United States Supreme Court’s interpretation

of the federal ex post facto clause is entirely consistent with our understanding

of Pennsylvania’s clause,” and that the Pennsylvania Supreme Court “has gone

to great lengths to align our own ex post facto jurisprudence with decisions

from the United States Supreme Court.” Muniz, 164 A.3d at 1225, 1228.

The concurrence finds no justification for a departure from federal ex post

facto precedent when interpreting the Pennsylvania ex post facto clause.

Nevertheless, the concurrence concludes that even “applying federal ex post

facto standards . . . SORNA is punitive and cannot be applied retroactively.”

Id. at 1232-33. Thus, the concurrence agrees with the holding of the lead

opinion that SORNA violates federal and state ex post facto prohibitions. See

MacPherson v. Magee Memorial Hosp. for Convalescence, 128 A.3d

1209, 1229 (Pa. Super. 2015), (quoting Commonwealth v. Brown, 23 A.3d

544, 556 (Pa. Super. 2011) (“[i]n cases where a concurring opinion

enumerates the portions of the plurality’s opinion in which the author joins or

[]agrees, those portions of agreement gain precedential value . . . .

[H]owever, [if] the concurrence does not explicitly state its agreement or

disagreement with the plurality, we must look to the substance of the

concurrence to determine the extent to which it provides precedential value

to points of agreement.”).

-8-

J-E03005-18

Like Muniz, this case implicates the ex post facto clauses of the United

States and Pennsylvania Constitutions because application of SORNA’s

registration and reporting requirements would impose greater punishment on

Appellant than the law in effect at the time he committed his crimes. See id.

at 1195-96. Although SORNA increased the registration period for some

crimes, the registration requirement for individuals convicted of aggravated

indecent assault remained lifetime registration. Compare 42 Pa.C.S.A. §

9795.1(b)(2) (expired) with 42 Pa.C.S.A § 9799.14(d). While SORNA did not

enhance the registration period for aggravated indecent assault, it did

augment the registration and reporting requirements for Tier III offenders,

which included the addition of quarterly in-person reporting and the posting

of personal information on the Pennsylvania State Police website. Muniz, 164

A.3d at 1210-11. As our Supreme Court pointed out in Muniz, these

additional registration and reporting requirements constitute a greater

punishment than what Megan’s Law would have imposed, and consequently,

their retroactive application violates the ex post facto clauses of the United

States and Pennsylvania Constitutions. Id. at 1193-1196, 1216.

Appellant argues that the application of SORNA to his sentence was

illegal under Muniz. He contends that at the time he committed his offenses

in 2011 and 2012, he would have been subject to then-effective Megan’s Law,

under which lifetime registration and reporting requirements were less

stringent. Appellant asserts that the application of SORNA retroactively

-9-

J-E03005-18

inflicted upon him a punishment greater than what he would have received

under the law in effect at the time he committed the crimes. Further, although

his guilty plea and sentencing occurred after SORNA’s effective date, Appellant

contends that for purposes of an ex post facto analysis, the date upon which

the crime was committed is dispositive, and not the date of his plea,

conviction, or sentencing.

The Commonwealth counters that although SORNA became effective on

December 20, 2012 (after Appellant committed his offenses), SORNA was

enacted one year earlier on December 20, 2011 (before Appellant committed

several of his offenses). Thus, the Commonwealth asserts that Appellant had

sufficient notice of SORNA’s impending registration requirements at the time

he committed his offenses at Docket Number 3839-2012 and at least some of

his offenses at Docket Number 3840-2012, and consequently, there was no

ex post facto violation.

As Appellant argues, this Court has held that the critical inquiry for

determining whether the application of SORNA to a convicted sex offender

violates ex post facto prohibitions is the date of the offense. Commonwealth

v. Horning, 193 A.3d 411, 417 (Pa. Super. 2018). Additionally, the parties

do not dispute that the application of SORNA to a sex offender for offenses

committed prior to SORNA’s enactment constitutes an ex post facto violation

in light of Muniz. Instead, the parties dispute whether it is also an ex post

- 10 -

J-E03005-18

facto violation to apply SORNA to an individual who committed sex offenses

prior to its effective date.

In support of his argument, Appellant relies in part on the United States

Supreme Court’s decision in Weaver v. Graham, 450 U.S. 24 (1981), in

which the Court expounded on ex post facto prohibitions. In that case, the

Supreme Court stated that “[t]he ex post facto prohibition forbids the

Congress and the States to enact any law which imposes a punishment for an

act which was not punishable at the time it was committed; or imposes

additional punishment to that then prescribed.” Id. at 28 (quotations and

citations omitted). With the ex post facto prohibition, “the Framers sought to

assure that legislative Acts give fair warning of their effect and permit

individuals to rely on their meaning until explicitly changed.” Id. at 28-29.

Importantly, “the ex post facto prohibition . . . forbids the imposition of

punishment more severe than the punishment assigned by law when the act

to be punished occurred.” Id. at 30. “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.

Consonant with Weaver, we hold that, for purposes of our ex post facto

analysis, it is SORNA’s effective date, not its enactment date, which triggers

its application. Although the Supreme Court in Weaver at times used the

concepts of “effective date” and “enactment date” interchangeably, a holistic

- 11 -

J-E03005-18

review of the decision reveals that the Court intended for the effective date of

a statute to be the relevant date for ex post facto determinations. See id. at

31 (stating that “[t]he critical question is whether the law changes the legal

consequences of acts completed before its effective date”). The Supreme

Court made clear in Weaver that the Framers designed the ex post facto

clause to preclude legislatures from passing laws that increased the

punishment beyond what was in effect at the time the crime was committed.

See id. To conclude otherwise would render a statute’s effective date

meaningless. As our Supreme Court has explained, “[i]t is presumed that

every word, sentence or provision of a statute is intended for some purpose

and accordingly must be given effect[.]” Commonwealth v. Lobiondo, 462

A.2d 662, 664 (Pa. 1983). We decline to interpret SORNA in a manner that

does not give effect to the statute’s effective date.

Moreover, reliance on the enactment date as the triggering date would

result in disparate treatment for convicted sex offenders. If we relied on the

enactment date as the trigger for application of SORNA, it could potentially

result in different registration and reporting requirements for sex offenders

who committed the exact same crime on the exact same day. If an offender

committed a sex offense in early 2012 and was convicted and sentenced prior

to December 20, 2012, SORNA could not apply because it was not yet

effective. If another offender committed the same crime on the same day,

but was not convicted and sentenced until after December 20, 2012, under

- 12 -

J-E03005-18

the Commonwealth’s position, that offender would be subject to SORNA’s

registration and reporting provisions. This improperly gives effect only to the

dates of conviction and sentencing, when we have explicitly held that the date

of the offense is the relevant inquiry when determining whether an ex post

facto violation has occurred. See Horning, 193 A.3d at 417.

To apply SORNA to offenders whose crimes were committed before its

effective date would increase punishment for sex offenses from the

punishment that existed at the time of the offense. Therefore, we hold that

application of SORNA to sex offenders for offenses committed before its

effective date violates the ex post facto clauses of the United States and

Pennsylvania Constitution.

This conclusion comports with other persuasive authority on the issue.

See U.S. v. Tykarsky, 446 F.3d 458, 480 (3d Cir. 2006) (“if a defendant

completes a crime before an increased penalty takes effect, it would violate

his right not to be subject to ex post facto legislation to impose the increased

penalty upon him”); Coady v. Vaughn, 770 A.2d 287, 289 (Pa. 2001) opinion

after certified question answered, 251 F.3d 480 (3d Cir. 2001) (“A state law

violates the ex post facto clause if it was adopted after the complaining party

committed the criminal acts and inflicts a greater punishment than the law

annexed to the crime, when committed”); Commonwealth v. Quintanilla-

Pineda, 736 MDA 2017 (January 23, 2018) (unpublished memorandum)

(vacating portion of sentence requiring the defendant to comply with SORNA

- 13 -

J-E03005-18

for offenses committed when Megan’s Law III was still applicable, even though

defendant’s guilty plea and sentence occurred after SORNA’s effective date);

1 Pa.C.S.A. § 1701 (Statutory Construction Act) (“except as otherwise

provided in this chapter all statutes enacted finally at any regular session of

the General Assembly not containing a specified effective date shall be

effective on the date specified by that one of the following rules of construction

in effect on the date of final enactment of the statute”) (emphasis added); 1

Pa.C.S.A § 1926 (Statutory Construction Act) (“no statute shall be construed

to be retroactive unless clearly and manifestly so intended by the General

Assembly”); Commonwealth v. Johnson, 553 A.2d 897, 899 (Pa. 1989)

(“The principle embodied in the Statutory Construction Act, that the legislature

must clearly manifest an intent to apply an act retroactively, is also recognized

in case law”); Witmer v. Exxon Corp., 394 A.2d 1276, 1284 (Pa. 1978) aff’d

434 A.2d 1222 (1981) (a court cannot accelerate the date chosen by the

legislature for a statute to become effective).

Instantly, Appellant committed his crimes no later than May 2012. The

General Assembly explicitly stated that SORNA became effective on December

20, 2012. See Commonwealth v. Martinez, 147 A.3d 517, 522 (Pa. 2016)

(reiterating that “SORNA provided for the expiration of Megan’s Law as of

December 20, 2012, and for the effectiveness of SORNA on the same date.”).

Thus, Appellant committed his crimes at least seven months prior to SORNA’s

effective date. Given the foregoing, and in reliance on our Supreme Court’s

- 14 -

J-E03005-18

decision in Muniz, we agree with Appellant that application of SORNA’s

registration and reporting requirements in this case violated ex post facto

prohibitions, as it inflicted a greater punishment upon Appellant than the law

in effect at the time he committed his crimes.

In support of its argument, the Commonwealth relies on

Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016). Kizak was

arrested for DUI on two separate occasions in three months – on September

24, 2014 and on December 10, 2014. Id. at 855. During that period, the

General Assembly amended Section 3806 of the Motor Vehicle Code, “which

addresses the calculation of prior DUI offenses to determine whether a

defendant is a repeat offender for sentencing purposes.” Id. at 858-59. The

amendment to Section 3806 was enacted on October 27, 2014 and took effect

on December 26, 2014.8 Id. at 859. “[U]nder the 2014 amendment, the ten-

year ‘look back’ period for determining prior offenses became the date of

sentencing and was no longer the date that the offense occurred.” Id. “Also,

Section 2 of Act 2014-189 provides that the amendment of [S]ection 3806(b)

shall apply to persons sentenced on or after [December 26, 2014,] the

effective date of this section.” Id. (citation omitted, emphasis in original).

Kizak argued the trial court’s treatment of her December 10, 2014 DUI as a

second DUI offense violated ex post facto prohibitions when the amendment

____________________________________________

8 Section 3806 has since been amended again. See 75 Pa.C.S.A. § 3806

(S.B. 290, 200 Gen. Assemb., Reg. Sess. (Pa. 2016), Act 33 of 2016).

- 15 -

J-E03005-18

of Section 3806 did not become effective until December 26, 2014, which was

after her December 10, 2014 DUI. Id. at 856.

In rejecting Kizak’s ex post facto claim, this Court explained:

The amendment to the law in question was signed by the

Governor of Pennsylvania on October 27, 2014. Over six weeks

later, on December 10, 2014, Appellant committed the instant DUI

offense. The amendment to [S]ection 3806(b) took effect on

December 26, 2014. Furthermore, the legislature specified in the

statute that the amendment of section 3806(b) “shall apply to

persons sentenced on or after [December 26, 2014,] the

effective date of this section.” Act 2014-189 § 2 (emphasis

added).

Appellant was charged with the instant DUI offense on January

23, 2015. On May 20, 2015, Appellant entered her guilty plea.

Thereafter, on July 14, 2015, the trial court, applying the

amendment to section 3806(b), imposed Appellant's judgment of

sentence.

Here, the new law was not applied to events occurring before

its enactment, that being October 27, 2014, because the instant

offense was committed on December 10, 2014. Moreover,

Appellant had fair notice of the change in the statute as her

offense occurred more than six weeks after the amendment to the

statute was signed into law. Accordingly, we are satisfied that

there was no ex post facto violation in the instant matter.

Id. at 860; see also Commonwealth v. McGarry, 172 A.3d 60 (Pa. Super.

2017) (applying the Kizak holding to an identical ex post facto claim involving

the 2014 amendment to Section 3806).

We find Kizak distinguishable. In Kizak, the DUI statute at issue,

Section 3806, expressly stated that it applied to persons sentenced after its

effective date. Kizak, 148 A.3d at 859. This Court therefore elected in

Kizak to honor the expressly stated intent of the General Assembly and apply

- 16 -

J-E03005-18

the statute to sentences imposed after its enactment date, even for DUIs

committed before the effective date. SORNA, however, does not include

language such as that contained in Section 3806 (i.e., that SORNA is to apply

to any sex offender convicted after its effective date, regardless of the date

the offense was committed). Thus, Kizak is not applicable to matters arising

under SORNA. Further, to the extent Kizak would hold that the relevant date

in conducting an ex post facto analysis is always the enactment date of the

statute, as opposed to the effective date, we overrule such a holding.

We acknowledge that in our order directing en banc certification of this

case, we asked the parties to brief whether Act of Feb. 21, 2018, P.L. 27, No.

10 (HB 631 of 2017; Act 10) renders the registration provisions of SORNA

non-punitive, and if so, whether application of Act 10 to Appellant would

violate the ex post facto clauses of the United States and Pennsylvania

Constitutions. However, we decline in this instance to address the

constitutional implications of Act 10.

This Court recently explained:

In response to our Supreme Court’s decision in Muniz and this

Court’s later decision in Commonwealth v. Butler, 173 A.3d

1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 [] (Pa.

July 31, 2018) (holding certain sexually violent predator

provisions of SORNA were constitutionally infirm), the

Pennsylvania General Assembly passed Acts 10 and 29 of 2018.

The express purpose of these legislative enactments was, inter

alia, to “[p]rotect the safety and general welfare of the people of

this Commonwealth by providing for registration, community

notification and access to information regarding sexually violent

predators and offenders who are about to be released from

custody and will live in or near their neighborhood[,]” and to cure

- 17 -

J-E03005-18

SORNA’s constitutional defects by “address[ing] [Muniz and

Butler].” See 42 Pa.C.S.A. § 9799.51(b)(1),(4).

Specifically, our General Assembly modified Subchapter H’s

registration requirements for those offenders convicted of

committing offenses that occurred on or after SORNA’s effective

date of December 20, 2012. The General Assembly also added

Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets

forth the registration requirements that apply to all offenders

convicted of committing offenses on or after Megan’s Law I’s

effective date (April 22, 1996), but prior to SORNA's effective

date.

Commonwealth v. Bricker, --- A.3d ---, 2018 WL 5093265 at *4 (Pa. Super.

2018).

When the trial court sentenced Appellant in August 2013 at Docket

Numbers 3839-2012 and 3840-2012, it did so pursuant to Subchapter H of

SORNA as it existed at that time. Although the General Assembly recently

amended Subchapter H, Appellant has not received a sentence under the

amended provision. Consequently, the question of whether Act 10 and Act 29

are constitutional is not before us. We also recognize that our Supreme Court

recently granted review to determine the issue of whether Acts 10 and 29 are

constitutional. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

Accordingly, we decline to address those issues in this appeal.

Because retroactive application of SORNA’s registration and reporting

requirements to Appellant violated the ex post facto clauses of the United

States and Pennsylvania Constitutions, we conclude that Appellant is not

required to register as a sex offender under SORNA. Accordingly, we remand

- 18 -

J-E03005-18

this matter to the trial court to determine the appropriate registration and

reporting requirements for Appellant.

Finally, we address Appellant’s claim relating to his SVP designation.

Initially, Appellant challenged his SVP designation by asserting that the trial

court erred in declining to appoint an expert to assist him and conduct an

independent SVP evaluation on his behalf. Appellant now also asserts that we

must vacate his SVP designation in light of this Court’s decision in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal

granted, 190 A.3d 581 (Pa. 2018).

This Court in Butler explained:

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

. . . 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).

Butler, 173 A.3d at 1215.

In addressing the constitutionality of Pennsylvania’s procedural

mechanism for SVP designations, we first acknowledged that “[i]n [Apprendi

- 19 -

J-E03005-18

v. New Jersey, 530 U.S. 466 (2013)], the Supreme Court of the United

States held that other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at

1216 (quoting Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super.

2014)). We further recognized that in Alleyne v. United States, 570 U.S.

99 (2013), “the [Supreme Court of the United States] held that any fact that

increases the mandatory minimum sentence for a crime is an element that

must be submitted to the jury and found beyond a reasonable doubt.” Id. at

1217 (quoting Conaway, supra).

Mindful of Apprendi, Alleyne, and Muniz, this Court held that

Pennsylvania’s statutory procedure for designating individuals SVPs was

unconstitutional. Id. at 1217-18. We reasoned:

[O]ur Supreme Court’s holding that registration requirements

under SORNA constitute a form of criminal punishment is

dispositive of the issue presented in this case. In other words,

since 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 section 9799.24(e)(3) is unconstitutional and

- 20 -

J-E03005-18

Appellant’s judgment of sentence, to the extent it required him to

register as an SVP for life, was illegal.

Id. at 1217-18.

Our review of the certified record reveals that the trial court, which did

not have the benefit of our Butler decision, designated Appellant as an SVP

without making the required factual findings beyond a reasonable doubt.

Accordingly, we vacate the trial court’s designation of Appellant as an SVP. In

light of this decision, we do not address Appellant’s initial argument that the

trial court erred in denying his request for the appointment of an expert to

assist him at his SVP hearing.

Order vacated. Case remanded. Jurisdiction relinquished.

President Judge Gantman, President Judge Emeritus Bender and Judges

Bowes, Panella, Lazarus, Ott, and Dubow join the Opinion.

Judge Stabile files a concurring opinion in which President Judge Emeritus

Bender and Judge Bowes join.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/19

- 21 -