from the Judgment of Sentence August 4, 2016 In the Court of
Common Pleas of Butler County Criminal Division at No(s):
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
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.
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,  manufacturing child pornography,
criminal use of a communication facility,  and corruption of
minors. 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
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). Thereafter, Appellant filed a
post-sentence motion which the trial court denied on August
10, 2016. This timely appeal followed.
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).
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.
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.
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, 17
A.3d 332 (Pa. 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.
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
("the [Commonwealth v. Williams, 832 A.2d 962
(Pa. 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
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. ...