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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
WILLIAM CHANDLER BYERS :
AUGUSTA : No. 749 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence February 28, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000068-2016,
CP-21-CR-0002014-2015, CP-21-CR-0002934-2015
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 27, 2018
William Chandler Byers Augusta (Appellant) appeals from the trial
court’s determination that he is a sexually violent predator (SVP). We vacate
Appellant’s SVP designation under SORNA, but note that he remains subject
to lifetime registration and otherwise affirm his judgment of sentence.
On October 18, 2016, Appellant pled guilty to a multitude of sexual
offenses, including numerous counts of rape of a child, aggravated indecent
assault of a child, sexual abuse of children, and criminal conspiracy. On
February 28, 2017, the trial court sentenced him to an aggregate 45 to 90
years of incarceration, followed by 30 years of probation. The trial court also
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* Retired Senior Judge assigned to the Superior Court.
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ordered that Appellant comply with the requirements of SORNA.1 That same
day, by separate order, the trial court found Appellant to be a sexually violent
predator, stating “upon conclusion of the mandated SVP hearing, review of
both Doctors’ reports, [Appellant] is found to be a sexually violent predator as
defined by statute.” Order, 2/28/17. The trial court, counsel and Appellant
all signed “Acknowledgment of Notification Pursuant to 42 Pa.C.S. § 9799.23”,
which specified that Appellant was classified as an SVP (as opposed to a Tier
I, II, or III Offender).
Appellant filed a post-sentence motion for modification of sentence on
March 9, 2017, which the trial court denied on April 7, 2017. Appellant filed
this appeal on May 5, 2017, and on May 8, 2017, the trial court directed him
to comply with Pa.R.A.P. 1925(b). On May 26, 2017, Appellant’s counsel filed
a statement of intent to file an Anders/McClendon brief.2 The trial court did
not file an opinion. On October 31, 2017, this Court decided Commonwealth
v. Butler, 173 A.3d 1212 (Pa. Super. 2017), in which we held that the portion
of SORNA governing SVP status was unconstitutional. Accordingly, Appellant’s
counsel did not file an Anders/McClendon brief, and as a result, Appellant
presents the following issue:
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1Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), 42
Pa.C.S.A. §§ 9799.10-9799.41.
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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WHETHER THE PORTION OF [APPELLANT’S] SENTENCE DEEMING
HIM A SEXUALLY VIOLENT PREDATOR IS ILLEGAL.
Appellant’s Brief at 2.
Preliminarily, we note that Appellant’s challenge to the legality of his
sentence is non-waiveable. See, e.g., Commonwealth v. Foster, 17 A.3d
332 (Pa. 2011). Moreover, even had Appellant not raised this issue, we may
address it sua sponte. See Commonwealth v. Randal, 837 A.2d 1211 (Pa.
Super. 2003) (en banc).
Appellant accurately states, “the trial court conducted an SVP hearing
and determined the Appellant to be a sexually violent predator using the clear
and convincing evidence standard as prescribed by 42 Pa.C.S.
§9799.24(e)(3).” Appellant’s Brief at 5. He further cites Butler, holding that
42 Pa.C.S.A. § 9799.24(e)(3) was unconstitutional. Id. at 6-7. We
explained:
[O]ur Supreme Court’s holding [in Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017)] 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 [v. New Jersey, 530 U.S. 466 (2000)] and
Alleyne [v. United States, 570 U.S. 99 (2013)], 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
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withstand constitutional scrutiny. Accordingly, we are constrained
to hold that section 9799.24(e)(3) is unconstitutional and
Appellant’s judgment of sentence, to the extent it required him to
register as an SVP for life, was illegal.
As the sole statutory mechanism for SVP designation is
constitutionally flawed, there is no longer a legitimate path
forward for undertaking adjudications pursuant to section
9799.24. As such, trial courts may no longer designate
convicted defendants as SVPs, nor may they hold SVP
hearings, until our General Assembly enacts a
constitutional designation mechanism.
Butler, 173 A.3d at 1217–1218 (emphasis added).
Consistent with the foregoing, we agree with Appellant that his
designation as an SVP under SORNA was illegal.3 We therefore vacate that
portion of Appellant’s sentence. See Commonwealth v. Tighe, 2018 PA
Super 86 (Apr. 12, 2018). However, because Appellant was convicted of rape,
which is a Tier III offense, we note that he is still subject to lifetime
registration. Id., citing 42 Pa.C.S.A. § 9799.14 (classifying rape as a Tier III
offense).
SVP designation vacated. Judgment of sentence otherwise affirmed.
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3 The Commonwealth notes that a petition for allowance of appeal in Butler
is pending at 47 WAL 2018, but concedes that at present, Appellant’s SVP
designation is illegal. Commonwealth Brief at 8 (“If or until Butler is
overturned, [Appellant’s] SVP designation is illegal.”)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/18
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