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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID DONALD SHERRILL SR. :
:
Appellant : No. 2459 EDA 2017
Appeal from the Judgment of Sentence April 17, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0007125-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 28, 2018
Appellant David Donald Sherrill, Sr. purports to appeal from the
judgment of sentence entered following his nolo contendere plea to
involuntary deviate sexual intercourse (IDSI) with a child.1 Appellant asserts
that his sentence is excessive and that the sentencing court failed to consider
his rehabilitative needs. For the reasons that follow, we quash.
The procedural case of this appeal is as follows. Appellant was initially
charged with committing sexual offenses against the victim, J.T., who was
born in October 2002, from the time the victim was ten or eleven years old
until he was thirteen. The victim and his mother reported the abuse to the
police in 2016, when the victim was thirteen years old.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3123(b).
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On April 17, 2017, Appellant pleaded nolo contendere to one count of
IDSI with a child. Appellant expressly waived the right to have sentencing
deferred until the completion of an evaluation by the Sexual Offenders
Assessment Board (SOAB) and a determination of his status as a sexually
violent predator (SVP). The trial court sentenced Appellant to twelve to thirty-
six years’ incarceration immediately after accepting Appellant’s plea.
On April 26, 2017, Appellant filed a motion to modify and for
reconsideration of sentence, asserting that he had additional information to
present to the court and additional witnesses to testify on his behalf. A
hearing on the motion for reconsideration was commenced on June 7, 2017.
The hearing was continued to June 27, 2017, to permit Appellant to present
his witnesses to the trial court. Thereafter, the court denied Appellant’s
motion.
Appellant filed a notice of appeal within thirty days of the order denying
his post-sentence motion. Appellant complied with the trial court’s order to
submit a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and raised a single issue challenging the discretionary aspects of the
trial court’s sentence. The trial court filed an opinion in compliance with
Pa.R.A.P. 1925(a).
Meanwhile, the SOAB completed its evaluation of Appellant and
recommended that Appellant be designated as an SVP. Appellant obtained an
independent expert who opined that Appellant was not an SVP. On October
13, 2017, the trial court conducted an SVP hearing at which the SOAB
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evaluator and Appellant’s expert testified. The trial court deferred its final
determination of Appellant’s SVP status and ordered that briefs be filed.
On November 17, 2017, Appellant filed a brief asserting that the SVP
statute was declared unconstitutional in this Court’s October 31, 2017 decision
in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017).2 The record
contains no further activities, orders, or docket entries indicating that the trial
court decided the issue of Appellant’s SVP status.
On February 21, 2018, significant amendments to SORNA took effect.
See 2018, Feb. 21, P.L. 27, No. 10 (Act 10). The purpose of the amendments
was, in part, to address the concerns raised in Butler. See 42 Pa.C.S. §
9799.11(b)(4).
As noted above the sole issue raised in this matter is a challenge to the
discretionary aspects of the April 17, 2017 sentence of imprisonment.
Appellant’s Brief at 4 (stating the question involved as “[w]hether a sentence
of twelve to thirty-six years[’] incarceration was excessive?”).
As a prefatory matter, we address whether this appeal is properly before
us. See Commonwealth v. Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006)
____________________________________________
2 In Butler, this Court held that the SVP determination under the former
version of the Sexual Offender Registration and Notification Act (SORNA), 42
Pa.C.S. §§ 9799.10-9799.41 (subsequently amended Feb. 21, 2018), violated
Alleyne v. United States, 570 U.S. 99 (2013), by permitting a judge to
determine whether an offender was an SVP by clear and convincing evidence
rather than by proof beyond a reasonable doubt. See Butler, 173 A.3d at
1218. Critical to the analysis in Butler was that the registration requirements
in the former version of SORNA constituted punishment. See id. at 1216
(discussing Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)).
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(questions regarding this Court’s jurisdiction may be raised sua sponte). In
general, appeals are properly taken from final orders. See Pa.R.A.P. 341(b)
(defining a final order, in part, as “any order that . . . disposes of all claims
and of all parties”); Commonwealth v. Scarborough, 64 A.3d 602, 608 (Pa.
2013).
In Commonwealth v. Schrader, 141 A.3d 558 (Pa. Super. 2016), the
defendant waived a presentence SOAB assessment, and the trial court
imposed sentence. Id. at 561. The defendant did not take an appeal from
the imposition of sentence. Id. Approximately three-and-a-half months later,
the court convened an SVP hearing and determined that the defendant was
an SVP. Id. The defendant appealed from the SVP order and challenged both
the sentence and the SVP determination. Id.
The Schrader Court found Appellant’s appeal to be timely. The Court
concluded “where a defendant pleads guilty and waives a pre-sentence SVP
determination, the judgment of sentence is not final until that determination
is rendered.” Id. at 561. In support, the Court emphasized that “the
imposition of SVP status is a component of the judgment of sentence.” Id. at
562 (citation and quotation marks omitted).
Applying Schrader to the present case, we are constrained to quash
this appeal. Although the trial court imposed a sentence of imprisonment on
April 17, 2017, Appellant expressly waived his right to a presentence SOAB
examination and consented to subsequent hearing to determine his SVP
status. The trial court held an SVP hearing on October 13, 2017. However,
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it did not enter an order deciding the SVP issue.3 See Pa.R.A.P. 301(a)(1)
(requiring that an appealable order be entered upon the appropriate docket in
the lower court). With the recent enactment of Act 10, there remains a
possibility that the court could conduct further proceedings on the question of
Appellant’s SVP status. Cf. 42 Pa.C.S. § 9799.24; cf. also 1 Pa.C.S. § 1922(3)
(setting forth the presumption that acts of the General Assembly are
constitutional). Thus, the April 17, 2017 sentencing order is not final, and the
judgment of sentence will not be final until the trial court enters an order
deciding the SVP issue. See Schrader, 141 A.3d at 561.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/18
____________________________________________
3 In response to an informal inquiry by this Court, the trial court indicated that
it cancelled any further hearing on the issue of Appellant’s SVP status. The
court also suggested that it did not find Appellant to be an SVP in light of
Butler. However, the trial court was not able to locate a signed order
memorializing its findings and conclusions.
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