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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ANTHONY PETER OSCHE,
Appellant No. 916 WDA 2018
Appeal from the PCRA Order Entered May 25, 2018
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0002166-2013
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 31, 2019
Appellant, Anthony Peter Osche, appeals from the order denying his
timely petition filed pursuant to the Post Conviction Relief Act, (PCRA).1 After
careful review, we vacate in part, and affirm in part.
The facts underlying Appellant’s convictions are not germane to this
appeal, other than that he
was charged, by information filed on December 31, 2013, with five
counts … of Distribution of Child Pornography, 18 Pa.C.S. §
6312(c)(1); thirty counts … of Possession of Child Pornography,
18 Pa.C.S. § 6312(d)(1); and one count … of Criminal Use of a
Communications Facility, 18 Pa.C.S. § 7512(a). Following a [jury]
trial on February 9-10, 2015, [Appellant] was found guilty of all
counts.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S. §§ 9541-9546.
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Pursuant to 42 Pa.C.S. §9795.4, the [trial c]ourt directed the
Sexual Offender Assessment Board (SOAB) to issue a report on
[Appellant]. At the Sexually Violent Predator [(SVP)] [h]earing
and [s]entencing on October 5, 2015, the Commonwealth and the
defense agreed to stipulate to the assessment provided by the
SOAB. N.T., 10/05/[]15, at … 2-3. Based upon that stipulation,
the [c]ourt determined [Appellant] was a[n SVP] and subject to
lifetime registration under Megan’s Law….
The Commonwealth provided notice to the defense that they were
seeking the mandatory sentence of 25 to 50 years. [Id.] at …
3[]. At [s]entencing, the [c]ourt found that there had been a prior
conviction, and as a result, it was treated as a repeat offense
under 42 Pa.C.S.[ §] 9718.2. [Id.] at … 6[]. In the Sentencing
Order dated October 5, 2015, for Counts 1-35, [Appellant] was
ordered to pay the costs of prosecution and sentenced to undergo
imprisonment for 25–50 years, with sentences for all counts to be
served concurrently. For Count 36, [Appellant] was ordered to
pay the costs of prosecution with no further penalty.
[Appellant] filed an appeal with the Superior Court…. The
[j]udgment of [s]entence … was affirmed … on November 18,
2016, and on that same date[,] [Appellant] filed a request for
reargument of that decision, which was subsequently denied on
January 11, 2017.
On January 10, 2018, [Appellant] filed [the instant PCRA petition].
[Therein, Appellant] requested the [PCRA c]ourt appoint a lawyer
to represent him. The [c]ourt granted the request for counsel and
appointed Michael Jewart, Esquire, to represent [him] in this
matter[,] and also permitted leave for an amended petition. A
[h]earing was held on March 21, 2018, at which [Appellant]
appeared represented by Attorney Jewart. An oral amendment
was made by counsel for [Appellant] to withdraw the allegation of
ineffective assistance of counsel, and replace [it] with an assertion
that the [mandatory minimum] sentence was illegal.
[Appellant] request[ed] to be resentenced without application of
the mandatory minimum sentence and without the SVP
designation. The Commonwealth submit[ted] that [Appellant]’s
[PCRA] petition should be dismissed.
Following oral argument, the [c]ourt directed the parties to file
briefs in support of their arguments. The Commonwealth filed a
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Memorandum of Law on April 10, 2018, and [Appellant] filed a
Brief in Support of [his] PCRA [p]etition on April 24, 2018.
In [its] submission, the Commonwealth raised concerns regarding
the timeliness of the PCRA [p]etition. Following an appeal to [the]
Superior Court[,] the decision was affirmed on November 18,
2016, and on that same date[,] [Appellant] filed a request for
reargument of that decision, which was subsequently denied on
January 11, 2017. [Commonwealth v. Osche, 159 A.3d 593
(Pa. Super. 2016) (memorandum).] [Appellant]’s PCRA [p]etition
was filed on January 10, 2018. Based on this sequence of events,
the [c]ourt f[ound] the PCRA [p]etition was filed in a timely
manner.
PCRA Court Opinion (PCO), 5/25/18, at 1 (footnote omitted).
The PCRA court denied Appellant’s PCRA petition on May 25, 2018.
Appellant filed a timely notice of appeal, and a timely, court-ordered Pa.R.A.P.
1925(b) statement. On August 6, 2018, the PCRA court issued a statement
pursuant to Rule 1925(a) indicating that its opinion dated May 25, 2018,
adequately addressed the issues raised in Appellant’s Rule 1925(b) statement.
See Opinion in Compliance with Rule 1925(a), 8/6/18, at 1.
Appellant now presents the following questions for our review:
1. Did [the] PCRA [c]ourt commit an error of law when it denied
… Appellant’s [PCRA p]etition and found that the sentence
pursuant [to] 42 Pa.C.S.[] § 9718.2 was legal and not in violation
of the Constitution of the Commonwealth of Pennsylvania and the
United States Constitution?
2. Did the PCRA [c]ourt commit an error of law when it denied …
Appellant’s [PCRA p]etition and determined that the classification
of … Appellant as a[n SVP] under the Sexual Offender Registration
and Notification Act [(SORNA)] was proper[,] in contravention of
Commonwealth v. Butler, 173 A.3d 1212 [(Pa. Super. 2017)?]
Appellant’s Brief at 4.
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“Our review of a PCRA court’s decision is limited to examining whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (cleaned up). Both of Appellant’s claims in the
instant matter exclusively concern the PCRA court’s conclusions of law.
In his first issue, Appellant asserts that his mandatory minimum
sentence of 25-50 years’ incarceration was illegal pursuant to Alleyne v.
United States, 570 U.S. 99 (2013). “The Alleyne Court held that any fact
that, by law, increases the penalty for a crime must be treated as an element
of the offense, submitted to a jury rather than a judge, and found beyond a
reasonable doubt.” Commonwealth v. Wolfe, 140 A.3d 651, 653 (Pa.
2016).
The trial court sentenced Appellant pursuant to the following provision
of the Sentencing Code:
Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9799.14
(relating to sexual offenses and tier system) shall, if at the
time of the commission of the current offense the person
had previously been convicted of an offense set forth in
section 9799.14 or an equivalent crime under the laws of
this Commonwealth in effect at the time of the commission
of that offense or an equivalent crime in another jurisdiction,
be sentenced to a minimum sentence of at least 25 years of
total confinement….
42 Pa.C.S. § 9718.2(a)(1).
Appellant does not dispute that he satisfied the criteria for sentencing
pursuant to Section 9718.2(a)(1). Instead, Appellant contends this provision
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was effectively rendered unconstitutional pursuant to Alleyne and its
Pennsylvania progeny, including Wolfe. In Wolfe, our Supreme Court held
that Section 9718(c), the proof-at-sentencing provision of the various
mandatory-minimum sentences set forth in Section 9718(a), was
constitutionally infirm. That provision, inter alia, stated that the “provisions
of this section shall not be an element of the crime” and mandated that
sentencing courts “determine, by a preponderance of the evidence, if this
section is applicable[.]” 42 Pa.C.S. § 9718(c). The Wolfe Court held that
Section 9718(c) clearly violated Alleyne, and was not severable from Section
9718 as a whole.
In the case sub judice, Section 9718.2(a)(1) provides for a mandatory-
minimum sentence based on a defendant’s prior convictions. The statute
contains a provision, Section 9718.2(c), which, like Section 9718(c), dictates
that “provisions of this section shall not be an element of the crime” and that
the sentencing court “shall … determine, by a preponderance of the evidence,
the previous convictions of the offender….” 42 Pa.C.S. § 9718.2(c).
Consequently, Appellant argues that Section 9718.2 is unconstitutional under
the reasoning of Wolfe.
However, the Alleyne decision provided for an exception to the general
rule it prescribed. Prior convictions, by their very nature, already result from
the submission of facts to a factfinder under the beyond-a-reasonable-doubt
standard. As such, mandatory-minimum sentences based on prior convictions
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inherently satisfy the requirements of Alleyne. As this Court noted in
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014):
The Supreme Court’s decision in Almendarez–Torres v. United
States, 523 U.S. 224 … (1998)[,] held that the fact of a prior
conviction does not need to be submitted to the jury and found
beyond a reasonable doubt. Id. at 246…. Alleyne explicitly
noted that Almendarez–Torres remains good law. See
Alleyne, supra at 2160 n.1 (stating, “[i]n Almendarez–Torres,
we recognized a narrow exception … for the fact of a prior
conviction[; however, b]ecause the parties do not contest that
decision’s vitality, we do not revisit it for purposes of our decision
today[ ]”).
Here, the only fact that can trigger the mandatory-minimum sentence
set forth in Section 9718.2(a)(1) is a prior conviction. Accordingly, Section
9718.2(a)(1) can never run afoul of Alleyne. Moreover, although Section
9718.2(c) is similar to Section 9718(c), the proof-at-sentencing provision
deemed unconstitutional in Wolfe, no judicial fact-finding beyond recognizing
the existence of a prior conviction occurs when Section 9718.2 is applied.
Consequently, Appellant’s sentence is not illegal, and he is therefore not
entitled to relief for this claim. Thus, in this respect, we affirm the order
denying PCRA relief.
Next, Appellant asserts that the PCRA court erred when it denied his
claim seeking to vacate his SVP designation as an illegal sentence, as the SVP
assessment statute, 42 Pa.C.S. § 9799.24, was deemed unconstitutional in
Butler. In that case, we synthesized Alleyne with our Supreme Court’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding,
inter alia, that SORNA’s registration provisions are not merely civil sanctions,
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but instead constitute criminal punishment), to hold that, because SVPs are
subjected to registration requirements under SORNA that constitute criminal
punishment pursuant to Muniz, and because a sexual offender may be
designated an SVP by clear and convincing evidence by a judge rather than
by proof beyond a reasonable doubt by a jury, Section 9799.24 is
unconstitutional. Moreover, in Commonwealth v. Rivera-Figueroa, 174
A.3d 674, 678 (Pa. Super. 2017), we held that Muniz-based claims apply
retroactively on collateral review. As the Butler decision is an application of
Muniz, it applies retroactively on collateral review as well.
The Commonwealth does not dispute that Appellant’s SVP designation
was rendered illegal in Butler. Instead, the Commonwealth argues that 1)
our decision in Butler is currently under review in our Supreme Court, see
Commonwealth v. Butler, 190 A.3d 581 (Pa. 2018) (granting the
Commonwealth’s petition for allowance of appeal); and 2) the legislature has,
subsequent to Butler, amended SORNA to ostensibly cure the constitutional
defects identified in Muniz. Indeed, as this Court recently explained:
In response to our Supreme Court’s decision in Muniz and this
Court’s later decision in … Butler …, 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 SORNA’s constitutional defects
by “address[ing] [Muniz and Butler].” See 42 Pa.C.S.[] §
9799.51(b)(1),(4).
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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, 198 A.3d 371, 375–76 (Pa. Super. 2018).
First, regarding our Supreme Court’s decision to accept allowance of
appeal in Butler, we cannot predict that Court’s ultimate ruling. Indeed, the
Court could affirm or reverse Butler, or even change its decision to grant
review. Accordingly, until the Supreme Court acts, Butler remains good law
in this Commonwealth.
Regarding the legislature’s amendments to SORNA, no amendments
were made to Section 9799.24. Moreover, regardless of whether the
legislature adequately cured the defects addressed in Butler, Appellant was
designated an SVP under the prior version of the statute. Moreover, the trial
court notified Appellant of his registration and reporting requirements as an
SVP in 2015 under the prior version of SORNA, not as they exist today. Thus,
the constitutional defects in Appellant’s SVP designation have not been cured
by the amendments.
Therefore, we vacate the order denying PCRA relief in part, and vacate
Appellant’s sentence to the extent that it designates him an SVP under SORNA,
and we remand for the lower court to determine what, if any, registration
requirements apply to Appellant.
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Order vacated in part, affirmed in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2019
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