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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SCOTT ARTHUR BROZIK :
:
Appellant : No. 318 WDA 2019
Appeal from the PCRA Order Entered February 13, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001106-2016
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 4, 2019
Scott Arthur Brozik (Appellant) appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court summarized the pertinent facts and procedural history:
[Appellant] admitted that on September 3, 2015, he invited the
victim, who was a runaway, into his residence, removed her
clothing and then performed oral sex on her. On that date,
[Appellant] was [49] years of age and the victim was [15] years
of age. A DNA sample was taken from the victim and was
determined to match the DNA of Appellant.
On September 12, 2017, at the time of his plea, Appellant
executed a written colloquy [that] informed him that his plea to
Statutory Sexual Assault, Indecent Assault, and Corruption of
Minor subjected him to a lifetime registration requirement.
Appellant was sentenced to a term of incarceration of three years
six months to seven years at the felony one charge of Statutory
Sexual Assault[,] which is a Tier III charge under SORNA and
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* Retired Senior Judge assigned to the Superior Court.
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requires lifetime registration. 42 Pa.C.S.[A.] § 9799.15. No direct
appeal was filed in this case.
PCRA Court Opinion, 3/13/19, at 1-2 (unnumbered).
On August 7, 2018, Appellant filed a pro se PCRA petition. On
September 21, 2018, following the appointment of counsel, Appellant filed an
amended PCRA petition in which he challenged his lifetime registration
requirement under the Pennsylvania Sex Offender Registration and
Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41. On February 13,
2019, after a hearing on Appellant’s PCRA petition, the PCRA court denied
relief. This timely appeal followed.1
On appeal, Appellant presents the following issue for review:
WHETHER APPELLANT SHOULD BE SUBJECT TO THE REPORTING
REQUIREMENTS OF SEXUAL OFFENDER REGISTRATION AND
NOTIFICATION ACT (SORNA)?
Appellant’s Brief at 3.
We review the denial of PCRA relief by “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. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.
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1 Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.
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In his sole issue on appeal, Appellant argues that the PCRA court erred
by failing to find that his sentence is illegal. Specifically, Appellant asserts
that his sentence is illegal because the trial court determined that he was a
Tier III sex offender and subject to lifetime registration under SORNA.
Appellant contends that his lifetime registration requirement is illegal under
our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017), and this Court’s decision in Commonwealth v. Butler, 173 A.3d
1212, 1213 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018).
In Muniz, our Supreme Court determined that SORNA’s registration and
reporting provisions are punitive and that retroactive application of SORNA’s
provisions violates the federal and state ex post facto clauses of the United
States and Pennsylvania Constitutions. Id. at 1193. Here, the trial court
correctly determined that because Appellant committed the crime of statutory
indecent assault, 18 Pa.C.S.A. § 3122.1(b), on September 3, 2015, Appellant
was a Tier III sex offender under SORNA, with a lifetime registration
requirement. See 42 Pa.C.S.A. §§ 9799.14(d)(3), 9799.15(a)(3); see also
PCRA Court Opinion, at 1-2 (unnumbered). Because SORNA became effective
on December 20, 2012, well before the date Appellant committed his crimes,
the trial court did not retroactively apply SORNA’s registration and reporting
requirements to Appellant. Thus, Muniz affords Appellant no relief.
Appellant also cites Butler, where we addressed the constitutionality of
Pennsylvania’s procedural mechanism for designating individuals as sexually
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violent predators (SVP). We acknowledged that “[i]n [Apprendi v. New
Jersey, 530 U.S. 466 (2000) ], 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.” Butler, 173
A.3d 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] 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 in Butler held
that Pennsylvania’s statutory procedure for designating individuals as 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
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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.
Id. at 1217-18.
In this case, however, it is undisputed that the trial court did not find
Appellant to be a SVP. Instead, the trial court correctly determined that
Appellant was a Tier III sex offender under SORNA with a lifetime registration
requirement. See 42 Pa.C.S.A. § 9799.14(d)(3), (8); see also PCRA Court
Opinion, at 1-2 (unnumbered). Butler does not apply because it addressed
the constitutionality of the procedures set forth in SORNA for designating
individuals as SVPs. See Butler, 173 A.3d at 1216-18. Butler says nothing
about the existing procedure for designating individuals as Tier III sex
offenders who are subject to lifetime registration. See id. Indeed, Appellant
cites no authority indicating that it is unconstitutional to designate an
individual as a Tier III sex offender with a lifetime registration requirement,
and we discern no basis for disturbing the PCRA court’s denial of Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2019
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