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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL K. KELLY :
:
Appellant : No. 147 EDA 2019
Appeal from the Judgment of Sentence Entered December 5, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003204-2015
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED MAY 01, 2020
Michael K. Kelly appeals from the judgment of sentence entered on
December 5, 2018, following his guilty plea to 50 counts of sexual abuse of
children (possession of child pornography).1 He claims his classification as a
sexually violent predator (“SVP”) pursuant to Subchapter H of the
Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA
II”)2 is unconstitutional in light of Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017), and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 6312(d).
2 See 42 Pa.C.S.A. §§ 9799.10-9799.41. Subchapter H imposed certain
obligations on offenders who committed offenses on or after December 20,
2012. Kelly committed the offenses on April 13, 2015, when he was found in
possession of the child pornography.
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(“Butler I”). Additionally, he challenges the sufficiency of the SVP finding.
Based on the following, we affirm.
On October 15, 2015, Kelly entered an open guilty plea to possessing
approximately 50 videos or images of children under 13 years of age engaging
in sexual activity. At the June 26, 2018 SVP hearing, Dr. Jennifer Hahn, Ph.D.,
a member of the Pennsylvania Sex Offender Assessment Board (“SOAB”),
testified that Kelly suffered from a pedophilic disorder, which would make him
likely to engage in predatory sexually violent acts.
Subsequently, at sentencing, the trial court designated Kelly an SVP
based on a clear and convincing evidence standard. See N.T., 12/5/2018, at
31. Kelly was notified of his registration requirements as an SVP under
Subchapter H. See id. at 32-33. The trial court then sentenced him to not less
than one, nor more than four years’ incarceration, followed by a term of ten
years’ probation. Kelly did not file post-sentence motions, but did file a timely
notice of appeal.3
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3The trial court imposed Kelly’s judgment of sentence on December 5, 2018.
Therefore, he had until January 4, 2019 to file a timely notice of appeal. Kelly’s
pro se notice of appeal was docketed on January 7, 2019; however, it was
dated January 4, 2019. Accordingly, pursuant to the prisoner mailbox rule it
was timely. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).
Furthermore, we note that Kelly, though represented by counsel, filed his
notice of appeal pro se. “This Court is required to docket a pro se notice of
appeal despite Appellant being represented by counsel.” Commonwealth v.
Williams, 151 A.3d 621, 624 (Pa. Super. 2016). Consequently, we hold that
Kelly’s notice of appeal was timely.
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In his first issue, Kelly argues his designation as an SVP is
unconstitutional following Muniz and Butler I. Kelly asserts the “paucity of
changes found in Act 29 do nothing to make the SVP provisions less punitive.”
Appellant’s Brief, at 14. Consequently, he contends that because the SVP
designation provisions still provide that the trial court determine SVP status
by clear and convincing evidence, his SVP designation is unconstitutional and
must be vacated.
A challenge to the legality of a sentence is a question of law. Therefore,
our standard of review is de novo, and our scope of review is plenary. See
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).
At the time when Kelly filed his brief, the state of case law concerning
SORNA and SVPs was in flux. In Muniz, the Pennsylvania Supreme Court
concluded the registration requirements of SORNA I,4 as applied retroactively,
were punitive pursuant to the seven-factor test set forth by the United States
Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963),
and therefore unconstitutional under the ex post facto clauses of the United
States and Pennsylvania Constitutions. See Muniz, 164 A.3d at 1223.
Subsequently, in Butler I, a panel of this Court, relying upon Muniz,
concluded SORNA I’s statutory mechanism for designating a defendant as an
SVP, as set forth in 42 Pa.C.S. § 9799.24(e)(3), was “constitutionally flawed”
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4 Act of Dec. 20, 2011, P.L. 446, No. 111, as amended, 42 Pa.C.S. §§ 9799.10
to 9799.41 (effective Dec. 20, 2012).
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because it permitted a trial court to make the determination based upon clear
and convincing evidence. Butler I, 173 A.3d at 1218. The Butler I Court
held: “[A] factual finding, such as whether a defendant has a mental
abnormality or personality disorder that makes him … likely to engage in
predatory sexually violent offenses, that increases the length of registration
must be found beyond a reasonable doubt by the chosen fact-finder.” Id.
Accordingly, the Butler I panel held “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.” Id.
Furthermore, the Butler I Court determined lifetime registration, notification,
and counseling requirements (“RNC requirements”) applicable to SVPs,
pursuant to 42 Pa.C.S.A. § 9799.15, 9799.16, 9799.26, 9799.27, and
9799.36, constituted increased criminal punishment that were in violation of
Alleyne/Apprendi.5
In response to Muniz and Butler I, the Pennsylvania General Assembly
and the Governor of Pennsylvania enacted certain legislation to address the
SORNA concerns. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”);6 Act of
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5 Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000).
6 See 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75.
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June 12, 2018, P.L. 1952, No. 29 (“Act 29”).7 Act 10 and Act 29 are collectively
known as “SORNA II.”8
However, Butler I was recently reversed by the Pennsylvania Supreme
Court. See Commonwealth v. Butler, __ A.3d __ [25 WAP 2018] (Pa., filed
March 26, 2020) (“Butler II”).
In reversing, the Butler II Court opined:
SVPs are different from the non-SVP SORNA registrants at issue
in Muniz due to heightened public safety concerns based on the
determination SVPs have “a mental abnormality or personality
disorder that makes the individual likely to engage in predatory
sexually violent offenses.” 42 Pa.C.S. §9799.12. Therefore, a
simple extrapolation from the analysis in Muniz is insufficient to
determine whether the RNC requirements constitute criminal
punishment.
Butler II, __ A.3d __, __ [25 WAP 2018, *30-31] (Pa., filed March 26, 2020).
The Supreme Court conducted an examination of the RNC requirements
as applicable to SVPs using the two-part inquiry employed in both
Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (“Williams II”)9 and
Muniz.10 First, the Butler II Court determined the General Assembly’s
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7 See Commonwealth v. Alston, 212 A.3d 526, 529 (Pa. Super. 2019).
8 See Commonwealth v. Lee Andrew Moore, 222 A.3d 16 (Pa. Super.
2019).
9 In Williams II, the Pennsylvania Supreme Court determined the RNC
requirements of SORNA’s predecessor, Megan’s Law II, were constitutional
and not intended to be criminal punishment in nature.
10 The two-part inquiry is set forth in Muniz, 164 A.3d at 1208.
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intention with respect to Subchapter H was nonpunitive in nature. Butler II,
__ A.3d __, __ [25 WAP 2018, *31-34] (Pa., filed March 26, 2020). Next, the
Court considered the Mendoza-Martinez factors11 and determined the
punitive factors did not outweigh the nonpunitive ones. Id., at *34-44. The
Court held:
Although we recognize the RNC requirements impose affirmative
disabilities or restraints upon SVPs, and those requirements have
been historically regarded as punishment, our conclusions in this
regard are not dispositive on the larger question of whether the
statutory requirements constitute criminal punishment. This is
especially so where the government in this case is concerned with
protecting the public, through counseling and public notification
rather than deterrent threats, not from those who have been
convicted of certain enumerated crimes, but instead from those
who have been found to be dangerously mentally ill. Under the
circumstances, and also because we do not find the RNC
requirements to be excessive in light of the heightened
public safety concerns attendant to SVPs, we conclude the
RNC requirements do not constitute criminal punishment.
Id., at *44 (citation omitted; emphasis added). The Court further determined
“the procedure for designating individuals as SVPs under Section
9799.24(e)(3) is not subject to the requirements for Apprendi and Alleyne
and remains constitutionally permissible.” Id., at *2.
Turning the present matter, in light of the Supreme Court’s decision in
Butler II, we conclude the trial court did not err in designating Kelly an SVP.
Accordingly, Kelly’s first argument fails.
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11See Williams II, 832 A.2d at 973 (describing the Mendoza-Martinez
seven-factor balancing test).
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In his second issue, Kelly challenges the sufficiency of the evidence to
support the trial court’s determination that he is an SVP. Specifically, he claims
the Commonwealth did not prove by clear and convincing evidence that he
was likely to engage in future predatory sexually violent offenses. We
disagree.
“[I]n reviewing the sufficiency of the evidence regarding the
determination of SVP status, we will reverse the trial court only if the
Commonwealth has not presented clear and convincing evidence sufficient to
enable the trial court to determine that each element required by the statute
has been satisfied.” Commonwealth v. Moody, 843 A.2d 402, 408 (Pa.
Super. 2004) (citation omitted).
Clear and convincing evidence means that witnesses must be
found to be credible, that the facts to which they testify are
distinctly remembered and the details thereof narrated exactly
and in due order, and that their testimony is so clear, direct,
weighty, and convincing as to enable the jury to come to a clear
conviction, without hesitancy, of the truth of the precise facts in
issue.
Id. (citation and internal quotation marks omitted). An SVP is defined as “an
individual who committed a sexually violent offense” and “who is determined
to be a sexually violent predator ... due to a mental abnormality or personality
disorder that makes the individual likely to engage in predatory sexually
violent offenses.” 42 Pa.C.S.A. § 9799.12.
There is no question that Kelly was convicted of sexually violent
offenses; therefore, he only challenges the trial court’s finding that he suffers
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from a mental disorder that makes him likely to re-offend. Subsection H sets
out several areas that need to be considered when making a sexually violent
predator determination:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means
necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual
cruelty by the individual during the commission of
the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age.
(ii) Use of illegal drugs.
(iii) Any mental illness, mental disability or mental
abnormality.
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(iv) Behavioral characteristics that contribute to the
individual’s conduct.
(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense.
42 Pa.C.S.A. § 9799.24(b).
Here, the Commonwealth presented the testimony of Dr. Hahn, a
member of the SOAB. She testified that Kelly met the criteria for a mental
abnormality with respect to sexually deviate interests and sexual interest in
prepubescent children. See N.T., 6/26/2018, at 46. She further opined he met
the full criteria for pedophilic disorder—sexual interest in prepubescent
children. See id.
Dr. Hahn explained that while pedophilic disorder can be managed, it is
a lifetime chronic condition that cannot be cured. See id., at 46-47. Further,
the expert stated, “Sexually deviate interests are the single strongest
predictor of sexual reoffending. People with pedophilic disorder are known to
be likely to engage in predatory sexually violent acts.” Id., at 48.
Dr. Hahn testified that she considered the factors set forth in Subsection
H noting that here, there were multiple victims, all strangers generally aged
eight to 14, and though the mental capacity of the victims was not fully known,
they were obviously minors and unable to give consent. See id., at 50-53.
She recognized there was no unusual cruelty presented and that Kelly had no
prior offense history. See id., at 52-53.
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Dr. Hahn also considered that Kelly was 42 years old when he was
arrested and had been viewing child pornography since at least age 25. See
id., at 53. He did not have a history of substance abuse. See id., at 53-54.
He did meet the criteria for pedophilic disorder. See id., at 54. Finally, she
noted Kelly has had no age appropriate sexual relationships in over 20 years.
See id. at 51-54. Ultimately, given the totality of the circumstances, Dr. Hahn
concluded that, in her expert opinion, Kelly was an SVP. See id. at 55.
We conclude this evidence of record was sufficiently clear and convincing
to allow the trial court to find that Kelly is an SVP. Accordingly, his second
issue does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2020
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