Constitutionality of Sexually Violent Predator Hearings and Designations

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), allocatur granted July 31, 2018, appeal docket 25 WAP 2018

Joseph Dean Butler pled guilty to statutory sexual assault and corruption of minors based on evidence of approximately 50 instances of sexual intercourse with a 15-year-old girl. Following a non-jury hearing, the trial court determined that the Commonwealth proved by clear and convincing evidence that the Butler was a “sexually violent predator” (SVP) as defined by 42 Pa. C.S. § 9799.24(e)(3) of the Sexual Offender Registration and Notification Act’s (SORNA). Butler was then sentenced to an aggregate term of 12 to 30 months’ imprisonment followed by 90 months’ probation. Based on his SVP designation, Butler would be required to register with the Pennsylvania State Police as a sexual offender for life instead of the 15-year registration requirement applicable to non-SVPs. Following denial of his post-trial motion, Butler appealed , challenging  SORNA’s SVP designation on grounds that it was not supported by sufficient evidence and violated his fundamental right to protect his reputation as secured by Pennsylvania Constitution Article I, Section 1.

On appeal, Superior Court reversed Butler’s SVP designation on other grounds, sua sponte finding Section 9799.24(e)(3) of SORNA to be unconstitutional because it calls for a non-jury determination of facts relating to SVP status.  Observing that the appeal implicates the legality of Butler’s sentence, such that Butler’s failure to raise an issue does not prevent the appellate court from raising it sua sponte, Superior Court noted that the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), found that the registration requirements of SORNA are punitive, entitling a Defendant to a jury assessment of the facts, and that SORNA’s utilization of a non-jury hearing to determine the facts as to Butler’s SVP status is therefore unconstitutional. Applying the Muniz rationale, the Superior Court concluded that “if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond reasonable doubt.” Slip Op., at 10.

Superior Court reasoned that it was constrained by the Muniz decision to hold that the framework for designating a SVP pursuant to Section 9799.24(e)(3) violates the federal and state constitutions because it increases a criminal penalty without the chosen factfinder making the necessary factual findings beyond a reasonable doubt, concluding:

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.

Slip Op., at 12.

Based on this conclusion, and without reaching the issues raised by Butler, Superior Court reversed the trial court’s order designating Butler as an SVP and remanded “for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements.” Slip Op., at 13.

Judge Olsen authored the opinion and was joined by President Judge Emeritus Bender, with Judge Stabile noting his dissent.

The Supreme Court granted allocatur on the following issue, and invited the Attorney General to participate as an amicus curiae:

Whether the Superior Court of Pennsylvania erred in vacating the trial court’s Order finding Respondent to be a SVP by extrapolating the decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), to declare SVP hearings and designations unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).

For more information, contact Kevin McKeon or Dennis Whitaker.