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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FRANK DANIEL WEIAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1380 MDA 2018

Appeal from the Judgment of Sentence Entered June 7, 2018

In the Court of Common Pleas of Mifflin County Criminal Division at 

No(s): CP-44-CR-0000395-2017

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 20, 2019

Frank Daniel Weiand (Weiand) appeals from the judgment of sentence 

imposed by the Mifflin County Court of Common Pleas following his entry of a 

plea of nolo contendere to one count of statutory sexual assault.1 Specifically, 

he challenges his designation as a sexually violent predator (SVP). We vacate 

the judgment of sentence with respect to the SVP designation and affirm in all 

other respects.

We derive the following relevant facts and procedural history of this case 

from our independent review of the record. On March 9, 2018, Weiand 

entered a nolo contendere plea to the above-referenced offense. The charge 

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1 18 Pa.C.S. § 3122.1(b).
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stems from his long-term sexual abuse of his daughter beginning when she

was three or four years old, from approximately January 2013 through 

November 2016. On June 7, 2018, the trial court designated him an SVP, 

using a clear and convincing evidence standard of proof. (See N.T. 

Sentencing, 6/07/18, at 27). It sentenced him to a term of not less than 

eleven-and-a-half nor more than twenty-three months’ incarceration. This 

timely appeal followed.2

Weiand challenges his SVP designation on appeal and argues that it 

should be vacated because it is unconstitutional under Commonwealth v. 

Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 

2018). (See Weiand’s Brief, at 5-7) (unpaginated).3 The response of the trial 

court and the Commonwealth is that any constitutional defects in the SVP 

designation process have been remedied by the passage of subsequent 

legislation. (See Trial Court Opinion, 8/02/18, at 1-2; Commonwealth’s Brief, 

at 4-5).

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2 The record reflects that counsel for Weiand did not file a concise statement 

of errors complained of on appeal as directed by the trial court. See Pa.R.A.P. 

1925(b). However, because the trial court addressed the issue raised by 

Weiand on appeal in its August 2, 2018 opinion, it is unnecessary to remand. 

See Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016),

appeal denied, 165 A.3d 892 (Pa. 2017); Pa.R.A.P. 1925(c)(3).

3 “We review the legality of a sentence de novo and our scope of review is 

plenary.” Butler, supra at 1215 (citation omitted).
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By way of background, the Butler Court considered the constitutionality 

of the Sexual Offender Registration and Notification Act’s (“SORNA’s”)

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framework for designating a convicted defendant an SVP. See Butler, supra

at 1213. The Court determined that because the relevant provision employed 

a clear and convincing evidence burden of proof rather than a beyond a 

reasonable doubt standard, the statutory scheme could not withstand 

constitutional scrutiny under applicable precedent. See id. at 1218. 

Specifically, it held that “section 9799.24(e)(3) of SORNA violates the federal 

and state constitutions because it increases the criminal penalty to which a 

defendant is exposed without the chosen fact-finder making the necessary 

factual findings beyond a reasonable doubt.” Id. It further directed that “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. “Instead, trial courts must notify a defendant 

that he or she is required to register for 15 years if he or she is convicted of 

a Tier I sexual offense, 25 years if he or she is convicted of a Tier II sexual 

offense, or life if he or she is convicted of a Tier III sexual offense.” Id.5

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4 42 Pa.C.S. §§ 9799.10-9799.41.

5 Statutory sexual assault is classified as a Tier III sexual offense. See 42 

Pa.C.S. § 9799.14(d).
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In response, “the Pennsylvania General Assembly passed Acts 10 and 

29 of 2018.” Commonwealth v. Wood, 2019 WL 1595871, at *8 (Pa. Super. 

filed Apr. 15, 2019) (en banc). The express purpose of these legislative 

enactments was, inter alia, to remedy the constitutional defects of SORNA by 

addressing Butler. See 42 Pa.C.S. § 9799.11(b)(4); 42 Pa.C.S. § 

9799.51(b)(4). However, this legislation did not alter the clear and convincing 

evidence burden of proof used by trial courts to determine SVP status. See

42 Pa.C.S. § 9799.24(e)(3). Because the Butler Court held that this standard 

is unconstitutional, we are bound by its decision. See Commonwealth v. 

Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (“This Court is bound by existing 

precedent under the doctrine of stare decisis and continues to follow 

controlling precedent as long as the decision has not been overturned by our 

Supreme Court.”) (citation omitted). Accordingly, we vacate Weiand’s SVP 

status and, in accord with Butler, remand this case to the trial court for the 

sole purpose of issuing appropriate notice to him of his registration obligation.6

SVP designation vacated. Judgment of sentence affirmed in all other 

respects. Case remanded with instructions. Jurisdiction relinquished.

Judge Dubow joins the memorandum.

Judge Shogan concurs in the result.

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6 We note that the Pennsylvania Supreme Court in Commonwealth v.

Lacombe, 35 MAP 2018 (Pa. 2018) recently granted review in its original 

jurisdiction to determine the issue of whether Acts 10 and 29 are 

constitutional. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2019