J-S36032-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT STEPHEN FLEMING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1404 EDA 2017

Appeal from the Judgment of Sentence November 23, 2015

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

No(s): CP-15-CR-0003920-2014

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

JUDGMENT ORDER BY DUBOW, J.: FILED DECEMBER 18, 2020

Appellant Robert Stephen Fleming appealed his Judgment of Sentence 

imposed after a jury convicted him of committing repeated sexual assaults of

his minor daughter. This Court affirmed his Judgment of Sentence but vacated 

Appellant’s Sexually Violent Predator (“SVP”) designation pursuant to 

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I). 

See Commonwealth v. Fleming, No. 1404 EDA 2017 (Pa. Super. filed Oct. 

10, 2018 (vacating and remanding for notification of registration 

requirements). The Commonwealth filed a Petition for Allowance of Appeal 

with the Pennsylvania Supreme Court, which that Court granted. The Supreme 

Court summarily vacated our Order and remanded the case to this Court for 

reconsideration in light of Commonwealth v. Butler, 226 A.3d 972 (Pa. 
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2020) (Butler II). Our reconsideration is now the sole issue now before this 

panel.1, 2 

Relevant Background

Relevant to our review, we note the following background. The same 

day that the sentencing court imposed an aggregate term of 37 to 86 years’ 

incarceration, it adjudicated Appellant a sexually violent predator (“SVP”) and 

informed Appellant of his lifetime registration requirement under the Sex 

Offender Registration and Notification Act (“SORNA”) at 42 Pa.C.S.A. §§ 

9799.10-9799.41, as both a Tier III offender and a SVP. On appeal, this Court 

affirmed Appellant’s Judgment of Sentence in all respects, but sua sponte

vacated Appellant’s SVP status pursuant to Commonwealth v. Muniz, 164 

A.3d 1189 (Pa. 2017), and Commonwealth v. Butler, 173 A.3d 1212 (Pa.

Super. 2017) (Butler I), allowance of appeal granted, __ A.3d __ (Pa. 2018). 

We then remanded the case to the trial court for the sole purpose of issuing 

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1 Because the Pennsylvania Supreme Court did not vacate our affirmance of 

Appellant’s Judgment of Sentence and remanded solely to reconsider our 

previous sua sponte vacatur of Appellant’s SVP status, our disposition of the 

issues raised in Appellant’s Brief addressed in Commonwealth v. Fleming, 

No. 1404 EDA 2017 (Pa. Super. filed Oct. 10, 2018), remains the same.

2 On December 11, 2020, Appellant filed a “Motion for Discharge” challenging 

the trial court’s subject matter jurisdiction. He argues that the legislature 

improperly enacted and wrongly published the statutes under which the 

Commonwealth charged him, and his convictions are, thus, void ab initio. 

Motion for Discharge, at 6-13, 27-29, 34-35, 39-41. Based on our review of 

relevant authority, we conclude the trial court properly exercised subject 

matter jurisdiction and Appellant’s contentions are meritless. We, thus, deny 

Appellant’s Motion for Discharge with prejudice. 
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appropriate notice of Appellant’s registration obligation under 42 Pa.C.S.A. § 

9799.23. The Commonwealth filed a Petition for Allowance of Appeal with the 

Pennsylvania Supreme Court.

During the pendency of the allocatur petition, the Pennsylvania Supreme 

Court reversed Butler I. See Commonwealth v. Butler, 226 A.3d 972 (Pa. 

2020) (Butler II). The Supreme Court then granted allowance of appeal in 

the instant case, summarily vacated our prior Order directing remand to the 

trial court, and remanded to this Court for reconsideration in light of Butler 

II.

Butler I and II

This Court based its previous sua sponte remand on Butler I. In Butler

I, this Court concluded that, in light of Muniz, “Section 9799.24(e)(3) of 

SORNA [regarding SVP designation] violates the federal and state 

constitutions because it increases the criminal penalty to which a defendant is 

exposed without the chosen factfinder making the necessary factual findings 

beyond a reasonable doubt.” Butler I, 173 A.3d at 1218.3 However, on March 

26, 2020, our Supreme Court reversed this Court’s decision in Butler I. See

Butler II, 226 A.3d 972, 976 (Pa. 2020).

In Butler II, the Pennsylvania Supreme Court concluded that the SVP 

designation—as well as the registration, notification, and counseling 

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3 The Muniz Court relied on Apprendi and Alleyne, infra.
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requirements specific to SVPs—“do not constitute criminal punishment and 

therefore the procedure for designating individuals as SVPs under Section 

9799.24(e)(3) is not subject to the requirements of Apprendi[4] and 

Alleyne[5] and remains constitutionally permissible.” Id. In other words, 

pursuant to Butler II, SVP designation is not a criminal punishment and, as 

such, passes muster under both Apprendi and Alleyne.

Thus, pursuant to Butler II, we cannot conclude that Appellant’s SVP 

designation under SORNA is unconstitutional. Accordingly, Appellant’s 

sentence is legal. We, thus, affirm Appellant’s Judgment of Sentence.

Motion for Discharge denied with prejudice. Judgment of Sentence 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/20

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4 Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any facts, 

other than the fact of a prior conviction, that subject a defendant to any 

additional penalty beyond a statutory maximum must be submitted to a jury 

and be found proved beyond a reasonable doubt).

5 Alleyne v. United States, 570 U.S. 99 (2013) (holding that any fact other 

than a prior conviction that triggers a mandatory minimum sentence must be 

found by a jury beyond a reasonable doubt).