J. S 34 0 32 /20

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

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : WAYNE FITZGERALD WILLIAMS, II , : No. 1909 M DA 20 19
: Appellant :

Appeal from the Judgment of Sentence Entered July 1, 2019, in the Court of Common Pleas of Luzerne County Criminal Division at No. CP

- 40

- CR

- 0003343

- 2018

BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2020
Wayne Fitzgerald Williams, II, appeals from the July 1, 2019 aggregate
judgment of sentence of 132 to 360 months’ imprisonment imposed after he
plead guilty to two counts of involuntary deviate sexual intercourse

– person less than 16 years of age (“IDSI”)

. 1 The Sexual Offend er Assessment Board
(“SOAB”) concluded that appellant did not meet the criteria to be classified as

a sexually violent predato r (“SVP”). After careful review, we affirm the
judgment of sentence.
The trial court summarized the relevant facts and procedural history of

this case as follows:

On November 6 [,] 2018, the Luzerne County District Attorney filed a nine (9) count Information docketed to number 334 3 of 2018 charging [] a ppellant herein

1 18 Pa.C.S.A. §§ 3123(a)(7).J . S 34 0 32 /20

- 2

- with three (3) counts of [IDSI] , r ape, threat of forcible compulsion, statutory sexual assault , indecent assault , indecent assault on a person less than 16 years of age, corruption of minors, and terroristic threats. The criminal information alleged that [] a ppellant committed the offenses charged therein on or about August 4, 2018. [Footnote 1]
[Footnote 1] Act 10, the most recent legislative update to SORNA became effective June 12, 2018. Appellant [pled] guilty to sexual offenses which occurred on August 4 th and 5 th of 2 018.
On April 5, 2019, following the conduct of a hearing, [] a ppellant [pled] guilty to two (2) counts of [IDSI ]. [Footnote 2 ] After a recitation of the factual basis for the plea by the assistant district attorney and a thorough colloquy of both [] a ppellant and his counsel, the [trial] court accepted [] a ppellant ’ s plea and scheduled sentencing for a separate date. A presentence investigation (PSI) was ordered to be completed by the Luzerne County Adult Probation and Parole Department prior to sentencing.
[Footnote 2 ] [] Appellant [pled] guilty to and admitted to facts supporting his convictions for IDSI charged at counts one (1) and two (2) for criminal conduct with the same victim on August 4 th and 5 th of 2018.
On July 1, 2019, [] a ppellant appeared before this court for sentencing. We considered the submissions of the parties, the PSI, and the applicable sentencing guidelines. Thereafter, on each of the two counts for whi ch he [pled] guilty, we sentenced [] a ppellant within the standard range of the applicable guidelines to consecutive terms of incarceration for not less than sixty

- six (66) months but no more than one hundred and eighty (180) months. The sentences were
or dered to run consecutively and thus [] a ppellant ’ s aggregate minimum sentence is one hundred andJ . S 34 0 32 /20

- 3

- thirty two (132) months to three hundred and sixty (360) months.
During the sentencing hearing, [] a ppellant ’ s counsel indicated his intention to file a post

- sentence motion

“ objecting to the constitutionality of the present SORNA ” Sexual Offender Registration Notification Act, 42 Pa.C.S.A. [§] 9799. 10 et se q

. We noted [] a ppellant ’ s objection and overruled it asking the assistant district attorney representing the Commonwealth to provide [] a ppellant with notice of his reporting requirements by reading them aloud on the record. [ ] Appellant was not determined to be [ an SVP ] pursuant to 42 Pa.C.S. [A.] §9799.24(e). At the conclusion of the sentencin g hearing, [] a ppellant was advised of his post

- sentence and appellate rights and remanded.
On July 8, 2019, [] a ppellant filed a counseled post

sentence motion raising constitutional challenges to SORNA as applied to him. We note that the issues that [] a ppellant raised in his post

- s entence motion are not precisely the same the [sic] issues raised in his c oncise s tatement. After careful review, we denied
a p p ellant ’ s post

- sentence motions by order dated October 21, 2019.
On November 19, 2019, [] a ppellant filed a n otice of
a ppeal. Thereafter, we ordered [] a ppellant to file a concise statement pursuant to Pa.R.A.P. 1925(b) and directed the Commonwealth to respond thereto. [ ] Appellant ’ s concise statement of matters complained of [on] a ppeal pursuant to Pa.R.A.P. 1925(b) was filed on December 26, 2019 and was received by the trial court on January 7, 2020.
Trial court opinion, 2/28/20 at 1

- 3 ( extraneous capitalization, s ome citations ,
and footnote 3 omitted ).
Appellant raises the following i ssues for our review:J . S 34 0 32 /20

- 4

- 1. Whether SORNA II contravenes the 5th, 6th and 14th Amendments of the United States Constitution and Article 1, § 1 of the Pennsylvania Constitution as a criminal punishment, without appropriate due process requiring that each fact necessary to support the imposition of punishment over which the court has no control is submitted to a jury and proven beyond a reasonable doubt under Apprendi v. New Jersey , 530 U.S. 466 (2000) and Alleyne v. United States , [ 570 U.S. 99 ] (2013) ?

2. Whet her a sentence requiring [a] ppellant to register under SORNA or SORNA II, Subchapter H of Act 29 of 2018, is illegal because it imposes a punishment is not statutorily authorized under the Pennsylvania Sentencing Code (42 Pa.C.S.A. § 9721 et seq.) and viol ates the Separation of Powers Doctrine?
Appellant ’ s brief at 2.
The crux of appellant’s argument is that registration requirements under
Revised Subchapter H in SORNA II are punitive in nature and unconstitutional

because they made insufficient changes to SORNA. (Appellant’s brief at 6

- 20 .)
Specifically, a ppellant contends that Revised Subchapter H violate s his due
process rights under the United States and Pennsylvania Constitution s

because it increases punishment based on facts found by the l egislature as
opposed to a jury in violation of Apprendi and Alleyne

. ( I d. ) For the
following reasons, we disagree.

When an appellant challenges the constitutionality of a statute, the appellant presents thi s Court with a question of law. Our consideration of questions of law is plenary. A statute is presumed to be constitutional and will not be declared unconstitutional unless itJ . S 34 0 32 /20

- 5

- clearly, palpably, and pla inly violates the constitution. Thus, the party challenging the constitutionality o f a statute has a heavy burden of persuasion.

Commonwealth v. Howe , 842 A.2d 436, 441 (Pa.Super. 2004).

We find that a brief examination of the recent case law concerning the
various constitutional challenges to sexual offender registration in this

Comm onwealth, and the legislative responses thereto, is relevant to the issues
now on appeal.

O n December 20, 2012, the Sex Offender Registration and Notification
Act ( “ SORNA ” ), 42 Pa.C.S .A . §§ 9 799.10

– 9799.41, became effective. The
stated purpose of SORNA w as “[t]o bring the Commonwealth into substantial
compliance with the Adam Walsh Child Protection and Safety Act of 2006
(Publi c Law 109

- 248, 120 Stat. 587).” 42 Pa.C.S. A. § 9799.10(1). In line

with th e federal requirements, SORNA created a three

- tier reg istration system
based upon the severity of the underlying criminal offense. Id. at § 9799.14

-
9799.15. An offender that is required to register is subject to prosecution for
failure to comply under 18 Pa.C.S. A. § 4915.1.

On July 19, 2017, in Commonwealth v. Muniz , 164 A.3d 1189 (Pa.
2017), cert. denied , U.S. , 138 S. Ct. 925 (2018), a plurality of our
supreme court held that the registration provi sions of SORNA were punitive inJ . S 34 0 32 /20

- 6

-

nature , pursuant to the seven

- factor test 2 set forth in Kennedy v.

Mendoza
- Martinez , 372 U.S. 144 (1963)

. Muniz , 164 A.3d at 1218

- 1220.

The Muniz court found that application of those registration provisions to

offenders who committe d their crimes prior to SORNA ’s effective date violated

the ex post facto clauses of the United States and Pennsylvania

Constit utions. Id.
Shortly thereafter, this court extended our Muniz rationale to invalidate

SORNA’ s provisions governing the determination of whether a particular

offender is a n SVP. Specifically, in Commonwealth v. Butler , 173 A.3d 1212
(Pa.Super. 2017) (“ Butler I ”), reverse d , 226 A.3d 972 ( Pa. 2020)
(“ Butler II ”), we held that the provision of SORNA requiring a court to
designate a defendant a s an SVP by clear and convincing evidence violates

the federal and state constitutions because it increases a defendant’s criminal

2 The seven factors for determining whether a statute is punitive in nature a re commonly referred to as the Mendoza
- Martinez factors :

[w] hether the sanction involves an affirma tive disability or restraint[;] whether it has historically b een regarded as a punishment[;] whether it comes into play o nly on a finding of scienter[;] whether its operation will promote the traditional aims of punishment

— retribution and deterrence[;] whether the behavior to which it applies is already a crime[;]
w hether an alternative purpose to which it may rationally be connected is assignable for it[;] and whether it appears excessive in relation to the alternative purpose assigned

. . . . Kennedy , 372 U.S. at 168

- 169 (internal footnotes omitted).J . S 34 0 32 /20

- 7

-

penalty without the fact

- finder ’s making necessary factual findings beyond a

reasonable doubt. Butler I , 173 A.3d at 1218.
In response to Muniz and Butler I , the Pennsylvania General Assembly
revised SORNA by passing Acts 10 and 29 of 2018 (also referred to as

“SORNA II”). 3 The express purpose of both legislati ve enactments was to cure

SORNA’ s constitutional defects. See 42 Pa.C.S.A. § 9799.51(b)(4) (stating,

“i t is the intention of the General Assembly to address [ Muniz and Butler ].”)

. The new statute divides sex offender registration into two categories,
depending on the date that the underlying offense occurred. Specifically,

t hrough Act 10, as amended in Act 29, the General Assembly created
Subchapter I, which addresses sexual offenders who committed an offense on
or after April 22, 1996, but before SORNA’s effective date, December 20,

2012. See 42 Pa.C.S.A. §§ 9799.5 2. O ur General Assembly also modified
Subchapter H’ s registration requirements for those offenders convicted of
committing offenses that occur red on or after December 20, 2012 , wh i ch is

relevant to the case sub judice

. I d. at § 9799.11(c).

Thereafter , on March 26, 2020, our supreme court reversed B utler I , concluding that the stated purpose of Revised Subchapter H was non - punitive

in nature. Butler II , 226 A.3d at 987. Specifically , the Butler II court held

that “the procedure for designating individuals as SVPs under

3 See Act of Feb. 21 2 018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018, P.L. 1952, No. 29 (“Act 29”).J . S 34 0 32 /20

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-

Section 9799.24(e)(3) is not subject to the requirements of Apprendi and
Alleyne and remains constitutionally permissible.” Id. at 976.
Although Butler II may initially appear dispositive of this matter, we
emphasize that Butler II concerns the registration provisions of Revised
Subchapter H applicable to SVPs . In this case , the SOAB concluded that
appellant did not meet the criteria for designation as a n SVP. (N otes of
testimony, 7/1/19 at 2; t r ial court opinion, 2/28/20 at 3 .) Accordingly,

Butler II is not applicable to him. See Commonwealth v.

Muhammad , A.3d , 2020 WL 6245269 at *6 n.6 ( Pa.Super. filed

October 23, 2020) (stating, “[t] he trial court herein did not designate
Appellant [as] an SVP, so this case does not relate in any way to SORNA’s SVP
provisions or to the analysis of the SVP provisions in Butler ”); see also

Commonwealth v. Torsilieri , 232 A.3d 567 , 572 n.2 (Pa. 2020) (ho lding
that, “ a s Butler II involves provisions related to the SVP designation process,
it is not relevant to Appellee , who was not designated an SVP ”)

.
R ecently, on June 16, 2020 , our supreme court was faced with
addressing the constitutionality of the provisions in Revised Subchapter H that
are applicable to non

- SVPs in Torsilieri , infra

. In Torsilieri , a defendant

was convicted of aggravated indecent assault and indecent assault and

claimed that SORNA II was unconstitutional on its face by creating an
irrebuttable presumption that all sexual offenders pose a high risk of

recidivism

. Id. at 572

- 573

. The defendant argued that the presumption thatJ . S 34 0 32 /20

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-

all sex offenders are dangerous and pose a high risk of recidivism,

necessitatin g registration, was not supported by current research and
threatens public safety by preventing the re

- integration of offenders as

law

- abiding citizens. Id. The trial court agreed, finding the registration
provisions of Revised Subchapter H unconstitutional based largely on the
scientific evidence the defendant had advanced at the hearing. Id. at 574

-

575

. However, o n appeal, the Torsilieri court did not reach the merits of any
of the constitutional claims at issue, determining instead that the factual

record was not sufficient l y developed in the trial court and that a remand was
necessary to determine whether Revised Subchapter H amounts to criminal
punishment. Id. at 587

- 588. 4
Turning to the instant matter , o ur review reveals that appellant fails to

make a cogent argument attacking SORNA II as unconstitutional. The record

reflect s that although appellant identified several aspects of SORNA II that
have remained virtually unchanged since SORNA I, he failed to conduct a
thorough analysis of the Mendoza
- Martin ez factors in his brief , nor

demonstrate d that the registration provisions of Revised Subchapter H

4 We further recognize that during the pendency of this appeal, our supreme court decided Commonwealth v. Lacomb e , 234 A.3d 602 (Pa. 2020 ) , on July 21, 2020. In Lacombe , our supreme c ourt held that Revised Subchapter I of SORNA II is non

- punitive and does not violate the constitutional prohibition against ex post facto laws. Id. at 626

- 627. As Lacombe app lies only t o Revised Subchapter I, and the registration
re quirements at issue in the instant matter arise under Revised Subchapter H, Lacombe is not relevant to our disposition

.J . S 34 0 32 /20

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-

applicable to non

- SVPs “clearly, palpably, and plainly violate the state and

federal ex post facto clauses.” See Commonwealth v. Cosby , 224 A.3d

372 , 431 (P a.Super. 2019) (holding that appellant failed to develop his
challenge to the constitutionality of SORNA II where he cited, but did not
adequately apply, the Mendoza
- Martinez test to challenged provisions of
SORNA II) , appeal granted in part , 236 A.3d 1045 (Pa. 2020)

. 5 It follows

that such d iscussion would be critical to any analysis of whether the
registration provisions of Revised Subchapter H of SORNA II applicable to

non - SVPs are punitive and, thus, unconstitutional

. Moreover, we note that, unlike t he defendant in Torsilieri , appellant

d id not adequately argue th at Revised Subchapter H deprived him of
procedural due process because it creates an irrebuttable presumption of
recidivism, thus depriving him of his right to his reputation without notice and
opportunity to be heard. Accordingly, for all the foregoing reasons, appellant’s

first claim must fail.
Appellant next argues that Revised Subchapter H is unconstitutional

because it violates the separation of powers doctrine by effectively removing
the trial court’s ability to fashion an individualized sentence. (Appellant’s brief

at 20

- 26.) W e find that the trial court comprehensively addressed this claim

5 Our supreme court’s partial gran t of allowance of appeal in Cosby was on grounds unrelated to the constitutionality of SORNA II.J . S 34 0 32 /20

- 11

-

in its February 28, 2020 opinion , and we adopt its well

- reasoned analysis as

our own: Appellant asks if SORNA violates the separation of

powers doctrine. In answer, we submit that it does
no t. The General Assembly has “ the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes.” Commonwealth v. Martin , 205 A.3d 1247 (Pa.Super. 2019)[, q] uoting Commonwealth v. Eisenberg , 98 A.3d 1268 (P a. 2014). The legislature has authorized the courts to use discretion a nd impose specific punishments. 42 Pa. C.S. [ A.] § 9721. While SORNA being characterized as a punishment had necessary effect on the retroactive application of its provisions in Muniz , we see no reason why characterizing SORNA’ s requirements as a punishment would diminish the authority of the General Assembly to impose such a s anction. Accordingly, [a]ppellant’ s second issue is without merit.
Trial court opinion, 2/28/20 at 7 (citati on formatting amended)

.
For all the foregoing reasons , we find that appellant has failed to satisfy
his burden to prove that the applicable registration provisions in Revised
Subchapter H “clearly, palpably, and plainly” violate the cons titution. Cosby ,
224 A.3d at 431 ; see also Howe , 842 A.2d at 441. Accordingly, we affirm
appellant’s July 1, 2019 judgment of sentence.
Judgment of sentence affirmed.J . S 34 0 32 /20

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-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/2020