J. S34032/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 MDA 2019

:

 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 Offender Assessment Board

(“SOAB”) concluded that appellant did not meet the criteria to be classified as

a sexually violent predator (“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 3343 of 2018 charging [] appellant herein 

 

1 18 Pa.C.S.A. §§ 3123(a)(7).
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with three (3) counts of [IDSI], rape, 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 

[] appellant 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 5th of 2018.

On April 5, 2019, following the conduct of a hearing, 

[] appellant [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 [] appellant and his

counsel, the [trial] court accepted [] appellant’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 4th and 5

th

of 2018.

On July 1, 2019, [] appellant 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 

which he [pled] guilty, we sentenced [] appellant 

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 

ordered to run consecutively and thus [] appellant’s 

aggregate minimum sentence is one hundred and
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thirty two (132) months to three hundred and sixty 

(360) months.

During the sentencing hearing, [] appellant’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 seq. We noted 

[] appellant’s objection and overruled it asking the

assistant district attorney representing the 

Commonwealth to provide [] appellant 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 sentencing hearing, [] appellant was 

advised of his post-sentence and appellate rights and 

remanded.

On July 8, 2019, [] appellant filed a counseled postsentence motion raising constitutional challenges to 

SORNA as applied to him. We note that the issues 

that [] appellant raised in his post-sentence motion 

are not precisely the same the [sic] issues raised in 

his concise statement. After careful review, we denied 

appellant’s post-sentence motions by order dated 

October 21, 2019.

On November 19, 2019, [] appellant filed a notice of 

appeal. Thereafter, we ordered [] appellant 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] appeal 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, some citations, 

and footnote 3 omitted).

Appellant raises the following issues for our review:
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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. Whether 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 violates 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, appellant contends that Revised Subchapter H violates his due 

process rights under the United States and Pennsylvania Constitutions 

because it increases punishment based on facts found by the legislature as 

opposed to a jury in violation of Apprendi and Alleyne. (Id.) For the 

following reasons, we disagree. 

When an appellant challenges the constitutionality of 

a statute, the appellant presents this 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 it 
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clearly, palpably, and plainly violates the constitution. 

Thus, the party challenging the constitutionality of 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 

Commonwealth, and the legislative responses thereto, is relevant to the issues 

now on appeal.

On December 20, 2012, the Sex Offender Registration and Notification 

Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10–9799.41, became effective. The 

stated purpose of SORNA was “[t]o bring the Commonwealth into substantial 

compliance with the Adam Walsh Child Protection and Safety Act of 2006 

(Public Law 109-248, 120 Stat. 587).” 42 Pa.C.S.A. § 9799.10(1). In line 

with the federal requirements, SORNA created a three-tier registration 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 provisions of SORNA were punitive in 
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nature, pursuant to the seven-factor test2 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 committed their crimes prior to SORNA’s effective date violated 

the ex post facto clauses of the United States and Pennsylvania 

Constitutions. Id.

Shortly thereafter, this court extended our Muniz rationale to invalidate 

SORNA’s provisions governing the determination of whether a particular 

offender is an SVP. Specifically, in Commonwealth v. Butler, 173 A.3d 1212

(Pa.Super. 2017) (“Butler I”), reversed, 226 A.3d 972 (Pa. 2020) 

(“Butler II”), we held that the provision of SORNA requiring a court to 

designate a defendant as 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 are 

commonly referred to as the Mendoza-Martinez factors:

[w]hether the sanction involves an affirmative 

disability or restraint[;] whether it has historically 

been regarded as a punishment[;] whether it comes 

into play only 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[;] 

whether 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).
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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 legislative enactments was to cure 

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

“it 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, 

through 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. §§ 9799.52. Our General Assembly also modified 

Subchapter H’s registration requirements for those offenders convicted of 

committing offenses that occurred on or after December 20, 2012, which is 

relevant to the case sub judice. Id. at § 9799.11(c). 

Thereafter, on March 26, 2020, our supreme court reversed Butler 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 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018, 

P.L. 1952, No. 29 (“Act 29”).
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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 an SVP. (Notes of 

testimony, 7/1/19 at 2; trial 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) (holding 

that, “as Butler II involves provisions related to the SVP designation process, 

it is not relevant to Appellee, who was not designated an SVP”).

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

necessitating 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, on 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 sufficiently 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, our review reveals that appellant fails to 

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

reflects 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-Martinez factors in his brief, nor 

demonstrated 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. Lacombe, 234 A.3d 602 (Pa. 2020), on 

July 21, 2020. In Lacombe, our supreme court 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 applies only to Revised Subchapter I, and the registration 

requirements at issue in the instant matter arise under Revised Subchapter H, 

Lacombe is not relevant to our disposition.
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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 (Pa.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 discussion 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 the defendant in Torsilieri, appellant 

did not adequately argue that 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.) We find that the trial court comprehensively addressed this claim 

 

5 Our supreme court’s partial grant of allowance of appeal in Cosby was on 

grounds unrelated to the constitutionality of SORNA II.
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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

not. 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 (Pa. 2014). The legislature 

has authorized the courts to use discretion and 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 sanction. 

Accordingly, [a]ppellant’s second issue is without 

merit.

Trial court opinion, 2/28/20 at 7 (citation 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 constitution. 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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2020