Commonwealth v. Alston
Commonwealth v. Alston
Opinion
Appellant, Jamal Alston, appeals nunc pro tunc from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his jury trial convictions for three counts of statutory sexual assault, two counts each of rape of a child and involuntary deviate sexual intercourse ("IDSI") of a child less than 16, and one count each of indecent assault of a child less than 13, sexual abuse of children, criminal use of a communication facility, unlawful contact with a minor, and corruption of minors. 1 We affirm in part, vacate in part, and remand with instructions.
The relevant facts and procedural history of this case are as follows. Appellant sexually abused Victim from May 28, 2009 to May 1, 2013.
*528 The three-day jury trial began on February 10, 2016. The jury heard evidence of the ongoing sexual relationship that [Appellant] initiated with [the] 11 year-old [Victim], and continued through the time [Victim] was 15 years old, when the abuse was uncovered by [Victim's] sister. At the conclusion of the trial, the jury found [Appellant] guilty of the aforementioned offenses. Sentencing and a Sexually Violent Predator ("SVP") hearing were held on September 23, 2016. [Appellant] was found to be [an] SVP. [ 2 ] [Appellant] was also sentenced to an aggregate term of 15 to 40 years' incarceration. A post-sentence motion was filed and denied. A direct appeal was not filed.
On August 22, 2017, [Appellant] filed a pro se petition seeking post-conviction relief pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. PCRA counsel was appointed, and ultimately relief was granted, reinstating [Appellant's] direct appeal right nunc pro tunc on May 8, 2018. A notice of appeal was thereafter timely filed. In accordance with Pa.R.A.P. 1925, [the c]ourt ordered [Appellant] to submit a concise statement of errors complained of on appeal. After an extension of time was granted, a statement was filed.
(Trial Court Opinion, filed July 30, 2018, at 2).
Appellant raises the following issue for our review:
DID THE TRIAL COURT IMPROPERLY IMPOSE A LIFETIME REPORTING REQUIREMENT ON [APPELLANT] PURSUANT TO [SORNA], 42 PA.C.S. §§ 9799.10 TO 9799.41 ?
(Appellant's Brief at 2).
Appellant argues the court unconstitutionally designated him an SVP by clear and convincing evidence, instead of proof beyond a reasonable doubt. Appellant contends his SVP designation amounts to an illegal sentence pursuant to
Commonwealth v. Muniz
,
A challenge to the legality of sentence is a question of law; our standard of review is
de novo
and our scope of review is plenary.
Commonwealth v. Cardwell
,
Our Supreme Court declared SORNA unconstitutional, to the extent it violates the
ex post facto
clauses of both the United States and Pennsylvania Constitutions.
Muniz, supra
. The
Muniz
court determined SORNA's purpose was punitive in effect, despite the General Assembly's
*529
stated civil remedial purpose.
Id.
at 748-49,
In light of
Muniz
, this Court also held: "[U]nder
Apprendi [v. New Jersey
,
Following Muniz and Butler , the Pennsylvania General Assembly enacted legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 ("Act 10"). Act 10 amended several provisions of SORNA, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51 - 9799.75. In addition, the Governor of Pennsylvania signed new legislation striking the Act 10 amendments and reenacting several SORNA provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No. 29 ("Act 29"). 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 December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51 - 9799.75. Subchapter I contains less stringent reporting requirements than Subchapter H, which applies to offenders who committed an offense on or after December 20, 2012. See 42 Pa.C.S.A. §§ 9799.13, 9799.54.
*530 Instantly, Appellant committed sexual offenses between May 28, 2009, and May 1, 2013. A jury convicted Appellant of three counts of statutory sexual assault, two counts each of rape of a child and IDSI of a child less than 16, and one count each of five other offenses. The court sentenced Appellant to an aggregate term of 15 to 40 years' imprisonment; during the sentencing hearing, the court also designated Appellant as an SVP and required Appellant to register and report for life under SORNA.
Here, the court designated Appellant an SVP by clear and convincing evidence under Section 9799.24(e)(3), which violates the federal and state constitutions.
See
Butler,
Further, the jury did not specifically find the dates when Appellant committed his offenses. Appellant's offenses straddle the operative dates for Subchapters H and I. Without a specific finding by the chosen factfinder of when the offenses occurred, Appellant is entitled to the lowest punishment.
See
42 Pa.C.S.A. §§ 9799.13, 9799.54 ;
Alleyne,
Based upon the foregoing, we hold that Appellant's SVP designation is unconstitutional pursuant to Butler and must be vacated. We further hold that when an appellant's offenses straddle the effective dates of Subchapters H and I of SORNA, he is entitled to the lower reporting requirements of Subchapter I, absent a specific finding of when the offenses related to the convictions actually occurred. Accordingly, we vacate that portion of the judgment of sentence regarding Appellant's SVP status and SORNA reporting requirements, and we remand the case to the trial court to instruct Appellant on his proper registration and reporting requirements. We affirm the judgment of sentence in all other respects.
Judgment of sentence affirmed in part and vacated in part solely as to SVP status and SORNA reporting requirements; case remanded with instructions. Jurisdiction is relinquished.
18 Pa.C.S.A. §§ 3122.1(a), 3121(c), 3123(a)(7), 3126(a)(7), 6312(b), 7512(a), 6318(a)(1), and 6301(a)(1), respectively.
Rape of a child and IDSI with a person less than 16 are both Tier III offenses under the Sexual Offender Registration and Notification Act ("SORNA"), which require an offender to register and report for life. See 42 Pa.C.S.A. §§ 9799.14(d), 9799.15(a)(3).
See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: "At the hearing prior to sentencing, the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator").
The Pennsylvania Supreme Court has granted review of
Butler
. Unless and until our Supreme Court rules otherwise, however,
Butler
remains binding authority.
See
Commonwealth v. Martin
,
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee v. Jamal ALSTON, Appellant
- Cited By
- 61 cases
- Status
- Published