Com. v. Frederick, D.

• Court: Superior Court of Pennsylvania
• Decided: February 27, 2023
• Docket: 539 WDA 2022
• Status: Unpublished

Opinion

J-S42014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID FREDERICK : : Appellant : No. 539 WDA 2022

Appeal from the Judgment of Sentence Entered April 11, 2022 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000497-2013

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 27, 2023

David Frederick appeals from his April 11, 2022 judgment of sentence

of five years and four months to seventeen years of incarceration followed by

three years of probation, which was imposed after a jury convicted him of

endangering the welfare of children (“EWOC”), indecent assault, and related

charges. We affirm in part and vacate in part.

The Commonwealth charged Appellant with fifteen criminal offenses

stemming from his protracted sexual abuse of his biological daughter that

began when she was eleven or twelve years old and continued on a weekly

basis until she was seventeen years old. Based on the victim’s date of birth

and her testimony at trial, we discern that the offenses occurred from 2008

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* Retired Senior Judge assigned to the Superior Court. J-S42014-22

until 2013.1 Following a two-day jury trial on April 14 and 15, 2014, Appellant

was convicted of two counts of EWOC and one count each of corruption of

minors – sexual offense, indecent assault person less than sixteen years of

age, and indecent assault – without the consent of other. Appellant was

acquitted of the remaining charges. Since it is relevant to our disposition, we

note that Appellant’s convictions for EWOC and corruption of minors were

charged as third-degree felonies, as opposed to first-degree misdemeanors,

based on a “course of conduct” by Appellant. See 18 Pa.C.S.

§§ 4304(b)(1)(i)-(ii), 6301(a)(1)(i)-(ii).

At the time of his conviction, Appellant was subject to registration as a

sex offender under the Sexual Offender Registration and Notification Act

(“SORNA”) pursuant to 42 Pa.C.S. § 9799.13 as his convictions for indecent

assault and corruption of minors were considered “sexually violent offenses”

under the statute.2 Consequently, Appellant was subject to assessment by

the Sexual Offender Assessment Board (“SOAB”) pursuant to 42 Pa.C.S.

1 The victim’s trial testimony did not lend itself to discrete dates. Furthermore, the amended information did not allege a specific date of commission, but rather averred the underlying conduct was committed within this range as to each charge individually.

2 Specifically, at the time of Appellant’s conviction, his indecent assault – without the consent of other and corruption of minors’ convictions were considered Tier I offenses. See 42 Pa.C.S. § 9799.14(b)(6), (8). His conviction for indecent assault – person less than sixteen years of age was classified as a Tier II offense. See 42 Pa.C.S. § 9799.14(c)(1.3).

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§ 9799.24(a). On October 8, 2014, following an assessment and a hearing,

the trial court determined Appellant to be a sexually violent predator (“SVP”).3

On November 14, 2014, Appellant was sentenced to an aggregate term

of sixty-two months to nineteen years of imprisonment. The trial court also

designated Appellant as a Tier III lifetime registrant pursuant to SORNA due

to his SVP designation. On direct appeal, this Court affirmed Appellant’s

judgment of sentence, and he did not seek further review. See

Commonwealth v. Frederick, 136 A.3d 1031 (Pa.Super. 2016)

(unpublished memorandum).

On July 3, 2017, Appellant filed a timely PCRA petition asserting various

claims for relief. Following a hearing, the PCRA court issued an order and

opinion denying the petition. Appellant timely appealed. In lieu of an

appellate brief, the Commonwealth submitted a letter indicating that, inter

alia, the parties agreed that Appellant was entitled to relief in the form of a

resentencing. See Commonwealth’s letter, 11/5/21, at 1. Specifically, the

parties asserted that the jury was never properly charged with respect to the

“course of conduct” element of EWOC and corruption of minors that was

necessary to enhance those convictions from first-degree misdemeanors to

third-degree felonies. See Commonwealth v. Frederick, 273 A.3d 1017 ____________________________________________

3 SVPs have been convicted of a “sexually violent offense” and found to suffer from a mental abnormality or personality disorder that makes them more likely to engage in predatory sexually violent offenses. See 42 Pa.C.S. § 9799.55; see also 42 Pa.C.S. § 9799.12. As discussed further infra, however, Subchapter H and I of SORNA define “sexually violent offense” differently.

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(Pa.Super. 2022) (non-precedential decision at 1-2). Since the jury should

have been instructed that both crimes required the existence of a “course of

conduct” by the defendant, this Court held that Appellant’s sentence for these

offenses graded as felonies could not stand. See 18 Pa.C.S. §§ 4304(b)(1)(ii),

6301(a)(1)(ii). In accordance with an agreement of the parties, we vacated

Appellant’s judgment of sentence while leaving his convictions intact and

remanded for resentencing. Id. (non-precedential decision at 4).

In the years that had elapsed between Appellant’s conviction and this

Court’s vacatur of his judgment of sentence, Pennsylvania adopted a

bifurcated statutory scheme with respect to registration under SORNA. As

reconstituted, Subchapter H applies to defendants who, inter alia, were

convicted of committing sexually violent offenses on or after December 20,

2012. See 42 Pa.C.S. § 9799.10(4). By contrast, a newer statute,

Subchapter I, applies to those defendants who were convicted of committing

sexually violent offenses “on or after April 22, 1996, but before December 20,

2012.” See 42 Pa.C.S. § 9799.52(1). The dates of Appellant’s offenses

arguably fall under both time periods. However, while his convictions remain

sexually violent offenses under Subchapter H, they are not predicate offenses

under Subchapter I.

On remand, the trial court filed an order indicating that no SVP re-

assessment was necessary and directed that Appellant’s SVP status under

Subchapter H would remain unchanged. Appellant objected and averred that

his registration status was properly governed by Subchapter I of SORNA and,

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since he had not been convicted of a sexually violent offense enumerated

under that statute, he should not be subject to lifetime registration as an SVP.

The Commonwealth filed a response, admitting that if Subchapter I governed

these proceedings, then there would be no SORNA consequences for his

convictions. However, the Commonwealth contended that Appellant remained

properly subject to Subchapter H, under which his registration status should

remain unchanged. The trial court issued an order and opinion overruling

Appellant’s objection. In its opinion, the trial court agreed with the

Commonwealth and found that because Appellant had committed criminal

offenses which included conduct on or after December 20, 2012, he was

properly subject to Subchapter H of SORNA and the previous registration

requirements remained.

On April 5, 2022, Appellant appeared for resentencing. At the hearing,

defense counsel renewed his objection to the registration requirements,

arguing that because Appellant’s offense dates straddled Subchapters H and

I of SORNA, Subchapter I should apply pursuant to Commonwealth v.

Alston, 212 A.3d 526 (Pa.Super. 2019). See N.T., 4/5/22, at 3. The

Commonwealth argued that Alston was no longer controlling, since post-

Commonwealth v. Butler, 226 A.3d 972, 987 (Pa. 2020) (“Butler II”),

SORNA requirements were no longer considered punitive. See N.T., 4/5/22,

at 4-5. The trial court agreed with the Commonwealth, and found that,

because the victim testified that the assaults continued into 2013, Subchapter

H applied. Id. at 13. Accordingly, the prior registration requirements

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remained and the trial court resentenced Appellant to serve five years and

four months to seventeen years’ incarceration followed by three years of

probation, which was the same sentence Appellant received previously.

Afterwards, Appellant filed a motion to correct the grading of the offenses to

comply with the remand from this Court. On May 5, 2022, the trial court

issued an amended order, reducing the grading of the EWOC and corruption

of minor offenses to first-degree misdemeanors, but leaving the sentence

itself unchanged. The instant timely appeal followed. Both Appellant and the

PCRA court have complied with the mandates of Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

I. Whether the sentencing court erred in requiring [Appellant] to register as a Sexually Violent Predator pursuant to 42 Pa.C.S.A. § 9799.10, et seq., where 42 Pa.C.S.A. § 9799.10, et seq. does not apply because the criminal information reflected a date range between June 1, 2008 and June 1, 2011, the record is void of indication that the criminal information had been amended, the jury did not make a specific finding as to the date of the crimes for which [Appellant] was convicted, [Appellant] was convicted of 18 Pa.C.S.A. § 3126(a)(8), complainant less than [sixteen] years of age, which means the offense would have had to occurred before complainant’s [sixteenth] birthday on August 19, 2011 prior to the December 20, 2012 applicability date of 42 Pa.C.S.A. § 9799.10, et seq., and therefore [Appellant] has not been convicted of a sexually violent offense?

II. Whether the sentencing court erred in requiring [Appellant] to undergo a mandatory consecutive period of probation of [three] years pursuant to 42 Pa.C.S.A. § 9718.5 where [Appellant] has not been convicted of a sexually violent offense under 42 Pa.C.S.A. § 9799.14(d) because the criminal information reflected a date range between June 1, 2008 and June 1, 2011, the record is void of indication that

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the criminal information was amended, the jury did not make a specific finding as to the date of the crimes for which [Appellant] was convicted, [Appellant] was convicted of 18 Pa.C.S.A. § 3126(a)(8), complainant less than [sixteen] years of age, which means that offense would have had to occurred before complainant’s [sixteenth] birthday on August 19, 2011 prior to the December 20, 2012 applicability date of 42 Pa.C.S.A. § 9799.10, et seq.?

Appellant’s brief at 13-14.

First, Appellant challenges his SVP status, arguing that he should not

have been subject to SVP classification, or even SORNA registration at all,

since he was not convicted of a sexually violent offense recognized under

Subchapter I. See Appellant’s brief at 27-32; see also 42 Pa.C.S. § 9799.55.

The Commonwealth agrees that Appellant would not be required to register

under Subchapter I, thus, his SVP designation would also be invalid. See

Commonwealth’s brief at 11. However, the Commonwealth contends that the

trial court properly imposed Appellant’s SVP designation and lifetime

registration requirements pursuant to Subchapter H, under which Appellant

did commit offenses subject to registration requirements.4 Id. at 11-12; see

also 42 Pa.C.S. § 9799.14. Thus, the resolution of Appellant’s claim turns on

which SORNA subchapter applies.

This Court has treated an argument that the trial court erred in requiring

a defendant to register under current Subchapter H, rather than Subchapter

4 Appellant agreed that his indecent assault convictions are both registerable offenses under Subchapter H. See Appellant’s brief at 28.

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I, as a challenge to the legality of the sentence. See Alston, supra at 528

(Pa.Super. 2019). Therefore, our standard of review is de novo, and our scope

of review is plenary. Commonwealth v. Lutz-Morrison, 143 A.3d 891, 894

(Pa. 2016).

By way of background, the iteration of SORNA that Appellant was

subjected to, known as “SORNA II,” was passed in response to

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that the

registration provisions of the prior version of SORNA were punitive in nature),

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

I”) (extending Muniz and invalidating SORNA’s provisions governing SVP

determinations). SORNA II divided sex offender registration into two

categories, depending on the date that the underlying offense occurred. SVPs

are subject to lifetime registration under both subchapters; however, the

applicability of the SVP designation depends upon the commission of an

eligible offense under the relevant subchapter.

Subchapter I applies to sexual offenders who committed an offense on

or after April 22, 1996, but before December 20, 2012. See 42 Pa.C.S.

§§ 9799.51 – 9799.75. Subchapter I contains less stringent reporting

requirements and has been held to be non-punitive. See Commonwealth v.

Lacombe, 234 A.3d 602, 626-627 (Pa. 2020) (finding Subchapter I of SORNA

II was non-punitive and did not violate the constitutional prohibition against

ex post facto laws). By contrast, Subchapter H applies to offenders who

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committed an offense on or after December 20, 2012. See 42 Pa.C.S.

§§ 9799.10 – 9799.42. Our Supreme Court has held that Subchapter H was

non-punitive as applied to SVPs; the constitutionality of the registration

requirements as applied to non-SVPs has not yet been considered by the

Supreme Court. See Butler II, supra at 987 (finding the registration

provisions of revised Subchapter H applicable to SVPs constitutional); see

also Commonwealth v. Torsilieri, 232 A.3d 567, 572 (Pa. 2020) (declining

to reach the merits of a constitutional challenge to the registration

requirements of Subchapter H and remanding for further factual development

of the record).

It is undisputed that Appellant’s offense dates straddle the effective

dates of Subchapters H and I, and that the jury did not specifically find the

date of the offenses. We have previously held that “when an appellant’s

offenses straddle the effective dates of Subchapters H and I of SORNA” and

“the jury did not specifically find the date of the offenses,” the application of

Subchapter H is unconstitutional, as it “mirrors the version of SORNA found

unconstitutional in” Muniz. See Alston, supra at 530. In those

circumstances, we found that the court should apply Subchapter I. Id.

Citing Alston, Appellant alleges that since his offense dates “straddle

the effective dates of Subchapters H and I of SORNA, he is entitled to the

lower reporting requirements of Subchapter I.” Id. at 530. We agree that

Alston is directly on point. Thus, Subchapter I should apply to Appellant.

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The Commonwealth acknowledges the precedent set by this Court in

Alston but, relying on Butler II, contends that this decision should not be

applied to SVPs. See Commonwealth’s brief at 14. The Commonwealth points

to the fact that the Butler II Court ensured that the procedure for designating

defendants as SVPs remained constitutionally permissible and that no

appellate courts have found the requirements of Subchapter H to be punitive.

Id. at 15-16 (citing Torsilieri, supra at 594, 596). Since Subchapter H’s

requirements have not been held to constitute punishment, the

Commonwealth contends that the trial court maintained the discretion to

ascertain the applicable registration requirements. Id. at 19-20. We

disagree.

The Commonwealth correctly observes that Alston relied, in part, on

this Court’s decision in Butler I, which our Supreme Court reversed in Butler

II. However, Butler II reversed Butler I on the basis that the registration,

notification, and counseling requirements of SORNA were not excessive when

applied to SVPs and, therefore, did not constitute criminal punishment. See

Butler II, supra at 993. The Butler II Court did not discuss or directly

overrule Alston’s holding regarding offenses that straddle the effective date

of current Subchapter H and I. Moreover, the Commonwealth has not cited

any case overruling Alston and our own research has revealed none. Indeed,

in our non-precedential holdings post-Butler II, we have continued applying

the critical aspects of the Alston ruling to SVP appellants. See

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Commonwealth v. Shambaugh, 2023 WL 395079 (Pa.Super. Jan. 25,

2023) (non-precedential decision at *3 n.3); Commonwealth v. Schade,

2022 WL 17756076 (Pa.Super. Dec. 19, 2022) (non-precedential decision at

*6). Thus, Alston remains controlling precedent that we are bound to follow.

See Commonwealth v. Brigidi, 6 A.3d 995, 1001 (Pa.Super. 2010)

(“precedent (stare decisis) requires” adherence by a Superior Court panel

“until it is reversed either by our Supreme Court or an en banc panel of

Superior Court”). Since it is undisputed that Appellant’s offense dates straddle

the effective dates of Subchapters H and I of SORNA, we find that, pursuant

to Alston, Appellant is entitled to the lower reporting requirements of

Subchapter I. Appellant’s offenses are not registerable offenses under

Subchapter I, therefore, Appellant should not have been required to register

or deemed an SVP. Thus, we vacate Appellant’s SVP designation and SORNA

reporting requirements.

In his second claim, Appellant challenges the imposition of the three-

year mandatory period of probation pursuant to 42 Pa.C.S. § 9718.5,

contending that he was not convicted of one of the offenses for which the

mandatory three-year period is to be imposed. See Appellant’s brief at 32-

33. The Commonwealth agrees that Appellant was not convicted of an

enumerated offense and that his three-year probationary term needs to be

vacated. See Commonwealth’s brief at 23. We concur.

Section 9718.5 provides in relevant part as follows:

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A person who is convicted in a court of this Commonwealth of an offense under section 9799.14(d) (relating to sexual offenses and tier system) shall be sentenced to a mandatory period of probation of three years consecutive to and in addition to any other lawful sentence issued by the court.

42 Pa.C.S. § 9718.5(a).

Pursuant to the plain language of the above statute, only those

convicted of offenses enumerated in subsection (d) of § 9799.14 are subject

to imposition of this mandatory period of probation. Section 9799.14(d)

enumerates the convictions that constitute “Tier III” offenses under SORNA

Subchapter H. Regardless of the offense date, none of the offenses of which

Appellant was convicted constitutes Tier III offenses pursuant to 9799.14(d).

Accordingly, Appellant should not have been subject to this mandatory

sentence and his illegal sentence must be set aside. Accordingly, in addition

to Appellant’s registration requirements and SVP designation, we also vacate

Appellant’s three-year term of probation. In all other respects, we affirm.

Judgment of sentence affirmed in part and vacated in part. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/27/2023

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