Com. v. Glasgow, T.
This text of Com. v. Glasgow, T. (Com. v. Glasgow, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S84030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TAVEN JAQUIN GLASGOW : : Appellant : No. 618 MDA 2017
Appeal from the Order Entered March 8, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0006177-2014
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 13, 2018
Taven Jaquin Glasgow appeals from the order, entered in the Court of
Common Pleas of Dauphin County, finding Glasgow to be a sexually violent
predator under Pennsylvania’s Sex Offender Registration and Notification Act
(SORNA), 42 Pa.C.S. §§ 9799.10–9799.41. We affirm in part, reverse in part,
and remand.
Glasgow was convicted following a plea of nolo contendere1 to two
counts each of involuntary deviate sexual intercourse (IDSI),2 unlawful
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1 The term “convicted” includes conviction by entry of plea of guilty or nolo contendere. See 42 Pa.C.S. § 9799.12.
2 18 Pa.C.S. § 3123(b). J-S84030-17
contact with a minor,3 incest,4 indecent assault (victim under age 13),5 and
corruption of minors.6 The victims, Glasgow’s two half-brothers, were ages
three and seven when the abuse began; the sexual abuse continued from
2009 to 2012, until the victims were ages five and nine, respectively. During
that time, Glasgow was 16 to 18 years old.
The court sentenced Glasgow to an aggregate term of imprisonment of
one to two years, followed by a term of ten years’ probation. The
Commonwealth filed a notice of intent to have Glasgow classified as a sexually
violent predator (SVP), and, following a hearing on March 8, 2017 before the
Honorable John F. Cherry, the court determined Glasgow was a SVP.7
On April 6, 2017, Glasgow filed a notice of appeal from the SVP
determination. On May 1, 2017, he filed a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, in which he raised the following
claim: whether the court’s classification of Glasgow as an SVP was
3 18 Pa.C.S. § 6318(a)(6).
4 18 Pa.C.S. § 4302(b)(1).
5 18 Pa.C.S. § 3126(a)(7).
6 18 Pa.C.S. § 6301(a)(1)(ii).
7 Under SORNA, sexual offenses are classified in a three-tiered system. 42 Pa.C.S. § 9979.14(a)-(d). Individuals convicted of these offenses are required to register with the Pennsylvania State Police as follows: for a Tier I offense – 15 years; for a Tier II offense- 25 years; for a Tier III offense- lifetime. 42 Pa.C.S. § 9799.15(a). An SVP requires lifetime registration. See 42 Pa.C.S. §§ 9799.14, 9799.15(d). See also 42 Pa.C.S. § 9799.15(a)(6) (“A sexually violent predator shall register for the life of the individual.”).
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unsupported by the evidence where the evidence did not support the expert’s
opinion that he had a mental abnormality and antisocial personality disorder
based upon the diagnosis criteria set forth in the DSM-IV? In his brief on
appeal, Glasgow phrases his issue somewhat differently, stating that the
Commonwealth’s expert did not perform an independent risk assessment as
to the likelihood of re-offense and, instead, concluded essentially that “all
persons who have committed [] sexual offenses and who are diagnosed with
pedophilic disorder, ipso facto, are “likely” to reoffend[.]” Appellant’s Brief,
at 5. This discrepancy, however, is immaterial because, while this case was
on appeal, this Court decided Commonwealth v. Butler, 173 A.3d 1212,
1218 (Pa. Super. 2017), holding section 9799.24(e)(3) of SORNA
unconstitutional as it “specifies clear and convincing evidence as the burden
of proof required to designate a convicted defendant as an SVP.” We,
therefore, are compelled to sua sponte reverse an illegal aspect of Glasgow’s
sentence, namely, the March 8, 2017 order finding him an SVP. See
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding registration
requirements under SORNA were not civil in nature, but punitive).
Under SORNA, an individual convicted of a sexually violent offense, such
as sexually corrupting minors in this case, must be evaluated by the Sexual
Offenders Assessment Board (“SOAB”). 42 Pa.C.S. § 9799.24(a). The SOAB
conducts a 15–factor analysis to determine if the individual should be
designated an SVP, 42 Pa.C.S. § 9799.24(b), then submits a report to the
prosecuting authority. 42 Pa.C.S. § 9799.24(d). Upon praecipe by the
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prosecuting authority, the court schedules an SVP hearing. 42 Pa.C.S. §
9799.24(e)(1). At the conclusion of that hearing, “the court [determines]
whether the Commonwealth has proved by clear and convincing evidence that
the individual is [an SVP].” 42 Pa.C.S. § 9799.24(e)(3) (emphasis added). It
is this last step in the process, section 9799.24(e)(3), that Butler found
unconstitutional in light of Muniz, supra. See Alleyne v. United States,
570 U.S. 99 (2013) (any fact that increases penalty for crime is element that
must be submitted to jury and found beyond reasonable doubt); Apprendi v.
New Jersey, 530 U.S. 466 (2000); cf. Commonwealth v. Lee, 935 A.2d
865, 880 (Pa. 2007) (if registration requirements are punishment, then facts
leading to registration requirements need to be found by fact-finder beyond
reasonable doubt). The Butler Court stated:
[O]ur Supreme Court’s holding that registration requirements under SORNA constitute a form of criminal punishment is dispositive of the issue presented in this case. In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses [,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder. Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP. Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny. Accordingly, we are constrained to hold that section 9799.24(e)(3) is unconstitutional and [the a]ppellant's judgment of sentence, to the extent it required him to register as an SVP for life, was illegal. . . . Moreover, we are constrained to hold trial courts cannot designate convicted
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defendants SVPs (nor may they hold SVP hearings) until our General Assembly enacts a constitutional designation mechanism. Instead, trial courts must notify a defendant that he or she is required to register for 15 years if he or she is convicted of a Tier I sexual offense, 25 years if he or she is convicted of a Tier II sexual offense, or life if he or she is convicted of a Tier III sexual offense.
Id. at 1218 (emphasis added).
The trial court here conducted an SVP hearing and designated Glasgow
to be an SVP without making that necessary factual finding beyond a
reasonable doubt. Accordingly, pursuant to Butler, we are constrained to
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