Com. v. White, G.

• Court: Superior Court of Pennsylvania
• Decided: February 6, 2018
• Docket: 1669 EDA 2017
• Status: Unpublished

Opinion

J-S83042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GUPREE WHITE : : Appellant : No. 1669 EDA 2017

Appeal from the Order January 27, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004033-2015

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED FEBRUARY 06, 2018

Appellant, Gupree White, appeals from the order entered in the

Chester County Court of Common Pleas, which classified Appellant as a

sexually violent predator (“SVP”) pursuant to 42 Pa.C.S.A. § 9799.24. On

November 13, 2015, the Commonwealth charged Appellant with statutory

sexual assault, corruption of minors, and related offenses, in connection with

an incident between Appellant and a fifteen-year-old female. Appellant

entered a negotiated guilty plea to corruption of minors on April 22, 2016.

The same day, the court ordered Appellant to undergo assessment with the

Sexual Offender Assessment Board (“SOAB”). After a hearing, the court

imposed SVP status on Appellant on January 27, 2017. On February 17,

2017, Appellant filed a nunc pro tunc motion for reconsideration of the

imposition of SVP status. The court denied relief on April 25, 2017. J-S83042-17

Appellant timely filed a notice of appeal on May 25, 2017. On May 26, 2017,

the court ordered Appellant to file a Rule 1925(b) statement, and Appellant

timely complied on June 16, 2017.

“[C]hallenges to an illegal sentence can never be waived and may be

reviewed sua sponte by this Court. An illegal sentence must be vacated.”

Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.Super. 2003) (en

banc). Recently, the Pennsylvania Supreme Court held that the registration

requirements under SORNA constitute criminal punishment.

Commonwealth v. Muniz, ___ Pa. ___, 164 A.3d 1189 (2017). In light of

Muniz, this Court held: “[U]nder Apprendi[1] and Alleyne[2], a factual

finding, such as whether a defendant has a mental abnormality or

personality disorder that makes him…likely to engage in predatory sexually

violent offenses, that increases the length of registration must be found

beyond a reasonable doubt by the chosen fact-finder.” Commonwealth v.

Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017) (internal quotations and

citations omitted). This Court further held: “Section 9799.24(e)(3) of

SORNA violates the federal and state constitutions because it increases the

criminal penalty to which a defendant is exposed without the chosen fact-

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1 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 466, 147 L.Ed.2d 435 (2000).

2 Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

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finder making the necessary factual findings beyond a reasonable doubt.”

Id. at 1218. The Butler Court concluded that trial courts can no longer

designate convicted defendants as SVPs or hold SVP hearings, “until [the]

General Assembly enacts a constitutional designation mechanism.” Id.

Instantly, Appellant entered a negotiated guilty plea to corruption of

minors, and the court imposed SVP status on January 27, 2017. Appellant

filed a nunc pro tunc motion for reconsideration of the SVP designation, and

the court denied relief on April 25, 2017. On appeal, Appellant challenges

only the court’s imposition of SVP status. While Appellant’s appeal was

pending, this Court decided Butler on October 31, 2017, which deemed

unconstitutional the current mechanism for imposition of SVP status used in

the present case and stated trial courts cannot impose SVP status in that

manner. See Butler, supra. In light of Muniz and Butler, Appellant’s SVP

status constitutes an illegal sentence, which we can review sua sponte.

Therefore, we vacate Appellant’s SVP status and remand to the trial court to

issue a revised notice to Appellant pursuant to 42 Pa.C.S.A. § 9799.23

(governing reporting requirements for sex offenders).

Order vacated; case remanded with instructions. Jurisdiction is

relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/6/18

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