Commonwealth of PA v. Jason Austin Zimmerman No. CP-38-CR-0001960-2015

Criminal Action-Law-Involuntary Deviate Sexual Intercourse-Child Victim-Sexually Violent Predator-Sufficiency of the Evidence-Burden of Proof-Retroactive Applicability

Defendant, who pled guilty to two (2) counts of Involuntary Deviate Sexual Intercourse relating to sexual abuse perpetrated upon a child when Defendant was a minor, was found to meet the criteria to be a sexually violent predator pursuant to the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 97900.10 et seq., and was sentenced to three (3) to ten (10) years’ imprisonment as a result of his convictions, filed a Post Sentence Motion asserting that evidence was insufficient to support his assessment as a sexually violent predator and application of the registration requirements of SORNA upon him was improper because the acts upon which his convictions were based occurred prior to the enactment of the current version of SORNA.

1. Title 42 Pa.C.S. § 9799.12 defines a sexually violent predator as an individual convicted of an offense including Involuntary Deviate Sexual Intercourse who is determined to be a sexually violent predator due to a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses.
2. The Commonwealth has the burden of establishing that a defendant is a sexually violent predator by clear and convincing evidence.
3. In light of the fact that Defendant pled guilty to counts of Involuntary Deviate Sexual Intercourse and testimony was presented by a member of the Sexual Offenders Assessment Board who is a psychologist after assessment that Defendant meets the diagnosis for Other Specified Paraphilic Disorder of Non-Consent that is indicative of a six (6) month or more period of a pattern of nonconsenting sexual behavior with the offenses in question occurring over several years and Defendant demonstrated predatory behavior through multiple acts of penetrative sexual assault that served to promote a sexually victimizing relationship over several years, the Commonwealth established by clear and convincing evidence that Defendant met the criteria to be designated a sexually violent predator.
4. Title 42 Pa.C.S. § 9799.13(1) provides that SORNA’s registration requirements apply to a defendant who, on or after the effective date of the Act, is convicted of a sexually violent offense and who has residence or is a transient in the Commonwealth.
5. The Pennsylvania Supreme Court recently held in Commonwealth v. Muniz, 47 MAP 2016 (Pa. 2017), that retroactive application of certain provisions of SORNA is unconstitutional, as the registration requirements constitute punishment notwithstanding the General Assembly’s identification of the requirements as nonpunitive, and retroactive application of the registration requirements violates both the federal and Commonwealth constitutional ex post facto clauses.
6. Since the decision in Muniz may have direct implication upon the claimant’s judgment of sentence, the portion of Defendant’s sentence requiring compliance with SORNA is vacated with the parties afforded thirty (30) days to lodge memoranda regarding the applicability of SORNA to Defendant in light of Muniz with resentencing to follow.
L.C.C.C.P. No. CP-38-CR-0001960-2015, Opinion by Samuel A. Kline, Judge, August 29, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-1960-2015
COMMONWEALTH OF PENNSYLVANIA
V.
JASON AUSTIN ZIMMERMAN
ORDER
AND NOW, to wit, this 29th day of August, 2017, upon consideration of Defendant’s Post-Sentence Motions and the Commonwealth’s’ response thereto, Defendant’s Post-Sentence Motion are hereby GRANTED.
We further direct that the parties provide briefs or memoranda of law regarding the applicability of SORNA to Defendant in this matter, in light of the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, ___ A.3d ___ No. 47 MAP (Pa. July 19, 2017), within thirty (30) days of the date of this Order.
BY THE COURT

SAMUEL A. KLINE, J.
APPEARANCES:
Megan Ryland-Tanner, Esq. for the Commonwealth
Brian L. Deiderick, Esq. for Defendant

OPINION, KLINE, J., AUGUST 28, 2017.
Before this Court is Defendant’s Post-Sentence Motion seeking resentencing. For the reasons listed herein, Defendant’s Motion is granted as specified below.
FACTS AND PROCEDURAL HISTORY
Defendant was charged with five Counts of Involuntary Deviate Sexual Intercourse (IDSI) 1 and five Counts of Indecent Assault 2 relating to repeated incidents of sexual abuse that occurred between 1991 and 1995 3. On July 19, 2016, Defendant entered into a negotiated plea agreement by which he pled guilty to Counts 1 and 2 and, on motion of the Commonwealth, the remaining charges were nol prossed. Defendant was then referred to the Sexual Offenders Assessment Board (“SOAB”) to undergo an evaluation pursuant to 42 Pa.C.S. § 9799.24 of the Sexual Offender Registration and Notification Act (“SORNA”).
On April 17, 2017, this Court held a hearing to determine whether Defendant should be classified as a Sexually Violent Predator (“SVP”). At the SVP hearing, Defense Counsel moved to dismiss the Commonwealth’s motion seeking to classify Defendant as an SVP on the argument that the offensive acts occurred prior to the enactment of Meghan’s Law (SORNA’s predecessor statute). The Court denied Defense Counsel’s motion stating that the language of the statute indicates applicability at the time of conviction and Defendant’s guilty plea serves as a conviction to the effect of the statute. 4
Dr. Robert M. Stein, a licensed Psychologist and member of the SOAB, performed the assessment of Defendant and provided a report detailing his conclusions. During the SVP hearing, the Commonwealth called Dr. Stein as a witness regarding his assessment and report. Dr. Stein noted that Defendant exercised his right not to participate, but that he was still able to make a determination based on a review of the file, including the board investigator’s report, the Court’s Order for assessment, the responses from Defense Counsel, the Criminal Complaint, the Affidavit of Probable Cause and report from Lebanon County Detective Bureau, records from the Department of Corrections and the Pennsylvania Board of Parole and Probation and prior records from SOAB. Notes of Testimony of April 27, 2017 Hearing (N.T.) at 14. Dr. Stein then proceeded to testify regarding the fifteen enumerated factors under 42 Pa.C.S. § 9799.24(b) (“Section 9799.24(b) Factors”) examined during assessment. (N.T. 14-18). Dr. Stein concluded that the nature of the contact with the victim, the age of the victim, Defendant’s criminal history, Defendant’s history of participation in a sex offender program and Defendant’s age at the time of the offensive incidents were all significant factors. (N.T. 14-16). Defendant’s multiple mental health diagnosis were also considered important as conditions that could possibly aggravate the paraphilic conduct of Defendant. (N.T. 17). Statistical factors including multiple sex offenses with sex offense recidivism, having a male victim and a history of non-contact sex offenses were aspects related to increased risk. (N.T. 17-18).
Dr. Stein then discussed whether the Defendant was suffering from a mental abnormality or personality disorder. (N.T. 18). Dr. Stein found sufficient evidence for Other Specified Paraphilic Disorder of Non-Consent. (N.T. 18). Dr. Stein explained that a diagnosis of paraphilia is considered to be non-curable, but is potentially containable through treatment. (N.T. 20).
Next, Dr. Stein testified that Defendant’s “[m]ultiple acts of . . . penetrative sexual assault, served to promote a sexually victimizing relationship over several years” indicating predatory behavior. (N.T. 21). Furthermore, Dr. Stein opined that Defendant’s history of sexual offenses, including prior criminal offenses, provided appropriate evidence that Defendant was likely to re-offend in the future. (N.T. 22).
After review of all the information and evidence provided, Dr. Stein concluded that it was his opinion, within a reasonable degree of professional certainty, that Defendant met the criteria to be labelled a sexually violent predator. (N.T. 23-24). Defendant provided no rebuttal testimony at the SVP hearing.
At the conclusion of the SVP hearing, upon consideration of Dr. Stein’s testimony and report, and deeming his testimony to be credible and consistent with his background, research and experience, this Court found that the Commonwealth had proven Defendant to be a sexually violent predator as defined within SORNA and thus, subject to the registration requirements therein. In accordance with the plea agreement, this Court then sentenced Defendant to three to ten years’ incarceration in a state correctional facility.
On May 1, 2017, Defendant filed his Post-Sentence Motion for Resentencing, alleging that this Court erred in finding Defendant to be a Sexually Violent Predator. On May 2, 2017, this Court filed a Post Sentence Scheduling Order directing the parties to file briefs in support of their respective positions. The Commonwealth filed its response on July 6, 2017. Defendant did not file a brief. This matter is thus before us and ripe for disposition.
DISCUSSION
Defendant failed to provide a brief, but stated in his Motion that he “alleges the trial court erred in finding Defendant to be a Sexually Violent Predator.” (Def.’s Mot. ¶ 5). We therefore interpret Defendant’s Motion as one challenging the sufficiency of the evidence.
Section 9799.12 of SORNA provides the definition, in part, of a “Sexually violent predator” as “an individual convicted of an offense specified in: . . . (3) section 9799.14(d) . . . who, on or after the effective date of this subchapter, is determined to be a sexually violent predator under section 9799.24 (relating to assessments) due to a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses. 42 Pa.C.S.A. § 9799.12. Our Superior Court has stated that:
“To deem an individual a sexually violent predator, the Commonwealth must first show [the individual] ‘has been convicted of a sexually violent offense as set forth in [section 9799.14]….’ ” Commonwealth v. Askew, 907 A.2d 624, 629 (Pa.Super.2006), appeal denied, 591 Pa. 709, 919 A.2d 954 (2007). See also 42 Pa.C.S.A. § 9799.12. “Secondly, the Commonwealth must show that the individual has ‘a mental abnormality or personality disorder that makes [him] likely to engage in predatory sexually violent offenses.’ ” Askew, supra. When the Commonwealth meets this burden, the trial court then makes the final determination on the defendant’s status as an SVP. Kopicz, supra.
Com. v. Prendes, 97 A.3d 337, 357–58 (Pa. Super. 2014). Furthermore, “SVP status . . . does not require proof beyond a reasonable doubt; the court decides SVP status upon a show of clear and convincing evidence that the offender is, in fact, an SVP.” Id. at 358.
Defendant pled guilty to IDSI. Section 9799.14(d)(4) specifies that IDSI is a Tier III sexual offense and, as earlier referenced, subject to a determination as an SVP. Therefore, the first prong of an SVP determination is met in this matter.
We next move to the second prong whereby Defendant must, by clear and convincing evidence, be deemed to have “a mental abnormality or personality disorder that makes [him] likely to engage in predatory sexual violent offenses.” Prendes, supra at 358. A mental abnormality is defined as “[a] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” 42 Pa.C.S.A. § 9799.12.
42 Pa.C.S. § 9799.24 provides the procedure for an assessment of an individual convicted of a sexually violent offense. Fifteen factors to be examined as part of the assessment are set forth in the statue. However, we note that:
with regard to the various assessment factors listed in Section [9799.24], there is no statutory requirement that all of them or any particular number of them be present or absent in order to support an SVP designation. The factors are not a checklist with each one weighing in some necessary fashion for or against SVP designation. Rather, the presence or absence of one or more factors might simply suggest the presence or absence of one or more particular types of mental abnormalities.
Thus, while the Board is to examine all the factors listed under Section [9799.24], the Commonwealth does not have to show that any certain factor is present or absent in a particular case. Rather, the question for the SVP court is whether the Commonwealth’s evidence, including the Board’s assessment, shows that the person convicted of a sexually violent offense has a mental abnormality or disorder making that person likely to engage in predatory sexually violent offenses. Having conducted a hearing and considered the evidence presented to it, the court then decides whether a defendant is to be designated an SVP and thus made subject to the registration requirements.
Com. v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008) (internal citations omitted).
In this matter, Dr. Stein provided both his report and testimony before this Court at the SVP hearing. During his testimony, Dr. Stein first addressed the enumerated statutory factors concluding that some of the factors were relevant in the case of Defendant. Dr. Stein then opined that there was “sufficient evidence for Other Specified Paraphilic Disorder of Non-Consent.” (N.T. 18). Dr. Stein explained that this diagnosis is indicative of “a 6 month or more period of a pattern of nonconsenting sexual behavior” and that such “is more than met in this case with the instant offense which took place over several years and additional sex offenses in the record.” Id. Moreover, Dr. Stein found that Defendant demonstrated predatory behavior through “multiple acts of . . . penetrative sexual assault” that “served to promote a sexually victimizing relationship over several years.” Id. at 21.
Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, we find that the Commonwealth offered sufficient evidence to support Defendant’s designation as an SVP. Accordingly, Defendant is not entitled to relief on this claim.
Finally, we address Defendant’s contention, raised during the SVP hearing, that because the incidents occurred prior to the SORNA (and prior to the enactment of Meghan’s Law), that he should not therefore be subject to the registration requirements. This issue was raised on motion by Defense counsel at the SVP hearing and denied by this Court and is therefore preserved for review. The Court’s ruling was based on the text of the statute, which states that SORNA is applicable to “[a]n individual who, on or after the effective date of this section, is convicted of a sexually violent offense and who has a residence within this Commonwealth or is a transient.” 42 PA.C.S.A. § 9799.13(1). While the incidents from which the charges in this matter flow occurred prior to the enactment of Meghan’s Law, Defendant’s plea and this Court’s acceptance of such, represents a conviction. See Com. v. Moser, 999 A.2d 602, 606 (Pa.Super. 2010). Therefore, Defendant is subject to the provisions of SORNA. This conclusion was uncontroverted by the case law and precedent existing at the time of the SVP hearing.
Our Supreme Court recently decided the case of Commonwealth v. Muniz, ___ A.3d ___, No. 47 MAP 2016 (Pa. July 19, 2017) (attached hereto), in which the Court found that retroactive application of certain provisions under SORNA were unconstitutional as applied to the defendant in that case. In Muniz, the defendant was convicted in February of 2007 of two counts of indecent assault and was scheduled for sentencing on May 8, 2007, at which time [he] would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten years pursuant to the then-effective Meghan’s Law III.” Id. at 1. However, the defendant failed to appear and was later apprehended in 2014 in Rhode Island. In the meantime, the General Assembly had passed SORNA to replace Megan’s Law III. 42 Pa.C.S. § 9795.1 (expired). Upon his return and sentencing, the defendant was thus subject to the newly-effective lifetime registration requirements under SORNA’s tiered system of offenses. The trial court denied the defendant’s post-sentence motion seeking applicability of the ten-year registration period and the defendant appealed. The Superior Court, relying upon the decision in Commonwealth v. Perez, 97 A.3d 747 (Pa.Super. 2014), likewise affirmed the trial court’s ruling.
The Supreme Court granted review of the matter upon the question of whether retroactive application of 42 Pa.C.S. § 9799.14 violates the prohibition against ex post facto laws contained in both the Federal Constitution and the Pennsylvania Constitution. After reviewing the history of sex offender laws in the Commonwealth prior to, and including SORNA, as well as describing the purpose and analysis of ex post facto prohibition, the Court then turned to its analysis. As to the defendant’s federal ex post facto claim, the Court utilized the two part analysis used under the U.S. Supreme Court case of Smith v. Doe, 538 U.S. 84 (2003) and the Pennsylvania Supreme Court case of Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) . The Court first found that the General Assembly did not intend SORNA to serve as punishment, but instead as a regulatory, civil scheme. The Court next performed an analysis of the Mendoza-Martinez factors in order to determine whether SORNA is “sufficiently punitive in effect to overcome the General Assembly’s nonpunitive purpose.” Muniz, supra at 16. After balancing the factors, the Court found SORNA to be punitive in effect, notwithstanding the General Assembly’s intent. Id. at 23.
The Court then provided further analysis on the defendant’s state ex post facto claims utilizing the four factors presented for such analysis under Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) . Finding that “SORNA’s registration and online publication provisions place a unique burden on the right to reputation, which is particularly protected in Pennsylvania,” and having already concluded that SORNA’s registration requirements violated the federal ex post facto clause, the Court determined that the registration requirements were likewise violative of Pennsylvania’s ex post facto clause.
The Court reversed the Superior Court’s ruling holding that “1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions to defendant violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.” Id. The Court then vacated the portion of the defendant’s sentence requiring compliance with SORNA.
In the matter sub judice, as previously explained, the issue of whether SORNA is applicable to Defendant was raised at the SVP hearing and, based on the case law and precedent at that time, this Court denied the motion. However, we recognize that the Supreme Court’s decision in Muniz may have direct implications upon this matter. Therefore, we are compelled to grant Defendant’s Post Sentence Motion and vacate the portion of Defendant’s sentence requiring compliance with SORNA. We further direct that the parties provide briefs or memoranda of law in support of their respective positions regarding the applicability of SORNA to Defendant, in light of the decision in Muniz, within thirty days, at which time this matter may be relisted for resentencing as necessary. We will issue an Order consistent with the foregoing.

1 18 Pa.C.S. § 3123(a)(5)

2 18 Pa.C.S. § 3126(a)(1)

3 At the time of incidents related to the charges, Defendant was fifteen to eighteen years old and the victim was six to ten years old.

4 42 Pa.C.S. § 9799.13, entitled “Applicability” states that the registration requirements apply to “an individual who, on or after the effective date of this section, is convicted of a sexually violent offense and who has residence within this Commonwealth or is a transient.”