On October 31, 2017, the PA Superior Court (in Commonwealth v. Butler, 2017 PA Super 344) ruled that the methodology or “framework” used to designate individuals as Sexually Violent Predators (SVPs) under the State’s SORNA laws is unconstitutional.
Pennsylvania law (42 Pa.C.S.§ 9799.24) requires PA courts to order anyone convicted of a sexually violent offense (SVO) to be assessed by the Sexual Offenders Assessment Board (SOAB) in order to determine whether the individual should be classified as a sexually violent predator. 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.” If an individual is deemed an SVO, he or she is required to register as a sex offender for life.
In Commonwealth v Butler, Appellant was required to register as a sex offender for a 15-year period based upon his conviction; however, as a result of being deemed an SVO he was subsequently required to register for life. In this case, the PA Superior Court analyzed this “framework” with consideration of Commonwealth v. Muniz, 164 A.3d 1189, in which case the PA Supreme Court ruled that SORNA’s requirements are “punitive,” i.e., they are to be considered punishment.
“Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.”
“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.”
In essence, because designating someone as a SVP under PA’s laws automatically increases his or her minimum registration period to lifetime (assuming the person is not already Tier III), this action creates added punishment. Therefore, this determination must be made by the trial fact-finder (judge or jury), AND must be proved “beyond a reasonable doubt”, not via “clear and convincing evidence,” which is the burden of proof in civil cases.
In light of its findings, the PA Superior Court forbade trial courts from designating anyone as an SVP, and from holding SVP hearings “until our General Assembly enacts a constitutional designation mechanism.”
This ruling is applicable to individuals who were designated as Sexually Violent Predators under SORNA laws (enacted December 20, 2012), AND whose registration period was increased to lifetime as a result of the designation.
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