MEMORANDUM BY MUSMANNO, J.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37Appeal from the Judgment of Sentence September 13, 2017 in the Court of Common Pleas of Lycoming County, Criminal Division at No(s): CP-41-CR-0000815-2016 BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Melvin Daniel Maneval ("Maneval") appeals from the judgment of sentence entered following his guilty plea to one count of aggravated indecent assault. We vacate the judgment of sentence and remand with instructions.
See 18 Pa.C.S.A. § 3125(a)(8).
On April 21, 2016, a forensic interviewer from Janet Weis Children's Hospital, Child Advocacy Center, in Sunbury, Pennsylvania, interviewed the 14-year-old victim. At that time, the victim related that Maneval, her biological uncle and adoptive father, had sexually assaulted her from the ages of seven to eleven years old. She told the interviewer that the abuse stopped after she confronted Maneval. When interviewed, Maneval admitted to the incidents.
On December 2, 2016, Maneval pled guilty to one count of aggravated indecent assault, complainant less than 16 years old. On September 12, 2017, after a hearing, the trial court found, by clear and convincing evidence, that Maneval met the criteria under the Sexual Offender Registration and Notification Act ("SORNA") to be designated as a sexually violent predator ("SVP"). That same day, the trial court sentenced Maneval to a prison term of four to ten years. Maneval filed a post-sentence Motion, which the trial court denied. Thereafter, Maneval filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
See 42 Pa.C.S.A. §§ 9799.10-9799.41.
Maneval presents the following issues for our review:
I. In light of [the Superior] Court's opinion in Commonwealth v. Butler , 173 A.3d 1212 [(Pa. Super. 2017)], should [the] trial court's determination in [its] Order dated September 13, 2017, that [Maneval] met the criteria to be classified as [an SVP,] be vacated as not complying with permissible constitutional mechanisms[?]
II. Did the trial court abuse its discretion when imposing a minimum sentence of forty-eight (48) months, representing the top-end of the [aggravated] range, for [Maneval's] plea to one (1) count of [a]ggravated [i]ndecent [a]ssault[,] where [Maneval] had no prior record despite being in his sixties, and had provided several examples demonstrating his remorse and responsibility taken for his crimes[?]
Brief for Appellant at 4.
Maneval first challenges the legality of his sentence. Brief for Appellant at 10. Maneval argues that his classification as an SVP under SORNA should be vacated in light of this Court's decision in Butler , which, applying the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), held that SORNA's registration requirements are punitive, and therefore, trial courts cannot apply SORNA's increased registration requirement to SVPs. Brief for Appellant at 10. Maneval additionally challenges recent changes enacted by the General Assembly, addressing the SVP classification procedure, such as 42 Pa.C.S.A. § 9799.23(e)(3), which, he claims, "left in place the 'clear and convincing' language as the evidentiary burden to show [that] a defendant meets the SVP designation." Brief for Appellant at 10 (citation omitted). Maneval acknowledges that the changes enacted by the General Assembly include a means by which an SVP registrant may seek relief after 25 years. Id. at 11. However, Maneval argues, the registration requirements are still punitive, despite subsequent legislative attempts to fix them. Id. Thus, Maneval asserts that his SVP designation should be vacated. Id.
Maneval points out that the decision in Butler was filed one month after his sentence was imposed. Brief for Appellant at 10.
After the trial court sentenced Maneval, our Supreme Court in Muniz held that SORNA'S registration requirements constitute criminal punishment, as opposed to a mere civil penalty, and therefore, their retroactive application violates the ex post facto clause of the U.S. Constitution. Muniz , 164 A.3d at 1192. In the wake of Muniz , this Court concluded in Butler that,
since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi [v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)] and Alleyne [v. United States , 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013)], 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....
Butler , 173 A.3d at 1217. Consequently, trial courts cannot apply SORNA's increased registration requirement to SVPs. Id. at 1217-18. In addition, this Court further concluded that 42 Pa.C.S.A. § 9799.24(e)(3) is unconstitutional, and directed that trial courts apply only the applicable tier-based registration period, as those periods apply based on the conviction itself, and not upon facts not found by the fact-finder. Butler , 173 A.3d at 1218.
This Court denied reargument in Butler on January 3, 2018. The Commonwealth has filed a petition for allowance of appeal to the Pennsylvania Supreme Court. --------
The General Assembly subsequently responded to the Muniz decision by amending SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 ("Act 10"). Act 10 amended several existing provisions of SORNA, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania recently signed new legislation striking the Act 10 amendments and reenacting new SORNA provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No. 29.
In its Opinion, the trial court agreed that Maneval's judgment of sentence should be vacated; his classification as an SVP reversed; and the case remanded for resentencing. See Trial Court Opinion, 12/5/17, at 4. We agree. In light of this Court's decision in Butler , we vacate Maneval's judgment of sentence, vacate his designation as an SVP, and remand for resentencing. However, we decline to address Maneval's challenge to the legality of resentencing him under Act 10 and its subsequent revisions. Because Maneval was not sentenced under Act 10 or its recent revisions, any ruling on its constitutionality in the instant appeal would be premature.
Maneval next claims that the trial court abused its discretion when it sentenced him to a prison term of 48 months to 120 months for aggravated indecent assault. Brief for Appellant at 11. Maneval's claim implicates the discretionary aspects of his sentence. Such a claim does not entitle an appellant to review as a matter of right. Commonwealth v. Swope , 123 A.3d 333, 337 (Pa. Super. 2015). Rather, before this Court can address such a discretionary challenge, an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Id., quoting Commonwealth v. Allen , 24 A.3d 1058, 1064 (Pa. Super. 2011).
Here, Maneval filed a post-sentence Motion raising his sentencing claim, followed by a timely Notice of Appeal to this Court. He has also included in his brief a Concise Statement of reasons relied upon for allowance of appeal, in accordance with Pa.R.A.P. 2119(f). We therefore next determine whether Maneval has raised a substantial question that his sentence is not appropriate under the Sentencing Code.
Maneval acknowledges that he was initially charged with seven counts related to his sexual abuse of his adoptive daughter, while she was between the ages of seven and eleven. Brief for Appellant at 7. Maneval states that the facts, "accepted by the judge on the date of the guilty plea, showed that [Maneval], on at least one occasion, over a roughly four[-]year[-]period, did digitally penetrate the vagina of his adopted daughter[,] while she was between the ages of seven and eleven." Id. Maneval acknowledges that although there were estimated to be between fourteen and seventeen incidents, he pled guilty to only one count of aggravated indecent assault. Id. However, Maneval claims that the sentence is excessive in light of the mitigating evidence, including testimony that his likelihood of re-offense was minimal, and that he was remorseful and accepted responsibility for his actions. Id. at 8.
This Court has concluded that a substantial question was presented by an excessiveness claim combined with allegations that the trial court failed to consider mitigating factors. Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014). Accordingly, we will review the merits of Maneval's claim.
Our standard of review of the discretionary aspects of a sentence is as follows:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle , 107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted).
In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.
Commonwealth v. Colon , 102 A.3d 1033, 1043 (Pa. Super. 2014).
Maneval argues that his minimum sentence of 48 months is at the top end of the aggravated guidelines range, and his maximum sentence of 120 months is the statutory maximum penalty for the offense. Brief for Appellant at 12. Maneval contends that a sentence in the standard range of the guidelines is more appropriate. Id. at 13. In support, Maneval directs our attention to testimony by the Sexual Offenders Assessment Board representative, Townsend Velkoff, that offenders in Maneval's age group (63 years old) pose a diminished risk for re-offense. Id. (citing N.T., 9/13/17, at 19-20). Maneval further directs our attention to the testimony of Dr. Scott Scotilla, who confirmed that individuals similarly situated to Maneval pose a diminished risk of re-offense. Id. at 13.
Maneval also argues that, considering the gravity of the offense and the risk to the community, a sentence at the middle to upper end of the standard range is more appropriate. Id. According to Maneval, it was unreasonable for the trial court to consider the number of times that the conduct occurred over the four-year time span as a factor in imposing an aggravated-range sentence. Id. Finally, Maneval contends his "history, characteristic, and rehabilitative needs ... supports a middle of the standard range sentence." Id. at 14 (emphasis in original).
In its Opinion, the trial court addressed Maneval's claim and concluded that it lacks merit. See Trial Court Opinion, 12/5/17, at 4-7. We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on this basis as to Maneval's second claim. See id.
Judgment of sentence vacated. Case remanded with instructions. Superior Court jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 08/31/2018
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