The Pennsylvania Superior Court has decided the case Commonwealth v. Alston. This decision reaffirms previous decisions that held that Sexually Violent Predator hearings under the original Sex Offender Registration and Notification Act (“SORNA”) are unconstitutional. Further, in this case, the Superior Court ruled that where the defendant’s crimes could have occurred both before and after the enactment of SORNA and the jury has not made a specific determination as to the date of the offense, the defendant should be required to register under the less onerous version of the statute.  

Commonwealth v. Alston

The defendant was accused of sexually assaulting the complainant from May 28, 2009 to May 1, 2013. The complainant was eleven years old when the abuse began. The complainant’s sister eventually discovered the abuse and notified the police. After a three-day jury trial that began on February 10, 2016, the defendant was found guilty of a multitude of charges including: statutory sexual assault, rape, involuntary deviate sexual intercourse (“IDSI”), indecent assault, criminal use of a communication facility, unlawful contact with a minor and corruption of minors. Significantly, the jury did not specifically determine the dates on which the defendant committed these offenses.

The trial court sentenced the defendant to an aggregate term of 15 to 40 years’ incarceration. Additionally, because rape of a child and IDSI with a person less than 16 years old are both Tier III offenses under SORNA, the defendant was required to register as a sex offender for the rest of his life. The trial court also held a Sexually Violent Predator hearing and determined that the defendant was in fact a Sexually Violent Predator and therefore subject to lifetime reporting requirements.

The defendant eventually appealed, and on appeal he raised one issue: whether the trial court improperly imposed a lifetime reporting requirement under the original SORNA statute following the SVP hearing?

What is an SVP?

A SVP is a sex offender who is deemed to have a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. After someone is convicted of sexually violent offense in Pennsylvania, the court can order a SVP assessment to be conducted by the Sex Offender Assessment Board “SOAB”). The SOAB publishes its findings to the parties, and the court will then hold a hearing to determine whether the person is an SVP. It is noteworthy that the standard proof for these hearings is not beyond a reasonable doubt (the standard for criminal trials). Instead, it is the clear and convincing evidence standard, which is a much lower standard. The original SORNA statute allowed the judge to make the SVP determination instead of a jury, and the amended SORNA statute retains this defect.

What Happens if You Are Classified as an SVP?

If someone is deemed an SVP, the person is required to register with the Pennsylvania State Police for the rest of their life. Additionally, the individual is required to participate in monthly (at a minimum) sex offender counseling from a provider that is approved by the SOAB. Also, the local authorities will notify the community and provide the SVP’s name and address. This means that someone who was convicted of a Tier I Offense which may only require 15 years of registration could be required to register for life if they are found to be a Sexually Violent Predator.

Why Were SVP Hearings Ruled Unconstitutional?

In Commonwealth v. Butler, the Pennsylvania Superior Court held that SVP hearings as provided for by SORNA are unconstitutional because they expose defendants to an enhanced criminal penalty without any requirement that the jury make the necessary findings beyond a reasonable doubt. Because the SVP procedures permitted the trial judge to make the ruling instead of a jury and because they used a lesser standard, the Butler Court found that the procedures were unconstitutional. The Butler Court held that the trial courts can no longer designate convicted defendants as Sexually Violent Predators or hold SVP hearings “until the General Assembly enacts a constitutional designation mechanism.”

Is There a New Version of SORNA?

Yes. In February of 2018, Governor Tom Wolf signed into law Act 10. Act 10 amended several provisions of SORNA and added new sections. Notably, Act 10’s Subchapters H and I addressed reporting requirements for sex offenders that committed their crimes on or after April 22, 1996, but before December 20, 2012. Subchapter I has less stringent reporting requirements than Subchapter H. Notably, Act 10 retained the “clear and convincing” standard for SVP hearings and there was not a “constitutional designation mechanism” in the statute either. Challenges to the new statute are ongoing. The Commonwealth and legislature, however, are defending the statute by arguing that because the reporting requirements are somewhat less stringent, the SVP designation no longer constitutes punishment. If it does not constitute criminal punishment, then the facts do not need to be found by a jury using the beyond a reasonable doubt standard. This argument seems unlikely to prevail, but it is always difficult to predict what the courts will do in these cases.  

The Pennsylvania Superior Court’s Decision

The Court held that the defendant should not have been deemed an SVP because the procedures for finding that someone is an SVP under the old version of SORNA remain unconstitutional and because the jury did not make a specific finding as to the dates on which the illegal sexual conduct occurred. Because the defendant’s alleged actions could have occurred both before and after SORNA’s effective date and the jury did not make a specific finding, the defendant was entitled to the benefit of the doubt because any ambiguity in criminal law generally must be resolved in favor of the defendant. Therefore, the Court ruled that he should be required to register under the newly-created Subchapter I of the amended SORNA statute. Therefore, the case was remanded to the trial court for the defendant to be advised of his new registration requirements and raise any challenges to those requirements. This opinion did not address the constitutionality of the amended SORNA statute, and that litigation is ongoing at this time.

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