208 A.3d 143
Pa. Super. Ct.2019Background
- Appellant Jason Lippincott pleaded guilty in Jan 2013 to sexual offenses against two 14‑year‑olds (dockets 3839‑2012 and 3840‑2012) and was sentenced Aug 21, 2013 to 30–60 months’ imprisonment plus probation.
- At sentencing the Sexual Offenders Assessment Board (SOAB) recommended Appellant be designated a Sexually Violent Predator (SVP); the trial court later denied Appellant’s request for a court‑appointed independent evaluator and designated him an SVP on June 17, 2014.
- Lippincott committed all offenses by May 2012; SORNA was enacted Dec. 20, 2011 but became effective Dec. 20, 2012. Under SORNA he would be a Tier III offender subject to lifetime registration and quarterly in‑person reporting.
- After this Court’s briefing began, the Pennsylvania Supreme Court decided Commonwealth v. Muniz holding retroactive application of SORNA unconstitutional under the Ex Post Facto Clauses because SORNA is punitive.
- The Superior Court granted en banc review to resolve: whether SORNA’s enactment or effective date controls for ex post facto purposes; whether SORNA may be applied to offenses committed after enactment but before effectiveness; whether Act 10 (2018) alters the analysis; and whether Appellant’s SVP designation was valid under Butler.
- Decision: the Court held SORNA’s effective date (Dec. 20, 2012) controls for ex post facto analysis, vacated the SVP designation under Butler, and remanded for determination of appropriate (non‑SORNA) registration requirements.
Issues
| Issue | Appellant's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether SORNA’s enactment date or effective date governs ex post facto analysis for offenses committed between those dates | Use effective date: offenses committed before SORNA’s effective date cannot be subject to SORNA | Use enactment date: SORNA was enacted before some offenses, so defendants had notice and SORNA applies | Effective date governs; applying SORNA to offenses committed before Dec. 20, 2012 violates the Ex Post Facto Clauses |
| Whether applying SORNA to crimes committed after enactment but before effectiveness violates ex post facto protections | Application to such offenses is barred because effective date—not enactment—controls | SORNA’s enactment gave fair notice; thus no ex post facto violation for some offenses committed after enactment | Applying SORNA to offenses committed prior to its effective date is unconstitutional; Muniz controls |
| Whether the 2018 legislative fixes (Act 10/29) should be considered to avoid ex post facto problems | Appellant argued relief under Muniz without relying on Acts 10/29; alternative raised for briefing | Commonwealth invited consideration of Acts 10/29 as curing Muniz defects | Court declined to decide constitutionality or retroactive application of Acts 10/29 here; reserved for cases where those acts are actually applied and for Supreme Court review |
| Validity of SVP designation and denial of court‑appointed expert (procedural due process / Apprendi/Alleyne) | Trial court abused discretion by refusing appointed expert; Butler requires jury‑type proof beyond a reasonable doubt for SVP factual findings | Trial court followed statutory SVP process in effect at sentencing | Under Butler, SVP designation procedures were unconstitutional (court as factfinder using clear‑and‑convincing standard); trial court’s SVP designation vacated and remanded; Appellant’s expert claim not reached further |
Key Cases Cited
- Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality holding SORNA punitive and its retroactive application violates Ex Post Facto Clauses)
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (effective date of law controls ex post facto analysis; protections require fair warning of legal consequences)
- Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Pennsylvania SVP statutory process unconstitutional under Apprendi/Alleyne and Muniz; court factfinder/clear‑and‑convincing standard invalid)
- Commonwealth v. Horning, 193 A.3d 411 (Pa. Super. 2018) (date of offense is the critical inquiry for ex post facto challenges to SORNA application)
- Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016) (distinguished: upheld application of statutory amendment where statute expressly applied to persons sentenced after effective date)
- United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006) (federal authority supporting that increased penalties cannot be imposed for crimes completed before an increased penalty’s effective date)