Opinion
J-S53004-20 No. 633 EDA 2020 No. 634 EDA 2020
06-08-2021
COMMONWEALTH OF PENNSYLVANIA v. JASON ALLEN LIPPINCOTT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 11, 2020
In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48- CR-0003839-2012 Appeal from the Order Entered February 11, 2020
In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48- CR-0003840-2012 BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Jason Allen Lippincott, appeals from the order entered in the Court of Common Pleas of Northampton County following remand of this matter from an en banc determination by this Court. We vacate and remand for further proceedings.
In our en banc decision, this Court set forth the history of this case as follows:
On January 24, 2013, at Docket Number CP-48- CR-0003839-2012 (3839-2012), Appellant pled guilty to one count each of aggravated indecent assault and corruption of minors. These charges arose from Appellant's sexual assault of a 14-year-old female in May 2012. The same day, at Docket Number CP-48- CR-0003840-2012 (3840-2012), Appellant pled guilty to one count each of statutory sexual assault, corruption of minors, and indecent assault. These charges resulted from Appellant's sexual assault of a different 14-year-old female, which occurred on five occasions between October 2011 and April 2012.
On August 21, 2013, the trial court sentenced Appellant at both dockets to an aggregate term of 30 to 60 months of incarceration, followed by 72 months of probation. The same day, the trial court heard testimony from Dr. Veronique Valliere (Dr. Valliere) of the Sexual Offenders Assessment Board. Dr. Valliere opined that Appellant met the definition of [a Sexually Violent Predator ("SVP")]. On November 25, 2013, Appellant filed a motion in which he asked the court to appoint an expert witness to conduct an independent SVP evaluation. On December 27, 2013, the trial court held a hearing on Appellant's motion. At the conclusion of the hearing, the court denied the motion. On June 17, 2014, the trial court entered an order classifying Appellant as an SVP.
On July 10, 2014, Appellant filed a timely notice of appeal. On January 17, 2017, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On February 8, 2017, Appellant filed his Rule 1925(b) statement.
On appeal to this Court, the parties initially filed briefs on the sole issue raised in Appellant's Rule 1925(b) statement, i.e., whether the trial court erred in denying Appellant's request for a court-appointed expert to conduct an independent SVP evaluation. However, on July 19, 2017, our Supreme Court decided Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017). In Muniz , our Supreme Court held that retroactive application of the registration and reporting requirements of
SORNA violated the ex post facto clauses of the United States and Pennsylvania Constitutions. Id. at 1223. Consequently, on September 13, 2017, Appellant filed an application seeking permission to file a supplemental brief with this Court to address Muniz. We granted the application on October 23, 2017.Commonwealth v. Lippincott , 208 A.3d 143, 144-146 (Pa. Super. 2019) (en banc).
On April 20, 2018, this Court certified this case for en banc review and directed the parties to brief [additional] issues pertaining to the applicability of the Sex Offender Registration and Notification Act "SORNA"), 42 Pa.C.S. §§ 9799.10-9799.41[.] In addition to these issues, Appellant also argue[d] that with respect to his SVP evaluation, "[t]he [t]rial [c]ourt erred and abused its discretion by failing to appoint a psychological expert upon Appellant's request where Appellant was indigent and without funds to retain his own expert." Appellant's Brief at 4.
In reaching our determination, we held that SORNA, as applied to Appellant, violated the ex post facto clause and, therefore, concluded that Appellant was not required to register as a sex offender under SORNA. Lippincott , 208 A.3d at 152. Consequently, we remanded this case to the trial court to determine the appropriate registration and reporting requirements for Appellant. Id. at 152-153. In addition, we relied upon our now overturned decision in Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017), rev'd, 226 A.3d 972 (Pa. 2020), and vacated Appellant's SVP designation. Id. at 153.
The trial court presented the following additional history of the case:
Upon remand, this matter was assigned to the undersigned as the original sentencing judge retired.
Upon receiving this assignment, we scheduled this matter for a conference. After our initial conference, we entered an Order on August 6, 2019, referring [Appellant] to Pennsylvania's Sexual Offenders Assessment Board (SOAB) for purposes of obtaining an updated Sexually Violent Predator (SVP) evaluation, pursuant to Megan's Law II. Also, in our Order of August 6, 2019, we denied [Appellant's] request for the appointment of his own expert to conduct a competing Sexual Violent Predator Assessment, as the SVP assessment process and the SVP determination under Megan's Law II has been deemed to be non-punitive. See , Commonwealth v. Maldonado , 838 A.2d 710, 711 (Pa. 2003). Specifically, the Maldonado Court stated: "In Commonwealth v. Williams , 574 Pa. 487, 832 A.2d 962 (2003) ( Williams II ), this Court held that Megan's Law's registration, notification, and counseling provisions, as applied to individuals deemed sexually violent predators, do not constitute criminal punishment." Id.Trial Court Opinion, 6/29/20, at 3-4.
The SOAB submitted an SVP assessment on October 8, 2019. Counsel then agreed that they were prepared to conduct a hearing and as a result, on December 6, 2019, we held a hearing in which the only witness, Dr. Robert M. Stein, P.D., a member of the SOAB, testified with regard to his assessment.
Based on the testimony offered by Dr. Stein, on February 11, 2020, the trial court entered an order designating Appellant to be an SVP pursuant to Megan's Law II. Thereafter, Appellant filed this timely appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
A. Did the [t]rial [c]ourt err in deciding to hold a new SVP hearing and reimpose [an] SVP designation on Appellant in light of the fact that the Superior Court vacated Appellant's SVP designation without any remand directive for the [t]rial [c]ourt to hold a new SVP hearing?
B. Did the [t]rial [c]ourt err in finding that the Commonwealth met its burden in proving Appellant to be [an] SVP?
C. Did the [t]rial [c]ourt err in applying Megan's Law II and Subchapter H, 42 Pa.C.S.A. §§ 9791-9799.7 (the Megan's Law II version of Subchapter H), to Appellant?Appellants Brief at 5-6.
D. Alternatively, did the [t]rial [c]ourt err and abuse its discretion by denying Appellant's request for the appointment of a court-funded psychological expert to assist [Appellant] at his SVP hearing or, at the very least, not holding a hearing in 2019 to determine whether Appellant was indigent?
Appellant first argues that the trial court, on remand, erred in holding an SVP hearing and reinstating Appellant's SVP designation. Appellant's Brief at 24-26. Specifically, Appellant contends that the en banc Court's directive for the trial court to determine Appellant's registration and reporting requirements did not empower the trial court to hold a new SVP hearing. We agree.
Pennsylvania Rule of Appellate Procedure 2591 specifically addresses a lower court's authority on remand. It provides that upon remand from a higher court, the lower court "shall proceed in accordance with the judgment or other order of the appellate court[.]" Pa.R.A.P. 2591. Our Supreme Court reiterated this principle in Commonwealth v. Sepulveda , 144 A.3d 1270 (Pa. 2016). Therein, the Court noted that "it has long been the law in Pennsylvania that following remand, a lower court is permitted to proceed only in accordance with the remand order." Id. at 1280 n.19. "[W]here a case is remanded for a specific and limited purpose, issues not encompassed within the remand order may not be decided on remand." Id. (quoting Levy v. Senate of Pa., 94 A.3d 436, 442 (Pa. Commw. 2014)).
A trial court has an obligation to comply scrupulously, meticulously, and completely with an order of the [appellate c]ourt remanding a case to the trial court. Nigro v. Remington Arms Co., 432 Pa .Super. 60, 637 A.2d 983, 988 (1993). This Court stated in Nigro : "It is well-settled that a trial court must strictly comply with the mandate of the appellate court." We then quoted the remand order of the Supreme Court and held that the trial court exceeded the scope of the mandate of the Supreme Court by considering an issue not included in the mandate. Id. We concluded: "Accordingly, the trial court could not consider this issue on remand." Id. It is axiomatic that the court below, on remand, must comply strictly with the mandate of the higher court. Commonwealth v. Tick , Inc., 431 Pa. 420, 246 A.2d 424, 426 (1968)."Commonwealth v. Williams , 877 A.2d 471, 474-475 (Pa. Super. 2005). "It is well-settled that following remand, the trial court below must comply strictly with this Court's mandate and has no power to modify, alter, amend, set aside, or in any measure disturb or depart from this Court's decision as to any matter decided on appeal." Commonwealth v. McCauley , 199 A.3d 947, 949 n.4 (Pa. Super. 2018) (quoting Commonwealth v. Null , 186 A.3d 424, 429 (Pa. Super. 2018)).
The trial court offered the following discussion pertaining to its conclusion that the en banc Court remanded for the purpose of a new SVP proceedings:
We did not address the constitutionality of SORNA II as we believe that none of the provisions of SORNA II are implicated in this case. SORNA II is punitive and, therefore, unconstitutional as applied to [Appellant].
We carefully reviewed the remand by the Superior Court in this matter found in Commonwealth v. Lippincott , ___ A.3d ___, 2019 WL, 1612677. Specifically, the Lippincott court concluded that the increased registration penalties of SORNA are punitive in nature and that the retroactive application of SORNA was an unconstitutional violation of the ex post facto clause. Further, the Lippincott court opined that SORNA violated the United States Supreme Court holding in Alleyne v. United States. Therefore, the Lippincott court concluded that this Appellant may not be deemed to be an SVP under SORNA nor should the Appellant be required to comply with SORNA's registration requirements. Therefore, [the] Lippincott court remanded the matter back to this [c]ourt for a new SVP proceeding. We attempted to apply the appropriate legislation applicable to [Appellant's] offenses. Certainly, if the Court believed that [Appellant] was not exposed to an SVP designation, there would be no need for the Lippincott court to remand this matter back to this [c]ourt for a new SVP proceeding.Trial Court Opinion, 6/29/20, at 10-11. We disagree with the trial court's determination.
Here, at the beginning of our en banc opinion in Lippincott , we stated that "[a]fter careful consideration, we vacate the order and remand to the trial court for further proceedings consistent with this decision." Lippincott , 208 A.3d at 144-145. This Court then addressed Appellant's first two issues together, wherein
Appellant argue[d] that he should not be subject to SORNA's registration and reporting requirements. Appellant assert[ed] that although the General Assembly enacted SORNA on December 20, 2011, prior to the time he committed several of his crimes in April and May 2012, SORNA did not go into effect until December 20, 2012. Therefore, Appellant contend[ed] that the application of SORNA to his sentence violates the ex post facto clause of the United States and Pennsylvania Constitutions under Muniz.Lippincott , 208 A.3d at 146.
In addressing Appellant's claims, this Court noted that "for purposes of registration," it was reviewing SORNA's three-tier sex offender classifications. Lippincott , 208 A.3d at 146. This Court held that application of SORNA's sex offender registration and reporting requirements violated ex post facto prohibitions because it inflicted a greater punishment upon Appellant than the law in effect at the time he committed his crimes. Id. at 150. In our ultimate holding and corresponding instructions on the specific claims, we stated:
Because retroactive application of SORNA's registration and reporting requirements to Appellant violated the ex post facto clauses of the United States and Pennsylvania Constitutions, we conclude that Appellant is not required to register as a sex offender under SORNA. Accordingly, we remand this matter to the trial court to determine the appropriate registration and reporting requirements for Appellant.Id. at 152-153. Hence, following consideration of whether the sex offender registration and reporting provisions of SORNA applied to Appellant, this Court remanded the matter to the trial court with specific instructions.
Subsequently, the en banc Court addressed Appellant's SVP designation. Lippincott , 208 A.3d at 153-154. This Court held that the trial court designated Appellant to be an SVP without making the required factual findings beyond a reasonable doubt, which was inconsistent with our decision in Butler. Id. at 154. Accordingly, we vacated the designation of Appellant as an SVP. Id. Immediately thereafter, we concluded the opinion stating, "In light of this decision, we do not address Appellant's initial argument that the trial court erred in denying his request for the appointment of an expert to assist him at his SVP hearing." Id.
Our plain reading of the en banc Lippincott decision reveals that the case was remanded for a specific and limited purpose, i.e., a determination of the appropriate sex offender registration and reporting requirements applicable to Appellant. The Lippincott decision is devoid of any indication that we were remanding for further SVP proceedings. Indeed, had this Court intended for the trial court to conduct further consideration of Appellant's SVP status, we would have addressed Appellant's issue pertaining to the denial of his request for the appointment of an expert to assist with his SVP hearing.
Hence, we are constrained to conclude that in holding an SVP hearing on remand from this Court, the trial court did not proceed in accordance with the order of this Court. Rather, the trial court exceeded the scope of our mandate by considering the issue of Appellant's SVP designation. Such action by the trial court is not permitted. Williams , 877 A.2d at 474-475. Therefore, we vacate the order entered February 11, 2020, which designated Appellant to be an SVP and, again, remand this matter to the trial court to determine the appropriate sex offender registration and reporting requirements for Appellant.
In light of our disposition, we need not address Appellant's remaining claims.
Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/08/2021