Commonwealth v. Lippincott

• Decision Date: 12 April 2022
• Docket Number: 633 EDA 2020, No. 634 EDA 2020
• Parties: COMMONWEALTH of Pennsylvania v. Jason Allen LIPPINCOTT, Appellant Commonwealth of Pennsylvania v. Jason Allen Lippincott, Appellant
• Court: Pennsylvania Superior Court

273 A.3d 1157

COMMONWEALTH of Pennsylvania

v.Jason Allen LIPPINCOTT, Appellant

Commonwealth of Pennsylvania

v.Jason Allen Lippincott, Appellant

No. 633 EDA 2020

No. 634 EDA 2020

Superior Court of Pennsylvania.

Argued November 30, 2021

Filed April 12, 2022

Matthew J. Deschler, Bethlehem, for appellant.

Rebecca J. Kulik, Assistant District Attorney, Easton, for appellee.

Terence P. Houck, District Attorney, Easton, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.

OPINION BY PANELLA, P.J.:

This case is again before the Court on the appeal of Jason Allen Lippincott from the Order dated February 11, 2020, which designated him as a sexually violent predator ("SVP") pursuant to Megan's Law II, 42 Pa.C.S.A. §§ 9791 - 9799.7 (expired).¹ We find the trial court was empowered to conduct an SVP hearing upon remand pursuant to this Court's prior en banc decision. However, the trial judge, newly assigned to the case because of the retirement of the prior trial judge, faced a difficult legal issue as the status of the Pennsylvania Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799.10 - 9799.41, was in flux at the time of the SVP hearing. The legislature and appellate courts have subsequently clarified the status of SORNA. Based on this clarification, we are constrained to find the trial court should have applied Subchapter I of the amended SORNA, rather than Megan's Law II. The applicable sexual offender registration law at the time of the SVP hearing in December 2019 was specified in Subchapter I of Act 29. See 42 Pa.C.S.A. §§ 9799.51 - 9799.75. Although we acknowledge that the assessment provisions of Subchapter I of Act 29 are practically identical to those in Megan's Law II, out of an exercise of extreme caution, we remand for a new SVP hearing.

We liberally adopt from our earlier decisions the background of this case, while at the same time acknowledging its tortured procedural history. On January 24, 2013, at Docket Number CP-48-CR-0003839-2012 (3839-2012), Lippincott pled guilty to one count each of aggravated indecent assault and corruption of minors.² These charges arose from Lippincott's sexual assault of a 14-year-old female in May 2012. Also on January 24, 2013, at Docket Number CP-48-CR-0003840-2012 (3840-2012), Lippincott pled guilty to one count each of statutory sexual assault, corruption of minors, and indecent assault.³ These charges resulted from Lippincott'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 Lippincott 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 of the Sexual Offenders Assessment Board ("SOAB"). Dr. Valliere opined that Lippincott met the definition of an SVP. On November 25, 2013, Lippincott 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 Lippincott's motion; following the hearing, the court denied the motion. On June 17, 2014, the trial court entered an Order with a Statement of Reasons classifying Lippincott as an SVP.

Lippincott filed an uncounseled petition on July 8, 2014, seeking relief pursuant to the Post Conviction Relief ("PCRA") Act, 42 Pa.C.S.A. §§ 9541 - 9546. On July 10, 2014, the trial court issued an Order scheduling an issue-framing conference for August 15, 2014. The trial court noted that a member of the Public Defender's Office had been appointed to represent Lippincott. On the same day, for reasons not appearing of record, Lippincott filed an uncounseled Notice of Appeal, specifically stating that he was challenging his designation as an SVP.

An unusual Order was then entered by the original trial judge:

AND NOW, this 22^nd day of July, 2014, the Court hereby DECLINES TO RECOGNIZE the notice of appeal filed pro se on July 10, 2014, by the Defendant, Jason Lippincott; that day, the Court issued an order granting the Defendant's request for PCRA counsel ... in his pro se PCRA Petition.¹ This Order is without prejudice to the Defendant's ability to re-file his appeal nunc pro tunc if he elects to withdraw his PCRA petition.

Footnote 1: See Commonwealth v. Williams , , 410 A.2d 880, 883 (Pa. Super. 1979) (a defendant has no constitutional right to proceed as co-counsel in his own defense).

Order, 7/22/2014 (emphasis in original).

Lippincott's privately retained counsel was granted permission to withdraw his appearance in the Superior Court on November 18, 2014. Then, in the trial court, on December 12, 2014, Lippincott filed an uncounseled, amended PCRA petition, apparently ignoring the appeal he had filed in this Court.

The trial court docket does not indicate any further activity until January 27, 2016, when the trial court again scheduled an issue-framing conference for the PCRA petition. In the same Order, the trial court appointed Lippincott's current counsel to represent Lippincott in the PCRA matter.

On May 13, 2016, the trial court filed an Order granting Lippincott's PCRA petition and re-sentenced Lippincott to the terms of incarceration specified in the Order. On July 26, 2016, the trial court filed an Order which "clarified" the sentence imposed on May 13, 2016. On August 24, 2016, the court again filed an Order which "clarified" the sentence imposed on May 13, 2016. Lippincott responded to the May 13, 2016 order by filing numerous uncounseled documents in the court, none of them pertinent to the appeal currently before this Court.

Current counsel for Lippincott then filed his appearance in the Superior Court on May 23, 2016, and later filed a motion for leave to file an amended docketing statement and requested a briefing schedule. In this motion, counsel averred that "[v]arious ongoing proceedings in the trial court below have delayed the resolution of his appeal." The Superior Court granted counsel's request to file an amended docketing statement and established a briefing schedule.

On January 17, 2017, more than two years after the Notice of Appeal had been filed, the trial court entered an order directing Lippincott to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Lippincott complied and the trial court filed a Pa.R.A.P. 1925(a) opinion.

On appeal to this Court, the parties initially filed briefs on the sole issue raised in Lippincott's Rule 1925(b) statement, i.e. , whether the trial court erred in denying Lippincott'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) (plurality). In Muniz , our Supreme Court held that retroactive application of the registration and reporting requirements of SORNA violated the ex post facto clause of the United States and Pennsylvania Constitutions. See id. at 1223. Consequently, on September 13, 2017, Lippincott filed an application seeking permission to file a supplemental brief with this Court to address Muniz . We granted the application.

On April 20, 2018, this Court certified this case for en banc review and directed the parties to brief the following issues:

1) In consideration of [Lippincott]’s having committed the relevant crimes between October 2011 and May 2012, whether the enactment date or the effective date of [SORNA], 42 Pa.C.S. §§ 9799.10 - 9799.41, controls for purposes of offenses committed between the enactment date and the effective date?

2) Whether there is an ex post facto violation to a defendant who is sentenced under SORNA for criminal acts committed after the enactment date of SORNA (December 20, 2011) but before the effective date of SORNA (December 20, 2012)?

3) Whether this Court must address if the Act of Feb. 21, 2018, P.L. 27, No. 10 (HB 631 of 2017; "Act 10"), applies in the instant case and all cases governed by SORNA and, if so, whether Act 10 renders the registration provisions of SORNA non-punitive?

4) If Act 10 applies in the instant matter, whether Act 10's potential effects on [Lippincott], as a result of the crimes having been committed between October 2011 to May 2012, violate the ex post facto clause of the United States or Pennsylvania Constitutions?

Order Directing En Banc Certification, 4/20/2018.

In his brief to this Court, Lippincott argued that his SVP determination had to be overturned because the SVP designation process under SORNA violated his constitutional right to a jury trial and the ex post facto clause of both the United States and Pennsylvania Constitutions. Lippincott also argued that due to the timing of his crimes, there were no sexual offender registration requirements applicable to him. He asserted there was no statute under which he was required to register as a sex offender because: (1) the registration provisions of SORNA were not applicable to him due to ex post facto protections under Muniz ; (2) Megan's Law III was struck down as unconstitutional in Commonwealth v. Neiman , 624 Pa. 53, 84 A.3d 603 (2013) ; and (3) SORNA specifically provided for the expiration of the former statutory sections of Megan's Law still in effect upon its effective date. Lippincott also argued in his brief that the trial court erred and abused its discretion by failing to appoint a psychological expert upon Lippincott's request where Lippincott was indigent and without funds to retain his own expert.

On April 15, 2019, this Court vacated Lippincott's reporting requirements pursuant to SORNA and remanded the case back to the trial court for further proceedings. In doing so, the en banc panel concluded that because Lippincott's crimes predated the effective date of SORNA, the court's...