New Pennsylvania Superior Court Opinion Permits Sentencing Prior to SVP Hearing

It has been black letter law and a source of some frustration for judges, prosecutors, and defense attorneys alike that when an individual is convicted of a Megan’s Law offense, as specified in 42 Pa.C.S.A. §9795.1, a Sexually Violent Predator (SVP) assessment must be ordered and completed prior to sentencing.  (For a more thorough review of Megan’s Law offenses and SVP hearings in general, please refer to our Sex Crimes page)  Contained within 42 Pa.C.S.A. §9795.4, this bright-line rule carried a number of ramifications. 

First, in a situation where the conviction resulted from a negotiated guilty plea, the sentence itself is a virtual certainty.  The Court has typically been informed of and accepted the arrangement, and would like to close the docket.  The prosecutor would like the sentence to be imposed, the conditions of supervision and Megan’s Law reporting requirements to commence, and to inform potential victims of the final result.  The convicted individual would like the matter over with and, having to face the inevitable sentence which was negotiated and agreed to, would typically like to face it and move forward with his/her life.  Delaying the imposition of the sentence only protracts the period governed by bail conditions, and delays the onset of a finite period of supervision.  Nonetheless, the law has forbidden sentencing until the SVP assessment process was completed.  Such a delay makes even less sense when an SVP finding seems highly unlikely. 

Secondly, delaying a negotiated sentence months into the future carries with it the danger of confusion.  Assistant DA’s often circulate files to other colleagues, and sloppy attorneys may not memorialize an agreement properly.  The possible result is to revisit, and re-negotiate an agreement that seemingly was set in stone.  While there are proper methods of preventing such misunderstandings, the delay carries the potential for unnecessary complications. 

Third, a hypothetical SVP finding carries with it the danger of arousing a judge’s concern that a more severe sentence may be appropriate.  If the plea was not negotiated, or if the conviction resulted from a guilty verdict, an SVP classification would present itself as an aggravating factor and would only hurt one’s chances for a more moderate sentence.  As a result, it would usually be in such an individual’s best interest to be sentenced prior to an SVP ruling.  Having that said, an assessment which declares that an individual is not an SVP may serve as a mitigating factor for defense to argue in a sentencing hearing.  Delaying sentencing could carry other potential advantages.  For example, in a situation where an individual is in custody while the matter is pending and facing a state prison sentence, building up time credit is usually desirable.  Building up county credit may also help achieve a time served sentence or a ruling that a state prison sentence may be completed in the county.  If an individual is able to delay sentencing and prove a lengthier positive track record in the meantime, bolstered by documentation of beneficial treatment, a compelling argument may be created for a more lenient sentence in the end.  Such important calculation should be discussed with an attorney experienced in these matters. 

Fourth, an individual may withdraw a guilty plea prior to sentencing if it is determined that such a withdrawal is not prejudicial to the Commonwealth.  Therefore, delaying sentencing carries the possibility for an individual to plead guilty, learn that the assessment stated that he/she met SVP criteria, and attempt to promptly withdraw the guilty plea. 

On October 20, 2011, in Commonwealth v. Whanger (2011 WL 5008397), the Superior Court held that a convicted individual may waive the statutory requirement that an SVP assessment be conducted prior to sentencing, and that SVP determination may accordingly follow sentencing.  The sentencing court’s jurisdiction is reasoned to have been retained due to the interpretation of Megan’s Law reporting requirements as a collateral consequence to a sentence, and that therefore, an SVP order and determination would not modify a sentence itself.  It is important to note that nowhere is it implied that an individual may be forced to waive the statutory requirement.  Rather, the waiver is valid only if provided  knowingly, intelligently, and voluntarily.  Having that said, an individual may not properly waive the statutory requirement, and then later redeem the statutory language as a defense to an SVP classification.  The lesson, therefore, is that the waiver option is a new and useful strategy, but must be evaluated carefully prior to its implementation.