Com. v. Neil, M. ( 2019 )

J-A02042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW DAVID NEIL :
:
Appellant : No. 1335 MDA 2017
Appeal from the Judgment of Sentence July 24, 2017
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005360-2011
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 17, 2019
Appellant Matthew David Neil appeals from the judgment of sentence
imposed following violation of probation (VOP) proceedings for sexual abuse
of children and criminal use of a communication facility.1 Appellant’s sole
claim is that the trial court erred by refusing to enter an order that he is not
subject to the sex offender registration requirements of either the Sex
Offender Registration and Notification Act (SORNA) or Megan’s Law III,2 which
was in effect at the time of his conviction and sentencing. We affirm.
The trial court summarized the relevant background of this matter as
follows:
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1 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
242 Pa.C.S. §§ 9799.10-9799.41 and 42 Pa.C.S. §§ 9791-9799.9 (expired
December 20, 2012), respectively.
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On September 7, 2012, [Appellant] entered open nolo contendere
pleas to one (1) count each of sexual abuse of children and
criminal use of a communication facility[, for offenses committed
in December 2010]. Following the preparation of a presentence
investigation report, [Appellant] was sentenced on November 1,
2012 to an aggregate term of seven (7) years of probation. At the
time of his original sentencing, [Appellant] was notified that,
because of his conviction, he would be required to comply with
sex offender registration requirements for ten (10) years [under
Megan’s Law III].
Subsequently, [Appellant] was twice found to be in violation of his
probation and was sentenced accordingly on May 2, 2013 and
January 10, 2014 to new seven (7) year probation periods.
[Appellant] was most recently found to be in violation of his
probation on May 10, 2017 due to the filing of new charges for
possession of child pornography. [Appellant was not ordered to
register under SORNA during any of the VOP proceedings.]
Following the completion of a pre-sentence investigation report,
[Appellant] was sentenced on July 24, 2017 to a split sentence of
one (1) to three (3) years of incarceration and four (4) years of
probation. . . .
At the time of his probation/parole violation sentencing, counsel
for [Appellant (VOP counsel)] made a statement that he did not
believe his client was subject to the requirements of [SORNA], but
went on to state that he merely wanted to place that statement
on the record and did[ not] know how the new, probation violation
sentence, would be affected.[3] [Appellant] did not request any
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3 We note that in 2014, this Court decided Commonwealth v. Partee, 86
A.3d 245 (Pa. Super. 2014), which held that a violation of probation
constituted a breach of plea agreement that would otherwise entitle a
defendant to avoid SORNA’s increased registration period. Partee, 86 A.3d
at 250. On July 19, 2017, five days before the VOP sentencing hearing in the
present matter, the Pennsylvania Supreme Court decided Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017). The Muniz Court held that the enhanced
registration provisions of the former version of SORNA were punitive and the
retroactive application of those provisions violated the ex post facto clauses
of the Pennsylvania and federal constitutions. See Muniz, 164 A.3d at 1223.
This Court subsequently decided Commonwealth v. Fernandez, 195 A.3d
299 (Pa. Super. 2018) (en banc), on September 8, 2018, during the pendency
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relief or order at that time and his judgment of sentence contained
no order to comply with any sex offender registration
requirements. Furthermore, [Appellant] did not file any post-
sentence motions. [Appellant] first sought relief from his
judgment of sentence with the filing of his August 23, 2017 notice
of appeal[.]
Trial Ct. Op., 10/27/17, at 1-3.
After Appellant filed his notice of appeal, the trial court ordered him to
file a Pa.R.A.P. 1925(b) statement. Appellant timely filed a Rule 1925(b)
statement in which he asserted that the trial court erred in refusing to order
that Appellant is no longer required to register as a sex offender. The trial
court complied with Rule 1925(a), and noted:
[Appellant] seeks an order declaring that he is no longer required
to register as a sex offender because of the decision in
Com[monwealth] v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017).
Regardless of whether [Appellant’s] claim has any merit, the
Courts of Common Pleas simply do not have jurisdiction to grant
relief to persons in [Appellant’s] circumstances. Unlike the
defendants in Muniz and [Commonwealth v. Leonard, 172
A.3d 628 (Pa. Super. 2017)], there is no order by any court of this
Commonwealth stating that [Appellant] is subject to the
requirements of SORNA. Furthermore, no court of this
Commonwealth has ordered that [Appellant] continue to register
as a sex offender. [Appellant’s] sentence for his recent
parole/probation violation contained no provision concerning sex
offender registration and there was no reason for it to contain any
such provision. If [Appellant] continues to be subject to any
registration requirements, it is as a result of his original conviction
and sentencing and not a result of his having been found in
violation of his parole/probation.
* * *
____________________________________________
of this appeal, and after the trial court authored its Pa.R.A.P. 1925(a) opinion.
The Fernandez Court expressly found that Muniz abrogated Partee.
Fernandez, 195 A.3d at 311.
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[Appellant’s] claim raises no challenge to the July 24, 2017
judgment of sentence and clearly seeks only declaratory and
injunctive relief against [the Pennsylvania State Police, and the
court does] not have jurisdiction to grant such relief.
Id. at 7-8
On appeal, Appellant raises one question for our review: “Did the trial
court err in refusing to issue an [o]rder that [Appellant] is no longer required
to register as a sex offender, pursuant to Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017)?” Appellant’s Brief at 4. Appellant argues that he
committed the offense for which he was subjected to sex offender
registration prior to SORNA’s effective date. Therefore, pursuant
to Muniz, he cannot constitutionally be subject to registration
under SORNA. Nor can any other prior version of Megan’s Law
apply to [Appellant] because since December 20, 2012, there is
no applicable statutory mechanism which can impose registration
obligations upon a person whose underlying sexual offense
occurred prior to December 20, 2012.
Id. at 9.
Initially, we note that Appellant failed to raise a challenge to the
applicability of Megan’s Law in the trial court. Appellant’s VOP counsel merely
stated for the record that he believed that SORNA was not applicable to
Appellant’s case. However, VOP counsel did not object to the application of
Megan’s Law. Accordingly, any argument regarding Megan’s Law has been
waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
Regarding Appellant’s challenge to the applicability of SORNA, we note
that “application of a statute is a question of law, . . . our standard of review
is plenary, [and] our standard of review is limited to a determination of
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whether the trial court committed an error of law.” Commonwealth v.
Baird, 856 A.2d 114, 115 (Pa. Super. 2004) (citation omitted). Under Muniz,
the retroactive application of SORNA’s provisions violated the ex post facto
clauses of the Pennsylvania and federal constitutions. Muniz, 164 A.3d at
1223.
Here, no order has been entered during any of Appellant’s VOP
proceedings requiring Appellant to comply with SORNA. Accordingly, we agree
with Appellant that the pre-Muniz version of SORNA cannot apply
retroactively to Appellant. See Baird, 856 A.2d at 115.
However, contrary to Appellant’s arguments, Muniz does not hold that
a defendant may avoid a registration requirement under the law. Cf.
Commonwealth v. Horning, 193 A.3d 411, 417 n.3 (Pa. Super. 2018).
Appellant, furthermore, fails to cite any authority that the trial court was
required to determine Appellant’s registration requirement, or reclassify
Appellant, at the time of his VOP sentencing hearing. Cf. Fernandez, 195
A.3d at 310. Lastly, Appellant has not acknowledged the developments in the
relevant statutes and case law regarding the registration of sexual offenders
while this appeal has been pending. See id.; see also 2018, June 12, P.L.
140, No. 29 (“Act 29”); 2018, Feb. 21, P.L. 27, No. 10 (“Act 10”).
Under the unique circumstances of this case, and because Appellant will
not be precluded from raising the issue of the applicable registration
requirements in the future, see Fernandez, 195 A.3d at 310, we conclude
that Appellant has not established reversible error.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2019
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