Com. v. Greco, R. ( 2019 )

J-S42016-18
2019 Pa. Super. 30
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROCCO ROBERT GRECO :
:
Appellant : No. 219 MDA 2018
Appeal from the PCRA Order Entered January 12, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000608-1986
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
CONCURRING AND DISSENTING OPINION BY BOWES, J.:FILED FEBRUARY
08, 2019
My distinguished colleagues cogently explain why Appellant’s request
for relief must be construed as a PCRA petition under governing precedent,
and I concur in the determination that Appellant’s petition did not satisfy any
exception to the one-year time bar. However, I dissent as to the disposition.
In my view, the PCRA court could not modify Appellant’s reporting obligations,
as it purported to do, when it ordered him to comply with Megan’s Law II.
Finally, I address Appellant’s argument that our precedents are
unconstitutional.
Preliminarily, I note that the order appealed from did not simply deny
Appellant’s request. Instead, the PCRA court also sua sponte modified
Appellant’s sexual offender obligations. The instant action commenced when
Appellant filed a motion requesting the following relief: “[P]etitioner asks this
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* Retired Senior Judge assigned to the Superior Court.
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Court ORDER that petitioner is immune to the registration provisions of SORNA
at above docket.” Motion, 8/14/17, at 1. The Commonwealth replied as
ordered, and asserted that Appellant’s obligations remain under Megan’s Law
II. The PCRA court agreed, issuing the following order:
AND NOW, this 12th day of January, 2018, upon consideration of
the Motion to Confirm Defendant is Not Required to Register under
SORNA, and any responses thereto, and in light of the
Pennsylvania Supreme Court’s decision in [Muniz], it is hereby
ORDERED that, barring any legislative action or further court
action, Petitioner is required to comply with Megan’ s Law II.[fn]
As the Commonwealth has indicated, Petitioner is still required
[fn]
to register under Megan’s law II. As such, Petitioner is required
to register for life due to his guilty plea to Rape.
Order, 1/12/18, at 1.
Appellant filed a notice of appeal, arguing that Megan’s Law II no longer
exists. The Majority holds that the PCRA court lacked jurisdiction over this
untimely petition, stating that “claims challenging application of SORNA’s
registration provisions – unlike prior versions of Megan’s Law – are properly
considered under the PCRA.” Majority Opinion, at 5. I agree.
As explained by the Majority, our precedents treat petitions seeking
retroactive application of Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (OAJC), in disparate ways. In timely PCRA proceedings, we give Muniz
retroactive effect. Commonwealth v. Rivera-Figueroa, 174 A.3d 674
(Pa.Super. 2017). In untimely PCRA proceedings, however, Commonwealth
v. Murphy, 180 A.3d 402 (Pa.Super. 2018), holds that Muniz fails to satisfy
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the relevant PCRA time-bar exception. Thus, similarly-situated offenders, i.e.,
persons whose judgment of sentence were final when Muniz was decided, are
treated differently. Since this is an untimely PCRA, Murphy controls and the
PCRA court had no jurisdiction to address the merits of his claim.
For that same reason, I find that the order must be reversed to the
extent it purports to impose Megan’s Law II obligations upon Appellant. The
same logic that compels a conclusion that the PCRA court lacked jurisdiction
to “confirm” Appellant’s absence of SORNA obligations dictates that the court
cannot now require Appellant to comply with some other non-SORNA set of
obligations. That matter does not concern the PCRA court.1
I now address Appellant’s claim that Murphy conflicts with the United
States Constitution. He argues that “When a state enforces a constitutionally-
barred penalty, the resulting conviction or sentence is unlawful.
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). The United State[s]
Constitution requires state collateral review courts to give retroactive effect to
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1 The Pennsylvania State Police administer the sex offender registry and
impose reporting obligations as a result of duly-enacted laws. Absent a filing
by a defendant seeking enforcement of a plea bargain, I discern no basis for
a court to issue an order directing Appellant to comply with some alternative
set of obligations. If the PCRA court was modifying Appellant’s sentence, it
lacked jurisdiction to do so; if the court was attempting to impose collateral
obligations, it had no authority to do so. Either way, the order cannot stand.
Furthermore, the Legislature has enacted laws that seek to address Muniz.
See 42 Pa.C.S. §§ 9799.51-9799.75. Those statutes constitute a new
subchapter, “Continued Registration of Sexual Offenders.” Thus, the PCRA
court order purports to impose obligations in place of this statute. Whether
the requirements set forth by those laws is not germane to this appeal.
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new substantive rules of constitutional law, which control the outcome of
cases.” Appellant’s brief at 5. Appellant’s point is similar to that set forth in
my dissenting opinion in Commonwealth v. Fernandez, --- A.3d ---, 2018
WL 4237535 (en banc). Fernandez was accepted en banc to determine if
Commonwealth v. Partee, 86 A.3d 245 (Pa.Super. 2014), should be
overruled. Partee held that a probation violation constituted a failure to abide
by the terms of a plea agreement, thereby precluding attempts to seek
restoration of less onerous Megan’s Law requirements that existed at the time
of the original pleas. Muniz was issued while Fernandez was on appeal, and
this Court held that Muniz abrogated Partee. I set forth my prior analysis of
this issue:
The Majority erroneously assumes that we may apply Muniz's
holding to these Appellants by asserting that Muniz abrogated
Partee. I agree with that statement insofar as Muniz holds that
requiring persons convicted of offenses without adequate notice
of the SORNA obligations cannot be ordered to comply with
SORNA. The problem, however, is that this conclusion does not
supply an answer as to whether Muniz's rule retroactively applies
to these offenders. Our current precedents hold that Muniz does
not satisfy the exception to the PCRA's one-year time bar
pertaining to new constitutional rights. Commonwealth v.
Murphy, 180 A.3d 402 (Pa.Super. 2018). Therefore, our Court
continues to affirm judgments of sentence that are no less
unconstitutional than Appellants' sentences. The existence of
Murphy disproves the Majority's statement that “reclassifications
of the Appellants after the effective date of SORNA cannot stand.”
Majority Opinion at 310. Murphy accepts that SORNA
classifications may remain in place notwithstanding Muniz, and
we therefore cannot simply ignore Partee despite the fact that
affirming on that basis raises the possibility of affirming a
sentence that Muniz says is illegal.
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Therefore, the Majority seeks to apply Muniz retroactively,
without acknowledging the fact that the continuing existence of
cases like Murphy means that Muniz would henceforth apply in
a disparate fashion.
Fernandez, supra at *11 (Bowes, J., dissenting) (footnotes omitted). In my
view, the Legislature cured the problem by amending SORNA in the wake of
Muniz. Regarding Appellant’s claim that this disparate treatment is unlawful,
I observed:
Whether that would be permissible is a difficult question. This
Court has held that Muniz created a substantive rule of
constitutional law that must apply retroactively in timely PCRA
proceedings. Commonwealth v. Rivera–Figueroa, 174 A.3d
674, 678 (Pa.Super. 2017). Simultaneously, Muniz does not
satisfy the PCRA's time-bar exception pertaining to newly-
announced constitutional rights. Commonwealth v. Murphy,
180 A.3d 402 (Pa.Super. 2018). Therefore, similarly-situated
offenders, i.e. persons whose criminal sentences were already
final when Muniz was announced, are treated differently.
While I believe that Murphy was correctly decided as a matter of
statutory interpretation, States are arguably prohibited from
refusing to grant retroactive effect to new substantive rules of
constitutional law. See Montgomery v. Louisiana, ––– U.S. ––
––, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) (States required to
give retroactive effect to such rules). Montgomery controls as to
questions of federal law. “If a state collateral proceeding is open
to a claim controlled by federal law, the state court has a duty
to grant the relief that federal law requires.” Id. at 731 (emphasis
added, quotation marks and citation omitted). In turn, we have
held that the binding precedent in Muniz “is confined to the
determination that SORNA's registration requirement is
punishment that runs afoul of the ex post facto clause of the
Pennsylvania Constitution when applied retroactively.”
Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa.Super.
2017).
If Muniz simply represents the announcement of a pure state law
claim, disparate retroactive application may or may not be
permissible. Cf. Commonwealth v. Cunningham, 622 Pa. 543,
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81 A.3d 1, 8 (2013) (noting that the federal retroactivity model
“is not necessarily a natural model for retroactivity jurisprudence
as applied at the state level.”). Suffice to say, the necessity of
applying Muniz in the absence of controlling legislation is a
complicated question, and one we need not decide.
Id. at n.3.
I continue to adhere to this view. Muniz is a creature of state law, and
thus the scope of its retroactive effect is not governed by the United States
Constitution. Furthermore, I believe that Muniz retroactivity encompasses
two separate questions. The first is whether offenders who were convicted of
sexual offenses pre-SORNA are entitled to retroactive application of Muniz in
the sense that such offenders are free from ongoing SORNA obligations. The
answer to that question, in my view, is unquestionably yes. However, as
discussed in Fernandez I believe that the Legislature has already
retroactively applied Muniz in this sense. The second is whether Muniz is
retroactive to the extent that offenders are entitled to relief from convictions
stemming from failures to comply with SORNA obligations, which is an entirely
separate retroactivity problem.2 The latter circumstance is not involved in this
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2 Justices Scalia, Thomas, and Alito took a contrary view in Montgomery
regarding a State court’s obligation to give retroactive effect to new rules:
That line of finality demarcating the constitutionally required rule
in Griffith from the habeas rule in Teague supplies the answer
to the not-so-difficult question whether a state postconviction
court must remedy the violation of a new substantive rule: No. A
state court need only apply the law as it existed at the time a
defendant's conviction and sentence became final. See Griffith,
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case, and its resolution must await a future case directly raising that issue.3
Until such time, I adhere to the aforementioned views.
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supra, at 322, 107 S. Ct. 708. And once final, “a new rule cannot
reopen a door already closed.” James B. Beam Distilling Co. v.
Georgia, 501 U.S. 529, 541, 111 S. Ct. 2439, 115 L. Ed. 2d 481
(1991) (opinion of Souter, J.). Any relief a prisoner might receive
in a state court after finality is a matter of grace, not constitutional
prescription.
Montgomery v. Louisiana, 136 S. Ct. 718, 739 (Scalia, J., dissenting) (some
citations omitted).
3 Commonwealth v. Rivera-Figueroa, 174 A.3d 674 (Pa.Super. 2017),
involved a PCRA petition seeking to challenge a conviction for failing to comply
with SORNA. This Court determined that “the best resolution of this case is
to vacate, remand, and offer [Rivera-Figueroa] the opportunity to argue
Muniz.” Id. at 679. The public docket reveals that following our remand the
trial court granted the Lebanon County District Attorney’s motion to nolle
prosse the charges.
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