Com. v. Born, A. ( 2023 )

J-A02037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN DONALD BORN :
:
Appellant : No. 30 WDA 2022
Appeal from the Judgment of Sentence Entered December 1, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0005815-2020
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: August 25, 2023
Allen Donald Born (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of failure to comply with sex
offender registration requirements.1 We affirm.
The trial court summarized the relevant procedural history as follows:
[Appellant] pled guilty on September 10, 2011[,] to one count of
indecent assault of a person less than 13 years of age (18 Pa.C.S.
§ 3126(a)(7)). [The trial court sentenced Appellant to five years
of probation.] At that time, [Appellant] was ordered to register
as a sex offender for a period of ten (10) years.[2] In 2012, when
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 4915.2(a)(1).
2 Beginning in 1995, the General Assembly enacted a series of statutes
requiring convicted sex offenders living in the Commonwealth to register with
the State Police upon release from prison. At the time of Appellant’s offense
(Footnote Continued Next Page)
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[the Sex Offender Registration and Notification Act (SORNA I)3]
was enacted, [Appellant’s] registration status changed from a ten
(10) year registration period to a lifetime registration period. In
2017, the Pennsylvania Supreme Court issued its [plurality]
opinion in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
The Muniz Court held that retroactive application of SORNA [I]
constitutes an ex post facto violation of the Pennsylvania
Constitution. Muniz, 164 A.3d at 1223.
Trial Court Opinion, 3/1/22, at 4 (footnotes added).
After the Muniz decision, Appellant filed a Post Conviction Relief Act
(PCRA)4 petition requesting relief from his registration requirement. On
November 28, 2017, the PCRA court granted partial relief, stating:
[Appellant] is not required to register under SORNA [I] as a sex
offender, because under Commonwealth v. Muniz, … it would
be an ex post facto violation of the Constitution of Pennsylvania.
However, [Appellant’s] reporting requirements under Megan’s Law
II remain in effect. By virtue of his Indecent Assault Person Less
than 13 Years of Age—M1 (18 Pa.C.S.A. § 3125(A)(7)) conviction,
[Appellant] is required to register under Megan’s Law II for a
period of ten years.
PCRA Court Order, 11/28/17. Appellant did not appeal.
Thereafter, in response to Muniz, the General Assembly
returned to the drawing board and redrafted SORNA into two
subchapters: Subchapter H and Subchapter I. Subchapter H
governs those whose offenses occurred after December 20,
2012. Subchapter I applies to those whose offenses were
completed prior to that date.
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and sentence, he was subject to the ten-year reporting requirement set forth
in 42 Pa.C.S.A. § § 9791-9799.9 (Megan’s Law II).
3 42 Pa.C.S.A. §§ 9799.10-9799.41 (2012).
4 42 Pa.C.S.A. §§ 9541-9546.
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Commonwealth v. Santana, 266 A.3d 528, 530 n.7 (Pa. 2021).
On August 12, 2020, nearly three years after the PCRA court granted
Appellant partial relief, the Commonwealth charged him with one count of
failure to register. The trial court explained:
City of Pittsburgh Detective Michael Nowe [(Detective Nowe)] was
conducting a proactive compliance check on Megan’s Law
offenders in the 15234[-]zip code on August 12, 2020. On that
date, he was investigating the compliance status of [Appellant].
Detective Nowe testified that [Appellant] has had to register since
2011 and was a 10[-]year registrant. Detective Nowe testified
that [Appellant’s] last known registered address was 44 Briggs
Street, Pittsburgh, PA 15234 [(the Briggs Street residence)]. On
August 12, 2020, Detective Nowe went to [the Briggs Street
residence] and “made contact with the current occupant,” Donna
Terlecki [(Terlecki)]. [Appellant] was not at that address.
[] Terlecki testified that she began to live at [the Briggs Street
residence] on July 1, 2019. She further testified that she knows
[Appellant], but he has never lived with her at [the Briggs Street
residence,] and he moved out the day she moved into that
residence.
[Appellant] testified that he is required to register under the
sex offender registry and had most recently registered on
September 19, 2020. [Appellant] testified that he was forced out
of [the Briggs Street residence] and moved into a homeless
shelter. He continued to use [the Briggs Street residence] as his
mailing address. [Appellant] testified that he did not register at
the homeless shelter because it was across the street from a
school and the shelter did not want problems.
Trial Court Opinion, 3/1/22, at 2-3 (record citations omitted).
Following a bench trial on September 10, 2021, the trial court convicted
Appellant of failure to register. On December 1, 2021, with the benefit of a
presentence investigation report, the trial court sentenced Appellant to one
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year of probation. Appellant filed this timely appeal. Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for review:
Where [Appellant’s] PCRA … was granted on November 28,
2017[,] and purported to impose registration conditions pursuant
to the long-repealed Megan’s Law II, was the effect of that order
to remove [Appellant] from the registry? Put another way, should
the trial court have granted [Appellant’s] Motion to Dismiss
because his period of registration expired when the PCRA court
ruled that SORNA [I] did not apply to him?
Appellant’s Brief at 4.
Appellant raises a question of law. Therefore, our scope of review is
plenary and we review the trial court’s determinations de novo.
Commonwealth v. Lacombe, 234 A.3d 602, 608 (Pa. 2020).
Appellant argues the PCRA court’s 2017 order “had the legal effect of
terminating his registration requirement, requiring dismissal of the instant
case.” Appellant’s Brief at 10. Appellant acknowledges the PCRA court
required his continued registration under Megan’s Law II. Id. However,
Appellant claims he “could legally never have been subjected to the
requirements of Megan’s Law II” or its successors. Id. Appellant asserts the
effect of the PCRA court’s order invalidating his SORNA I registration
requirement “was to hold that [Appellant’s] registration requirements
expired.” Id.Appellant relies on our Supreme Court’s decision in Commonwealth v.
Derhammer, 173 A.3d 723 (Pa. 2017), concluding that the trial court and
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this Court “cannot revive Megan’s Law II to fill the gap the General Assembly
created in unconstitutionally applying SORNA [I] ex post facto.” Appellant’s
Brief at 25. According to Appellant, the enactment of SORNA I repudiated the
prior versions of Megan’s Law. Id. Appellant asserts: “SORNA’s
unconstitutionality [] applied retroactively did not revive Megan’s Law II.” Id.
at 26. Therefore, Appellant argues, “there was no text appearing in any valid
aspect of the Crimes Code which made [Appellant’s] conduct an offense.” Id.
(quoting Derhammer, 173 A.3d at 729).
Appellant further asserts:
Because [the PCRA court’s] order effectively removed his
registration requirements, [he] cannot now be compelled to
register under Subchapter I, because his “period of registration”
had expired via both [the PCRA court’s] ruling and the Supreme
Court’s holding in [Commonwealth v. Nieman, 84 A.3d 603 (Pa.
2013)], and Muniz, supra.
Id. at 28-29. Appellant’s reliance on Derhammer and Nieman is misplaced.
In Neiman, the Pennsylvania Supreme Court held that Megan’s Law III
was unconstitutional in its entirety because it was included in a bill that
violated the single subject rule. Nieman, 84 A.3d 606. Recognizing the
possible impact of its decision, the Supreme Court stayed its effect for 90
days to allow the Legislature “to consider appropriate remedial
measures.” Neiman, 84 A.3d at 616. In response, the General Assembly
modified Section 9799.13(3) to clarify that persons who were required to
register any time before SORNA I’s effective date, and whose registration
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period had not expired, were still required to register. See 42 Pa.C.S.A.
§ 9799.13(3) (effective 2014).
In Derhammer, the Supreme Court held the defendant could not be
prosecuted for violating Megan’s Law III because at the time he was
charged with failing to register, Megan’s Law III had been voided as
unconstitutional. Derhammer, 173 A.3d at 729-30.
Instantly, Appellant was charged with failing to comply with Subchapter
I’s 10-year registration requirement in violation of Crimes Code Section
4915.2(a)(1). 18 Pa.C.S.A. § 4915.2(a)(1); see also 42 Pa.C.S.A. § 9799.
At the time Appellant failed to register, Subchapter I imposed a ten-year
registration requirement on
(A) Individuals convicted within this Commonwealth of any of the
following offenses committed on or after April 22, 1996, but before
December 20, 2012:
….
18 Pa.C.S. § 3126 (relating to indecent assault) where the offense
is graded as a misdemeanor of the first degree or higher.
….
(B) Individuals convicted within this Commonwealth of an offense
set forth in clause (A) who were required to register with the
Pennsylvania State Police under a former sexual offender
registration law of this Commonwealth on or after April 22, 1996,
but before December 20, 2012, whose period of registration has
not expired.
42 Pa.C.S.A. § 9799.55(a)(1)(i)(A), (B).
Subchapter I expressly states:
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This subchapter shall apply to individuals who were:
(1) convicted of a sexually violent offense committed on or after
April 22, 1996, but before December 20, 2012, whose period of
registration with the Pennsylvania State Police, as described in
section 9799.55 (relating to registration), has not expired; or
(2) required to register with the Pennsylvania State Police under
a former sexual offender registration law of this Commonwealth
on or after April 22, 1996, but before December 20, 2012, whose
period of registration has not expired.
42 Pa.C.S.A. § 9799.52.5
Unlike Derhammer, which involved Megan’s Law III, Subchapter I was
not void in 2021 when Appellant was prosecuted. We recently explained:
Subchapter I addresses sexual offenders who committed an
offense on or after April 22, 1996, but before December 20,
2012; or those who were required to register under a former
sexual offender registration law of this Commonwealth on or
after April 22, 1996, but before December 20, 2012, whose
period of registration has not expired. See 42 Pa.C.S.A. §
999.52. …
In Commonwealth v. Lacombe, Pa. , 234 A.3d 602(2020), our Supreme Court held that Subchapter I of [Act 29]
is nonpunitive and does not violate the constitutional
prohibition against ex post facto laws. See id. at , 234
A.3d at 626-27. See also Commonwealth v. Elliott, 249
A.3d 1190, 1194 (Pa. Super. 2021) (rejecting ex post
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5
Appellant did not appeal the PCRA court’s imposition of Megan’s Law II’s
reporting requirements. Accordingly, Appellant waived any challenge to the
legality of that sentence. See, e.g., Commonwealth v. Cline, 177 A.3d 922,
927 (Pa. Super. 2017) (observing, in the context of Pa.R.A.P. 302(a), that
“issues, even those of constitutional dimension, are waived” if not timely
raised); see also Commonwealth v. Jefferson, 256 A.3d 1242, 1261 (Pa.
Super. 2021) (en banc) (Bowes, J., concurring) (“Likewise, it has long been
true that failure to raise an issue in the trial court, even one of constitutional
dimension, results in waiver of the issue on appeal.”).
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facto challenge to lifetime registration for rape conviction
where appellant was subject to Subchapter I reporting
requirements).
Commonwealth v. Lippincott, 273 A.3d 1157, 1163 (Pa. Super. 2022) (en
banc) (emphasis in original) (quoting Commonwealth v. Hubert, 276 A.3d
210, 2022 WL 628630, at *3 (Pa. Super. filed Mar. 4, 2022) (unpublished
memorandum at *3)); see also Pa.R.A.P. 126(b) (providing that non-
precedential decisions filed after May 1, 2019, “may be cited for their
persuasive value”).
Appellant does not dispute his 2011 conviction of indecent assault of a
child less than 13 years old occurred “on or after April 22, 1996, but before
December 20, 2012.” Appellant’s ten-year registration period had not expired
at the time of Subchapter I’s enactment, or when Appellant failed to register
in 2020. See 42 Pa.C.S.A. § 9799.52. As Subchapter I’s registration
requirements applied to Appellant, his issue does not merit relief. See id.;
see also Lippincott, 273 A.3d 1163.
Judgment of sentence affirmed.
Judge Pellegrini joins the memorandum.
Judge Bowes files a concurring memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2023
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