Com. v. Major, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN R. MAJOR, JR. :
:
Appellant : No. 1317 WDA 2020
Appeal from the Order Entered November 19, 2020
In the Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-CR-0005251-2011
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: July 14, 2021
John R. Major, Jr. (Appellant) appeals pro se from the order granting his
request to proceed pro se, vacating the June 9, 20201 order dismissing his
PCRA petition as untimely, and denying the petition on merits. We affirm in
part, reverse in part, vacate in part, and remand.
The underlying facts are fully set forth in this Court’s decision on direct
appeal. See Commonwealth v. Major, 2014 WL 10965205 (Pa. Super. Apr.
23, 2014) (unpublished memorandum). Briefly, on March 6, 2012, a jury
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* Retired Senior Judge assigned to the Superior Court.
1 The PCRA court signed the order on May 9, 2020, but it was not filed until
June 9, 2020.
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convicted Appellant of involuntary deviate sexual intercourse 2 and related
crimes. The charges arose from Appellant’s sexual abuse of his fourteen-year-
old daughter over a period of nearly two years, and an eight-hour armed
standoff between Appellant and police, during which he held his disabled
seven-year-old son hostage. On June 11, 2012, the trial court sentenced
Appellant to an aggregate 26 - 52 years in prison. At sentencing, the court
noted Appellant had undergone a Sexually Violent Predator (SVP) assessment,
after which the Pennsylvania Sexual Offender Assessment Board (SOAB)
recommended Appellant be designated an SVP. N.T., 6/11/12, at 6. However,
at Appellant’s request, the court bifurcated the proceedings and postponed
the SVP hearing for Appellant to obtain an independent assessment. Id. at 8.
The record indicates no further action was taken in this regard and an SVP
hearing did not occur. N.T., 8/24-25/17, at 155. Thus, the trial court never
determined whether Appellant was an SVP. Nonetheless, Appellant filed an
appeal, and on April 23, 2014, this Court affirmed his judgment of sentence.
Major, supra. Appellant did not seek allowance of appeal with the
Pennsylvania Supreme Court.
PCRA Procedural History
On April 3, 2015, Appellant pro se filed a PCRA petition. The procedural
history that followed is convoluted. Ultimately, the PCRA court denied all of
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2 18 Pa.C.S.A. § 3123.
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Appellant’s claims except those challenging the legality of sentence pursuant
to the Pennsylvania Supreme Court’s decision in Commonwealth v. Wolfe,
140 A.3d 651 (Pa. 2016). On August 25, 2017, the court resentenced
Appellant, again to 26 - 52 years in prison. During resentencing, the court
emphasized it was not sentencing Appellant to any mandatory minimums.
N.T., 8/25/17, at 152-54. Following a discussion about the Supreme Court’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), the court
informed Appellant he would be “a lifetime Megan’s Law registrant.” Id. at
161. Appellant did not appeal.
On November 1, 2017, Appellant filed what the trial court deemed an
untimely post-sentence motion. The court dismissed the motion on November
15, 2017. Appellant appealed. On October 15, 2018, this Court found the
trial court erred in treating Appellant’s filing as an untimely post-sentence
motion rather than a timely PCRA petition. Commonwealth v. Major, 2018
WL 4957913, at *3 (Pa. Super. Oct. 15, 2018) (unpublished memorandum).
We noted that Appellant had not appealed from the August 28, 2017 order
denying his non-sentencing PCRA claims, and explained:
any non-sentencing/PCRA issues related to the August 28th Order
have been waived. The only viable issues are sentencing issues
related to the August 25, 2017 resentencing which, as we have
explained, are subject to the PCRA.
Accordingly, we vacate the order denying [Appellant’s] post-
sentence motion and remand for the appointment of counsel
(should [Appellant] desire) and further proceedings under the
PCRA consistent with this memorandum.
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Id. at *5.
On October 22, 2019, in response to this Court’s decision, the PCRA
court issued an order deeming Appellant’s November 1, 2017 pleading to be
a PCRA petition, and providing Appellant time to either file an amended
petition, indicate he would not file one, or request appointment of counsel.
After requesting and receiving multiple extensions of time, Appellant, pro se
filed an amended PCRA petition on January 22, 2020. On February 19, 2020,
the court filed notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, stating,
“after a thorough review of the record, the [c]ourt finds the claims presented
are without merit.” Notice of Intention to Dismiss, 2/19/20.
On March 25, 2020,3 Appellant moved to stay the PCRA proceedings
pending resolution of his petition for a writ of habeas corpus in the United
States District Court for the Western District of Pennsylvania. Motion for Stay
of PCRA Proceedings, 3/25/20, at 2-4 (unnumbered). The PCRA court denied
the motion on May 1, 2020.4 On June 9, 2020, the PCRA court issued an order
stating “[Appellant’s] Post-Conviction Relief Act Petition is untimely filed and
exceptions to the timeliness requirement have not been met.” Order of Court,
6/9/20.
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3 The motion is signed and dated March 10, 2020.
4 On March 16, 2020, United States Magistrate Judge Maureen P. Kelly stayed
Appellant’s federal proceedings pending completion the instant matter. Major
v. Gilmore, 2020 WL 8996838, at *4 (W.D.Pa. Mar. 16, 2020) (unpublished
order).
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On June 24, 2020, Appellant filed a “Motion to Vacate Order,” in which
he correctly asserted that his PCRA petition was timely and the dismissal was
improper. Motion to Vacate Order, 6/24/20, at 1-2. The PCRA court denied
the motion to vacate on July 30, 2020. Appellant filed a notice of appeal at
884 WDA 2020, which is a companion to this case.5
On November 10, 2020, the PCRA court held a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On November 19,
2020, the court entered an order permitting Appellant to proceed pro se; sua
sponte vacated its June 9, 2020 order dismissing Appellant’s PCRA petition as
untimely; and dismissed Appellant’s amended PCRA petition based on
Appellant’s claims being “without arguable merit.” Order, 11/19/20, at 4.
This appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925(b).
Appellant raises the following issues:
I. DID THE TRIAL COURT ERROR [sic] SHOWING BIAS AND
PREJUDICE, WHEN SHE DENIED THE APPELLANT’S MOTION TO
VACATE AN ORDER THAT WAS FACTUALLY INCORRECT, ILLEGAL
AND OUTDATED; AND WAS NOT IN FACT SIGNED BY THE TRIAL
JUDGE ASSIGNED TO THIS CASE?
II. SHOULD THE TRIAL COURT RECUSE HERSELF PROM THIS
CASE, DUE TO CONTINUED BIAS AND PREJUDICE THAT HAS LED
TO IRREGULARITIES, MISTAKES, MIS-REPRESENTATIONS OF
THE FACTS, A FAILURE TO ACT IN A FAIR AND HONEST MANNER,
WHICH HAS CAUSED THE APPELLANT TO SUFFER A WILLFUL
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5We issued a judgment order quashing the appeal in Commonwealth v.
Major, 884 WDA 2020.
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DENIAL OF DUE PROCESS BY THE TRIAL COURT, THUS CAUSING
[sic] INTO QUESTION THE INTEGRITY OF THE COURT ITSELF?
III. DID THE TRIAL COURT SHOW BIAS AND PREJUDICE AT TRIAL
SENTENCING AND RESENTENCING; WHEN IT SENTENCED THE
APPELLANT TO A SENTENCE THAT WAS UNREASONABLY
EXCESSIVE, VIOLATED THE EIGTH [sic] AMENDMENT
PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT, AND
WAS TANTAMOUNT TO A LIFE SENTENCE?
IV. DID THE TRIAL COURT ERROR [sic] WHEN IT RESENTENCED
THE APPPELLANT TO MEGAN'S LAW III; AFTER MEGAN'S LAW III
AND SORNA WERE DEEMED TO BE UN-CONSTITUTIONAL?
Appellant’s Brief at 4.
We begin by addressing jurisdiction. Pennsylvania law provides:
Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken
or allowed.
42 Pa.C.S.A. § 5505 (emphasis added). The Pennsylvania Rules of Appellate
Procedure provide:
(a) General rule.--Except as otherwise prescribed by these
rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer
proceed further in the matter.
(b) Authority of a trial court or other government unit after
appeal.--After an appeal is taken or review of a quasijudicial
order is sought, the trial court or other government unit may:
(1) Take such action as may be necessary to preserve the status
quo, correct formal errors in papers relating to the matter, cause
the record to be transcribed, approved, filed, and transmitted,
grant leave to appeal in forma pauperis, grant supersedeas, and
take other action permitted or required by these rules or otherwise
ancillary to the appeal or petition for review proceeding.
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Pa.R.A.P. 1701(a) and (b)(1).
Here, the PCRA court vacated the June 9, 2020 order on November 19,
2020, outside the thirty-day period, and while the case was on appeal.
Although this Court had ordered the PCRA court to conduct a Grazier hearing,
we retained jurisdiction “pending compliance with this order.” Order, 10/26/20.
Thus, the PCRA court did not have jurisdiction to vacate the June 9, 2020 order
under 42 Pa.C.S.A. § 5505, and it is not clear whether there were “formal errors
in papers” as stated in Pa.R.A.P. 1701.
However, there are exceptions to the general rule that an appeal divests
a trial court of jurisdiction. One exception is a trial court’s “inherent power”
to correct “patent and obvious errors.” Commonwealth v. Hoover, 231 A.3d
785, 792 (Pa. 2020) (Opinion Announcing Judgment of the Court) (quoting
Commonwealth v. Holmes, 933 A.2d 57, 67 (Pa. 2007)); see also
Commonwealth v. Hansley, 47 A.3d 1180, 1189 (Pa. 2012) (“Thus, under
limited circumstances, even where the court would normally be divested of
jurisdiction, a court may have the power to correct patent and obvious
mistakes.”). This power may be exercised in circumstances even after a notice
of appeal has been filed to correct “a patent defect or mistake in the record.”
Commonwealth v. Klein, 781 A.2d 1133, 1135 (Pa. 2001).
The June 9, 2020 order dismissing Appellant’s PCRA as untimely
contained a patent and obvious error, as this Court had already determined
that the PCRA petition was timely. See Commonwealth v. Major, 2018 WL
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4957913, at *4. Moreover, on remand, the PCRA court treated the petition
as timely, permitting Appellant to amend, and then finding the petition to lack
merit. While the PCRA court has not explained the confusion,6 it appears the
court had the “inherent power to correct.” Klein, 781 A.2d at 1135 (citations
omitted). Accordingly, we conclude the court had jurisdiction to vacate the
June 9, 2020 order and enter the November 19, 2020 order. We therefore
address Appellant’s issues.
It is well-settled that in reviewing the denial of PCRA relief, “we examine
whether the PCRA court’s determination is supported by the record and free
of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)
(citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, [that] his conviction or
sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A.
§ 9543(a)(2).” Id.
“[A]lthough this Court is willing to construe liberally materials filed by a
pro se litigant, pro se status generally confers no special benefit upon an
appellant.” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005)
(citation omitted). “To the contrary, any person choosing to represent himself
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6 The PCRA court has not explained why the error was not rectified within 30
days, or why it denied the motion to vacate when Appellant identified the
error. Were we to find the PCRA court lacked jurisdiction to vacate the June
9, 2020 order, Appellant would be adversely impacted as a result of the
breakdown in the process of the PCRA court.
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in a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.” Id. Instantly, Appellant’s
arguments are rambling, repetitive, and for the most part, lacking citation to
pertinent legal authority. However, we address Appellant’s issues as best we
discern them.
In his first issue, Appellant claims the PCRA court erred in denying his
motion to vacate. Appellant’s Brief at 14-16. The Commonwealth correctly
observes this issue is moot because the PCRA court vacated the June 9, 2020
order in its November 19, 2020 order. Commonwealth Brief at 16-17. We
agree. See Commonwealth v. Nava, 966 A.2d 630, 633 (Pa. Super. 2009)
(“An issue before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.”); see also In re Gross,
382 A.2d 116, 119 (Pa. 1978) (“[A] legal question can become moot on appeal
as the result of an intervening change in the facts of the case.”).
In his second issue, Appellant contends:
. . . the trial court should recuse herself (Judge Rangos) due to
continued bias and prejudice. This had led to irregularities,
blatant and willful mistakes, deliberate misrepresentation of the
facts, and a failure to act in a fair and honest manner. This had
caused the Appellant to suffer a willful denial of due process by
the trial court, thus calling into question the integrity of the court
itself[.]
Appellant’s Brief at 17. We disagree.
Our standard of review of a trial court’s determination not
to recuse from hearing a case is exceptionally deferential. We
recognize that our trial judges are honorable, fair and competent,
and although we employ an abuse of discretion standard, we do
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so recognizing that the judge himself is best qualified to gauge his
ability to preside impartially.
As a general rule, a motion for recusal is initially
directed to and decided by the jurist whose
impartiality is being challenged. In considering a
recusal request, the jurist must first make a
conscientious determination of his or her ability to
assess the case in an impartial manner, free of
personal bias or interest in the outcome. The jurist
must then consider whether his or her continued
involvement in the case creates an appearance of
impropriety and/or would tend to undermine public
confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make.
Accordingly, a party seeking to compel a judge’s disqualification
must produce evidence establishing bias, prejudice or unfairness
which raises a substantial doubt as to the jurist’s ability to preside
impartially.
Commonwealth v. Bonds, 890 A.2d 414, 418–19 (Pa. Super. 2005)
(citations omitted). “Adverse rulings alone do not, however, establish the
requisite bias warranting recusal, especially where the rulings are legally
proper.” Commonwealth v. Abu–Jamal, 720 A.2d 79, 90 (Pa. 1998).
To the extent Appellant argues judicial bias during trial and his original
sentencing, those claims are waived because Appellant could have raised them
on direct appeal, but did not. See 42 Pa.C.S.A. § 9544(b).
We have reviewed Appellant’s remaining contentions, which focus on
resentencing, and evince a litany of complaints based on Appellant’s mistaken
belief that his status as an inmate and pro se litigant excuses him from
complying with court rules. Appellant also complains of actions by entities,
such as the District Attorney’s Office and Department of Corrections, which
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operate independently of the PCRA court. In addition, Appellant
misapprehends the scope of this Court’s prior remand decision, and criticizes
the court’s adverse rulings. See Appellant’s Brief at 17-21. Appellant does
not cite —and we have not found — anything in the record showing bias on
the part of Judge Rangos. Because Appellant has not produced “evidence
establishing bias, prejudice or unfairness which raises a substantial doubt as
to the jurist’s ability to preside impartially,” Bond, 890 A.2d at 419, his second
issue lacks merit.
In his third issue, Appellant avers “the trial court show[ed] bias and
prejudice at trial sentence and resentencing when it sentenced the Appellant
to a sentence that was unreasonable, excessive, violated the Eighth
Amendment prohibition against cruel and unusual punishment, and was
tantamount to a life sentence.” Appellant’s Brief at 22.
To the extent that Appellant is challenging the discretionary aspects of
his original sentence, that issue was previously litigated and rejected on direct
appeal. See Major, supra, 2014 WL 10965205, at **8-10. See also 42
Pa.C.S.A. § 9543(a)(3); Commonwealth v. Spotz, 47 A.3d 63, 101 (Pa.
2012) (issue previously litigated is not cognizable under PCRA). To the extent
Appellant challenges the discretionary aspects of his sentence following
resentencing, this claim is not cognizable under the PCRA. See 42 Pa.C.S.A.
§ 9543(a)(2)(i-viii).
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Appellant also asserts his sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment. Appellant’s Brief at 22-43.
This Court has discussed the open question about whether Eighth Amendment
sentencing challenges involve the discretionary aspects or legality of
sentencing. We explained:
there is no bright line rule establishing whether a challenge to a
sentence, constitutional or otherwise, implicates the legal or
discretionary aspects of that sentence. See Commonwealth v.
Spruill, 622 Pa. 299, 80 A.3d 453, 460–461 (2013) (noting the
Supreme Court’s “experience with claims allegedly implicating
sentence legality has not always been smooth” and noting the
complexities involved in the issue). However, this Court has
stated that “the term ‘illegal sentence’ is a term of art that our
courts apply narrowly, to a relatively small class of cases.”
Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super.
2007).
“Legality of sentence issues occur generally either: (1) when a
trial court’s traditional authority to use discretion in the act of
sentencing is somehow affected and/or (2) when the sentence
imposed is patently inconsistent with the sentencing parameter
set forth by the General Assembly.” [Commonwealth v.]
Schutzues, 54 A.3d [86,] 92 [Pa. Super. 2012] (quoting
Commonwealth v. Foster, 609 Pa. 502, 17 A.3d 332, 342
(2011)). Most other challenges implicate the discretionary
aspects of a sentence, “even though the claim may involve a legal
question, a patently obvious mathematical error, or an issue of
constitutional dimension.” Robinson, 931 A.2d at 21 (finding
that a claim of vindictiveness by the trial court when sentencing a
defendant does not implicate the legality of the sentence).
Indeed, where, as here, an appellant argues that the sentencing
court exercised its discretion in a way that was harsh,
unreasonable, or motivated by impermissible factors such as
personal animus or revenge, those contentions “are the very
hallmarks of a claim that implicates the discretionary aspects of a
sentence.” Id.Commonwealth v. Succi, 173 A.3d 269, 284-85 (Pa. Super. 2017).
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Appellant claims the PCRA court “showed bias and prejudice.”
Appellant’s Brief at 23. He further contends his sentence was “clearly
unreasonable and excessive as Appellant was only charged with statutory
crimes . . . this case was not a case of rape, or any charges that alleged
forcible compulsion, threat of forcible compulsion that would prevent
resistance by a person of reasonable resolution.” Id. at 24. Appellant
maintains the court imposed the sentence based on Appellant choosing “to
defend himself against baseless allegations.” Id. at 25. He then argues that
the court failed to consider mitigating factors, including his zero prior record
score; he also complains about his sentences being imposed consecutively.
Id. at 26-33. These assertions do not implicate the legality of Appellant’s
sentence. Robinson, 931 A.2d at 21. Despite being cloaked as Eighth
Amendment claims, they challenge the discretionary aspects sentence, which
is not cognizable under the PCRA. See Succi, 173 A.3d at 285 (finding Eighth
Amendment challenge to sentence waived where challenge implicated
discretionary aspects of sentence rather than legality of sentence).
Even assuming arguendo that we were to consider this issue a challenge
to the legality of sentence and cognizable under the PCRA, it would fail. “The
Eighth Amendment does not require strict proportionality between the crime
committed and the sentence imposed; rather, it forbids only extreme
sentences that are grossly disproportionate to the crime.” Commonwealth
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v. Baker, 78 A.3d 1044, 1047 (Pa 2013). To determine if a sentence runs
afoul of the Eighth Amendment, we must look to three factors:
[A] court's proportionality analysis under the Eighth Amendment
should be guided by objective criteria, including (i) the gravity of
the offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the
sentences imposed for commission of the same crime in other
jurisdictions.
Id. (citation omitted). This Court “is not obligated to reach the second and
third prongs of the [ ] test unless a threshold comparison of the crime
committed and the sentence imposed leads to an interference of gross
disproportionality.” Id. at 1047.
Appellant does not and cannot argue that his sentence exceeded the
statutory maximum. Also, Appellant downplays the seriousness of his crimes
by claiming that his nearly two years of sexual abuse of the victim consisted
only of “statutory offenses,” Appellant’s Brief at 24; that the victim
“fabricated” her testimony, id. at 32; and that holding a young, disabled child
hostage during an armed stand-off with police was a victimless crime because
the child “slept through the entire events of that night, he had no idea that
anything had happened, was not frightened.” Id. at 30.
Given the facts, along with Appellant’s lack of remorse or acceptance of
responsibility for his crimes, we find Appellant failed to satisfy the first prong
of the proportionality test. Even if cognizable in the context of the PCRA,
Appellant has failed to show that his sentence is illegal and in violation of the
Eighth Amendment. See Succi, 173 A.3d at 286 (finding sentence of 11½ to
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28 years for non-violent fraud offenses did not violate Eighth Amendment
even though appellant had no prior criminal record; none of the sentences
exceeded the statutory maximum, there were no mitigating factors, and
Appellant failed to show remorse). Appellant’s third issue does not merit
relief.
In his fourth and final issue, Appellant claims the court erred in
resentencing him “to Megan’s Law III after Megan’s Law III and SORNA were
deemed to be unconstitutional[.]” Appellant’s Brief at 44. For the following
reasons, we are constrained to reverse the PCRA court’s denial of relief on this
claim, vacate the portion of Appellant’s sentence requiring him to comply with
Megan’s Law III, and remand for an SVP hearing and determination as to
Appellant’s registration requirements.
In addressing this issue, we review the history of the relevant statutes,
which culminated with the current law, SORNA II, 42 Pa.C.S.A. § 9799.51, et
seq. This Court explained:
[c]ourts have also referred to SORNA as the Adam Walsh Act.
SORNA [I was] the General Assembly’s fourth enactment of the
law commonly referred to as Megan’s Law. Megan’s Law I, the
Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was
enacted on October 24, 1995, and became effective 180 days
thereafter. Megan’s Law II was enacted on May 10, 2000, in
response to Megan’s Law I being ruled unconstitutional by our
Supreme Court in Commonwealth v. Williams, . . . 557 Pa. 285,
733 A.2d 593 ([Pa.] 1999). Our Supreme Court held that some
portions of Megan’s Law II were unconstitutional in
Commonwealth v. Gomer Williams, . . . 574 Pa. 487, 832 A.2d
962 ([Pa.] 2003), and the General Assembly responded by
enacting Megan’s Law III on November 24, 2004. The United
States Congress expanded the public notification requirements of
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state sexual offender registries in the Adam Walsh Child Protection
and Safety Act of 2006, 42 U.S.C. §§ 16901-16945, and the
Pennsylvania General Assembly responded by passing SORNA [I]
on December 20, 2011, with the stated purpose of “bring[ing] the
Commonwealth into substantial compliance with the Adam Walsh
Child Protection and Safety Act of 2006.” 42 Pa.C.S. § 9799.10(1).
SORNA [I] went into effect a year later on December 20, 2012.
Megan’s Law III was also struck down by our Supreme Court for
violating the single subject rule of Article III, Section 3 of the
Pennsylvania Constitution. [Commonwealth] v. Neiman, . . .
624 Pa. 53, 84 A.3d 603, 616 ([Pa.] 2013). However, by the time
it was struck down, Megan’s Law III had been replaced by SORNA
[I].
SORNA I also failed to withstand constitutional scrutiny. In
[Muniz, supra], our Supreme Court held that
1) SORNA’s registration provisions constitute punishment
notwithstanding the General Assembly’s identification of the
provisions as nonpunitive; 2) retroactive application of SORNA’s
registration provisions violates the federal ex post facto clause;
and 3) retroactive application of SORNA’s registration provisions
also violates the ex post facto clause of the Pennsylvania
Constitution.
The Muniz Court deemed SORNA I’s registration provisions to be
punitive by applying the seven-factor test established in Kennedy
v. Mendoza–Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d
644 (1963). Applying Muniz, in conjunction with Alleyne v.
United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013), this Court deemed unconstitutional the SVP assessment
provision of SORNA I, 42 Pa.C.S. § 9799.24, because “it increases
the criminal penalty to which a defendant is exposed without the
chosen fact-finder making the necessary factual findings beyond
a reasonable doubt.” Commonwealth v. Butler, 173 A.3d 1212,
1218 (Pa. Super. 2017), [order reversed, 226 A.3d 971 (Pa.
2020)]. In direct response to Muniz and Butler, our General
Assembly passed SORNA II, which became effective on June 12,
2018. See 42 Pa.C.S. § 9799.51(d)(4) (indicating the “intention
of the General Assembly” to “[a]ddress the Pennsylvania Supreme
Court's decision in . . . Muniz. . ., and the Pennsylvania Superior
Court's decision in . . . Butler. . . .”).
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Commonwealth v. Cosby, 224 A.3d 372, 428-29 (Pa. Super. 2019) (some
citations omitted), appeal granted in part, 236 A.3d 1045 (Pa. Jun. 23, 2020).
SORNA II divides sex offender registration into two categories,
depending on the date of the offense. Through Act 10, as amended in Act 29,
the General Assembly created Subchapter I, which pertains to offenders
convicted of crimes occurring on or after April 22, 1996, but before SORNA’s
effective date, December 20, 2012. See 42 Pa.C.S.A. §§ 9799.52.
Subchapter H addresses offenders convicted of committing crimes on or after
December 20, 2012. Id. at § 9799.11(c).
On March 6, 2020, the Pennsylvania Supreme Court reversed this
Court’s decision in Butler, holding that the registration, notification and
counseling requirements applicable to SVPs “do not constitute criminal
punishment,” and therefore SORNA’s procedure for designating sex offenders
as SVPs [is permissible because it] did not violate the principles set forth in
Apprendi [v. New Jersey, 530 U.S. 466 (2013)] or Alleyne.” Butler, 226
A.3d at 993.
On July 21, 2020, our Supreme Court decided Commonwealth v.
Lacombe, 234 A.3d 602 (Pa. 2020). The Court addressed Subchapter I,
holding it was “markedly different from the version of SORNA invalidated in
Muniz.” Lacombe, 234 A.3d at 606. Employing the Mendoza-Martinez
factors, the Court concluded “Subchapter I is nonpunitive and does not violate
the constitutional prohibitions against ex post facto laws.” Id. at 605-06.
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Appellant’s resentencing occurred on August 24 - 25, 2017, shortly after
the Muniz case was decided, but prior to the enactment of SORNA II.
Accordingly, the trial court did not find Appellant subject to the registration
requirements of SORNA I. N.T., 8/24-25/17, at 161. However, the court
determined Appellant was subject to lifetime registration under Megan’s Law
III. Id.
At the time of Appellant’s conviction, Megan’s Law III applied, and
required lifetime registration for an IDSI conviction. See 42 Pa.C.S.A. §
9795.1(b)(2)(i) (expired). In Nieman, supra, our 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. Therefore, at resentencing,
Appellant could not be subject to the requirements of Megan’s Law III.
However, Appellant is subject to Subchapter I of SORNA II because
Subchapter I does not violate the ex post facto clause. Lacombe, 234 A.3d
at 605-06. Thus, Appellant is subject to Subchapter I’s registration
requirements. While ordinarily we would vacate the portion of Appellant’s
sentence requiring him to comply with Megan’s Law III, and remand for
resentencing under Subchapter I, we are unable to do so. As discussed above,
the SOAB recommended Appellant be designated an SVP, but a breakdown in
the court process ensued, and an SVP hearing never occurred. The
Commonwealth concedes this fact, but implies Appellant should be treated as
a non-SVP. See Commonwealth Brief at 3 n.2, 28-33. We disagree.
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Megan’s Law III provided:
(a) Order for assessment.--After conviction but before
sentencing, a court shall order an individual convicted of an
offense specified in section 9795.1 (relating to registration) to be
assessed by the board. The order for an assessment shall be sent
to the administrative officer of the board within ten days of the
date of conviction.
(b) Assessment.--Upon receipt from the court of an order for an
assessment, a member of the board as designated by the
administrative officer of the board shall conduct an assessment of
the individual to determine if the individual should be classified as
a sexually violent predator. The board shall establish standards
for evaluations and for evaluators conducting the assessments. .
..
****
(e) Hearing.—
(1) A hearing to determine whether the individual is a
sexually violent predator shall be scheduled upon the
praecipe filed by the district attorney. The district attorney
upon filing a praecipe shall serve a copy of same upon
defense counsel together with a copy of the report of the
board.
****
(3) At the hearing prior to sentencing the court shall
determine whether the Commonwealth has proved by clear
and convincing evidence that the individual is a sexually
violent predator.
42 Pa.C.S.A. § 9795.4(a), (b), and (e)(1) and (3) (expired) (emphases
added).
The record in this case indicates the SOAB assessed Appellant and
recommended he be designated an SVP. However, the hearing was not held
as scheduled because Appellant requested an independent assessment. N.T.,
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6/11/12, at 6-8. It appears from the record that Appellant never followed
through with obtaining an independent assessment. This Court has held an
Appellant can waive “the sequence in which his sentencing and SVP process”
take place. Commonwealth v. Whanger, 30 A.3d 1212, 1214 (Pa. Super.
2011). However, the language in Megan’s Law III requires a hearing and
judicial determination of SVP status. See 42 Pa.C.S.A. § 9795.4(e)(1)
(expired). Likewise, Subchapter I contains nearly identical language
compelling a hearing and determination. 42 Pa.C.S.A. § 9799.58(e). Thus,
we reverse the PCRA court’s denial of relief on this issue only; we vacate the
portion of Appellant’s sentence subjecting him to registration requirements of
Megan’s Law III, and remand for an SVP hearing pursuant to Subchapter I,7
and disposition as to Appellant’s registration requirements under SORNA II.
Order affirmed in part and reversed in part. Judgment of sentence with
respect to registration requirements vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
____________________________________________
7 The court shall order an updated assessment at its discretion, or at the
request of either Appellant and/or the Commonwealth.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2021
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