Com. v. Strickler, J. ( 2021 )

J-S20006-21 & J-S20007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY ALAN STRICKLER :
:
Appellant : No. 767 MDA 2020
Appeal from the PCRA Order Entered April 29, 2020
In the Court of Common Pleas of Juniata County Criminal Division at
No(s): CP-34-CR-0000122-1992
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY ALAN STRICKLER :
:
Appellant : No. 768 MDA 2020
Appeal from the PCRA Order Entered April 30, 2020
In the Court of Common Pleas of Juniata County Criminal Division at
No(s): CP-34-CR-0000121-1992
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 17, 2021
Appellant Jeffrey Alan Strickler appeals1 from the order dismissing his
motion to terminate his registration requirements under the Sexual Offender
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1 Although Appellant filed a separate appeal at each underlying trial court
docket number, both matters concern the trial court’s denial of Appellant’s
motion to terminate SORNA registration requirements. Therefore, we
consolidate these cases for purposes of appeal. See Pa.R.A.P. 513.
J-S20006-21 & J-S20007-21
Registration and Notification Act2 (SORNA), which the trial court treated as an
untimely Post Conviction Relief Act3 (PCRA) petition. Appellant argues that
the trial court erred by finding that he was required to register under SORNA
II and in concluding that he was required to raise his claims under the PCRA.
We affirm.
The underlying facts of this matter are well known to the parties. Briefly,
Appellant pled guilty to involuntary deviate sexual intercourse (IDSI),
aggravated indecent assault, and corruption of minors at two separate docket
numbers for an incident that occurred in 1991. On December 10, 1992, the
trial court sentenced Appellant to an agreed-upon aggregate term of six to
twenty years’ incarceration.
In 1995, the General Assembly passed Act of October 24, 1995, P.L.
1079 (Spec. Sess. No. 1) (Megan’s Law I), which went into effect on December
24, 1995. Megan’s Law I required a ten-year registration period for offenders
who had been convicted of IDSI.4 On May 10, 2000, after our Supreme Court
ruled that Megan’s Law I was unconstitutional, see Commonwealth v. D.
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2 Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29) (collectively, SORNA II). Acts 10 and 29 amended the
former version of SORNA (SORNA I) after our Supreme Court found SORNA I
unconstitutional in Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa.
2017).
3 42 Pa.C.S. §§ 9541-9546.
4 We note that all versions of Megan’s Law and SORNA have stated that an
offender’s registration period begins at the time he is released from
incarceration.
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Williams, 733 A.2d 593 (Pa. 1999), the legislature enacted Megan’s Law II.
Under Megan’s Law II, offenders convicted of IDSI were subject to lifetime
registration.
On August 8, 2001, Appellant filed a petition to enforce his plea
agreement. In his petition, Appellant argued that “[p]ursuant to the plea
agreement entered between [Appellant] and the Commonwealth, [Appellant]
was to be released after a minimum incarceration period of six years . . . and
serve the remainder [of his sentence] on parole.” See Mot. to Enforce Plea
Agreement, 8/8/01, at 2 (unpaginated).5 On October 17, 2001, the trial court
granted Appellant’s motion, vacated the judgment of sentence, and re-
sentenced Appellant to six to twelve years’ incarceration, to begin “from the
date of initial commitment.” Trial Ct. Order, 10/30/01, at 1-2.
In 2003, after our Supreme Court found that certain portions of Megan’s
Law II were unconstitutional, see Commonwealth v. G. Williams, 832 A.2d
962 (Pa. 2003), the General Assembly enacted Megan’s Law III, which went
into effect on January 24, 2005. Like Megan’s Law II, Megan’s Law III required
lifetime registration for offenders who had been convicted of IDSI.
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5 We note that in its Rule 1925(a) opinion, the trial court indicated that the
transcripts from Appellant’s original plea hearing, original sentencing, and re-
sentencing hearings were destroyed in a flood. See Trial Ct. Op., 9/17/20, at
6 n.2. However, because these facts are not in dispute, we summarize the
background of Appellant’s case based on the existing record and the
information provided by the trial court.
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On December 20, 2012, Megan’s Law III was replaced by SORNA I.6,7
On July 19, 2017, our Supreme Court issued a decision in Muniz, which
concluded that SORNA I’s registration requirements were “punitive in effect.”
Muniz, 164 A.3d at 1218. Therefore, the Court concluded that SORNA I
violated ex post facto principles when applied to individuals who committed a
sexual offense before December 20, 2012, the effective date of SORNA I. See
id. at 1223; see also Commonwealth v. Lippincott, 208 A.3d 143, 150
(Pa. Super. 2019) (en banc).
In response to Muniz, the legislature enacted SORNA II, which divides
sex offender registrants into two distinct subchapters—Subchapter H and
Subchapter I. Subchapter H includes individuals who were convicted for an
offense that occurred on or after December 20, 2012, and whose registration
requirements had not yet expired. See 42 Pa.C.S. § 9799.11(c). Subchapter
I includes individuals who were convicted for an offense that occurred “on or
after April 22, 1996, but before December 20, 2012,” or who were required
to register under a former sexual offender registration law on or after April
22, 1996, but before December 20, 2012, and whose registration
requirements had not yet expired. See 42 Pa.C.S. § 9799.52.
____________________________________________
6 42 Pa.C.S. §§ 9799.10-9799.41 (eff. 2012).
7 We note that, after SORNA I was enacted, our Supreme Court ruled that
Megan’s Law III was unconstitutional. See Commonwealth v. Neiman, 84
A.3d 603 (Pa. 2013).
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J-S20006-21 & J-S20007-21
On March 15, 2019, Appellant filed a motion seeking to “bar the
applicability of sex offender registration” under SORNA II. The trial court
subsequently denied Appellant’s motion, stating that SORNA II “addresses the
issues raised by the Muniz court in that the registration requirements . . . are
no longer punitive” and noting that, until the Pennsylvania Supreme Court
issued a decision indicating otherwise, Appellant was not entitled to relief.
Trial Ct. Order, 5/21/19, at 1.
Appellant filed the instant petition to terminate his SORNA II registration
requirements on January 27, 2020.8 At the hearing on March 6, 2020,
Appellant argued that (1) neither Subchapter I nor Subchapter H applied
because Appellant had never been required to register under a
“constitutionally valid sexual registration law;” (2) SORNA II violated ex post
facto principles when applied to Appellant retroactively; and (3) his claims
could be raised outside of the PCRA. See N.T. Mot. Hr’g, 3/6/20, at 3-6.
The Commonwealth responded that Subchapter I applied to Appellant
because he was subject to lifetime registration under Megan’s Law II at the
____________________________________________
8 Therein, Appellant argued that (1) SORNA II violated ex post facto principles;
(2) neither Subchapter I nor Subchapter H were applicable to him; (3) SORNA
II’s registration requirements could not be imposed retroactively on Appellant
because he pled guilty at a time when Megan’s Law was in effect; and (3)
SORNA II violated due process. See Pet. to Terminate Sexual Offender
Registration Requirements, 1/27/20, at 6-10 (unpaginated).
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time of his release from prison.9 Id. at 8. Further, the Commonwealth
asserted that there was a “res judicata issue” because Appellant raised
identical claims in his 2019 motion, which the trial court denied. Id. at 7-8.
Finally, the Commonwealth claimed that SORNA II implicated the legality of
Appellant’s sentence and was cognizable under the PCRA. Id. at 11.
On April 29, 2020, the trial court issued an order denying Appellant’s
motion. Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. In its Rule 1925(a) opinion, the trial
court addressed Appellant’s substantive challenges to SORNA II and concluded
that he was not entitled to relief. Trial Ct. Op., 9/17/20, at 1-3 (unpaginated).
However, the trial court also indicated that Appellant’s motion was untimely
under the PCRA. See id. at 1-3.
While this appeal was pending, our Supreme Court issued a decision in
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020). The Lacombe
Court held that petitioners may challenge the application of a sexual offender
registration statute outside the framework of the PCRA. Lacombe, 234 A.3d
at 618. Importantly, the Lacombe Court also held that “Subchapter I is
nonpunitive and does not violate the constitutional prohibition against ex post
facto laws.” Id. at 605-06.
____________________________________________
9 The Commonwealth noted that, although the date of Appellant’s release from
prison was unclear, it was undisputed that he was in prison until at least
October of 2001. Therefore, any version of Megan’s Law in effect after 2000
would have required lifetime registration based on Appellant’s conviction for
IDSI.
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J-S20006-21 & J-S20007-21
On appeal, Appellant raises the following issues, which we have
reordered as follows:
1. Whether the trial court erred in classifying Appellant’s petition
to terminate the registration, notification and verification
requirement as an untimely [PCRA] petition as the challenges
were to the constitutionality of the statute underlying the
punitive registration requirements which does not raise an
“illegal sentence” claim that is time-barred?
2. Whether the trial court erred in denying Appellant’s petition to
terminate the registration, notification, and verification
requirements, imposed upon him by Subchapter I of [SORNA],
because the retroactive application of SORNA to Appellant,
whose offenses were committed prior to the statute’s
enactment, violates the ex post facto clauses of the United
States Constitution and the Pennsylvania Constitution?
3. Whether the trial court erred in denying Appellant’s petition to
terminate the registration, notification, and verification
requirements, imposed upon him by Subchapter I of SORNA
because the imposition of Subchapter I registration and
notification requirements upon Appellant violates his right to
due process in that Subchapter I subjects Appellant to its
requirements based on a flawed irrebuttable presumption that
all persons convicted of an enumerated offense “pose ahigh
risk of committing additional sexual offenses,” thereby
impinging upon Appellant’s right to reputation without any
individualized determination that Appellant, in particular,
actually poses a risk of re-offense?
Appellant’s Brief at 4-5 (some formatting altered).
Procedural Issues
In his first claim, Appellant argues that the trial court erred in treating
his motion as an untimely PCRA petition. Appellant’s Brief at 40-42 (relying
on Lacombe).
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In response, the Commonwealth asserts that Appellant’s petition
“should have been denied by the trial court on the basis of collateral estoppel”
because the trial court previously addressed Appellant’s instant claims when
it denied Appellant’s prior petition for relief in 2019. Commonwealth’s Brief
at 2 (some capitalization omitted). The Commonwealth contends that “[a]s a
matter of policy, convicted persons should not be afforded unlimited bites at
the apple to challenge specific matters already properly litigated and decided
upon.” Id. at 4. Therefore, the Commonwealth argues that Appellant is not
entitled to review of his claims. Id.
As noted previously, our Supreme Court recently held that petitioners
may challenge sex offender registration requirements outside of the PCRA.
See Lacombe, 234 A.3d at 618. In reaching that conclusion, the Court
explained:
This Court has not yet required that sexual offender registration
statutes be challenged through the PCRA or some other procedural
mechanism. Indeed, we have consistently decided cases
regarding sexual offender registration statutes that were
challenged via different types of filings. Our approach in this
regard takes into account the fact that frequent changes to sexual
offender registration statutes, along with more onerous
requirements and retroactive application, complicate registrants’
ability to challenge new requirements imposed years after their
sentences become final.
This is especially so under the PCRA as many registrants . . . would
be ineligible for relief on timeliness grounds. Other registrants
may be ineligible because their sentence has expired while their
registration requirements continue. Both situations arise from the
fact that the registration period does not begin until registrants
are released from prison, which may be well after their sentence
has become final or may signal the completion of their sentence.
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Accordingly, we decline to find the PCRA, or any other procedural
mechanism, is the exclusive method for challenging sexual
offender registration statutes . . . .
Id. at 617-18 (citations omitted).
Here, in light of Lacombe, we agree with Appellant that the trial court
had jurisdiction to consider his SORNA claims outside of the PCRA. See id.
Further, as the Lacombe Court noted, there have been “frequent changes” to
the laws concerning sex offender registration requirements. Id. at 617.
Therefore, given the evolving nature of those laws, we reject the
Commonwealth’s assertion that Appellant should be precluded from
challenging his SORNA requirements based on collateral estoppel. See id. at
617-18.
SORNA II Claims
In his next issue, Appellant argues that the trial court erred in concluding
that he was required to register under SORNA II because neither Subchapter
H nor Subchapter I are applicable to him.10 Appellant’s Brief at 4. With
respect to Subchapter I, Appellant argues that he “does not fall within the first
classification, 42 Pa.C.S. § 9799.52(1), because he committed his offenses
prior to his arrest in these matters, which occurred on June 15, 1992, which
is clearly prior to April 22, 1996.” Id. at 18. Further, he argues that he “does
not fall within the second classification, 42 Pa.C.S. § 9799.52(2), because his
____________________________________________
10 Subchapter H applies to offenders who were convicted of offenses that
occurred on or after December 20, 2012. Here, it is undisputed that
Subchapter H is inapplicable to Appellant, who was convicted for an offense
that occurred in 1991.
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period of registration should have expired on or about October 17, 2011, after
he registered in accordance with Megan’s Law for a period of ten (10) years.”
Id.
Appellant further claims that, even if Subchapter I applies, it violates ex
post facto principles when applied to him retroactively. Id. at 19. In support,
Appellant relies on prior Commonwealth Court decisions, which stated that
Subchapter I was punitive and therefore violated ex post facto laws when
applied to a petitioner who was convicted of an offense before sex offender
registration laws were enacted. Id. at 20 (citing T.S. v. Pennsylvania State
Police, 231 A.3d 103 (Pa. Cmwlth. 2020), rev’d, 241 A.3d 1091 (Pa. 2020)).
The Commonwealth responds that at the time of Appellant’s release
from prison, he was subject to lifetime registration under Megan’s Law II,
which applied to “anyone incarcerated on or after July 9, 2000.”
Commonwealth’s Brief at 4. Therefore, the Commonwealth argues that “[a]s
a result of Appellant’s status as a prior lifetime registrant during the relevant
time period, he remains subject to lifetime registration under Act 10,
Subchapter I.” Id. at 5. Further, the Commonwealth asserts that “[t]he
Lacombe Court’s clear ruling is that Subchapter I is non-punitive and,
therefore, ex post facto protections do not apply to Appellant’s case.” Id. at
6.
Appellant’s claim raises a question of law. Therefore, “our standard of
review is de novo, and our scope of review is plenary.” Commonwealth v.
Brensinger, 218 A.3d 440, 456 (Pa. Super. 2019) (citation omitted).
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J-S20006-21 & J-S20007-21
As noted previously, all versions of Megan’s Law and both SORNA I and
II have stated that an offender’s registration period begins at the time he is
released from incarceration. Here, the record reflects that Appellant’s
registration requirements began on December 2, 2004.11 At that time,
Megan’s Law II was in effect, which required lifetime registration for offenders
who, like Appellant, had been convicted of IDSI. See 42 Pa.C.S. §
9795.1(b)(2) (expired) (requiring lifetime registration for offenders who had
been convicted of IDSI). Therefore, because Appellant was subject to
registration under Megan’s Law II, and that registration term had not expired,
Subchapter I applies. See 42 Pa.C.S. § 9799.52(2) (requiring registration for
offenders “who were[] required to register . . . under a former sexual offender
registration law . . . on or after April 22, 1996, but before December 20, 2012,
and whose registration requirements has not yet expired”).
To the extent Appellant claims that Subchapter I violates ex post facto
principles, Lacombe is dispositive. See Lacombe, 234 A.3d at 605-06
(stating that “Subchapter I is nonpunitive and does not violate the
constitutional prohibition against ex post facto laws”). Further, as
demonstrated by our Supreme Court’s decision in T.S., Lacombe applies
equally to individuals who, like Appellant, were convicted of an offense prior
to the enactment of any sex offense registration scheme. See T.S., 241 A.3d
____________________________________________11 Attached to his appellate brief, Appellant included a copy of the “Sexual
Offender Registration” paperwork on file with the Pennsylvania State Police.
Both the PSP paperwork and the Pennsylvania Megan’s Law registry state that
Appellant’s registration period began on December 2, 2004.
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1091 (reversing a decision granting relief to an individual who committed sex
offenses before sex offender registration laws were enacted, in light of
Lacombe). Accordingly, Appellant’s ex post facto challenge to Subchapter I
is meritless.
In his remaining claim, Appellant argues that Subchapter I violates his
due process rights under both the state and federal constitutions. Appellant’s
Brief at 42. However, the record reflects that although Appellant raised this
issue in his motion, he did not mention the claim nor attempt to provide any
evidence, citation to authority, or analysis at the evidentiary hearing.
Therefore, it is waived. See Pa.R.A.P. 302(a).
In sum, we conclude that Appellant is not entitled to relief on his
challenge to SORNA II’s registration requirements. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/17/2021
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