Com. v. Bohn, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ERIC BOHN :
:
Appellant : No. 1347 MDA 2020
Appeal from the PCRA Order Entered October 16, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003115-2014
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 05, 2021
Eric Bohn appeals pro se from the order dismissing a petition that the
lower court treated as a Post Conviction Relief Act (“PCRA”) petition. See 42
Pa.C.S.A. §§ 9541-9546. Bohn argues the Sexual Offender Registration and
Notification Act (“SORNA”) is unconstitutional. We affirm.
As a result of an incident that occurred in 2014, Bohn pleaded guilty to
Aggravated Indecent Assault of a Child Less than 13 Years Old1 in exchange
for a sentence of four to 10 years’ incarceration. The court notified Bohn at
his 2015 sentencing that he would be subject to registration and reporting
requirements under SORNA. See 42 Pa.C.S.A. § 9799.13. Bohn did not file a
direct appeal.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3125(a)(7).
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Bohn filed a “Motion to be Removed from SORNA as it is Punitive” in
February 2020, which the court treated as Bohn’s first PCRA petition. Bohn
claimed that SORNA registration requirements were punitive and were
unconstitutionally applied to him retroactively, and sought relief under
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and its progeny. The
PCRA court appointed counsel, who filed a “no-merit” letter and motion to
withdraw.2
The PCRA court thereafter issued a notice of its intent to dismiss Bohn’s
petition without a hearing. See Pa.R.Crim.P. 907. The court found the petition
was untimely under the PCRA’s filing requirements, as Muniz does not qualify
a petition as timely under the PCRA’s third timeliness exception, and
moreover, Bohn did not file his petition within 60 days of the Muniz decision.
See Rule 907 Notice, filed 7/16/20, at 4-5. The same day, the court issued an
order granting counsel’s motion to withdraw.
Bohn filed a pro se response, in which he claimed PCRA counsel was
ineffective for failing to contact him, and that the PCRA court had “jurisdiction
to waive untimel[i]ness as said issue has been deemed unconstitutional by
the Pa Supreme Court.” Bohn’s Objections to Rule 907 notice, 9/19/20, at 1-
2.
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc).
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The court dismissed the petition, and Bohn filed a pro se notice of
appeal.3 He raises the following issues:
1. Whether the [c]ourt abused its discretion or committed error of
[l]aw by denying [Bohn’s] Post-Conviction Relief Act (“PCRA”)
[petition] under timeliness pursuant to 42 Pa.C.S.A. §
9545(b)(1)(ii)(2) when [Bohn] was entitled [to] retroactive relief
as [a] result of the Supreme Court’s ruling [in] Commonwealth
v. Muniz, 164 A.3d 1189 ([Pa.] 2017).
2. Whether the [c]ourt abused its discretion or committed error of
[l]aw by denying [Bohn] relief to be removed from Registration
Requirement (SORNA).
3. Whether the [c]ourt abused its discretion or committed error of
[l]aw by denying [PCRA] relief caused by Honorable Stephen B.
Liberman for misapprehending or ignoring facts of record and
misapplying the Law.
Bohn’s Br. at 2 (suggested answers omitted).
Bohn argues that in Muniz, the Pennsylvania Supreme Court held that
SORNA was unconstitutional. See Bohn’s Br. at 8. He claims that the 2018
amendments to SORNA were an impermissible attempt to sever the
unconstitutional provisions. Id. at 8-9. He asserts that because the prior
version of SORNA was struck down, the amended version of SORNA “cannot
be applied to past offenders retroactively, as it would violate the ex Post facto
clause of the PA Constitution Art. 1 sect. 17.” Id. at 10.
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3 Although Bohn’s Notice of Appeal does not reference the date of the order
under appeal, and Bohn has attached to his Notice of Appeal the court’s July
16, 2020 Rule 907 notice of its intention to dismiss Bohn’s petition, Bohn filed
his Notice of Appeal four days after the court issued the order dismissing his
PCRA petition, and we deem the appeal to be from that final, appealable order.
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Bohn also asserts his petition is timely, because he filed his petition
within 60 days of “when the claim became present” [sic] to him. He states
that “because of [his] incarceration, up dates [sic] on the law library
computers comes not often. So [he] put in his petition as soon as the
information came [be]came avail[able] to him.” Id. at 9.
“Whether an individual’s claims are cognizable under the PCRA presents
a question of law.” Commonwealth v. Smith, 240 A.3d 654, 657 (Pa.Super.
2020). “Thus, our standard of review is de novo, and our scope of review is
plenary.” Id.In Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), the
Pennsylvania Supreme Court declared that registrants should not be restricted
to using the PCRA as the exclusive means for challenging their registration
requirements. Id. at 617-18. Therefore, Bohn’s challenge to his sex offender
registration need not comport with the PCRA’s requirements, including those
related to timeliness. See Smith, 240 A.3d at 658; Commonwealth v.
Moose, 245 A.3d 1121, 1129, 1129 n.6 (Pa.Super. 2021).
However, we discern no constitutional violations related to Bohn’s sex
offender registration requirements. Muniz held that SORNA, in its initial form,
was punitive and therefore its retroactive application to offenders who
committed offenses prior to its 2012 effective date violated the ex post facto
clauses of the federal and state constitutions. Muniz, 164 A.3d at 1218. Here,
Bohn committed his offense in 2014, after SORNA’s effective date, and
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therefore subjecting him to SORNA’s requirements is not an ex post facto
violation. Muniz simply does not apply.
While the General Assembly amended SORNA in 2018—adding
Subchapter I to apply to those offenders who committed offenses prior to
SORNA’s 2012 enactment4—these amendments have no bearing on Bohn’s
requirements under SORNA. Moreover, as the trial court noted, the Supreme
Court has held that Subchapter I’s requirements are non-punitive and
therefore their application cannot constitute an ex post facto violation. See
Lacombe, 234 A.3d at 626-27. We therefore affirm the order denying Bohn
relief.5
Order affirmed.
Judge Murray joins the memorandum.
Judge Pellegrini files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2021
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4 See 42 Pa.C.S.A. §§9799.51-9799.75.
5 We may affirm the order of the trial court on any basis. See
Commonwealth v. Gross, 232 A.3d 819, 846 (Pa.Super.) (en banc), appeal
denied, 242 A.3d 307 (Pa. 2020).
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