Commonwealth v. McIntyre, J., Aplt.

[J-14-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 25 EAP 2019
:
Appellee :
:
: Appeal from the Judgment of
v. : Superior Court entered on
: December 17, 2018 at No. 3698
: EDA 2016, affirming the November
JEROME MCINTYRE, : 4, 2016 PCRA Order in the Court of
: Common Pleas, Philadelphia
Appellant : County, Criminal Division at No. CP-
: 51-CR-0009339-2010.
:
:
: SUBMITTED: January 31, 2020
OPINION
JUSTICE TODD FILED: June 16, 2020
On April 1, 2020, our Court issued a per curiam order reversing the judgment of
sentence of Appellant Jerome McIntyre who had been convicted of violating 18 Pa.C.S.
§ 4915 (effective 1/1/2007-12/19/2011) (“Section 4915”) for failing to register as a
convicted sex offender. See Commonwealth v. McIntyre, --- A.3d ---, 2020 WL 1546458
(Pa. filed April 1, 2020) (order). As explained more fully herein, Appellant’s challenge to
his sentence was raised in proceedings under the Post Conviction Relief Act (“PCRA”). 1
Because we found his challenge to be meritorious, but because his prison sentence
1 42 Pa.C.S. §§ 9541-9546.
expired on April 7, 2020, thus terminating our jurisdiction to grant relief as of that date, 2
we took the unusual action of issuing our April 1, 2020 order, with an opinion to follow.
We now set forth our reasons in support of that order.
I. Facts and Procedural History
Appellant was convicted of indecent assault in 2001. Pursuant to “Megan’s Law
II” 3 as then in effect, Appellant was required to register for 10 years as a sex offender with
the Pennsylvania State Police upon his release from prison in 2003. Subsequently, in
2004, the legislature enacted “Megan’s Law III,” 4 a provision of which made it a crime to
fail to register. See 18 Pa.C.S. § 4915 (effective 1/24/05 to 12/31/06). Later, in 2005,
Appellant was charged under this statute with not fulfilling this mandatory registration
requirement. He pled guilty, and he was sentenced to a year of probation.
In 2010, Appellant was (again) charged with failing to register, under the version
of Section 4915 then in effect, which is the version of that provision at issue herein. 5 In
April 2012, following a jury trial, Appellant was convicted and received a mandatory
sentence of 5 to 10 years incarceration. As noted, this sentence expired on April 7, 2020.6
2 See Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA precludes granting
relief to a petitioner who is no longer serving a sentence of imprisonment, probation, or
parole); 42 Pa.C.S. § 9543(a)(1).
3 Act of May 10, 2000, P.L. 74, No. 18.
4 Act of Nov. 24, 2004, P.L. 1243, No. 152, effective January 24, 2005.
5 The initial version of Section 4915 which became effective, along with the remainder of
Megan’s Law III, on January 24, 2005, and the version in effect in 2010 at the time
Appellant was charged with the instant offense, differed from the original version only in
that the later version increased the grading of a first offense from a second-degree
misdemeanor to a third-degree felony, and, for a second offense, as here, from a third-
degree felony to a second-degree felony.
6 In December 2011, the General Assembly enacted the “Sex Offender Registration and
Notification Act” (“SORNA”), Act of Dec. 20, 2011, P.L. 446, No. 111, § 12, December 20,
2012. SORNA repealed 18 Pa.C.S. § 4915, and replaced it with 18 Pa.C.S. § 4915.1.
[J-14-2020] - 2
Appellant, through appointed counsel, filed a direct appeal, and the Superior Court
affirmed his judgment of sentence on July 16, 2013. Commonwealth v. McIntyre, 2009
EDA 2012 (Pa. Super. filed July 16, 2013). Appellant did not seek further review with our
Court of the Superior Court’s decision. On December 16, 2013, we handed down our
decision in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), in which we held that
Megan’s Law III, which included Section 4915, was unconstitutional in its entirety as it
was passed in violation of the single subject rule of the Pennsylvania Constitution.
Appellant next filed a pro se PCRA petition on April 22, 2014, asserting his
innocence of his underlying conviction for indecent assault, and also raising several
claims of ineffective assistance of counsel. Counsel was appointed for him, but was
subsequently removed. Substitute counsel did not file an amended PCRA petition, but,
rather, a motion to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc).
The trial court, by order issued in November 2016, granted counsel’s motion and
dismissed Appellant’s PCRA petition. Appellant, again proceeding pro se, filed a timely
notice of appeal of this order, and, thereafter, filed a Pa.R.A.P. 1925(b) statement raising
over 30 claims of PCRA court error.
No further action was taken in this matter until October 10, 2017, when Appellant
filed, pro se, an amended PCRA petition in which he asserted that his sentence for
violating Section 4915 was illegal as a result of our Court’s July 19, 2017 decision in
Section 4915.1, which has been subsequently reenacted by the Act of June 12, 2018,
P.L. 140, No 29, § 1, is not at issue in this appeal.
[J-14-2020] - 3
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that retroactive application
of SORNA’s registration provisions violated the ex post facto clauses of the Pennsylvania
and United States Constitutions). 7
The trial court issued a Rule 1925(a) opinion in which it summarily rejected the
claims which Appellant raised in his Rule 1925(b) statement. In his pro se brief filed with
the Superior Court, Appellant argued that Muniz, and also our Court’s 2017 decision in
Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017) (holding that the Commonwealth
lacked authority to prosecute a defendant for violating Section 4915 after Megan’s Law
III was struck down by Neiman), changed the law such that his “conviction in whole and
in part cannot be sustained.” Appellant’s Brief in Commonwealth v. McIntyre, 3698 EDA
2016 (Pa. Super.), at 9.
The Superior Court affirmed the denial of PCRA relief. Commonwealth v.
McIntyre, 3698 EDA 2016 (Pa. Super. filed Dec. 17, 2018). In its unpublished
memorandum opinion, the court considered Appellant’s claims based on Muniz and
Derhammer – even though he did not raise the applicability of these cases in his original
PCRA petition – because, in its view, these claims concerned the legality of Appellant’s
sentence, which it concluded it had jurisdiction to consider. The court first determined
that Muniz did not apply to Appellant’s case because Appellant was convicted under
Megan’s Law III, not SORNA. Regarding Derhammer, the court opined that that case
was distinguishable since the defendant therein was prosecuted after our Court’s decision
in Neiman, whereas Appellant’s judgment of sentence became final before Neiman was
7 The trial court took no action on this amended petition.
[J-14-2020] - 4
issued, and Appellant did not argue that Neiman applied retroactively to invalidate his
conviction.
Appellant filed a pro se petition for allowance of appeal to this Court, raising the
following three issues:
1. Whether the Superior Court erred by failing to apply the
standard delineated in Teague v. Lane (1989) and its
progeny, including and specifically Montgomery v. Louisiana
(2016), allowing a retroactive application in collateral
proceedings for new substantive rules, as it is United States
Supreme Court precedent?
2. Whether a complete and fundamental miscarriage of justice
issued fatally depriving Appellant of his constitutional rights to
due process under the United States and Pennsylvania
Constitutions where the court of original jurisdiction lacked
subject matter jurisdiction to prosecute in this instant case?
3. Whether Commonwealth v. Neiman and/or Commonwealth
v. Derhammer, both Pennsylvania Supreme Court
precedents, are to be applied to his first timely PCRA as new
substantive rules in accord with the United States and
Pennsylvania Constitutions?
Commonwealth v. McIntyre, 217 A.3d 792, 792-93 (Pa. 2019) (order).
Our Court granted this petition on September 4, 2019, and we referred the matter
to our Court’s pro bono coordinator to select volunteer counsel to represent Appellant in
this appeal. Attorneys Bruce P. Merenstein and Brandy S. Ringer entered their
appearance on behalf of Appellant, and filed a brief on his behalf, along with an
unopposed motion for expedited consideration in light of the looming expiration of
Appellant’s sentence. The Commonwealth, by the Philadelphia District Attorney’s Office,
also filed a brief in which, as explained below, it concurs with Appellant that his sentence
for violating Section 4915 was illegal and subject to reversal.
[J-14-2020] - 5
After this briefing process was complete, our review, as discussed below, indicated
that Appellant was entitled to reversal of his judgment of sentence; however, because the
expiration of Appellant’s sentence was rapidly approaching, at which point our Court
would be deprived of jurisdiction to grant relief, 8 we issued a per curiam order on April 1,
2020, reversing his judgment of sentence and indicating that the present opinion would
be forthcoming. See Commonwealth v. McIntyre, --- A.3d ---, 2020 WL 1546458 (Pa. filed
April 1, 2020) (order).
II. Arguments of the Parties
Appellant first argues that, after our Court’s decision in Neiman, Section 4915
became null and void dating back to its inception, and, thus, it was as if this statute never
existed. Consequently, he maintains that it would violate due process to uphold his
conviction and to permit his incarceration thereunder. Appellant highlights that our Court
has recognized the principle that a statute which is stricken for constitutional infirmity must
be regarded as void ab initio and treated as if it never existed. See Appellant’s Brief at
11 (citing Glen-Gery Corporation v. Zoning Hearing Board, 907 A.2d 1033, 1037 (Pa.
2006) (holding that a facially untimely challenge to a zoning statute based on a claim that
the manner of the statute’s enactment violated due process must be allowed to proceed,
as the constitutional claim, if proven, would render the statute void ab initio)). Appellant
asserts that, in Derhammer, our Court acted in accordance with this principle by
recognizing that Section 4915 was rendered void ab initio as the result of our Court’s
ruling in Neiman that Megan’s Law III was unconstitutionally enacted. See id. at 12-13
(quoting Derhammer, 173 A.3d at 728 (“a conviction based on an unconstitutional statute
8 See supra note 2.
[J-14-2020] - 6
is a nullity[;] . . . an offense created by an unconstitutional law ‘is not a crime’ and ‘a
conviction under it is illegal and void, and cannot be a legal cause of imprisonment.’” (in
turn quoting Ex Parte Siebold, 100 U.S. 371, 376-77 (1879)))). Likewise, Appellant
reasons that his conviction for allegedly violating Section 4915 “is a nullity. [It] is illegal
and void, and cannot be a legal cause of imprisonment.” Id. at 13 (internal quotation
marks omitted).
Appellant further argues that, as a general matter, the Due Process Clause of the
Fourteenth Amendment of the United States Constitution prohibits a state from convicting
an individual “for conduct that its criminal statute, as properly interpreted, does not
prohibit.” Appellant’s Brief at 13 (quoting Fiore v. White, 531 U.S. 225, 228-29 (2001)
(per curiam) (holding that this Court’s interpretation of a criminal statute as precluding
criminal culpability for the offense of which petitioner was convicted, handed down after
petitioner’s conviction became final, did not constitute a new rule of law, but rather
effectively stated the law at the time of petitioner’s conviction; thus, petitioner’s conviction
and continued incarceration violated due process)). Appellant proffers that, if a conviction
based on conduct not prohibited by a criminal statute violates due process, then it
necessarily follows that a conviction for violating a criminal statute which does not exist
must also violate due process, inasmuch as there is no more fundamental principle of
justice than that “an individual should not be convicted and sentenced for violating a non-
existent statute.” Id. at 15.
Additionally, Appellant highlights that the PCRA entitled him to relief from his
conviction and sentence because the fact that his conviction was void ab initio meets
several of the criteria for PCRA relief enumerated in 42 Pa.C.S. § 9543(a)(2): his
[J-14-2020] - 7
conviction constituted a violation of his constitutional guarantee of due process,
warranting relief under Section 9543(a)(2)(i) (conviction or sentence resulted from a
violation of the Pennsylvania and United States Constitutions); his conviction resulted in
an unlawful sentence, necessitating relief under Section 9543(a)(2)(vii) (sentence is
greater than the lawful maximum) inasmuch as there is no lawful sentence for violation of
a nonexistent statute, and, thus, any sentence of incarceration is greater than allowed by
law; and his conviction warranted relief under Section 9543(a)(2)(viii) (a proceeding in a
tribunal without jurisdiction), given that the non-existence of Section 4915 deprived the
court of common pleas of jurisdiction to try him for that offense.
Appellant finally argues that, were our Court to apply the framework utilized by the
United States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989) (plurality), 9 we
would apply our Neiman decision to cases, like Appellant’s, on collateral review. In that
regard, Appellant contends that Neiman merely applied settled rules of constitutional
interpretation that existed for over 150 years. Hence, as expressing an established
constitutional rule of criminal procedure, in Appellant’s view, Neiman should be applied
retroactively under Teague. Appellant maintains that, even were we to consider Neiman
9 Teague was a plurality decision with respect to the proper standard to apply in
determining whether a decision of the high Court should be given retroactive effect in
federal habeas corpus proceedings challenging criminal convictions. Yet, a majority of
the high Court has subsequently adopted its pronouncement that a new constitutional
rule of criminal procedure does not apply, as a general matter, to federal collateral review
of convictions. By contrast, new substantive rules of constitutional law – i.e., “rules
forbidding criminal punishment of certain primary conduct” – as well as “rules prohibiting
a certain category of punishment for a class of defendants because of their status or
offense,” Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016), must be given retroactive
effect. Likewise, new rules of criminal procedure which are considered “watershed rules”
that implicate “the fundamental fairness and accuracy of the criminal proceeding” will also
be retroactively applied in federal collateral challenges to criminal convictions. Welch v.
United States, 136 S. Ct. 1257, 1264 (2016).
[J-14-2020] - 8
to have established a substantive change in the law, given that it altered the range of
criminally proscribed conduct by eliminating the offense which Appellant was charged
with committing, Teague requires its retroactive application to his case.
The Commonwealth responds that it believes, “in the interest of justice, [the]
defendant could not have been convicted of a criminal offense that was enacted through
unconstitutional legislation.” Commonwealth’s Brief at 11. The Commonwealth points
out that our Court in Neiman determined that all of Megan’s Law III, which includes
Section 4915, was passed in violation of the single subject rule of the Pennsylvania
Constitution, and that our Court has subsequently concluded in Derhammer, albeit in what
it characterizes as dicta, that the violation of the single subject rule resulted in Megan’s
Law III (and thus Section 4915) being void ab initio. The Commonwealth acknowledges
that Derhammer involved a direct appeal; however, the Commonwealth considers “the
refusal to retroactively apply those decisions in post-conviction review cases, like the
instant one, where a defendant’s judgment of sentence has become final, would create
an inequitable and unacceptable result,” with “some defendants remaining convicted of
violating a non-existent criminal statute, while others are not.” Id. at 11.
In the Commonwealth’s view, though, affording relief in this case is complicated by
the fact that Appellant did not include this claim in his PCRA petition, arguably resulting
in waiver for purposes of appellate review. The Commonwealth posits that, nevertheless,
our Court should treat Appellant’s claim for retroactive application of Neiman and
Derhammer as a claim which implicates the legality of Appellant’s sentence, given that it
is in the genus of claims involving a trial court’s lack of constitutional or statutory authority
to impose a sentence. Commonwealth’s Brief at 26-27 (quoting Commonwealth v.
[J-14-2020] - 9
Foster, 17 A.3d 332, 344 (Pa. 2011) (plurality) (legality of sentence is implicated when “a
sentencing court’s inherent, discretionary authority to wield its statutorily prescribed
powers is supplanted, abrogated, or otherwise limited, or the legislature’s intent in
fashioning a sentence has been potentially misapplied” (citation omitted)). The
Commonwealth considers Appellant’s claim to fall within this “catch-all” category of
legality of sentence claims given that, “if there was no authority to enact the criminal
statute that defendant was convicted under, then there was no legal authority for any
sentence to be imposed in this case.” Id. at 26-27 (emphasis original).
Thus, the Commonwealth agrees Appellant should be granted relief “because
there does not appear to be any authority in Pennsylvania that would provide that a
defendant can be lawfully incarcerated for breaking a law that was rendered
unconstitutional due to the manner in which it was improperly enacted.” Id. at 29. The
Commonwealth declares that it “cannot advocate for the incarceration of a person for
breaking a law that has been struck down as unconstitutional.” Id. 10
10 The Commonwealth disputes Appellant’s claim that retroactive application of Neiman
and Derhammer is implicated by Teague, inasmuch as the analysis articulated in Teague
is implicated only when a state court is considering whether to give retroactive application
to a new rule of federal law interpreting the United States Constitution, and, in any event,
Neiman and Derhammer did not articulate a new rule of constitutional law. At most, from
the Commonwealth’s perspective, Neiman involved a procedural rule, in that it was
concerned with the process the legislature used in enacting the statute; therefore, it was
not a watershed rule implicating retroactive application. The Commonwealth also rejects
Appellant’s claim that the trial court lacked jurisdiction to adjudicate his guilt and impose
a sentence, because the trial court was empowered statutorily to hear criminal cases of
this nature, and offers that Appellant is actually arguing that the trial court lacked the
power to try Appellant and impose his sentence. The Commonwealth considers such a
claim to be waivable. Commonwealth’s Brief at 25 (citing In re Melograne, 812 A.2d 1164
(Pa. 2002) (explaining the difference between a claim that a court lacked subject matter
jurisdiction, which is nonwaivable, and a claim that a court lacked power to take a
particular action, which can be waived)).
[J-14-2020] - 10
III. Analysis
Appellant claims that he is entitled to relief because our Court’s decision in Neiman
– striking down Megan’s Law III due to its unconstitutional enactment – rendered Section
4915 void ab initio, and his conviction (and sentence) based thereon invalid. Before
addressing the merits of this claim, however, we must address its preservation for our
review.
Initially, as recounted above, both parties characterize the nature of Appellant’s
claim as a challenge to the legality of his sentence. Our own independent analysis has
confirmed this characterization. 11
In Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016), our Court considered the
question of whether the defendant’s challenge to a mandatory minimum sentence
imposed before such sentences were later deemed to be unconstitutional by the United
States Supreme Court in Alleyne v. United States, 133 S. Ct. 2151 (2013), was preserved
for direct appellate review, notwithstanding the fact that the defendant failed to raise the
challenge in the proceedings below. Relying on the lead opinion in Foster, supra, 12 the
defendant contended that our Court could consider his claim because it implicated the
legality of his sentence, due to the fact that the trial court lacked authority to enter the
sentence which it did. Our Court accepted this argument, and held that, because the
sentencing provision in question was later ruled by our Court to be unconstitutional, “it is
11 Because the issues involved in this appeal present pure questions of law, our review is
plenary. Commonwealth v. Parrish, 224 A.3d 682, 699 (Pa. 2020).
12 In Foster, the lead opinion authored by Justice Baer, and joined by this author and
Justice McCaffery, concluded that a challenge to a sentencing court’s authority to impose
a mandatory minimum sentence, under an unconstitutional mandatory minimum
sentencing statute, implicated the legality of sentence and was not waivable. Foster, 17
A.3d at 344-45.
[J-14-2020] - 11
as if that statutory authority never existed.” Barnes, 151 A.3d at 127. Hence, we
reasoned that, because the sentencing statute was “void on its face,” and the trial court
possessed no other legal authority to enter the imposed sentence, the defendant was
entitled to challenge the legality of his sentence, regardless of the fact that he did not
preserve the issue prior to seeking direct appellate review with our Court. Id.
Likewise, Appellant’s assertion that the statute under which he was convicted was
void ab initio because it was passed in an unconstitutional fashion necessarily implicates
the trial court’s authority to impose a sentence of incarceration for that conviction, given
that a trial court is not empowered under our Commonwealth’s Sentencing Code to
sentence an individual for a non-existent criminal offense. We, therefore, conclude that
Appellant’s claim is one which implicates the legality of his sentence. See Commonwealth
v. Monarch, 200 A.3d 51 (Pa. 2019) (defendant’s claim that trial court lacked legal
authority to impose mandatory minimum sentence for his DUI conviction, because
Pennsylvania’s mandatory minimum sentencing statute was invalidated as
unconstitutional by the decision of the United States Supreme Court in Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016), implicated the legality of his sentence); see also
Commonwealth v. Spruill, 80 A.3d 453, 464 (Pa. 2013) (Saylor, J., concurring) (“Since a
conviction is the essential supporting infrastructure for a sentence, . . . ‘illegality’ with
respect to the former extends to the latter as well. The alternative is for courts to accept
as legal a sentence which is grounded upon an illegal conviction.” (citation omitted)).
Moreover, the PCRA specifically permits the courts of our Commonwealth to grant
relief from an illegal sentence. See 42 Pa.C.S. § 9542 (“This subchapter provides for an
action by which persons . . . serving illegal sentences may obtain collateral relief.”). Thus,
[J-14-2020] - 12
in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), our Court found that the
defendant’s assertion – that the trial court lacked the authority to impose his mandatory
minimum sentence because the mandatory sentencing statute under which the sentence
was imposed was rendered unconstitutional by Alleyne – should be treated as a claim
involving the legality of sentence under Barnes; as a result, it was cognizable under the
PCRA and could be raised in a timely filed PCRA petition. Inasmuch as Appellant’s claim
that the trial court lacked authority to sentence him because the statute under which he
was convicted was void ab initio is also, under Barnes, a claim involving the legality of his
sentence, it too is cognizable under the PCRA. See generally Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (“legality of sentence is always subject to review within the
PCRA,” provided the PCRA’s time limits for filing a petition thereunder, or one of its
exceptions, are satisfied). 13
However, as the Commonwealth highlights, Appellant did not include this legality
of sentence claim in his pro se PCRA petition, nor did his appointed counsel file an
amended PCRA petition presenting this issue to the PCRA court. These procedural facts,
in the Commonwealth’s view, implicate a question of waiver.
As a general matter, under the PCRA, an issue is waived “if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in
a prior state postconviction proceeding.” 42 Pa.C.S. § 9544; Commonwealth v. Mason,
130 A.3d 601, 674 (Pa. 2015). In the case at bar, Appellant could not have raised the
issue of whether Nieman and Derhammer rendered his conviction void ab initio at trial or
13 It is undisputed that Appellant’s pro se PCRA petition was timely filed within one year
of his judgment of sentence becoming final.
[J-14-2020] - 13
on direct appeal, as Nieman was not issued by our Court until five months after his
conviction was affirmed by the Superior Court (and Derhammer was issued years after
that); thus, textually, the PCRA does not require waiver on this basis.
Appellant first raised his challenge to the legality of his sentence in his appeal to
the Superior Court from the denial of his PCRA petition – in his pro se brief – after
appointed counsel had been permitted to withdraw. In that brief, he argued that our
Court’s decisions in Neiman and Derhammer changed the law such that his “conviction
in whole and in part can not be sustained.” Appellant’s Brief in Commonwealth v.
McIntyre, 3698 EDA 2016 (Pa. Super.), at 9. For the following reasons, we conclude that,
due to the unique nature of Appellant’s legality of sentence claim – founded, as it is, on
the claim that his conviction under Section 4915 was void ab initio – we may presently
address it, even though it was first raised on appeal from the denial of PCRA relief. 14
As our Court has previously explicated, the void ab initio doctrine is rooted in a
judicial imperative to protect individual constitutional rights, such as the right of due
process, against transgression by coordinate branches of government:
Under this theory, a statute held unconstitutional is
considered void in its entirety and inoperative as if it had no
existence from the time of its enactment. The origin of this
doctrine may lie in the early case of Marbury v. Madison[, 5
U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)], in which Chief Justice
14 Neither Barnes nor DiMatteo directly addresses this question, given that both cases
arrived at our Court in a different procedural posture than the case at bar — Barnes
involved a direct appeal from a judgment of sentence, and DiMatteo involved an appeal
from a PCRA petition in which the legality of sentence had been raised in the PCRA
petition. Moreover, prior to both decisions, our Court had previously held in
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that, under the Teague
framework, the high Court’s ruling in Alleyne – which was the focus in Barnes and
DiMatteo – was not entitled to retroactive application to cases pending on collateral
review, and that, as a result, the defendant’s sentence in that case was not rendered
illegal by Alleyne.
[J-14-2020] - 14
Marshall wrote that “a law repugnant to the constitution is
void.”
Oliver P. Field, the most noted scholar on this issue has
suggested that the void ab initio theory is premised on the
historical American concern over excessive authority asserted
by a tyrannical executive or legislative branch in violation of
the rights of individuals protected by the Constitution. Field
explains that whereas the Constitution prohibits the legislature
and executive from overstepping their limits, the courts came
to regard themselves as the ultimate guardians of individual
rights. Any act that invaded these rights was to be judged
unconstitutional and treated as though it never existed.
Glen-Gery, 907 A.2d at 1037 (quoting Erica Frohman Plave, The Phenomenon of Antique
Laws: Can a State Revive Old Abortion Laws in a New Era?, 58 Geo. Wash. L.Rev. 111
(1990)).
Thus, in Glen-Gery, following these precepts, our Court ruled that a claim alleging
that a zoning ordinance was passed in a manner that deprived landowners of their due
process rights to notice and an opportunity to be heard could be brought outside the time
period allowed for bringing such challenges under the Municipalities Planning Code
enacted by the General Assembly. We reasoned that such a challenge could not be
dismissed as time-barred by legislative fiat, because, if the constitutional claim were
proven, the zoning ordinance would be void ab initio and, thus, judicially unenforceable.
Glen-Gery, 907 A.2d 1044-45.
This void ab initio principle has been applied in the realm of criminal proceedings
by the United States Supreme Court in the seminal case of Ex Parte Siebold, supra. This
case established, as a fundamental principle of our system of jurisprudence, that an
unconstitutional law cannot serve as the foundation of a court’s authority to try and
imprison an individual, and, thus, criminal convictions and sentences based upon such
unconstitutional laws must not be permitted to stand. The high Court declared therein
[J-14-2020] - 15
that “[a]n unconstitutional law is void, and is as no law. An offence created by it is not a
crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot
be a legal cause of imprisonment.” Ex parte Siebold, 100 U.S. at 376–77.
Appellant’s void ab initio claim therefore implicates all phases of the criminal
proceedings against him, dating to their beginning, and seeks to have them declared null
and void, as, in his view, judicial enforcement of his incarceration under an
unconstitutionally enacted statute would result in a denial of his most basic due process
right — that of liberty. This claim does not, therefore, involve the more typical question,
such as that which our Court confronted in Washington, see supra note 14, of whether a
judicial decision declaring a species of sentence to be unconstitutional should be given
retroactive effect on collateral review. Indeed, this question does not involve retroactivity
at all, given that, as Appellant develops in his brief to our Court, his claim is, at its core,
an assertion that his conviction and resulting sentence are, and in effect always were,
illegal under Pennsylvania law. See, e.g., Fiore, 531 U.S. at 228 (where our Court’s
interpretation of a criminal statute rendered after the defendant was convicted “was the
law of Pennsylvania - as properly interpreted - at the time of [defendant’s] conviction.
[Thus] this case presents no issue of retroactivity.”); cf. Kendrick v. District Attorney of
Philadelphia County, 916 A.2d 529, 539 (Pa. 2007) (“[a] person does not run afoul of
Pennsylvania criminal law unless he violates a specific statute;” our Court’s construction
of a criminal statute as not proscribing certain conduct reflects the scope of the statute at
the time of its enactment).
Consequently, given that this case involves an assertion of an illegal sentence due
to a void ab initio conviction, we conclude that Appellant is entitled to judicial review of his
[J-14-2020] - 16
unique Derhammer-based claim, even though it was raised for the first time in his appeal
from the denial of his PCRA petition.
Turning to the merits of Appellant’s claim, our Court in Neiman declared Megan’s
Law III, of which Section 4915 was a part, to be unconstitutionally enacted – a
determination that it was void from the date it purported to take effect. Our Court
acknowledged this fact in Derhammer, wherein we ruled that the Commonwealth was
barred from prosecuting a defendant under Section 4915 following Neiman:
It is undisputed that a conviction based on an unconstitutional
statute is a nullity. In [Ex Parte] Siebold the Supreme Court
explained that an offense created by an unconstitutional law
“is not a crime” and “[a] conviction under it . . . is illegal and
void, and cannot be a legal cause of imprisonment.” Siebold,
100 U.S. at 376-77. It follows that [a]ppellant’s conviction
cannot be sustained to the extent it is based on Megan’s Law
III as enacted in 2004.
Derhammer, 173 A.3d at 728.
Likewise, Appellant’s conviction and sentence cannot stand, even though pre-
dating our Neiman decision, because his conviction was likewise based on Section 4915,
which, after Neiman, must be regarded as void from the time of its enactment. Accord
Commonwealth v. Wolfe, 140 A.3d 651, 661 (Pa. 2016) (“[A] sentence based on an
unconstitutional statute that is incapable of severance is void.”). Indeed, to permit
Appellant’s conviction and sentence to stand would, as he contends, and the
Commonwealth concurs, violate principles of due process, inasmuch as there was no
validly-enacted criminal statute on which the Commonwealth could base Appellant’s
conviction. Cf. Fiore (a criminal conviction offends due process whenever the
Commonwealth has failed to prove any element of a criminal offense beyond a
[J-14-2020] - 17
reasonable doubt). Appellant was, therefore, entitled to reversal of his sentence and
discharge from his conviction.
On this basis, we entered our per curiam order of April 1, 2020, reversing
Appellant’s judgment of sentence.
Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy
join the opinion.
[J-14-2020] - 18