Com. v. Galleher, C.

J-S69036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHALLAN A. GALLEHER :
:
Appellant : No. 654 MDA 2018
Appeal from the Order Entered January 10, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000295-2006
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
CONCURRING STATEMENT BY LAZARUS, J.: FILED JANUARY 08, 2019
I concur. It is clear that Appellant, who committed his crimes and
entered a guilty plea long before SORNA went into effect, was not subject to
SORNA’s registration requirements.1 See N.T. Sentencing, 1/15/07.
Therefore, I agree with the majority’s determination that Muniz is inapplicable
here, and with its assertion that Muniz cannot save an untimely PCRA
petition.2 I write separately, however, to point out that, as Appellant argues
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1 42 Pa.C.S.A. §§ 9799.10-9799.41, effective December 20, 2012.
2 See 42 Pa.C.S.A. § 9545(b)(1)(iii) (“(1) Any petition under this subchapter,
including a second or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges and the petitioner
proves that: . . . (iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and has been
held by that court to apply retroactively.”) (emphasis added).
J-S69036-18
in his brief, he is in fact subject to registration, as the court acknowledged at
sentencing:
We believe the plea agreement, which exceeds the mandatory
minimums in this case, [is] appropriate given the Defendant’s prior
convictions for similar offenses and believe that with the lifetime
Megan’s Law Registration, and anticipated lengthy maximum, that this
Defendant can be kept under supervision and society protected
sufficiently.
N.T. Sentencing, supra at 4.3 The trial court is correct that Appellant was
not subject to registration and reporting requirements under SORNA, but in
light of post-Muniz legislation, Appellant remains subject to the registration
requirements set forth in Subchapter I, 42 Pa.C.S.A. § 9799.51-9799.75.4
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3 After Megan's Law II, Act of May 10, 2000, P.L. 74, was deemed
constitutionally infirm, the General Assembly enacted Megan’s Law III, Act of
November 24, 2004, P.L. 1243, which was in effect at the time Appellant
committed the instant offenses.
4 In response to Muniz and this Court’s decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017), the General Assembly passed Acts
10 and 29 of 2018 to cure SORNA’s constitutional defects. See 42 Pa.C.S.A.
§ 9799.51(b)(4) (“it is the intention of the General Assembly to address
[Muniz and Butler].”) Specifically, our General Assembly modified
Subchapter H's registration requirements for those offenders convicted of
committing offenses that occurred on or after SORNA's effective date, i.e.,
December 20, 2012. Moreover, the General Assembly added Subchapter I to
Title 42, Part VII, Chapter 97. Subchapter I sets forth registration
requirements that apply to all offenders convicted of committing offenses on
or after Megan's Law I's effective date (April 22, 1996), but prior to SORNA’s
effective date (December 20, 2012), whose period of registration has not
expired, as well as those offenders required to register under a former sexual
offender registration law of this Commonwealth on or after April 22, 1996, but
before December 20, 2012, whose period of registration has not expired. To
clarify, Appellant is arguing that the registration requirement to which he is
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J-S69036-18
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subject (Megan’s Law III), was held unconstitutional in its entirety under
Commonwealth v. Neiman, 84 A.3d 603, 615-16 (Pa. 2013), and therefore
“cannot be revived through [post-Muniz] retroactive legislation.” See
Appellant’s Brief, at 16. Because his petition is untimely, and no exception
applies, the PCRA court correctly dismissed it. Commonwealth v. Taylor,
67 A.3d 1245, 1248 (Pa. 2013).