Com. v. Perry, M.

J-A05039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL D. PERRY
Appellant No. 1022 WDA 2016
Appeal from the Order Entered June 28, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011774-1995
CP-02-CR-0011776-1995
CP-02-CR-0011777-1995
CP-02-CR-0011779-1995
CP-02-CR-0011780-1995
CP-02-CR-0011784-1995
CP-02-CR-0011785-1995
CP-02-CR-0011900-1995
BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.
JUDGMENT ORDER BY MOULTON, J.: FILED AUGUST 25, 2017
Michael D. Perry appeals, pro se, from the June 28, 2016 order
entered in the Allegheny County Court of Common Pleas denying his motion
to enforce plea agreement. We reverse and remand in light of the
Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, ___
A.3d ____, 2017 WL 3173066 (Pa. July 19, 2017).
On April 8, 1996, Perry entered a guilty plea to numerous charges,
including rape, kidnapping, indecent assault, corruption of minors, and
J-A05039-17
involuntary deviate sexual intercourse.1 That same day, the trial court
sentenced Perry to 10 to 20 years’ incarceration. Perry completed serving
his sentence of incarceration on June 10, 2016. On February 19, 2016,
Perry filed a motion to enforce plea agreement, arguing that he should be
held exempt from the requirements of the Sexual Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.44, because SORNA
became effective after he pled guilty and an implied term of his plea
agreement was that he would not be required to register as a sex offender.
On June 28, 2016, the trial court denied the motion. Perry filed a timely
notice of appeal.
On appeal, Perry raises the following issues:
1. Did the lower court properly enforce [Perry’s] plea
agreement where the parties reasonably understood that
all of [Perry’s] obligations to the Commonwealth of
Pennsylvania relating to the charges to which [he] pled
guilty, terminate on June 10, 2016? (Should [Perry] have
to register as a sex offender?)
2. Did the Commonwealth via the Department of
Corrections and Board of Probation and Parole breach
[Perry’s] plea agreement by applying unlawful rules and
policies that eliminated [his] chance of release on parole?
3. Does the irrebuttable presumption doctrine from In Re
J.B., 107 A.3d [1 (Pa. 2014)] apply to adults as well as
juveniles, when the risk posed by adult offenders is often
lower and always more predictable?
Perry’s Am. Br. at 9 (trial court answers omitted).
____________________________________________
1
18 Pa.C.S. §§ 3121, 2901, 3126(6), 3601, and 3123, respectively.
-2-
J-A05039-17
On July 19, 2017, the Pennsylvania Supreme Court issued its decision
in Muniz, concluding that SORNA’s registration provisions are punitive and,
thus, that retroactive application of SORNA’s registration provisions violates
the ex post facto clauses of the federal and Pennsylvania constitutions.
2017 WL 3173066, at *1.2
Because the application of SORNA to Perry appears to be
unconstitutional under Muniz, we vacate the order denying the motion to
enforce plea agreement and remand to the trial court for further proceedings
consistent with that decision.3
Order vacated. Case remanded. Jurisdiction relinquished.
____________________________________________
2
While the lead opinion in Muniz was joined in full by only three
Justices, that opinion, read together with the concurring opinion authored by
Justice Wecht and joined by Justice Todd, supports the statement of the
holding set out above. Justice Wecht’s opinion disagreed with the lead
opinion’s conclusion that the Pennsylvania Constitution’s ex post facto clause
provides greater protection than its federal counterpart. The concurring
opinion concluded that:
[T]he state and federal ex post facto clauses are
coterminous. Nonetheless, as the lead opinion’s thorough
analysis makes clear, OAJC at 27-45, applying the federal
ex post facto standards also leads to the conclusion that
SORNA is punitive and cannot be applied retroactively.
Muniz, 2017 WL 3173066, at *34 (Wecht, J., concurring).
3
Because Perry is no longer incarcerated, Perry’s second issue
challenging the failure to the Board of Probation and Parole to grant him
parole is moot.
-3-
J-A05039-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
-4-