Com. v. McManus, D.

J-A19023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL P. MCMANUS, :
:
Appellant. : No. 267 EDA 2019
Appeal from the Order Entered, December 21, 2018,
in the Court of Common Pleas of Bucks County,
Criminal Division at No(s): CP-09-CR-0005883-2009.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: Filed: August 27, 2020
Daniel P. McManus appeals from the order treating his Petition to
Terminate Registration Requirements of SORNA II as a petition filed pursuant
to the Post Conviction Relief Act (“PCRA”),1 and denying relief because the
petition was untimely. While we agree that McManus could seek such relief
outside the PCRA, his claim fails given our Supreme Court’s recent decision in
Commonwealth v. Lacombe, ___ A.3d ___, 2020 WL _______ (35 & 64
MAP 2018) (Pa. 2020) (filed July 21, 2020). Thus, we affirm.
On November 9, 2009, McManus entered a guilty plea to endangering
the welfare of a child, indecent assault of person less than 13 years of age,
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
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indecent assault of person less than 16 years if age, and corruption of minors,
after he confessed to molesting his adopted daughter, then 17 years old, over
the course of almost ten years. The trial court deferred sentencing for the
completion of an evaluation by the Pennsylvania Sexual Offenders Assessment
Board (SOAB”). On December 20, 2010, this Court determined that
[McManus] met the criteria to be considered a sexually violent predator
(“SVP”) and sentenced him to a term of incarceration of one year less one day
to two years less one day plus a consecutive five-year probationary term.
Pursuant to Megan’s Law III,2 McManus was required to register as a sex
offender for the duration of his lifetime. McManus did not file a direct appeal;
therefore, his judgment of sentence became final on January 10, 2011.
The PCRA court detailed McManus’ first attempt to obtain post-
conviction relief as follows:
On February 2, 2018, more than seven years after his
judgment of sentence became final, [McManus] filed a
“Motion to Bar the Applicability of Sex Offender Registration
and/or Petition for Writ of Habeas Corpus,” which sought to
bar any requirement that he register as a sexual offender
based on the Pennsylvania Supreme Court’s decision in
(Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)]
and the Pennsylvania Superior Court decision in
[Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2017)]. On March 8, 2018, the Commonwealth filed a
response in opposition to [McManus’] motion, contending
that the motion should be treated as untimely under the
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2 42 Pa.C.S.A. §§ 9791-9799.9 (expired Dec. 20. 2012).
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[PCRA], and contesting this Court’s jurisdiction to rule on
the merits of [McManus’] motion.
On March 14, 2018, [the PCRA court] issued a Notice of
Intent to Dismiss [McManus’ motion] pursuant to
Pennsylvania Rule of Criminal Procedure 907, in which [the
court] concluded that the motion was properly subsumed
under the PCRA [and, therefore, untimely filed]. On May 4,
2018, [McManus] filed an untimely response to the Notice
of Intent to Dismiss, and on May 21, 2018, [the PCRA court]
entered an Order dismissing [McManus’] motion.
[McManus] did not timely appeal from [the PCRA court’s]
Order of May [21,] 2018. Rather he filed a “Motion for 30
day Extension of Time to File Appeal” on July 3, 2018. On
August 8, 2018, [the PCRA court] ordered the
Commonwealth to respond to [McManus’] motion and on
August 14, 2018, the Commonwealth filed its answer in
opposition to the motion. [The PCRA court] subsequently
denied [McManus’] Motion for Extension of Time on
September 4, 2018.
PCRA Court Opinion, 3/12 /19, at 5-6.3
The PCRA court further summarized the procedural history regarding
the motion at issue in this appeal:
On October 3, 2018, [McManus] filed a “Petition to
Terminate Registration and Notification Requirements of
SORNA II.” On October 15, 2018, [the PCRA court]
scheduled a hearing on [McManus’] petition and ordered
that the Commonwealth file a response. The
Commonwealth filed an “Answer and Memorandum of Law
in Opposition to [McManus’] Petition” on November 5, 2018.
After hearing argument on November 16, 2018, this Court
ordered that both parties file responsive briefs by November
30, 2018. Upon consideration of the Commonwealth’s
Supplemental Memorandum of Law, and [McManus’] Reply
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3We note that in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020), our
Supreme Court reversed this Court, finding that an SVP determination under
SORNA is not punishment and, therefore, not unconstitutional.
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to the Commonwealth’s Answer and Memorandum of Law,
[the PCRA court] denied [McManus’ petition] on December
2[1], 2018.
Id. at 6. This timely appeal followed. Both McManus and the PCRA court have
complied with Pa.R.A.P. 1925.
McManus now raises the following issues:
I. Whether the [PCRA] court erred in characterizing the
Petition to Terminate Registration Requirements of
SORNA II as a [PCRA petition], and in dismissing the
same as untimely?
II. Whether the retroactive application of the
registration, notification and verification requirements
of SORNA II, to persons whose offenses occurred prior
to the statute’s effective date, violates the ex post
facto clauses of the Pennsylvania and United States
Constitutions?
McManus’ Brief at 3.4
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(citations omitted).
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4See U.S. Const. art. 1, § 9; § 10 (providing federal prohibition against ex
post facto laws); Pa. Const., Article I, § 17 (providing state prohibition against
ex post facto laws).
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In his first issue, McManus asserts that the PCRA court erred in
dismissing the petition at issue as an untimely PCRA petition. According to
McManus, because “[t]he Pennsylvania Supreme Court has not yet issued a
decision declaring the registration and notification requirements of Subchapter
I of SORNA II to be punitive,” this Court’s “pre-Muniz holdings that lower
courts have jurisdiction to decide the merits of challenges to retroactive
application of Subchapter I” permit his filing outside of the PCRA. McManus’
Brief at 9; see id., at 11 (citing Commonwealth v. Bundy, 96 A.3d 390 (Pa.
Super. 2014), Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super.
2014), and Commonwealth v. Price, 876 A.2d 988, 992 (Pa. Super. 2005)).
Most recently, our Supreme Court in Lacombe, supra, addressed
Lacombe’s challenge as to whether the PCRA is the sole avenue for challenging
sexual offender statutes and, if so, whether Lacombe was required to establish
an exception to the PCRA’s timeliness requirements. See Lacombe, ___ A.3d
at ___, Slip Opinion at 20. The High Court observed that they have never
held that a defendant could only challenge the sexual offender statutes via a
timely petition under the PCRA.5 As our Supreme Court explained in detail:
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5 Justice Dougherty delivered the Majority Opinion, joined by Chief Justice
Saylor and Justices Baer and Todd. Justice Mundy joined the majority opinion
but expressed her disagreement with the Majority’s treatment of one of the
balancing factors considered when conducting the ex post facto analysis.
Justice Wecht filed a Concurring and Dissenting Opinion, joined by Justice
Donohue, in which he stated his agreement with the jurisdictional issue, but
opined that Subchapter I remained punitive. See infra. We further note that,
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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. See Muniz, supra (successful challenge to
constitutionality of SORNA via direct appeal),
Commonwealth v. Martinez, 147 A.3d 517, 523 (Pa.
2016) (successful challenge to increase of registration term
through “Petition to Enforce Plea Agreement or for a Writ of
Habeas Corpus” where PCRA petition would have been
untimely), A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7.
(Pa. 2016) (successful challenge to registration term
through mandamus action against PSP), [Commonwealth
v. Williams, (“Williams II”), 832 A.2d 962 (Pa. 2003)]
(unsuccessful challenge to constitutionality of Megan’s Law
II through “Motion for Extraordinary Relief” and “Motion
for Relief”). 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,
Lacombe included, would be ineligible for relief on timeliness
grounds. See 42 Pa.C.S. § 9545(b)(1) (PCRA petition must
be filed within one year of judgment of sentence becoming
final unless exception applies). Other registrants may be
ineligible because their sentence has expired while their
registration requirements continue. See 42 Pa.C.S. §
9543(a)(1) (PCRA petitioner must be serving sentence to be
eligible for relief). Both situations arise from the fact that
the registration period does not begin until registrants are
released from prison, which may well be after their sentence
has become final or may signal the completion of their
sentence. Accordingly, we decline to find the PCRA, or any
other procedural mechanism, is the exclusive method for
challenging sexual offender registration statutes and we
thus conclude the trial court had jurisdiction to consider
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in Lacombe, the High Court also addressed the companion case of
Commonwealth v. Whitmayer.
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Lacombe’s “Petition to Terminate His Sexual Offender
Registration Requirements.”
Lacombe, ___ A.3d at ___, Slip Opinion at 20-21.
In light of the above, the PCRA court, in this case, erred in treating
McManus’ “Petition to Terminate Registration and Notification Requirements
of SORNA II” as an untimely PCRA petition. Thus, we may address his second
issue in which he claims applying Subchapter I of SORNA II to him violates
both the federal and state prohibition against ex post facto laws.
McManus summarizes his argument on this issue as follows:
[McManus] submits that he cannot be compelled to
comply with Subchapter I. Subchapter I suffers from the
same inadequacies as its predecessor SORNA. It imposes a
direct restraint upon [McManus], includes requirements that
are historically regarded as punishment, is only applicable
after a criminal conviction, promotes the traditional aims of
punishment, and is excessive in relation to the purpose to
which it is assigned. Accordingly, Subchapter I violates the
ex post facto clauses of the Pennsylvania and United States
Constitutions.
McManus’ Brief at 9.6
Contrary to McManus’ argument on this issue, the Pennsylvania
Supreme Court in Lacombe has now decided that the registration and
notification requirements of Subchapter I of SORNA II are not punitive.
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6 In his Majority Opinion in Lacombe, Justice Dougherty provides a thorough
discussion of the original SORNA statute, the Muniz decision, and the new
requirements of Subchapter I. See Lacombe, ___ A.3d at ___, Slip Opinion
at 7-19. Thus, we need not repeat this statutory history and case law here.
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Therefore, Subchapter I’s application to McManus does not violate the ex post
facto clauses of the state and federal constitutions.
In Lacombe, supra, the High Court began its ex post facto analysis by
applying the same two-part analysis employed in Muniz, supra, and previous
cases:
We first consider whether the General Assembly’s “intent
was to impose punishment, and, if not, whether the
statutory scheme is nonetheless so punitive either in
purpose of effect as to negate the legislature’s nonpunitive
intent.” Williams II, 832 A.2d at 971. If we find the
General Assembly intended to enact a civil scheme, we then
must determine whether the law is punitive in effect by
considering the Mendoza-Martinez factors. Id. at 972.
Lacombe, __ A.3d at ___, Slip Opinion at 21-22 (quoting Muniz, supra).
Our Supreme Court further cited Muniz for the proposition that, when
conducting this analysis, “only the ‘clearest proof’ may establish that a law is
punitive in effect,” and that, “when determining whether a statute is civil or
punitive, we must examine the law’s entire statutory scheme.” Id.
In response to the first part of the ex post facto analysis, our Supreme
Court noted that the Pennsylvania General Assembly expressly declared that
Subchapter I “shall not be construed as punitive.” Id. at 22. Thus, the High
Court proceeded to thoroughly discuss each of the factors enumerated in
Kennedy v. Mendoza-Mendoza, 372 U.S. 144 (1963), to determine
whether Subchapter I was punitive in effect. See Lacombe, ___ A.3d at ___,
Slip Opinion at 22-35. In balancing these factors, our Supreme Court
reasoned:
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As the above Mendoza-Martinez, analysis clearly
reflects, Subchapter I effected significant changes from the
original version of SORNA, retroactive application of which
we found unconstitutional in Muniz. To summarize, we find
three of the five factors weigh in favor of finding Subchapter
I nonpunitive. Additionally, we give little weight to the fact
Subchapter I promotes the traditional aims of punishment
and give significant weight to the fact Subchapter I is
narrowly tailored to its nonpunitive purpose of protecting
the public. As we have not found the requisite “clearest
proof” Subchapter I is punitive, we may not “override
legislative intent and transform what has been denominated
a civil remedy into a criminal penalty[.]” Hudson v. United
States, 522 U.S. 93, 100 (1997), quoting United States
v. Ward, 448 U.S. 242, 249 (1980) (internal quotations
omitted).
Lacombe, ___ A.3d at ___, Slip Opinion, at 35. Thus, the High Court held
“Subchapter I does not constitute criminal punishment, and the ex post facto
claims forwarded by [Lacombe and Whitmayer] necessarily fail.” Id.This Court may affirm the denial of post-conviction relief on any ground
supported by the record. Commonwealth v. Benner, 147 A.3d 915, 919
(Pa. Super. 2016). Here, McManus’ second issue fails in light of the Lacombe
decision, and he must comply with Subchapter I of SORNA II. Thus, as
McManus is not entitled to relief, we affirm the order denying his petition to
terminate his registration requirements.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/20
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