Com. v. Slater, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES SLATER :
:
: No. 1059 WDA 2018
Appeal from the PCRA Order Entered June 27, 2018,
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008089-2007
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 27, 2020
Appellant James Slater appeals from the order dismissing his petition
challenging the application of Subchapter I1 of the Sexual Offender
Registration and Notification Act (SORNA) as an untimely Post Conviction
Relief Act2 (PCRA) petition. Appellant claims that his petition is not subject to
the PCRA and argues that the application of Subchapter I violates ex post facto
and double jeopardy constitutional protections. We affirm.
We adopt the PCRA court’s summary of the factual and procedural
history of this matter. See PCRA Ct. Op., 10/10/19, at 1-3. Briefly, on
October 21, 2013, Appellant entered a negotiated guilty plea to rape of a child,
statutory sexual assault, indecent assault, indecent exposure, and corruption
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1 42 Pa.C.S. §§ 9799.51-9799.75 (eff. Feb. 21, 2018).
2 42 Pa.C.S. §§ 9541-9546.
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of minors for an incident that occurred in 2007. Pursuant to the plea
agreement, the trial court sentenced Appellant to seven and a half to fifteen
years’ incarceration. The trial court also informed Appellant of his lifetime
registration requirement under the former version of SORNA (SORNA I).3 See
Sentencing Hr’g, 10/21/13, at 10; see also Sentencing Order, 10/21/13, at
1. Appellant did not file a direct appeal.
On July 17, 2017, nearly four years after Appellant was sentenced, our
Supreme Court decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)
(plurality). The Muniz Court applied the framework established in Kennedy
v. Mendoza-Martinez, 372 U.S. 144 (1963) to conclude that SORNA I was
“punitive in effect.” Muniz, 164 A.3d at 1218. Based on that analysis, the
High Court held that retroactive application of SORNA I constituted an ex post
facto violation when applied to a defendant who committed a sexual offense
before December 20, 2012, the effective date of SORNA I. See id. at 1223;
see also Commonwealth v. Lippincott, 208 A.3d 143, 150 (Pa. Super.
2019) (en banc).
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3 42 Pa.C.S. §§ 9799.10-9799.41 (eff. 2012). Although Act 152 (Megan’s Law
III), see 2004, Nov. 24, P.L. 1243, No. 152, was effective at the time
Appellant committed the underlying offenses, SORNA I was effective at the
time of his plea. Therefore, by its terms, SORNA I applied to Appellant. See
42 Pa.C.S. § 9799.13(1) (eff. 2012) (noting that SORNA I would apply to an
individual who was convicted of a sexually violent offense on or after
December 20, 2012, the effective date of SORNA I). We note that on
December 16, 2013, our Supreme Court held that Megan’s Law III was
unconstitutional for violating the single-subject rule. Commonwealth v.
Neiman, 84 A.3d 603, 616 (Pa. 2013).
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On September 13, 2017, Appellant filed the instant pro se PCRA petition
challenging his lifetime registration requirement under SORNA I based on
Muniz. Appointed counsel subsequently filed two amended PCRA petitions,
ultimately arguing that Appellant “cannot be subjected to any registration
requirements upon release.” Second Am. PCRA Pet., 3/13/18, ¶ 36 (emphasis
in original). According to Appellant, Subchapter I was “legally
indistinguishable from SORNA for purposes of an ex post facto analysis.” Id.
at ¶ 52. Further, he claimed that Subchapter I violated double jeopardy
principles, as it “effectively created a new criminal penalty or punishment for
the offenses he committed years ago.” Id. at ¶ 77 (emphasis in original).
Appellant also noted that the Muniz Court emphasized a “defendant’s
‘fundamental right to reputation’ under the Pennsylvania Constitution, and the
fact that SORNA registration (particularly the Megan’s Law website) affected
that right, was critical to the [Muniz] Court’s rulings that the Pennsylvania
Constitution affords more ex post facto protections than the federal
constitutions in this context.”4 Id. at ¶ 68.
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4Specifically, Appellant quoted the following portion of the lead opinion in
Muniz discussing how SORNA I violated the Pennsylvania constitution:
To summarize, we find the following to be consequential to our
analysis of the relative protections afforded by the state and
federal ex post facto clauses: the right to be free from ex post
facto laws is an ‘inherent’ and fundamental Article I right under
the Pennsylvania Constitution; this Court has previously
recognized . . . there is some divergence between the state and
federal ex post facto clauses; SORNA[ I]’s registration and online
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Additionally, Appellant asserted that the PCRA court had jurisdiction to
consider his claims under the PCRA. Id. at ¶ 8. Appellant noted that he was
“currently serving a sentence of imprisonment and is otherwise subject to
punishment in the form of SORNA registration and reporting requirements as
a result of [the trial court’s] sentence.” Id. Appellant further asserted that
his petition was not time barred because Muniz recognized a new
constitutional right that was held to apply retroactively and that he had filed
his petition within sixty days of that decision. Id. at ¶ 9. Alternatively,
Appellant argued that the PCRA court had jurisdiction to grant relief under a
trial court’s inherent authority to correct an illegal sentence. Id. at ¶ 10.
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publication provisions place a unique burden on the right to
reputation, which is particularly protected in Pennsylvania; other
states have also found the retroactivity of registration laws
unconstitutional under their state constitutions, partly due to
reputation concerns; and both the state and offender have an
interest in the finality of sentencing that is undermined by the
enactment of ever-more severe registration laws. For those
reasons, we find Pennsylvania’s ex post facto clause provides even
greater protections than its federal counterpart, and as we have
concluded SORNA’s registration provisions violate the federal
clause, we hold they are also unconstitutional under the state
clause.
Am. Pet., 6/12/18, at 78 (quoting Muniz, 164 A.3d at 1223). We note that
the passage quoted by Appellant was authored by Justice Dougherty in the
lead opinion announcing the judgement of the court joined by Justices Baer
and Donohue. However, Justice Wecht, joined by Justice Todd, filed a
concurring opinion agreeing that SORNA I was unconstitutional under the
Pennsylvania constitution, but disagreeing that the Pennsylvania constitution
provided greater protections than the federal constitution. Id. at 1224
(Wecht, J. concurring).
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On June 27, 2018, the PCRA court dismissed Appellant’s petition without
a hearing. Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a Rule 1925(a)
opinion concluding that Appellant’s petition was facially untimely and that he
could not rely on Muniz to establish a timeliness exception to the PCRA time
bar. See PCRA Ct. Op. at 4-5 (discussing Commonwealth v. Murphy, 180
A.3d 402 (Pa. Super. 2018) (holding that Muniz did not constitute a new
constitutional right under 42 Pa.C.S. § 9545(b)(1)(iii) that would excuse a
facially untimely PCRA petition challenging the application of sex offender
registration requirements)).
Of relevance to this appeal, we briefly note that on July 21, 2020, our
Supreme Court issued its decision in Commonwealth v. Lacombe, ___ A.3d
___, 35 MAP 2018, 2020 WL 4150283 (Pa. filed July 21, 2020). The Lacombe
Court rejected the Commonwealth’s argument that the trial court lacked
jurisdiction to consider challenges to sex offender registration requirements
outside the confines of the PCRA. Id. at 19-20. Further, the Lacombe Court
noted that Subchapter I was “markedly different from the version of SORNA
invalidated in Muniz.” Id. at 3. Accordingly, the Lacombe Court applied the
same Mendoza-Martinez framework employed by the Court in Muniz,
ultimately concluding that “Subchapter I is nonpunitive and does not violate
the constitutional prohibition against ex post facto laws.” Id. at 1.
Additionally, we note that our Supreme Court recently vacated this
Court’s decision in Moore, in which we held that 42 Pa.C.S. § 9799.63, the
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internet notification provision of Subchapter I, violated the federal ex post
facto clause, but was severable from the remainder of Subchapter I.
Commonwealth v. Moore, 222 A.3d 16 (Pa. Super. 2019), vacated, 42 WAL
2020 (Pa. filed Oct. 6, 2020) (per curiam order) (vacating and remanding in
light of Lacombe).
Instantly, Appellant raises the following issues for review:
1. Whether the trial court erred in ruling that it lacked jurisdiction
to adjudicate the merits of the PCRA petition and/or petition for
writ of habeas corpus?
2. Whether the trial court erred by not ruling that Subchapter I is
unconstitutional under the Federal and State ex post facto and
double jeopardy clauses?
Appellant’s Brief at 5.
In his first claim, Appellant argues that the PCRA court erred in
dismissing his petition as an untimely PCRA petition. Appellant’s Brief at 11.
He contends that “criminal courts clearly have jurisdiction to hear and decide
the merits of challenges to the retroactive application of sex offender
registration statutes.” Id. at 12. The Commonwealth, referring to several of
this Court’s previous decisions, responds that the PCRA court properly
concluded Appellant’s petition was an untimely PCRA petition. See
Commonwealth’s Brief at 21-23.
The threshold issue of whether a petitioner must raise a claim for post-
conviction relief under the PCRA raises a question of law. See
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Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa. 2016). Our standard
of review is de novo, and our scope of review is plenary. Id.As discussed previously, in Lacombe, our Supreme Court explicitly
rejected the proposition that claims involving the application of sexual
offender registration requirements must be raised in a timely PCRA petition.
See Lacombe, 35 MAP 2018 at 19-20. Initially, the Lacombe Court
explained that it had previously considered challenges to the sexual offender
registration statutes that were raised in filings outside of the PCRA. Id.(citing, in part, Muniz; Commonwealth v. Martinez, 147 A.3d 517, 523
(Pa. 2016); A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7 (Pa. 2016)).
Further, the Lacombe Court recognized 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.” Lacombe,
35 MAP 2018 at 19-20. Further, under the PCRA, a petitioner could be
ineligible for relief based on timeliness grounds or because their sentence has
expired. Id. at 20-21. Therefore, the Lacombe Court concluded that the
trial court had jurisdiction to consider Lacombe’s petition for relief. Id. at 21.
In so doing, our Supreme Court declined to find that “the PCRA, or any other
procedural mechanism, is the exclusive method for challenging sexual
offender registration statutes.” Id. at 21.
Here, in light of Lacombe, we agree with Appellant that the PCRA court
had jurisdiction to consider his challenges to his sex offender registration
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requirements. See id. at 20. Therefore, we are constrained to conclude that
the trial court erred in treating Appellant’s petition as an untimely PCRA
petition.
In his remaining claim, Appellant argues that Subchapter I is
“unconstitutional under the federal and state ex post facto and double
jeopardy clauses.”5 Appellant’s Brief at 18. Appellant contends that
Subchapter I is “not meaningfully different from SORNA for purposes of an ex
post facto analysis” and “[f]or all of the reasons that SORNA amounts to a
criminal penalty or sanction . . . Subchapter I likewise amounts to a criminal
penalty or sanction.” Id. at 32, 35. Appellant also asserts that, because
“Subchapter I is, in its operation and effect, a criminal punishment or penalty,
then it necessarily follows that Subchapter I effectuates a second punishment
on [Appellant],” in violation of double jeopardy. Id. at 42. Further, Appellant
argues that “the fundamental right to reputation under the Pennsylvania
constitution, as well as the parties’ interest in the stability, predictability and
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5 Appellant refers to this Court’s decision in Moore, arguing that, “at the very
least, [he] should be entitled to . . . an order directing the removal of
[Appellant] from the Pennsylvania State Police Megan’s Law website.”
Appellant’s Brief at 21 (citing Moore, 222 A.3d at 18). Nonetheless, he
clarifies that “[u]nlike the defendant in Moore, [Appellant] challenges the
entirety of Subchapter I of Act 10, which [he] contends is unconstitutional for
all the reasons that follow.” Id. at 22. However, because Appellant did not
raise this particular claim in the PCRA court, it is not properly before us. See
Pa.R.A.P. 302(a). In any event, as noted above, our Supreme Court recently
vacated this Court’s decision in Moore. See Moore, 42 WAL 2020.
Therefore, even if properly preserved, Appellant is not entitled to relief based
on Moore.
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finality of criminal sentences . . . should weigh heavily in favor of ruling that
Subchapter I effectively creates a second sentence or punishment.” 6 Id.
The Commonwealth responds that Subchapter I is not punitive and,
therefore, it “does not implicate federal or state constitutional ex post facto
protections.” Commonwealth’s Brief at 66. Similarly, the Commonwealth
asserts that because Subchapter I does not constitute a punishment, it “does
not offend the double jeopardy clause of either constitution.” Id. at 68.
Finally, to the extent Appellant claims that Subchapter I impacts his right to
reputation under the Pennsylvania constitution, the Commonwealth asserts
that “under the double jeopardy clause, one may conclude that damage to a
sexual offender’s reputation due to the conviction primarily occurs through the
proper exercise of due process in a criminal proceeding and not solely from
Act 10’s secondary publication of the conviction.” Id. at 71-72.
As discussed above, the Lacombe Court held that Subchapter I “is
nonpunitive and does not violate the constitutional prohibition against ex post
facto laws.” Lacombe, 35 MAP 2018 at 1. Further, the Lacombe Court
rejected a double jeopardy challenge to Subchapter I, noting that such a claim
was “predicated upon [the petitioner’s] argument that Subchapter I is
punitive.” Id. at 6, n. 5; see also Commonwealth v. Torsilieri, ___ A.3d
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6 Although Appellant emphasizes his right to reputation under the
Pennsylvania constitution, he raises this point to support his argument that
Subchapter I is punitive. See Appellant’s Brief at 34. Appellant does not raise
an independent reputation-based claim. Cf. Commonwealth v. Torsilieri,
___ A.3d ___, 2020 WL 3241625 (Pa. filed June 16, 2020).
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___, 2020 WL 3241625 (Pa. filed June 16, 2020) (distinguishing between a
claim that revised Subchapter H’s registration and notification provisions “are
punitive in nature such that they must comply with all constitutional and
statutory protections applicable to sentencing” and a claim that Subchapter H
violates “Pennsylvania’s due process protection through the unconstitutional
utilization of an irrebuttable presumption infringing upon the right to
reputation”).
Here, like in Lacombe, Appellant’s Subchapter I claims are based on
his underlying argument that Subchapter I is punitive. See Appellant’s Brief
at 23, 42 (arguing that “Subchapter I is legally indistinguishable from SORNA
for ex post facto purposes” and asserting that if Subchapter I is a criminal
punishment, then it is “within what is barred by the state double jeopardy
clause”); see also Lacombe, 35 MAP 2018 at 6, n.5. Therefore, in light of
our Supreme Court’s holding in Lacombe, Appellant is not entitled to relief.
Id. Accordingly, we affirm.7
Order affirmed.
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7 We note that recently, in Commonwealth v. Smith, --- A.3d ---, 1011 MDA
2019 (Pa. Super. filed September 28, 2020) this Court declined to address an
appellant’s claims that “SORNA registration requirements violate his due
process rights because he committed his crimes as a juvenile and because
SORNA imposed an irrebuttable presumption of recidivism for juvenile
offenders.” Smith, 1011 MDA 2019 at 2. The Smith Court remanded the
matter to the trial court for further proceedings. Id. at 6. However, under
the circumstances of the instant case, and because Lacombe is dispositive of
Appellant’s claims, we conclude that remand is unnecessary.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2020
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Circulated 09/30/2020 01:27 PM
lN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v, CC: 200708089
JAMES SLATER,
Defendant
OPINION
The Defendant has appealed from this Court's Order of June 27, 2018, which dismissed
his second Amended Post Conviction Relief Act Petition without a hearing. However, a review
of the record reveals that because the Petition is untimely, this Court lacks the jurisdiction to
address it. The Petition was, therefore, properly dismissed.
The Defendant was charged with Rape of a Child, 1 Involuntary Deviate Sexual
Intercourse with a Child,2 Statutory Sexual Assault,3 Unlawful Contact with a Minor,4 Indecent
Assault of a Child under 13,5 Indecent Exposure6 and Corruption of Minors.7 A jury trial was
held before this Court in May, 2008 and at the close of the Commonwealth's case, the
1 18 Pa.C.S.A. §3121(c)
213 Pa.C.S.A. §3123(b)
3 18 Pa.C.S.A. §3122. I
4 18 Pa.C.S.A. §63 I 8(2)
' 18 Pa.C.S.A. §3126(aX7)
6
18 Pn.C.S.A. §3127(a)
718 Pa.C.S.A. §JOl(aXI)
Defendant's Motion for Judgment of Acquittal was granted as to the Unlawful Contact with a
Minor charge. The jury returned a verdict of Not Guilty at the IDSI charge, but convicted the
Defendant of all remaining charges.
The Defendant appeared before this Court on August 18, 2008 and was sentenced to a
term of imprisonment of 10 to 20 years at the Rape count, with consecutive terms of
imprisonment of three (3) to six (6) years at the Statutory Sexual Assault count and two and one
half (2 VJ) to five (5) years at the Corruption of Minors count. His Motion for Reconsideration
was denied on August 26, 2008. The judgment of sentence was affirmed by the Superior Court
on January 26, 2010 and his subsequent Petition for Allowance of Appeal was denied by our
Superior Court on September 15, 2010.
No further action was taken until November 2, 2011, when the Defendant filed a prose
Post Conviction Relief Act Petition. Counsel was appointed to represent the Defendant and five
(5) subsequent amendments to the Petition followed. An evidentiary hearing was held before
this Court on January 8, 2013, after which this Court granted relief and ordered a new trial.
On October 21, 2013, the Defendant appeared before this Court with his new attorney,
Nicole Nino, Esquire, and entered a negotiated guilty plea to all counts and was immediately
sentenced to a term of imprisonment of seven and one half (7 1/2) to 15 years with a lifetime
term of registration. No Post-Sentence Motions were filed and no direct appeal was taken.
On November 26, 20148, the Defendant filed a prose Post Conviction Relief Act Petition.
Counsel was appointed to represent the Defendant and an Amended Petition followed. An
evidentiary hearing was held before his Court on November 10, 2015, at which time relief was
I
This Court accepted the Petition as timely pursuant to the Prisoner Mailbox Rule
2
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'
denied. A written Order to that effect followed on November 12, 2015. That Order was
affirmed by our Superior Court on October 12, 2016.
No further action was taken until September 13, 2017, when the Defendant filed a prose
Post Conviction Relief Act Petition alleging that. pursuant to Commonwealth v, Muniz, 169 A.3d
1189 (Pa 2017), his lifetime registration was unconstitutional. Counsel was appointed to
represent the Defendant and an Amended Petition was filed. The Commonwealth, through the
Office of the District Attorney filed a response to the Amended Petition. Thereafter, the
Pennsylvania State Police, through the Office of the Attorney General, sought and was granted
permission to intervene. After giving the appropriate notice of its intent to do so, this Court
dismissed the Amended Petition on June 27, 2018 without a hearing. This appeal followed.
On appeal, the Defendant has raised multiple claims of error. However, a review of the
record reveals that the Petition was untimely filed and, therefore, was properly dismissed.
Pursuant to 42 PA.C.S.A. §9545(b), any and all PCRA Petitions, "including a second or
subsequent petition, shall be filed within one year of the date the judgment of sentence becomes
final..." 42 Pa.C.S.A. §9545(b)(I). In this case, the Defendant's judgment of sentence became
final on November 20, 2013, when he failed to file a direct appeal following his guilty pica.
Therefore, in order to be timely, any PCRA Petitions should have been filed by November 20,
2014. The instant Petition, filed on September 13, 2017, is well outside of that time limitation.
However, the Amended Petition avers that the Petition is timely due to Commonwealth y. Muniz,
169 A.3d 1189 (Pa. 2017), wherein our Supreme Court held that the retroactive application of
SORNA's registration requirements violated the ex post facto clauses of the United States and
Pennsylvania constitutions.
3
The Post Conviction Relief Act states, in relevant part:
§9545. Jurisdiction and proceedings.
(b) Time for filing petition. -
(/) Any petition under this subchapter; including a second or
subsequent petition, shall be filed within one year of the date the
judgment became final, unless the petition alleges and the
petitioner proves that:
(iii) the right asserted is a constitutional righ! that was recognized by
the Supreme Court of the United States or the Supreme Court of
Pennsylvania after the lime period provided by this section and has
been held by that court to apply retroactively.
42 Pa.C.S.A. §9545(b)(iii).
In Commonweahh v. Murphy, 180 A.3d 402 (Pa.Super. 2018), our Superior Court
interpreted the effect of .MJ.mg on an otherwise-untimely PCRA Petition. In Mw:phy, the
defendant's judgment of sentence became final in 2009. In October, 2017. the defendant
attempted to challenge the lifetime registration requirement of SORNA based on our Supreme
Court's decision in Mwlg. However, our Superior Court found that Ml!niz did not operate to
save an otherwise-untimely PCRA Petition. It held, "we acknowledge that this Court has
declared that 'Muniz created a substantive rule that retroactively applies in the collateral
context: Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super, 2017). However,
because Appellant's PCRA Petition is untimely (unlike the petition at issue in Rivera-Figueroa),
he must demonstrate that the Pennsylvania Supreme Court has held that Muniz applies
retroactively in to satisfy section 9545(b)(l)(iii)... Because at this time, no such holding has
been issued by our Supreme Court, Appellant cannot rely on Muniz to meet that timeliness
4
exception." Commonwealth v. Mumhy, 180 A.3d 402, 405-406 (Pa.Super. 2018), emphasis in
original.
Given the Mur.pby Court's finding that Mm has not been held to apply retroactively, it
is clear that the Defendant cannot rely on the Muniz decision as a basis for the retroactive
constitutional right exception to the time limitation provisions of the Post Conviction Relief Act.
Inasmuch as the Defendant has failed to satisfy the requirements of the retroactive
Constitutional right exception to the Post Conviction Relief Act, his Petition was properly
classified as untimely. See Commonwealth v. Wojtaszek, 951 A.2d 1169 (Pa.Super, 2008).
"Given the fact that the PCRA's timeliness requirements are mandatory and jurisdictional in
nature, no court may properly disregard or alter them in order to reach the merits of the claims
raised in a PCRA Petition that is filed in an untimely manner." Commonwealth v, Mazzarone,
856 A.2d 1208, 1210 (Pa.Super. 2004). See also Commonwealth v. Bennett. 842 A.2d 953, 956
(Pa.Super. 2004) and Commonwealth v. Fahy. 737 A.2d 214 (Pa. 1999). As such, this Court is
bound by the time limitation provisions of the Act and, therefore, properly dismissed the
Defendant's Amended Post Conviction Relief Act Petition.
Accordingly, for the above reasons of fact and law, this Court's Order of June 27, 2018,
which dismissed his second Amended Post Conviction Relief Act Petition without a hearing must
be affirmed.
BY THE COURT: 1