Com. v. Ellis, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STEPHEN WELLINGTON ELLIS : No. 406 MDA 2020
Appeal from the PCRA Order Entered January 30, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001929-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STEPHEN WELLINGTON ELLIS : No. 407 MDA 2020
Appeal from the PCRA Order Entered January 30, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001930-2015
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2020
The Commonwealth appeals from the trial court’s January 30, 2020
order granting Stephen Wellington Ellis’s petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, thereby barring application of
Subchapters H and I of the Sexual Offender Registration and Notification Act
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(“SORNA II”),1 and vacating Ellis’s designation as a Sexually Violent Predator
(“SVP”).2 After careful review, we reverse in part and affirm in part.
On August 20, 2015, Ellis pled guilty, in the case docketed at CP-67-CR-
1929-2015, to dissemination of child pornography (18 Pa.C.S. § 6312(c)),
possession of child pornography (18 Pa.C.S. § 6312(d)), and criminal use of
a communication facility (18 Pa.C.S. § 7512(a)). These charges were based
on conduct occurring in 2015. That same day, Ellis also pled guilty in a
separate case, docketed at CP-67-CR-1930-2015, to three counts each of
indecent assault of a victim less than 13 years of age (18 Pa.C.S. §
3126(a)(7)) and corruption of minors (18 Pa.C.S. § 6301(a)(1)(ii)). These
convictions were premised on conduct occurring between 2007 and 2015. On
March 4, 2016, Ellis was sentenced to an aggregate term of 2½ to 7 years’
incarceration. In addition, based on his indecent assault convictions, Ellis was
subject to lifetime registration as a Tier III offender under the version of
SORNA in effect at that time (“SORNA I”). See 42 Pa.C.S. § 9799.14(d)(8).
Ellis was also deemed to be an SVP under SORNA I, which required lifetime
registration.
Approximately one year after Ellis was sentenced, our Supreme Court
decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), holding that
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1 42 Pa.C.S. §§ 9799.10-9799.42 and 42 Pa.C.S. §§ 9799.51-9799.75,
respectively.
2 42 Pa.C.S. § 9799.58.
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the registration requirements of Subchapter H of SORNA I, as applied
retroactively, were punitive under the seven-factor test set forth by the United
States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144(1963). Thus, the Muniz Court deemed SORNA I unconstitutional under the
ex post facto clauses of the United States and Pennsylvania Constitutions.
See Muniz, 164 A.3d at 1223.
After Muniz, a panel of this Court issued Commonwealth v. Butler,
173 A.3d 1212 (Pa. Super. 2017) (“Butler I”). There, we held that the
statutory mechanism for designating a defendant an SVP under SORNA I
violated the United States Supreme Court’s decisions in Alleyne v. U.S., 570
U.S. 99 (2013),3 and Apprendi v. New Jersey, 530 U.S. 466 (2000).4 We
reasoned that SORNA I required the trial court to make the SVP determination
by “clear and convincing” evidence, rather than the beyond-a-reasonable-
doubt standard and, thus, was unconstitutional. Butler I, 173 A.3d at 1218.
In response to Muniz and Butler I, the Pennsylvania General Assembly
amended SORNA I by enacting Act 10 on February 21, 2018, and Act 29 on
June 12, 2018, which are collectively known as SORNA II. See Act of Feb.
21, 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018, P.L. 140, No. 29
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3Alleyne holds that “facts that increase mandatory minimum sentences must
be submitted to the jury” and found beyond a reasonable doubt. Id. at 106.
4 Apprendi held that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at
490.
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(“Act 29”). SORNA II now divides sex offenders into two subchapters: (1)
Subchapter H, which applies to an offender who committed a sexually violent
offense on or after December 20, 2012 (the date SORNA I became effective);
and (2) Subchapter I, which applies to an individual who committed a sexually
violent offense on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired, or whose registration
requirements under a former sexual offender registration law have not
expired.
Pursuant to SORNA II, Ellis’s indecent assault conviction became a
Subchapter I offense requiring 10 years of registration, rather than the
lifetime registration requirement that his conviction triggered under SORNA I.
See 42 Pa.C.S. § 9799.55(a)(1)(i)(A). His SVP designation, however,
continues to carry a lifetime registration requirement under Subchapter I of
SORNA II. See 42 Pa.C.S. § 9799.55(b)(3). Ellis is also subject to registration
requirements under Subchapter H, specifically a 15-year registration
requirement for his Tier I conviction of disseminating child pornography, and
a 25-year registration period for his Tier II conviction of possession of child
pornography. See 42 Pa.C.S. § 9799.14(b)(9), (c)(4).
On June 13, 2019, Ellis filed a pro se PCRA petition challenging his
registration requirements and SVP designation. The court appointed counsel,
who filed an “Amended Post Conviction Relief Act Petition and/or Petition for
Writ of Habeas Corpus.” Therein, Ellis first claimed that his petition was timely
because his registration requirements were part of his sentence, which had
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changed with the passage of Acts 10 and 29, thus “restart[ing] the clock for
purposes of challenging that sentence.” Amended PCRA Petition, 8/9/19, at
5. Ellis also argued that Subchapters I and H of SORNA II are both punitive
for the same reasons that the Muniz Court had deemed punitive Subchapter
H of SORNA I. Id. at 6. Accordingly, he insisted that applying SORNA II
retroactively to him violates the ex post facto provisions of the United States
and Pennsylvania Constitutions. Ellis also averred that both Subchapters I
and H contain an irrebuttable presumption of dangerousness that violates his
constitutional right to reputation. Id. at 8-10. Finally, he insisted that his
SVP designation is unconstitutional under our holding in Butler I. Id. at 11-
12.
On January 28, 2020, the trial court filed an order and accompanying
opinion granting Ellis’s petition. Notably, the court accepted Ellis’s argument
that the passage of SORNA II constituted the imposition of a new sentence
that reset the PCRA’s timeliness clock. See Trial Court Opinion (TCO),
1/28/20, at 6-7. The court then concluded that Subchapters I and H are both
punitive under the Mendoza-Martinez factors and cannot be applied to Ellis,
and that Ellis’s SVP designation is unconstitutional under Butler I. Id. at 7-
15.
The Commonwealth filed a timely notice of appeal at each docket
number, which this Court consolidated. The Commonwealth also complied
with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of
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errors complained of on appeal. Herein, the Commonwealth states three
issues for our review:
1. Whether the PCRA/Habeas court erred in granting relief as the
court lacked jurisdiction to hear this matter, as the petition is
jurisdictionally untimely and whether titled as a PCRA or Habeas
petition, the jurisdictional timeliness requirements of the PCRA
apply?
2. Whether the PCRA court erred in granting [Ellis] relief, as
imposition of applicable SORNA registration is not
unconstitutional?
3. Whether the PCRA court erred in granting [Ellis] relief, as
imposition of [SVP] status and conditions is not unconstitutional?
Commonwealth’s Brief at 2.
The Commonwealth’s first two issues are resolved by our Supreme
Court’s recent decision in Commonwealth v. Lacombe, 234 A.3d 602 (Pa.
2020), and this Court’s subsequent opinion in Commonwealth v. Smith, --
A.3d --, 1011 MDA 2019, 2020 WL 5755494 (Pa. Super. filed Sept. 8, 2020).
First, in Lacombe, the Court held that the registration requirements in
Subchapter I of SORNA II do not constitute criminal punishment. Lacombe,
234 A.3d at 626.
In addition, the Lacombe Court expressly declined “to find the
PCRA, or any other procedural mechanism ... the exclusive
method for challenging sexual offender registration
statutes[.]” Lacombe[, 234 A.3d at 618]. According to the
Court, an offender’s requirements change frequently and may be
retroactively applicable. See id. [at 617]. Thus, the strict
jurisdictional requirements of the PCRA render it unsuitable,
because many registrants will be ineligible for relief on timeliness
grounds or because their criminal sentence has expired while their
registration requirements continue. See id.
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Smith, 1011 MDA 2019 at *3. After Lacombe, this Court concluded in Smith
that, because “[n]on-punitive, administrative requirements are merely
collateral consequences of a criminal conviction[,] … a challenge to the
requirements mandated by Subchapter I of SORNA II pertains to a collateral
consequence of one’s criminal sentence and does not fall within the purview
of the PCRA.” Id. (citations omitted). Accordingly, the Smith panel held that
a petitioner’s “substantive claims challenging the application of Subchapter I
of SORNA II’s lifetime registration requirements are not cognizable under the
PCRA and, thus, not subject to its time-bar.” Id.Based on Lacombe and Smith, the requirements of Subchapter I are
not criminal sanctions, and the applicability of SORNA II may be challenged
outside the PCRA. Therefore, while the trial court erroneously concluded that
Ellis was effectively ‘resentenced’ when SORNA II was enacted, it did not err
in finding that it had jurisdiction to address the merits of his claims for the
reasons set forth in Lacombe and Smith.5 However, Lacombe also leads us
to conclude that the trial court was incorrect in deciding that Subchapter I is
punitive. The Lacombe Court clearly held that Subchapter I does not
constitute criminal punishment. Accordingly, the registration requirements
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5 It is well-settled that “this Court may affirm the decision of the PCRA [c]ourt
if it is correct on any basis.” Commonwealth v. Hutchins, 760 A.2d 50, 54
(Pa. Super. 2000) (citing Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa.
2000); Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super.
1996)).
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set forth in Subchapter I may be retroactively applied to Ellis, and we reverse
the court’s order to the extent that it vacates the application of that provision
to Ellis.
In the Commonwealth’s third issue, it contends that the trial court erred
by vacating Ellis’s SVP designation. Again, we agree. The court concluded
that Ellis’s SVP designation must be vacated pursuant to Butler I, but shortly
after the trial court filed its order and opinion in this case, our Supreme Court
overruled Butler I in Commonwealth v. Butler, 226 A.3d 972, 993 (Pa.
2020) (“Butler II”). The Butler II Court determined that the registration,
notification, and counseling (“RNC”) requirements applicable to SVPs under
Subchapter H are non-punitive, explaining:
Although we recognize the RNC requirements impose affirmative
disabilities or restraints upon SVPs, and those requirements have
been historically regarded as punishment, our conclusions in this
regard are not dispositive on the larger question of whether the
statutory requirements constitute criminal punishment. This is
especially so where the government in this case is concerned with
protecting the public, through counseling and public notification
rather than deterrent threats, not from those who have been
convicted of certain enumerated crimes, but instead from those
who have been found to be dangerously mentally ill. Under the
circumstances, and also because we do not find the RNC
requirements to be excessive in light of the heightened public
safety concerns attendant to SVPs, we conclude the RNC
requirements do not constitute criminal punishment.
Butler II, 226 A.3d at 992–93 (citation omitted).
While here, Ellis was deemed an SVP under Subchapter I, this Court has
observed that “Subchapter I contains less stringent reporting requirements
than Subchapter H….” Commonwealth v. Alston, 212 A.3d 526, 529 (Pa.
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Super. 2019). Because Subchapter I’s RNC requirements applicable to SVPs
are less burdensome than are Subchapter H’s RNC requirements for SVPs, it
must be the case that Subchapter I’s RNC requirements for SVPs also do not
constitute criminal punishment, given our Supreme Court’s decision in Butler
II.
In sum, pursuant to Lacombe and Smith, the trial court had jurisdiction
to address Ellis’s substantive challenges to the application of SORNA II.
Because Lacombe holds that the registration requirements of Subchapter I
are not punitive and may, therefore, be retroactively applied to Ellis, the court
erred by vacating Ellis’s registration requirements under Subchapter I.
Additionally, Butler II and Alston establish that Ellis’s SVP designation is
constitutional. Accordingly, we reverse the court’s order to the extent that it
vacates Ellis’s Subchapter I registration requirements and his SVP status
under that provision.
However, to the extent the court’s order also vacates Ellis’s Subchapter
H requirements, we must affirm. As Ellis observes, in his amended
PCRA/habeas petition, he presented challenges to the imposition of both
Subchapter I and Subchapter H, and the trial court addressed the propriety of
both provisions in its opinion. See Ellis’s Brief at 17; TCO at 13-14.
Ultimately, the court concluded that Subchapter H is also punitive, and it
vacated Ellis’s registration requirements under that provision for his Tier I and
Tier III convictions of disseminating child pornography and possession of child
pornography. See TCO at 13-14. Ellis contends, and we agree, that the
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Commonwealth has failed to raise any challenge to the court’s Subchapter H
decision on appeal. See Ellis’s Brief at 17 (stating that, “[i]n this appeal, the
Commonwealth has challenged the court’s barring of Subchapter I but has
asserted no argument as to the vacatur of Ellis’[s] Subchapter H
obligations[,]” thus waiving it for appellate review) (emphasis in original). We
agree with Ellis that because the Commonwealth has not asserted a challenge
to the court’s Subchapter H determination, it has waived that claim on appeal.
See Pa.R.A.P. 2116(a), 2119(a); Commonwealth v. McGill, 832 A.2d 1014,
1018 n.6 (Pa. 2003) (finding waiver where the appellant abandoned claim on
appeal). Accordingly, we affirm the court’s order to the extent that it vacates
Ellis’s registration requirements under Subchapter H.6
Order reversed in part, affirmed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/02/2020
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6 We express no opinion on the propriety of the trial court’s rationale for
deeming Subchapter H punitive, or its conclusion that Subchapter H cannot
be applied to Ellis.
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