Com. v. Haughwout, G., Sr.

J-S12040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GUY C. HAUGHWOUT, SR. :
:
Appellant : No. 1366 MDA 2022
Appeal from the Order Entered September 15, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001537-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GUY C. HAUGHWOUT, SR. :
:
Appellant : No. 1367 MDA 2022
Appeal from the PCRA Order Entered September 15, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003790-2013
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED AUGUST 28, 2023
Appellant, Guy C. Haughwout, Sr., appeals pro se from the order of the
Court of Common Pleas of Luzerne County that dismissed his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq.
He previously entered guilty pleas to failing to comply with registration
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* Retired Senior Judge assigned to the Superior Court.
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requirements and failing to provide accurate registration information under 18
Pa.C.S. § 4915.1(a)(1), (3).1 He now challenges the legality of his sentence,
the constitutionality of his convictions, and the effectiveness of his prior
counsel. After careful consideration, we agree that Appellant’s convictions
violate the ex post facto clauses of the United States and Pennsylvania
Constitutions and, as a result, Appellant is serving an illegal sentence. We
vacate the PCRA court’s order, reverse Appellant’s convictions, vacate his
judgments of sentence, and remand with instructions.
On February 15, 2002, Appellant was determined to be a sexually violent
predator (SVP) pursuant to Megan’s Law II, 42 Pa.C.S. §§ 9791-99, in cases
docketed at CP-40-CR-0003884-2000 and CP-40-CR-0001199-2001, in which
Appellant had entered guilty pleas to, inter alia, two counts of indecent
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1 At the time of Appellant’s plea, this section provided:
(a) Offense defined.--An individual who is subject to
registration under 42 Pa.C.S. § 9799.13 (relating to applicability)
commits an offense if he knowingly fails to:
(1) register with the Pennsylvania State Police as required
under 42 Pa.C.S. § 9799.15 (relating to period of
registration), 9799.19 (relating to initial registration)
or 9799.25 (relating to verification by sexual
offenders and Pennsylvania State Police);
…
(3) provide accurate information when registering under
42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.
18 Pa.C.S. § 4915.1(a)(1), (3) (version effective from December 20, 2012,
to June 11, 2018).
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assault.2 Commonwealth v. Haughwout, 837 A.2d 480, 482 (Pa. Super.
2003). The indecent assault charges were based on “incidents involving his
five-year-old daughter in the Fall of 2000 and a ten-year-old girl during the
Fall of 1996.” Id. As a sexually violent predator under Megan’s Law II,
Appellant was subject to lifetime registration requirements. Id. at 487, citing
42 Pa.C.S. § 9795.1(b)(3).
On September 17, 2015, Appellant entered a guilty plea to single counts
of failure to provide accurate registration information and failing to comply
with registration requirements at CP-40-CR-0001537-2014, and two counts of
failing to provide accurate registration information at CP-40-CR-0003790-
2014. N.T. 9/17/15, 2-3, 8. With respect to the former case, Appellant failed
to “provide accurate information and, in fact, provided false information when
registering,” and, in the latter case, he “failed to report that he owned a
vehicle both on March 8th, 2013, and May 6th, 2013.” Id. at 6-7. At a
deferred sentencing hearing, the plea court imposed an aggregate term of
eleven to twenty-two years’ imprisonment.3 N.T. 9/17/15, 8; N.T. 10/26/15,
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2 Both counts of indecent assault were violations of 18 Pa.C.S. § 3126(a)(7).
See Commonwealth v. Haughwout, 837 A.2d 480, 482 (Pa. Super. 2003).
3 The individual terms of sentence included concurrent mandatory minimum
prison terms of five to ten years and three to six years for failure to provide
accurate registration information and failing to comply with registration
requirements at CP-40-CR-0001537-2014, and consecutive prison terms of
three to six years for the two counts of failing to provide accurate registration
information at CP-40-CR-0003790-2014. N.T. 10/26/15, 12-14; Sentencing
Order, 10/26/15, 1.
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12-14; Sentencing Order, 10/26/15, 1. Appellant appealed. This Court
vacated the judgments of sentence and remanded for resentencing.
Commonwealth v. Haughwout, 161 A.3d 376 (Pa. Super. 2017) (table).
On remand, Appellant filed a motion to withdraw his guilty plea that the
plea court denied. On October 6, 2017, the plea court resentenced Appellant
to an aggregate term of ten to twenty years’ imprisonment.4 N.T. 10/6/17,
10-11. A subsequent appeal was dismissed due to Appellant’s failure to file a
docketing statement pursuant to Pa.R.A.P. 3517. PCRA Petition, 2/20/18, ¶¶
6-7. After Appellant filed a PCRA petition, the lower court reinstated his direct
appeal rights nunc pro tunc. Order, 2/20/18, 1. On direct review, Appellant
argued that our Supreme Court’s decision in Commonwealth v. Muniz, 164
A.3d 1189 (2017) (plurality), rendered the Sexual Offender Registration and
Notification Act (“SORNA I”), the former 42 Pa.C.S. §§ 9799.10-9799.41,
unconstitutional in its entirety and that the prior law under which Appellant
was deemed a lifetime registrant could not be revived.5 Commonwealth v.
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4 The individual judgments of sentence included four to eight years’
imprisonment for failing to provide accurate registration information to be
followed by two to four years’ imprisonment for failing to comply with
registration requirements at CP-40-CR-0001537-2014, and consecutive
prison terms of two to four years for the two counts of failing to provide
accurate registration information at CP-40-CR-0003790-2014. N.T. 10/6/17,
10-11; Sentencing Order, 10/6/17, 1.
5 In Muniz, the Supreme Court concluded that SORNA I’s registration and
notification requirements were punitive in effect and, therefore, the
retroactive application of SORNA I’s registration provisions to offenses
committed prior to SORNA’s effective date (December 20, 2012) violated the
(Footnote Continued Next Page)
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Haughwout, 198 A.3d 403, 405 (Pa. Super. 2018). On October 30, 2018,
this Court affirmed the judgments of sentence. Id. On April 30, 2019, our
Supreme Court denied allocatur. Commonwealth v. Haughwout, 207 A.3d
905 (Pa. 2019) (table).
Appellant filed a timely pro se PCRA petition in which he asserted that
his plea counsel had provided ineffective assistance by: (1) not interviewing
witnesses; (2) not gathering “electronic evidence;” (3) not petitioning for relief
based on Muniz; (4) inducing his plea by leading him to believe that he would
be sentenced to a term of “5 to 10;” (5) refusing to request the withdrawal of
his guilty plea “while at his formal arraignment;” and (6) “conspiring with law
enforcement and … court officials to attempt to manufacture evidence … in the
event [Appellant] would be granted his request to withdraw his plea of guilty
prior to being resentenced.” PCRA Petition, 2/21/20, § 6(A). He also asserted
in the petition that direct appeal counsel provided ineffective assistance by:
(1) “making multiple factual errors [about Appellant’s] length of sentence,
which version of Megan’s Law [he] was sentenced under, and the dates of
[his] predicate offense;” (2) failing to demonstrate that SORNA I “violated the
ex post facto clauses of both the Pennsylvania and U.S. Constitutions and how
[he] was disadvantaged by the retroactive application and enhanced reporting
requirements of said act;” and (3) failing to challenge the legality of his
sentence “for his predicate offense” which subjected him to lifetime
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ex post facto clauses in the United States and Pennsylvania Constitutions. 164
A.3d at 1193.
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registration requirements as an SVP. Id. He lastly raised an ex post facto
challenge to his sentences in the instant cases. Id. at § 15 (“whether (SORNA
I) as applied to [Appellant] is an ex post facto violation under
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)[,] and its progeny”).
The PCRA court appointed counsel. Order, 3/13/20, 1. On May 29,
2020, PCRA counsel filed a no-merit letter pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), along with a petition to
withdraw as counsel.6 After the Commonwealth filed a motion to dismiss,
Appellant filed a pro se response to counsel’s Finley letter in which he
asserted, inter alia, that PCRA counsel provided ineffective assistance by
failing to file a requested amended PCRA petition and abandoning Appellant
by filing the Finley letter and the withdrawal motion. Pro Se Response to
Finley Letter, 11/3/20, ¶ 6. In a supplemental pro se filing, Appellant argued
that his convictions under § 4915.1 were illegal and could not be based on his
indecent assault convictions which predated the effective date of SORNA I.
Pro Se Motion for Relief Pursuant to Pa.R.Crim.P. 907(a), 1/19/21, 1-6.
On May 17, 2021, the PCRA court presided over a video-conference
hearing during which Appellant restated his objections to counsel’s Finley
letter. N.T. 5/17/21, 3, 10-22. The court took the matter “under advisement”
at the end of the hearing. Id. at 28; Order, 5/17/21, 1. While a decision
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6 Appellant claimed at a video-conference hearing on September 18, 2020,
that he did not receive a copy of the Finley letter. N.T. 5/17/21, 6. The PCRA
court ordered counsel to mail a new copy of the letter to Appellant and the
court attached a copy of the letter to its order issued on that date. Id.
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remained pending, Appellant filed a petition for leave to file an amended PCRA
petition that the PCRA court denied because the new claim that Appellant
wanted to raise in the proposed petition was based on a decision of the
Pennsylvania Supreme Court that had been vacated in the meantime. Pro Se
Petition for Leave to Amend, 10/22/21; Order Regarding Petition to Amend,
12/30/21, 1. On December 30, 2021, the PCRA court issued an opinion setting
forth reasons for its intent to dismiss Appellant’s petition and granted
counsel’s withdrawal motion. Rule 907 Dismissal Notice, 12/30/21, 1.
Appellant untimely filed a pro se response restating his illegal sentence and
ineffective assistance of counsel claims.7 Pro Se Response to Rule 907 Notice,
2/3/22, 1-2; Order 12/30/21, 1 (permitting Appellant twenty days to file a
response). On September 15, 2022, the PCRA court docketed an order
dismissing Appellant’s petition. Order, 9/15/22, 1-2. Appellant filed timely
notices of appeal.8 Notices of Appeal, 9/26/22, 1. We sua sponte consolidated
the resulting appeals. Order, 10/12/22, 1.
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7 Appellant also filed notices of appeals in each of the underlying cases on May
26, 2022. Appeals resulting from those notices, which were docketed at 800-
801 MDA 2022, were quashed because the PCRA court’s notice of its intent to
dismiss Appellant’s petition was not a final appealable order. See Appellate
Dockets for 800-801 MDA 2022, Entries for 9/12/22.
8 We note that each of Appellant’s separate notices of appeal list the dockets
numbers for both of his underlying criminal cases, but each has a different
docket number highlighted. The notices comply with Pa.R.A.P. 341, which
“requires that when a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed from that order at each
docket.” Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021); see
(Footnote Continued Next Page)
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Appellant presents the following questions for our review:
1. In considering issues presented in the context of the PCRA,
do the previous litigated requirements of 42 Pa.C.S. §
9543(a)(3) invalidate the provisions of 42 Pa.C.S. § 9542
which specifically provide for an action by which persons
serving an illegal sentence may obtain collateral relief and
the PCRA’s time limits are satisfied?
2. In considering issues presented in the context of the PCRA,
do the previous litigated requirements of 42 Pa.C.S. §
9543(a) apply t[o] the instant case where the Pennsylvania
Supreme Court has since ruled contrary t[o] their decision
in Commonwealth v. Haughwout, 198 A.3d 403,[ ]404
(Pa[.] Super[ 2018]), creating or clarifying a new
substantive rule of law where the retroactive application of
the Sex Offenders Registration and Notification Act (SORNA
I) runs afoul of the Pennsylvania and U.S. Constitutional
prohibitions against ex post facto [laws] which are not
distinguished by the length of an offender[’]s registration
requirements?
3. Did [the] PCRA court err[ ] when it denied Appellant’s PCRA
[petition] given his sentence for violations of 18 Pa.C.S. §
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also Commonwealth v. Johnson, 236 A.3d 1141, 1145-48 (Pa. Super.
2020) (en banc) (finding a single defendant appealing from multiple dockets
may include multiple docket numbers on each notice of appeal, but still must
file separate notices of appeal for each docket).
Appellant’s notices of appeal did not contain the date of the PCRA court’s
dismissal order; however, he attached a copy of the order dated September
15, 2022, to his docketing statement filed with this Court. Accordingly, we
have considered the attachment as confirmation that this appeal is from the
dismissal order and have amended our caption to reflect that.
While this appeal has been pending, we remanded for a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring an on-the-
record inquiry to determine whether a waiver of counsel is knowing,
intelligent, and voluntary), at which the PCRA court permitted Appellant to
proceed pro se. Order, 11/17/22, 1-2; Order, 12/2/22, 1; Order, 12/6/22, 1-
2.
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4915.1(a)(1) and (3) (SORNA I) are illegal pursuant to the
Pennsylvania Supreme Court’s decisions in
Commonwealth v. Muniz, [164 A.3d 1189 (Pa. 2017)],
and [its p]rogeny?
4. Did [the] PCRA court commit a legal error when it denied
Appellant’s PCRA [petition] given Appellant could not
lawfully be made subject to the requirements of [SORNA I]
retroactively after the Supreme Court’s earlier decision in
Commonwealth v. Wilson, [910 A.2d 10 (Pa. 2006)]?
5. Whether trial counsel … was in[eff]ective for recommending
guilty pleas to 18 Pa.C.S.A. § 4915.1(a)(1) and (3) at both
docket numbers which could not lawfully be applied to
Appellant’s Megan’s Law convictions in light of our Supreme
Court’s decision in Commonwealth v. Wilson, [910 A.2d
10 (Pa. 2006)]?
6. Did [the] PCRA court violate Appellant’s Fourteenth
Amendment right to due process and equal protection under
the law when it denied his PCRA [petition] and relief
requested when Appellant is serving an illegal sentence for
[a] violation of a law that has been held to be an
unconstitutional ex post facto law [under] U.S. Const. Art[.]
I § 9 and P[a]. Const. Art[.] I § 17[?]
7. Was PCRA counsel ineffective when he failed to amend
Appellant’s PCRA [petition] and when he filed a
Turner/Finley [no-merit] letter along with a motion to
withdraw[ ]which the lower court granted on May 17, 2021?
Appellant’s Brief at 2 (capitalization, emphasis, and case parenthetical
omitted).
Our scope and standard of review of the denial of a PCRA petition are
well-settled:
[O]ur scope of review is limited by the parameters of the [PCRA].
Our standard of review permits us to consider only whether the
PCRA court’s determination is supported by the evidence of record
and whether it is free from legal error. Moreover, in general we
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may affirm the decision of the [PCRA] court if there is any basis
on the record to support the [PCRA] court’s action; this is so even
if we rely on a different basis in our decision to affirm.
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005) (citation
omitted). With respect to challenges to the legality of a sentence, we note
those claims present pure questions of law and thus, for those claims, our
scope of review is plenary, and our standard of review is de novo.
Commonwealth v. Petrick, 217 A.3d 1217, 1224 (Pa. 2019).
Appellant contends that the retroactive application of SORNA I in his
case where he had been sentenced to reporting requirements under Megan’s
Law II constituted a violation of the ex post facto clauses of the United States
and Pennsylvania Constitutions. He raises separate claims to that effect citing
the Pennsylvania Supreme Court’s decisions in Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017), and Commonwealth v. Wilson, 910 A.2d 10 (Pa.
2006). Due to his perceived violation of his constitutional rights, Appellant
asserts that his sentences for violating section 4915.1 are illegal and that his
prior counsel were ineffective for advising him to enter the guilty pleas, not
properly challenging the legality of his sentence, and not adopting his
ineffective assistance of counsel and legality of sentence claims in an amended
PCRA petition. Anticipating possible grounds for waiver, Appellant also argues
that his prior litigation of an illegal sentence claim pursuant to Muniz on direct
review should not preclude this Court from presently evaluating the legality of
his sentence.
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In his first issue presented, Appellant argues that his legality of
sentence claim cannot be considered waived as previously litigated under 42
Pa.C.S. § 9543(a)(3) (addressing a PCRA petitioner’s burden to plead and
prove that his claims for collateral review have not been previously litigated
or waived). Appellant’s Brief at 5-6. He is not so much presenting a claim for
relief as much as he is addressing the reviewability of his challenge to the
legality of his sentence. Though Appellant has not cited any caselaw
addressing the applicability of Section 9543(a)(3) in the context of our review
of legality of sentence claims, we agree with Appellant that his legality of
sentence claim cannot possibly be considered waived as previously litigated
under the PCRA:
[I]t is black-letter law that challenges to the legality of a judgment
of sentence [cannot] be waived. Commonwealth v. Belak, 573
Pa. 414, 852 A.2d 1252, 1257 (2003).
…
Legality-of-sentence claims are simply not subject to the waiver
provision of the PCRA. Our Supreme Court has found that [42
Pa.C.S. §] 9544(b) was intended to apply only to those claims that
are required to be preserved before trial, at trial, on appeal, or
in a prior post-conviction proceeding. Commonwealth v.
Brown, 582 Pa. 461, 872 A.2d 1139, 1154 (2005). As the Brown
court explained, “[i]f the nature of the claim involves a right so
fundamental to a fair trial that it renders it non-waivable, then the
claim is not required to be preserved and is not subject to the
waiver provision of the PCRA.” Id. As stated above, legality-of-
sentence claims are non-waivable and thus not required to have
been preserved at any prior stage of litigation in order to obtain
review thereof.
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Commonwealth v. Jones, 932 A.2d 179, 182-83 (Pa. Super. 2007)
(emphasis in original; footnote omitted). Accordingly, we decline to accept
the Commonwealth’s assertion that Appellant waived his legality of sentence
claim.9 Appellee’s Brief at 11-12; see Commonwealth v. Olson, 179 A.3d
1134, 1137 (Pa. Super. 2018) (“As long as this Court has jurisdiction over the
matter, a legality of sentence issue is reviewable and cannot be waived.”);
Jones, 932 A.2d at 183 (“waiver, for purposes of the PCRA, is equally
inapplicable to legality-of-sentence claims a petitioner raises for the first time
in post-conviction proceedings and those previously characterized as
waived.”).
In his second and third issues, Appellant asserts that the PCRA court
erred by denying his illegal sentence claim as previously litigated and that his
sentence is illegal based on the Pennsylvania Supreme Court’s decision in
Muniz and more recent decisions of this Court that addressed Muniz in
Commonwealth v. Wood, 208 A.3d 131 (Pa. Super. 2019) (en banc), and
Commonwealth v. Lippincott, 208 A.3d 143 (Pa. Super. 2019) (en banc).
Appellant’s Brief at 6-9. Given that our standard of review for a legality of
sentence claim is de novo, we need not address the PCRA court’s review of
Appellant’s claim and may address it on the merits in the first instance.
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9 Where a defendant raises challenges to the legality of his sentence on direct
and collateral review, the collateral review claim may be summarily rejected
as meritless for the reasons this Court addressed on direct review, absent
changes in the law, however, it may not be brushed aside on the basis of
waiver given our controlling precedent on the non-applicability of waiver to
legality of sentence claims.
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Appellant argues that his sentences for violating Section 4915.1 are illegal
because the retroactive application of the SORNA I’s reporting requirements
to him constituted an ex post facto violation where he was originally subjected
to lifetime reporting requirements under Megan’s Law II and the application
of SORNA I did not increase the length of his reporting requirements. Id.When Appellant raised a claim based on Muniz on direct review, he
argued that SORNA I was unconstitutional in its entirety and that Megan’s Law
II, which deemed him a lifetime registrant, could not be revived.
Haughwout, 198 A.3d at 405. We denied his claim by distinguishing Muniz
on the basis that the Pennsylvania Supreme Court held that SORNA I was
unconstitutional as applied to Muniz because the retroactive application of
SORNA I increased the time span of the registration requirement for Muniz
whereas for Appellant, in the instant case, the enactment of SORNA I did not
change the length of his reporting period. Haughwout, 198 A.3d at 405.
Appellant’s attempt to raise a new ex post facto/legality of sentence
claim based on Muniz on collateral review where he previously litigated a
claim based on that case on an identical theory for relief on direct review
would ordinarily fail under the “law of the case” doctrine and the coordinate
jurisdiction rule. See Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa.
1995) (“this Court has long recognized that judges of coordinate jurisdiction
sitting in the same case should not overrule each others’ decisions.”);
Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005)
(en banc) (explaining the general rule that under the “law of the case”
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doctrine, a court involved in later phases of a litigated matter should not
reopen questions decided by another judge of the same court or by a higher
court in earlier phases of the matter). The departure from the general
prohibition under each of those principles, however, is permissible in
“exceptional circumstances such as where there has been an intervening
change in the controlling law.” Starr, 664 A.2d at 1332. Here, we appreciate
that more recent caselaw from our Supreme Court contradicts our former
reason for denying Appellant’s earlier claim under Muniz. As the Supreme
Court abrogated our prior theory for denying relief based on Muniz, we can
revisit the legality of Appellant’s sentence.
In Commonwealth v. Santana, 266 A.3d 528, 536 (Pa. 2021), our
Supreme Court rejected the notion that the ex post facto analysis in Muniz
was based on whether the retroactive application of SORNA resulted in an
increased period of a registration requirement. It stressed that, upon
reviewing an ex post facto claim based on Muniz concerning the application
of SORNA I to a defendant who had moved to Pennsylvania after being subject
to registration requirements in another state,
[t]he question is not whether [the New York Sex Offender
Registration Act, which originally subjected Santana to a lifetime
registration requirement,] and SORNA impose the same or
different registration periods. The analysis does not examine
whether a new resident’s crossing of Pennsylvania’s borders
actually increased the length of Santana’s punishment. It does
not even matter where Santana committed the triggering offense.
For present purposes, what matters most is when that crime
occurred.
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Id. at 536 (emphasis in original). The Santana Court further clarified that its
statement of ex post facto law in Muniz “was incomplete[,]” as “[t]he United
States Constitution does not require a defendant to prove that he, in fact, was
disadvantaged by the retroactively applied law.” Id.; see also California
Dept. of Corrections v. Morales, 514 U.S. 499, 506 n.3 (1995) (“[T]he
focus of the ex post facto inquiry is not on whether a legislative change
produces some ambiguous sort of ‘disadvantage,’ … but on whether any such
change alters the definition of criminal conduct or increases the penalty by
which a crime is punishable.”). The Court then distilled the ex post facto
analysis to the following questions:
First, a court must ask when the initial offense was committed.
Second, the court must ask whether the challenged law was
enacted after the occurrence of the triggering offense and was
then applied retroactively. If so, the final question is whether that
retroactive law is punitive or increases the penalty for the existing
crime.
Santana, 266 A.3d at 537 (emphasis added).
The Santana decision makes clear that this Court undertook the wrong
analysis of Appellant’s ex post facto claim based on Muniz on direct review.
Accordingly, we must conduct the analysis set forth in Santana to address
the central claim at the heart of Appellant’s challenges to the legality of his
sentence and the effectiveness of his prior counsel: that his convictions and
sentences for failure to comply with his registration requirements cannot be
sustained because they rest upon an unconstitutional retroactive application
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of punitive notification and registration provisions of SORNA I in violation of
the ex post facto clauses of the Pennsylvania and United States Constitutions.
As we noted above, see supra n.5, our Supreme Court declared SORNA
I unconstitutional because it violated the ex post facto clauses of both the
United States and Pennsylvania Constitutions. Muniz, 164 A.3d 1189. The
Muniz Court determined that SORNA I’s purpose was punitive in effect,
despite the General Assembly’s stated civil remedial purpose. Id. at 1218;
see also Santana, 266 A.3d at 538 (“[The Pennsylvania Supreme Court
ruled] in Muniz that [SORNA I’s registration and notification requirements]
are punitive in nature.”); Wood, 208 A.3d at 135 (“The Muniz Court reasoned
that despite the legislature’s designation of SORNA[ I] as a civil remedy, it
was punitive in nature[.]”). Therefore, a retroactive application of SORNA I
to past sexual offenders violated the ex post facto clause of the United States
Constitution. Muniz, 164 A.3d at 1218. SORNA I also violated the ex post
facto clause of the Pennsylvania Constitution because it placed a unique
burden on the right to reputation and undermined the finality of sentences by
enacting increasingly severe registration laws. Id. at 1223.
Because Appellant committed his underlying offenses that gave rise to
his registration requirements in 1996 and 2000, years before SORNA I became
effective, SORNA I was clearly applied to him retroactively. See Santana,
266 A.3d at 536 (explaining that because Santana committed the triggering
offense for registration requirements nearly thirty years before SORNA I’s
enactment, the statute was clearly retroactive when applied to him). In these
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circumstances, Appellant’s convictions for failing to properly register under
SORNA I must be considered nullities and the sentences resulting from those
convictions must be considered void. Cf. Commonwealth v. Derhammer,
173 A.3d 723, 728 (Pa. 2017) (“It is undisputed that a conviction based on an
unconstitutional statute is a nullity … [a] conviction under [an unconstitutional
statute] is illegal and void, and cannot be a legal cause of imprisonment.”)
(citations omitted).
In light of our Supreme Court’s decisions in Muniz and Santana, we
conclude that SORNA I was unconstitutionally applied to Appellant, that he
could not have committed the crimes in violation of Section 4915.1 that
criminalized his failure to properly register under SORNA I, and thus he is
presently serving an illegal sentence. See Santana, 266 A.3d at 536 n.49
(where Santana committed a rape in 1983 in New York giving rise to
registration requirements and was later convicted of violating Section
4915.1(a)(3) for failing to comply with SORNA I’s registration requirements
after moving to Pennsylvania, it “logically followed” that SORNA I was
unconstitutionally applied to Santana and he could not have committed a
violation of 4915.1); Muniz, 164 A.3d at 1193 n.3 (noting SORNA I became
effective on December 20, 2012); Wood, 208 A.3d at 137 (“for purposes of
our ex post facto analysis, it is SORNA[ I]’s effective date, not its enactment
date, which triggers its application”); see also Commonwealth v. Griffith,
2020 WL 17335934, *6 (Pa. Super., filed Nov. 30, 2022) (reversing a Section
4915.1 conviction and vacating a judgment of sentence on PCRA appeal where
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Griffith committed the underlying offense sexual offense in 2000 and was
prosecuted for failing to register pursuant to SORNA I) (cited for its persuasive
value under Pa.R.A.P. 126(b)); Commonwealth v. Cruz, 2022 WL 2287021,
*11-12 (Pa. Super., filed June 24, 2022) (vacating registration requirements
under SORNA I for Cruz who committed a rape, among other offenses, in
2011) (cited for its persuasive value under Pa.R.A.P. 126(b));
Commonwealth v. Popejoy, 2022 WL 1154699, *5 (Pa. Super., filed Apr.
19, 2022) (reversing Section 4915.1 convictions and vacating judgments of
sentence on direct review where Popejoy committed his underlying sexual
offense in 1992 and was prosecuted for failing to register pursuant to SORNA
I) (cited for its persuasive value under Pa.R.A.P. 126(b)).
Our grant of relief on Appellant’s illegal sentence claim pursuant to
Muniz eliminates our need to review Appellant’s remaining issues presented
in this appeal.
Even though our result today vacates Appellant’s sentences for failing
to register under SORNA I and reverses his convictions for violating Section
4915.1, we note that Appellant remains subject to lifetime registration
requirements. In response to Muniz, 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
(“Act 29”). SORNA II now divides sex offenders into two subchapters: (1)
Subchapter H, which applies to an offender who committed a sexually violent
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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. Appellant is therefore subject to the registration requirements under
Subchapter I of SORNA II. See 42 Pa.C.S. 9799.15(b) (lifetime registration
requirements for individuals with two or more convictions of offenses included
in subsection (a) which include indecent assault convictions where the offense
was graded as a misdemeanor of the first degree or higher and was committed
on or after April 22, 1996, but before December 20, 2012). Because our
Supreme Court has held that Subchapter I of SORNA II is not punitive, it may
be retroactively applied to Appellant. See Commonwealth v. Lacombe, 234
A.3d 602, 626-27 (Pa. 2020) (holding that the registration requirements in
Subchapter I of SORNA II are non-punitive and, thus, retroactive application
of those requirements does not violate the constitutional proscription against
ex post facto laws). In an abundance of caution, we remand for the lower
court to provide proper notification of the applicable registration requirements
under Subchapter I of SORNA II.
Order dismissing Appellant’s PCRA petition vacated. Convictions for
failing to register pursuant to SORNA I reversed. Judgments of sentence
vacated. Remanded for further proceedings to ensure that Appellant is
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properly notified of his present registration requirements pursuant to SORNA
II. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/28/2023
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