J-S12008-21
2021 PA Super 140
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN STANLEY :
:
Appellant : No. 418 EDA 2020
Appeal from the Judgment of Sentence Entered January 15, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001725-2011
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
OPINION BY LAZARUS, J.: Filed: July 8, 2021
Justin Stanley appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his revocation of
probation and resentencing. After careful review, we conclude that because
Stanley was convicted under an unconstitutional statute, there was no valid
statute under which he could be resentenced. Therefore, Stanley is entitled
to reversal and discharge from his conviction. Consequently, we reverse his
conviction and vacate his judgment of sentence.
Stanley pled guilty to one count of sexual assault1 on June 9, 2005. As
a result of the conviction, the parties agree that Stanley was subject to
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1 We are not able to discern from the certified record, specifically, to which
crime Stanley pled guilty; but, the parties agree that he, in fact, did so.
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reporting requirements under Megan’s Law.2 On January 17, 2011, Stanley
was arrested and charged, at the instant under docket number 0001725-
2011, with failure to comply with sex offender registration requirements,
pursuant to 18 Pa.C.S.A. § 4915. On December 15, 2011, Stanley pled guilty
and the court sentenced him to a term of incarceration of 1½ to 3 years,
followed by four years of reporting probation.
On December 3, 2015, Stanley was again arrested for his failure to
comply with the sex offender registration requirements, this time pursuant to
section 4915.1, and was charged under docket number 0002316-2016. On
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2 Megan’s Law I, the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1),
was enacted on October 24, 1995, and became effective 180 days thereafter.
Megan’s Law II was enacted on May 10, 2000, in response to Megan’s Law I
being ruled unconstitutional by our Supreme Court in Commonwealth v.
Williams, 733 A.2d 593 (Pa. 1999). Our Supreme Court held that some
portions of Megan’s Law II were unconstitutional in Commonwealth v.
Gomer Williams,
832 A.2d 962 (Pa. 2003), and the General Assembly
responded by enacting Megan’s Law III on November 24, 2004. The United
States Congress expanded the public notification requirements of state sexual
offender registries in the Adam Walsh Child Protection and Safety Act of 2006,
42 U.S.C. §§ 16901–16945, and the Pennsylvania General Assembly
responded by passing the Sexual Offender Registration and Notification Act
(SORNA) on December 20, 2011, with the stated purpose of “bring[ing] the
Commonwealth into substantial compliance with the Adam Walsh Child
Protection and Safety Act of 2006.” 42 Pa.C.S.A. § 9799.10(1). SORNA went
into effect a year later on December 20, 2012. Megan’s Law III was also
struck down by our Supreme Court for violating the single subject rule of
Article III, Section 3 of the Pennsylvania Constitution. Commonwealth v.
Neiman,
84 A.3d 603, 616 (Pa. 2013). However, by the time it was struck
down, Megan’s Law III had been replaced by SORNA.
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April 4, 2016, the court sentenced Stanley on each docket,3 to concurrent
terms of 2-5 years’ incarceration, followed by 3 years’ probation.
On July 19, 2017, the Pennsylvania Supreme Court decided
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), holding that
retroactive application of sex offender registration requirements violates the
Ex Post Facto Clauses of the United States and Pennsylvania Constitutions.4
Id. at 1193. On April 18, 2018, a three-judge Post Conviction Relief Act
(PCRA)5 panel, which heard all Muniz-affected PCRA cases in Philadelphia
County, vacated Stanley’s conviction under docket number 0002316-2016.
Stanley continued to serve the concurrent sentence on the instant docket,
number 0001725-2011.
On October 15, 2018, Stanley filed a pro se PCRA petition under the
instant docket; the court subsequently appointed counsel. Counsel filed an
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3 Under docket number 0002316-2016, the court sentenced Stanley for his
direct violation of the reporting requirements, whereas, under docket number
0001725-2011, the court sentenced Stanley for his violation of probation.
4 The political branches have since responded to Muniz by amending SORNA,
42 Pa.C.S.A. §§ 9799.10, et seq. To address ex post facto concerns, the
amendment separates the provisions into distinct subchapters—Subchapter
H, for offenders whose underlying conduct occurred on or after December 20,
2012, SORNA’s effective date, and Subchapter I, for offenders required to
register under former versions of Megan’s Law. See 42 Pa.C.S.A. §§
9799.11(c), 9799.52. On July 21, 2020, in Commonwealth v. Lacombe,
234 A.3d 602 (Pa. 2020), our Supreme Court held that Subchapter I,
applicable here, is nonpunitive and does not violate the constitutional
prohibition against ex post facto laws. Id. at 626-27.
5 See 42 Pa.C.S.A. §§ 9541-9546.
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amended petition6 on August 12, 2019. On October 29, 2019, the court—by
agreement of counsel—vacated the violation of probation sentence and
continued the matter for resentencing. On January 15, 2020, the court
resentenced Stanley to one year of probation for his probation violation.7
On January 23, 2020, Stanley filed a notice of appeal. On January 31,
2020, the court ordered Stanley to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Both Stanley and
the court subsequently complied with Rule 1925.
On appeal,8 Stanley presents the following issue for our review:
“Whether [Stanley] received an illegal sentence?” Appellant’s Brief, at 7.
Specifically, Stanley claims that, because his conviction under section
4915.1 was vacated by the PCRA panel hearing Muniz-affected cases,9 all
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6 Stanley’s PCRA petition, and his appellate brief, see Appellant’s Brief, at 11,
allege that he was convicted under section 4915.1, rather than section 4915.
Section 4915.1 did not exist at the time Stanley committed the offense that
is the subject of this appeal/that PCRA petition. Instead, Stanley was charged
under the instant docket pursuant to section 4915.
7 Stanley completed his sentence on January 15, 2021, prior to this panel
assuming jurisdiction over this case.
8 The Commonwealth agrees with Stanley that his sentence is illegal, but it
reaches that conclusion under a different legal theory. We agree with the
Commonwealth’s analysis, and, therefore, set that reasoning forth in greater
detail herein.
9Again, we note that the instant appeal is from docket number 0001725-
2011, which charged Stanley pursuant to section 4915. See supra at n.6.
Our Supreme Court’s decision in Muniz had no effect on this case; rather, it
was the decision in Neiman that invalidated Stanley’s underlying conviction.
See supra at n.2.
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further punishment stemming from that crime is unconstitutional, including
sentencing on any violations of probation. Id. at 13. Stanley relies on our
Supreme Court’s decision in Commonwealth v. Royster, 572 A.2d 683 (Pa.
1990), and our decision in Commonwealth v. Wright,
116 A.3d 133 (Pa.
Super. 2015), in support of the proposition that reversal is required where a
revocation sentence is based on charges that were ultimately dismissed. See
Appellant’s Brief, at 13.
The trial court relied on this Court’s decision in Commonwealth v.
Sierra, 752 A.2d 910 (Pa. Super. 2000), for the proposition that “absconding
from probation amounts to a technical violation of the probation sentence[;
b]ecause [Stanley] was in technical violation, the revocation of probation was
legally sound.” Trial Court Opinion, 8/19/20, at 3 (internal citation omitted).
Our standard of review for a challenge to the legality of the sentence
imposed is well-settled:
[A] challenge to the legality of a sentence raises a question of law.
Commonwealth v. Smith, [] 956 A.2d 1029, 1033 (Pa. Super.
2008) (en banc). In reviewing this type of claim, our standard of
review is de novo and our scope of review is plenary.
Commonwealth v. Childs, [] 63 A.3d 323, 325 (Pa. Super.
2013). “An illegal sentence must be vacated.” Commonwealth
v. Ramos, [] 197 A.3d 766, 769 (Pa. Super. 2018) (citation and
quotation marks omitted).
Commonwealth v. Yahya Asaad Muhammed, 219 A.3d 1207, 1211 (Pa.
Super. 2019) (brackets omitted). Additionally, “a challenge to the legality of
the sentence can never be waived and may be raised by this Court sua
sponte.” Commonwealth v. Wolfe,
106 A.3d 800, 801 (Pa. Super. 2014).
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“[A]n offense created by an unconstitutional law is not a crime and a
conviction under it is illegal and void and cannot be a legal cause of
imprisonment.” Commonwealth v. Derhammer, 173 A.3d 723, 728 (Pa.
2017) (quoting Ex Parte Siebold,
100 U.S. 371, 376-77 (1879)) (quotation
marks, brackets, and ellipses omitted). “[A] statute which is stricken for
constitutional infirmity must be regarded as void ab initio[10] and treated as if
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10 The McIntyre Court explained the origin of the void ab initio doctrine as
follows:
[T]he void ab initio doctrine is rooted in a judicial imperative to
protect individual constitutional rights, such as the right of due
process, against transgression by coordinate branches of
government:
Under this theory, a statute held unconstitutional is
considered void in its entirety and inoperative as if it had no
existence from the time of its enactment. The origin of this
doctrine may lie in the early case of Marbury v. Madison,
5 U.S. (1 Cranch) 137,
2 L.Ed. 60 (1803), in which Chief
Justice Marshall wrote that “a law repugnant to the
constitution is void.”
Oliver P. Field, the most noted scholar on this issue has
suggested that the void ab initio theory is premised on the
historical American concern over excessive authority
asserted by a tyrannical executive or legislative branch in
violation of the rights of individuals protected by the
Constitution. Field explains that[,] whereas the Constitution
prohibits the legislature and executive from overstepping
their limits, the courts came to regard themselves as the
ultimate guardians of individual rights. Any act that invaded
these rights was to be judged unconstitutional and treated
as though it never existed.
Commonwealth v. McIntyre, 232 A.3d 609, 618 (Pa. 2020) (some
citations and brackets omitted).
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it never existed.” Commonwealth v. McIntyre, 232 A.3d 609, 613 (Pa.
2020) (citing Glen-Gery Corp. v. Zoning Hearing Bd.,
907 A.2d 1033, 1037
(Pa. 2006)). Additionally, as noted in footnote 2, supra, our Supreme Court
has previously declared section 4915 unconstitutional and void.
Commonwealth v. Neiman,
84 A.3d 603, 615-16 (Pa. 2013).
Here, Stanley was convicted under section 4915, the version of Megan’s
Law that was enacted in 2004 (Megan’s Law III), and which expired in 2012.
Because Stanley’s conviction under section 4915 was declared void ab initio,
see Neiman, supra, any violation of probation resulting from his conviction
for that offense cannot be a legal cause of imprisonment, since section 4915
must be treated as if it never existed. See
Derhammer, supra; McIntyre,
supra. Therefore, any violation of probation predicated on the void statute—
or resentencing in connection therewith—was also void, since, in effect, that
statute never existed. Id. See also Commonwealth v. Melius,
100 A.3d
682, 686 (Pa. Super. 2014) (citing 42 Pa.C.S.A. § 9771) (“Upon revocation of
probation a sentencing court possesses the same sentencing alternatives that
it had at the time of initial sentencing.”); United States v. Soto-Olivas,
44
F.3d 788, 791 (9th Cir. 1995) (“[P]unishment imposed upon revocation of
supervised release is punishment for the original crime, not punishment for
the conduct leading to revocation, whether the analysis involves the Ex Post
Facto Clause or the Double Jeopardy Clause.”).
Additionally, we find that the trial court’s reliance on our decision in
Sierra is misplaced. In Sierra, the appellant was lawfully sentenced to
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probation for committing a crime—simple assault—that was never invalidated
prior to the defendant’s probation revocation. See Sierra, supra at 912. The
Court in Sierra held that, although the defendant’s violation of probation was
not assaultive or independently criminal, a technical violation of her probation
was sufficient to trigger revocation.
Id. Here, Sierra is inapplicable to
Stanley’s case since Stanley’s underlying conviction was, in fact, declared
unconstitutional prior to his resentencing for his violation of probation.
Because no underlying or original crime existed to form the basis for Stanley’s
technical probation violation, the court possessed no sentencing alternatives
at the time of “resentencing.” See
Melius, supra.
Judgment of sentenced vacated. Conviction reversed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/21
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