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2021 PA Super 164
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN DAVID ZACK :
:
Appellant : No. 229 WDA 2021
Appeal from the PCRA Order Entered February 10, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002297-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN DAVID ZACK, SR. :
:
Appellant : No. 230 WDA 2021
Appeal from the PCRA Order Entered February 10, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002138-2019
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: August 17, 2021
John David Zack, Sr. (Zack) appeals from the orders of the Court of
Common Pleas of Fayette County (PCRA court) denying his timely first
petitions for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Zack was convicted in two separate cases for failing to comply
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* Retired Senior Judge assigned to the Superior Court.
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with sex offender registration requirements under both the current version of
the offense (18 Pa.C.S. § 4915.1) and the former version under Megan’s Law
III (18 Pa.C.S. § 4915). After review, we reverse Zack’s convictions and
judgments of sentence under the now repealed Section 4915 but affirm the
denial of relief for his conviction under Section 4915.1.
I.
A.
In December 2011, a jury found Zack guilty of two counts of indecent
assault of a person less than 13 years old, both graded as third-degree
felonies.1 In March 2012, the trial court sentenced him to serve an aggregate
three to seven years’ imprisonment. At the time of his sentencing, Zack was
subject to registration under the then-effective Megan’s Law III. While his
convictions for indecent assault carried only a ten-year registration period, the
trial court designated him a sexually violent predator (SVP), subjecting him to
lifetime registration when he was released from state prison.2
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1 18 Pa.C.S. § 3126(a)(7).
2 42 Pa.C.S. § 9795.1(a)(1) (expired) (ten-year registration period for
individuals convicted of 18 Pa.C.S. § 3126(a)(7) “graded as a misdemeanor
of the first degree or higher”); 42 Pa.C.S. § 9795.1(b)(3) (expired) (lifetime
registration for SVPs).
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While Zack was incarcerated, Megan’s Law III was replaced by the first
version of the Sex Offender Registration and Notification Act (SORNA I),3
which became effective on December 20, 2012. Among other individuals,
SORNA I made its registration provisions applicable to individuals like Zack
who, on or after the effective date of the new law, were incarcerated in state
prison due to a conviction for a sexually violent offense.4 Additionally, under
the law’s three-tier system for classifying offenders, Zack was classified as a
third-tier offender subject to lifetime registration based both on his indecent
assault convictions and SVP designation.5
In the meantime, in December 2013, our Supreme Court ruled that
Megan's Law III was unconstitutional because Act 2004-152 (Act 152), which
included the provisions of Megan's Law III, was omnibus legislation violating
the single subject rule of the Pennsylvania Constitution. Commonwealth v.
Neiman, 84 A.3d 603, 615 (Pa. 2013). While Neiman possibly affected
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3 42 Pa.C.S. §§ 9799.10-9799.41.
4 42 Pa.C.S. § 9799.13(2).
5 42 Pa.C.S. § 9799.14(d)(8) (classifying convictions under 18 Pa.C.S.
§ 3126(a)(7) as Tier III sexual offenses); 42 Pa.C.S. §§ 9799.15(a)(3), (6)
(lifetime registration for individuals convicted of a Tier III sexual offense or
designated an SVP).
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individuals who had to register before SORNA I, Zack’s lifetime registration
was unaffected by the decision.6
A few years later, though, in Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017), the Pennsylvania Supreme Court considered a constitutional
challenge to the application of SORNA I to offenders who committed their
offenses before its effective date. The Muniz Court explained that a statute
violates the ex post facto clause of the United States Constitution where it
imposes the equivalent of criminal punishment. To determine this, the Court
considered whether the express purpose of SORNA I was to impose
punishment and, if not, whether the statutory scheme was so punitive in effect
as to negate the legislature’s stated non-punitive purpose. Finding that the
reporting and registration requirements under SORNA I were punitive, the
Muniz Court held that retroactive application of the statute’s requirements to
offenses committed before its effective date (December 20, 2012) violated the
ex post facto clauses of both the United States and Pennsylvania
Constitutions.
Id. at 1223.
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6 Recognizing the possible impact of its decision in Neiman, the Supreme
Court stayed its decision for 90 days to allow the Legislature “to consider
appropriate remedial measures.” Neiman,
84 A.3d at 616. In response, the
General Assembly modified Section 9799.13(3) to clarify that persons who
were required to register with PSP any time before SORNA I’s effective date
and whose registration period had not expired still had to register with PSP as
provided in that section.
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In response to Muniz, the General Assembly amended SORNA I by
passing SORNA II, which became effective on June 12, 2018.7 SORNA II
divided SORNA I into two parts, with one set of obligations applicable to
offenses committed on or after December 20, 2012 (Subchapter H), and the
other applicable to offenders who were convicted of certain offenses on or
after April 22, 1996, but before December 20, 2012 (Subchapter I).8
Subchapter I ensured that those required to retroactively register under
SORNA—and entitled to relief after Muniz—would still have to do so.9 As a
result, Zack would still need to register for life under Subchapter I of SORNA
II because of his SVP designation.10
B.
In August 2019, Pennsylvania State Police (PSP) filed two separate
criminal complaints against Zack for failing to comply with sex offender
registration requirements. As noted earlier, Zack was charged under both the
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7 Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29).
8 42 Pa.C.S. §§ 9799.51-9799.75.
9 Additionally, SORNA II created a new failure to register provision for
offenders required to register under Subchapter I. See 18 Pa.C.S. § 4915.2.
10 42 Pa.C.S. § 9799.52(1) (requiring registration for individuals “convicted of
a sexually violent offense committed on or after April 22, 1996, but before
December 20, 2012, whose period of registration with the Pennsylvania State
Police, as described in section 9799.55 (relating to registration), has not
expired”); 42 Pa.C.S. § 9799.55(b)(3) (lifetime registration for SVPs).
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former Megan’s Law III version of the offense (18 Pa.C.S. § 4915) and the
current version under SORNA (18 Pa.C.S. § 4915.1). In Case No. 2297-2018,
Zack was charged with: (1) failure to comply with registration requirements,
18 Pa.C.S. § 4915(a)(1); (2) failure to verify address or be photographed as
required, 18 Pa.C.S. § 4915(a)(2); (3) failure to provide accurate information,
18 Pa.C.S. § 4915(a)(3); and (4) failure to comply with counseling, 18 Pa.C.S.
§ 4915.1(a.2)(1). PSP alleged that theses offenses occurred on September
28, 2018. In Case No. 2138-2019, meanwhile, Zack was charged with one
count of failure to verify address or be photographed as required, 18 Pa.C.S.
§ 4915(a)(2). PSP alleged that this offense occurred on August 2, 2019.
Zack quickly negotiated a plea agreement and on October 7, 2019,
pleaded guilty to all charges on both cases. On December 3, 2019, the trial
court imposed an aggregate sentence of one to two years’ imprisonment.11
Because he did not seek appeal, his judgments of sentence became final on
January 2, 2020.12
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11 On Case No. 2297-2018, the trial court imposed one to two years’
imprisonment on count three, failure to provide accurate information, 18
Pa.C.S. § 4915(a)(3), and no further penalty on the remaining counts. On
Case No. 2138-2018, the trial court imposed a concurrent 9 to 24 months on
count one, failure to verify address or be photographed as required, 18 Pa.C.S.
§ 4915(a)(2).
12 42 Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.”).
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On April 17, 2020, Zack filed timely first-time pro se PCRA petitions in
both cases. The PCRA court appointed counsel who filed amended petitions
to assert that “the Commonwealth violated [Zack’s] constitutional rights by
imposing additional reporting requirements upon him after he was sentenced
by enacting SORNA.”
On February 10, 2021, the PCRA court denied both petitions, after which
Zack filed timely notices of appeal in both cases.13 On appeal, he presents
one question for our review:
Whether [Zack’s] reporting requirements under the Pennsylvania
Sexual Offender Registration and Notification Act (SORNA) II are
constitutional?
Zack’s Brief at 3.14
II.
We first address the petition filed in Case No. 2138-2019. In that case,
Zack was convicted of one count for failure to verify address or be
photographed under 18 Pa.C.S. § 4915(a)(1). As noted above, Section 4915
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13 Zack filed a notice of appeal in each case but listed both trial docket
numbers in their captions. Because a separate notice was filed at each trial
court docket, these consolidated appeals have not been quashed. See
Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en
banc). We later consolidated these appeals sua sponte.
14 On appeal from the dismissal of a PCRA petition, our review is limited to
examining whether the trial court’s determination is supported by the record
evidence and free of legal error. Commonwealth v. Koehler,
229 A.3d 915,
927 (Pa. 2020). When an issue raises a question of law, our review is de novo
and our scope of review is plenary.
Id.
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is the former version of the offense that expired when Megan’s Law III was
replaced by SORNA on December 20, 2012, and then struck down a year later
in the Pennsylvania Supreme Court’s decision in Neiman. This being the case,
Zack was convicted under an unconstitutional statute and is entitled to
reversal of his conviction and judgment of sentence.15
Our Supreme Court dealt with this very issue in Commonwealth v.
Derhammer, 173 A.3d 723 (Pa. 2017). There, the defendant was charged
in 2009 with violating Section 4915 under Megan’s Law III. He was convicted
at a 2011 bench trial but later awarded a new trial on appeal. While
defendant’s retrial was pending, Section 4915 expired and the Supreme Court
announced its decision in Neiman. As a result, the defendant moved to
dismiss his case because Neiman invalidated the offense for which he was
charged. After his motion was denied, the defendant was found guilty at his
retrial. On appeal, we affirmed.
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15 Zack did not raise this issue in the PCRA court, nor does he do so in his brief
to this Court. The PCRA, however, permits our courts to grant relief from
illegal sentences. See 42 Pa.C.S. § 9542 (“This subchapter provides for an
action by which persons ... serving illegal sentences may obtain collateral
relief.”). As there is no dispute over the timeliness of the petitions, we may
address the legality of sentence sua sponte since Zack was convicted and
sentenced under a statute found to be unconstitutional. See
Commonwealth v. McIntyre,
232 A.3d 609, 616-19 (Pa. 2020) (holding
waiver principles did not prevent a PCRA petitioner convicted of Section 4915
from challenging the legality of his sentence based on that statute later being
declared to be unconstitutional); see also Commonwealth v. Randal,
837
A.2d 1211 (Pa. Super. 2003) (en banc) (explaining challenges to illegal
sentence may be raised by this Court sua sponte).
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However, our Supreme Court reversed and held that the Commonwealth
could not convict the defendant under Section 4915 because its decision in
Neiman declared Megan’s Law III, which included Section 4915,
unconstitutionally enacted and, thus, void from the date that it took effect.
As the Court explained, because “[i]t is undisputed that a conviction based on
an unconstitutional statute is a nullity,” then it followed that the defendant’s
conviction under Section 4915 “cannot be sustained to the extent it is based
on Megan’s Law III as enacted in 2004.” Derhammer, 173 A.3d at 728. It
went on to hold that the Commonwealth lacked the authority to retry him for
his failure to report under Section 4915.
Id. at 731.
It reached a similar result in Commonwealth v. McIntyre, 232 A.3d
609 (Pa. filed June 16, 2020). In that case, the defendant was convicted in
April 2012 of failing to register under Section 4915. On direct appeal, we
affirmed the judgment of sentence in July 2013 and the defendant did not
seek discretionary review in the Supreme Court. After the Supreme Court
issued its decision in Neiman, the defendant filed a pro se PCRA petition in
April 2014. Counsel was appointed but moved to withdraw by filing a no-merit
letter. The PCRA court granted counsel’s motion and dismissed the petition,
following which the defendant filed a pro se notice of appeal. On appeal to
this Court, the defendant raised for the first time that his conviction under
Section 4915 could not stand because, under Neiman, Megan’s Law III was
rendered void ab initio, resulting in his sentence to be illegal because it was
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based on a non-existent statute. After we affirmed in an unpublished decision,
our Supreme Court granted discretionary review.
In a unanimous decision, it concluded that the defendant was entitled
to reversal of his conviction and sentence. In its opinion, the Court focused
on the question of waiver, finding that the defendant’s claim based on Section
4915 being void ab initio implicated the legality of sentence and was not
subject to waiver. See McIntyre, 232 A.3d at 616-19. Turning to the merits,
our Supreme Court first noted that its decision in Neiman declared Megan’s
Law III, which included Section 4915 to be unconstitutionally enacted,
meaning that the statute was void from the date of its enactment. Id. at 619.
It went on to hold that the defendant’s April 2012 conviction could not be
sustained because even though predating Neiman, the conviction was based
on a statute that must be regarded as void from the date of its enactment.
Id.
More recently, we reached a similar result in Commonwealth v.
Stanley, ___ A.3d ___, 2021 WL 2835476 (Pa. Super. filed July 8, 2021).
There, the defendant was convicted in 2011 of failure to report under Section
4915 and sentenced to 18 months to three years followed by four years of
probation. In 2015, the defendant was arrested again for failure to report,
this time charged under Section 4915.1. Because of the new charges, the
defendant faced a probation violation on his prior Section 4915 conviction. In
2016, he entered a guilty plea on the Section 4915.1 conviction and was
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sentenced to two to five years followed by three years of probation. On his
probation violation for Section 4915, the trial court imposed the same
sentence and it ran concurrently to his new sentence. The defendant later
filed a PCRA petition in his Section 4915 case. By agreement of counsel, the
PCRA court vacated its probation violation sentence and resentenced the
defendant to one-year probation, following which he filed a notice of appeal.
On appeal, we reversed the defendant’s conviction and sentence under
Section 4915.
Here, [defendant] 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 [defendant’s] conviction under
section 4915 was declared void ab initio, 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. 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.
Stanley, 2021 WL 2835476, at *3 (internal citations omitted).
Consistent with Derhammer, McIntyre and Stanley, Zack’s conviction
under Section 4915 is void because it is based on a statute that our Supreme
Court has invalidated. Stated differently, Zack could not plead guilty to a
criminal statute that did not exist at the time he failed to report in August
2019. Because his plea to Section 4915 is void, the trial court possessed no
authority to sentence him for that offense and, for these reasons, we vacate
his conviction and judgment sentence on Case No. 2138-2019.
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III.
A.
We next turn to Case No. 2297-2018. As summarized above, on counts
one through three, Zack pleaded guilty to three counts of Section 4915 under
Megan’s Law III. Without rehashing our preceding discussion, our reasoning
in Case No. 2138-2019 applies with equal force to his three convictions under
Section 4915 in Case No. 2297-2018, all of which were alleged to have
occurred in September 2018 after our Supreme Court’s decision in Neiman.
Accordingly, his convictions and judgment of sentence on those counts are
vacated.
Having found that Zack’s convictions under counts one through three
cannot stand, we turn to his conviction at count four for failure to comply with
counseling in violation of 18 Pa.C.S. § 4915.1(a.2)(1).16
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16 We note that the Commonwealth charged Zack under the wrong offense.
Section 4915.1(a.2)(1) applies to offenders who committed their underlying
offenses on or after December 20, 2012, and are required to register under
Subchapter H of SORNA II, 42 Pa.C.S. §§ 9799.10-9799.42. Because his
indecent assault convictions predated December 20, 2012, Zack was subject
to registration under Subchapter I, 42 Pa.C.S. §§ 9799.51-9799.51. Thus,
because he was subject to Subchapter I and its SVP counseling requirements,
the Commonwealth should have charged Zack under 18 Pa.C.S.
§ 4915.2(a.1)(1) (“An individual who is designated as a sexually violent
predator commits an offense if the individual knowingly fails to comply with
42 Pa.C.S. § 9799.70 (relating to counseling of sexually violent predators).”).
That said, the Commonwealth’s incorrect citation to Section 4915.1
constitutes a mere technical error that does not invalidate the conviction.
Besides Zack never raising any complaint to this error, Section 4915.1 was
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B.
On appeal, Zack reasserts his argument that SORNA II
unconstitutionally imposes additional reporting requirements on him.
In the present case, [Zack] claims that he always satisfied
his original reporting requirements. [Zack] claims that if he
violated any report[ing] requirements, he would have only
violated those additional requirements imposed upon him by
SORNA II. [Zack] maintains that the Commonwealth violated his
constitutional rights by imposing additional reporting
requirements upon him after he was sentenced by enacting
SORNA II. For this reason, [Zack] believes he is eligible for PCRA
relief, because these additional reporting requirements of SORNA
II constitute a violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or
innocence have taken place.
Zack’s Brief at 14.
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not decriminalized after Muniz; instead, the General Assembly added Section
4915.2 to similarly cover those offenders who violated their registration
requirements under Subchapter I. Significantly, there is little difference
between the subsection under which Zack was convicted, which applies to
Subchapter H, and its analog that applies to offenders under Subchapter I.
Compare 18 Pa.C.S. § 4915.1(a.2)(1) (“An individual who is designated as a
[SVP] … commits an offense if he knowingly fails to comply with … 9799.36
(relating to counseling of sexually violent predators) and 18 Pa.C.S.
§ 4915.2(a.1)(1) (“An individual who is designated as a [SVP] commits an
offense if the individual knowingly fails to comply with 42 Pa.C.S. § 9799.70
(relating to counseling of sexually violent predators”). Thus, the
Commonwealth’s incorrect citation does not invalidate its bill of information or
Zack’s conviction and sentence under Section 4915.1. See Pa.R.Crim.P.
560(C) (“The information shall contain the official or customary citation of the
statute and section thereof, or other provision of law that the defendant is
alleged therein to have violated; but the omission of or error in such citation
shall not affect the validity or sufficiency of the information.”).
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In effect, Zack is raising a Muniz-style ex post facto constitutional claim
under 42 Pa.C.S. § 9543(a)(2)(i),17 arguing that retroactive application of
SORNA II is unconstitutional to individuals like him who committed their
qualifying sexual offenses before December 20, 2012. We disagree.
First, the PCRA court rejected this claim by relying on our Supreme
Court’s decision in Commonwealth v. Butler, 226 A.3d 972 (Pa. filed March
26, 2020) (Butler II). There, our Supreme Court held that the reporting,
notification and counseling (RNC) requirements that Subchapter H imposes on
SVPs do not constitute criminal punishment. The Butler II Court explained:
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.
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17 Section 9543(a)(2)(i) provides that “the petitioner must plead and prove by
a preponderance of the evidence ... [t]hat the conviction or sentence resulted
from ... [a] violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.
§ 9543(a)(2)(i).
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Butler II, 226 A.3d at 992-93.
Though Butler II involved a challenge to Subchapter H, we recently
relied on its holding in Commonwealth v. Elliot, 249 A.3d 1190 (Pa. Super.
filed April 5, 2021), rejecting an ex post facto claim brought by a petitioner
deemed an SVP under Subchapter I of SORNA II. While Subchapter H was
not applicable to the petitioner in Elliot, we nonetheless found that the Butler
II Court’s holding foreclosed his claim:
While here, [petitioner] 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. Super. 2019). Because
Subchapter I’s RNC requirements applicable to SVPs are less
burdensome than are Subchapter H’s 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. Thus, we deem meritless
[petitioner’s] argument that his RNC requirements are punitive
and violative of the ex post facto clause.
Elliot, 249 A.3d at 1194.
The same holds true for Zack, who alleges that SORNA II imposes
increased reporting requirements for offenders like himself who were
convicted of their qualifying offenses before December 20, 2012.18 Zack was
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18 Contrary to Zack’s assertions, SORNA II does not increase his reporting
requirements, which, in the context of his conviction under Section
4915.1(a.2)(1), involved his counseling requirements as an SVP. Under both
Megan’s Law III and SORNA II, SVPs are required to attend “at least monthly”
counseling sessions in a program approved by the State Sexual Offenders
Assessment Board. Compare 42 Pa.C.S. § 9799.4 (expired) (counseling of
SVPs under Megan’s Law III) with 42 Pa.C.S. § 9799.36 (counseling of SVPs
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originally deemed an SVP under Megan’s Law III, but he must now register
under Subchapter I of SORNA II, which has less stringent reporting
requirements than the constitutionally permissible requirements of
Subchapter H. Thus, like we did in Elliot, we reject Zack’s argument that
Subchapter I violates constitutional ex post facto rights.
Moreover, Zack’s argument does not discuss Commonwealth v.
Lacombe, 234 A.3d 602 (Pa. July 21, 2020), in which our Supreme Court
considered whether Subchapter I of SORNA II was an unconstitutional ex post
facto law. Because the General Assembly expressly declared that Subchapter
I was not punitive, the Lacombe Court had to determine whether Subchapter
I was punitive in effect by applying the factors set forth in Kennedy v.
Mendoza-Martinez,
372 U.S. 144 (1963).19 In balancing those factors, the
Court stated:
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under Subchapter H of SORNA II) and 42 Pa.C.S. § 9799.70 (counseling of
SVPs under Subchapter I of SORNA II).
19 The factors to be considered by a court are as follows:
[w]hether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional aims of
punishment – retribution and deterrence, whether the behavior to
which it applies is already a crime, whether an alternative purpose
to which it may rationally be connected is assignable for it, and
whether it appears excessive in relation to the alternative purpose
assigned[.]
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Subchapter I effected significant changes from the original version
of SORNA, retroactive application of which we found
unconstitutional in Muniz.... 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.”
Lacombe, 234 A.3d at 626 (brackets and citations omitted). The Court held
that Subchapter I of SORNA II did not constitute criminal punishment and, as
a result, did not violate the ex post facto clauses of the United States and
Pennsylvania Constitutions.
Here, Zack’s constitutional claim is foreclosed by Lacombe, since our
Supreme Court has held that Subchapter I, which was passed in response to
Muniz, was not punitive in effect after the Court reassessed the Mendoza-
Martinez factors. While SORNA II is being retroactively applied to Zack, its
retroactive application to him is not unconstitutional. As a result, on Case No.
2297-2018, we conclude that the PCRA court did not err to the extent it denied
relief on Zack’s conviction at count four for failure to comply with counseling
under 18 Pa.C.S. § 4915.1(a.2)(1).20
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Mendoza-Martinez, 372 U.S. at 168 (footnotes omitted).
20 We also find that the PCRA court properly rejected Zack’s claim that
Subchapter I is unconstitutional based on our Supreme Court’s decision in
Commonwealth v. Torsilieri,
232 A.3d 567, 596 (Pa. 2020) (remanding for
development of the record where the appellant presented evidence
contradicting the presumption that all sex offenders posed a high risk of
recidivism). The PCRA court rejected this claim for lack of development, and
we conclude the same, as Zack’s argument consists of two sentences.
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IV.
To summarize, we reverse Zack’s conviction and vacate his judgment of
sentence on Case No. 2138-2019 (230 WDA 2021), and he is discharged on
that case. We also reverse his convictions and vacate his judgments of
sentence on counts one through three on Case No. 2297-2018 (229 WDA
2021) but affirm the PCRA court’s order denying relief on his conviction at
count four, failure to comply with counseling in violation of 18 Pa.C.S.
§ 4915.1(a.2)(1). Because our decision upsets the trial court's overall
sentencing scheme, we vacate Zack’s judgment of sentence on count four of
Case No. 2297-2018 and remand for resentencing.
Order reversed; conviction and judgment of sentence vacated on Case
No. 2138-2019.
Order reversed in part, affirmed in part on Case No. 2297-2018.
Convictions and judgments of sentence on counts one through three reversed
and vacated. Conviction on count four affirmed, judgment of sentence
vacated. Case remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2021
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