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2023 PA Super 256
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD A. HAGAN :
:
Appellant : No. 872 WDA 2022
Appeal from the PCRA Order Entered June 30, 2022
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000242-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD A. HAGAN :
:
Appellant : No. 928 WDA 2022
Appeal from the PCRA Order Entered June 30, 2022
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000116-2009
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
OPINION BY OLSON, J.: FILED: December 6, 2023
In this consolidated appeal,1 Appellant, Donald A. Hagan, appeals from
the June 30, 2022 order entered in the Court of Common Pleas of Venango
____________________________________________
1 Appellant filed a separate notice of appeal at each trial court docket in
compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and
its progeny, as well as Pennsylvania Rule of Appellate Procedure 341. See
Pa.R.A.P. 341 Comment.
In an August 22, 2022 per curiam order, this Court consolidated sua sponte
the two appeals docketed in this Court at 872 WDA 2022 and 928 WDA 2022.
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County that dismissed a filing originally styled as a petition for writ of habeas
corpus. The PCRA court treated Appellant’s submission as a petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546.2 Following argument, the PCRA court dismissed Appellant’s
filing. We affirm.
The record demonstrates that, on November 13, 1992, Appellant was
convicted of involuntary deviate sexual intercourse (“IDSI”).3 Appellant was
sentenced to 7 to 14 years’ incarceration for his conviction. Trial Court
Opinion, 7/1/16, at 3. Appellant was not subject to registration requirements
at the time of his conviction and sentencing but, with the subsequent passage
of Megan’s Law I in 1996, he became subject to registration with the
Pennsylvania State Police as a sexual offender.4 See 42 Pa.C.S.A.
§§ 9791-9799.9 (effective, generally, Apr. 22, 1996, to Jul. 9, 2000).
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2 We shall refer to the court in which Appellant originally filed his submission
as the “PCRA court,” although, as discussed more fully infra, we shall evaluate
certain issues raised by Appellant’s claims outside the context of the PCRA.
3 18 Pa.C.S.A. § 3123 (effective Jun. 6, 1973, to Feb. 6, 2003).
Appellant’s
conviction stemmed from his sexual assault of a thirteen-year-old male
acquaintance. Trial Court Opinion, 7/1/16, at 3.
4 At a hearing before the PCRA court, counsel for Appellant asserted that
Appellant was subject to a 10-year registration period, a fact that was not
disputed by the Commonwealth. N.T., 6/30/22, at 4. The record, however,
is unclear as to the exact period of registration Appellant was subjected to as
a result of his 1992 conviction. With the passage of Megan’s Law I in April
1996, Section 9793(a) required a person previously convicted of IDSI to
register for a period of 10 years. See 42 Pa.C.S.A. § 9793(a), (b)(1), and
(b)(2) (effective Apr. 22, 1996, to Jul. 9, 2000). Section 9795(a) of Megan’s
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While Appellant remained incarcerated for his 1992 IDSI conviction,
Pennsylvania’s sexual offender registration laws continued to evolve. In
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999), cert. denied,
528
U.S. 1077 (2000) (“Williams I”), our Supreme Court invalidated the SVP
provisions of Megan's Law I after determining that those procedures violated
procedural due process. Williams,
733 A.2d at 608. This determination
arose from our Supreme Court’s conclusion that a finding of SVP status under
Megan’s Law I entailed a separate factual determination that ultimately
increased a sexual offender's maximum term of confinement above the
statutory maximum for the underlying offense.
Id. at 603. After Williams I
was decided, the General Assembly passed Megan's Law II, which was signed
into law on May 10, 2000, and became effective July 9, 2000.5 See Act of
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Law I, however, required a person designated as a sexually violent predator
(“SVP”) to register continuously unless a trial court determined that the person
was no longer an SVP. See 42 Pa.C.S.A. § 9795(a) (effective Apr. 22, 1996,
to Jul. 9, 2000); see also 42 Pa.C.S.A. § 9794(b) (effective Apr. 22, 1996, to
Jul. 9, 2000) (stating that a person convicted of, inter alia, IDSI, was
presumed to be an SVP unless that person rebutted the presumption with
clear and convincing evidence to the contrary).
For purpose of our disposition, we accept Appellant’s assertion that he was
subjected to a 10-year registration period upon enactment of Megan’s Law I
as a result of this 1992 IDSI conviction. See 42 Pa.C.S.A. § 9793(b) (effective
Apr. 22, 1996, to Jul. 9, 2000).
5 Relative to the case sub judice, pursuant to Section 9795.1(b) of Megan’s
Law II, Appellant became subject to lifetime registration as a result of his 1992
IDSI conviction. See 42 Pa.C.S.A. § 9795.1(b) (effective Jul. 9, 2000, to Dec.
20, 2012).
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May 10, 2000, P.L. 74, No. 18. Thereafter, the General Assembly enacted
additional changes to Megan's Law II with the passage of the Act of November
24, 2004, P.L. 1243, No. 152 (“Act 152”), commonly referred to as Megan's
Law III, which was signed into law on November 24, 2004, and became
effective January 24, 2005.6 See Commonwealth v. Neiman, 84 A.3d 603,
607 (Pa. 2013). Relevant to this appeal, as developed in greater detail infra,
one of the legislative enactments ushered in by Megan’s Law III involved an
addition to the Crimes Code codified at Section 4915(a)(1), which made it a
criminal offense when a sexual offender, subject to registration, failed to
register his or her residential address with the Pennsylvania State Police. See
18 Pa.C.S.A. § 4915(a)(1) (effective Jan. 1, 2007, to Feb. 20, 2012) (stating,
in pertinent part, that, “an individual who is subject to registration under 42
Pa.C.S.[A.] § 9795.1(b) or who was subject to registration under former 42
Pa.C.S[A.] § 9793 (relating to registration of certain offenders for ten years)
commits an offense if he[, or she,] knowingly fails to[] register with the
Pennsylvania State Police” (format modified)).
As a result of unrelated events in January 2009, police discovered that
Appellant, as a sexual offender subject to lifetime registration, failed to
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6 Relative to the case sub judice, Appellant remained subject to lifetime
registration for his 1992 conviction of IDSI pursuant to Section 9795.1(b) of
Megan’s Law III. See 42 Pa.C.S.A. § 9795.1(b) (effective Jul. 9, 2000, to
Dec. 20, 2012).
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register his then-current residential address.7 Accordingly, the
Commonwealth charged Appellant, at trial court docket
CP-61-CR-0000116-2009 (“CR-116-2009”), with failure to comply with
registration of sexual offender requirements, 18 Pa.C.S.A. § 4915(a)(1). On
June 19, 2009, a jury convicted Appellant of violating Section 4915(a)(1). The
trial court subsequently sentenced Appellant on July 28, 2009, to 40 to 120
months’ incarceration for his conviction under Section 4915(a)(1).8
This Court affirmed Appellant’s judgment of sentence at CR-116-2009
on October 21, 2010, and Appellant did not seek discretionary review with our
Supreme Court. Commonwealth v. Hagan, 15 A.3d 537,
2010 WL 5697370
(Pa. Super. filed Oct. 21, 2010) (unpublished memorandum). As such,
Appellant’s judgment of sentence at CR-116-2009 became final on Monday,
____________________________________________
7 As discussed supra, Appellant was convicted in 1992 of IDSI involving a
minor. At the time of his conviction, Appellant was not subject to registration
as a sexual offender because statutory schemes aimed at monitoring sexual
offenders (i.e., Megan’s Law I, and its progeny) had not yet been enacted.
With the enactment of Megan’s Law I in April 1996, Appellant, as a sexual
offender convicted of IDSI involving a minor, became subject to a 10-year
registration period upon his release from incarceration pursuant to Section
9793(a) and (b)(1) of Megan’s Law I. When Megan’s Law II became effective
in July 2000, Appellant became subject to lifetime registration upon his release
from incarceration pursuant to Section 9795.1(b)(2). When Megan’s Law III
became effective in January 2005, Appellant remained subject to lifetime
registration pursuant to Section 9795.1(b)(2). As such, when Appellant was
arrested and charged with violating Section 4915(a)(1) in January 2009,
Appellant was subject to lifetime registration.
8 The trial court denied Appellant’s post-sentence motion for reconsideration
of his sentence on August 7, 2009. As discussed infra, no registration
requirements attached to Appellant’s conviction at CR-116-2009.
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November 22, 2010. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “[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 the time for seeking the review”); see
also Pa.R.A.P. 1113(a) (requiring a petition for allowance of appeal to be filed
within 30 days after entry of an order of this Court sought to be reviewed); 1
Pa.C.S.A. § 1908 (stating that, whenever the last day of any period of time
referred to in a statute “shall fall on Saturday or Sunday, or on any day made
a legal holiday by the laws of this Commonwealth or of the United States, such
day shall be omitted from the computation”).
On April 1, 2015, Appellant, while incarcerated for his 2009 conviction
for failure to register, was charged at trial court docket
CP-61-CR-0000242-2015 (“CR-242-2015”) with rape – forcible compulsion,
involuntary deviate sexual intercourse – threat of forcible compulsion, and
sexual assault.9 On October 19, 2015, Appellant pled guilty, pursuant to a
negotiated plea agreement, to one count each of indecent assault – forcible
compulsion and indecent assault – threat of forcible compulsion.10 On July
22, 2016, the trial court sentenced Appellant to 16 to 60 months’ incarceration
on each of the two aforementioned convictions. The periods of incarceration
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9 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(2), and 3124.1, respectively. These
criminal charges stemmed from Appellant’s sexual assault of his son between
September 2006, and September 2007. Trial Court Opinion, 7/1/16, at 2.
10 18 Pa.C.S.A. §§ 3126(a)(2) and 3126(a)(3), respectively.
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were set to run concurrently to each other, and set to run consecutively to all
sentences previously imposed on Appellant. On August 4, 2016, the trial
court, having designated Appellant an SVP at CR-242-2015,11 notified
Appellant that, as a result of his convictions, he was subject to lifetime
registration with the Pennsylvania State Police pursuant Section
9799.15(a)(6) of SORNA.12 See 42 Pa.C.S.A. § 9799.15(a)(6) (effective Dec.
20, 2012, to Feb. 20, 2018). Appellant did not pursue a direct appeal of his
July 22, 2016 judgment of sentence with this Court. Therefore, Appellant’s
judgment of sentence at CR-242-2015 became final on Monday, August 22,
2016. See Pa.R.A.P. 903(a) (explaining that, an appellant has “30 days after
the entry of the order from which the appeal is taken” in which to file a notice
of appeal); see also 42 Pa.C.S.A. § 9545(b)(3); 1 Pa.C.S.A. § 1908.
After the trial court imposed its sentence at CR-116-2009 on July 28,
2009, but before Appellant’s sentence was imposed at CR-242-2015 on July
22, 2016, our Supreme Court, in Neiman, supra, invalidated Megan’s
Law III, including Section 4915(a)(1) (the provision of the Crimes Code used
to prosecute Appellant’s failure to comply with registration requirements at
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11 See 42 Pa.C.S.A. § 9799.24 (effective Dec. 20, 2012, to Jun. 29, 2021)
(setting forth the assessment process for determining whether an individual
meets the criteria for SVP status under the Sex Offender Registration and
Notification Act (“SORNA”), codified at 42 Pa.C.S.A. §§ 9799.11 to 9799.40).
12 Under the then-current Section 9799.14(c)(1.3) of SORNA, Appellant’s
convictions were designated Tier II sexual offenses. 42 Pa.C.S.A.
§ 9799.14(c)(1.3) (effective Sept. 2, 2014, to Feb. 20, 2018).
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CR-116-2009), because passage of Act 152 violated the single subject rule of
the Pennsylvania Constitution.13 Neiman, 84 A.3d at 605, 613, 615-616.
Thereafter, in 2017, our Supreme Court, in Commonwealth v. Derhammer,
173 A.3d 723 (Pa. 2017), clarified the implications of Neiman and held that
the Commonwealth lacked authority to prosecute a defendant for violating
Section 4915 after Neiman invalidated Megan’s Law III. Derhammer,
173
A.3d at 728-731. In 2020, our Supreme Court, in Commonwealth v.
McIntyre,
232 A.3d 609 (Pa. 2020), agreed that McIntyre (a petitioner for
collateral relief) was entitled to the relief he requested where he asserted, in
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13The single subject rule of Article III, Section 3 of the Pennsylvania
Constitution provides,
§ 3. Form of bills
No bill shall be passed containing more than one subject, which
shall be clearly expressed in its title, except a general
appropriation bill or a bill codifying or compiling the law or a part
thereof.
PA CONST. art. III, § 3.
The Neiman Court stressed that its act of invalidating Act 152, which enacted,
inter alia, Megan’s Law III and Section 4915, because the passage of the
legislative act violated the single subject rule “should not, in any way, be read
as a repudiation of the merits of the various legislative components of Act 152
such as Megan's Law III, which serves a vital purpose in protecting our
Commonwealth's citizens and children, in particular, from victimization by
sexual predators.” Neiman, 84 A.3d at 615.
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a timely PCRA petition,14 that his conviction and sentence under Section 4915
were unlawful since Section 4915 was invalid from its inception. McIntyre,
232 A.3d at 617 n.13, 619.
On December 20, 2021, Appellant filed pro se at CR-116-2009 and
CR-242-2015 a petition for writ of habeas corpus.15 Counsel was appointed
to represent Appellant on January 7, 2022, and subsequently filed an amended
petition for writ of habeas corpus on May 6, 2022. The amended petition
alleged that Appellant was entitled to relief under Neiman, Derhammer, and
McIntyre. The PCRA court entertained argument on Appellant’s petition for
writ of habeas corpus on June 30, 2022, and, thereupon, concluded that
Appellant’s December 2021 submission should be treated as a petition for
collateral relief under the PCRA. That same day, the PCRA court denied
____________________________________________
14 As discussed infra, Appellant raises the same legal contention presented to
our Supreme Court in McIntyre, except that Appellant raises his claim in the
context of a patently untimely petition for collateral relief.
15 Appellant’s petition for writ of habeas corpus was timestamped as having
been received by the PCRA court on December 28, 2021. Pursuant to the
“prisoner mailbox rule,” we deem Appellant’s petition for writ of habeas corpus
as filed on December 20, 2021. See Pro Se Petition for Writ of Habeas Corpus,
12/20/21, at Proof of Service (noting that, Appellant served his petition on the
PCRA court on December 20, 2021); see also Commonwealth v. Jones,
700 A.2d 423, 426 (Pa. 1997) (explaining that, pursuant to the prisoner
mailbox rule, a document is deemed filed on the date an inmate deposits the
mailing with prison authorities or places it in the prison mailbox).
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Appellant’s December 2021 filing.16 PCRA Court Order, 6/30/22. This appeal
followed.17
Appellant raises the following issues for our review:
[1.] Whether [Appellant’s petition for] writ of habeas corpus[] is
an allowable procedural mechanism[] to challenge[] the
sexual offender registration statute[?]
[2.] Whether [Appellant’s] conviction[] in 2009 for failure to
register violate[s] the ex post facto laws of the United States
and Pennsylvania constitutions and this being the case, the
Commonwealth cannot hold [Appellant] criminally liable for
violating Section [] 4915(a)(1) of the Crimes Code[?]
Appellant’s Brief at 4 (extraneous capitalization omitted).18
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16 Specifically, the PCRA court stated,
[Appellant’s] petition for writ of habeas corpus, with respect to
[CR-116-2009], is dismissed due to [the PCRA] court’s lack of
jurisdiction since that sentence has expired in its entirety. With
respect to [Appellant’s] petition for writ of habeas corpus
concerning [CR-242-2015, the PCRA] court finds that [a petition
for writ of] habeas corpus is not the proper procedure to appeal
any issues in that case, as the only relief that may be granted, is
through a [PCRA] hearing.
PCRA Court Order, 6/30/22 (extraneous capitalization and formatting
modified).
17Both Appellant and the PCRA court complied with Pennsylvania Rule of
Appellate Procedure 1925.
18 For ease of disposition, we reorganized Appellant’s issues.
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Appellant’s first issue challenges the PCRA court’s treatment of his
petition for writ of habeas corpus as a PCRA petition. Id. at 8-14.19 Appellant
asserts that, pursuant to our Supreme Court’s decision in Commonwealth v.
Lacombe, 234 A.3d 602 (Pa. 2020), he “may challenge the application of a
sexual offender registration statute outside the framework of the PCRA.” Id.
at 8, citing Lacombe, 234 A.3d at 618. Appellant contends that his petition
for writ of habeas corpus is “the proper vehicle” to raise a constitutional
challenge to the sentences imposed at CR-116-2009 and CR-242-2015 and,
therefore, his December 2021 filing is not subject to the PCRA’s jurisdictional
limitations or the requirement that he currently be incarcerated to be eligible
for relief.20 Appellant’s Brief at 9.
In so arguing, we find Appellant raises a challenge to the PCRA court’s
determination that it lacked jurisdiction at CR-116-2009 and CR-242-2015 to
grant Appellant’s request for relief. Because jurisdiction is purely a question
____________________________________________
19 In his appellate brief, Appellant raises two distinct issues.
Appellant’s Brief
at 4. A review of the argument section of Appellant’s brief, however, reveals
a single argument in support of both issues. Pennsylvania Rule of Appellate
Procedure 2119(a) requires the argument section of an appellate brief to be
“divided into as many parts as there are questions to be argued[.]” Despite
Appellant’s failure to adhere to Rule 2119(a), we decline to find waiver of his
issues.
20 Appellant filed his petition for writ of habeas corpus at both CR-116-2009
and CR-242-2015. Because each PCRA court docket involves unique issues,
we address Appellant’s issues separately within the context of each PCRA court
docket.
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of law, our standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Merced, 265 A.3d 786, 789 (Pa. Super. 2021).
CR-116-2009
It is well-established that “the PCRA subsumes the remedy of habeas
corpus with respect to remedies offered under the PCRA[.]” Commonwealth
v. Peterkin, 722 A.2d 638, 640 (Pa. 1998); see also 42 Pa.C.S.A. § 9542
(stating, a PCRA petition “shall be the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect, including habeas corpus
and coram nobis”); Commonwealth v. Taylor,
65 A.3d 462, 465-466
(Pa. Super. 2013) (stating, “[u]nless the PCRA [cannot] provide[] a potential
remedy, the PCRA statute subsumes the writ of habeas corpus”);
Commonwealth v. Powell,
290 A.3d 751, 758 (Pa. Super. 2023). “Issues
that are cognizable under the PCRA must be raised in a timely PCRA petition
and cannot be raised in a habeas corpus petition.” Taylor,
65 A.3d at 466.
Regardless of how a petition is titled, courts are to treat a petition filed after
a judgment of sentence becomes final as a PCRA petition if it requests relief
contemplated by the PCRA. Commonwealth v. Wrecks,
934 A.2d 1287,
1289 (Pa. Super. 2007); see also Commonwealth v. Torres,
223 A.3d 715,
716 (Pa. Super. 2019) (stating, “so long as a pleading falls within the ambit
of the PCRA, the court should treat any pleading filed after the judgment of
sentence is final as a PCRA petition” (citation omitted)); Commonwealth v.
Hromek,
232 A.3d 881, 884 (Pa. Super. 2020) (affirming the Wrecks’
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holding that regardless of how a filing is titled, a petition should be treated as
filed under the PCRA if it is filed after the judgment of sentence becomes final
and seeks relief provided under the PCRA).
Recently, however, our Supreme Court held that a petition filed
pursuant to the PCRA was not the “exclusive method for challenging sexual
offender registration statutes[.]” Lacombe, 234 A.3d at 618. In other words,
challenges to the sexual offender registration statutes asserting, for example,
that the registration statutes violate the constitutional prohibition against ex
post facto laws, may be raised in, inter alia, a petition for writ of habeas
corpus.21
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21 In Pennsylvania, constitutional principles applicable to the ex post facto
doctrine are coextensive under federal and state law.
Both the United States Constitution and the Pennsylvania
Constitution prohibit the enactment of ex post facto laws. [See]
U.S. CONST. art. I, § 10; [see also] PA CONST. art. I, § 17. Our
Supreme Court has interpreted these constitutional ex post facto
clauses to be effectively identical. Commonwealth v.
Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016)[,] citing
Commonwealth v. Young, [] 637 A.2d 1313 ([Pa.] 1993)[.] The
purpose of this proscription is “to preserve for persons the right
to fair warning that their conduct will give rise to criminal
penalties.” Commonwealth v. Grady, [] 486 A.2d 962, 964
([Pa. Super.] 1984)[,] quoting Commonwealth v. Hoetzel, []
426 A.2d 669, 672 ([Pa. Super.] 1981)[.] We have explained that
“a state law violates the ex post facto clause if it was adopted after
the complaining party committed the criminal acts and ‘inflicts a
greater punishment than the law annexed to the crime, when
committed.’” Commonwealth v. Fleming, 801 A.2d 1234, 1237
(Pa. Super. 2002).
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In the case sub judice, Appellant presents his challenge to the sentence
imposed at CR-116-2009 as a challenge to the sexual offender registration
statute commonly referred to as SORNA.22 Appellant’s Brief at 14 (stating,
“because [Appellant] could not be subject to SORNA’s registration
requirements, the Commonwealth could not hold [Appellant] criminally liable
for violating [Section] 4915(a)(1) of the Crimes Code”). Specifically,
Appellant contends,
[he committed and] was convicted of [IDSI] in 1992. [At that
time,] there was no sexual offender[] registration law in
existence. [Appellant] was not subject at that time to any
reporting requirements[.] In 1995, three years after [Appellant]
was convicted of IDSI, Pennsylvania enacted Megan’s Law [I], and
[Appellant] was then required to register for 10 years [upon
completing his term of incarceration.] In 2012, [Appellant] was
required to register for life vis[-]a[-]vis SORNA. The triggering
offense occurred in 1992. SORNA is being applied to [Appellant]
retroactively. SORNA is punitive. [Appellant] was convicted of
IDSI in 1992. [Appellant] faced no punishment beyond his
imposed [term of incarceration.] Thus, because [Appellant] could
not be subject to SORNA’s registration requirements, the
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Commonwealth v. Kizak, 148 A.3d 854, 856-857 (Pa. Super. 2016)
(original brackets omitted), overruled on other grounds by Commonwealth
v. Lippincott,
208 A.3d 143 (Pa. Super. 2019) (en banc).
22 SORNA was enacted as part of the Act of December 20, 2011, P.L. 446, No.
111, and became effective on December 20, 2012. “Among a litany of new
substantive provisions, SORNA created a three-tiered system to categorize
[sexual] offenders.” Commonwealth v. Santana,
266 A.3d 528, 531 (Pa.
2021). Pursuant to Section 9799.14(d)(4) of SORNA, IDSI was classified as
a Tier III sexual offense. 42 Pa.C.S.A. § 9799.14(d)(4) (effective Dec. 20,
2012, to Jun. 11, 2018). As a Tier III offense, a person convicted of IDSI was
subject to lifetime registration upon release from incarceration pursuant to
Section 9799.15(a)(3) of SORNA. 42 Pa.C.S.A. § 9799.15(a)(3) (effective
Dec. 20, 2012, to Jun. 11, 2018).
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Commonwealth could not hold [Appellant] criminally liable for
violating [Section] 4915(a)(1) of the Crimes Code.
Id. at 14. In so arguing, Appellant attempts to characterize his petition for
writ of habeas corpus as a challenge to retroactive application of SORNA,
which falls within the purview of Lacombe and which escapes PCRA
jurisdictional requirements. We find Appellant’s reliance on Lacombe to be
misplaced.
We begin by reiterating that Appellant’s 2009 conviction at
CR-116-2009 was for failure to register as a sexual offender under Section
4915(a)(1) of the Crimes Code. By 2009, and specifically by January 2009,
when Appellant was arrested and charged with failure to register under
Section 4915(a)(1), Appellant’s lifetime registration requirement based upon
his 1992 IDSI conviction was fixed by Megan’s Law III, not SORNA. See 42
Pa.C.S.A. § 9795.1(b)(2) (effective Jan. 24, 2005, to Dec. 19, 2012). Upon
Appellant’s conviction of Section 4915(a)(1) following a jury trial, the trial
court sentenced Appellant to 40 to 120 months’ incarceration. Because a
conviction of Section 4915(a)(1) – failure to register is not a sexual offense,
however, the trial court, in sentencing Appellant at CR-116-2009, could not
impose a registration obligation under Megan’s Law III.23 As such, no
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23 Under Megan’s Law III, which was effective at the time of Appellant’s
conviction of Section 4915(a)(1), individuals convicted of the following sexual
offenses were subject to a 10-year registration period: 18 Pa.C.S.[A. §§ ]2901
(relating to kidnapping) where the victim is a minor[,] 2910 (relating to luring
a child into a motor vehicle or structure)[,] 3124.2 (relating to institutional
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registration requirement attached to Appellant’s sentence at CR-116-2009
under Megan’s Law III or later under SORNA, when SORNA became effective
on December 20, 2012.
As noted supra, in Lacombe, our Supreme Court declined “to find the
PCRA, or any other procedural mechanism, is the exclusive method for
challenging sexual offender registration statutes[.]” Lacombe, 234 A.3d at
618. In so finding, our Supreme Court recognized the well-established
requirement that a PCRA petition, in order to be timely, must be filed within
one year of the judgment of sentence becoming final. Id. at 617, citing 42
Pa.C.S.A. § 9545(b)(1). The Lacombe Court recognized that if a PCRA
petition were the sole means of challenging a sexual offender registration
statute, many registrants would be time-barred from raising such a challenge
____________________________________________
sexual assault)[,] 3126 (relating to indecent assault) where the offense is
graded as a misdemeanor of the first degree or higher[,] 4302 (relating to
incest) where the victim is 12 years of age or older but under 18 years of
age[,] 5902(b) (relating to prostitution and related offenses) where the actor
promotes the prostitution of a minor[,] 5903(a)(3), (4), (5) or (6) (relating to
obscene and other sexual materials and performances) where the victim is a
minor[,] 6312 (relating to sexual abuse of children)[,] 6318 (relating to
unlawful contact with minor)[, and] 6320 (relating to sexual exploitation of
children). See 42 Pa.C.S.A. § 9795.1(a)(1) (effective Dec. 8, 2008, to Dec.
19, 2012) (formatting modified). Under Megan’s Law III, individuals
convicted of the following sexual offenses were subject to a lifetime
registration: 18 Pa.C.S.[A. §§ ]3121 (relating to rape)[,] 3123 (relating to
involuntary deviate sexual intercourse)[,] 3124.1 (relating to sexual
assault)[,] 3125 (relating to aggravated indecent assault)[, and] 4302
(relating to incest) when the victim is under 12 years of age. See 42 Pa.C.S.A.
§ 9795.1(b)(2) (effective Dec. 8, 2008, to Dec. 19, 2012) (formatting
modified).
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because their judgments of sentence would have become final well-before
their registration periods started, or they would be ineligible for collateral relief
because they were no longer serving a sentence. Lacombe, 234 A.3d at
617-618 (noting that, Section 9543(a)(1) of the PCRA requires a petitioner to
be serving a sentence to be eligible for collateral relief). The Lacombe Court
explained that the ability to raise a challenge to a sexual offender registration
statute in a vehicle other than a PCRA petition took “into account the fact that
frequent changes to sexual offender registration statutes, along with more
onerous requirements and retroactive application, complicate registrants’
ability to challenge new requirements imposed years after their sentences
become final.” Id. at 617.
The decision announced in Lacombe offered registrants an opportunity
to challenge current or future registration requirements through a procedural
mechanism other than a PCRA petition when the registrant has fulfilled his or
her sentence, has been released from incarceration, and the registration
requirements have begun. Common procedural devices used to challenge
punitive registration schemes outside the scope of the PCRA include: (1)
petitions to enjoin the Pennsylvania State Police from enforcing registration
requirements; (2) petitions to terminate registration requirements; and, (3)
petitions to enforce negotiated plea bargain agreements. Appellant’s instant
petition for writ of habeas corpus, which targets the validity of his past
conviction and sentence at CR-116-2009, is not exclusively directed at
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challenging a current or future registration obligation but it also is not
expressly excluded by Lacombe.
We also cannot overlook, however, the fact that Appellant’s conviction
at CR-116-2009 arose purely from his failure to register pursuant to the
lifetime registration obligation imposed under Megan’s Law III.24 As such, in
a practical sense, Appellant’s claim challenges his lifetime registration
obligations imposed by Megan’s Law III. In support of his claim that his
lifetime registration obligations violate ex post facto laws, Appellant relies
upon our Supreme Court’s decision in Santana, supra.25 Appellant’s Brief at
11-14.
In Santana, Santana, as a result of his 1983 conviction of rape, which
was committed while he resided in New York State, became subject to
SORNA’s lifetime registration when he moved to Pennsylvania in 2015.26
____________________________________________
24 Appellant’s reliance upon SORNA as the basis of his registration
requirements is misplaced. In January 2009, when Appellant failed to register
his residential address pursuant to Section 4915(a)(1), Appellant was subject
to lifetime registration pursuant to Megan’s Law III. SORNA did not become
effective until December 20, 2012, almost three years after Appellant violated
Section 4915(a)(1) by failing to register his residential address.
25 “As the constitutionality of a statute presents a pure question of law, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Lawrence, 99 A.3d 116, 118 (Pa. Super. 2014), appeal
denied,
114 A.3d 416 (Pa. 2015).
26 Under SORNA, the sexual offense of rape was designated as a Tier III
offense, and Tier III offenses subjected the sexual offender to, inter alia,
lifetime registration. Santana, 266 A.3d at 531.
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Santana, 266 A.3d at 530-531. During his “check-ins” with the Pennsylvania
State Police, as required under SORNA, Santana was not forthcoming with
accurate information, including, inter alia, that he registered a telephone
number and an electronic mail address on a social media application. Id. at
531. As a result of these infractions, Santana was charged with failure to
provide accurate information under Section 4915.1(a)(3).27 Id.; see also 18
Pa.C.S.A. § 4915.1(a)(3) (effective Dec. 20, 2012, to Feb. 20, 2018).
Santana pled guilty to the Section 4915.1(a)(3) offense and was subsequently
sentenced by the trial court on July 18, 2017. Santana, 266 A.3d at 531.
The next day, our Supreme Court issued its decision in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), invalidating SORNA’s registration scheme
under which Santana was prosecuted.”28 Id. at 531. Thereafter, relying on
____________________________________________
27Section 4915.1 of the Crimes Code was enacted as part of SORNA and
became effective on December 20, 2012. See Act of Dec. 20, 2011, P.L. 446,
No. 111. Section 4915.1 replaced Section 4915, which expired on December
19, 2012, and criminalized, inter alia, the failure to register and to provide
accurate information when registering. 18 Pa.C.S.A. § 4915.1 (effective Dec.
20, 2012, to Feb. 20, 2018).
28 In Muniz, our Supreme Court held that
1) SORNA's registration provisions constitute punishment
notwithstanding the General Assembly's identification of the
provisions as nonpunitive; 2) retroactive application of SORNA's
registration provisions violate the federal ex post facto clause; and
3) retroactive application of SORNA's registration provision also
violates the ex post facto clause of the Pennsylvania Constitution.
Santana, 266 A.3d at 533 and 533 n.18 (extraneous capitalization omitted)
(noting that, the “the ex post facto holding arising from the Pennsylvania
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Muniz, Santana filed a motion to withdraw his guilty plea, arguing that
“applying SORNA retroactively to his 1983 New York offense constituted an ex
post facto violation[.]” Id. at 531-532. The trial court denied Santana’s
motion, and an en banc panel of this Court reversed that decision.
Commonwealth v. Santana, 241 A.3d 660 (Pa. Super. 2020) (en banc).
In affirming the en banc decision of this Court, our Supreme Court
explained that “[w]hen applied retroactively, sexual offender registration laws
implicate the third Calder category of retroactive provisions.”29 Santana,
266 A.3d at 537. The Santana Court explained that
____________________________________________
Constitution . . . represented the opinion of only a plurality of [our Supreme
Court]”), citing Muniz, 164 A.3d at 1193.
29 The Santana Court explained,
[i]n Calder v. Bull, [3 U.S. 386 (1798),] the Supreme Court of
the United States identified four types of laws that traditionally
constitute ex post facto violations.
1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action. 2nd. Every
law that aggravates a crime, or makes it greater than
it was, when committed. 3rd. Every law that changes
the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law
required at the time of the commission of the offense,
in order to convict the offender.
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An ex post facto analysis concerning the third Calder category of
laws distills 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. The Santana Court found that in 2015, when
Santana relocated to Pennsylvania, the SORNA registration requirements to
which he was subjected were retroactively applied to his 1983 rape
conviction.30 Santana, 266 A.3d at 538. Having previously ruled in Muniz
that SORNA’s registration requirements were punitive, the Santana Court
determined that Santana was similarly situated to Muniz in that SORNA’s
registration requirements were imposed retroactively to his 1983 rape
conviction.31 Id. at 539. As such, the Santana Court held that the punitive
____________________________________________
Santana, 266 A.3d at 536, citing Calder, 3 U.S. at 390. The Santana Court
stated that sexual offender registration laws, such as SORNA, implicate the
third Calder category of retroactive provisions. Santana, 266 A.3d at 537.
30 In determining whether SORNA’s registration requirements were applied
retroactively, the Santana Court emphasized that a court must first consider
when the underlying crime that triggered the registration, i.e., the sexual
offense, was committed and not look to the date on which a failure to register
occurred or where the sexual offense occurred, i.e., New York verses
Pennsylvania. Santana, 266 A.3d at 537 (stating, “[f]irst a court must ask
when the initial offense was committed”).
31 The issue before our Supreme Court in Santana was whether the decision
in Muniz – SORNA “constituted a punitive regulatory scheme that, when
imposed retroactively to [sexual] offenders who committed their offenses prior
to SORNA’s enactment, amounted to an unconstitutional ex post facto
law” – applied with equal force to Santana whose triggering offense occurred
in another state. Santana, 266 A.3d at 529-530.
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registration requirements of SORNA were a constitutionally infirm ex post
facto law as they applied to Santana’s case. Id.
In Santana, our Supreme Court held that a challenge to the retroactive
application of SORNA’s punitive registration scheme can be raised and
adjudicated in the context of a failure to register prosecution. As discussed
supra, Santana – who failed to provide accurate registration information in
2015 - was subject to unlawful retroactive application of SORNA’s punitive
registration requirements, owing to a 1983 rape conviction. In the case sub
judice, Appellant – who failed to register his new residential address in
January 2009 - was retroactively subjected to registration requirements under
Megan’s Law III (not SORNA) because of his 1992 IDSI conviction.
Although the registration requirements of Megan’s Law III were
retroactively applied to Appellant’s 1992 IDSI conviction, key distinctions
differentiate Appellant’s case from Santana. Unlike the SORNA registration
requirements considered in Santana, our Supreme Court has never declared
the registration requirements under Megan’s Law III to be punitive. Rather,
our Supreme Court in Neiman, supra, invalidated Megan’s Law III, which
included Section 4915, because the method by which Megan’s Law III and
Section 4915 were enacted was unconstitutional in that Act 152, which
contained amendments to deficiency judgment procedures, asbestos statutes
of limitations, county police jurisdiction, Megan’s Law II, and Section 4915,
violated the single subject rule under Article III, Section 3 of the Pennsylvania
Constitution. Neiman,
84 A.3d at 605; see also McIntyre,
232 A.3d at 615
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(stating that, Megan’s Law III and Section 4915 were void ab initio because
their enactment was in violation of the single subject rule of the Pennsylvania
Constitution). Absent a showing that the registration requirements under
Megan’s Law III were punitive, the retroactive application of that registration
statute to Appellant in January 2009, did not violate the ex post facto laws.32
Santana, 266 A.3d at 539.
____________________________________________
32As noted by our Supreme Court in Santana, the Supreme Court of the
United States in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
articulated a two-part test for deciding whether a legislative
enactment is punitive. The first inquiry asks whether the
legislature intended a statutory scheme to be punitive. If so, the
inquiry ends. If not, the reviewing court must assess whether the
statute nonetheless is punitive in its effect. This second inquiry
requires consideration of the following seven factors:
[(1)] whether the sanction involves an affirmative
disability or restraint, [(2)] whether it has historically
been regarded as a punishment, [(3)] whether it
comes into play only on a finding of scienter, [(4)]
whether its operation will promote the traditional aims
of punishment-retribution and deterrence, [(5)]
whether the behavior to which it applies is already a
crime, [(6)] whether an alternative purpose to which
it may rationally be connected is assignable for it, and
[(7)] whether it appears excessive in relation to the
alternative purpose assigned.
Santana, 266 A.3d at 538 n.46 (internal citation and original brackets
omitted), citing Mendoza-Martinez, 372 U.S. at 168-169.
In the case sub judice, Appellant has not undertaken an analysis of the
Mendoza-Martinez two-part test to support, or even put forth a claim, that
the registration requirements of Megan’s Law III were punitive. See
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In sum, we decline Appellant’s invitation to read Lacombe as a vehicle
allowing him to challenge his 2009 conviction and sentence outside the PCRA
and its restrictive jurisdictional and eligibility requirements. Our Supreme
Court’s decision in Lacombe provided a means by which registrants,
disadvantaged by the jurisdictional and eligibility requirements of the PCRA,
were permitted to challenge the application of punitive sexual offender
registration requirements more than one year after their judgments of
sentence became final or after they fulfilled their terms of incarceration.
Appellant has not demonstrated that his 2009 conviction for failure to register
resulted from an unlawful, retroactive application of a punitive sexual
offender registration scheme. Moreover, no registration requirement attached
to Appellant’s 2009 conviction. Hence, Lacombe does not allow Appellant to
challenge his conviction and sentence at CR-116-2009 outside the context of
the PCRA. Therefore, we discern no error in the PCRA court’s decision to
review Appellant’s petition under the PCRA.
____________________________________________
Appellant’s Brief at 8-15. We decline to undertake such an analysis on
Appellant’s behalf.
Rather, Appellant simply asserts that SORNA is punitive and being
retroactively applied. Id. at 14 (stating, “SORNA is being applied to
[Appellant] retroactively. SORNA is punitive.”). This unsupported assertion
is unavailing, as retroactive application of SORNA did not, and could not, occur
at the time of Appellant’s 2009 conviction for failure to register.
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We now consider whether the PCRA court correctly reviewed Appellant’s
challenges at CR-116-2009 under the PCRA. For the reasons that follow, we
conclude that it did.
As we stated supra, Appellant asserted that jurisdiction over his claims
was proper under Lacombe and that his submission was not subject to the
strictures of the PCRA. Specifically, Appellant maintained in his pro se petition
for writ of habeas corpus that his sentence at CR-116-2009 was illegal because
Section 4915 was deemed unconstitutional by our Supreme Court in Neiman,
supra, as affirmed by
Derhammer, supra. Because his sentence at
CR-116-2009 was illegal, Appellant contends the sentence imposed at
CR-242-2015, which was set to run consecutively to the sentence Appellant
received at CR-116-2009, should have commenced on July 22, 2016, the
sentencing date at CR-242-2015, and that the time Appellant served as part
of the sentence at CR-116-2009 should be credited towards his sentence at
CR-242-2015. When his sentences are viewed in this light, Appellant asserts
he fulfilled his period of incarceration imposed at CR-242-2015 and requests,
through his petition for writ of habeas corpus, that he be released from
incarceration. See generally, Pro Se Petition for Writ of Habeas Corpus,
12/20/21. To the extent that Appellant asserts pro se that his sentence
imposed at CR-116-2009 was illegal and void ab initio pursuant to
Neiman,
supra, as affirmed by
Derhammer, supra, we discern no error in the PCRA
court’s assessment of Appellant’s petition as a PCRA petition and denying it
as such.
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Appellant’s argument, and the underlying facts, closely align with the
circumstances addressed by our Supreme Court in McIntyre, supra. In
McIntyre, McIntyre was convicted of indecent assault in 2001, and upon his
release from prison in 2003, he was required, as a sexual offender, to register
with the Pennsylvania State Police for a period of 10 years. McIntyre, 232
A.3d at 611. In April 2012, McIntyre was convicted of violating Section 4915
based upon his failure to fulfill his mandatory registration requirements as a
sexual offender.
Id. As a result of his conviction of Section 4915, McIntyre
was sentenced to 5 to 10 years’ incarceration.
Id. This Court affirmed
Appellant’s judgment of sentence on July 16, 2013, several months before our
Supreme Court’s decision in
Neiman, supra. See Commonwealth v.
McIntyre,
82 A.3d 1006,
2013 WL 6704859 (Pa. Super. filed Jul. 16, 2013)
(unpublished memorandum).
McIntyre filed a timely PCRA petition, which the PCRA court
subsequently dismissed. McIntyre, 232 A.3d at 612, 617 n.13. On appeal
before this Court, McIntyre asserted for the first time that pursuant to our
Supreme Court’s decision in Derhammer, which affirmed Neiman, the
Commonwealth lacked authority to prosecute him for violating Section 4915
after Megan’s Law III, which included Section 4915, was struck down by our
Supreme Court in Neiman. Id. at 612. This Court affirmed the order
dismissing McIntyre’s PCRA petition, finding Derhammer distinguishable
because McIntyre’s judgment of sentence became final before the decision in
Neiman was handed down and McIntyre did not assert that Neiman applied
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retroactively. Id.; see also Commonwealth v. McIntyre, 2018 WL
6598422, at *2 (Pa. Super. filed Dec. 17, 2018) (unpublished memorandum).
On discretionary appeal, our Supreme Court held that McIntyre’s
claim - that he was “entitled to relief because our [Supreme] Court’s decision
in Neiman . . . rendered Section 4915 void ab initio, and his conviction (and
sentence) based thereon invalid - implicated the legality of his sentence and,
as such, was a claim cognizable under the PCRA. McIntyre, 232 A.3d at
616-617. The McIntyre Court also noted that, “[i]nasmuch as [McIntyre’s]
claim that the trial court lacked authority to sentence him because the statute
under which he was convicted was void ab initio is also[] a claim involving the
legality of his sentence, [] it too is cognizable under the PCRA.” Id. at 617
(stating that, “legality of sentence is always subject to review within the PCRA,
provided the PCRA time limits for filing a petition thereunder, or one
of its exceptions, are satisfied” (original quotation marks omitted;
emphasis added)). Our Supreme Court, having found McIntrye’s PCRA
petition was timely filed (and that McIntyre remained eligible for collateral
relief under the PCRA), reversed the order dismissing his petition and reversed
McIntyre’s judgment of sentence. Id. at 610-611. In doing so, the McIntyre
Court, relying upon a well-established fundamental principle of our system of
jurisprudence, stated,
an unconstitutional law cannot serve as the foundation of a court’s
authority to try and imprison an individual, and, thus, criminal
convictions and sentences based upon such unconstitutional laws
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must not be permitted to stand. The [H]igh Court declared therein
that an unconstitutional law is void, and is as no law. An offence
created by it is not a crime. A conviction under it is not merely
erroneous, but is illegal and void, and cannot be a legal cause of
imprisonment.
Id. at 618 (original brackets and quotation marks omitted), citing Ex Parte
Siebold, 100 U.S. 371, 376-377 (1879).
In the case sub judice, Appellant argues pro se that the trial court lacked
authority to convict him and impose its sentence at CR-116-2009. He
concludes, therefore, that his sentence is illegal. As stated, our Supreme
Court has held that such a claim raises a challenge to the legality of Appellant’s
sentence, a claim cognizable under the PCRA. McIntyre, 232 A.3d at
616-617; see also 42 Pa.C.S.A. § 9543(a)(2)(vii). As such, we discern no
error of law or abuse of discretion in the treatment of Appellant’s petition for
writ of habeas corpus as an untimely PCRA petition. Also, because Appellant
was not currently incarcerated as a result of his conviction at CR-116-2009,
he was no longer eligible under the PCRA. See 42 Pa.C.S.A. § 9543(a)(1)(i)
(stating that, to be eligible for relief under the PCRA, a petitioner must plead
and prove by a preponderance of the evidence that, inter alia, the petitioner
is “currently serving a sentence of imprisonment, probation[,] or parole for
the crime”). Because Appellant’s filing was untimely, and since he was
ineligible for relief at CR-116-2009, the PCRA court correctly denied his
petition at CR-116-2009.
CR-242-2015
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At CR-242-2015, Appellant pled guilty to one count each of indecent
assault – forcible compulsion and indecent assault – threat of forcible
compulsion on October 29, 2015. Appellant’s convictions stemmed from his
sexual assault of his son between September 2006, and September 2007. As
discussed supra, Appellant’s aggregate sentence of 16 to 60 months’
incarceration was set to run consecutively to the sentence he was serving at
CR-116-2009. After sentencing Appellant on July 22, 2016, the trial court
designated Appellant an SVP on August 4, 2016, and notified Appellant that
pursuant to Section 9799.15(a)(6) of SORNA, he was subject to lifetime
registration upon his release. Forgoing an appeal, Appellant’s judgment of
sentence at CR-242-2015 became final on August 22, 2016. Appellant filed
pro se his petition for writ of habeas corpus on December 20, 2021.
At the core of Appellant’s petition for writ of habeas corpus, as it pertains
to CR-242-2015, is the assertion that because Section 4915(a)(1), for which
he was convicted and sentenced at CR-116-2009, was found to be
constitutionally infirm by our Supreme Court in Neiman, supra, his conviction
at CR-116-2009 was a nullity. As such, the sentence imposed as a result of
his conviction at CR-116-2009 was illegal. Because his sentence at
CR-116-2009 was illegal, the aggregate sentence imposed at CR-242-2015,
which was set to run consecutively to the sentence Appellant was then-serving
at CR-116-2009, should have started to run on July 22, 2016, the
commencement date of the CR-242-2015 sentence, and that the time
Appellant served toward the sentence imposed at CR-116-2009 should be
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credited towards his sentence at CR-242-2015. When the sentence imposed
at CR-242-2015 is viewed in this light, Appellant asserts he fulfilled his term
of incarceration imposed at CR-242-2015 and requests, through his petition
for writ of habeas corpus, that he be released from incarceration. See
generally, Pro Se Petition for Writ of Habeas Corpus, 12/20/21. In so
arguing, Appellant contends the trial court failed to award him credit for time
served prior to his sentencing at CR-242-2015.
It is well-established that “[a] challenge to [a] trial court’s failure to
award credit for time [served] prior to sentencing involves [a challenge to]
the legality of sentence and is cognizable under the PCRA.” Commonwealth
v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007), appeal denied,
944 A.2d
756 (Pa. 2008). To reiterate, “[i]ssues that are cognizable under the PCRA
must be raised in a timely PCRA petition and cannot be raised in a habeas
corpus petition.” Taylor,
65 A.3d at 466. As such, we discern no error of law
or abuse of discretion in the PCRA court’s treatment of Appellant’s December
2021 filing as a petition filed pursuant to the PCRA.33 Moreover, at a hearing
____________________________________________
33 To the extent that Appellant relies upon our Supreme Court’s decisions in
Lacombe, supra, and Santana, supra, to challenge the lifetime registration
requirements imposed for this sexual offense convictions at CR-242-2015, the
registration requirements under SORNA II to which Appellant will be subjected
upon his release from incarceration do not present an ex post facto concern
because the SORNA II registration requirements to which Appellant will be
obligated upon his release have been deemed non-punitive.
As discussed supra, as part of the sentence imposed at CR-242-2015
Appellant was designated an SVP and subjected to lifetime registration under
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on Appellant’s petition for writ of habeas corpus, Appellant conceded that any
challenge to his sentence imposed at CR-242-2015 must be in the form of a
petition filed pursuant to the PCRA.34 N.T., 6/30/22, at 8.
____________________________________________
SORNA. Appellant’s sentence, at the time it was imposed in 2016, involved
the retroactive application of SORNA’s lifetime registration requirements
because the underlying sexual assault of his son that led to his convictions at
CR-242-2015 occurred in 2006, and 2007. Pursuant to Santana (as well as
Muniz), as discussed supra, the retroactive application of SORNA’s punitive
lifetime registration requirements would have violated the ex post facto
clauses of the United States Constitution and the Pennsylvania Constitution.
Appellant did not, however, file his petition for writ of habeas corpus until
December 20, 2021. By that time, SORNA II was enacted, which divided the
sexual offender registration law (SORNA) into Subchapter H and Subchapter I.
The provisions of Subchapter H apply to sexual offenses that were committed
on or after December 20, 2012, and Subchapter I applies to sexual offenses
that were committed after April 22, 1996, but before December 20, 2012.
Thus, under SORNA II, Appellant is subject to Subchapter I’s registration
requirements upon his release from incarceration because the sexual assault
of his son which led to his convictions at CR-242-2015 occurred in 2006, and
2007. In Lacombe, our Supreme Court deemed the registration provisions
in Subchapter I to be non-punitive. Lacombe, 234 A.3d at 626. As such,
their retroactive application does not present an ex post facto problem. Id.
Thus, in the case sub judice, because Appellant is currently subjected, upon
his release, to the lifetime registration requirements under Subchapter I of
SORNA II, and those registration requirements are non-punitive, Appellant is
not entitled to relief on the ground that the registration requirements imposed
at CR-242-2015 violate the ex post facto clauses of the United States
Constitution or the Pennsylvania Constitution.
34 At the hearing, the following dialogue occurred:
[PCRA Court:] [A petition for writ of habeas corpus]
would not be appliable to the
[CR-242-2015] case. The only
mechanism [] for [] an appeal at this
time of [] those convictions and
sentence[s] would be [via the PCRA].
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As discussed supra, Appellant’s judgment of sentence at CR-242-2015
became final on August 22, 2016. Therefore, Appellant had until August 22,
2017, in which to file a timely PCRA petition. Appellant filed the instant PCRA
petition at CR-242-2015 on December 20, 2021, more than 4 years after the
expiration of time to file a timely PCRA petition at CR-242-2015. As such,
Appellant’s PCRA petition is patently untimely.
If a PCRA petition is untimely filed, the jurisdictional time-bar can only
be overcome if the petitioner alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions
to the one-year time-bar are as follows: “(1) interference by government
officials in the presentation of the claim; (2) newly[-]discovered facts; and (3)
an after-recognized constitutional right.” Commonwealth v. Brandon,
51
A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
A petition invoking an exception to the jurisdictional time-bar must be filed
____________________________________________
[Appellant’s Counsel:] Right.
[Commonwealth:] Agreed.
[PCRA Court:] Okay. So[,] there is no argument that
[the PCRA] court would dismiss the
petition for writ of habeas corpus with
respect to [CR-242-2015.] Correct?
[Appellant’s Counsel:] Correct.
N.T., 6/30/22, at 8 (extraneous capitalization omitted).
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within one year of the date that the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2) (effective Dec. 24, 2018). If a petitioner fails to invoke
a valid exception to the PCRA time-bar, courts are without jurisdiction to
review the petition and provide relief. Spotz, 171 A.3d at 676.
In Appellant’s pro se PCRA petition (petition for writ of habeas corpus),
his counseled amended petition, and his appellate brief, Appellant presents no
claim, or argument, as to the applicability of one of the three exceptions to
the jurisdictional time-bar. See Appellant’s Brief at 8-14. Nonetheless, to the
extent Appellant relies upon our Supreme Court’s decision in Neiman, as
affirmed by Derhammer, in support of his claim that the sentence imposed
at CR-116-2009 is illegal, we consider whether this judicial decision provides
an exception to the jurisdictional time-bar as it pertains to the sentence
imposed at CR-242-2015.
It is well-established that a judicial decision, such as the decision
rendered in Neiman, as affirmed by Derhammer, does not constitute a “fact”
for purposes of the newly-discovered facts exception under Section
9545(b)(1)(ii). Commonwealth v. Reid, 235 A.3d 1124, 1147 (Pa. 2020)
(stating, “subsequent decisional law does not amount to a new fact under
Section 9545(b)(1)(ii) of the PCRA” (citation, original quotation marks, and
brackets omitted). Consequently, our Supreme Court’s decisions in Neiman
and Derhammer do not provide Appellant an exception under Section
9545(b)(1)(ii).
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In order to invoke the after-recognized constitutional right exception
under Section 9545(b)(1)(iii), a petitioner must demonstrate that the right
asserted is “a constitutional right that was recognized by the Supreme Court
of the United States or the Supreme Court of Pennsylvania after the
time[-]period provided in this section and has been held by that court to apply
retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Appellant does not cite a
decision by the Supreme Court of the United States or our Supreme Court,
nor has our research revealed such a case, in which Neiman, as affirmed by
Derhammer, was held to be retroactively applied. See Commonwealth v.
Pollard, 2023 WL 5447701, at *5 (Pa. Super. filed Aug. 23, 2023)
(unpublished memorandum) (agreeing that, there are no decisions by the
Supreme Court of the United States or our Supreme Court stating that the
invalidating of Section 4915 as unconstitutionally enacted in Neiman, as
affirmed by Derhammer, applies retroactively with regard to PCRA petitions);
see also Commonwealth v. Terrell,
2019 WL 4862189, at *3 (Pa. Super.
filed Oct. 1, 2019) (unpublished memorandum) (explaining that, Neiman, as
affirmed by Derhammer, “did not result in a new constitutional right found
to apply retroactively” (emphasis omitted)), appeal denied,
238 A.3d 333 (Pa.
2020); Commonwealth v. Pollard,
2019 WL 3764574, at *2 (Pa. Super.
filed Aug. 9, 2019) (unpublished memorandum) (stating that, “no such
holding has been issued [permitting a petitioner to rely on the decisions
announced in Neiman and Derhammer] to meet the timeliness exception”
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under Section 9545(b)(1)(iii)), appeal denied, 228 A.3d 256 (Pa. 2020).35
Therefore, Section 9545(b)(1)(iii) does not provide Appellant an exception to
the jurisdictional time-bar as it pertains to the PCRA petition filed at
CR-242-2015.
Based upon our review of the record, Appellant’s PCRA petition filed at
CR-242-2015 was untimely and without an exception. Therefore, we discern
no error of law or abuse of discretion in the order dismissing Appellant’s PCRA
petition as the PCRA court lacked jurisdiction to address the merits of
____________________________________________
35 We acknowledge that, while the decision in McIntyre, supra did not
explicitly state that the decision in Neiman, as affirmed by Derhammer, was
to be considered as applying retroactively for purposes of the PCRA timeliness
exception under Section 9543(b)(1)(iii), the McIntyre Court did give the
decision in Neiman, as affirmed by Derhammer, retroactive effect in that
the McIntrye Court retroactively applied these decisions to invalidate
McIntyre’s conviction and sentence which became final before the
announcement of either decision. However, there are other procedural
requirements which further preclude the decision in Neiman, as affirmed by
Derhammer, from serving as an exception the PCRA jurisdiction time-bar
under Section 9543(b)(1)(iii). Foremost is that the decision in Neiman, as
affirmed by Derhammer, neither announced a new substantive rule of
constitutional law nor a new constitutional rule of criminal procedure
considered to be a “watershed rule” implicating the fundamental fairness and
accuracy of the criminal proceeding. See McIntyre, 232 A.3d at 614 n.9.
Instead, as we discussed supra, the decision in Neiman, as affirmed by
Derhammer, simply invalided Section 4915 on the ground that it was
unconstitutionally enacted in violation of the single subject rule governing the
enactment of legislation.
Nonetheless, even if McIntrye were read to announce the retroactive
application of Neiman, as affirmed by Derhammer, for purposes of an
exception to the PCRA jurisdictional time-bar under Section 9543(b)(1)(iii),
Appellant failed to file his PCRA petition within one year of the announcement
of the decision in McIntyre. See 42 Pa.C.S.A. § 9545(b)(2).
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Appellant’s claim, and we may not address it on appeal. See
Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (stating,
“[w]hen a PCRA court lacks jurisdiction to consider the merits of a petition,
we likewise lack jurisdiction to consider an appeal from disposition of the
petition”).
Order affirmed.
12/6/2023
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