J-S23025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN RICHARD JAE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1312 WDA 2018

Appeal from the PCRA Order Entered September 10, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0015145-2011

BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 13, 2019

Appellant John Richard Jae appeals from the order dismissing his 

petition challenging the application of Subchapter I1 of the Sexual Offender 

Registration and Notification Act (SORNA) as a meritless Post Conviction Relief 

Act2 (PCRA) petition. Appellant claims that the application of Subchapter I 

violates ex post facto and double jeopardy principles. For the reasons that 

follow, we vacate the order and remand this matter to the PCRA court. 

The procedural history relevant to this appeal is as follows. On April 25, 

2012, Appellant pled guilty to one count of sexual abuse of children for 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9799.51-9799.75 (eff. Feb. 21, 2018).

2 42 Pa.C.S. §§ 9541-9546. 
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possessing images of child pornography found on his computers in May of 

2011. As part of the plea agreement, the Commonwealth agreed to waive the 

mandatory sentences of twenty-five years or life imprisonment based on 42 

Pa.C.S. § 9718.2 (sentences for sexual offenders).3 On July 12, 2012, the 

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3

It appears that Appellant had two prior convictions for sexual offenses. The 

Commonwealth noted that:

At CP-02-CR-0006152-1987, [Appellant] was convicted, on 

December 22, 1987, of:

One (1) count of rape forcible compulsion (F1), 18 Pa.C.S. § 

3121(a) and received four (4) to ten (10) years’ incarceration;

One (1) count of indecent assault (M2), 18 Pa.C.S. § 3126(1) 

and received a concurrent sentence of four (4) to ten (10) 

years’ incarceration;

One (1) count of unlawful restraint (M1), 18 Pa.C.S. § 2902(1) 

and received a concurrent sentence of four (4) to ten (10) 

years’ incarceration; and

One (1) count of terroristic threats (M1), 18 Pa.C.S. § 2706 

and received a concurrent sentence of four (4) to ten (10) 

years’ incarceration.

At CP-02-CR-0013134-1990, [Appellant] was convicted, on May 

3, 1991, of:

Two (2) counts of IDSI (F1), 18 Pa.C.S. § 3123(a)(1) and 

received two consecutive sentences of five (5) to ten (10) 

years’ incarceration;

Two (2) counts of indecent assault (M2), 18 Pa.C.S. § 

3126(a)(1); and

One (1) count of terroristic threats (M1), 18 Pa.C.S. § 2706.

Commonwealth’s Answer to Appellant’s PCRA, 4/14/16, at 25 (some 

formatting altered). However, the details of Appellant’s prior convictions, such 

as the dates of the offenses, were not included in the record in this case. 
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trial court sentenced Appellant to three to twenty-five years’ imprisonment to 

be followed by ten years’ probation. The trial court also noted that Appellant 

was subject to a ten-year term of registration under Megan’s Law, apparently 

referring to Megan’s Law III, which was in effect at the time of his sentence.4 

Appellant did not file a direct appeal, but he filed a pro se PCRA petition 

in July of 2013. On July 24, 2013, the PCRA court granted Appellant’s petition 

and reinstated his post-sentence and appellate rights, and Appellant took a 

direct appeal nunc pro tunc. 

On appeal, this Court found that the trial court illegally sentenced 

Appellant beyond the maximum sentence for a felony-three offense. 

Commonwealth v. Jae, 1698 WDA 2013, at 6-7 (Pa. Super. filed Mar. 23, 

2015) (unpublished mem.). The Court concluded that because the 

Commonwealth waived the application of Section 9718.2, the lawful maximum 

for the felony-three offense of sexual abuse of children was seven years. Id.

On May 7, 2015, the trial court resentenced Appellant to three and onehalf to seven years’ imprisonment. In its resentencing order, the trial court 

indicated “SORNA registration required for lifetime.” Order, 5/7/15. Appellant 

did not file a post-sentence motion, but in June of 2015 filed a pro se notice 

of appeal among several other motions. On October 21, 2015, Appellant

withdrew his pro se appeal. 

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4 See 2004, Nov. 24, P.L. 1243, No. 152. Our Supreme Court subsequently 

held that Megan’s Law III was unconstitutional as the act amending Megan’s 

Law II violated the single subject rule of the Pennsylvania Constitution. See 

Commonwealth v. Neiman, 84 A.3d 603, 605 (Pa. 2013).
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In March of 2016, Appellant filed a pro se PCRA petition. The PCRA court 

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss. On June 17, 2016, 

the PCRA court dismissed Appellant’s PCRA petition, and Appellant timely filed 

a pro se notice of appeal. 

On appeal, this Court vacated the order dismissing Appellant’s PCRA 

petition and remanded for the PCRA court to conduct a Grazier5 hearing. 

Commonwealth v. Jae, 1064 WDA 2016, at 7 (Pa. Super. filed Mar. 27, 

2018) (unpublished mem.). This Court noted that Appellant’s underlying 

petition was technically his first, he had a right to counsel, and his insistence 

to proceed pro se did not constitute a proper waiver of his right to counsel. 

Id. at 6-7. 

On April 9, 2018, the PCRA court appointed present counsel as “standby counsel.” Order, 4/9/18. On July 30, 2018, present counsel filed the

amended PCRA petition and/or petition for writ of habeas corpus (the 

amended petition), which gives rise to this appeal.6 

In the amended petition, Appellant initially asserted that he was “no 

longer subject to the sex offender reporting requirements imposed under 

Megan’s Law I, II, III or SORNA.” Am. Pet., 7/30/18, at ¶ 10. In support, 

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5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 

6 Although the record does not contain a transcript of the Grazier hearing 

conducted on remand, the Commonwealth noted that the PCRA court 

conducted a hearing at which Appellant agreed to have present counsel 

represent him. Answer to Am. Pet., 8/9/18, at 7-8. 
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Appellant cited Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and 

Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017). 

Appellant further claimed that the application of Subchapter I would 

violate ex post facto and double jeopardy concerns. Specifically, Appellant 

argued that Subchapter I, like the former version of SORNA addressed in 

Muniz, is punitive. Appellant asserted that, like the former version of SORNA, 

Subchapter I requires offenders to: (1) be included on a publicly accessible 

internet website; (2) register with the Pennsylvania State Police (PSP) or face 

criminal prosecution; (3) provide the PSP with information regarding all 

current or intended residences, employment, or schools; (4) inform the PSP

of changes in residences or employment within three days; (5) verify their 

residences; (6) submit to decisions by parole or probation authorities to 

impose conditions, including the use of offender tracking using global 

positioning systems (GPS); and (7) submit to being photographed and 

fingerprinted. Id. at ¶ 50. 

Appellant noted two changes between the former version of SORNA and 

Subchapter I. First, Subchapter I returns “to a two-tier system of registration, 

namely ten-year and lifetime periods of registration, which [were] what 

existed under Megan’s Law II.” Id. at ¶ 51. Second, Subchapter I contains

a provision for the “potential removal of lifetime registrants . . . after [twentyfive] years.” Id. at ¶ 52. Appellant, however, asserted that “these differences 

are not sufficiently meaningful to render Subchapter I non-punitive for 

purposes of [an] ex post facto analysis.” Id. at ¶ 53. 
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Appellant further claimed that because Subchapter I imposes a penalty, 

its application would violate double jeopardy principles. In support, Appellant 

argued that Muniz relieved him of a punitive registration requirement under 

the former version of SORNA. Appellant continued that because Subchapter 

I is punitive, “it necessarily follows that Subchapter I effectuates a second 

punishment upon [him]. Id. at ¶¶ 73, 84. 

The Commonwealth responded that Subchapter I is not punitive. 

Answer to Am. Pet., 8/9/18, at 12. The Commonwealth asserted that two 

changes in Subchapter I are critical. Id. First, Subchapter I contains a 

provision for lifetime registrants to relieve themselves of registration 

requirements after twenty-five years. Id. (discussing 42 Pa.C.S. § 

9799.15(a.2)). Second, Subchapter I provides for a reduced number of inperson verification requirements for some offenders. Id. at 13 (discussing 42 

Pa.C.S. § 9799.23(a.1)). 

Furthermore, the Commonwealth noted that Subchapter I contains

fewer crimes subject to a registration requirement than the former version of 

SORNA and a ten-year and lifetime classification system. Id. (discussing 42 

Pa.C.S. §§ 9799.54-9799.56). According to the Commonwealth, these 

changes “mean[] that Megan’s Law II applies to those sex offenders who 

committed their crimes before December 20, 2012.” Id. 

The PCRA court issued a Rule 907 notice of its intent to dismiss 

Appellant’s amended petition as meritless. Appellant did not file a response. 

On September 10, 2018, the PCRA court dismissed Appellant’s petition. 
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Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement with 

his notice of appeal. The PCRA court filed an opinion concluding that because 

Appellant committed his offense prior to December 20, 2012, the registration 

provisions of Megan’s Law II applied. PCRA Ct. Op., 12/10/18, at 3. The 

PCRA court further reasoned that those provisions were determined to be nonpunitive collateral consequences that did not raise ex post facto concerns. Id.

at 3-4 (citing Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008), and 

Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007)). 

Appellant presents the following issue for review:

Whether the trial court erred by not ruling that Subchapter I of 

Act 10 of 2018 is unconstitutional under the federal and state ex 

post facto and double jeopardy clauses?

Appellant’s Brief at 5. 

On appeal, Appellant restates his claim that although Subchapter I 

changes some of the provisions discussed in Muniz, Subchapter I remains 

punitive. Appellant asserts that “there are far more similarities (and identical 

provisions) than differences between [former] SORNA’s registration 

requirements and the Subchapter I registration requirements.” Id. at 21. 

Appellant further contends that “although the eligible offenses and duration of 

registration under Subchapter I mirror those of Megan’s Law II, neither 

Leidig, nor Lee, nor any of the various other decisions over the years is 

controlling or dispositive in light of the jurisprudential shift of the Muniz

decision.” Id. at 25. 
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The Commonwealth responds with procedural and substantive

arguments.7 In its procedural arguments, the Commonwealth first notes that 

the trial court’s 2015 resentencing order directed that Appellant register for 

life under the former version of SORNA. Commonwealth’s Brief at 16. 

However, the PCRA court’s opinion asserted that Appellant is subject to 

Megan’s Law II’s registration requirement. Id. Therefore, the Commonwealth 

suggests that this Court could remand for a determination of which 

registration period applies to Appellant. Id. Nevertheless, the 

Commonwealth asserts “that it is clear that [Subchapter I] applies to 

[A]ppellant by the terms of the statute” and that a remand is unnecessary in 

this case. Id. at 17. 

Second, the Commonwealth questions whether Appellant’s claim that 

Subchapter I is unconstitutional can be raised under the PCRA. Id. at 17-18. 

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7 As to the merits, the Commonwealth restates its assertion that Subchapter 

I does not intend, or have the effect of imposing, a punishment. Specifically, 

the Commonwealth cites to Subchapter I’s provisions that (1) establish 

alternative verification provisions, (2) permit some offenders to seek an 

exemption from registration after twenty-five years, and (3) narrow the types 

of offenses subject to registration. Following the analysis conducted in Muniz, 

the Commonwealth asserts that the requirements of Subchapter I are not 

sufficiently punitive to overcome the express intent of the General Assembly 

to enact a non-punitive statute. As such, the Commonwealth concludes that 

Subchapter I does not violate ex post facto or double jeopardy principles. 

Additionally, the Office of the Attorney General and the Pennsylvania State 

Police (the intervenors) have submitted a joint intervenors’ brief. Like the 

Commonwealth, the intervenors contend that Subchapter I is not punitive. 

The intervenors note that Subchapter I did not increase the terms of 

registration for Appellant from those contained in Megan’s Law II or III. 
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The Commonwealth asserts that a registration requirement under Subchapter 

I is not punitive, and therefore, is not part of Appellant’s sentence. Id. at 18. 

The Commonwealth notes that the PCRA requires that a petitioner be 

“currently serving a sentence of imprisonment, probation or parole” to be 

eligible for relief. Id. at 17-18 (citing 42 Pa.C.S. § 9543(a)(1)(i)). Therefore, 

the Commonwealth concludes that Appellant has not established his eligibility

for relief under the PCRA. Id. at 18. 

Initially, we note that a post-conviction claim that an original sentence 

is illegal due to the retroactive application of a sexual offender registration 

requirement must be raised in a PCRA petition. See Commonwealth v. 

Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019); Commonwealth v. 

Murphy, 180 A.3d 402, 405-406 (Pa. Super. 2018). Moreover, because 

Appellant filed the instant petition within one year of the resentencing order 

setting forth a lifetime registration requirement, his petition was timely filed. 

Our review is governed by the following standards:

This Court’s standard of review regarding an order denying a 

petition under the PCRA is whether the determination of the PCRA 

court is supported by the evidence of record and is free of legal 

error. The PCRA court’s findings will not be disturbed unless there 

is no support for the findings in the certified record.

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019) 

(citation omitted). 

Here, as indicated above, the trial court initially informed Appellant that 

he was subject to a ten-year registration term under Megan’s Law III, which 
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was in effect at the time of his original sentencing. Following the 2015 remand 

for resentencing, the trial court then informed Appellant that he was subject 

to a lifetime registration period under the former version of SORNA. The PCRA 

court subsequently concluded that because Appellant committed his offense 

prior to December 20, 2012, the registration provisions of Megan’s Law II 

applied. PCRA Ct. Op., 12/10/18, at 3. 

Given this procedural history, we agree with the Commonwealth that a 

remand is appropriate in order to clarify the threshold issue of which statute 

applies to Appellant. See Commonwealth’s Brief at 16. On remand, the PCRA 

court should consider whether Subchapter I determines Appellant’s 

registration requirement and, if necessary, the parties’ specific arguments 

regarding the constitutionality of Subchapter I. 

We add that the law in this area has been rapidly evolving. Notably, the 

Pennsylvania Supreme Court is currently considering the constitutionality of 

Subchapter I. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018). 

Furthermore, this Court has recently concluded that the internet dissemination 

provision of Subchapter I violates the federal ex post facto clause but is 

severable from the remainder of Subchapter I. See Commonwealth v. 

Moore, ___ A.3d, ___, ___, 2019 PA Super 320, 2019 WL 5415854, at *9 

(Pa. Super. filed Oct. 23, 2019). Therefore, assuming that Subchapter I 

applies, it appears Appellant could be entitled to partial relief. See id. 

Order vacated. Case remanded. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2019