J-S23024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD CHARLES RICHARDS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1238 WDA 2018

Appeal from the PCRA Order Entered August 28, 2018

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

No(s): CP-02-CR-0000344-2013

BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.* MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 10, 2020

Appellant Ronald Charles Richards appeals from the order dismissing his

petition challenging the application of Subchapter I1 of the Sexual Offender

Registration and Notification Act (SORNA) as an untimely Post Conviction

Relief Act2 (PCRA) petition. Appellant claims that his petition is not subject to

the PCRA and argues that the application of Subchapter I violates ex post facto

and double jeopardy constitutional protections. We affirm. The background to this appeal is as follows. On December 1, 2012,

Appellant restrained the complainant in an abandoned building, sexually

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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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assaulted her, and took her purse. A criminal complaint was filed that same

day.

On May 20, 2013, Appellant entered a negotiated guilty plea to

aggravated indecent assault and indecent assault,3 among other offenses. That same day, the trial court sentenced Appellant. Pursuant to the plea

agreement, the trial court imposed a term of five to twelve years’

imprisonment. The trial court also informed Appellant of the lifetime

registration requirement under the former version of SORNA (SORNA I).4

Appellant did not file a direct appeal.

On July 17, 2017, nearly four years after Appellant was sentenced, our

Supreme Court decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)

(plurality). The Muniz Court applied the framework established in Kennedy

v. Mendoza-Martinez, 372 U.S. 144 (1963) to conclude that SORNA I was

“punitive in effect.” Muniz, 164 A.3d at 1218. Based on that analysis, the

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3 18 Pa.C.S. §§ 3125(a)(1) and 3126(a)(2), respectively.

4 42 Pa.C.S. §§ 9799.10-9799.41 (eff. 2012). There is no indication that the

trial court found Appellant to be a sexually violent predator. Act 152, or

Megan’s Law III, see 2004, Nov. 24, P.L. 1243, No. 152, was in effect at the

time Appellant committed the underlying offenses. However, SORNA I had

taken effect at the time of his plea, and by its terms, applied to Appellant.

See 42 Pa.C.S. § 9799.13(1) (eff. 2012) (noting that SORNA I would apply to

an individual who was convicted of a sexually violent offense on or after

December 20, 2012, the effective date of SORNA I). We note that on

December 16, 2013, our Supreme Court held that Act 152 was

unconstitutional for violating the single-subject rule. Commonwealth v.

Neiman, 84 A.3d 603, 616 (Pa. 2013).
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High Court held that retroactive application of SORNA I constituted an ex post

facto violation when applied to a defendant who committed a sexual offense

before December 20, 2012, the effective date of SORNA I. See id. at 1223;

see also Commonwealth v. Lippincott, 208 A.3d 143, 150 (Pa. Super.

2019) (en banc).

In response to Muniz, the General Assembly amended SORNA I to

include Acts 10 and 29 of 2018 (SORNA II). See 2018, Feb. 21, P.L. 27, No.

10 (Act 10); see also 2018, June 12, P.L. 140, No. 29, (Act 29). SORNA II

divides sex offender registrants into two distinct subchapters – Subchapter H,

which includes individuals who were convicted of a sexually violent offense

that occurred on or after December 20, 2012, and Subchapter I, which

includes individuals who were convicted of a sexually violent offense that

occurred “on or after April 22, 1996, but before December 20, 2012,” or who

were required to register under a former sexual offender registration law on

or after April 22, 1996, but before December 20, 2012, and whose registration

requirements had not yet expired. See 42 Pa.C.S. § 9799.11(c) and 42

Pa.C.S. § 9799.52, respectively.

In April 2018, Appellant filed a pro se motion challenging his registration

requirements. The trial court regarded the motion as Appellant’s first PCRA

petition and appointed counsel. On June 12, 2018, Appellant’s counsel filed

an “Amended PCRA Petition and/or Petition for Writ of Habeas Corpus”

(amended petition). In his amended petition, Appellant claimed that he could

“not be subjected to any registration requirements upon release.” Am. Pet.,
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6/12/18, at 7 (unpaginated) (emphasis in original). Appellant asserted that

the former versions of Megan’s Law “no longer existed” and Subchapter I

supplanted SORNA I for certain sex offense registrants. Id. According to

Appellant, Subchapter I was punitive and violated federal and state ex post

facto principles because it contained substantially similar registration and

notification requirements as those found unconstitutional by Muniz in SORNA

I. Id. at 13-17. Appellant emphasized that the Muniz Court found that a

“defendant’s ‘fundamental right to reputation’ under the Pennsylvania

Constitution, and the fact that SORNA registration (particularly the Megan's

Law website) affected that right, was critical to the Court's rulings that the

Pennsylvania Constitution affords more ex post facto protections than the

federal constitution[] in this context . . . .”5 Id. at 29. ____________________________________________

5 Specifically, Appellant quoted the following portion of the lead opinion in

Muniz discussing how SORNA I violated the Pennsylvania constitution:

To summarize, we find the following to be consequential to our

analysis of the relative protections afforded by the state and

federal ex post facto clauses: the right to be free from ex post

facto laws is an ‘inherent’ and fundamental Article I right under

the Pennsylvania Constitution; this Court has previously

recognized . . . there is some divergence between the state and

federal ex post facto clauses; SORNA[ I]’s registration and online

publication provisions place a unique burden on the right to

reputation, which is particularly protected in Pennsylvania; other

states have also found the retroactivity of registration laws

unconstitutional under their state constitutions, partly due to

reputation concerns; and both the state and offender have an

interest in the finality of sentencing that is undermined by the

enactment of ever-more severe registration laws. For those

reasons, we find Pennsylvania’s ex post facto clause provides even
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Appellant further claimed that the application of Subchapter I would

violate federal and state double jeopardy principles. Id. at 21-25. Furthermore, he argued that Muniz nullified his registration requirements and

that the enforcement of Subchapter I would impose a second punishment for

the same criminal offense. Id. at 25.

Additionally, Appellant asserted that the PCRA court had jurisdiction to

consider his petition under the PCRA. Appellant noted that he was “currently

serving a sentence of imprisonment and is otherwise subject to a criminal

punishment in the form of Subchapter I registration and reporting

requirements as a result of [the trial court’s] sentence.” Id. at 4. Appellant

further asserted that Muniz recognized a new constitutional right that was

held to apply retroactively and that he filed his pro se petition within sixty

days of the creation of Subchapter I. Id. Alternatively, Appellant argued that

the PCRA court had jurisdiction to grant relief under a trial court’s habeas

____________________________________________ greater protections than its federal counterpart, and as we have

concluded SORNA’s registration provisions violate the federal

clause, we hold they are also unconstitutional under the state

clause.

Am. Pet., 6/12/18, at 78 (quoting Muniz, 164 A.3d at 1223). We note that

the passage quoted by Appellant was authored by Justice Dougherty in the

lead opinion joined by Justices Baer and Donohue. However, Justice Wecht,

joined by Justice Todd, filed a concurring opinion agreeing that SORNA I was

unconstitutional under the Pennsylvania constitution, but disagreeing that the

Pennsylvania constitution provided greater protections than the federal

constitution. Muniz, 164 A.3d at 1224 (Wecht, J. concurring).
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corpus powers or the court’s inherent authority to correct an illegal sentence

or a patent error. Id.

On August 3, 2018, the PCRA court issued a notice of its intent to dismiss

Appellant’s PCRA petition as untimely. See Pa.R.Crim.P. 907(1). Appellant

did not respond. On August 28, 2018, the PCRA court dismissed the petition.

Appellant timely appealed and contemporaneously filed a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. The PCRA court filed

an opinion concluding that Appellant’s amended petition constituted an

untimely PCRA petition. PCRA Ct. Op., 11/27/18, at 4.

Of relevance to this appeal, we briefly note that on July 21, 2020, our

Supreme Court issued its decision in Commonwealth v. Lacombe, 234 A.3d

602 (Pa. 2020). The Lacombe Court rejected the Commonwealth’s argument

that the trial court lacked jurisdiction to consider challenges to sex offender

registration requirements outside the confines of the PCRA. Id. at 617-18. Further, the Lacombe Court noted that Subchapter I was “markedly different

from the version of SORNA invalidated in Muniz.” Id. at 606. Accordingly,

the Lacombe Court applied the same Mendoza-Martinez framework

employed by the Court in Muniz, ultimately concluding that “Subchapter I is

nonpunitive and does not violate the constitutional prohibition against ex post

facto laws.” Id. at 605-06.

Additionally, we note that our Supreme Court recently vacated this

Court’s decision in Moore, in which we held that 42 Pa.C.S. § 9799.63, the

internet notification provision of Subchapter I, violated the federal ex post
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facto clause, but was severable from the remainder of Subchapter I.

Commonwealth v. Moore, 222 A.3d 16 (Pa. Super. 2019), vacated, 42 WAL

2020 (Pa. filed Oct. 6, 2020) (per curiam order) (vacating and remanding in

light of Lacombe).

Appellant presents the following issues for review:

1. Whether the [PCRA] court erred in ruling that it lacked

jurisdic[ti]on to adjudicate the merits of the [amended

petition]?

2. Whether the [PCRA] court erred by not ruling that Subchapter

I . . . is unconstitutional under the federal and state ex post

facto and double jeopardy clauses?

Appellant’s Brief at 5 (full capitalization omitted).

In his first issue, Appellant contends that the trial court erred in

dismissing his amended petition as an untimely PCRA petition. Appellant

contends that trial courts “clearly have jurisdiction to hear and decide the

merits of challenges to the retroactive application of sex offender registration

statutes.” Id. at 10. The Commonwealth, referring to several of this Court’s

previous decisions, responds that the trial court properly concluded

Appellant’s petition was an untimely PCRA petition. See Commonwealth’s

Brief at 21-22; Intervenors’ Brief at 43-44.6

The threshold issue of whether a petitioner must raise a claim for post- conviction relief under the PCRA raises a question of law. See

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6 The Office of the Attorney General and the Pennsylvania State Police have

also submitted an intervenors’ brief.
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Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa. 2016). Our standard

of review is de novo, and our scope of review is plenary. Id. at 496-97.

As discussed previously, in Lacombe, our Supreme Court explicitly

rejected the proposition that claims involving the application of sexual

offender registration requirements must be raised in a timely PCRA petition.

See Lacombe, 234 A.3d at 617-18. Initially, the Lacombe Court explained

that it had previously considered challenges to the sexual offender registration

statutes that were raised in filings outside of the PCRA. Id. (citing, in part,

Muniz, 164 A.3d at 1208; Commonwealth v. Martinez, 147 A.3d 517, 523

(Pa. 2016); A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7 (Pa. 2016)).

Further, the Lacombe Court recognized 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.” Lacombe, 234 A.3d at 617. Further, under the PCRA, a petitioner could be ineligible for

relief based on timeliness grounds or because their sentence has expired. Id.

Therefore, the Lacombe Court concluded that the trial court had jurisdiction

to consider Lacombe’s petition for relief. Id. at 618. In so doing, our Supreme

Court declined to find that “the PCRA, or any other procedural mechanism, is

the exclusive method for challenging sexual offender registration statutes.”

Id.

Here, in light of Lacombe, we agree with Appellant that the trial court

had jurisdiction to consider his challenges to his sex offender registration
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requirements. See id. at 618. Therefore, we are constrained to conclude that

the trial court erred in treating Appellant’s petition as an untimely PCRA

petition.

In his remaining claim, Appellant argues that Subchapter I is

“unconstitutional under the federal and state ex post facto and double

jeopardy clauses.” Appellant’s Brief at 15. Appellant contends that “[t]he

similarities between the SORNA [I] scheme of sexual offender registration and

Subchapter I are remarkable , and the modest differences are not sufficiently

meaningful to distinguish Subchapter I from SORNA [I] for purposes of ex post

facto analysis.” Id. at 17 (some formatting altered). As to his double

jeopardy claims under United States and Pennsylvania Constitutions,

Appellant asserts:

The bottom line is that if this Honorable Court accepts the

arguments that [Appellant’s] reporting requirements were

nullified (if only temporarily) by [Muniz] decisions, and that

Subchapter I is, in its operation and effect, a criminal punishment

or penalty, then it necessarily follows that Subchapter I

effectuates a second punishment upon the defendant.

Id. at 37 (emphasis in original). The Commonwealth responds, in relevant part, that Subchapter I is not

punitive and, therefore, “does not violate either the Pennsylvania

Constitution’s or the United States’ Constitution’s Ex Post Facto Clauses.”

Commonwealth’s Brief at 24 (some formatting altered). The Commonwealth

continues that Appellant’s “double jeopardy claim must [also] fail because he
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is not being ‘punished’ twice for the same offense.” Id. at 67; see also

Intervenors’ Brief at 42-43.

Here, like in Lacombe, Appellant’s Subchapter I claims are based on

his underlying argument that like SORNA I, Subchapter I is punitive under the

analysis set forth in Muniz. In light of our Supreme Court’s holding in

Lacombe, we conclude Appellant is not entitled to relief. Id. Accordingly,

we affirm.7

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2020

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7 We note that recently, in Commonwealth v. Smith, --- A.3d ---, 1011 MDA

2019 (Pa. Super. filed Sept. 28, 2020) this Court declined to address an

appellant’s claims that “SORNA registration requirements violate his due

process rights because he committed his crimes as a juvenile and because

SORNA imposed an irrebuttable presumption of recidivism for juvenile

offenders.” Smith, 1011 MDA 2019 at 2. The Smith Court remanded the

matter to the trial court for further proceedings. Id. at 6. However, under

the circumstances of the instant case, and because Lacombe is dispositive of

Appellant’s arguments, we conclude that remand is unnecessary.