J-S24040-24

2024 PA Super 233

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT KARL BARGER, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1024 WDA 2023

Appeal from the Order Dated August 7, 2023

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0004955-2005

BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: OCTOBER 2, 2024

Appellant Robert Karl Barger appeals from the order of the Court of 

Common Pleas of Westmoreland County denying in part Appellant’s petition 

for writ of habeas corpus. After careful review, we affirm.

In January 2006, Appellant pled guilty at docket CP-65-CR-0004955-

2005 to indecent assault of a person less than 16 years of age, indecent 

exposure, and unlawful contact with a minor in connection with offenses he 

committed in 2005. On September 25, 2006, the trial court imposed a 

sentence of one year less one day to two years less one day of incarceration. 

As the trial court deemed Appellant to be a sexually violent predator (SVP), 

Appellant was required to comply with lifetime registration under Megan’s Law 

III (42 Pa.C.S.A. § 9795.1(b)(3)), the sexual offender registration statute in 

effect at that time. On August 14, 2007, this Court affirmed the judgment of 

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* Former Justice specially assigned to the Superior Court.
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sentence. See Commonwealth v. Barger, 2042 WDA 2006 (Pa.Super. 

August 14, 2007) (unpublished memorandum). Appellant did not file a 

petition for allowance of appeal with our Supreme Court.

In a related case, in October 2011, Appellant was charged at docket CP65-CR-0003703-2011 with Failure to Comply with Registration of Sexual 

Offenders Requirements of Megan’s Law III (formerly 18 Pa.C.S.A. § 

4915(a)(1)) and Failure to Provide Accurate Information (18 Pa.C.S.A. § 

4915(a)). On June 19, 2012, Appellant was convicted of these offenses and

on September 1, 2012, the trial court sentenced Appellant to an aggregate 

sentence of five to ten years’ incarceration. On December 4, 2013, this Court 

affirmed the judgment of sentence at the 3703-2011 docket and on May 7, 

2014, the Supreme Court denied Appellant’s petition for allowance of appeal. 

See Commonwealth v. Barger, 919 WDA 2013 (Pa.Super. December 4, 

2013) (unpublished memo), appeal denied, 91 A.3d 161 (Pa. 2014).

On October 8, 2018, Appellant filed identical pro se PCRA motions at 

both dockets, challenging his registration requirements imposed for his 2006 

convictions for assault, his SVP designation, and his 2012 convictions for 

failure to comply with such registration requirements on the basis that 

Megan’s Law III, the statute under which he had been convicted, had been 

found to be unconstitutional and void ab initio in Commonwealth v. Neiman,

624 Pa. 53, 84 A.3d 603 (2013).
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The PCRA court appointed Appellant counsel, who subsequently filed a 

petition to withdraw and a Turner-Finley no-merit letter.1 On June 3, 2019, 

the PCRA court issued notice of its intent to dismiss the petitions without a 

hearing pursuant to Pa.R.Crim.P. 907. On July 16, 2019, the PCRA court 

dismissed the petitions as untimely filed. On May 11, 2020, this Court 

affirmed the PCRA court’s order and on October 27, 2020, the Supreme Court 

denied Appellant’s allowance of appeal. See Commonwealth v. Barger, 

1031 WDA 2019, 1158 WDA 2019 (Pa.Super. May 11, 2020) (unpublished 

memo), appeal denied, 240 A.3d 879 (Pa. 2020).

On February 26, 2021, Appellant filed identical pro se “Amended Writs 

for Habeas Corpus” in both dockets, again claiming that the Supreme Court’s 

decision in Neiman, which invalidated Megan’s Law III, removed statutory 

authority for his registration requirements, his SVP designation, and his 2012 

convictions. The trial court denied the habeas petitions, finding that Appellant 

could not seek habeas relief to obtain the relief previously denied in his 

untimely PCRA petitions.

After Appellant filed a timely pro se appeal, the trial court conceded that 

it had erred in refusing to consider the merits of Appellant’s habeas petition 

and requested a remand pursuant to Commonwealth v. Lacombe, 660 Pa. 

568, 234 A.3d 602 (2020) in which our Supreme Court “decline[d] to find that 

the PCRA, or any other procedural mechanism, is the exclusive method for 

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1 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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challenging sexual offender registration statutes.” Id. at 595, 234 A.3d at 

618 (noting that sexual registration statutes may be challenged through a 

habeas petition or other procedural mechanisms as defendants would be 

unable to raise such challenges under the PCRA based on untimeliness 

grounds or because their sentence has expired). On February 18, 2022, this 

Court vacated the trial court’s order and remanded for the trial court to review 

the merits of Appellant’s habeas petitions. This Court also directed the lower 

court to appoint Appellant counsel prior to the merits hearing. See 

Commonwealth v. Barger, 503-504 WDA 2021 (Pa.Super. February 18, 

2022) (unpublished memorandum).

Upon remand, the trial court appointed Timothy P. Dawson, Esq. to 

serve as Appellant’s counsel and scheduled a hearing on the habeas petitions. 

Thereafter, the trial court entered an order on August 7, 2023, granting

Appellant’s habeas petition in part and vacating his 2012 conviction for 

violating his registration requirements under Megan’s Law III, which was 

invalidated in Neiman. The trial court noted that “an offense created by an 

unconstitutional law is not a crime and a conviction under it is illegal and void 

and cannot be a legal cause of imprisonment.” Trial Court Opinion (T.C.O.), 

8/7/23, at 18-19 (quoting Commonwealth v. Derhammer, 643 Pa. 391, 

399, 173 A.3d 723, 728 (2017)). The lower court also cited Commonwealth 

v. McIntyre, 659 Pa. 428, 445, 232 A.3d 609, 619 (2020), in which our 

Supreme Court vacated the defendant’s conviction under Section 4915, which 

was deemed to be void from the time of its enactment pursuant to Neiman.
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Nevertheless, the trial court denied Appellant’s habeas petition in part 

as it rejected Appellant’s suggestion that the invalidation of Megan’s Law III 

relieved him of his lifetime requirement to register as a sex offender with SVP 

status since subsequent legislation addressed the deficiencies raised by the 

Neiman Court’s invalidation of Megan’s Law III.

On September 1, 2023, Appellant filed a notice of appeal from the 

August 7, 2023 order denying Appellant’s habeas petition in part. On 

September 14, 2023, Attorney Dawson filed a motion to withdraw. On 

September 15, 2023, the trial court granted the motion to withdraw without 

elaboration, appointment of substitute counsel, or indication that a colloquy 

was conducted pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 

81 (1988). See also Pa.R.Crim.P. 120(A)(4) (“An attorney who has been 

retained or appointed by the court shall continue such representation through 

direct appeal or until granted leave to withdraw by the court pursuant to 

paragraph (B)”); Pa.R.Crim.P. 120(B)(3) (“Upon granting leave to withdraw, 

the court shall determine whether new counsel is entering an appearance, new 

counsel is being appointed to represent the defendant, or the defendant is 

proceeding without counsel”).

Thus, on March 1, 2024, this Court remanded the case back for the trial 

court to inform the Court if the trial court had conducted a Grazier colloquy 

or to conduct such colloquy if one had not already occurred. On May 3, 2024, 

the trial court notified this Court that on April 26, 2024, it conducted a Grazier 

colloquy in which Appellant indicated that he wished to proceed pro se and 
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declined the appointment of both counsel and standby counsel. As both 

Appellant and the Commonwealth submitted briefs on appeal, we may now 

review the merits of the appeal.

Appellant raises one issue for our review on appeal:

Whether the collateral proceedings court abused its discretion or 

otherwise erred illegally, where said court failed to mention or 

otherwise discuss its holding of [Appellant’s] claim concerning his 

Sexually Violent Predator Status in accord with the controlling 

precedence [sic] of our Supreme Court case of Commonwealth 

v. Neiman, 84 A.3d 603 (Pa. 2013) and our controlling Superior 

Court case of Commonwealth v. Hooks, 1738 MDA 2017 

(Pa.Super. July 24, 2018) by way of stare decisis?

Appellant’s Brief, at 4.

It is necessary to review the timeline of relevant statutory and case law 

concerning Pennsylvania’s laws imposing registration, notification, and 

counseling (“RNC”) requirements on sex offenders. When Appellant was 

convicted of sexual offenses in 2006 and designated as an SVP, he was 

required to submit to lifetime registration under Megan’s Law III, which was 

the sexual offender registration statute in effect at that time.

On December 20, 2011, the General Assembly enacted the Sexual 

Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9791-

9799.9, in order to comply with the federal Adam Walsh Child Protection and 

Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§ 16901-16991, “which 

mandates that states impose on sex offenders certain tier-based registration 

and notification requirements in order to avoid being subject to a penalty, i.e. 

the loss of federal grant funding.” Commonwealth v. Muniz, 640 Pa. 699, 
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724, 164 A.3d 1189, 1203-1204 (2017) (citing In re J.B., 630 Pa. 408, 412, 

107 A.3d 1, 3 (2014)). As a result, SORNA provided for the expiration of 

Megan’s Law III, as of December 20, 2012, the effective date of SORNA. 

Muniz, 640 Pa. at 724, 164 A.3d at 1204 (citing In re J.B., 630 Pa. at 412, 

107 A.3d at 3).

After SORNA had become effective, in 2013, the Pennsylvania Supreme 

Court issued its decision in Neiman, striking down Act 2004-152, the 

legislation through which Megan’s Law III was enacted, as violative of the 

single subject rule. Neiman, 624 Pa. at 57-58, 84 A.3d at 605; Pa. Const. 

art. III, § 3 (“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”).

Acknowledging the potential impact of its decision in invalidating a 

statute that contained provisions establishing registration requirements for 

sexual offenders, the Neiman Court stayed its decision for ninety (90) days 

to afford the General Assembly time to reenact portions of Act 2004-152 “in 

a manner consistent with the Constitution.” Neiman, 624 Pa. at 75, 84 A.3d 

616. While the Neiman decision declared Act 152 unconstitutional in its 

entirety, the Supreme Court cautioned that:

this action should, in no 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. ... [S]ince we find merit in the 

General Assembly’s suggestion that our decision abrogating the 
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entirety of Act 152 will have a significant impact on a whole variety 

of individuals and entities which have ordered their affairs in 

reliance on its provisions, we will stay our decision, as we have 

done under similar circumstances, in order to provide a reasonable 

amount of time for the General Assembly to consider appropriate 

measures, or to allow for a smooth transition period.

Neiman, 624 Pa. at 74-75, 84 A.3d 615-616.

Thereafter, in March 2014, before the stay expired, the General 

Assembly responded to the Neiman decision by enacting Act 19 of 2014, see 

Act of Mar. 14, 2014, No. 19, P.L. 41 (Act “2014-19”) “which modified the 

wording of § 9799.13(3) to clarify that persons who were required to register 

with the state police at any time before SORNA’s effective date, and whose 

registration period had not expired, were still obligated to register with the 

state police as provided in § 9799.15.” Derhammer, 643 Pa. at 396, 173 

A.3d at 726.

Several years later, on June 19, 2017, the Pennsylvania Supreme Court 

found in Muniz that SORNA I’s registration requirements were punitive in 

nature and the retroactive application of such registration provisions violated 

the ex post facto clauses of both the United States and Pennsylvania 

Constitutions. Muniz, 640 Pa. at 706, 164 A.3d at 1193. Thereafter, in 

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (Butler I), a 

panel of this Court held it was constrained by Muniz to find SORNA’s 

framework for designating convicted offenders as SVPs constituted criminal 

punishment and violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and 

Alleyne v. United States, 570 U.S. 99 (2013). Butler I, 173 A.3d at 1218.
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In response to Muniz and Butler I, the Legislature amended SORNA I 

and enacted SORNA “Act 10” of 2019, Act of Feb. 21, 2018, P.L. 27 (“Act 10”), 

creating a new statutory scheme referred to as SORNA II.

Act 10 split SORNA, which was previously designated in the 

Sentencing Code as Subchapter H into two subchapters. Revised 

Subchapter H applies to crimes committed on or after December 

20, 2012, whereas Subchapter I applies to crimes committed after 

April 22, 1996, but before December 20, 2012. In essence, 

Revised Subchapter H retained many of the provisions of SORNA

while Subchapter I imposed arguably less onerous requirements 

on those who committed offenses prior to December 20, 2012, in 

an attempt to address this Court's conclusion in Muniz that 

application of the original provisions of SORNA to these offenders 

constituted an ex post facto violation.

Commonwealth v. Torsilieri, 659 Pa. 359, 381, A.3d 567, 580–81 (2020).

Importantly, Subchapter I, which applies to certain petitioners who 

committed their offense before the effective date of SORNA, imposes lifetime 

registration for SVPs. Subchapter I defines a “sexually violent predator” as 

...a person who has been convicted of a sexually violent offense 

and who is determined to be a sexually violent predator under 

section 9799.58 (relating to assessments) due to a mental 

abnormality or personality disorder that makes the person likely 

to engage in predatory sexually violent offenses or who has ever 

been determined by a court to have a mental abnormality or 

personality disorder that makes the person likely to engage in 

predatory sexually violent offenses under a former sexual offender 

registration law of this Commonwealth.

42 Pa.C.S.A. § 9799.53 (emphasis added).

After SORNA II was in effect, on March 26, 2020, the Supreme Court 

issued Commonwealth v. Butler, 657 Pa. 579, 226 A.3d 972 (2020) (Butler 

II), reversing this Court’s decision in Butler I. The Supreme Court 
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determined that the Subchapter H registration requirements applicable to 

SVPs did not constitute criminal punishment and thus were not subject to the 

requirements of Apprendi and Alleyne. Id. at 585, 226 A.3d at 976. 

Thereafter, on July 21, 2020, the Pennsylvania Supreme Court held in 

Lacombe that the RNC requirements of Subchapter I of SORNA II do not 

constitute criminal punishment, and therefore, are not violative of the ex post 

facto rule. Lacombe, 660 Pa. at 609, 234 A.3d at 626-27.

Turning back to the instant case, Appellant argues that he cannot be 

required to register under Subchapter I of SORNA II since his duty to register 

as a SVP arose under Megan’s Law III, which has since been determined to be 

void. Appellant, who committed his qualifying offenses before December 20, 

2012, argues that Subchapter I of SORNA cannot be retroactively applied to 

him as such a designation would be violative of ex post facto prohibitions. 

However, Appellant does not suggest that the RNC requirements imposed 

upon him through Subchapter I are in any way punitive.2

As noted above, in Butler II, our Supreme Court rejected a similar 

challenge to Subchapter H of SORNA, as it found that the RNC requirements 

imposed on SVPs therein do not constitute criminal punishment. The Court 

distinguished SVPs from non-SVP registrants “due to heightened public safety 

concerns based on the determination that SVPs have a ‘mental abnormality or 

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2 See Muniz, 640 Pa. at 732, 164 A.3d at 1208 (“Our decision regarding 

violation of [the ex post facto] clause depends on a determination of whether 

SORNA’s retroactive application ... constitutes punishment”).
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a personality disorder that makes the individual more likely to engage in 

predatory sexually violent offenses.’” Butler II, 660 Pa. at 604, 226 A.3d at 

987 (quoting 42 Pa.C.S.A. § 9799.12). The Supreme Court clarified that:

[a]lthough we recognize the RNC requirements impose affirmative 

disabilities or restraints upon SVPs, and those requirements have 

been historically regarded as punishment, our conclusions in this 

regard are not dispositive on the larger question of whether the 

statutory requirements constitute criminal punishment. This is 

especially so where the government in this case is concerned with 

protecting the public, through counseling and public notification 

rather than deterrent threats, not from those who have been 

convicted of certain enumerated crimes, but instead from those 

who have been found to be dangerously mentally ill. Under the 

circumstances, and also because we do not find the RNC 

requirements to be excessive in light of the heightened public 

safety concerns attendant to SVPs, we conclude the RNC 

requirements do not constitute criminal punishment.

Id. at 614, 226 A.3d at 992-93. We also reiterate that in Lacombe, the 

Supreme Court specifically found that Subchapter I of SORNA II “is 

nonpunitive and does not violate the constitutional prohibition against ex post 

facto laws.” Lacombe, 660 Pa. at 575, 234 A.3d at 605-606.

Given the same logic set forth in Butler II and Lacombe, this Court

has rejected ex post facto challenges brought by a petitioners deemed to be

SVPs under Megan’s Law III, who claimed they should not be subject to 

retroactive application of Subchapter I of SORNA II. In Commonwealth v. 

Zack, 262 A.3d 497 (Pa.Super. 2021), this Court held that the appellant, who 

was originally deemed an SVP under Megan’s Law III, “must now register 

under Subchapter I of SORNA II, which has less stringent reporting 

requirements than the constitutionally permissible requirements of 
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Subchapter H.” Id. at 505 (citing Commonwealth v. Elliott, 249 A.3d 1190 

(Pa.Super. 2021)) (rejecting the appellant’s argument that his RNC 

requirements as an SVP under Subchapter I of SORNA II are punitive and 

violative of the ex post facto clause).

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As a result, Appellant’s claim that he cannot be required to submit to 

RNC requirements set forth in Subchapter I of SORNA II is clearly meritless. 

Accordingly, the trial court correctly determined that Appellant is not entitled 

to habeas relief. However, upon remand of the record, we direct the lower 

court to notify Appellant of his registration requirements under Subchapter I.

Order affirmed. Case remanded with instructions. Jurisdiction 

relinquished.

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3 We are not persuaded by Appellant’s reliance on Commonwealth v. Hooks, 

1738 MDA 2017 (Pa.Super. July 24, 2018) (unpublished memorandum). Our 

internal operating procedures provide that while “non-precedential decisions 

filed after May 1, 2019, may be cited for their persuasive value, ... [a]n 

unpublished memorandum decision filed prior to May 2, 2019, shall not be 

relied upon or cited by a Court or a party in any other action or proceeding.” 

210 Pa.Code § 65.37(B). This rule is subject to exceptions which are not 

applicable in this case.

Further, the memorandum decision in Hooks provides no support for 

Appellant’s argument as its holding was based its citation to Butler I, which 

has since been overruled.
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DATE: 10/2/2024