J

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____________________________________ * Retired Senior Judge assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA

v.

ROCCO ROBERT GRECO

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 219 MDA 2018 Appeal from the PCRA Order Entered January 12, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- CR

- 0000608

- 1986

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
CONCURRING AND DISSENTING OPINION BY BOWES, J.: FI LED FEBRUARY
08, 2019
My distinguished colleagues cogently explain why Appellant’s request

for r elief must be construed as a PCRA petiti on under governing precedent,

and I concur in the determination that Appellant’s petition did not satisfy any
exception to the one

- year time bar

. However, I dissent as to the disposition.
In my view, the PCRA court could not modify Appellant’s reporting obligations , as it purported to do , when it ordered him to comply with Megan’s Law II

. Finally, I address Appellant’s argument that our preceden ts are
unconstitutional. Preliminarily, I note that the order appealed from did not simply deny Appellant’s request. Instead, the PCRA court also sua sponte modified Appellant’s sexual offender obligations. The instant action commenced when Appellant filed a motion requesting the following relief: “ [P]etitioner asks thisJ

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Court ORDER that petitioner is immune to the registration provisions of SORNA
at above docket.” Motion, 8/14/17, at 1. The Commonwealth replied as
ordered, and asserted that Appellan t’s obligations remain under Megan’s Law

II. The PCRA court agreed, issuing the following order:
AND NOW, this 12th day of January, 2018, upon consideration of the Motion to Confirm Defendant is Not Required to Register under SORNA, and any responses ther eto, and in light of the Pennsylvania Supreme Court’s decision in [ Muniz ] , it is hereby ORDERED that , barring any legislative action or further court action, Petitioner is required to comply with Megan’ s Law II

. [fn]

[fn] As the Commonwealth has indicate d, Petitioner is still required to register under Megan’s law II. As such, Petitioner is required to register for life due to his guilty plea to Rape.
Order, 1/12/18, at 1.

A ppellant filed a notice of appeal , arguing that Megan’ s Law II no longer

exists

. The Majority holds that the PCRA court lacked jurisdiction over this
untimely petition , stating that “claims challenging application of SORNA’s
registration provisions

– unlike prior versions of Megan’s Law

– are properly

considered under the PCRA .” Majority Opinion, at 5. I agree.
As explained by the Majority , our precedents treat petitions seeking
retroactive application of Commonwealth v. Muniz , 164 A.3d 1189 ( Pa.
2017) (OAJC), in disparate ways. In timely PCRA proceedings, we give Muniz

retroactive effect

. Commonwealth v. Rivera
- Figueroa , 174 A.3d 674
(Pa.Super. 2017) . In unti mely PCRA proceedings, however, Commonwealth
v. Murphy , 180 A.3d 402 (Pa.Super. 2018) , holds that Muniz fails to satisfyJ

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the relevant PCRA time

- bar exception

. Thus, similarly

- situated offenders, i.e. , persons whose judgment of sentence were final when Muniz was decided, are
treated differently. Since this is an untimely PCRA, Murphy controls and the
PCRA court had no jurisdiction to ad dress the merits of his claim.
For that same reason, I find that the order must be rever sed to the
extent it purports to impose Megan’s Law II obligations upon Appellant . The
same logic that compels a conclusion that the PCRA court lacked jurisdiction

to “confirm” Appellant’s ab sence of SORNA obligations di ctates that the court
cannot now require Appellant to comply with some other non

- SORNA set of
obligations

. That matter does not concern the PCRA court. 1

I now address App ellant ’s claim that Murphy conflicts with the United

States Constitution. He argues that “ When a state enforces a constitutionally

barred penalty, the resulting conviction or sentence is unlawful.
Montgomery v. Louisiana , 136 S. Ct. 718 (2016). The United State [s]
Constitution requires sta te collateral review courts to give retroactive effect to

_________________ __________ ______ ____ _______

1 The Pennsylvania State Polic e administer the sex offender registry and i mpose reporting obligations as a result of duly

- enacted laws. Absent a filing by a defendant seeking enforcement of a plea bargain, I discern no basis for a court to issue an order directing Appellant to comply with some alternative set of obligations. If the PCRA court was modifying Appellant’s sentence, it lacked jurisdiction to do so; if the court was attempting to impose collateral obligations , it had no authority to do so. Either way, the order cannot stand. Furthermore, the Legislature has enacted laws that seek to address Muniz

. See 42 Pa.C.S. §§ 9799.51

- 9799.75. Those statutes constitute a new subchapter, “Continued Registration of Sexu al Offenders.” Thus, the PCRA court or der purports to impose obligations in place of this statute. Whether the requirements set forth by those laws is not germane to this appeal.J

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new substantive rules of constitutional law, which control the outcome of

cases. ” Appellant’s brief at 5. Appellant’s point is similar to that set forth in
my dissenting opinion in Commonwealth v. Fernandez , --- A.3d

--- , 2018

WL 4237535 ( en banc ). Fernandez was accepted en banc to determine if

Commonwealth v. Partee , 86 A.3d 245 (Pa.Super. 2014), should be

overruled. Partee held that a probation violation constituted a failure to abide
by the terms of a plea agreement, thereby precluding attempts to seek
restoration of less onerous Megan’s Law requirements that existed at the time
of the original pleas

. Muniz was issued while Fernandez was on appeal, and

this Court held that Muniz abrogated Partee

. I set forth my prior analysis of

this issue : The Majority errone ously assumes that we may apply Muniz 's holding to these Appellants by asserting that Muniz abrogated Partee . I agree with that statem ent insofar as Muniz holds that requir ing persons convicted of offenses without adequate notice of the SORNA obligations cannot be ordered to comply with SORNA. The problem, however, is that this conclusion does not supply an answer as to whether Muniz 's rule retroactively applies to these off enders. O ur current precedents hold that Muniz does not satisfy the exception to the PCRA's one

- year time bar pertainin g to new constitutional rights. Commonwealth v. Murphy , 180 A.3d 402 (Pa.Super. 2018). Therefore, our Court continues to affirm judgments of sentence that are no less unconstitutio nal than Appellants' sentences. The existence of Murphy disproves the Majority's statement that “reclassifications of the Appellants after the effective date of SORNA cannot s t and.” Majority Opinion at 310. Murphy accepts that SORNA classifications may remain in place notwithstanding Muniz , and
we therefore cannot simply ignore Partee despite the fact that affirming on that basis raises the possibility of affirming a sentence t hat Muniz says is illegal.J

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Therefo re, the Majority seeks to apply Muniz retroactively, without acknowledging the fact that the con tinuing existence of cases like Murphy means that Muniz would henceforth apply in a disparate fashion.

Fernandez , supra at *11 (Bowes, J., dissenting) (footnot es omitted). In my
view, the Legislature cured the problem by amending SORNA in the wake of

Muniz

. Regarding Appellant’s claim that this disparate treatment is unlawful , I observed:
Whether that would be permissible is a difficult que stion. This Court has held that Muniz created a substantive rule of constitutional law that must apply retroactively in timely PCRA proceedings. Commonwealth v. Rivera
– Figueroa , 174 A.3d 674, 678 (P a.Super. 2017). Simultaneously, Muniz does not satisfy the PCRA's time

- bar exception pertaining to newly

a nnounced constitutional rights. Commonwealth v. Murphy , 180 A.3d 402 (Pa.Super. 2018). Therefore , similarly

- situated offenders, i.e. persons whose criminal se ntences were already final when Muniz was announce d, are treated differently.

While I believe that Murphy was correctly decided as a matter of statutory interpretation, States are arguably prohibited from refusing to grant retroactive effect to new substanti ve rules of constitutional law. See Montgomery v. Louisiana , ––– U.S.

––

–– , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (States required to give retroactive effect to such rules). Montgomery controls as to questions of federal law. “If a state c ollateral proceeding is open to a claim controlled by federal la w , the state court has a duty to grant the re lief that federal law requires. ” Id. at 731 (emphasis added, quotation marks and citation omitted). In turn, we have hel d that the binding precedent in Muniz “is confined to the determination that SORNA's regist ration requirement is pu nishment that runs afoul of the ex post facto clause of the Pennsylvania Constituti on when applied retroactively.” Commonwealth v. Hart , 174 A.3d 660, 667 n.9 (Pa.Super. 2017).

If Muniz simply represents the announcement of a pure state law claim, disparate retroactive application may or may not be permissible. Cf

. Commonwealth v. Cunningham , 622 Pa. 543,J

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81 A.3d 1, 8 (2013) (noting that the federal retroactivity model “is not necessarily a natural model for retroactivity jurisprude nce as applied at the state level.”). Suffice to say, the necessity of applying Muniz in the absence of controlling legislation is a complicated question, and one we need not decide.

Id . at n. 3.

I continue to adhere to this view. Muniz is a creature of state law, and
thus the scope of its retroactive effect is not governed by the United States

Constitution. Furthermore , I believe that Muniz retroactivity encompasses two separate questions. The first is whether offenders who were convi cted of
sexual offenses pre

- SORNA are entitled to retroactive application of Muniz in

the sense that such offenders are free from ongoing SORNA obligations . The
answer to that question, in my view, is unquestionably yes . However, a s
discussed in Fernandez I believe that the Legislature has already
retroactively applied Muniz in this sense

. The second is whether Muniz is

retroactive to the extent that offenders are entitled to relief from convictions
stemming from failures to comply with SORNA obl igations , which is a n entirely
separate retroactivity problem. 2 The latter circumstance is not involved in this

_________________ __________ ______ ____ _______

2 Justices Scalia, Thomas, and Alito took a contrary view in Montgomery
r egarding a State court’s obligation to give retroactive effect to new rules : That line of finality demarcating the co nstitutionally required rule in Griffith from the habeas r ule in Teague supplies the answer to the not

- so - difficult question whether a state postconviction court must remedy the violation of a new substantive rule: No. A state court need only apply the law as it existed at the time a defendant's conviction and se ntence became final. See Griffith ,J

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case, and its resolution must await a future case directly raising that issue. 3
Until such time, I adhere to the aforemention ed views.

_________________ __________ ______ ____ _______ supra , at 322, 107 S.Ct. 708. And once final, “a new rule cannot reopen a door already closed.” James B. Beam Distilling Co. v. Georgia , 501 U.S. 529, 541, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (opinion of Souter, J.). Any relief a pr isoner might receive in a state court after finality is a matter of grace, not constitutional prescription.
Montgomery v. Louisiana , 136 S.Ct. 718, 739 (Scalia, J., dissenting) (some citations omitted)

.

3 Commonwealth v. Rivera
- Figueroa , 174 A.3d 674 ( Pa. Super. 2017), involved a PCRA petition seeking to challenge a conviction for failing to comply with SORNA. This Court determined that “ the best resolution of this case is to vacate, remand , and offer [Rivera

- Figueroa] the opportunity to argue Muniz .” Id . at 679. The public docket reveals that following our remand the trial court granted the Lebanon County District Attorney’s motion to nolle prosse the charges

.