J-S42016-18

2019 PA Super 30

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* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

ROCCO ROBERT GRECO 

Appellant

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 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.:FILED FEBRUARY 

08, 2019

My distinguished colleagues cogently explain why Appellant’s request 

for relief must be construed as a PCRA petition 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 precedents 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 this 
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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 Appellant’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 thereto, 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 indicated, 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.

Appellant 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 untimely PCRA proceedings, however, Commonwealth 

v. Murphy, 180 A.3d 402 (Pa.Super. 2018), holds that Muniz fails to satisfy 
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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 address the merits of his claim.

For that same reason, I find that the order must be reversed 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 absence of SORNA obligations dictates 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 Appellant’s claim that Murphy conflicts with the United 

States Constitution. He argues that “When a state enforces a constitutionallybarred penalty, the resulting conviction or sentence is unlawful. 

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). The United State[s]

Constitution requires state collateral review courts to give retroactive effect to 

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1 The Pennsylvania State Police administer the sex offender registry and 

impose 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 Sexual Offenders.” Thus, the PCRA 

court order purports to impose obligations in place of this statute. Whether 

the requirements set forth by those laws is not germane to this appeal. 
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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 erroneously assumes that we may apply Muniz's 

holding to these Appellants by asserting that Muniz abrogated 

Partee. I agree with that statement insofar as Muniz holds that 

requiring 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 offenders. Our current precedents hold that Muniz does 

not satisfy the exception to the PCRA's one-year time bar 

pertaining 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 

unconstitutional than Appellants' sentences. The existence of

Murphy disproves the Majority's statement that “reclassifications 

of the Appellants after the effective date of SORNA cannot stand.” 

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 that Muniz says is illegal.
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Therefore, the Majority seeks to apply Muniz retroactively, 

without acknowledging the fact that the continuing existence of 

cases like Murphy means that Muniz would henceforth apply in 

a disparate fashion.

Fernandez, supra at *11 (Bowes, J., dissenting) (footnotes 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 question. 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 (Pa.Super. 2017). Simultaneously, Muniz does not 

satisfy the PCRA's time-bar exception pertaining to newlyannounced constitutional rights. Commonwealth v. Murphy, 

180 A.3d 402 (Pa.Super. 2018). Therefore, similarly-situated 

offenders, i.e. persons whose criminal sentences were already 

final when Muniz was announced, 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 substantive 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 collateral proceeding is open 

to a claim controlled by federal law, the state court has a duty 

to grant the relief that federal law requires.” Id. at 731 (emphasis 

added, quotation marks and citation omitted). In turn, we have 

held that the binding precedent in Muniz “is confined to the 

determination that SORNA's registration requirement is 

punishment that runs afoul of the ex post facto clause of the 

Pennsylvania Constitution 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, 
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81 A.3d 1, 8 (2013) (noting that the federal retroactivity model 

“is not necessarily a natural model for retroactivity jurisprudence 

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 convicted 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, as 

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 obligations, which is an entirely

separate retroactivity problem.2 The latter circumstance is not involved in this 

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2 Justices Scalia, Thomas, and Alito took a contrary view in Montgomery

regarding a State court’s obligation to give retroactive effect to new rules: 

That line of finality demarcating the constitutionally required rule 

in Griffith from the habeas rule 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 sentence became final. See Griffith, 
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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 aforementioned views.

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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 prisoner 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.