J

- S83032

- 18

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

COMMONWEALTH OF PENNSYLVANIA

v.

GERALD RUSSELL SCHNEIDER,

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

PENNSYLVANIA

No. 867 WDA 2018 Appeal from the PCRA Order May 30, 2018 in the Court of Common Pleas of Venango County Criminal Division at No(s): CP

- 61

- CR

- 0000103

- 2011
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED MARCH 12, 2019

Gerald Russell Schneider (“ Schneider ”) appeals from the Order denying
his first Petition for relief filed pursuant to the Post Conviction Relief Act. 1 We

affirm.
On January 31, 2012, Schneider pled guilty to three counts of corr uption
of minors, and one count each of aggravated indecent assault of a person less
than 13 years of age, statutory sexual assault, indecent assault of a person
less than 16 years of age, and endangering the welfare of children. 2 On the
same date, the tr ial court sentenced Schneider to an aggregate term of 57
months to 22 years in prison . Schneider was also found to be a sexually

_________________ __________ ______ ____ _______

1 See 42 Pa.C.S.A. §§ 9541

- 9546.

2 18 Pa.C.S.A. §§ 6301(a)(1), 3125(a)(7), 3122.1, 3126(a)(8), 4304(a).J

- S83032

- 18

- 2

-

violent predator (“SVP”), and , notably to this appeal, was subject to a period
of lifetime registration and reporting , pursuant to Megan’s Law II. See 42
Pa.C.S.A. § 9795.1(b)(2) (expired)

. 3 Schneider did not appeal his judgment

of sentence.
On September 14, 2017, Schneider filed a pro se PCRA Petition.
Therein, he asserted that pursuant to the Pennsylvania Supreme C ourt’s

decision in Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), retroactive
application of SORNA’s registration requirements to Schneider’s convictions
rendered this component of his sentence unlawful. 4 The PCRA court thereafter
appointed Schneider co unsel, who filed a n Amended PCRA Petition, requesting
a PCRA hearing on Schneider’s claim.

After a hearing, by an Order entered on May 30, 2018, the PCRA court

denied Schneider’s PCRA Petition . Schneider subsequently filed a timely
Notice of Appeal, followed by a court

- ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.
Schneider now presents the following issues for our review:

_________________ __________ ______ ____ _______

3 Effective December 20, 2012, approximately one year after Schneider’s SVP classification , Megan’s Law was replaced by the Sex Offender s Registration and Notification Act (“SORNA”)

. S ee 42 Pa.C.S.A. §§ 9799.10

- 9799.41 (subsequently amended Feb. 21, 2018)

.

4 In Muniz , our Supreme Court held that SORNA’s registr ation requirements constitute criminal punishment, and therefore, their retroactive application to increase a sexual offender’s term of registration violates the ex post facto clauses of the United S tates and Pennsylvania Constitutions. Muniz , 164 A.3d at 1193 , 1223

.J

- S83032

- 18

- 3

-

1. Whether the PCRA court erred as a mat ter of law or abused its discretion when the PCRA court denied the PCRA [P]etition raising the whether [ sic ] [Schneider] had to register under SORNA, now Act 10, when it violated his constitutional rights [,] under the Pennsylvania Constitution and the Unit ed States Constitution [,] to due process to a right to hearing[,] and a right to a jury determination before having to register to a higher Punishment[,] when he was sentenced under Megan’s Law[,] which has expired[?]

2. Whether the PCRA court erred as a mat ter of law or abused its discretion when the PCRA court denied the PCRA [P]etition raising the whether [ sic ] [Schneider] had to register under SORNA, now Act 10, when it violated his constitutional rights under the Pennsylvania Constitution and the United States Constitution[,] since violating the ex po [ st ] facto provisions[?]

3. Whether the PCRA court erred as a matter of law or abused its discretion when the PCRA court denied the PCRA [P]etition raising the whether [ sic ] [Schneider] had to register under SO RNA, now Act 10, when it violated his constitutional rights under the Pennsylvania Constitution [,] violating his protected right to reputation[?]

4. Whether the PCRA court erred as a matter of law or abused its discretion when the PCRA court denied the PCRA [P]etition raising the whether [ sic ] [Schneider] had to register under SORNA, now Act 10, when it violated his constitutional rights under the Pennsylvania Constitution and the United States Constitution[,] and in violation of [ Commonwealth v. ] Butler , [ 173 A.3d 1212 (Pa. Super. 2017), 5 ] when the court failed to vacate the finding that [Schneider] is a sexually violent predator[?]

_________________ __________ ______ ____ _______

5 In Butler , this Court concluded that , in light of the decision in Muniz , “section 9799.24(e)(3) of SORNA [ (which concerns SVP designation ) ] violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact

- finder making the necessary factual findings beyond a reasonable doubt.” Butler , 173 A.3d at 1218 (emphasis ad ded) ; see also Alleyne v. U nited S tates , 570 U.S. 99 , 103 (2013) (holding that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt

. ” )

.J

- S83032

- 18

- 4

-

Brief for Appellant at 5

- 6 (footnote added)

. In reviewing an order denying PCRA relief, “we examine whether the
PCRA court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo , 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted).

B efore addressing Schneider’s claims, we first must ascertain whether
he timely filed his PCRA Petition, as any PCRA petition must be filed within one
year of the date the petitioner’s judgment of sentence became final. See 42
Pa.C.S.A. § 9545(b)(3). The one - year time limitation is jurisdictional, and a

PCRA court has no power to address the substantive merits of an untimely
petition. Commonwealth v. Abu
- Jamal , 833 A.2d 719, 723

- 24 (Pa. 2003).
The three exceptions to the one

- year filing requirement are f or after

discovered facts, interference by a government official, and a newly

recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii). A petition
asserting one of these exceptions must also establish that the exception was
raised within sixty days of the date the claim could have been first presented.
42 Pa.C.S.A. § 9545(b)(2).
Here, because Schneider filed no direct appeal of his January 31, 2012
judgment of sentence, and he did not file the instant PCRA Petition until
September 14, 2017, i t is facially untimely. However, Schneider asserts theJ

- S83032

- 18

- 5

-

exception to the PCRA’s tim eliness requirement for a newly

- recognized
constitutional right, invoking Muniz and Butler

. 6

In Schneider’s first three issues, which we address simultaneously due
to their relatedness, he argues that the portion of his sentence imposing
sexual offender regis tration requirements is illegal under Muniz , and must be

vacated. See Brief for Appellant at 10

- 15.

In its Opinion, the PCRA court addressed Schneider’s claim s as follows:
As to [Schneider’s] issues

... pertaining to the Pennsylvania Supreme Court’ s holding in [] Muniz , we specifically find that his issues are meritless given the General Assembly’ s enactment of Act 2018, Feb, 21, P.L. 27, No, 10, § 19 [(hereinafter “Act 10”)] , which was effective on February 21, 2018. This Act created the Continued Registration of Sexual Offenders portions of SORNA, effectively solving the issue of applying the requirements of SORNA retroactively to those who committed sexually violent crimes before December 20, 2012. Created by [] Act [10] , 42 Pa. C.S.A. § 9799.52 [] provides the following:
This subchapter shall apply to individuals who were: (1) convicted of a sexually violent offense committed on or after April 22, 1996, but before December 20, 2012, whose period of registration with the Pennsylvania State Police,
as described in section 9 799. 55 (relating to registration), has not expired; or (2) required to register wi th the Pennsylvania State Police under a former sexual offender registration law of this Commonwealth on or after April 22, 1996, but before December 20, 2012, whose period of registration has not expired.

Id. Here, [Schneider] was convicted of a sexuall y violent crime, specifically[,] aggravated indecent a ssault[,] in violation of 18 Pa.C.S.A. § 3125(a)(7). The alleged conduct relating to his

_________________ __________ ______ ____ _______

6 We note that Schneider filed his PCRA Petition within 60 days of the Muniz and Butler decision s , in compliance with 42 Pa.C.S.A. § 9545(b)(2).J

- S83032

- 18

- 6

-

conviction occurred between 2003 and 2006, effectively committing the offense after April 22, 1996, but before D ecember 20, 2012. As the [O] rder paroling [Schneider] was docketed on April 16, 2018, his period of registration has not expired. Therefore, the newly

- enacted Continued Registration of Sexual Offenders statutes are directly applicable to him.

As [Schneider] was convicted of violating 18 Pa.C.S.A. § 3125 on or after April 22, 1996, but before December 20, 2012, he is therefore required by 42 Pa.C.S.A. § 9799.55(b)(2)(i)(A) to register with the Pennsylvania State Police for life. [FN]

[FN] 42 Pa.C.S.A. § 9799.55(b)(2)(i)(A) reads as follows: “(b) Lifetime registration.

— The following individuals shall be subject to lifetime registration: ... (2) Individuals convicted: (i)(A) in this Commonwealth of the following offenses, if committed on or a fter April 22, 1996, but before December 20, 2012:

... 18 Pa.C.S. § 3125 (relating to aggravated indecent assault)[.]”
PCRA Court Opinion, 5/30/18, at 3

- 4 (footnote in original). We agree with the
PCRA court’s rationale and determination, which is supported by the law and

the record. T here is no merit to Schneider’s challenge to the legality of the
sexual offender registration component of his sentence, since he is currently
subject to the same registration requirements ( i.e. , lifetime registration )
under Act 10 as he originally was when he was sentenced under Megan’s Law

II. 7 Accordingly, Schneider’s first three issues entitle him to no relief

. In his fourth and final issue, Schneider argues that his classification as

an SVP was rendered illegal by Butler , supra , “since the determination of

_________________ __________ ______ ____ _______

7 To the extent Schneider contends that he was originally required to register for only a “limited time” (as opposed to hi s lifetime), when his sentence was imposed, Brief for Appellant at 15, this claim is belied by the record. See Notice of Sexually Violent Predator Requirements, 2/14/12, at ¶ 1.J

- S83032

- 18

- 7

-

sexually violent predator raises the penalty and is outside of the determination
of the jury ....” Br ief for Appellant at 17. Schneider urges that the Butler
“holding should not be limited to SORNA or Act 10[,] but also [be] applied to
Megan’s Law [,] ... since the statutory language for both statutes is the same.”

Id. at 18.
In its Opinion, the PCRA court concisely and appropriately rejected this

claim as follows:
[T he sentencing c]ourt held a sexually violent predator hearing on January 31, 2012, and found [Schneider] to be a sexually violent predator [,] using the clear and convincing standard. In light of Butler , [Schneider] avers that his sexually violent predator status constitutes an illegal sentence. How ever, [Schneider] was not found a sexually violent predator under SORNA, which [] Butler directly pertains to. But rather, as he was found a sexually violent predator on January 31, 2012, the determination was made when Megan’s Law was still effective. T herefore, [Schneider’s] argument that [] Butler requires this [c]ourt to vacate his sexually violent predator finding is unfounded, as our Supreme Court has held that a sexually violent predator finding under Megan’s Law is not punishment. [ See ] Commonwea lth v. Lee , 935 A. 2d 865, 886 (Pa. 2007) (holding that the lifetime registration, notification, and counseling obligations of sexually violent predators, as mandated by Megan’ s Law, were not punitive, and therefore did not violate due process, the double j eopardy clause, or the prohibition against ex post facto laws).
PCRA Court Opini on, 5/30/18, at 5

- 6 (footnote omitted ). We agree with the

PCRA court’s rationale. The holding in Butler does not apply to SVP findingsJ

- S83032

- 18

- 8

-

made pursuant to Megan’s Law, nor have our appellate courts held that Butler
may be applied retroactively to pre

- SORNA SVP designations. 8
Accordingly, as none of Schneid er’s issues entitle him to relief and we
discern no legal error by the PCRA court, we affirm the Order denying his first

PCRA Petition

. Order affirmed.
Judge Panella joins the memorandum.
Judge Shogan concurs in the result.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/12/2019

_________________ __________ ______ ____ _______

8 On July 31, 2018, the Pennsylvania Sup reme Court granted allowance of
a ppeal in Butler

. If the Supreme Court issues a decision holding that Butler applies retroactively, Schneider may file another PCRA petition within one year of that decision, attempting to invoke a time

- bar exception in subsection 9545(b)(1)(iii). See Act 2018, Oct. 24, P.L. 894, No. 146, §§ 2 and 3 (recent amendment to the PCRA Act); see also Commonwealth v. Murphy , 180 A.3d 402, 406 n.1 (Pa. Super. 2018).