J-S10003-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELISEO ORTIZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 327 EDA 2018

Appeal from the Judgment of Sentence December 22, 2017

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

No(s): CP-51-CR-0006597-2015

BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED NOVEMBER 19, 2019

Appellant, Eliseo Ortiz, appeals from the aggregate judgment of 

sentence of two to four years of confinement followed by ten years of 

probation, which was imposed after he pleaded nolo contendere to involuntary 

deviate sexual intercourse (IDSI) with a person less than 16 years of age and 

unlawful contact with a minor.

1

 For the reasons set forth below, we conclude 

that the retrospective application of sex offender registration under the Sex 

Offender Registration and Notification Act (SORNA)2 violates our Supreme 

Court’s ruling in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). 

Accordingly, we vacate in part the judgment of sentence and remand for 

resentencing. 

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1 18 Pa.C.S. §§ 3123(a)(7) and 6318(a)(1), respectively. 

2 42 Pa.C.S. §§ 9799.10-9799.42.
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We previously summarized the factual and procedural history of this 

case as follows:

On May 14, 2015, Appellant was charged with rape, IDSI, unlawful 

contact with a minor and various other charges related to 

allegations concerning the sexual abuse of a minor female. On

September 22, 2017, Appellant entered into a negotiated plea 

agreement and pleaded nolo contendere with respect to the IDSI 

and unlawful contact with a minor charges. Plea Agreement, 

9/22/17. Pursuant to the agreement, the Commonwealth agreed 

to nolle pros the remaining charges and to recommend a sentence 

of two to four years of confinement followed by ten years of statesupervised sex offender probation. Id. 

At the September 22, 2017 hearing, Appellant stipulated to “the 

affidavit of probable cause, investigation paperwork and any other 

police paperwork along with any other records in the discovery 

packet as the basis for the plea....” N.T., 9/22/17, at 12. 

According to the affidavit of probable cause accompanying 

Appellant’s arrest warrant, the complaining witness, a fourteenyear-old girl, stated that

when she was in second grade (approx. 2005) she was 

sleeping with her sister and woke to [Appellant] touching 

her vagina. The [complaining witness] further stated that 

[Appellant] carried [the complaining witness] to his room 

and while there put his mouth on and in the [complaining 

witness’s] vagina. The [complaining witness] stated that 

during another incident... [she] again awoke to [Appellant] 

sticking his finger in the [complaining witness’s] vagina,

moving [his] finger in and out of her vagina. The 

[complaining witness] stated that [Appellant] exposed his 

penis to [her] and that [the] incidents stopped when the 

[complaining witness] was in the second grade (approx. 

2007).

Affidavit of Probable Cause, 5/14/15.

On December 22, 2017, the trial court sentenced Appellant to the 

terms of confinement and probation as set forth in the plea 

agreement. Sentencing Order, 12/22/17. At the sentencing 

hearing, Appellant was advised that he would be permitted to file 

a post-sentence motion to withdraw his guilty plea within ten days 

of the sentence. N.T., 12/22/17, at 9. Appellant did not file a 

post-sentence motion within ten days of the date of sentencing. 
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On January 18, 2018, Appellant filed this timely direct appeal from 

the judgment of sentence.

Commonwealth v. Ortiz, No. 327 EDA 2018, unpublished memorandum at 

2-3 (Pa. Super. filed April 23, 2019) (footnotes omitted). Subsequent to the 

filing of the appeal, Appellant’s counsel filed a petition to withdraw and 

Anders3 brief with this Court and contemporaneously sent a letter to 

Appellant informing him that he may retain new counsel or proceed pro se in 

this appeal. 

On April 23, 2019, this Court issued a memorandum decision denying 

the petition to withdraw. We first concluded that Appellant’s counsel had 

complied with the procedural requirements for withdrawal and that the issue 

raised by counsel in the Anders brief regarding whether Appellant’s waiver of 

his right to trial was knowing, voluntary, and intelligent was wholly frivolous. 

Id. at 6-10. However, as part of our independent review of the record, we 

discovered an additional issue of arguable merit related to the application of 

SORNA registration requirements to Appellant even though Appellant’s crimes 

were committed prior to SORNA’s effective date. Id. at 10-13. In light of this 

potentially meritorious issue, we directed Appellant’s counsel’s to file an 

advocate’s brief or new Anders brief within thirty days. Id. at 13.

Counsel subsequently filed an advocate’s brief on behalf of Appellant 

raising the following issue:

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3 Anders v. California, 386 U.S. 738 (1967).
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Is Appellant’s sentence in error, as it involves the retrospective 

application of the registration and reporting obligations of SORNA, 

42 Pa.C.S. [§]§ 9799.10-9799.42, which has been found 

unconstitutional by the Pennsylvania Supreme Court[?]

Appellant’s Brief at 2. Appellant argues that, because his crimes occurred 

prior to the effective date of SORNA on December 20, 2012, the trial court 

was required to impose sex offender reporting requirements in accordance 

with the prior statute, Megan’s Law III.4 While Appellant recognizes that he 

would be subject to lifetime sex offender registration under either Megan’s 

Law III or SORNA, he argues that the stricter reporting and registration 

requirements under SORNA constitute a greater punishment than was 

applicable under Megan’s Law III, violating the ex post facto clauses of the 

United States and Pennsylvania Constitutions. In its responsive brief, the 

Commonwealth concurs that the trial court violated Muniz by applying the 

lifetime registration requirements of SORNA to conduct occurring prior to the 

statute’s effective date. 

We agree with Appellant that the imposition of sex offender registration 

under SORNA for conduct that occurred prior to the date that law went into 

effect violated the ex post facto clauses of the U.S. and Pennsylvania 

Constitutions. SORNA went into effect on December 20, 2012, replacing the 

existing sexual offender registration statute, Megan’s Law III. See 42 Pa.C.S. 

§ 9799.41; Muniz, 164 A.3d at 1204 (discussing statutory history). Among 

the changes of SORNA was that the statute classified offenders into three tiers 

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4 42 Pa.C.S. §§ 9791-9799.9 (expired).
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based on the severity of the offense committed with different registration 

periods and in-person reporting requirements for each tier. See 42 Pa.C.S. § 

9799.15; Muniz, 164 A.3d at 1206-07. Under either SORNA or Megan’s Law 

III, an offender convicted of IDSI, such as Appellant, would be subject to 

lifetime registration. Compare 42 Pa.C.S. § 9795.1(b)(2) (expired) with 42 

Pa.C.S. §§ 9799.14(d)(4), 9799.15(a)(3). However, lifetime registration as a 

Tier III offender under SORNA includes stricter registration and reporting 

requirements compared to lifetime registration under Megan’s Law III, 

including the addition of quarterly in-person reporting regardless of whether 

the offender changes his address or employment. Compare 42 Pa.C.S. §§ 

9799.15, 9799.16 with 42 Pa.C.S. § 9795.2 (expired); see also Muniz, 164 

A.3d at 1207-08.

In Muniz, the defendant was convicted in 2007 of indecent assault of a 

person less than 13 years of age, but absconded and was not ultimately 

apprehended and sentenced until 2014. 164 A.3d at 1193. The sentencing 

court imposed Tier III lifetime registration under SORNA, whereas Megan’s 

Law III, which was in effect at the time of conviction, only required registration 

for a ten-year period. Id. The defendant appealed, arguing that the 

application of SORNA to an individual who committed crimes prior to the 

enactment of that statute was an unconstitutional ex post facto punishment. 

After a thorough review of SORNA’s regulatory structure as compared to its 

predecessor statute, our Supreme Court agreed that SORNA was punitive in 

effect despite its expressed civil intent. Id. at 1218. In analyzing the 
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registration requirements of SORNA as compared to its predecessor statute, 

the Court held that the additional registration and reporting requirements of 

SORNA, including the quarterly in-person reporting requirements for Tier III 

offenders, constituted a greater punishment than would have been imposed 

prior to the enactment of that statute. Id. at 1210-11. The Court therefore 

determined that the retroactive application of SORNA to crimes committed 

prior to the enactment of the statute violates the ex post facto clauses of both 

the United States and Pennsylvania constitutions. Id. at 1218, 1223.5

Subsequently, in Commonwealth v. Horning, 193 A.3d 411 (Pa. 

Super. 2018), a defendant who pleaded guilty in 2017 to multiple counts of 

IDSI and rape committed between 2002 and 2004, when Megan’s Law III was 

in effect, appealed from the imposition of lifetime registration as a Tier III 

offender under SORNA. Id. at 413-14. A panel of this Court concluded that, 

even though the crimes the defendant committed required the imposition of 

lifetime registration under both SORNA and Megan’s Law III, SORNA imposed 

heightened reporting requirements, including quarterly in-person reporting, 

that constituted greater punishment than the prior law and thus ran afoul of 

Muniz. Id. at 416-17; see also Commonwealth v. Fernandez, 195 A.3d 

299, 310 (Pa. Super. 2018) (en banc). In addition, we rejected the 

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5 Though Justice Dougherty’s lead opinion in Muniz was only joined in full by 

two other justices, Justice Wecht in his concurrence, joined by Justice Todd, 

agreed with the holding of the lead opinion that retrospective application of 

SORNA violates the ex post facto clauses. 164 A.3d at 1232-33 (Wecht, J., 

concurring).
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Commonwealth’s argument that Muniz was inapplicable because the guilty 

plea and sentence occurred after SORNA became effective, holding that the 

relevant date for determining whether the application of SORNA violates the 

ex post facto clauses is the date of the commission of the offense, not the 

date of conviction. Horning, 193 A.3d at 417; see also Commonwealth v. 

Wood, 208 A.3d 131, 136 (Pa. Super. 2019) (en banc). 

According to the affidavit of probable cause accompanying Appellant’s 

arrest warrant, Appellant committed his offenses between 2005 and 2007,6

prior to the effective date of SORNA. At the plea hearing, the assistant district 

attorney recognized that SORNA was not applicable to Appellant based on the

recently decided Muniz decision. N.T., 9/22/17, at 12-13. However, at the 

sentencing hearing, Appellant was notified orally and in writing that he was 

required to register as a Tier III offender and would have to comply with the 

SORNA reporting requirements applicable to Tier III offenders, including inperson quarterly reporting to the Pennsylvania State Police. Notice of 

Registration Requirements Form, 12/22/17; N.T., 12/22/17, at 7-8. In 

addition, the sentencing order stated that Appellant would be required to 

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6 We recognize that there appears to be a typographical error in the affidavit 

of probable cause as it states that the abusive conduct began in approximately 

2005 when the complaining witness “was in second grade” and ended in 

approximately 2007 when the witness “was in second grade.” Affidavit of 

Probable Cause, 5/14/15. This error does not affect our conclusion that 

SORNA requirements were improperly imposed upon Appellant for conduct 

occurring before its effective date in 2012.
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“register with the State Police [as a lifetime registrant] and comply with all 

Tier III requirements.” Sentencing Order, 12/22/17. 

As explained in Muniz and Horning, though SORNA did not increase 

the reporting period for Appellant’s IDSI conviction from Megan’s Law III, the 

imposition of the heightened reporting requirements of SORNA on Appellant 

constitute greater punishment than the prior law and thus violate the ex post 

facto clauses of the United States and Pennsylvania constitutions. Muniz, 164 

A.3d at 1210-11, 1218, 1223; Horning, 193 A.3d at 416-17. We accordingly 

vacate the portion of Appellant’s judgment of sentence that required him to 

register as a Tier III offender under SORNA and remand for resentencing. 

In its brief, the Commonwealth asserts that it does not oppose a limited 

remand to allow the trial court to impose sex offender registration 

requirements pursuant to Subchapter I of the Sentencing Code, known as 

SORNA II.7 We agree with the Commonwealth that SORNA II is applicable to 

Appellant upon resentencing. SORNA II was enacted by the General Assembly 

in 2018 to address our Supreme Court’s decision in Muniz and applies to sex 

offender reporting requirements applicable to offenders convicted of sex 

offenses after Megan’s Law I went into effect on April 22, 1996 but prior to 

the effective date of SORNA.8 42 Pa.C.S. §§ 9799.51(b)(4), 9799.52(1), 

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7 42 Pa.C.S. §§ 9799.51-9799.75. 

8

In 2018, the General Assembly also addressed the Muniz decision by 

amending SORNA to only make it applicable to offenses committed 
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9799.55; see also Commonwealth v. Bricker, 198 A.3d 371, 375-76 (Pa. 

Super. 2018). In Commonwealth v. Moore, ___ A.3d ___, 2019 PA Super 

320 (filed Oct. 23, 2019), this Court ruled that the retrospective application 

of Section 9799.63 of SORNA II, 42 Pa.C.S. § 9799.63, which requires the 

dissemination of information regarding sexual offenders on a Pennsylvania 

State Police website, violates the federal ex post facto clause in light of Muniz. 

Moore, 2019 PA Super 320, *21. However, the Court held that Section 

9799.63 was severable from SORNA II and that the remainder of the SORNA 

II registration and reporting requirements for pre-SORNA offenders remained 

in effect. Id. at *21-*22.

SORNA requirements vacated. Judgment of sentence affirmed in all 

other respects. Case remanded with instructions. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/19

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after SORNA’s effective date of December 20, 2012. See 42 Pa.C.S. § 

9799.11(c).