J-S80028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN ARTERS, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3312 EDA 2017

Appeal from the Judgment of Sentence March 27, 2017

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

No(s): CP-15-CR-0004016-2011

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 30, 2019

Kevin Arters appeals from the judgment of sentence imposed on March 

27, 2017, after he was found guilty of violating the terms of his parole and 

probation. We affirm.

Appellant pled guilty to various charges related to his sexual abuse of 

children and, on April 12, 2012, was sentenced and determined to be a 

sexually violent predator (“SVP”) under Megan’s Law II. After incurring new 

charges related to the sexual abuse, Appellant’s probation and parole were 

revoked in 2014, resulting in a new sentence. In 2016, he was convicted of 

new offenses concerning sexual abuse of children, which resulted in his parole 

and probation in the instant case again being revoked, and a new judgment 

of sentence imposed on March 27, 2017. On that same date, Appellant was 

sentenced in the first instance for the newest charges, including a new SVP 

determination under the Sexual Offender registration and Notification Act 
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(“SORNA”), and on parole and/or probation violations in two other cases, 

resulting in a total term of imprisonment of thirty-five to seventy years. 

Appellant filed direct appeals in all four cases. This Court affirmed 

Appellant’s judgments of sentence in the other two revocation cases. See 

Commonwealth v. Arters, __ A.3d __, 2018 WL 7106398, at *1 (Pa.Super. 

Oct. 15, 2018) (unpublished memorandum); Commonwealth v. Arters, 193 

A.3d 1110 (Pa.Super. 2018) (unpublished memorandum). In the appeal on 

the most recent convictions, this Court affirmed Appellant’s judgment of 

sentence in most respects, but vacated his SORNA-based SVP classification 

pursuant to Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa.Super. 

2017), appeal granted, 190 A.3d 581 (Pa. 2018) (holding that the section of 

SORNA allowing the trial court to determine SVP status by preponderance of 

the evidence is unconstitutional under Alleyne v. United States, 570 U.S. 

99 (2013), and Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)).1 See 

Commonwealth v. Arters, 195 A.3d 1029 (Pa.Super. 2018) (unpublished 

memorandum at 13-15).

In the instant appeal, Appellant presents the following questions:

[1.] Is the trial court’s classification of Appellant as a[n SVP] 

unconstitutional as counter to the United States Supreme Court

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1 This Court noted that Appellant was also found to be an SVP in the instant 

case in 2012, but did not address the validity of that determination. 

Commonwealth v. Arters, 195 A.3d 1029 (Pa.Super. 2018) (unpublished 

memorandum at 14-15) (“A review of appellant’s April 1[2], 2012 adjudication 

as an SVP . . . is not an issue currently before us.”). 
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holding in Alleyne. . . and this Honorable Court’s holding in 

[Butler]?

[2.] As Appellant’s criminal offense and conviction predate the 

enactment of SORNA, are the registration requirements, which 

have been found to be unconstitutional as violative of the 

Pennsylvania . . . and United States Constitutions’ ex post facto

clauses, as applied retroactively to Appellant, unconstitutional?

Appellant’s brief at 4.

We begin by noting the applicable standards of review. “Following 

probation violation proceedings, this Court’s scope of review is limited to 

verifying the validity of the proceeding and the legality of the sentence 

imposed.” Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013). 

Appellant’s challenges to the constitutionality of his sentence present 

questions of law. Thus, “our scope of review is plenary and we review the 

lower court[’]s legal determinations de novo.” Muniz, supra at 1195.

With his first issue, Appellant challenges not the sentence imposed on 

March 27, 2017, following the revocation of his parole and probation, but the 

sentence imposed in 2012 when he was convicted. This Appellant cannot do. 

As this Court has explained, 

When, on appeal from a sentence imposed following probation 

revocation, an appellant collaterally attacks the legality of the 

underlying conviction or sentence, such an approach is incorrect 

and inadequate for two reasons. First any collateral attack of the 

underlying conviction or sentence must be raised in a petition 

pursuant to the Post–Conviction Relief Act. Second, such an 

evaluation ignores the procedural posture of the case, where the 

focus is on the probation revocation hearing and the sentence 

imposed consequent to the probation revocation, not the 

underlying conviction and sentence. 
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The PCRA provides the sole means for obtaining collateral review 

of a judgment of sentence. A court may entertain a challenge to 

the legality of the sentence so long as the court has jurisdiction to 

hear the claim. In the PCRA context, jurisdiction is tied to the 

filing of a timely PCRA petition. Although legality of sentence is 

always subject to review within the PCRA, claims must still first 

satisfy the PCRA’s time limits or one of the exceptions thereto. 

Pennsylvania law makes clear no court has jurisdiction to hear an 

untimely PCRA petition. 

Infante, supra at 365 (cleaned up).

Further, neither Muniz (or Butler’s application of Muniz) satisfies the 

exception to the PCRA’s one-year time bar regarding new constitutional rights. 

See Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018). Hence, 

Appellant’s attempt to circumvent the timeliness requirements of the PCRA by 

collaterally attacking his 2012 sentence in the instant appeal must fail. 

Moreover, nothing in the record suggests that Appellant was found to 

be an SVP in the instant case under the provisions of SORNA. Rather, 

Appellant’s SVP designation in this case was made in 2012 under a different 

law that, unlike SORNA, was not unconstitutional ex post facto punishment. 

See Commonwealth v. Lee, 935 A.2d 865, 886 (Pa. 2007) (holding the 

provisions of Megan’s Law II “that attach to sex offenders assessed to be SVPs 

are not constitutionally punitive”). As such, the holdings of Muniz and Butler

regarding SORNA have no application to Appellant’s sentencing claim.

For any or all of these reasons, Appellant’s first issue merits no relief.
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Appellant’s remaining claim is that, under Muniz, he cannot be 

compelled to comply with the registration and notification requirements of 

SORNA based upon criminal conduct committed prior to SORNA’s enactment. 

However, this contention also merits no relief from this Court. 

First, the registration requirements at issue in Muniz do not apply to 

Appellant under the current law. In response to Muniz, the General Assembly 

amended SORNA to include the following language: “This subchapter shall 

apply to individuals who committed a sexually violent offense on or after 

December 20, 2012, for which the individual was convicted.” 42 Pa.C.S.

§ 9799.11(d). Hence, the SORNA provisions addressed in Muniz do not apply 

to Appellant. Rather, new requirements which have not been invalidated as 

of the time of this decision apply to establish different reporting requirements 

for offenders convicted under Megan’s Law. See 42 Pa.C.S. §§ 9799.51-

9799.75 (“Continued Registration of Sexual Offenders”). The amendments to 

SORNA have freed Appellant and all offenders who committed their crimes 

before SORNA was law from future compliance with the registration and 

notification obligations that were held to be punitive in Muniz. 

Second, Appellant’s registration and notification requirements will not 

commence until he is released from prison, which, based upon his aggregate 

sentence, will not occur for decades. If Appellant wishes to challenge the 

constitutionality of any registration requirements that may be in place when 

his release is imminent, he can do so at that time. See Gregory v. 
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Pennsylvania State Police, 160 A.3d 274, 278 (Pa.Cmwlth. 2017) (holding 

action against the state police challenging SORNA’s application to prisoner was 

ripe for disposition when the prisoner was facing release as soon as a home 

plan was approved). Accordingly, Appellant’s second issue warrants no relief 

from this Court.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/19