J-S38028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES H. HERB, III

Appellant No. 1569 MDA 2014

Appeal from the PCRA Order entered September 11, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No: CP-40-CR-0003100-2011

BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 15, 2015

Appellant, James H. Herb, III, appeals from the September 11, 2014 

order entered in the Court of Common Pleas of Luzerne County, denying his 

amended petition for collateral relief pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.1

Appellant appeared before the Honorable Fred A. Pierantoni, III, on 

July 30, 2013 and entered into a plea for failure to comply with Megan’s Law 

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1 The record reflects that on October 7, 2014, a motions panel of this Court 

issued a Rule to Show Cause why this appeal should not be dismissed 

pursuant to Pa.R.A.P. 301(a)(1), which provides that no order is appealable 

until it has been entered upon the trial court docket. By subsequent order 

entered December 17, 2014, the motions panel acknowledged receipt of 

Appellant’s response to the rule; discharged the show cause rule; and noted 

the issue would be referred to the merits panel. Our review of the trial court 

docket confirms the entry of the September 11, 2014 order as required by 

Rule 301(a)(1). Therefore, the appeal is properly before us.
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III, which included the sexual offender registration requirements in effect at 

the time. Judge Pierantoni sentenced Appellant to a minimum of 36 months 

and maximum of 72 months in a state correctional institution. 

On December 16, 2013, our Supreme Court ruled that Megan’s Law III 

was unconstitutional because Act 152 of 2004 (Act 152), which included the 

provisions of Megan’s Law III, violated the Single Subject Rule of Article III, 

Section 3, of the Pennsylvania Constitution. Commonwealth v. Neiman, 

84 A.3d 603 (Pa. 2013). However, the Court noted:

[A]s we have observed previously in striking down other 

legislation which violated Article III, Section 3, “nothing ... 

precludes the General Assembly from enacting similar provisions 

in a manner consistent with the Constitution.” City of 

Philadelphia[ v. Commonwealth, 838 A.2d 566, 594 (Pa. 

2003)]. [S]ince we find merit in the General Assembly's 

suggestion that our decision abrogating the entirety of Act 152 

will have a significant impact on a wide variety of individuals and 

entities which have ordered their affairs in reliance on its 

provisions, we will stay our decision, as we have done under 

similar circumstances, in order to provide a reasonable amount 

of time for the General Assembly to consider appropriate 

remedial measures, or to allow for a smooth transition period. 

See City of Philadelphia, [] 838 A.2d at 594.

Id. at 616. Significantly, despite striking Act 152 in its entirety, the Court 

commented: 

We stress, however, that this action should, in no way, be read 

as a repudiation of the merits of the various legislative 

components of Act 152 such as Megan's Law III, which serves a 

vital purpose in protecting our Commonwealth’s citizens and 

children, in particular, from victimization by sexual predators.

Id. at 615.
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The Supreme Court stayed its decision for 90 days, by which time the 

Legislature passed Act 19 of 2014 (Act 19) with a retroactive effective date 

of December 20, 2012. Act 19 amended the sexual offender registration 

requirements imposed by 42 Pa.C.S.A. § 9799.10 et seq., also known as the 

Sexual Offender Registration and Notification Act (SORNA), and included a 

declaration by the Legislature that “[i]t is the intention of the General 

Assembly to address the Pennsylvania Supreme Court’s decision in 

Commonwealth v. Neiman [] by amending this subchapter in the act of 

(March 14, 2014, P.L. 41, No. 19).” 42 Pa.C.S.A. § 9799.11(b)(3).

On May 12, 2014, the Luzerne County Public Defender’s Officer filed a 

PCRA petition on Appellant’s behalf. The office filed an amended petition on 

July 18, 2014 that included Appellant’s requisite verification and consent. A 

hearing on the petition was held on September 11, 2014. At the conclusion 

of the hearing, Judge Pierantoni, who was also the PCRA court judge, denied 

Appellant’s petition. This timely appeal followed in which Appellant presents 

one issue for our consideration:

Whether the [PCRA] court erred in denying [Appellant’s] Petition 

for Post-Conviction Relief where [Appellant] is currently serving 

an illegal sentence and is incarcerated in violation of the due 

process clauses of both the Constitution of the United States and 

the Constitution of the Commonwealth of Pennsylvania?

Appellant’s Brief at 2.

In essence, Appellant argues that the Megan’s Law III provisions under 

which he was sentenced are void ab initio, rendering his sentence 
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unconstitutional because the offense for which he was sentenced never 

existed. Appellant does not dispute that he entered a guilty plea to a 

violation of his reporting requirements, nor does he suggest that his 

transgression is no longer a violation under the provisions of Act 19 that 

amended SORNA and were retroactive to December 20, 2012. Simply 

stated, he is attempting to play a “Get Out of Jail Free” card by claiming 

Neiman should be applied retroactively and the Legislature’s enactment of 

Act 19 should be disregarded.

Appellant looks to this Court’s ruling in Commonwealth v. Michuck, 

686 A.2d 403 (Pa. Super. 1996), in which we vacated a conviction under the 

Vehicle Code because, while the appeal was pending, our Supreme Court 

struck down a subsection of the Code under which Michuck was convicted.2 

We recognized that “[a] court does not have power to enforce a law which is 

no longer valid.” Id. at 407. Similarly, Appellant relies on Commonwealth 

v. Muhammed, 992 A.2d 897 (Pa. Super. 2010), in which we affirmed 

Muhammed’s conviction for unauthorized transfer of sounds on recording 

devices but sua sponte reversed his conviction for trademark counterfeiting 

because our Supreme Court declared the trademark counterfeiting statute 

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2 Michuck had been convicted under 75 Pa.C.S.A. § 3731(a)(5), which 

imposed criminal penalties on individuals with a certain blood alcohol content 

within three hours of driving, a provision our Supreme Court determined to 

violate both state and federal due process guarantees in Commonwealth v. 

Barud, 681 A.2d 162 (1996). See Michuck, 686 A.2d at 407. 
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unconstitutional.3 “If no statutory authorization exists for a particular 

sentence, that sentence is illegal and subject to correction. An illegal 

sentence must be vacated.” Id. at 903 (quoting Commonwealth v. 

Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en banc)).

Preliminarily, we note that Appellant’s reliance on Michuck and 

Muhammed is misplaced. Unlike the case before us, both Michuck and 

Muhammed were pending on direct appeal when the relevant statutes were 

declared unconstitutional.

In Commonwealth v. Riggle, 2015 WL 4094427 (Pa. Super. July 7, 

2015), this Court considered whether a constitutional rule warrants 

retroactive application on collateral review, as in the case before us, rather 

than on direct appeal, as in Michuck and Muhammed. Looking to Teague 

v. Lane, 489 U.S. 288 (1989), we explained: 

Under the Teague framework, an old rule applies both on direct 

and collateral review, but a new rule is generally applicable only 

to cases that are still on direct review. A new rule applies 

retroactively in a collateral proceeding only if (1) the rule is 

substantive or (2) the rule is a ‘watershed rule of criminal 

procedure’ implicating the fundamental fairness and accuracy of 

the criminal proceeding.

Riggle at *4 (quoting Whorton v. Bocktin, 549 U.S. 406, 416 (2007)). 

Without attempting to “define the spectrum of what may or may not 

____________________________________________

3

In Commonwealth v. Omar, 981 A.2d 179 (Pa. 2009), our Supreme 

Court struck down the criminal statute of trademark counterfeiting (18 

Pa.C.S.A. § 4119) as unconstitutionally overbroad. See Muhammed, 992 

A.2d at 903.
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constitute a new rule for retroactivity purposes[,]” this Court explained that 

generally, “a case announces a new rule when it breaks new ground or 

imposes a new obligation on the States or the Federal Government.” Id. at 

*5 (citations omitted). Appellant urges us to consider Neiman as a new 

rule to be applied retroactively.

Applying the Teague standard, it is clear that Neiman, which struck 

down Megan’s Law III as unconstitutional, announced a new rule. With 

regard to collateral proceedings, in accord with Teague and its progeny, the 

new rule will be applied retroactively if it falls under one of two exceptions: 

“it places certain kinds of primary, private individual conduct beyond the 

power of the criminal law-making authority to proscribe” or it is a watershed 

procedural rule that “alters the understanding of the bedrock procedural 

elements essential to the fairness of a proceeding.” Id. at *5-*6 (citations 

and internal quotations omitted). 

“The only rule explicitly recognized by the United States Supreme 

Court as a watershed criminal procedural rule was announced in Gideon v. 

Wainwright, 372 U.S. 335 [] (1963), i.e., the right to counsel during a 

felony criminal prosecution.” Id. at *6 (citing Whorton, 549 U.S. at 419). 

Recognizing that the rule announced in Neiman does not rise to the level of 

a watershed procedural rule such as announced in Gideon, we will limit our 

discussion to whether the Neiman rule falls under the first exception.
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By striking down the provisions of Megan’s Law III, Neiman does 

place violations of that law beyond the power of the criminal law-making 

authority to proscribe. If our analysis were to conclude here, it would 

appear Appellant would be entitled to relief under the first exception. If the 

Neiman rule were to be applied retroactively, the PCRA court would not 

have authority to convict Appellant or sentence him for a violation of 

Megan’s Law III as an unconstitutional law that was stricken. However, the 

Court in Neiman did more than hold that Act 152, including Megan’s Law 

III, was unconstitutional. The Court stayed abrogation of Act 152 for 90 

days to provide an opportunity for the General Assembly to take remedial 

measures to address the manner in which the legislations was enacted. In 

doing so, the Court, as previously stated, proclaimed that its action in 

striking down Act 152 “should, in no way, be read as a repudiation of the 

merits of the various legislative components of Act 152 such as Megan’s Law 

III, which serves a vital purpose in protecting our Commonwealth’s citizens 

and children, in particular, from victimization by sexual predators.” 

Neiman, 84 A.3d at 615. The Legislature acted in response to and in 

accord with Neiman and passed Act 19, retroactive to December 20, 2012, 

which once again made Appellant’s failure to register a criminal offense.

Accordingly, Appellant’s contention—that by invalidating Megan’s Law 

III from its enactment, the Neiman decision placed conduct covered by the 

statute beyond the Commonwealth’s power to punish and that he is being 
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punished for a crime that did not exist—must be rejected. Appellant ignores 

the fact the sexual offender registration provisions were reinstated by Act 

19, retroactive to December 20, 2012, prior to the effective date of Neiman

and prior to Appellant’s July 2013 guilty plea and sentencing. Although 

Appellant would like to think that Neiman makes him innocent of violating 

sexual offender registration requirements in place as of July 30, 2013, that is 

simply not the case in light of the retroactive application of Act 19. With the 

enactment of Act 19, SORNA was amended and criminalized the conduct for 

which Appellant was convicted.4 Consequently, due to the retroactive 

application of Act 19, Appellant is not entitled to benefit from the new rule 

announced in Neiman because his sentence was not illegal under the law 

existing at the time of his conviction.

Finding no error in the PCRA court’s denial of Appellant’s PCRA 

petition, we affirm.

____________________________________________

4 As the PCRA court aptly observed, “It is obvious . . . that the Pennsylvania 

legislature seized the opportunity afforded by the Pennsylvania Supreme 

Court and appropriately enacted the provisions of law deemed 

unconstitutional as violating the single subject rule. No other conclusion is 

rational, reasonable or warranted as a matter of law or logic.” PCRA Court 

Opinion, 10/28/14, at 7.
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2015