J-S23005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JESSIE KING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2636 EDA 2019

Appeal from the PCRA Order Entered June 24, 2019

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

No(s): CP-09-CR-0001588-2016

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 10, 2020

Appellant Jessie King appeals nunc pro tunc from the order dismissing 

his untimely second petition under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA court erred by 

dismissing his petition as untimely and raises several issues relating to 

Subchapter I1 of the Sexual Offender Registration and Notification Act 

(SORNA). We vacate and remand for further proceedings consistent with this 

memorandum.

The PCRA court summarized the underlying facts of this matter as 

follows:

On November 3, 1995, Appellant was convicted of involuntary 

deviate sexual intercourse [(IDSI)] and corruption of minors [at 

CP-51-CR-1231201-1993 and CP-51-CR-1231291-1993 based on 

incidents that occurred on November 17, 1993]. The [trial c]ourt 

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1 42 Pa.C.S. §§ 9799.51-9799.75 (eff. Feb. 21, 2018).
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sentenced Appellant to seven and one half to twenty years of 

incarceration.

On October 24, 1995, Megan’s Law I[2] was enacted, which applied 

retroactively to offenders who were convicted before the effective 

date of the statute[, May 22, 1996,] and were serving sentences 

at the time the law was enacted.

On December 20, 2011, SORNA [I] was enacted and became 

effective on December 20, 2012. 42 Pa.C.S. § 9799.14(d)(7). 

Under SORNA [I], the offense of [IDSI] was classified as a Tier III 

sexual offense. An individual convicted of a Tier III sexual offense 

is required to register with the Pennsylvania State Police for life. 

Accordingly, Appellant’s registration was extended to a lifetime 

requirement.

Trial Ct. Op., 10/7/19, at 1.

On June 13, 2016, Appellant entered an open guilty plea to one count 

of failure to comply with registration of sexual offender requirements (failure 

to register).

3

 On July 26, 2016, the trial court sentenced Appellant to a term 

of forty to one hundred and twenty months’ incarceration. Appellant did not 

file post-sentence motions or a direct appeal.

On July 19, 2017, our Supreme Court decided Commonwealth v. 

Muniz, 164 A.3d 1189 (Pa. 2017) (plurality). The Muniz Court held that

SORNA I was “punitive in effect . . . .” Muniz, 164 A.3d at 1218. The Court 

also concluded that the former version of SORNA violated ex post facto

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2 Megan’s Law I became effective on May 22, 1996, and required defendants 

convicted of IDSI to register for ten years as a sex offender. See 42 Pa.C.S. 

§ 9793(b) (repealed 2000). This ten-year registration applied “to all offenders 

convicted of an offense equivalent to an offense set forth in § 9793(b) before 

the effective date of this section who remain[ed] incarcerated or on parole on 

the effective date of this section.” See 42 Pa.C.S. § 9799.6 (repealed 2000).

3 18 Pa.C.S. § 4915.1(a)(1).
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principles when applied to individuals who, like Appellant, committed a sexual 

offense before December 20, 2012, the effective date of the former version of 

SORNA. See id. at 1223; see also Commonwealth v. Lippincott, 208 A.3d 

143, 150 (Pa. Super. 2019) (en banc).

In response to Muniz, the General Assembly amended SORNA I to 

include Acts 10 and 29 of 2018 (SORNA II). See 2018, Feb. 21, P.L. 27, No. 

10 (Act 10); see also 2018, June 12, P.L. 140, No. 29, (Act 29). SORNA II 

divides sex offender registrants into two distinct subchapters – Subchapter H, 

which includes individuals who were convicted of a sexually violent offense 

that occurred on or after December 20, 2012, and Subchapter I, which 

includes individuals who were convicted of a sexually violent offense that 

occurred “on or after April 22, 1996, but before December 20, 2012,” or who 

were required to register under a former sexual offender registration law on 

or after April 22, 1996, but before December 20, 2012, and whose registration 

requirements had not yet expired. See 42 Pa.C.S. § 9799.11(c) and 42 

Pa.C.S. § 9799.52, respectively.

On February 26, 2018, Appellant filed a counseled first PCRA petition

challenging his conviction for failure to register. On May 4, 2018, the PCRA 

court dismissed the petition as untimely. Appellant appealed the PCRA court’s 

order, but later filed a praecipe to discontinue the appeal,4 which this Court 

certified on August 20, 2018.

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4 Appellant indicated that his claim was moot in light of Muniz.
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On October 29, 2018, Appellant filed the instant counseled PCRA petition

challenging his obligation to register under SORNA II.

5

 PCRA Pet., 10/29/18. 

Appellant argued that there was “little difference between the burdens placed 

on SORNA registrants and Subchapter I registrants. Although Subchapter I 

purports to fill the void left by Muniz . . . it is so similar to SORNA . . . that it, 

like SORNA, cannot be constitutionally applied retroactively.” Id. at ¶ 21. 

Therefore, relying on Muniz, Appellant asserted that Subchapter I violated ex 

post facto laws when applied to him retroactively. Id. ¶ at 25. 

Appellant also claimed that SORNA II violated both the state and federal 

constitutions. Id. at ¶ 26. Specifically, Appellant asserted that SORNA II 

violates “due process under Articles I and XI of the Pennsylvania Constitution 

because it creates an irrebuttable presumption that those convicted of 

enumerated offenses ‘pose a high risk of committing additional sexual 

offenses’ depriving those individuals of their fundamental right to reputation.” 

Id. Appellant also argued that SORNA II violated procedural and substantive 

due process, as it “unlawfully restricts liberty and privacy without notice and 

an opportunity to be heard” and “deprives individuals of inalienable rights and 

fails to satisfy strict scrutiny.” Id. at ¶ 26(c)-(d). Appellant also raised several 

constitutional and illegal sentencing claims based on his conclusion that 

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5 As is clear from the record, Appellant is challenging his lifetime registration 

requirement under Subchapter I, which stems from his 1995 conviction for 

IDSI. Although neither party addressed this issue, Appellant misfiled the 

instant petition under the above-captioned case involving his failure to register 

conviction when the petition should have been filed under or transferred to 

the case involving his IDSI conviction at CP-51-CR-1231201-1993.
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SORNA II “constitutes criminal punishment.” Id. at ¶ 26(e)-(l). Ultimately, 

Appellant concluded that there were “no valid registration schemes that can 

be enforced against [Appellant]” and that “whether as a matter of PCRA relief 

or a writ of habeas corpus, [Appellant] cannot be required to register as a sex 

offender.”6 Id. at ¶¶ 22, 32.

On May 28, 2019, the PCRA court issued a Rule 907 notice. Appellant 

filed a response arguing that although his petition was untimely under the 

PCRA, the application of Subchapter I “represent[ed] a modification of 

[Appellant’s] sentence” and “restarted the clock for purposes of challenging 

that sentence.” Appellant’s Rule 907 Resp., 5/28/19, at 4 (unpaginated). On

June 24, 2019, the PCRA court dismissed Appellant’s petition.

On August 28, 2019, Appellant filed a counseled motion requesting that 

the PCRA court reinstate his PCRA appeal rights nunc pro tunc. PCRA Pet., 

8/28/19. Therein, Appellant’s counsel explained that Appellant intended to 

appeal the PCRA court’s June 24, 2019 dismissal order and that he lost his 

PCRA appeal rights “through no fault of his own.” Id. at 1 (unpaginated). On 

August 30, 2019, the PCRA court issued an order granting Appellant’s motion 

and stating that Appellant had an additional thirty days to file an appeal.

On September 9, 2019, Appellant filed a notice of appeal and 

subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA 

court issued a Rule 1925(a) opinion concluding that Appellant’s PCRA petition 

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6 Appellant did not raise any claims relating to his 2016 conviction for failing 

to register as a sex offender.
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was untimely and that, therefore, the PCRA court did not have jurisdiction to 

address Appellant’s claims.

On July 21, 2020, our Supreme Court issued its decision in 

Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020). The Lacombe 

Court rejected the Commonwealth’s argument that trial courts lacked 

jurisdiction to consider challenges to sex offender registration requirements 

outside the framework of the PCRA. Id. at 617-18. Further, the Lacombe

Court noted that Subchapter I was “markedly different from the version of 

SORNA invalidated in Muniz.” Id. at 606. Accordingly, the Lacombe Court 

applied the same Mendoza-Martinez7framework employed by the Court in 

Muniz, ultimately concluding that “Subchapter I is nonpunitive and does not 

violate the constitutional prohibition against ex post facto laws.” Id. at 605-

06. 

On appeal, Appellant raises the following issues, which we have 

reordered as follows:

1. Did the [PCRA] court err in dismissing this matter without a 

hearing because Appellant filed a timely [PCRA petition], as 

Appellant became subject to the registration requirements 

anew under Act 29, Subchapter I, which subjected Appellant to 

new registration requirements and therefore, represented a 

modification of Appellant’s sentence?

2. Did the [PCRA] court err in denying [Appellant’s PCRA petition] 

without a hearing because it failed to find that Act 29 and its 

registration requirements violated the United States and 

Pennsylvania Due Process Prohibitions against ex post facto

laws?

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7 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
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3. Did the [PCRA court] err in denying [Appellant’s PCRA petition] 

without a hearing when it failed to find that Act 29 and its 

registration requirements violated the United States and 

Pennsylvania Constitutions, as it constitutes cruel and unusual 

punishment because registration is based upon empirically 

false myths, fails to deter first-time offenders, fails to reduce 

recidivism, threatens public safety, forces registrants and their 

families to suffer, creates an impassable barrier to 

reintegration into law-abiding society, and fails to address each 

offender individually?

4. Did the [PCRA] court err in denying [Appellant’s PCRA petition] 

without a hearing where it failed to find that Act 29 and its 

registration requirements violate the United States and 

Pennsylvania Constitutions’ separation of powers doctrine, as 

it gave judicial powers to the legislature and Pennsylvania 

State Police?

5. Did the [PCRA] court err in denying [Appellant’s PCRA petition] 

without a hearing because Act 29 and its registration 

requirements violated [the] United States and Pennsylvania 

Constitutions’ Due Process provision, as it denies the 

opportunity to be heard and automatically finds dangerousness 

universally and increases the maximum sentence without proof 

beyond a reasonable doubt to a jury in violation of Alleyne v. 

United States, 570 U.S. 99 (2013) (in that said provisions are 

not severable)?

6. Did the [PCRA] court err in denying Appellant’s petition without 

a hearing when it failed to find that Act 29 and its registration 

requirements violated the United States Constitution and the 

enhanced protections under the Pennsylvania Constitution, 

both on its face and as applied?

7. Did the [PCRA] court err in denying [Appellant’s PCRA petition] 

without a hearing when it failed to find Act 29 and its 

registration requirements violated the United States and 

Pennsylvania Constitutional Due Process protection, because it 

deprives Appellant of the right [of] the right to [reputation]

under the Pennsylvania Constitution, creates an irrebuttable 

presumption, treats all offenders universally as high-risk, 

violates individual punishment, is overly broad and inclusive of 

offenders and charges, ignores that reasonable alternative[] 

means exist to identify offender risk, denies any meaningful 

opportunity to be heard, exceeds the least restrictive means 
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requirement, fails the narrowly tailored requirements, and 

otherwise violates substantive due process?

Appellant’s Brief at 3-4 (full capitalization omitted).

In his first issue, Appellant asserts that the PCRA court erred in 

dismissing his petition as untimely under the PCRA. Appellant’s Brief at 15. 

Appellant argues that “the application of the registration requirements of 

Subchapter I to Appellant has subjected him to registration requirements 

anew.” Id. at 18. As such, Appellant claims that Subchapter I “restarted the 

clock for purposes of challenging the sentence” and, therefore, his PCRA 

petition was timely. Id. Further, Appellant asserts that “[b]y denying the 

PCRA without a hearing, the lower court improperly denied Appellant the 

opportunity to make a proper record.” Id. at 19.

The Commonwealth, referring to several of this Court’s previous 

decisions, responds that the PCRA court properly concluded that Appellant’s 

petition was an untimely PCRA petition. See Commonwealth’s Brief at 13-15.

The threshold issue of whether a petitioner must raise a claim for postconviction relief under the PCRA raises a question of law. See

Commonwealth v. Descardes, 136 A.3d 493, 496-97 (Pa. 2016). Our 

standard of review is de novo, and our scope of review is plenary. Id. at 497.

Initially, we note that although Appellant’s obligation to register as a sex 

offender stems from his original IDSI conviction, he challenged his registration

requirements by filing a PCRA petition at the docket for his 2016 conviction 

for failure to register. In any event, as discussed previously, our Supreme 
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Court recently clarified that petitioners are not required to challenge sexual 

offender registration statutes through the PCRA or any other specific 

procedural mechanism. Lacombe, 234 A.3d at 617. Specifically, the

Lacombe Court explained:

Indeed, we have consistently decided cases regarding sexual 

offender registration statutes that were challenged via different 

types of filings. . . . Our approach in this regard takes into account 

the fact that frequent changes to sexual offender registration 

statutes, along with more onerous requirements and retroactive 

application, complicate registrants’ ability to challenge new 

requirements imposed years after their sentences become final. 

This is especially so under the PCRA as many registrants . . . would 

be ineligible for relief on timeliness grounds. See 42 Pa.C.S. § 

9545(b)(1) (PCRA petition must be filed within one year of 

judgment of sentence becoming final unless exception applies). 

Other registrants may be ineligible because their sentence has 

expired while their registration requirements continue. See 42 

Pa.C.S. § 9543(a)(1) (PCRA petitioner must be serving sentence 

to be eligible for relief). Both situations arise from the fact that 

the registration period does not begin until registrants are 

released from prison, which may be well after their sentence has 

become final or may signal the completion of their sentence. 

Accordingly, we decline to find the PCRA, or any other procedural 

mechanism, is the exclusive method for challenging sexual 

offender registration statutes and we thus conclude the trial court 

had jurisdiction to consider [the appellant’s] “Petition to Terminate 

His Sexual Offender Registration Requirements.”

Id. at 617-18 (some citations omitted).

Here, in light of Lacombe, we agree with Appellant’s assertion that the 

PCRA court had jurisdiction to consider his challenge to Subchapter I. 

Therefore, we vacate that portion of the PCRA court’s order in which it 

concluded that it lacked jurisdiction to consider Appellant’s substantive claims

under the PCRA.
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In his next several issues, Appellant contends that Subchapter I is 

punitive and, therefore, it is subject to the constitutional and statutory 

protections applicable to sentencing. See Appellant’s Brief at 20-24; 41-53.

Specifically, Appellant argues that Subchapter I (1) violates state and federal 

ex post facto laws; (2) constitutes cruel and unusual punishment; (3) violates 

the separation of powers doctrine by usurping courts’ sentencing authority; 

and (4) violates the requirements of Apprendi and Alleyne. Id. 

Appellant further argues that Subchapter I violates his due process 

rights under the Pennsylvania constitution. Id. at 25-40. Specifically, he 

claims that Subchapter I relies on an irrebuttable presumption that violates 

his fundamental right to reputation under Article I, Section 1 of the 

Pennsylvania constitution. Id. at 25. Referring to various studies on sex 

offender recidivism rates, Appellant asserts that sex offender registrants “are 

not universally ‘high risk’” and that there is evidence “that most convicted 

offenders pose very little risk and abide by the standards of proper conduct.” 

Id. at 30. Further, Appellant claims that there are reasonable alternative 

means to identify offender risk, including empirical risk-based assessments 

and sexually violent predator (SVP) assessments. Id. at 31. Appellant also 

argues that “[b]y refusing to grant a hearing in this matter, the [PCRA] court 

deprived Appellant of the opportunity to incorporate . . . important evidence 

into the record” to support his claim that Subchapter I is overbroad and 

unconstitutional. Id. at 15.
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The Commonwealth responds that Appellant waived his claims that 

Subchapter I is punitive by failing to provide any legal precedent or analysis. 

Commonwealth’s Brief at 16. The Commonwealth asserts that Appellant 

“offers no argument or analysis on this question and merely relies on the 

Muniz decision.” Id. According to the Commonwealth, “[i]n so doing, 

Appellant fails to recognize the stark differences between SORNA I, as 

analyzed in Muniz, and the provisions of Subchapter I.” Id. Further, the 

Commonwealth asserts that “the only analysis Appellant offers . . . regarding 

whether Subchapter I is punitive under the Mendoza-Martinez factors plainly 

relies on an analysis of Subchapter H, not Subchapter I.” Id. at 20. Therefore, 

the Commonwealth concludes that Appellant waived any claim that 

Subchapter I violates a constitutional sentencing provision, as his arguments

“rest on the proposition that Subchapter I is, in fact, punitive.” Id.

The Commonwealth adds that that Appellant’s due process claim is not 

cognizable under the PCRA. Id. at 22. In the alternative, the Commonwealth 

asserts that Appellant’s claim is waived. Id. The Commonwealth contends 

that Appellant’s right-to-reputation claim “does not uniquely rely on the 

requirements imposed by Subchapter I.” Id. at 23. Therefore, the 

Commonwealth asserts that Appellant could have raised an identical challenge 

to his registration requirements under SORNA I at the time of his plea, at 

sentencing, or on direct appeal. Id.

In Commonwealth v. Smith, ___A.3d ___, 2020 WL 5755494 (Pa. 

Super. filed Sep. 28, 2020), the petitioner filed a motion challenging his sex 
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offender registration requirements under SORNA II. The petitioner, who 

committed his underlying crimes as a juvenile, argued that SORNA violated 

his due process rights because it “imposed an irrebuttable presumption of 

recidivism for juvenile offenders.” Smith, 2020 WL 5755494 at *1; see also

In re J.B., 107 A.3d 1 (Pa. 2014) (holding that SORNA’s lifetime registration 

requirements “violate[d] juvenile offenders’ due process rights by utilizing an 

irrebuttable presumption”). The trial court rejected the petitioner’s motion as

an untimely PCRA petition and denied relief without addressing his substantive 

claims. Id. On appeal, this Court vacated the trial court’s order and 

remanded the matter for the trial court to address the petitioner’s substantive 

claims. Id. at *3.

Here, like the petitioner in Smith, Appellant challenged his sex offender 

registration requirements based, in part, on the irrebuttable presumption 

doctrine. See Smith, 2020 WL 5755494 at *1; see also Commonwealth 

v. Torsilieri, 232 A.3d 567, 587-88 (Pa. 2020) (discussing an adult 

petitioner’s irrebuttable presumption challenge to Subchapter H of SORNA II 

and remanding the matter to the trial court for further development of the 

record). Similarly, the trial court dismissed Appellant’s petition without 

addressing his substantive claims. Under these circumstances, we conclude 

that remand is necessary. See Smith, 2020 WL 5755494 at *3.
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Accordingly, we vacate the trial court’s order dismissing Appellant’s 

petition as untimely under the PCRA and remand the matter to the trial court 

for further proceedings consistent with this memorandum.8

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2020

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8 Following remand, we direct the trial court to transfer this matter to the 

docket for Appellant’s original IDSI case at CP-51-CR-1231201-1993.