J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL PAUL JACOBS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 127 WDA 2022

Appeal from the Order Entered January 12, 2022

In the Court of Common Pleas of Westmoreland County Criminal Division

at No(s): CP

- 65

- CR

- 0002122

- 2011

BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: SEPTEMBER 16, 2022

Appellant, Michael Paul Jacobs, appeals pro se from the trial court’s

January 12, 2022 order denying his petition for writ of habeas corpus , in which

he challenged the constitutionality of his designation as a Sexually V iolent

Predator ( “ SVP ” ) under the revised version of Subchapter I of the Sexual

Offenders Registration and Notification Act ( “ SORNA II” ), 42 Pa.C.S. §§

9799.10

- 9799.42. After careful review, we affirm.

The facts underlying Appellant’s convictions are not pertinent to the

issues he raises herein. We need only note that on June 3, 2013, Appellant

pled guilty to statutory sexual assault (18 Pa.C.S. § 3122.1) and unlawful

contact with a minor (18 Pa.C.S. § 6318(a)(1)). He was sentenced that same

day to 18 to 36 months’ incarceration. H is statutory sexual assault conviction

also subjected him to a 25

- year registration requirement as a Tier II sex

offender under the prior version of SORNA in effect at that t ime (“SORNA I”)

.J

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- 2

-

Notably, during t he plea proceeding, the Commonwealth stated

–

without objection from Appellant

– that as part of his plea agreement,

Appellant would be required “to obtain a SORNA [e]valuation and follow any

recommended treatment, and r egistration requirements.” N.T. Plea, 6/3/13,

at 3. Accordingly, after his plea and sentencing hearing, Appellant was

assessed by the Sexual Offenders Assessment Board . T he Commonwealth

thereafter filed a praecipe for an SVP hearing , which was held on N ovember

30, 2013

, and February 7, 2014. On February 7, 2014, the court issued an

order deeming Appellant an SVP, thereby subjecting him to a lifetime

registration requirement. Appellant did not file an appeal.

Instead, over three years later, Appellant f iled a pro se petition under

the Post Conviction Relief Act ( “ PCRA ” ), 42 Pa.C.S. §§ 9541

- 9546, challenging

the legality of his SVP designation in light of Commonwealth v. Muniz , 164

A.3d 1189 , 1223 (Pa. 2017) ( holding that the registration requirements of

Subchapter H of SORNA I , as applied retroactively, were punitive and

unconstitutional under the ex post facto clauses of the United States and

Pennsylvania Constitutions )

, 1 and Commonwealth v. Butler , 173 A.3d 1212

(Pa. Super. 2017) (holding that the stat utory mechanism for designating a

_________________ __________ ______ ____ _______

1 Our Supreme Court has abrogated Muniz to the extent that it held that a

defendant must prove that he was actually disadvantaged by a retroactively

applied law to demonstrate it is ex post facto

. Commonwealth v. Santana

, 266 A.3d 528, 536 (Pa. 2021) (“ The United States Constitution does not

require a defendant to prove that he, in fact, was disadvantaged by the

retroactively applied law. ”).J

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defendant an SVP under SORNA I violated the United States Supreme Court’s

decisions in Alleyne v. U.S. , 570 U.S. 99 (2013), 2 and Apprendi v. New

Jersey , 530 U.S. 466 (2000)). 3 Appellant’s PCRA petition was ultimately

dismissed on June 29, 2018. This Court affirmed on appeal , and our Supreme

Court denied Appellant’s subsequent petition for permission to appeal. See

Commonwealth v. Jacobs , 217 A.3d 446 (Pa. Super. 2019) (unpublished

memorandum)

, appeal denied , 222 A.3d 752 (Pa. 2019).

In response to Muniz and Butler , the Pennsylvania General Assembly

amended SORNA I by enacting Act 10 on February 21, 2018, and Act 29 on

June 12, 2018, which are collectively known as SORNA II. See Act of Feb.

21 , 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018, P.L. 140, No. 29

(“Act 29”). SORNA II now divides sex offenders into two subchapters: (1)

Subchapter H, which applies to an offender who committed a sexually violent

offense on or after December 20 , 2012 (the date SORNA I became effective);

and (2) Subchapter I, which applies to an individual who committed a sexually

violent offense on or after April 22, 1996, but before December 20, 2012,

whose period of registration has not expired, or whose regis tration

requirements under a former sexual offender registration law have not

_________________ __________ ______ ____ _______

2 Alleyne holds that “facts that increase mandatory minimum sentences must

be submitted to the jury” and f ound be yond a reasonable doubt. Id. at 106.

3 Apprendi held that, “[o] ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable do ubt. ” Id. at

490.J

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expired. Appellant is now subject to the SVP provisions under Subchapter I

of SORNA II.

On August 1 1 , 2021, Appellant filed the pro se petition for writ of habeas

corpus that underlies his present appeal. Therein, he challenged the

constitutionality of his SVP designation under SORNA II . Appellant also filed

a petition for court

- appointed counsel. The trial court denied that request

,

and conducted a hearing on Appellant’s pe tition for writ of habeas corpus

, at

which Appellant acted pro se

. 4 On January 12, 2022, the court issued an order

and opinion denying Appellant’s petition for writ of habeas corpus

.

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4 On February 11, 2022, our Court issued an order to the trial court to clarify

whether Appellant was entitled to counsel at the hearing on his petition for

writ of habeas corpus under Commonwealth v. Fowler , 930 A.2d 586, 591

(Pa. Super . 2007) (“It is

... well

- settled that the PCRA provides the sole means

for obtaining collateral review, and that any petition filed after the judgment

of sentence becomes final will be treated as a PCRA petition”) (internal citation

omitted) , and Pa.R.Crim.P. 904(D) (“On a second or subsequent petition,

when an unrepresented defendant satisfies the judge that the defendant is

unable to afford or otherwise procure counsel, and an evidentiary hearing is

required as provided by [Pa.R.Crim.P.] 908, the judge shall appoint counsel

to represent the defendant

. ”). The trial court respond ed with a letter

explaining that Appellant was not proceeding under the PCRA and, thus, Rule

904(D) did not apply. See Trial Court Response, 2/23/22, at 1 (unnumbered).

T he court explained that Appellant was challenging the constitutionality of his

SVP designation and, thus, his filing a petition for writ of habeas corpus was

permissible under Commonwealth v. Lacombe , 234 A.3d 602 , 618 (Pa.

2020) ( declin ing “ to find the PC RA , or any other procedural mechanism, is the

exclusive method for challenging sexual offender registration statutes ”)

, and

Commonwealth v. Elliott , 249 A.3d 1190, 1193 (Pa. Super. 2021), appeal

denied , 263 A.3d 241 (Pa. 2021) (concluding that under Lacombe , “ the

applicability of SORNA II may be challenged outside the PCRA. Therefore, the

trial court erred by construing Appellant ’ s challenge to his [registration and

notification] requirements as an unt imely PCRA petition ”). Id. The court also

(Footnote Continued Next Page)J

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-

Appellant filed a timely, pro se notice of appeal. That same day, he also

filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

The court thereafter filed a “Memorandum in Lieu of Statement of the Court

Pursuant to Pa.R.A.P. 1925(a)” indicating that it was relying on the rationa le

set forth in its January 12, 2022 opinion that accompan ied its order denying

Appellant’s petition.

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observed that under Com. ex rel. Frey v. Banmiller , 159 A.2d 237, 238 ( Pa.

Super. 1960)

, the appointment of counsel is not required in the context of a

writ of habeas corpus becaus e such proceedings are civil in nature

. Id. at 2

(unnumbered). Accordingly, the trial court concluded that Appellant was not

entitled to representation in litigating his petition for writ of habeas corpus

.

We agree with the trial court . Rule 904(D) applies to proceedings under the

PCRA. Here, A ppellant appropriately raised his challenge to the

constitut i o n ality of his SVP designation under SORNA II in a petition for writ

of habeas corpus and, therefore, Rule 904(D) does not automatically apply.

To the extent one could argue tha t the rule should apply to challenges to the

sex

- offender registration requirements

, Appellant makes no such argument

on appeal. Moreover, while Appellant’s second issue relates to the validity of

his guilty plea

, he is essentially asking us to enforce , u nder a contract theory,

the 25

- year

- registration

- requirement provision that was ostensibly part of his

plea agreement. See Appellant’s Brief at 23 (“[A]t the time of Appellant’s

June 3, 2013, negotiated guilty plea and sentencing, Appellant entered his

pl ea to the charges with the expectation that he would be classified as a Tier

[II] ... Offender, which would require him to register under SORNA [II] as a

sexual offender for a period of twenty

- five (25) years, which is contractual in

nature.”). This Court h as held that “ a collateral petition to enforce a plea

agreement is regularly treated as outside the ambit of the PCRA and under

the contractual enforcement theory of specific performance.”

Commonwealth v. Snook

, 230 A.3d 438, 444 ( Pa. Super. 2020)

. Therefore,

that aspect of Appellant’s petition for writ of habeas corpus is also not

subsumed by the PCRA, and Rule 904(D) does not automatically apply to

necessitate counsel

. Accordingly, we do not discern any error in the court’s

decision not to appoint counsel in this case.J

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In Appellant’s pro se brief to this Court, he presents the following three

issues for our review , which we reproduce verbatim :

I. Whether the trial court er red in not finding that the

procedural irregularities in this particular case violated the

Appellant’s Fourteenth Amendment Due Process Clause that

guarantees fair notice and enforces the protection against

double jeopardy of the Fifth Amendment under the

incorporation doctrine?

II. Whether the parties to the plea agreement was reasonably

understood to be the terms of the agreement?

III. Whether the RNC [ 5 ] requirements, including his SVP

designation, under Subchapter I, violate the Appellant’s due

process protectio n through an unconstitutional utilization of

irrebuttable presumptions infringing upon his right of

reputation and the protection of double jeopardy under the

incorporation doctrine?

Appellant’s Brief at 9

- 10 (unnecessary capitalization omitted).

We begin by recognizing that, “[o] rdinarily, an appellate court

will review a grant or denial of a petition for writ of habeas corpus for abuse

of discretion

, but for questions of law, our standard of review is de novo

, and

our scope of review is plenary. ” Commonwealth v. Judge , 916 A.2d 511,

521 (Pa. 2007) (citations omitted). “ When an appellant challenges the

constitutionality of a statute, the appellant presents this Court with a question

of law

. ” Commonwealth v. Howe , 842 A.2d 436, 441 ( Pa. Super. 2004)

(citation omitted). “ A statute is presumed to be constitutional and will not be

declared unconstitutional unless it clearly, palpably, and plainly violates the

_________________ __________ ______ ____ _______

5 We believe the acronym “RNC” refers to the registration, notification, and

counseling requirements of SORNA II.J

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constitution

. Thus, the party challenging the constitutionality of a statute has

a heavy burden of persuasion. ” Id. (citation omitted).

Here, Appellant first argues that “procedural irregularities” in his case

violated his due process rights and the prohibition against double jeopardy.

Specifically, he takes issue with the fact that he pled guilty and was sentenced

on June 3, 2013, yet the court thereafter granted the Commonwealth’s

praecipe for a n SVP hearing, and ultimately designated Appellant an SVP

subject to lifetime registration on October 30, 2013. See Appellant’s Brief at

17. According to Appellant, the SVP assessment must be conducted before

sentencing and, therefore, his due process rights and double jeopardy

protections were violated when his assessment took place after his sentencing

in this case. See id. at 18; see also 42 Pa.C.S. § 9799.24(a) (“ Order for

assessment.

-- After conviction but before sentencing, a court shall order an

individual convicted of an offense specified in [ section ] 979 5.1 (relating to

registration) to be assessed by the board. The order for an assessment shall

be sent to the administrative officer of the board within 10 days of the date of

conviction. ”) (emphasis in original). 6 Appellant concludes that this procedural

error renders his SVP designation “void ab initio and not [e]nforceable....”

Appellant’s Brief at 21.

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6 This provision, which is part of SORNA I, has been replaced by nearly

identical language in SORNA II. See 42 Pa.C.S. § 9799.58(a)

. We cite to

SORNA I

, as it was in effect at the time of Appellant’s conviction and

sentencing.J

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-

Relatedly, Appellant contends in his second issue that the

Commonwealth breached his plea agreement by seeking and ultimately

obtaining his designation as an SVP, which subjected him to a lifetime

registration requirement rather than the allegedly bargained

- for registration

requirement of 25 years. Appellant insists that “[t]here was no mention

during the guilty plea colloquy that [he] would have to undergo a[n SVP]

evaluation or that an SVP designation would change his tier and registration

requirements from [25] years to lifetime.” Id. at 23. Consequently

, Appellant

claims that “the plea agreement [was] breached ....” Id. at 28.

Third, Appellant challenges the constitutionality of his SVP designation

under Subchapter I of SORNA II. Specifically, he argues that SORNA II

imposes an “irrebuttable presumption” that SVPs “pose a high risk of engaging

in further offenses even after being released from incarceration.” Id. at 30.

Appellant insists that this presumption “violates due process because it [i]s

not universally true and a reasonable alternative means of ascertaining that

presumed fact is available.” Id. at 30

- 31 (citation omitted); see also In re

J.B.

, 107 A.3d 1, 14

- 15 (Pa. 2014) ( reiterating that “irrebuttable

presumptions are violative of due process where the presumption is deemed

not universally true and a reasonable alternative means of ascertaining that

presumed fact are available” ). Therefore, he concludes that his SVP

designation is unconstitutional.J

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In assessing Appellant’s issues, we have reviewed the briefs of the

parties, the certified record, and the applicable law. 7 We have also analyzed

the thorough opinion of the Honorable Scott O. Mears of the Court of Common

Pleas of Westmoreland County. We conclude that Judge Mears’ well

- reasoned

opinion accurately and completely addresses Appellant’s claims, and we

discern no error in Judge Mears’ conclusion that each of his three issues are

meritless. See TCO at 18

- 25 (rejecting Appellant’s claims that his designation

as an SVP violated his due process rights and protections against double

jeopardy, and/or constituted a breach of his guilty plea); id. at 6

- 18

(discussing the history of sexual

- offender registration requirements and

deeming meritless Appellant’s claims that his SVP designation under SORNA

II is unconstitutional). Accordingly, we adopt Judge Mears’ opinion as our own

and affirm the order denying Appellant’s petition for writ of habeas corpus for

the reasons set forth therein.

Order affirmed.

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7 We note that the Commonwealth treats Appellant’s claims as cognizable

under the P CRA, and insists that we lack jurisdiction to review them because

they are untimely. See Commonwealth’s Brief at 5

- 6. For the reasons set

forth in footnote 1, supra

, we disagree. Nevertheless, no relief is due for the

reasons set forth herein.J

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/16/2022Circulated 08/25/2022 09:20 AM