Com. v. Jacobs, M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
MICHAEL PAUL JACOBS
Appellant : 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 Violent
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. His 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 time (“SORNA I”).
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Notably, during the 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 registration 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. The Commonwealth
thereafter filed a praecipe for an SVP hearing, which was held on November
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 filed 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),! and Commonwealth v. Butler, 173 A.3d 1212(Pa. Super. 2017) (holding that the statutory 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.”).
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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)).2 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 _ registration
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 found beyond 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 doubt.” Id. at
490.
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expired. Appellant is now subject to the SVP provisions under Subchapter I
of SORNA II.
On August 11, 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 petition for writ of habeas corpus, at
which Appellant acted pro se.* On January 12, 2022, the court issued an order
and opinion denying Appellant’s petition for writ of habeas corpus.
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 responded 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).
The 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) (declining “to find the PCRA, 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 untimely PCRA petition”). Id. The court also
(Footnote Continued Next Page)
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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 rationale
set forth in its January 12, 2022 opinion that accompanied its order denying
Appellant’s petition.
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 because 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, Appellant appropriately raised his challenge to the
constitutionality 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 that 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, under 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
plea 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 has 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.
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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 erred 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 RNCI°] requirements, including his SVP
designation, under Subchapter I, violate the Appellant’s due
process protection 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
> We believe the acronym “RNC” refers to the registration, notification, and
counseling requirements of SORNA II.
-6-
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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 an 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] 9795.1 (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).© Appellant concludes that this procedural
error renders his SVP designation “void ab initio and not [e]|nforceable....”
Appellant’s Brief at 21.
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.
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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
“a
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.
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In assessing Appellant’s issues, we have reviewed the briefs of the
parties, the certified record, and the applicable law.’ 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.
”? We note that the Commonwealth treats Appellant’s claims as cognizable
under the PCRA, 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.
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Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
Date: 09/16/2022
-10-
Circulated 08/25/2022 09:20 AM
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
v. }
) No. 2122 C 201]
)
MICHAEL PAUL JACOBS )
OPINION AND ORDER
AND NOW, to wit, this ff" day of January, 2022, after review and consideration
of the Defendant’s Petition for Writ of Habeas Corpus, filed on August 11, 2021, an
evidentiary hearing held on October 14, 2021, and the Defendant’s Memorandum of Law
in Support of the Petition for Writ of Habeas Corpus filed on October 26, 2021, the Court
issucs this Opinion and Order, setting forth as follows:'
OPINION
I. FACTUAL AND PROCEDURAL HISTORY:
The Defendant was charged by Criminal Information on July 14, 2011, with
Statutory Sexual Assault, [8 Pa.C.S.A. §3122.1,a second-degree felony; Unlawful
Contact with a Minor, 18 Pa.C.S.A. §6318(a)(1), a second-degree felony; and Corruption
of Minors, 18 Pa.C.S.A. §6301(a)(1), a first-degree misdemeanor. The charges were
filed after he admitted to police that he had engaged in sexual relations with a fourtcen-
year-old girl in January of 2010, when he was eighteen. years old. On June 3, 2013, the
' By Order of Court, dated October 14, 2021, the Court ordered the Defendant to file his brief, in defense of
his Writ, within thirty G0) days, and the. Commonwealth to respond within thirty (30) days thereafier. The
Defendant filed a timely brief. The Commonwealth filed no brief.
1
Defendant entered into a negotiated guilty plea before the Honorable Debra Pezze.*
During the colloquy, with Judge Pezze, Assistant District Attomcy Rebecca Calisti,
Defense Counsel Timothy Dawson, and the Defendant present, the following exchange
took place:
MS. CALISTI: Your Honor, it is going to be 18 to 36 months at Count 1,
state incarceration, costs and fees, defendant is to obtain a SORNA
evaluation and follow any recommended treatment, and registration
requirements. He is to obtain Sex Offenders treatment, no contact direct or
indirect with Megan Hoyle, no unsupervised contact with minors under
the age of 18. Your Honor, Count 2 is no further sentence. And count 3, [
will nolle pros Count 3, Your Honor.
THE COURT: Is this a Tier II with 25 year registration?
MS. CALSITI: Yes, Your Honor.
THE COURT: We have to indicate that on thc court order. And this is
yours and your client's full and complete understanding?
MR. DAWSON: It is, Your Honor.
(Guilty Plea Hr*g Tr., Jun 3, 2013, 3:10 — 4:7.)
After reviewing the terms of the agreement, Judge Pezze asked the defendant if he
understood his trial and appeal rights, what the Commonwealth would have to prove if
his case went to trial, and what the maximum penalty would be if he were convicted, (Id.
at 5: 19-22, 6: 17 — 25, and 7: 1 - 3.) The Defendant responded that he understood, and
that he was pleading guilty to the charges. (Id. at 7: 4 — 7.) The judge accepted the plea
and recommendation. (Sce Id. at 7: 20-24.) In accordance with the negotiated plea, an
Order of Court was entered on June 3, 2013. Judge Pezze found the Defendant to be a
Tier II sex offender and ordered him to be incarcerated for eighteen (18) to thirty-six (36)
months at a state correctional facility, with credit for time served from June 15, 2011.
? The Honorable Rita Hathaway took over the handling this matter upon Judge Pezze’s death in 2016, and
the undersigned took over Judge Hathaway's caseload in 2020.
2
(Sent. Ord. of Ct., Jun. 3, 2013.) On the form order, a box was checked in which Judge
Pezze noted that part of “the sentence is deferred pending Megan’s Law assessment.”
(id.) There was no mention during the guilty plea colloquy that the Defendant would
have to undergo a Sexually Violent Predator (hereinafter referred to as “SVP”) evaluation
or that an SVP designation would change his tier and registration requirement from
twenty five years to lifetime. (Id.) The Defendant filed neither post-trial motions nor an
appeal to the Sentencing Order.
On August 23, 2013, the Commonwealth filed a praecipe requesting that an SVP
hearing be scheduled “in accordance with 42 Pa.C.S.A. §9795.4,” which stated:
Order for Asscssment-—After conviction but before sentencing, a court shall order
an individual convicted of an offense specified in section 9795.1 (relating to
registration) to be assessed by the board. The order for an assessment shall be sent
to the administrator’s office of the board within ten days of the conviction.
(emphasis added).?
42 Pa.C.S.A § 9799.41(Expired Dec. 20, 2012, pursuant to 42 Pa.C.S.A. § 9799.4.)
A two (2) — day SVP hearing took place on November 20, 2013 and February 7,
2014, before the Honorable Gary Caruso. By Order of Court, dated February 7, 2013, the
Defendant was found to be a Tier IT] sexually violent predator subject to lifetime
registration requirements. (Ord. of Ct., Feb. 7, 2013.) The Defendant did not file an
appeal.
On. October 2, 2017, the Defendant filed a pro se Petition pursuant to the Post
Conviction Collateral Relief Act (hereinafter referred to as “PCRAY”), in which he
* On the praecipe, the ADA cited the wrong slatutary authority for requestiag an SVP hearing, 42 Pa.C.S.A.
§9795.4 expired December 20, 2012, pursuant to 42 Pa.C.S.A. §9799.41, and was deemed unconstitutional
by Commonwealth v. Neiman, 83 A.3d 603 (Pa. 2013) and Commonwealth v. Derhammer, 173 A.3d 723{Pa.2017). The. appropriate statutory authority for requesting an assessment at the time of the Defendant’s
conviction was'42 Pa.C.S.A §9799.24. The error ia irrelevant as the language of beth statutory provisions is
the same.
3
challenged the legality of his sentence. Timothy Andrews, Esq., was appointed as PCRA
counsel. Attorney Andrews filed an amended PCRA Petition on January 21, 2018, in
which he argued that the Defendant’s designation as an SVP was unconstitutional in light
of the Supreme Court holding in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)
(Amend. PCRA Pet., Jan. 24, 2018, 95.) The Court did not address the merits of the
Defendant's argument. Instead, it dismissed the Defendant's PCRA petition in an
Opinion and Order dated Junc 22, 2018, finding that it did not have jurisdiction to
address the Defendant’s patently untimely petition.’ (Opin. and Ord. of Ct., Jun. 22,
2018.) The Defendant, through his newly-appointed counsel, James Robinson, Esq.,
appealed the Court’s dismissal of his PCRA petition on June 29, 2018.
'n his Concise Statement, the Defendant alleged that the trial court abused its
discretion in dismissing his petition. as “both [Sex Offender Registration and Notification
Act, 42 Pa.C.8. §9799.10-9799.41, hereinafter referred to as] SORNA and the sentencing
mechanism pertaining to scxually violent. predators have been declared unconstitutional
pursuant to Commonwealth v Muniz, 164 A.3d 1189 (Pa.2017) and Commonwealth v.
Butier (Butler [), 173 A.3d 1212 (Pa.Super. 2017) (Defs Con. Stmt. of Mat.*s Comp. of
on App., Jul. 20, 2018, 12.) The Defendant further argued that because Muniz prohibits
the application of SORNA, the previous versions of Megan’s Law I] cannot be applied.
[S]ince Muniz prohibits the application of the SORNA provisions, the
Defendant maintains that the previous versions of Megan’s Law cannot. be
applied, because when SORNA was passed, it included the Sunset
provision, which provided for the expiration of the prior registration
provisions under Megan’s Law II on the date of SORNA’s effective date.
4 Despite. the fact. that Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), created a substantive “new
constitutional right,” as defined in the exceptions to Lhe PCRA timeliness restrictions, 42 Pa.C.S.A.
$9545(b)(1 Gil), it was not held to apply retroactively. See Commonwealth v. Murphy, 180 A.3d 402(Pa.Super. 2018). For that reason, the Court found that the Defendant kad not overcome the timeliness
barrier.
See 42 Pa.C.S.A. §9799.41. Being that the previous Megan's Law
requirements expired on the effective date of the SORNA statute, they
cannot be applied to the Defendant’s sentence merely because of the
determination that SORNA was unconstitutional.
(Id at $14.) On May 30, 2019, the Superior Court. affirmed the trial court’s dismissal of
the Defendant’s PCRA petition, finding that the Pennsylvania Supreme Court had not
heid that Muniz applicd retroactively, a requirement for overcoming the stringent
timeliness restrictions. On December 31, 2019, the Supreme Court denied the
Defendant's Petition for Allowance of Appeal.
On August 16, 2021, the Defendant filed a pro se Petition for Writ of Habeas
Corpus, in which he raised the following issues:
Whether the invalidation of Megan's Law IfI (the law in cffect at the time of
his offense} by Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), removed
the statutory authority for his conviction and SVP designation, thus rendering
his designation as an SVP is unconstitutional;
Whether the registration, notification, and counseling (hereinafter referred to
as “RNC”) requirements, inchiding his SVP designation, under Subchapter [
of SORNA, violate his due process protection through the unconstitutional
utilization of irrebuttable presumptions infringing upon his constitutional right
of reputation; and
. Whether the court erred in designating him an SVP after he was convicted and
sentenced on the predicate offense, contrary to the express language of
Section 9799.24, which requires an assessment of SVP designation after
conviction but. before sentencing.
Il. DISCUSSION:
A. Jugisdiction of the Court:
The Writ of Habeas Corpus is typically used to determine whether a petitioner is
entitled to immediate release from an unlawful confinement. Commonwealth v. ex rel
Powell v. Rosenberry, 645 A.2d 1328 (Pa.Super. 1994). It is an extraordinary remedy
that is available only after other remedies have becn exhausted or are ineffectual or
nonexistent. Commonwealth v. Dept. of Corrections v. Reese, 774 A.2d 1255 (Pa.Super.
2001). All motions filed after a judgment of sentence is final arc to be construcd as
PCRA petitions. Commonwealth v. Fowler,930 A.2d 586, 591 (Pa. Super. 2007). The
PCRA has subsumed other forms of post-conviction relief, including habeas corpus and
coram. nobis. See Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa.Super. 2013).
However, the Supreme Court of Pennsylvania recently held in Commonwealth v.
Lacombe, 234 A.3d 602 (Pa. 2020) that neither the PCRA, nor any other procedural
mechanism, is the exclusive method for challenging sexual offender registration statutes.
Lacombe, 234 A3d at 617-18. Because the registration requirements mandated by
SORNA are non-punitive and merely collateral consequences of the criminal sentence, a
challenge to the requirements mandated by Subchapter I of SORNA II] pertains to a
collateral consequence of one’s criminal sentence and does not fall within the purview of
the PCRA.” Commonweaith v Smith, 240 A.3d 654, 658 (Pa.Super. 2020).
“Since the RNC requirements are merely civil collateral consequences of a criminal
conviction, and there are no other methods by which the Defendant may challenge the
registration requirements, they may be challenged by way of a petition for habeas
corpus.” Commonwealth v Elliott, 249 A.3d 1190, 1194 (Pa.Super. 2021).
B. Chronological Lega) History of Pennsylvania’s Statutory Reporting,
Notice and Counseling (RNC) Requirements for Sexual Offenders:
Since Megan’s Law I was first enacted in 1995, the laws imposing reporting,
notification and registration requirements on sex offenders have been the target of
numerous constitutional challenges and statutory amendments.’ Therefore, a brief
recitation of the chronology of Pennsylvania’s sex offender statutes is necessary before
addressing the Defendant's constitutional challenges to his SVP designation and lifetime
RNC requirements. Deemed “constitutionally repugnant,” the provisions of Megan’s
Law I that presumed all sex offenders were sexually violent predators, and placed the
burden of proof on the offender to overcome that presumption, were struck down in
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999) (Williams I). Later that same year,
in a companion case-to Williams I, the Court reviewed Megan Law I's RNC
requirements, and found that their time for reporting (ten years) and distribution of
information to local police were limited in application, and thus, were ncither punitive
nor violative of ex post facto protections.® See Commonwealth v. Gaffney, 773 A.2d 616(Pa. 1999).
To address the challenges raised in Williams | and Gaffney, the General
Assembly enacted Megan’s Law II, 42 Pa.C.S. §§9791-9799.7 (expired), on May 10,
2000. In addition to disposing of the SVP presumption, Megan’s Law II also aitered the
registration requirements for all convicted offenders, regardless of their SVP
classification. Under Megan’s Law II, any offender convicted of a predicate offense,
whether or not he was deemed a Sexually Violent Offender, was required to: (1) register
his current address or intended address with the state police upon release from
incarceration; (2) inform the state police within ten (10) days of a change in residence;
> For Megan's Law I, see Act of Oct. 24, 1995, P.L. 1079, No. 24 (Spec. Sess. No. (as amended 42
Pa.C.S. §§9791-9799.6 (“Megan’s Law [*} The General Assembly reposited Megan's Law in Title 42 of
Pa’s Consolidated Statutes at Subchapter H of the Sentencing Code.
“The ex post facto prohibition forbids the Congress and the States to enact any law which imposes a
punishment for an act which was not punishable at the time it was committed; or imposes additional
punishmeat to that then prescribed.“ Commonwealth v, Morazzoni, 241 A.3d 451 (Pa.Super. 2020)(quoting
Commonwealth y, Rose, 127 A.3d 794,798 (Pa, 2015).
7
(3) register within ten days with a new law enforcement agency after establishing
residence in another state; and (4) attend “at least monthly” counseling sessions ina
program approved by the Board. 42 Pa.C.S. §§9791-9799.7. The law provided for either
a ten (10) - year or lifetime registration requirement based upon the predicate offense. [d.
In 2003, the Supreme Court was asked to determine “whether [Megan’s Law II’s]
RNC requirements, applicable to individuals deemed SV?s, constituted criminal
punishment,” in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2013) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013). See Commonwealth v. Williams, 832 A.2d 962, 964 (Pa. 2004)
(Williams I). To determine whether the RNC requirements were punitive, thus
constituting criminal punishment, the Williams II court applied the Mendoza-Martinez’
two-part test, which requires the following assessment: first, “that the Genera!
Assembly’s “intent was to impose punishment, and, [then] if not, [second] whether the
Statutory scheme [was] nonetheless so punitive cither in purpose or effect as to negate the
legislature’s non-punitive intent.” Williams [, 832 A.2d at 971. After applying the two-
part test, including the seven-factors delineated in the second prong of the test,’ the Court
concluded that the RNC requirements did not violate Apprendi and Alleyne. Id.
By Act 152 of 2004, Megan’s Law III was enacted, making substantive legal
changes to Megan's Law II by, inter alia, amending the Crimes Code to create various
criminal offenses for failing to comply with RNC requirements; directing the creation of
T Kennedy v, Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
* The second part of the Mendoza-Martinez test requires consideration of seven factors: (1) whether the
sanction involves an affirmative disability or restraint: (2) whether it has historically been regarded as
punishineut; (3) whether # comes into play on a finding of scienter; (4) whether its operation will pramote
traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is
already a crime; (6) whether an altcrnative purpose to which it may rationally be connected is assigned to
it, and (7) whether it appears excessive in relation to the alternative purpose assigned. Mendoza-Mariine: i
372 U.S. at 168-69.
8
a searchable computerized database of all registered sexual offenders, amending the
duties of the Sexual Offenders Assessment Board (hereinafter referred to as “SOAB”),
allowing a sentencing court to exempt a lifetime sex offender registrant, or SVP
registrant, from inclusion in the database after twenty (20) years, if certain conditions
were met; establishing mandatory registration and community notification procedures for
SVPs; and requiring registered sex offenders to submit to fingerprinting and being
photographed when registering at approved registration sites.’
On December 20, 2011, the General Assembly enacted SORNA, 42 Pa.C.S.
§§9791-9799.9, in response to the federal Adam Walsh Child Protection and Safety Act
of 2006, Public. Law 109-248, 42 U.S.C. §§16901-16991, which mandates that states
impose on sex offenders certain tier-based registration and notification requirements or
lose federal! funding. To comply with this federal legislation, SORNA provided for the
expiration of Megan’s Law fll, as of December 20, 2012, the effective date of SORNA.
42 Pa.C.8. §9791. Megan’s Law Ii] was struck down in 2013, by the Pennsylvania
Supreme Court in Commonweaith v. Neiman, 84 A.3d 603 (Pa. 2014), on the basis that
its passage violated the single subject rule. Id.SORNA failed to withstand constitutional scrutiny. On June 19, 2017, the
Pennsylvania Supreme Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
found the RNC requirements of SORNA I to be punitive in nature, and held that the
retroactive application of the registration and reporting requirements violated the ex post
facto clauses of the United States and Pennsylvania Constitutions. Id. at 1219-1223.
“SORNA has increased the length of registration, contains mandatory in-person reporting
requirements, and allows for more private information to be displayed on-line.” Id. at
7 18 Pa.C.S. §§9795.1 to 9799.4 (expired Dec. 20, 2012, pursuant to Pa.C.S.A. §9799.41).
9
1215. “SORNA is much more retributive in effect than Megan’s Law II, along with the
fact SORNA's provisions act as deterrents for a number of predicate offenses, all weigh
in favor of finding SORNA punitive.” id. at 1216. In recognizing conflicting evidence
regarding recidivism rates of adult sex offenders, the court did not base its decision on
that aspect of policy consideration; instead finding persuasive appellant’s argument that
“both the state and offenders have. an interest in the finality of sentencing, as well as the
claim that the Pennsylvania Constitution’s special treatment of the night to reputation
justifies greater protections under the Pennsylvania ex post facto clause. Id. at }213.
That same year, in Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017)
(Butler 1), the Superior Court found that a// SORNA registration requirements were
punitive, and therefore, the SVP designation was also unconstitutional as violative of
Apprendi and Alleyne.
In response to Muniz and Butler I, the Legisiature amended SORNA | and
enacted “Act 10” of 2018, Act of Feb. 21, 2018, P.L. 27 (“Act 10”). “Act 10” split
SORNA into two (2) subchapters based upon the date of the offender’s predicate offense.
Revised Subchapter H, which retains many of the provisions of SORNA I, applics to
offenders who committed crimes after the effective date of SORNA | (12/20/12).
Subchapter I, which imposes less onerous requirements, in an attempt to address the
concems raised by Muniz, applies to offenders who committed their offenses after April
22, 1996, but. befare December 20, 2012 (the date of enactment of SORNA JD).
Subchapter [ was designed to ensure that those required to retroactively register under
SORNA would still have to do so, despite the ruling in Muniz. See Commonwealth v.
Mickley. 240 A.3d 957 (Pa. Super. 2020).
10
Butler I was reversed by the Supreme Court in Commonwealth v. Butler (Butler
ID, 226 A.3d 972 (Pa. 2020), where the Court distinguished the RNC requirements of
SVPs from those of non-SVPs, and held that the SVP requirements were non-punitive.
The Court based its decision on the fact that SVPs suffer from a mental abnormality or a
personality disorder that makes them more likely to continue to commit sexually violent
offenses. Butler 11, 226 A.3d at 991. “Since the RNC requirements for an SVP
designation are based upon a mental abnormality or personality disorder and not criminal
intent, the statutory requirements do not constitute criminal punishment.” Id. at 990-991.
Because neither subchapter “H” nor “I,” as applicable to SVPs, were found to be criminal
punishment, Apprendi and Alleyne did not apply.
RNC requirements do not constitute criminal punishment and therefore the
procedure for designating individuals as SVPs under Section 9799.24(e), is not
subject to the requirements of Apprendi and Alleyne and remain constitutionally
permissible.
Id. at 976.!¢
On June 16, 2020, the Supreme Court in Commonwealth v, Torsillieri, 232 A.3d
567 (Pa. 2020), addressed whether the RNC requirements under Revised Subchapter H
violate due process through the utilization of two irrebuttable presumptions: (1) that all
sexual offenders pose high risks of recidivation; and (2) that the ticr-based registration
system of Revised Subchapter H. protects the public from alleged dangers of recidivist
offenders. Id. At 587. Finding that all of the factors'! for an irrebuttable presumption
" Butler LI only concerned the registration provisions of revised Subchapter H applicable ta SVPs.
Therefore, it did not speak to the constitutionality of the tiered registration provisions applicable to non-
SVPs. Commonwealth v. Eswin Rolando Gareja Ispache, 2021 WL 5919095 (Pa.Super, 202 1){slip
Opinion}.
‘' The test far an unconstitutional irrebuttable presumption requires three factors: “(L) the existence of a
presumpton that impacts “an interest protected by the due process clause: (2) a presumption that ‘is not
universally true; and (3) the existence of rcasonable alternatives to ascertain presumed fact.” Torsillieri,
232 A.3d at 586,
41
were met, the trial court concluded that SORNA’s RNC provisions involved an
unconstitutional irrebuttable presumption on its face and as applied to the appellant. Id. at
587. The Supreme Court refused to address the merits of the constitutional challenge
finding that “a review of the trial court’s conclusions clearly reveals that the court's
analysis of each of the three prongs of the irrebuttable presumption doctrine relies heavily
upon the scientific evidence presented by Appellee ... and a remand is necessary to allow
the parties to present additional argument and evidence to address whether a scientific
consensus has developed to overtum the recidivation rates and the effectiveness of the
tier-based system.” [d. at 587-488.
Recently, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), the
Pennsylvania Supreme Court held that the RNC requirements of Subchapter | of SORNA
II do not constitute criminal punishment. In Commonwealth v. Elliott, 249 A.3d 1190(Pa.Super. 2021), the Superior Court cited the holdings in Butler II, and Lacombe in
support of its decision that the RNC requirements of Subchapter I, as applied to those
offenders who committed sexual offenses prior to the effective date of SORNA IL, are not
violative of the ex post facto clause, as the RNC requirements of subchapter | are less
stringent than Subchapter H. Elliott, 249 A.3d at 1194.
Because Subchapter !’s RNC requirements applicable to SVPs are less
burdensome than are subchapter H's requirements for non-SVPs (those offenders
who committed a sexually violent offense on or after December 20, 2012, the
effective date of SORNA MN), it must be the case that Subchapter Ps RNC
requirements for SVPs do not constitute criminal punishment given our decision
in Butler II.
Id. at 1194.
Finally, in Commonwealth v. Morgan, 258 A.3d 1147 (Pa.Super. 2021), the Court
reviewed, as a matter of first impression, the issue of whether Subchapter I’s SVP
12
designation violates the right to reputation as provided in the Pennsylvania Constitution.
Despite finding that the SVP designation and concomitant RNC requirements infringe
upon a defendant’s right to reputation, the Court held that the procedure for determining
SVP status - SOAB assessment and hearing - comports with due process, and therefore, is
constitutional, and does not violate the right to reputation under our Commonwealth's
Constitution. Id, at 1157.
While it is clear that the SVP designation and RNC requirements under SORNA’s
Subchapter ! (Lacombe, Elliott, and Morgan), and SVP designation under Subchapter H
(Butler [[) are constitutional, the requirements for non-SVP offenders remains unclear.
C. Analysis of Defendant's Claims:
1. Whether Defendant’s SVP Designation and
Lifetime Registration Requirements are
Unconstitutional in light of the Neiman Court's
Invalidation of Megan's Law ILE:
Despite the Supreme Court’s decision in Butler I, supra, that the RNC
requirements of SORNA II, as applied to SVPs, are constitutional and do not violate the
ex post facto rule, the Defendant still contends that his SVP designation and lifetime
reporting requirements are illegal. He questions how he can be required to register as an
SVP offender when there was no statutory authority existing at the time of his offenses
under which he could. be required to register, because Megan’s Law HI was declared
unconstitutional and void ab initio by the Neiman Court. Neiman, 84 A.3d at 607. In
support of his contention, he cites Glen-Gery Comp. v. Zoning Hearing Board, 907 A.2d
1033, 1037 (Pa. 2006), in which the Pennsylvania Supreme Court stated that “[i}t is well
established law... a statute held unconstitutional. is considered void in its entirety and
inoperative as if it had no existence from the time of its enactment.” Id. The Defendant's
i3
position is similar to that raised by the Defendant in R.F.M. v. Pennsylvania State Police,
2021 WL 4515355 (Cmwlih. Ct. 2021) (slip opinion), to which the Commonwealth Court
responded:
[A]s to Petitioner’s “Neiman-based” challenge, he essentially argues that
because Megan’s Law III was found to be unconstitutional, no registration
law applied to him when he was sentenced, and therefore, there could be
no subsequent law requiring him to register. Subchapter I belies his
argument ... Subchapter I of SORNA II very clearly applies to those
“required to register with the [PSP] under a former sexual offender
registration law of this Commonwealth on or after April 22, 1996, but
before December 20, 2012, whose period of registration has noi expired.
42 Pa.C.S. §9799,52. Moreover, section 9799.75 clearly addresses the
Neiman decision, stating:
(a)Registration.—Nothing in this subchapter shall be construed to relieve
an individual from the obligation to register with the {PSP} under this
subchapter if the tndividual:
(1) committed a sexually violent offense within. this Commonwealth.
(2) was required to register with the {PSP} under a former sexual offender
registration law of this Commonwealth that was enacted before December
20, 2012, or would have. been required to register with the. {PSP} under
the act of November 24, 2004 (P.L, 1243, No. 152)... but for the decision
by the Pennsylvania Supreme Court in ... Neiman. 42 Pa.C.S.§9799.75.
Id, (citations omitted.)
By Defendant’s own account, and based upon the date of his predicate offenses,
he was subject to registration under Megan’s Law Hl. The invalidation of that law has no
effect on his duty to report, as SORNA [ clearly provides for the application of its RNC
requirements to those individuals who committed sexually violent offenses within this
Commonwealth and who were required, under previous statutes (Megan’s Law II
specifically) to register and report to the PSP. Id, The decision in Neiman does nol
vitiate the sex. offender’s responsibility to report, register and notify, as the General
Assembly intended SORNA [1’s Subchapter I to address the fall-out from Neiman’s
14
invalidation of Megan’s Law III. Id. Accordingly, under Subchapter | of SORNA II,
which applies to those offenders who commitied offenses under Megan's Law III, the
Defendant remains obligated to comply with his ordered lifetime RNC requirements. As
Subchapter I provides the statutory authority under which the Defendant is obligated to
comply and has bcen found to be constitutional and not violate the ex post facto rule (See
Lacombe, 234 A.3d at 626), the Defendant's argument that his reporting requirements arc
illegal fails.
2. Whether the RNC Requirements, including his
SVP Designation, under Subchapter I, Violate
the Defendant’s Due Process Protection through
an Unconstitutional Utilization of Irrebuttabie
Presumptions Infringing upon his Right of
Reputation.
Unlike the U.S. Constitution, the Pennsylvania Constitution specifically protects
the right to reputation as a fundamental right in Article I, Sectiont, which provides:
[ajll men are bom equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
Pa.Const. Art I, §1.
In a recent decision cited by the Defendant in this case, the Pennsylvania Supreme
Court addressed the constitutionality of Revised Subchapter H of SORNA. It considered
whether the Legislature’s use of the irrebuttable presumption that all sexual offenders
pose high nsks of sexual recidivism violates the constitutional right to reputation. See
Commonwealth v. Torsilicri, 232 A.3d 567 (Pa. 2020). After applying the test for an
unconstitutional irrebuttabie presumption,’ the Supreme Court vacated the trial court's
'2 Sec Footnote 10.
15
tuling that Subchapter H was unconstitutional and remanded it for further development of
the record on the constitutional challenge.
Unfortunately, the procedural posture of this case prevents tidy resolution of the matter
by this Court. While Appellee presented a colorable argument. that the General
Assembly's factual presumptions have been undermined by recent scientific studies, we
are unable to affirm the trial court's several conclusions finding Revised Subchapter H
unconstitutional. We note that the evidence of record does not demonstratc a consensus
of scientific cvidence as was present to find a presumption not universally true in J.B,
107 A.3d at 17-19, nor the “clearest proof needed to overturn the General Assembly's
statements that the provisions are not punitive, which we have noted “requires more than
merely showing disagreement among relevant authorities,” Lec, 935 A.2d at 885 ... [T]he
courts of this Commonwealth have the inherent authority as a co-equal branch to
strike legislative acts if they violate the rights protected by our Constitutions. /.2.,
107 A.3d at 14 (citing Nixon v. Com. Dept. of Pub. Welfare, 839 A.2d 277, 286
(Pa. 2003)). we emphasize that all cases are evaluated on the record created in
the individual case. Thus, a court need not ignore new scientific evidence merely
because a litigant in a prior case provided less convincing evidence. Indeed, this
Court will not turn a blind eye to the development of scientific research,
especially where such evidence would demonstrate infringement of constitutional
rights. Nevertheless, we also emphasize that it will be the rare situation where a
court would reevaluate a legislative policy determination, which can only be
justified in a case involving the infringement of constitutional rights and a
consensus of scientific evidence undermining the legislative determination. We
reiterate that while courts are empowered to enforce constitutional rights, they
should remain mindful that “the wisdam of a public policy is one for the
legislature, and the General Assembly's enactments are entitled to a strong
presumption of constitutionality rebuttable only by a demonstration that they
clearly, plainly, and palpably violate constitutional requirements.” Shoul, 173
A.3d at 678.
Commonwealth v. Torsilieri, 232 A.3d 567, 595-96 (Pa. 2020)
The Defendant also cites Commonwealth v. Muhammad, 24) A.3d 1149
(Pa.Super. 2020), in support of his argument that his RNC requirements are legal
because they based upon an irrebuttable presumption. However, like the appellant in
Torsilien, the appellant in Muhammad was not an SVP. She was a Tier | offender, who
committed no acts of a sexual nature. Thus, the Court found that SORNA’s provision that
sexual offenders pose high risks of recidivating was an irrebuttable presumption that
16
clearly, palpably, and plainly violated her constitutional rights to reputation. Id. at 1159.
Neither Torsilieri nor Muhammad addressed the presumption as to an SVP, therefore,
their holdings and discussions are distinguishable and inapposite.
in Commonwealth v. Morgan, 258 A.3d 1147 (Pa.Super. 2021), as a matter of
first impression, the Superior Court addressed whether SVP designations under SORNA
violate the right to reputation
[ijn Pennsylvania, reputation is an interest that is recognized and protected
by our highest state law: our Constitution. Sections I and I of Article I
make explicit reference to “reputation,” providing the basis for this Court
to regard it as a fundamental interest which cannot be abridged without
compliance with constitutional standards of due process and equal
protection. R. v. Commonwealth Dep*t of Pub. Welfare, 636 A.2d 142,
149 (1994).
Morgan, 258 A.3d 1152.
Because Subchapter I directs the Pennsylvania State Police to “develop,
implement and maintain a process which allows members of the public to receive
electronic notification when an individual required to register under Subchapter [ moves
into or out of a user-designated location,” the Court found that the RNC requirements
infringed on the defendant's right of reputation. Id. However, the analysis did not stop
there. Next, the court weighed the infringement of the right against.the interest sought to
be achieved by the government. Id. at 1153. To achieve its dual goals of ensuring public
safety without creating another unconstitutionally punitive scheme, the General
Assembly made a number of material changes to the operation of SORNA II. Id. The
court in Lacombe reviewed those changes, and discussed the stated purpose of
Subchapter | as follows:
The Genera! Assembly declared that the purpose of Subchapter I is to
“[p}rotect the safety and genera! welfare of the people of this
17
Commonwealth by providing for registration, community notification and
access to information regarding sexually violent predators and offenders
who are about. to be released from custody and will live in or near their
neighborhood.” 42 Pa.C.S. §9799.51(b}(1). Such purpose is based on the
General Assembly’s finding that “sexually violent predators and offenders
pose a high risk of engaging in further offenses even after being released
from incarceration or commitments, and protection of the public from this
type of offender is a paramount government interest. “Id. §9799.5 1(a}(2).
Lacombe, 234 A.3d at 625.
Because an SVP is an individual convicted of one or more sexually violent
offenses, whom the Sexual Offender Assessment Board (SOAB) has determined to have
“a mental abnormality or personality disorder that makes the individual likely to engage
in predatory sexually violent offenses,”'* the Morgan Court concluded that the SVP
designations and RNC requirements under Subchapter I are narrowly tailored to its
compelling state purpose of protecting the public from “those who have been found to be
dangerously mentally ill” Morgan, 258 A.3d at 1157. Thus, it was found to be
constitutional.
While the case law supports the Defendant's argument that his SVP designation
infringes on his right to reputation, the government's infringement on his right is justified
to protect the safety and general welfare of the people of this Commonwealth. His
ultimate argument therefore fails.
3. Whether the Defendant's Designation as an SVP
is in Violation of the Express Language of 42
Pa.C.S.A. § 9795.4, and therefore,
Unconstitutional.
At the time of the Defendant's conviction and sentencing on June 3, 2013,
SORNA I was the effective sex offender statute. Under SORNA I, sexual offenses were
42 Pa.S. §9799.58.
18
classified in a three-tiered system, composed of Tiers I, I] and IYI. 42 Pa.C.S.A.
§9799.14. The Defendant's sexual offense of “Statutory Sexual Assault” was deemed a
Tier Uf offense. 42 Pa.C.S.A. §9799,14(c} (1.1). The registration period for such an
offense was twenty five (25) years. 42 Pa.C.S.A. §9799.15(2). The procedure for
assessing whether a convicted sexual offender was a sexually violent predator was sct
forth, in relevant part, at Section 9799.24, which stated:
(a) Order for assessment.—A fer conviction but before sentencing, a court shall order an
individual convicted of an offense specified in §9795.1 (relating to registration) to be
assessed hy the board. The-order for an assessment shall be sent to the administrative
officer of the board within ten days of the conviction...
{d} Submission of report by Board.—The board shall have 90 days from the date of
conviction of the individual to submit a written report containing its assessment lo the
district attorney...
(ec) Hearing —
(1) A hearing to determine whether the individual is a sexually violent predator
shall be scheduled upon the praecipe filed by the district. attorney...
(3) At the hearing prior to sentencing the court shall determine whether the
Commonwealth has proved by clear and convincing evidence that the individual
is a sexually violent predator...
42 Pa.C.$.A. §9799.24.
On June 3, 2013, the Defendant entered his negotiated guilty plea to Statutory
Scxual Assault, the Tier I] predicate offense under SORNA L. During the guilty plea
hearing, the Assistant District. Attomey provided the Court with the terms of the plea
agreement:
MS. CALISTI: Your Honor, it is going to be 18 to 36 months at Count |, state
incarceration, costs and fees, defendant is to obtain a SORNA evaluation and
follow any recommended treatment and registration requirements. He is to obtain
sex offenders treatment, no direct or indirect contact with [the victim], no
unsupervised contact with minors under the age of 18.
(Guilty Plea Hr’g Tr., Jun 3, 2013, 3:10 — 20.)
19
The Court questioned the Assistant District Attorney on the appropriate tier and
commensurate Megan's Law registration period, then asked Defendant’s counsel if his
client’s and his understanding were consistent:
THE COURT: Is this a Tier 2 with 25 year registration?
MS. CALISTI: Yes, your Honor.
THE COURT: We have to indicate that on the order. And this is yours and your
client*s full and complete understanding?
MR.DAWSON: It is, your Honor.
(Id. at 3:4 ~ 4:7.)
In accordance with the Defendant's negotiated plea, Judge Pezze entered an order
sentencing the Defendant at Count 1, the statulory sexual assault count, to 18 months to
36 months incarceration, with credit for time served. (Ord. of Ct., Jun. 3, 2013.) There
was no further sentence at Count 2, the Unlawful Contact with a Minor charge. (Id.)
Count 3, the Corruption of Minors charge, was dismissed. (Id.) Additionally, part of the
sentence was to be deferred pending a Megan's Law Assessment. (Id.) The Defendant
was deemed a Tier I offender and ordered to comply with Megan's Law registration
requirements and provide photo, fingerprint, palm print and DNA samples to the State
Police. (Id.) The Defendant was to have no indirect or direct contact with the victim
and/or unsupervised contact with minors. (Id.) An assessment by the SOAB was
conducted and a report. was forwarded to the District Attomcy’s Office on August 20,
2013. Based upon the SOAB’s findings,'* Attomey Calisti filed a Praecipe on August
‘* Since SOAB reports are confidential and not public record pursuant to Pa.R.Crim.P. 703, the findings
will not be noted herein.
20
23, 2013, in which she requested that a hearing be held to determine whether the
Defendant was an SVP.
The SVP hearing took place before the Honorable Gary Caruso on November 20,
2013 and February 7, 2014. Judge Caruso found the Defendant to be a Tier HH, SVP,
with lifetime registration requirements. '> The Defendant was ordered to serve the
remainder of his June 3, 2013 sentence. (Ord. of Ct., Feb. 7, 2014.) The Defendant filed
neither post-sentence motions nor a direct appeal from his conviction and sentence. He
filed a counseled Amended PCRA petition on January 21, 2018, in which he raised the
constitutionality of his SVP designation; however, the Court refused to consider the
merits, and dismissed his petition as untimely. The Superior Court affirmed the PCRA
court’s dismissal.
The. Defendant contends that the trial court’s acceptance of the negotiated guilty
plea and entry of sentence on June 3, 2013, indicating Tier I] RNC requirements of
twenty five years, precludes Judge Caruso’s later designation of him as a Tier [II SVP
offender and life registrant on February 7, 2014. He believes this additional sentence
from Judge Caruso was illegal, and not in accordance with the negotiated terms of his
plea. As set forth above, SORNA I was the applicable sexual offender statute at the time
of the Defendant's offense, and it provided the appropriate statutary procedure for
sentencing a sexual. offender. See 42 Pa.C.S.A. §9795.4; Commonwealth v. Baird, 856
A.2d 113 (Pa.Super. 2004). Pursuant to §9799.24, the court was required to order an
SVP assessment after conviction, but before sentencing. See 42 Pa.C.S. §9799.24
(emphasis added). This was required because “the court, at the time of sentencing,
'5 The transcript of the November 20, 2013 and February 7, 2014 SVP hearings are no longer available for
review by this Court; however, 3 copy of the SOAB Report and Recommendation, dated August 20, 2013,
is available and supports Judge Caruso's finding thai the Defendant was an SVP.
21
needed to be cognizant of whether the convicted individual [was] classified as a sexual
offender or an SVP so that it could properly inform the offender or SVP... of his
obligations under Megan’s Law, which [differed] depending upon whether the individual
[was] determined to be an offender or SVP.” Baird, 856 A.2d at 117. While the court
was obligated to order the SOAB to perform the SVP assessment, the decision to proceed
with an SVP hearing was solely within the purview of the District Attorney. See 42
Pa.C.S. §9795.4(e)(1).
The Defendant contends that he was sentenced immediately following the Court's
acceptance of his guilty plea, contrary to the procedure required by §9799.24. This is
partly true, but it was noted, with the acknowledgement of the Defendant and his
attorney, that a portion of the sentencing was to be deferred pending the Mcgan’s Law
Assessment. Clearly, it was the intent of the Court to follow the proper procedures under
$9799.24 and for the Defendant.to be further sentenced based upon the outcome of the
SOAB assessment. The mere fact that Judge Pezze, in her Order, set forth the tier and
reporting requirements for the crime to which he pled guilty, and period of incarceration,
does not mean that the Court failed to follow the proper procedure. [t does not provide
the Defendant with a technicality upon which. to vacate his SVP designation. Thus, the
only question that remains to be answered is whether the imposition of the SVP
designation breached the terms of the plea agreement.
Although a piea agreement occurs in a criminal context, it remains
contractual in nature and is to be analyzed under contract-law standards.
Furthermore, disputes over any particular term of a plea agreement must
be resolved by objective. standards, A determination of exactly what
Promises constitute the plea bargain must be based upon the totality of the
surrounding circumstances and involves a case-by-case adjudication...
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995.)
22
Commonwealth v. Farabaugh, 136 A.3d 995 (Pa.Super. 2016.) Whether a particular plea
agreement has been breached depends on what the “parties to the agreement reasonably
understood to be the terms of the agreement.” Commonwealth v. Fruehan, 557 A.2d
1093, 1094 (Pa.Super. 1989). Sex offender registration
obviously has serious and restrictive consequences for the offender,
including prosecution if the requirement is violated. Registration can also
affect the offender’s ability to eam a livelihood, his housing arrangements
and options, and his reputation. In fact, the requircments of registration
are so rigorously enforced, even the occurrence of a natural disaster or
other event requiring evacuation of residences shall not relieve the sexual
offender of the duty to register ... [W]hen a defendant agrees to a guilty
plea, he gives up his constitutional right to a jury trial, to confrontation, to
present witnesscs, to remain silent and to proof beyond a reasonable
doubt. In negotiating a plea that will not require him to register as a sex
offender, the defendant trades a non-trivial panoply of rights in exchange
for his not being subject to a non-trivial restriction. Fundamental fairness
dictates that. this bargain be enforced. Commonwealth v. Hainesworth, 82
A.3d 444 (Pa. 2014).
Farabaugh, 136 A.3d at 1001. Whether a piea agreement has been breached depends on
what the parties to the agreement reasonably understood to be the terms of the agreement.
Id.
The convicted criminal is entitled to the benefit of his bargain through
specific performance of the terms of the plea agreement. Thus, a court
must determine whether an alleged term is part of the parties’ plea
agreement ... If the answer to that inquiry is affirmative, then the
convicted criminal is entitled to specific performance of the term.
Commonwealth v. Moose, 245 A.3d 1121, 1130 (Pa.Super. 2021) (quoting
Comunonwealth v. Commonwealth v Martinez, 147 A.3d 517, 533 (Pa. 2016). The Courts
have made a distinction between punitive and non-punitive registration requirements in
determining what the court must consider before enforcing the terms of the plea
agreement. Moose, 245 A.3d at 1133.
23
While our Supreme Court has held Subchapter H was non-punitive as
applied to SVPs, it has not yet issued a definitive ruling regarding the
constitutionality of the registration requirements as applied to non-SVPs.
Butler II 226 A.3d at 987.
“A petitioner’s negotiated guilty plea precludes subsequent application of a
punitive registration schome because it would effectively alter the petitioner's agreed-
upon sentence...” Moose, 245 A.3d 1133. However, when a registration scheme is not
punitive, such as an SVP designation, it constitutes a collateral consequence of a guilty
plea. See Commonwealth v. Hart, 174 A.3d 660, 667 (Pa.Super.2017). Further, because
non-punitive registration requirements are not criminal punishment, they do not
materially alter a negotiated term. establishing a defendant’s sentence. See Lacombe, 234
A.3d at 606, Under these circumstances, a defendant must demonstrate that
nonregistration, or a specific term of registration, was part of the negotiated plea. Sce
Hainesworth, 82 A.3d at.448. “When a defendant sought to avoid sex offender
registration requirements based on a negotiated plea, courts could only grant relief in
cases where non-registration or a specified period of registration was a term of the
agreement.” Commonwealth v. Nase, 104 A.3d 528, 532-33 (Pa.Super. 2014).
In this case, after considering the circumstances as a whole, it appears that the
requirement to undergo an SVP evaluation and follow the recommendations was a
collateral consequence of the guilty plea. Furthermore, unlike the cases where the
appellate courts found the lesser reporting requirements or non-requirements to be a
bargained-for part of the agrcement, (Farabaugh, Leidig and Moose), there was never any
Tepresentation or indication that the Defendant's 25-year Tier II registration was a limit.
To the contrary, Attorney Calisti mentioned, during her recitation of the terms of the plea,
24
thaf the Defendant would also have to “obtain a SORNA evaluation. and follaw any
recoramendedi treatment and registration requirements.”* (Guilty. Plea Hr’g, Jun. 3, 2013,
3: 10—20.). For these reasons, the Defendant’s argument fails.
TL CONCLUSION:
For the reasons: set forth herein, none of the three (3) issues. raised by the
Defendant in his Petition for Writ of Habeas Corpus have merit. Thus, the Petition is
DENIED.
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
¥.
)
)
)
) No. 2122 C 2011
)
MICHAEL PAUL JACOBS )
ORDER OF COURT
AND NOW, therefore, this 10" day of January, 2022, for the reasons set
forth in the Court’s Opinion, it is hereby ORDERED, ADJUDGED, and
DECREED that the Defendant's Petition for Wril of Habeas Corpus is DENIED.
BY THE COURT:
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