Com. v. Neely, T. ( 2021 )

J-S44027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY EDWARD NEELY :
:
Appellant : No. 782 MDA 2020
Appeal from the PCRA Order Entered March 13, 2020
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000095-2012
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: JANUARY 4, 2021
Appellant Timothy Edward Neely appeals from the order denying his
petition challenging his obligation to register as a sex offender under the
Sexual Offender Registration and Notification Act (SORNA) as an untimely Post
Conviction Relief Act1 (PCRA) petition. Because we conclude that Appellant
failed to properly raise or preserve a challenge to any applicable SORNA
requirement, we affirm.
On March 8, 2012, Appellant pled guilty to involuntary deviate sexual
intercourse, aggravated indecent assault, sexual abuse of children, and
corruption of minors based on allegations of sexual abuse that occurred
between January 1, 2009 and November 12, 2011.2 On April 12, 2012, the
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 3123(a)(7), 3125(a)(7), 6312(d), and 6301(a)(1)(ii),
respectively.
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trial court sentenced Appellant to an aggregate term of twelve to forty years’
imprisonment. The trial court also found that Appellant was a sexually violent
predator (SVP) and ordered him to comply with the registration requirements
under Megan’s Law III.3 Appellant did not take a direct appeal.
On August 9, 2019, Appellant filed a pro se petition challenging his
SORNA registration requirements based on our Supreme Court’s decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). The trial court
regarded Appellant’s filing as a PCRA petition and appointed counsel on
Appellant’s behalf. Appointed counsel subsequently filed an amended petition
arguing that (1) Megan’s Law and SORNA imposed unconstitutional
requirements, such as “requiring convicted sex offenders to register their
home address;” and (2) Appellant could not be classified as an SVP. Am.
PCRA Pet., 12/5/19, at ¶ 9. However, Appellant did not address the
subsequent enactment of SORNA II or any of the post-Muniz decisions by this
Court or our Supreme Court.4
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3 Act 152, or Megan’s Law III, see 2004, Nov. 24, P.L. 1243, No. 152, was in
effect at the time Appellant committed the underlying offenses and at the time
of his guilty plea.
4 We note that, 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
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At the PCRA hearing on March 2, 2020, Appellant argued that his claim
was “a purely legal issue” and that “in light of [Muniz] and its progeny, he
can no longer be required to register under Megan’s Law.” N.T. PCRA Hr’g,
3/2/20, at 29. The PCRA court subsequently dismissed Appellant’s petition as
untimely.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court issued a Rule 1925(a) opinion reiterating
that Appellant’s petition was untimely.5
On appeal, Appellant raises the following issue:
Whether th[e PCRA c]ourt erred in ruling that [Appellant] is not
entitled to relief under the [PCRA] regarding the requirements to
register as a sexually violent predator under [SORNA] where the
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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.
Moreover, in Commonwealth v. Butler, 226 A.3d 972 (Pa. filed March 26,
2020) (Butler II), our Supreme Court held that the registration, notification,
and reporting requirements “applicable to SVPs do not constitute criminal
punishment,” and therefore, the procedural mechanism in Pennsylvania for
designating sex offenders as SVPs set forth in 42 Pa.C.S. § 9799.24 is
constitutional. Butler II, 226 A.3d at 993.
5 While this appeal was pending, our Supreme Court issued a decision in
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020). The Lacombe
Court explicitly rejected the proposition that SORNA claims must be raised in
a timely PCRA petition. See Lacombe, 234 A.3d at 617-18. Therefore,
provided that a petitioner properly preserves a SORNA challenge with the trial
court, we agree that this Court has jurisdiction to consider claims raised
outside of the one-year PCRA time bar. See id.
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same has been ruled unconstitutional by appellate courts of this
Commonwealth?
Appellant’s Brief at 2.6
In his brief, Appellant sets forth the holding in Muniz and asserts that,
although Muniz does not provide an exception to the PCRA time-bar, he
“believes that the instant matter is ripe for consideration as a matter of
unsettled law in this Commonwealth and proffers the within appeal.”
Appellant’s Brief at 4.
Instantly, we agree with Appellant that this matter could be “ripe for
consideration,” because the trial court was not required to consider Appellant’s
petition under the PCRA. See Lacombe, 234 A.3d at 618. However, beyond
his general assertion that Muniz invalidated SORNA I, Appellant does not
explain why he is entitled to relief from any applicable SORNA registration
requirement. As in the trial court, Appellant has failed to raise any specific
challenge to his SORNA registration requirements in this appeal. See
Appellant’s Brief at 3-4; see also Am. PCRA Pet. at ¶ 9. Moreover, Appellant
has not developed any arguments addressing the subsequent enactment of
SORNA II or any of the post-Muniz decisions.
Therefore, we conclude that Appellant has failed to preserve or present
any claims for this Court to review. See Commonwealth v. Cosby, 224 A.3d
372 (Pa. Super. 2019) (finding that the appellant waived his SORNA claim by
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6 The Commonwealth responds that the PCRA court properly dismissed
Appellant’s petition as untimely. See Commonwealth’s Brief at 7.
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failing to “provide any discussion, whatsoever, concerning the alterations
made by the General Assembly in crafting SORNA II in response to Muniz”
and Commonwealth v. Butler, 173 A.3d 1212, 1218 (Pa. Super. 2017)
(Butler I) and holding that such an omission is “fatal under Rule 2119, as the
discussion of such of such changes is critical to any pertinent analysis of
whether SORNA II’s SVP provisions are punitive and, thus, subject to state
and federal prohibitions of ex post facto laws”), appeal granted in part, 236
A.3d 1045 (Pa. 2020); see also Pa.R.A.P. 2119(a). Accordingly, Appellant is
not entitled to relief. See Cosby, 224 A.3d at 372.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2021
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