Com. v. King, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSIE KING :
:
Appellant : 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-Martinez7 framework 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 post-
conviction 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.
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