Com. v. Schmidt, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT E. SCHMIDT :
:
Appellant : No. 638 WDA 2022
Appeal from the Order Entered May 5, 2022
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000372-2013
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 20, 2023
Robert E. Schmidt (Appellant) appeals from the order entered in the
Butler County Court of Common Pleas, denying his serial petition to vacate his
registration requirements as a sexually violent predator (SVP) under the
Pennsylvania Sex Offender Registration and Notification Act1 (SORNA II). On
appeal, Appellant continues to argue the retroactive application of SORNA II
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1 42 Pa.C.S. §§ 9799.10 to 9799.75. The trial court did not construe
Appellant’s petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
9545. See Commonwealth v. Elliott, 249 A.3d 1190, 1193 (Pa. Super.
2021) (challenge to SORNA II, Subchapter I requirements pertains to a
collateral consequence of criminal sentence and does not fall within purview
of the PCRA), appeal denied, 263 A.3d 241 (Pa. 2021).
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violates Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality).2
However, we agree with the trial court that no relief is due under
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020),3 as well as Elliott,
249 A.3d 1190. Thus, we affirm.
I. Prior Procedural History
On August 14, 2013, Appellant entered a negotiated guilty plea to
involuntary deviate sexual intercourse with a child4 (IDSI), for acts committed
sometime between June and July of 2012. On November 7, 2013, the trial
court imposed the agreed-upon sentence of six to 15 years’ imprisonment and
36 months’ probation. In addition, Appellant was found to be an SVP under
the then-in effect SORNA I (discussed infra), and thus ordered to comply with
lifetime registration.5 Notice, 11/27/13, at 1. Appellant did not take any
direct appeal.
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2 See Muniz, 164 A.3d at 1193 (SORNA I’s registration requirements
constituted punishment and their retroactive application violated the
constitutional prohibition against ex post facto laws).
3 See Lacombe, 234 A.3d at 626-27 (Subchapter I of SORNA II does not
constitute criminal punishment, and thus retroactive application does not
violate ex post facto laws).
4 18 Pa.C.S. § 3123(b). The victim was less than one year old.
5 Both the written plea agreement and the sentencing order also included the
handwritten notations, “Tier III SORNA Lifetime Registration” and “Tier III
SORNA Registration,” respectively. See Plea Agreement, 8/14/13; Sentence,
11/7/13, at 2. We note IDSI was classified a “Tier III” offense under SORNA
I, carrying lifetime registration. See 42 Pa.C.S. §§ 9799.14(d)(4),
(Footnote Continued Next Page)
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Almost four years later, on August 9, 2017, Appellant filed a pro se
petition to correct or modify his purportedly illegal sentence. Appellant
averred that because Muniz had ruled SORNA unconstitutional, there was no
authority supporting his present reporting requirements. The trial court
denied this petition on August 18th, and Appellant filed a notice of appeal.
On September 5, 2017, however, Appellant filed a pro se PCRA petition,
and then on September 13th, a pro se motion to modify sentence. Both
reiterated the same Muniz claim. In two separate orders, the trial court
denied both motions, on the ground Appellant’s notice of appeal was pending.
Appellant filed additional notices of appeal from both orders. Ultimately, the
Superior Court quashed all three appeals for Appellant’s failure to file briefs.
See 1233 & 1403 WDA 2017 (consolidated appeals) (order) (Pa. Super. Apr.
10, 2018); 1470 WDA 2017 (order) (Pa. Super. Feb. 12, 2018).
On May 11, 2018, Appellant filed another pro se PCRA petition, arguing
his SVP designation was unconstitutional. The trial court appointed Dennis
McCurdy, Esquire, who has represented Appellant through the present appeal.
Counsel filed an amended PCRA petition, arguing Appellant’s SVP registration
requirements contravened Muniz, as well as the then-in effect Superior Court
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9799.15(a)(3). However, both Appellant’s underlying motion and his
appellate brief aver only that he is subject to SVP registration, and make no
mention of any Tier III registration.
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decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017)
(Butler I),6 rev’d, 226 A.3d 972 (Pa. 2020) (Butler II).
On October 2, 2018, the trial court issued an order, staying the issue of
Appellant’s SVP designation pending the Pennsylvania Supreme Court’s
decision in Butler II. Meanwhile, we note:
[I]n response to Muniz and Butler I, the Pennsylvania General
Assembly amended SORNA I by enacting [SORNA II].
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
expired. . . .
Elliott, 249 A.3d at 1193 (paragraph break added). Appellant, who
committed his offenses in June or July of 2012, is subject to Subchapter I.
His SVP designation carries a lifetime registration requirement under
Subchapter I of SORNA II. See 42 Pa.C.S. § 9799.55(b)(3).
On August 7, 2019 — while the trial court’s December 2, 2018, stay
order was apparently still in effect — Appellant filed a counseled motion for
reconsideration of sentence, again relying on Muniz and arguing the
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6 See Butler I, 173 A.3d at 1217-18 (SVP designations and registration
requirements were “increased criminal punishment” and thus violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 570 U.S. 99 (2013)).
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retroactive application of SORNA was an ex post facto violation.7 On
December 16th, Counsel filed a memorandum of law, citing both Muniz and
the Superior Court’s decision in Butler I. On January 3, 2020, the trial court
issued a second stay order, holding a decision on Appellant’s claims pending
decisions by the Pennsylvania Supreme Court.
On March 26, 2020, the Supreme Court decided Butler II, reversing
the Superior Court’s decision. By this time, SORNA II was in effect, and the
Butler II Court determined the Subchapter H registration requirements,
applicable to SVPs, did not constitute criminal punishment, and thus
Apprendi and Alleyne were not implicated. Butler II, 226 A.3d at 993.
Additionally, on July 21, 2020, the Pennsylvania Supreme Court decided
Lacombe, which upheld the constitutionality of Subchapter I. The Court held
Subchapter I did not constitute criminal punishment, and thus its retroactive
application did not violate ex post facto laws or Muniz. See Lacombe, 234
A.3d at 626-27.
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7 A September 25, 2019, entry on the trial docket is entitled, “Penalty
Satisfied.” However, there is no corresponding document in the certified
record explaining this notation.
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On December 2, 2020, the trial court denied Appellant’s August 7, 2019,
motion for reconsideration of sentence. In support, the court cited Butler II8
and Lacombe.
II. Instant Petitions to Vacate Illegal Sentence
Despite the trial court’s December 2, 2020, order, Appellant’s counsel
filed the underlying motion to vacate an illegal sentence on November 10,
2021, and an amended motion on February 9, 2022. Neither motion
addressed Lacombe, but again argued that Muniz found “the older registry
laws . . . unconstitutional” and thus any application of the amended SORNA
provisions would violate the ex post facto clauses of the state and federal
constitutions. See Appellant’s Motion to Vacate Illegal Sentence, 11/10/21,
at 1.
The trial court denied both motions on May 5, 2022. Appellant filed a
timely notice of appeal and complied with the court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
III. Appellant’s Argument
On appeal, Appellant presents one issue for our review:
Whether the Court properly applied the caselaw to the
instant case as the matter was analyzed under . . . Butler and its
progeny rather than through a thorough review of the statutory
history of SORNA in all its configurations prior and subsequent and
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8 We note, however, that Butler II would not apply to Appellant’s case, as,
again, that decision addressed Subchapter H, while Appellant’s SVP
registration requirements arose from Subchapter I.
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its statutory exceptions wherein. [Appellant] was sentenced in a
period that was exempted statutorily and regardless of the
determination of it not being a criminal sentence, it is a sentence,
and is applied ex post facto creating an illegal sentence that must
be vacated under the law existing at the time of his sentencing.
Appellant’s Brief at viii.
We observe Appellant again fails to make any reference to the Lacombe
decision, which was the basis for the trial court’s decision, nor even any
mention of the Subchapter H and Subchapter I designations of SORNA II.
Instead, Appellant continues to argue: (1) Muniz held that retroactive
application of the SORNA registration requirements violated the ex post facto
clause; and (2) because he committed his offenses before “all Megan’s Law
and SORNA requirements, [he] is to be relieved of all penalties . . . not in
place at the commission of his crime[.]” Appellant’s Brief at 4-5. Appellant
also cites the Butler I decision, which held the SORNA I’s SVP designations
were unconstitutional. Appellant’s Brief at 5. In a footnote, he acknowledges
merely that Butler I was overruled, but presents no further discussion on the
Butler II holding. See id. at 6 n.2. We conclude no relief is due.
IV. Analysis
Appellant’s challenge to his SVP designation and registration
requirements presents a challenge to the legality of his sentence. See
Commonwealth v. Prieto, 206 A.3d 529, 534 (Pa. Super. 2019). “Issues
relating to the legality of a sentence are questions of law. Our standard of
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review over such questions is de novo and our scope of review is plenary.”
Id. (citation omitted).
We determine Appellant’s claim falls squarely under this Court’s decision
in Elliott, 249 A.3d 1190. In that case, the defendant was found to be an
SVP in 2012 under then-in effect SORNA I. Id. at 1191. In 2018, the
defendant filed a petition, arguing that because Muniz found SORNA was
unconstitutional under the ex post facto clauses, his SVP designation was
likewise unconstitutional and should be vacated. Id. at 1191-92.
On appeal,9 this Court rejected this ex post facto argument. Elliott,
249 A.3d at 1194. We reasoned:
[The defendant] fails to acknowledge the Court’s holding in
Lacombe that Subchapter I’s [registration] requirements do not
constitute criminal punishment. Lacombe, 234 A.3d at 626.
Additionally, in Butler II, our Supreme Court determined that
the . . . requirements applicable to SVPs under Subchapter H are
non-punitive[.]
* * *
While here, [the defendant] was deemed an SVP under
Subchapter I, this Court has observed that “Subchapter I contains
less stringent reporting requirements than Subchapter H . . . .”
Commonwealth v. Alston, . . . 212 A.3d 526, 529 (Pa. Super.
2019). Because Subchapter I’s [registration] requirements
applicable to SVPs are less burdensome than are Subchapter H’s
requirements for SVPs, it must be the case that Subchapter I’s
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9 The defendant had framed his motion as a PCRA petition, and the trial court
dismissed it as untimely under the PCRA filing requirements. Elliott, 249 A.3d
at 1191-92. On appeal, this Court found error in the trial court’s construing
the motion under the PCRA, but ultimately denied relief on the merits, as we
discuss infra. See id. at 1193-94.
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[registration] requirements for SVPs also do not constitute
criminal punishment, given our Supreme Court’s decision in
Butler II. Thus, we deem meritless [the defendant’s] argument
that his [registration] requirements are punitive and violative of
the ex post facto clause.
Id. at 1194.
Appellant’s present argument is identical to the one presented in Elliott.
We apply the Elliott Court’s reasoning here, and conclude no relief is due.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court denying
Appellant’s motion for reconsideration of sentence.
Order affirmed.
Judge Nichols joins the Memorandum.
Judge Kunselman Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2023
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