Com. v. Barger, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 KARL BARGER :
:
Appellant : No. 440 WDA 2022
Appeal from the Judgment of Sentence Entered January 31, 2020
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0002109-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 25, 2023
Robert Karl Barger appeals from the judgment of sentence entered
following his guilty plea to failure to comply with registration requirements of
Subchapter I of the Sex Offenders Registration and Notification Act
(“SORNA”). 18 Pa.C.S.A. § 4915.2(a)(1). Barger’s counsel filed in this Court
an Anders1 brief and a petition to withdraw as counsel. We grant counsel’s
petition to withdraw and affirm the judgment of sentence.
In January 2006, Barger pled guilty to indecent assault of person less
than 16 years of age, indecent exposure, and unlawful contact with a minor.2
He committed the offenses in 2005. Following his conviction, Barger was
required to comply with the registration requirements of Megan’s Law III, 42
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1 Anders v. California, 386 U.S. 738 (1967).
2 18 Pa.C.S.A. §§ 3126(a)(8), 3127(a), and 6318(a)(1), respectively.
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Pa.C.S.A. § 9795.1(b)(3) (expired Dec. 20, 2012), which was the current law
requiring individuals convicted of certain offenses to register as sexual
offenders.3
In March 2019, the police filed a criminal complaint charging Barger with
one count of failure to comply with registration requirements of Subchapter I
of SORNA (“Subchapter I”) for failure to timely register with the Pennsylvania
State Police from January 4, 2019 to January 13, 2019. Barger entered a
negotiated guilty plea and was sentenced to four to eight days’ incarceration
with credit for time served. Barger filed a timely appeal.
Before we assess the substance of the Anders brief, we must first
determine whether counsel’s request to withdraw meets certain procedural
requirements. See Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). An Anders brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
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3 The court found Barger to be a sexually violent predator (“SVP”). See
Commonwealth v. Barger, Nos. 503 & 504 WDA 2021, 2022 WL 499834,
at *1 (Pa.Super. filed Feb. 18, 2022).
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Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel must also provide a copy of the Anders brief to the client, and
a letter that advises the client of the right to “(1) retain new counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any points that the
appellant deems worthy of the court’s attention in addition to the points raised
by counsel in the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877,
880 (Pa.Super. 2014) (quoting Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007) (alteration omitted)). If counsel has satisfied these
requirements, we then conduct “a full examination” of the record “to decide
whether the case is wholly frivolous.” Commonwealth v. Dempster, 187
A.3d 266, 271 (Pa.Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).
Here, in the Anders brief, counsel states he reviewed the record and
summarizes the history and facts of the case. He refers to matters in the
record arguably supporting the appeal and explains his reasons for concluding
the issue was wholly frivolous. Counsel supplied Barger with a copy of the
Anders brief and petition to withdraw and advised him of his right to retain
new counsel or to proceed pro se. Counsel complied with the technical
requirements of Anders and Santiago. We will therefore address the issue
raised by counsel and review Barger’s pro se response.
In the Anders brief, Barger’s counsel lists the following issue: “Did the
Court err in applying SORNA registration requirements for a conviction of a
sexually violent offense that was committed prior to the enactment of
SORNA?” Anders Br. at 5. Counsel notes that the sole contention is that
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pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), it was
unconstitutional to apply SORNA registration requirements to Barger for
crimes that pre-dated SORNA’s enactment. Counsel points out that the
Pennsylvania Supreme Court addressed this argument in Commonwealth v.
Lacombe, 234 A.3d 602 (Pa. 2020), wherein it recognized that Subchapter I
“served as the mechanism for retroactive enforcement of SORNA for sex
offenses that occurred between April 22, 1996 and December 20, 2012,” and
held that Subchapter I did not impose criminal punishment and therefore its
retroactive application did not violate the Ex Post Facto Clause. Id. at 8.
Counsel states that Barger’s conviction that triggered registration
occurred in 2006 and therefore Subchapter I applied, and he failed to register
in January 2019, after Subchapter I was enacted. Counsel therefore concludes
that LaCombe’s analysis applies and application of Subchapter I to Barger
does not violate the Ex Post Facto Clause.
Barger filed a pro se response to the Anders brief. He argues application
of Subchapter I to a pre-SORNA crime is unconstitutional, as it violates the Ex
Post Facto and Due Process Clauses of the United States Constitution and
violated his right to a good reputation under the Pennsylvania Constitution.
He focuses on the LaCombe Court’s discussion of one of the ex post facto
factors, wherein it found the provisions of Subchapter I were historically
considered punishment. He claims that LaCombe is a “guide[]post,” and
should not be followed because the legislative intent of Subchapter I was to
impose criminal punishment. See Barger’s Pro Se Response at 7. He argues
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he is being punished twice for his underlying crime. He further claims it is
cruel and unusual punishment to force him to register because the registration
is public shaming and similar to a probation and parole sentence. He also
argues that Megan’s Law III, under which he originally was required to
register, was found to be unconstitutional in Commonwealth v. Neiman, 84
A.3d 603, 615 (Pa. 2013). He argues because Neiman found Megan’s Law III
to be void, his duty to register never existed. He argues the General Assembly
cannot revive what did not exist. He claims he was not put on notice that it
would be a crime to fail to register.
We agree with counsel that Barger’s ex post facto claim is frivolous. In
LaCombe, the Pennsylvania Supreme Court addressed the constitutionality
of Subchapter I, which was enacted in 2018 and applies to defendants, like
Barger, who committed the underlying crime between 1996 and 2012.
LaCombe, 234 A.3d at 615; see 42 Pa.C.S.A. §§ 9799.52, 9799.54, 9799.55.
The Court found the General Assembly’s intent was to enact a civil scheme
and then applied the Mendoza-Martinez4 factors to determine whether the
law had a punitive effect. LaCombe, 234 A.3d at 618. As Barger points out,
in discussing the second factor, whether Subchapter I’s requirements have
historically been regarded as punishment, the Court found the requirements
were “akin” to public shaming and to probation and found the factor weighed
in favor of finding Subchapter I punitive. Id. at 623. However, when the Court
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4 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
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balanced all factors, it found Subchapter I was non-punitive, reasoning that it
found three of the five factors weighed in favor of finding Subchapter I
nonpunitive, and noting it “g[a]ve little weight to the fact that Subchapter I
promotes the traditional aims of punishment and g[a]ve significant weight to
the fact Subchapter I is narrowly tailored to its nonpunitive purpose of
protecting the public.” Id. at 626. It concluded that, because it had “not found
the requisite ‘clearest proof’ Subchapter I is punitive, [it] may not ‘override
legislative intent and transform what has been denominated a civil remedy
into a criminal penalty[.]’” Id. (citation omitted).
Here, Barger was convicted in 2006 for a crime he committed in 2005.
He failed to register in 2019, after the enactment of Subchapter I. Therefore,
like the defendants in LaCombe, Subchapter I applied to Barger and, when
he failed to appear for his registration, he could be found criminally liable for
the failure.
We reject Barger’s claim based on Neiman as frivolous. In Neiman,
the Pennsylvania Supreme Court found Megan’s Law III unconstitutional
because it violated the single-subject rule of the Pennsylvania Constitution.
84 A.3d at 605. However, Subchapter I provides that “[n]othing in this
subchapter shall be construed to relieve an individual from the obligation to
register with the Pennsylvania State Police under this subchapter if the
individual . . . (1) committed a sexually violent offense within this
Commonwealth . . . and (2) . . . would have been required to register with the
Pennsylvania State Police under [Megan’s Law III] . . . but for the decision by
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the Pennsylvania Supreme Court in Commonwealth v. Neiman, 84 A.3d 603(Pa. 2013).” 42 Pa.C.S.A. § 9799.75(a)(1),(2) (footnote omitted).5
Moreover, we conclude that Barger’s claims based on his claim
Subchapter I violated his right to reputation and constituted cruel and unusual
punishment, are frivolous. In Commonwealth v. Morgan, this Court held
that the SVP provisions of Subchapter I did not violate the constitutional right
to reputation. 258 A.3d 1147, 1157 (Pa.Super. 2021). Further, because in
LaCombe the Pennsylvania Supreme Court found Subchapter I to be non-
punitive, it cannot constitute cruel and unusual punishment. See
Commonwealth v. Lankford, 164 A.3d 1250, 1252 (Pa.Super. 2017)
(discussing the prohibition against cruel and unusual punishment and pointing
out it “forbids only extreme sentences that are grossly disproportionate to the
crime” (emphasis omitted)).
We have reviewed the record and have not found any non-frivolous
claims for our review.
Judgment of sentence affirmed. Petition to withdraw granted.
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5In issuing its decision in Neiman, the Supreme Court held its decision for
90 days, to allow the General Assembly “to consider appropriate remedial
measures.” 84 A.3d at 616. Within the 90 days, the General Assembly
amended SORNA to provide that it would apply to persons required to register
with the state police at any time before SORNA’s effective date.
Commonwealth v. Derhammer, 173 A.3d 723, 726 (Pa. 2017).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2023
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