J-A19023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL P. MCMANUS,                         :
                                               :
                       Appellant.              :   No. 267 EDA 2019


             Appeal from the Order Entered, December 21, 2018,
                in the Court of Common Pleas of Bucks County,
             Criminal Division at No(s): CP-09-CR-0005883-2009.


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                              Filed: August 27, 2020

        Daniel P. McManus appeals from the order treating his Petition to

Terminate Registration Requirements of SORNA II as a petition filed pursuant

to the Post Conviction Relief Act (“PCRA”),1 and denying relief because the

petition was untimely. While we agree that McManus could seek such relief

outside the PCRA, his claim fails given our Supreme Court’s recent decision in

Commonwealth v. Lacombe, ___ A.3d ___, 2020 WL _______ (35 & 64

MAP 2018) (Pa. 2020) (filed July 21, 2020). Thus, we affirm.

        On November 9, 2009, McManus entered a guilty plea to endangering

the welfare of a child, indecent assault of person less than 13 years of age,


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1   42 Pa.C.S.A. §§ 9541-9546.


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* Former Justice specially assigned to the Superior Court.
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indecent assault of person less than 16 years if age, and corruption of minors,

after he confessed to molesting his adopted daughter, then 17 years old, over

the course of almost ten years. The trial court deferred sentencing for the

completion of an evaluation by the Pennsylvania Sexual Offenders Assessment

Board (SOAB”).         On December 20, 2010, this Court determined that

[McManus] met the criteria to be considered a sexually violent predator

(“SVP”) and sentenced him to a term of incarceration of one year less one day

to two years less one day plus a consecutive five-year probationary term.

Pursuant to Megan’s Law III,2 McManus was required to register as a sex

offender for the duration of his lifetime. McManus did not file a direct appeal;

therefore, his judgment of sentence became final on January 10, 2011.


        The PCRA court detailed McManus’ first attempt to obtain post-

conviction relief as follows:

             On February 2, 2018, more than seven years after his
          judgment of sentence became final, [McManus] filed a
          “Motion to Bar the Applicability of Sex Offender Registration
          and/or Petition for Writ of Habeas Corpus,” which sought to
          bar any requirement that he register as a sexual offender
          based on the Pennsylvania Supreme Court’s decision in
          (Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)]
          and the Pennsylvania Superior Court decision in
          [Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
          2017)]. On March 8, 2018, the Commonwealth filed a
          response in opposition to [McManus’] motion, contending
          that the motion should be treated as untimely under the


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2   42 Pa.C.S.A. §§ 9791-9799.9 (expired Dec. 20. 2012).


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          [PCRA], and contesting this Court’s jurisdiction to rule on
          the merits of [McManus’] motion.

              On March 14, 2018, [the PCRA court] issued a Notice of
          Intent to Dismiss [McManus’ motion] pursuant to
          Pennsylvania Rule of Criminal Procedure 907, in which [the
          court] concluded that the motion was properly subsumed
          under the PCRA [and, therefore, untimely filed]. On May 4,
          2018, [McManus] filed an untimely response to the Notice
          of Intent to Dismiss, and on May 21, 2018, [the PCRA court]
          entered an Order dismissing [McManus’] motion.

            [McManus] did not timely appeal from [the PCRA court’s]
          Order of May [21,] 2018. Rather he filed a “Motion for 30
          day Extension of Time to File Appeal” on July 3, 2018. On
          August 8, 2018, [the PCRA court] ordered the
          Commonwealth to respond to [McManus’] motion and on
          August 14, 2018, the Commonwealth filed its answer in
          opposition to the motion. [The PCRA court] subsequently
          denied [McManus’] Motion for Extension of Time on
          September 4, 2018.

PCRA Court Opinion, 3/12 /19, at 5-6.3

       The PCRA court further summarized the procedural history regarding

the motion at issue in this appeal:

             On October 3, 2018, [McManus] filed a “Petition to
          Terminate Registration and Notification Requirements of
          SORNA II.”      On October 15, 2018, [the PCRA court]
          scheduled a hearing on [McManus’] petition and ordered
          that the Commonwealth file a response.                   The
          Commonwealth filed an “Answer and Memorandum of Law
          in Opposition to [McManus’] Petition” on November 5, 2018.
          After hearing argument on November 16, 2018, this Court
          ordered that both parties file responsive briefs by November
          30, 2018.      Upon consideration of the Commonwealth’s
          Supplemental Memorandum of Law, and [McManus’] Reply
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3We note that in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020), our
Supreme Court reversed this Court, finding that an SVP determination under
SORNA is not punishment and, therefore, not unconstitutional.


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          to the Commonwealth’s Answer and Memorandum of Law,
          [the PCRA court] denied [McManus’ petition] on December
          2[1], 2018.

Id. at 6. This timely appeal followed. Both McManus and the PCRA court have

complied with Pa.R.A.P. 1925.

       McManus now raises the following issues:

          I.     Whether the [PCRA] court erred in characterizing the
                 Petition to Terminate Registration Requirements of
                 SORNA II as a [PCRA petition], and in dismissing the
                 same as untimely?

          II.    Whether     the     retroactive   application    of  the
                 registration, notification and verification requirements
                 of SORNA II, to persons whose offenses occurred prior
                 to the statute’s effective date, violates the ex post
                 facto clauses of the Pennsylvania and United States
                 Constitutions?

McManus’ Brief at 3.4

       This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(citations omitted).




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4See U.S. Const. art. 1, § 9; § 10 (providing federal prohibition against ex
post facto laws); Pa. Const., Article I, § 17 (providing state prohibition against
ex post facto laws).


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       In his first issue, McManus asserts that the PCRA court erred in

dismissing the petition at issue as an untimely PCRA petition. According to

McManus, because “[t]he Pennsylvania Supreme Court has not yet issued a

decision declaring the registration and notification requirements of Subchapter

I of SORNA II to be punitive,” this Court’s “pre-Muniz holdings that lower

courts have jurisdiction to decide the merits of challenges to retroactive

application of Subchapter I” permit his filing outside of the PCRA. McManus’

Brief at 9; see id., at 11 (citing Commonwealth v. Bundy, 96 A.3d 390 (Pa.

Super. 2014), Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super.

2014), and Commonwealth v. Price, 876 A.2d 988, 992 (Pa. Super. 2005)).

       Most recently, our Supreme Court in Lacombe, supra, addressed

Lacombe’s challenge as to whether the PCRA is the sole avenue for challenging

sexual offender statutes and, if so, whether Lacombe was required to establish

an exception to the PCRA’s timeliness requirements. See Lacombe, ___ A.3d

at ___, Slip Opinion at 20.        The High Court observed that they have never

held that a defendant could only challenge the sexual offender statutes via a

timely petition under the PCRA.5 As our Supreme Court explained in detail:


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5 Justice Dougherty delivered the Majority Opinion, joined by Chief Justice
Saylor and Justices Baer and Todd. Justice Mundy joined the majority opinion
but expressed her disagreement with the Majority’s treatment of one of the
balancing factors considered when conducting the ex post facto analysis.
Justice Wecht filed a Concurring and Dissenting Opinion, joined by Justice
Donohue, in which he stated his agreement with the jurisdictional issue, but
opined that Subchapter I remained punitive. See infra. We further note that,



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             This Court has not yet required that sexual offender
          registration statutes be challenged through the PCRA or
          some other procedural mechanism.          Indeed, we have
          consistently decided cases regarding sexual offender
          registration statutes that were challenged via different types
          of filings. See Muniz, supra (successful challenge to
          constitutionality   of     SORNA      via  direct     appeal),
          Commonwealth v. Martinez, 147 A.3d 517, 523 (Pa.
          2016) (successful challenge to increase of registration term
          through “Petition to Enforce Plea Agreement or for a Writ of
          Habeas Corpus” where PCRA petition would have been
          untimely), A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7.
          (Pa. 2016) (successful challenge to registration term
          through mandamus action against PSP), [Commonwealth
          v. Williams, (“Williams II”), 832 A.2d 962 (Pa. 2003)]
          (unsuccessful challenge to constitutionality of Megan’s Law
          II through “Motion for Extraordinary Relief” and “Motion
          for Relief”). 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,
          Lacombe included, 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 well be 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
____________________________________________


in Lacombe, the High Court also addressed the companion case of
Commonwealth v. Whitmayer.


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          Lacombe’s “Petition to Terminate His Sexual Offender
          Registration Requirements.”

Lacombe, ___ A.3d at ___, Slip Opinion at 20-21.

       In light of the above, the PCRA court, in this case, erred in treating

McManus’ “Petition to Terminate Registration and Notification Requirements

of SORNA II” as an untimely PCRA petition. Thus, we may address his second

issue in which he claims applying Subchapter I of SORNA II to him violates

both the federal and state prohibition against ex post facto laws.

       McManus summarizes his argument on this issue as follows:

             [McManus] submits that he cannot be compelled to
          comply with Subchapter I. Subchapter I suffers from the
          same inadequacies as its predecessor SORNA. It imposes a
          direct restraint upon [McManus], includes requirements that
          are historically regarded as punishment, is only applicable
          after a criminal conviction, promotes the traditional aims of
          punishment, and is excessive in relation to the purpose to
          which it is assigned. Accordingly, Subchapter I violates the
          ex post facto clauses of the Pennsylvania and United States
          Constitutions.

McManus’ Brief at 9.6

       Contrary to McManus’ argument on this issue, the Pennsylvania

Supreme Court in Lacombe has now decided that the registration and

notification requirements of Subchapter I of SORNA II are not punitive.



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6 In his Majority Opinion in Lacombe, Justice Dougherty provides a thorough
discussion of the original SORNA statute, the Muniz decision, and the new
requirements of Subchapter I. See Lacombe, ___ A.3d at ___, Slip Opinion
at 7-19. Thus, we need not repeat this statutory history and case law here.


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Therefore, Subchapter I’s application to McManus does not violate the ex post

facto clauses of the state and federal constitutions.

      In Lacombe, supra, the High Court began its ex post facto analysis by

applying the same two-part analysis employed in Muniz, supra, and previous

cases:

            We first consider whether the General Assembly’s “intent
         was to impose punishment, and, if not, whether the
         statutory scheme is nonetheless so punitive either in
         purpose of effect as to negate the legislature’s nonpunitive
         intent.” Williams II, 832 A.2d at 971. If we find the
         General Assembly intended to enact a civil scheme, we then
         must determine whether the law is punitive in effect by
         considering the Mendoza-Martinez factors. Id. at 972.

Lacombe, __ A.3d at ___, Slip Opinion at 21-22 (quoting Muniz, supra).

Our Supreme Court further cited Muniz for the proposition that, when

conducting this analysis, “only the ‘clearest proof’ may establish that a law is

punitive in effect,” and that, “when determining whether a statute is civil or

punitive, we must examine the law’s entire statutory scheme.” Id.

      In response to the first part of the ex post facto analysis, our Supreme

Court noted that the Pennsylvania General Assembly expressly declared that

Subchapter I “shall not be construed as punitive.” Id. at 22. Thus, the High

Court proceeded to thoroughly discuss each of the factors enumerated in

Kennedy v. Mendoza-Mendoza, 372 U.S. 144 (1963), to determine

whether Subchapter I was punitive in effect. See Lacombe, ___ A.3d at ___,

Slip Opinion at 22-35.     In balancing these factors, our Supreme Court

reasoned:

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            As the above Mendoza-Martinez, analysis clearly
         reflects, Subchapter I effected significant changes from the
         original version of SORNA, retroactive application of which
         we found unconstitutional in Muniz. To summarize, we find
         three of the five factors weigh in favor of finding Subchapter
         I nonpunitive. Additionally, we give little weight to the fact
         Subchapter I promotes the traditional aims of punishment
         and give significant weight to the fact Subchapter I is
         narrowly tailored to its nonpunitive purpose of protecting
         the public. As we have not found the requisite “clearest
         proof” Subchapter I is punitive, we may not “override
         legislative intent and transform what has been denominated
         a civil remedy into a criminal penalty[.]” Hudson v. United
         States, 522 U.S. 93, 100 (1997), quoting United States
         v. Ward, 448 U.S. 242, 249 (1980) (internal quotations
         omitted).

Lacombe, ___ A.3d at ___, Slip Opinion, at 35. Thus, the High Court held

“Subchapter I does not constitute criminal punishment, and the ex post facto

claims forwarded by [Lacombe and Whitmayer] necessarily fail.” Id.

      This Court may affirm the denial of post-conviction relief on any ground

supported by the record. Commonwealth v. Benner, 147 A.3d 915, 919

(Pa. Super. 2016). Here, McManus’ second issue fails in light of the Lacombe

decision, and he must comply with Subchapter I of SORNA II.               Thus, as

McManus is not entitled to relief, we affirm the order denying his petition to

terminate his registration requirements.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/20




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