J-S39010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JOSE GONZALEZ                              :
                                               :
                       Appellant               :      No. 2124 EDA 2018

       Appeal from the Judgment of Sentence Entered December 4, 2015
             In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001438-2015,
             CP-51-CR-0003654-2015, CP-51-CR-0013209-2014,
                           CP-51-CR-0014048-2014


BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                     FILED SEPTEMBER 06, 2019

        Appellant, Jose Gonzalez, appeals nunc pro tunc, from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

his open plea of nolo contendere to two counts each of rape, involuntary

deviate sexual intercourse (“IDSI”), and endangering the welfare of a child

(“EWOC”), and open guilty plea to two counts of receiving stolen property

(“RSP”).1 We vacate in part and remand with instructions; we deny counsel’s

petition to withdraw.

        The relevant facts and procedural history of this case are as follows. On

July 7, 2015, Appellant entered an open plea of nolo contendere at docket No.


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1   18 Pa.C.S.A. §§ 3121; 3123; 4304; 3925, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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CP-51-CR-0003654-2015 (“docket 3654-2015”) to rape, IDSI, and EWOC, in

connection with sex offenses Appellant committed on his stepson between

2001 and 2008. Appellant also entered an open plea of nolo contendere at

docket No. CP-51-CR-0001438-2015 (“docket 1438-2015”) to rape, IDSI, and

EWOC, in connection with sex offenses Appellant committed on his daughter

between 2012 and 2014. Additionally, Appellant entered an open guilty plea

at docket Nos. CP-51-CR-0013209-2014 (“docket 13209-2014”) and CP-51-

CR-0014048-2014 (“docket 14048-2014”) to one count each of RSP, in

connection with Appellant’s theft of motor vehicles.          The court sentenced

Appellant on December 4, 2015, to an aggregate term at all four dockets of

50 to 100 years’ imprisonment. At dockets 3654-2015 and 1438-2015, the

court designated Appellant as a sexually violent predator (“SVP”). Appellant

did not file post-sentence motions or a direct appeal.

        On December 9, 2016, Appellant timely filed a pro se petition under the

Post Conviction Relief Act (“PCRA”).2            In his pro se petition, Appellant

challenged the validity of his pleas based on counsel’s allegedly inaccurate

advice and the discretionary aspects of his sentence. The court appointed

counsel, who filed an amended PCRA petition on April 26, 2018.             In the

amended petition, Appellant claimed plea counsel was ineffective for failing to

file post-sentence motions and a direct appeal on Appellant’s behalf. Appellant



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2   42 Pa.C.S.A. §§ 9541-9546.

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explained he wanted to challenge the discretionary aspects of sentencing.

Appellant expressly requested reinstatement of his post-sentence motion and

direct appeal rights nunc pro tunc. On June 15, 2018, the Commonwealth

filed a letter stating it did not oppose reinstatement of Appellant’s direct

appeal rights nunc pro tunc but opposed reinstatement of Appellant’s post-

sentence motion rights nunc pro tunc.

        Notwithstanding     Appellant’s        request,   the   court   reinstated   only

Appellant’s direct appeal rights nunc pro tunc on June 21, 2018. Appellant

timely filed notices of appeal nunc pro tunc on July 19, 2018.3 On August 16,

2018, the court ordered Appellant to file a concise statement of errors

complained     of   on   appeal     pursuant      to   Pa.R.A.P.   1925(b).      Counsel

subsequently filed a statement of intent to file a petition to withdraw and

Anders4 brief, per Pa.R.A.P. 1925(c)(4).

        As a preliminary matter, we are mindful of recent case law calling into

question the validity of Appellant’s SVP status.            Consequently, we elect to

review the legality of Appellant’s sentence sua sponte. See Commonwealth

v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa.Super. 2011) (explaining


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3 The certified docket entries make clear that Appellant filed four separate
notices of appeal, one at each underlying docket.         Thus, we see no
jurisdictional impediments to our review under Commonwealth v. Walker,
___ Pa. ___, 185 A.3d 969 (2018) (requiring, as of June 1, 2018, separate
notices of appeal from single orders which resolve issues arising at separate
trial court docket numbers).

4   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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challenges to illegal sentence cannot be waived and may be raised by this

Court    sua    sponte,     assuming      jurisdiction   is   proper).   See   also

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017), appeal granted,

___ Pa. ___, 190 A.3d 581 (2018) (addressing legality of appellant’s SVP

status sua sponte).

        The Pennsylvania Supreme Court has made clear that the registration

requirements under the Sexual Offender Registration and Notification Act

(“SORNA”) constitute criminal punishment. Commonwealth v. Muniz, 640

Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925,

200 L.Ed.2d 213 (2018).           In light of Muniz, this Court held: “[U]nder

Apprendi and Alleyne, a factual finding, such as whether a defendant has a

mental abnormality or personality disorder that makes him…likely to engage

in predatory sexually violent offenses, that increases the length of registration

must be found beyond a reasonable doubt by the chosen fact-finder.”5 Butler,

supra at 1217 (internal citations and quotation marks omitted). This Court

further held: “[S]ection 9799.24(e)(3) of SORNA violates the federal and state

constitutions because it increases the criminal penalty to which a defendant is

exposed without the chosen fact-finder making the necessary factual findings

beyond a reasonable doubt.” Id. at 1218. The Butler Court concluded that



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5 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).

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trial courts can no longer designate convicted defendants as SVPs or hold SVP

hearings, “until [the] General Assembly enacts a constitutional designation

mechanism.” Id. (vacating appellant’s SVP designation and remanding to trial

court for sole purpose of issuing appropriate notice under 42 Pa.C.S.A. §

9799.23, governing reporting requirements for sex offenders, as to appellant’s

registration obligation).6

       Instantly, following an assessment by the Sexual Offender Assessment

Board, the court imposed SVP status on Appellant at dockets 3654-2015 and

1438-2015.       In light of Muniz and Butler, Appellant’s SVP designation

constitutes an illegal sentence. Thus, we vacate Appellant’s SVP designation

and remand the matter to the trial court to issue a revised notice to Appellant

of his registration obligations under 42 Pa.C.S.A. § 9799.23.7 See Butler,

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6 The Pennsylvania Supreme Court has granted review of Butler. Unless and
until our Supreme Court rules otherwise, however, Butler remains binding
authority. See Commonwealth v. Martin, 205 A.3d 1247 (Pa.Super. 2019)
(stating this Court is bound by existing precedent and continues to follow
controlling precedent unless it is overturned by our Supreme Court).

7 SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, went into effect on December
20, 2012, and became the statute governing the registration and supervision
of sex offenders. Following Muniz and Butler, the Pennsylvania General
Assembly enacted legislation to amend SORNA. See Act of Feb. 21 2018, P.L.
27, No. 10 (“Act 10”). Act 10 amended several provisions of SORNA, and also
added several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-
9799.75. In addition, the Governor of Pennsylvania signed new legislation
striking the Act 10 amendments and reenacting several SORNA provisions,
effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No. 29 (“Act
29”). Through Act 10, as amended in Act 29, the General Assembly created
Subchapter I, which addresses sexual offenders who committed an offense on



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supra.

       As a second preliminary matter, we recognize that where the court

reinstates    direct   appeal     rights   nunc   pro   tunc   based   on   counsel’s

ineffectiveness, the defendant is not automatically entitled to reinstatement

of his post-sentence rights nunc pro tunc as well. Commonwealth v. Liston,

602 Pa. 10, 977 A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate

a defendant’s post-sentence rights nunc pro tunc if the defendant successfully

pleads and proves he was deprived of the right to file and litigate post-

sentence motions as a result of ineffective assistance of counsel. Id. at 19

n.9, 977 A.2d at 1094 n.9 (noting counsel may be deemed ineffective for

failing to file post-sentence motions when claim requires preservation in trial


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or after April 22, 1996, but before December 20, 2012. See 42 Pa.C.S.A. §§
9799.51-9799.75.        Subchapter I contains less stringent reporting
requirements than Subchapter H, which applies to offenders who committed
an offense on or after December 20, 2012. See 42 Pa.C.S.A. §§ 9799.13,
9799.54.

Here, Appellant’s sex offenses at docket 3654-2015 took place between 2001
and 2008, so Subchapter I applies to Appellant’s convictions at that docket.
With respect to docket 1438-2015, however, the transcript from Appellant’s
plea hearing indicates Appellant’s offenses at that docket took place between
“roughly” 2012 and 2014, which straddle the operative dates for Subchapters
H and I. Without a specific finding of fact regarding when the offenses related
to Appellant’s convictions actually occurred, Appellant is entitled to the lower
punishment. See Commonwealth v. Alston, 2019 PA Super 178, at *3
(filed June 6, 2019) (stating: “[W]hen an appellant’s offenses straddle the
effective dates of Subchapters H and I of SORNA, he is entitled to the lower
reporting requirements of Subchapter I, absent a specific finding of when the
offenses related to the convictions actually occurred”). Thus, the trial court
must be cognizant upon remand of which reporting requirements apply to
Appellant’s convictions.

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court for purposes of appellate review).       Compare Commonwealth v.

Fransen, 986 A.2d 154 (Pa.Super. 2009) (holding PCRA petitioner who

obtains reinstatement of direct appeal rights nunc pro tunc is not entitled to

reinstatement of post-sentence rights nunc pro tunc unless he requested that

relief with PCRA court; appellant’s claim that he was entitled to file post-

sentence motions and to have benefit of evidentiary hearing warranted no

relief where appellant did not plead or prove in PCRA petition that he was

deprived of right to file post-sentence motions).

      Instantly, in Appellant’s pro se PCRA petition and counseled amended

PCRA petition, Appellant expressly sought reinstatement of his post-sentence

motion rights nunc pro tunc.        The Commonwealth opposed reinstating

Appellant’s post-sentence motion rights nunc pro tunc.          Consistent with

Liston and Fransen, however, Appellant pled in his PCRA petition that he

was deprived of the right to file and litigate post-sentence motions and a

notice of appeal as a result of ineffective assistance of counsel. See Liston,

supra; Fransen, supra.        Appellant’s petitions made clear he wanted to

challenge the validity of his pleas and the discretionary aspects of his

sentence, which both require preservation in post-sentence motions.         See

Commonwealth v. Lincoln, 72 A.3d 606 (Pa.Super. 2013), appeal denied,

624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to preserve

challenge to validity of guilty plea where he did not object during plea colloquy

or file post-sentence motion to withdraw plea); Commonwealth v. Griffin,


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65 A.3d 932 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538

(2013) (explaining objections to discretionary aspects of sentence are waived

if they are not raised at sentencing hearing or in timely filed post-sentence

motion). See also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i), (v) (stating post-

sentence motion challenging validity of plea of guilty or nolo contendere

and/or motion to modify sentence shall be filed no later than 10 days after

imposition of sentence).     Consequently, restoration of Appellant’s direct

appeal rights nunc pro tunc without restoration of Appellant’s post-sentence

motion rights nunc pro tunc, in this case was essentially an empty gesture.

In light of Appellant’s stated intent to challenge the validity of his pleas and

discretionary aspects of sentencing, the PCRA court should have restored

Appellant’s post-sentencing rights as well.    See Liston, supra; Fransen,

supra. See also Commonwealth v. Rivera, 154 A.3d 370 (Pa.Super. 2017)

(en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072 (2017) (affirming PCRA

court’s reinstatement of appellant’s post-sentence motion and direct appeal

rights nunc pro tunc based on counsel’s ineffectiveness for failing to consult

with appellant about whether he wanted to file direct appeal; PCRA court

properly restored Appellant’s post-sentencing rights nunc pro tunc because

one issue appellant wanted to raise, regarding withdrawal of his guilty plea,

required preservation in trial court).

      Accordingly, we remand the matter to the trial court to reinstate

Appellant’s post-sentence and direct appeal rights nunc pro tunc, so Appellant


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will have an opportunity to litigate in post-sentence motions those issues

requiring preservation in the trial court. We also vacate Appellant’s SVP status

and SORNA reporting requirements and direct the court to instruct Appellant

on his proper registration and reporting requirements. Given our disposition,

we decline to consider the other issues presented in counsel’s Anders brief

and deny counsel’s petition to withdraw.

      SVP status and SORNA reporting requirements vacated; case remanded

with instructions; counsel’s petition to withdraw is denied.     Jurisdiction is

relinquished.

      Judge Stabile joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/19




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