J-S58039-17

                                  2017 PA Super 359


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ANGEL LUIS RIVERA-FIGUEROA                 :
                                               :
                      Appellant                :       No. 361 MDA 2017

                 Appeal from the PCRA Order February 8, 2017
               In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000866-2013,
                            CP-38-CR-0001126-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY GANTMAN, P.J.:                            FILED NOVEMBER 14, 2017

        Appellant, Angel Luis Rivera-Figueroa, appeals from the order entered

in the Lebanon County Court of Common Pleas, which denied his first

petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1       We

vacate and remand for further proceedings.

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

Appellant pled guilty on October 24, 2002, to two counts of indecent assault

and one count each of corruption of minors and endangering the welfare of

children. On January 7, 2003, the court sentenced Appellant to three to six

years’ imprisonment. Appellant was also required to register and report to

the Pennsylvania State Police for a period of ten years, pursuant to Megan’s
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1   42 Pa.C.S.A. §§ 9541-9546.
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Law II.2    The General Assembly enacted Megan’s Law III in 2004, which

went into effect on January 24, 2005. Megan’s Law III expired on December

20, 2012, and gave way to the Sexual Offender Registration and Notification

Act (“SORNA”), which took effect on that same date.             SORNA required

individuals convicted of certain sexual offenses to register with the

Pennsylvania State Police, including individuals previously subject to

reporting requirements who had not yet fulfilled their registration period.

        On December 21, 2012, the Commonwealth charged Appellant at

docket number        CP-38-CR-0000866-2013       with failure   to   comply   with

registration requirements under Megan’s Law III.           The Supreme Court

declared Megan’s Law III unconstitutional on December 16, 2013.               See

Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (2013).                        On

December 20, 2013, Appellant filed a motion to dismiss charges based on

the Neiman decision. The court continued a hearing on Appellant’s motion

to dismiss on January 22, 2014, until March 26, 2014. On March 12, 2014,

the General Assembly enacted 42 Pa.C.S.A. § 9799.11(b)(3) to address the

holding in Neiman, which was retroactive to December 20, 2012. Appellant

filed a second motion to dismiss on March 17, 2014, claiming the newly-

enacted law did not support the continuation of charges at docket number

866-2013.

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2   42 Pa.C.S.A. § 9795.1



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      On June 12, 2014, the Commonwealth charged Appellant at docket

number CP-38-CR-0001126-2014 with a second failure to comply with

registration requirements under SORNA.      The court denied Appellant’s

motion to dismiss charges at docket number 866-2013 on June 17, 2014,

stating Appellant could not be charged under Megan’s Law III, but he could

be charged under Megan’s Law II and SORNA.         The court granted the

Commonwealth leave to amend the information at docket number 866-2013.

The Commonwealth filed an amended information on July 16, 2014,

charging Appellant at docket number 866-2013 with failure to comply with

registration requirements under Megan’s Law II.   On November 26, 2014,

Appellant entered a negotiated guilty plea to one count each of failure to

comply with registration requirements at both docket numbers 866-2013

and 1126-2014. The court sentenced Appellant on December 31, 2014, to

an aggregate term of thirty-six months’ to seven years’ imprisonment;

Appellant did not file a direct appeal.

      On June 17, 2015, Appellant timely filed a pro se PCRA petition, and

the court appointed counsel that same day. Counsel filed an amended PCRA

petition on September 8, 2015. The court held a PCRA hearing on July 7,

2016, and on February 8, 2017, the court denied relief.   Appellant timely

filed a notice of appeal on February 27, 2017. On March 1, 2017, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on


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March 13, 2017.

      Appellant raises the following issue for our review:

         WHETHER PLEA COUNSEL WAS INEFFECTIVE FOR FAILING
         TO WITHDRAW APPELLANT’S SENTENCE UNDER DOCKET
         NUMBER 866 OF 2013 AS APPELLANT RECEIVED AN
         UNCONSTITUTIONAL SENTENCE ON THAT DOCKET; AND
         AS A RESULT, APPELLANT SHOULD RECEIVE A NEW
         SENTENCE UNDER DOCKET NUMBER 1126 OF 2014
         WHERE HE TOOK A GLOBAL PLEA BARGAIN.      IF HIS
         SENTENCE UNDER DOCKET NUMBER 866 OF 2013 IS
         DEEMED    UNCONSTITUTIONAL,   APPELLANT  SHOULD
         RECEIVE AN OVERALL LESSER SENTENCE?

(Appellant’s Brief at 4).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record supports the court’s determination and

whether the court’s decision is free of legal error. Commonwealth v. Ford,

947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319

(2008). This Court grants great deference to the findings of the PCRA court

if the record contains any support for those findings.       Commonwealth v.

Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court.         Commonwealth v.

Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

      Preliminarily, we observe that our Supreme Court recently declared

SORNA unconstitutional, because it violates the ex post facto clauses of both

the United States and Pennsylvania Constitutions.        Commonwealth v.

Muniz, ___ Pa. ___, 164 A.3d 1189 (2017). The Muniz court determined

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SORNA’s purpose was punitive in effect, despite the General Assembly’s

stated civil remedial purpose. Id. at ___, 164 A.2d at 1218. Therefore, a

retroactive application of SORNA to past sexual offenders violates the ex

post facto clause of the United States Constitution. Id. SORNA also violates

the ex post facto clause of the Pennsylvania Constitution because it places a

unique burden on the right to reputation and undermines the finality of

sentences by enacting increasingly severe registration law. Id. at ___, 164

A.2d at 1223.

      Generally, new constitutional rules of criminal procedure do not

retroactively apply to convictions, which were final when the new rules are

announced. Montgomery v. Louisiana ___ U.S. ___, 136 S.Ct. 718, 193

L.Ed.2d 599 (2016) (as revised on January 27, 2016).         Procedural rules

regulate the manner of determining the defendant’s culpability and are

designed to enhance the accuracy of a conviction or sentence. Id.

      In contrast, newly announced substantive rules are an exception to the

retroactivity bar and include rules, which “[forbid] criminal punishment of

certain primary conduct or [prohibit] a certain category of punishment for a

class of defendants because of their status or offense.” Commonwealth v.

Secreti, 134 A.3d 77, 81 (Pa.Super. 2016) (quoting Montgomery, supra).

When a state enforces a constitutionally-barred penalty, the resulting

conviction or sentence is unlawful.     Montgomery, supra.         The United

States Constitution requires state collateral review courts to give retroactive


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effect to new substantive rules of constitutional law, which control the

outcome of cases. Id.

       Montgomery extended the holding of Miller v. Alabama to the state

collateral review context. Id.; Miller v. Alabama, 567 U.S. 460, 132 S.Ct.

2455, 183 L.Ed.2d 407 (2012) (holding Eighth Amendment of United States

Constitution forbids sentencing scheme that mandates life in prison without

possibility of parole for juvenile homicide offenders).   Montgomery held

Miller announced a new substantive rule because “it rendered life without

parole an unconstitutional penalty for a class of defendants because of their

status—that is, juvenile offenders whose crimes reflect the transient

immaturity of youth.” Montgomery, supra at ___, 136 S.Ct. at 734, 193

L.Ed.2d at ___. Thus, the substantive rule in Miller retroactively applied in

the collateral context because there was a significant risk that a defendant

faced a punishment the law cannot impose.3, 4 Montgomery, supra.

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3 See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989) (holding only new substantive constitutional rules and watershed
rules of criminal procedure are given retroactive effect in collateral
proceedings).

4 Compare Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810
(2016) (holding rule announced in Alleyne v. United States, ___ U.S. ___,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), is procedural because it does not
alter range of conduct or class of persons punished by law and therefore
cannot retroactively apply in collateral context). We are aware of this
Court’s recent decision in the direct appeal context, citing Alleyne to hold
that 42 Pa.C.S.A. § 9799.24(e)(3) is unconstitutional.                  See
Commonwealth v. Butler, ___ A.3d ___, 2017 PA Super 344 (filed
(Footnote Continued Next Page)


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      Instantly, the recent holding in Muniz created a substantive rule that

retroactively applies in the collateral context, because SORNA punishes a

class of defendants due to their status as sex offenders and creates a

significant risk of punishment that the law cannot impose.       See Muniz,

supra; 42 Pa.C.S.A. § 9799.10(2) (stating one purpose of SORNA is to

require individuals convicted or adjudicated delinquent of certain sex

offenses to register with Pennsylvania State Police).    The Muniz decision

should be retroactively applied in state collateral courts to comply with the

United States and Pennsylvania Constitutions.    See Montgomery, supra.

Our Supreme Court decided Muniz on July 19, 2017, while Appellant’s case

was on appeal from the denial of collateral relief, and nearly two years after

he filed his counseled PCRA petition. Therefore, the best resolution of this

case is to vacate, remand, and offer Appellant the opportunity to argue

Muniz. Accordingly, we vacate the order denying PCRA relief and remand

this case to the PCRA court to allow Appellant to amend his petition to

include a Muniz claim.

      Order vacated; case remanded. Jurisdiction is relinquished.


(Footnote Continued) _______________________

October 31, 2017). Butler, however, is distinguishable because Butler
narrowed its attention and discussion to the section of SORNA that allowed
the trial court to designate an individual as a sexually violent predator by
clear and convincing evidence. According to Butler, this section of SORNA
amounts to a factual finding which, under Alleyne, must be determined
beyond a reasonable doubt by the chosen fact-finder. See Butler, supra.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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