J-A03030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                              :   IN THE SUPERIOR COURT OF
  PENNSYLVANIA                                 :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
  DENNIS O'BRIEN                               :
                                               :   No. 2557 EDA 2017
                       Appellant               :


                Appeal from the Order entered June 30, 2017
     In the Court of Common Pleas of Monroe County Criminal Division at
                       No(s): CP-45-CR-0001589-1999


BEFORE:       GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

JUDGMENT ORDER BY MCLAUGHLIN, J.:                     FILED JANUARY 18, 2018

       Dennis O’Brien appeals from the June 30, 2017 order entered in the

Monroe County Court of Common Pleas denying his petition to terminate

registration requirement. We vacate and remand in light of the Pennsylvania

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017).

       On April 18, 2000, O’Brien pled guilty to two counts each of endangering

welfare of children and indecent assault.1 The trial court sentenced O’Brien to

an aggregate term of 2½ to 6 years’ incarceration. After he was released from

custody, O’Brien registered as a sex offender under Megan’s Law II, 42 Pa.C.S.

§§ 9791–9799.7 (repealed). Following the enactment of the Sexual Offender

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       1   18 Pa.C.S. §§ 4304 and 3126(a)(6), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.41,

the Pennsylvania State Police (“PSP”) informed O’Brien he was required to

comply with SORNA.

      On June 19, 2015, O’Brien filed a petition to terminate his registration

requirement. On June 30, 2017, the trial court denied the motion. O’Brien

filed a timely notice of appeal.

      On appeal, O’Brien raises the following issues:

         Did the Court of Common Pleas commit error:

         1) In not applying [Muniz, 164 A.3d 1189], to the
         disposition of [O’Brien’s] Motion to Enforce the Guilty Plea
         Agreement?

            a. In retroactively applying [SORNA] to Den[n]is
            O’Brien’s June 22, 2000 guilty plea agreement when
            42 Pa.C.S.A. §9799.6 (repealed) was in effect, in
            violation   of  the   Pennsylvania    and   Federal
            Constitutions as discussed in Commonwealth v.
            Martinez, 147 A.3d 517 (Pa. 2016), and
            Commonwealth v. Ritz, 153 A.3d 336 (Pa.Super.
            2016)?

            b. In not finding [SORNA] violated both Federal and
            Pennsylvania’s ex post facto clauses?

         2) In determining it lacked jurisdiction to decide the petition,
         contrary to Commonwealth v. Martinez, 147 A.3d 517
         (Pa. 2016), and Commonwealth v. Ritz, 153 A.3d 336
         (Pa.Super 2016), because [O’Brien] failed to join or notice
         the [PSP]?

         3) In finding the ten year notification provision of 42
         Pa.C.S.A. §9799.6 (repealed) was not a negotiated term of
         [O’Brien’s] June 22, 2000 plea agreement after making
         credibility determinations against [O’Brien] in violation with
         Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016),
         and Commonwealth v. Ritz, 153 A.3d 336 (Pa.Super
         2016).


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J-A03030-18



O’Briens’s Br. at 17-18 (suggested answers omitted).

       On July 19, 2017, the Pennsylvania Supreme Court concluded that

retroactive application of SORNA’s registration provisions violates the ex post

facto clauses of the federal and Pennsylvania Constitutions. Muniz, 164 A.3d

at 1193; accord Commonwealth v. McCullough, ___ A.3d ____, 2017 WL

5184490, at *1 (Pa.Super. Nov. 9, 2017) (en banc).2

       On December 8, 2017, the Commonwealth filed a letter stating it did

not object to the relief requested by O’Brien.3

       Accordingly, following the Supreme Court’s decision in Muniz, we

vacate the order denying the petition to terminate registration requirement

and remand to the trial court for further proceedings consistent with Muniz.

____________________________________________


       At the March 1, 2017 hearing on the motion to terminate registration
       2

requirement, the Commonwealth conceded O’Brien had completed the 10-
year registration period required under Megan’s Law II. N.T., 3/1/17, at 3;
see 42 Pa.C.S. § 9795.1(a)(1) (repealed) (requiring 10-year registration
period where convicted of indecent assault graded as a first-degree
misdemeanor).

       3 In its opinion pursuant to Pennsylvania Rule of Appellate Procedure
1925(a), the trial court concluded that O’Brien would be entitled to relief under
Muniz, but that the procedural posture of the case precluded relief because
O’Brien did not join the PSP as a party, as required by Commonwealth. v.
Demora, 149 A.3d 330, 333 (Pa.Super. 2016). Op. In Support of Order
Pursuant to Pa.R.A.P. 1925(a), 8/28/17, at 2. In Demora, this Court held
that the PSP is an indispensable party in an action seeking relief from SORNA
and that failure to name the PSP as a party deprived the trial court of
jurisdiction.    On November 9, 2017, this Court issued a decision in
McCullough, in which we concluded Muniz overruled Demora.
McCullough, 2017 WL 5184490, at *2.



                                           -3-
J-A03030-18



       Order vacated. Case remanded. Jurisdiction relinquished.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/18




____________________________________________


       4   O’Brien’s motion to cancel oral argument is denied as moot.

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