J-S49037-18

                                2018 PA Super 392

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GUY C. HAUGHWOUT, SR.                    :
                                          :
                    Appellant             :    No. 416 MDA 2018

           Appeal from the Judgment of Sentence October 6, 2017
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0001537-2014,
                          CP-40-CR-0003790-2013


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

CONCURRING OPINION BY SHOGAN, J.:                   FILED OCTOBER 30, 2018

      I join the Opinion of the learned Majority. I write separately, however,

to further explain my reasons for affirming the trial court’s opinion.

      As noted by the Majority, Appellant was subject to lifetime registration

under Megan’s Law I, 42 Pa.C.S. §§ 9791-9799.6, as a result of his conviction

of indecent assault in 2002. On September 17, 2015, Appellant pled guilty to

and was convicted of violating 18 Pa.C.S. § 4915.1(a)(1) and (a)(3) for failing

to comply with registration requirements and failing to provide accurate

registration information in 2013.

      The Pennsylvania Supreme Court has held that the registration

provisions of the Sexual Offender Registration and Notification Act (“SORNA”),

42 Pa.C.S. §§ 9799.10–9799.41, constitute criminal punishment that cannot

be retroactively applied to a defendant whose crimes were committed prior to


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S49037-18


SORNA. Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert.denied,

138 S.Ct. 925 (U.S. 2018). In doing so, the High Court reiterated that “‘two

critical elements’ must be met for a criminal or penal law to be deemed ex

post facto: ‘it must be retrospective, that is, is must apply to events occurring

before its enactment, and it must disadvantage the offender affected by it.’”

Muniz, 164 A.3d at 1195-1196 (quoting Weaver v. Graham, 450 U.S. 24,

29 (1981)).

      As noted by the Majority, Appellant was not disadvantaged by being

subjected to a longer registration period. Additionally, though, SORNA was

not applied to events occurring before its enactment on December 20, 2011,

because Appellant violated Sections 4915.1(a)(1) and (a)(3) in 2013. Thus,

because Appellant was not subject to retroactive application of SORNA’s

registration requirements, the ex post facto clauses of the federal and state

constitutions were not directly implicated.     Accordingly, I agree with the

Majority that Appellant is not entitled to relief under Muniz.

      I write separately also to address the Commonwealth’s suggestion that,

given Appellant’s designation as a sexually violent predator (“SVP”) following

his conviction of indecent assault in 2002, he may be entitled to relief under

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

granted, 190 A.3d 581 (Pa. 2018). Commonwealth’s Brief at 5. Although

Appellant did not raise this issue, it impacts the legality of his sentence, an

issue we may raise sua sponte. Id. at 1215.


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       In Butler, we held that:

       section 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.
       Moreover, . . . trial courts cannot designate convicted defendants
       SVPs (nor may they hold SVP hearings) until our General
       Assembly enacts a constitutional designation mechanism.
       Instead, trial courts must notify a defendant that he or she is
       required to register for 15 years if he or she is convicted of a Tier
       I sexual offense, 25 years if he or she is convicted of a Tier II
       sexual offense, or life if he or she is convicted of a Tier III sexual
       offense.

Butler, 173 A.3d at 1218.

       The record at hand indicates that Appellant was designated an SVP on

February 15, 2002, pursuant to Megan’s Law I, not SORNA.              Neither the

Pennsylvania Supreme Court nor this Court has held that Butler may be

applied retroactively to pre-SORNA SVP designations. Thus, Appellant is not

entitled to relief under Butler.1

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2018

____________________________________________


1  If the Pennsylvania Supreme Court issues a decision holding that Butler
applies retroactively, Appellant may file a petition under the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541–9546, within sixty days of that decision,
attempting to invoke a time-bar exception in subsection 9545(b)(1)(iii). See
Commonwealth v. Murphy, 180 A.3d 402, 406 n.1 (Pa. Super. 2018).

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