J-S09022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN ANDREW WILLIAMS                     :
                                               :
                       Appellant               :   No. 1414 MDA 2017

             Appeal from the Judgment of Sentence April 26, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005898-2016

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

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JUNE 20, 2018

        Steven Andrew Williams appeals from the judgment of sentence entered

on his conviction for failure to comply with the registration requirements1 of

the Sex Offender Registration and Notification Act (“SORNA”). Williams argues

that, because his underlying crime pre-dated SORNA, he was not, pursuant to

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.Ct.

295 (2018), properly subject to SORNA’s registration requirements.2 He

maintains that his conviction for failing to register therefore cannot stand. We

are constrained to agree.

        Williams was originally convicted in New York state, in 1990, of rape by

forcible compulsion for a rape he committed in 1988. A New York court

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.
1   See 18 Pa.C.S.A. § 4915.1.
2   See 42 Pa.C.S.A. § 9799.13(7.1).
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sentenced Williams to three to nine years’ imprisonment, and he was required

under New York law to register as a sex offender for life. In 2015, Williams

moved to Pennsylvania and became subject to Pennsylvania law, including

SORNA’s registration requirements. Those requirements include registering in

person with the State Police on a quarterly basis. Williams admits that he

failed to register in July 2016. He maintains that he thought he was not

required to do so because in May 2016 he reported to submit a change of

address. See Williams’ Brief at 25-26.

     A jury found Williams guilty, and the trial court subsequently sentenced

him to seven to 14 years’ imprisonment. Williams filed post-sentence motions

on May 5, 2017, and while they were pending, the Supreme Court handed

down its decision in Muniz. There, the Court held that SORNA’s stringent

registration and reporting requirements constitute criminal punishment for

purposes of the ex post facto clause of the Pennsylvania Constitution, and

therefore do not apply to offenders whose crimes occurred before SORNA’s

effective date. Muniz, 164 A.3d at 1223. Williams did not amend his post-trial

motions to assert a claim based on Muniz. The trial court denied his motions,

and Williams filed this timely appeal as well as a court-ordered Pa.R.A.P.

1925(b) statement.

     Williams’ raises two issues for our review:

     I.    Whether [] Williams’ failure to register in this case was not
           a crime because neither SORNA nor any other sex offender
           registration scheme can legally apply to him in light of
           Muniz, such that his judgment of sentence is illegal and
           must be vacated[?]

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      II.   Whether the trial court erred in denying Williams’ challenge
            to the weight of the evidence because Williams’ failure to
            register was not a knowing one where he updated his
            address within three months of his quarterly registration
            date, he had previously received reminders to register but
            received none in this instance, and he registered
            immediately once informed that he was out of compliance[?]

Williams’ Brief at 5.

      The Commonwealth argues that Williams waived his first issue,

regarding the application of our Supreme Court’s decision in Muniz, by failing

to raise it below. Williams acknowledges that he did not raise the issue until

he filed his Rule 1925(b) statement but argues waiver is not appropriate here.

He contends that his issue constitutes a challenge to the legality of his

sentence, and points out that our Supreme Court announced its decision in

Muniz after he filed post-sentence motions.

      We decline to find waiver. The statute under which Williams was

convicted requires the Commonwealth to prove, among other things, that

Williams was “subject to registration under [SORNA]. . . .” 18 Pa.C.S.A. §

4915.1(a). The duty to register is therefore an element of the offense, and

Williams’ argument amounts to a challenge to the sufficiency of the evidence.

Such a claim may be raised for the first time on appeal. See Pa.R.Crim.P.

606(a)(7). See also Commonwealth v. Rivera-Figueroa, 174 A.3d 674,

679 (Pa.Super. 2017) (allowing Post Conviction Relief Act petitioner to raise

Muniz claim to pre-SORNA conviction). We therefore will review Williams’s

first issue on the merits.



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       On the merits, we conclude that we must vacate the judgment of

sentence and conviction. As noted, under Muniz, the retroactive application

of SORNA’s registration scheme to sexual offenders who committed their

crimes before the SORNA’s effective date violates Pennsylvania’s ex post facto

clause.3 In this case, Williams’ underlying conviction stems from a rape he

committed in 1988 in New York. When he moved to Pennsylvania, he became

subject to SORNA’s registration scheme, which, as determined by Muniz,

constitutes ex post facto punishment for a crime. Thus, pursuant to Muniz,

the retroactive application of SORNA’s registration requirements to Williams

does not pass constitutional muster, and he had no duty to register at the

relevant time.

       For like reasons, the fact that he moved to Pennsylvania after the

effective date of SORNA does not require a different outcome. That is, when

Williams moved to Pennsylvania, he became subject to SORNA, which

(according to Muniz) unconstitutionally imposed new punishment on a pre-

SORNA conviction.

       The Commonwealth argues that Muniz does not apply here because

New York law required Williams to register for life in that state. Thus, the

Commonwealth posits, Williams’ lifetime registration requirement, under

SORNA, does not implicate Pennsylvania’s ex post facto clause because there


____________________________________________


3 See Commonwealth v. McCullough, 174 A.3d 1094, 1095 (Pa.Super.
2017) (en banc).

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J-S09022-18


was no effective increase in his registration period. The Commonwealth’s

argument is unavailing, however, because Muniz held that SORNA’s stringent

registration requirements, not just the mere length of the registration period,

rendered SORNA’s registration scheme criminal punishment for purposes of

Pennsylvania’s ex post facto clause. See Muniz, 164 A.3d 1210-11. The

length of Williams’ previous registration requirement in another jurisdiction is

of no moment. We therefore vacate Williams’ judgment of sentence and

conviction.

      We do not address Williams’ weight-of-the-evidence issue because his

first issue is dispositive.

      Judgment of sentence and conviction vacated.

President Judge Gantman joins the Memorandum.

Judge Platt files a concurring statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/20/2018




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