J-S64028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN CARRIGG                              :
                                               :
                       Appellant               :   No. 779 WDA 2019

              Appeal from the PCRA Order Entered April 25, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0007749-2017


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 23, 2020

        Shawn Carrigg appeals from the order, entered in the Court of common

Pleas of Allegheny County, denying his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. After review, we

affirm.

        On October 10, 2017, Carrigg entered a negotiated guilty plea to one

count each of sexual abuse of children (child pornography)1 and criminal use

of a communication facility.2        In exchange for the plea, the Commonwealth

agreed to a sentence of 21 to 42 months’ incarceration followed by 5 years’

probation. The Commonwealth also agreed not to seek a Sexually Violent

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6312(d).

2   18 Pa.C.S.A. § 7512(a).
J-S64028-19



Predator evaluation. Carrigg proceeded directly to sentencing and the court

sentenced him in accordance with the agreement. Because of his convictions,

Carrigg is subject to lifetime registration as a sex offender. 18 Pa.C.S.A. §

9799.55(b)(1) (individual with two or more convictions of any of offenses set

forth in subsection (a) “shall be subject to lifetime registration[.]”). Carrigg

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

       On June 6, 2018, Carrigg filed a timely pro se PCRA petition. The court

appointed counsel, who filed an amended petition on November 7, 2018. In

the amended petition, counsel averred Carrigg was eligible for relief because

the court erred in imposing a lifetime registration requirement under

Pennsylvania’s      Sexual      Offender       Registration   and   Notification   Act

(SORNA)3/Act 10 of 2018 insofar as the registration period exceeds the

statutory maximum penalties for his crimes. See Amended PCRA Petition,

11/7/18, at 5. See also 42 Pa.C.S.A. § 9543(2) (vii) (eligibility for relief).

       The PCRA court held a hearing on April 23, 2019. Following the hearing,

the court denied relief. This appeal followed. Carrigg raises two issues for

our review:

       I.     Did the lower court abuse its discretion in denying the PCRA
              petition insofar as the petitioner established that [he] is not
              subject to the registration requirements and restrictions


____________________________________________


3 Act of Dec. 20, 2011, P.L. 446, No. 111, amended as, 42 Pa.C.S.A. §§
9799.10- 9799.41, as amended and replaced by 2018, Feb. 21, P.L. 27, No.
10, § 19, immediately effective. Reenacted 2018, June 12, P.L. 140, No. 29,
§ 14, immediately effective. 42 Pa.C.S. §§ 9799.51-9799.75 (“SORNA II”).

                                           -2-
J-S64028-19


              under [SORNA], or pursuant to H.B. 631/Act 2018-10, Act
              10 of 2018?

              A. Did the court err in imposing a lifetime registration
                 requirement under SORNA/Act 10 of 2018 insofar as
                 the registration period exceeds the statutory
                 maximum penalty for child pornography under 18
                 Pa.C.S.[A.] § 6312, and criminal use of a
                 communication facility under 18 Pa.C.S.[A.] § 7512?

              B. Was the court authorized by law to impose a punitive
                 sentence of registration under SORNA, or Act 10 of
                 2018, insofar as the [A]cts are punitive, unlawful and
                 unconstitutional pursuant to Commonwealth v.
                 Muniz, 164 A.3d 1189 (Pa. 2017)?

Appellant’s Brief, at 4.4

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level. This
       review is limited to the findings of the PCRA court and the evidence
       of record. We will not disturb a PCRA court’s ruling if it is supported
       by evidence of record and is free of legal error. This Court may
       affirm a PCRA court’s decision on any grounds if the record
       supports it. Further, we grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. However, we afford no
       such deference to its legal conclusions. Where the petitioner raises
       questions of law, our standard of review is de novo and our scope
       of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).




____________________________________________


4 We note that even though Carrigg phrases his claims in terms of the court’s
imposition of lifetime registration under SORNA, we clarify that the court is
required only to notify a defendant of registration requirements; the
registration terms are authorized by the legislature.

                                           -3-
J-S64028-19



      Carrigg first argues his sentence is illegal because a lifetime registration

requirement exceeds the statutory maximum penalty for the crimes of child

pornography and criminal use of a communications facility. No relief is due.

      In Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. 2018), we

stated: “SORNA’S registration requirements are an authorized punitive

measure separate and apart from Appellant’s term of incarceration,” and are

not governed by statutory maximum penalties.                Id. at 173.        In

Commonwealth Martin, 205 A.3d 1247 (Pa. Super. 2019), this Court,

relying on Strafford and Commonwealth v. Bricker, 198 a.3d 371 (Pa.

Super. 2018), explained that SORNA’s registration requirements are not

governed by the statutory maximum sentences set forth in Chapter 11 of the

Crimes Code. Martin, 205 A.3d at 1250. Thus, the lifetime registration

requirement authorized by SORNA does not constitute an illegal sentence.

      Next, Carrigg argues that the requirement that he register under

SORNA/Act 10 is illegal inasmuch as the registration requirements are punitive

and unconstitutional pursuant to Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017). Carrigg misapprehends the application of Muniz.

      The Muniz Court held that SORNA’s registration requirements constitute

criminal punishment, and thus, their retroactive application to increase a

sexual offender’s term of registration violates the ex post facto clauses of the

United States and Pennsylvania Constitutions.       Muniz, 164 A.3d at 1193,

1223. Here, Carrigg’s crimes occurred in June of 2017, thus he was always




                                      -4-
J-S64028-19



subject to SORNA, which was enacted on December 20, 2012, and there is no

issue with respect to ex post facto punishment.

     Critical to relief under the ex post facto clause is not an individual’s
     right to less punishment, but the lack of fair notice and
     governmental restraint when the legislature increases
     punishment beyond what was prescribed when the crime
     was consummated. Based on these concerns, [in Calder v.
     Bull, 3 U.S. 386 (1798),] Chief Justice Chase set out four
     categories of laws that violate such prohibitions:

         1st. Every law that makes an action done before the passing
         of the law, and which was innocent when done, criminal;
         and punishes such action. 2nd. Every law that aggravates a
         crime, or makes it greater than it was, when committed.
         3rd. Every law that changes the punishment, and
         inflicts a greater punishment, than the law annexed
         to the crime, when committed. 4th. Every law that alters
         the legal rules of evidence, and receives less, or different,
         testimony, than the law required at the time of the
         commission of the offense, in order to convict the offender.

     Furthermore, two critical elements must be met for a criminal or
     penal law to be deemed ex post facto: it must be retrospective,
     that is, it must apply to events occurring before its enactment,
     and it must disadvantage the offender affected by it. As such,
     [o]nly those laws which disadvantage a defendant and fall within
     a Calder category are ex post facto laws and constitutionally
     infirm. The ex post facto clauses of the United States and
     Pennsylvania Constitutions are implicated here because a holding
     rendering the effects of SORNA’s registration requirements
     punitive would place the statute into the third Calder category:
     application of the statute would inflict greater punishment on
     appellant than the law in effect at the time he committed his
     crimes.

Muniz, 164 A.3d at 1195–96 (quotation marks, unnecessary capitalization,

and some citations omitted) (emphasis added). As this Court recognized in

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

banc),   “[t]he   Muniz   Court   held   that   Pennsylvania’s    SORNA     is   an

                                      -5-
J-S64028-19



unconstitutional ex post facto law when applied retroactively to those sexual

offenders convicted of applicable crimes before the act’s effective[] date and

subjected to increased registration requirements       under SORNA after its

passage.” Id. at 1095 (emphasis added).

       Unlike in Muniz, the ex post facto clause of the Pennsylvania

Constitution is not implicated here because application of SORNA’s or Act 10’s5

registration requirements would not inflict greater punishment on Carrigg

than the law in effect at the time he committed his crimes. Muniz, supra.

Accordingly, we find no error in the PCRA court’s denial of relief. Ford, supra.

We, therefore, affirm the PCRA order.

       Order affirmed.




____________________________________________


5 Act 10 (now Act 29) (2018), Feb. 21, P.L. 27, No. 10, § 6, imd. effective.
Reenacted 2018, June 12, P.L. 140, No. 29, § 4, imd. effective (referred to
collectively as Act 10), was enacted in response to Muniz and
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
granted, 190 A.3d 581 (Pa. 2018) (Table) (concluding challenge to appellant’s
increased registration requirements under SORNA implicated legality of
sentence imposed).       Essentially, Act 10 sought to eliminate SORNA’s
“punitive” effects. We note that the issue of whether Act 10 (now Act 29) is
unconstitutional in light of Muniz is also before the Pennsylvania Supreme
Court. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

                                           -6-
J-S64028-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2020




                          -7-
