J-S32013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SHANE ANTOINE THOMAS                     :
                                          :
                    Appellant             :   No. 1333 MDA 2017

            Appeal from the Judgment of Sentence July 24, 2017
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005820-2002


BEFORE:    PANELLA, J., NICHOLS, J., and PLATT*, J.

JUDGMENT ORDER BY PANELLA, J.                    FILED OCTOBER 12, 2018

      Shane Antoine Thomas appeals from the judgment of sentence entered

in the Lancaster County Court of Common Pleas, following his probation

violation and resentencing. Specifically, Thomas opposes the trial court’s

directive that he register as a sexual offender under the Sexual Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.14,

9799.15. For the following reasons, we affirm in part and vacate in part

Appellant’s judgment of sentence.

      Given our resolution, we briefly summarize the facts and procedural

history as follows. Thomas entered a guilty plea to attempted rape, indecent

assault, simple assault, and terroristic threats. The court sentenced him to an

agreed-upon two to four years of incarceration, followed by ten years of

probation. At sentencing, Thomas also signed a document acknowledging that

he would be a lifetime registrant under then-applicable Megan’s Law II.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Thomas subsequently violated his probation a remarkable six times

afterward. Following the most recent violation, he was sentenced to an

additional three to six years of incarceration. At sentencing, defense counsel

requested an order declaring SORNA inapplicable to Thomas, based on the

Pennsylvania Supreme Court’s recent decision in Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017). The sentencing court denied counsel’s request.

This appeal is now before us.

      Thomas’s sole challenge on appeal is to his status as a sex offender

registrant. Thomas argues that after the Muniz decision, he is no longer

required to register as a sexual offender under SORNA. He posits that he is

therefore released from all sexual offender registration obligations. While

Thomas is correct that he is no longer required to register under SORNA, we

disagree that he is released from all registration requirements.

      “Issues relating to the legality of a sentence are questions of law…. Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017)

(en banc) (citation omitted).

      The Muniz decision found that retroactive application of SORNA violated

both the United States and Pennsylvania’s constitutional provisions against

the imposition of ex post facto laws. See Muniz, 164 A.3d at 1193. Our Court

then confronted the issue of how to address appellants who, sentenced under

Megan’s Law in accordance with plea agreements, then violated these

agreements and were subject to SORNA in Commonwealth v. Fernandez,

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___ A.3d. ___, 2018 WL 4237535 (Pa. Super., filed September 5, 2018) (en

banc). The appellants in Fernandez all accepted plea deals, most of which

included a fixed term of sexual offender registration under then-Megan’s Law

II. The appellants were later resentenced for violations of parole or probation,

and thereafter subject to SORNA’s registration requirements. After the Muniz

decision, appellants challenged the application of SORNA to their cases. The

Fernandez en banc panel found that SORNA registration requirements were

no longer applicable to appellants. However, the Court did not release

appellants from all reporting obligations. Instead, finding that the legislature’s

new Act 29 addressed only the increased length of registration time for certain

crimes under SORNA and not the enhanced registration conditions, the Court

held appellants were subject to the original periods of sexual offender

registration and conditions imposed at the time of their plea bargains.

      Here, Thomas agreed to a lifetime reporting requirement under Megan’s

Law II at the time of his initial guilty plea. After Muniz and Fernandez, we

agree that Thomas cannot be retroactively subject to SORNA’s requirements,

despite violating his probation. Though SORNA’s retroactive application to

Thomas could not have increased his already lifetime reporting requirement,

applying SORNA’s enhanced reporting requirements to Thomas nevertheless

violates   the   dictates   of   Muniz.   See   Muniz,   164    A.3d   at   1193;

Commonwealth v. Horning, ___ A.3d ___, ___, 2018 WL 3372367, *5 (Pa.

Super., filed July 11, 2018). Therefore, we vacate in part Thomas’s judgment

of sentence, to the extent it requires him to register as a sexual offender

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pursuant to SORNA, and hold that Thomas is instead subject to the initial

period of sexual offender registration and corresponding conditions imposed

at the time of his plea bargain. The trial court shall correct the sentence on

remand.

      Judgment of sentence affirmed in part and vacated in part. Case

remanded for proceedings consistent with this judgment order. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2018




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