J-S70031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTONIO GUERRIERO                          :
                                               :
                       Appellant               :   No. 196 MDA 2017

          Appeal from the Judgment of Sentence December 22, 2015
            In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000323-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 27, 2018

       Antonio Guerriero appeals nunc pro tunc1 from the judgment of sentence

imposed on December 22, 2015, in the Court of Common Pleas of Cumberland

County, after a jury found him guilty of failure to comply with registration

requirements under the Sexual Offender Registration and Notification Act

(SORNA), 18 Pa.C.S. § 4915.1(a)(1). The trial court sentenced Guerriero to

a mandatory term of five to ten years’ incarceration.2        Although Guerriero

raises four claims in his brief, we only address the final issue, which is

dispositive. Specifically, Guerriero argues the Pennsylvania Supreme Court’s
____________________________________________


1  Following sentencing, Guerriero filed a pro se “Motion to Reinstate Direct
Appeal Rights and Appoint Conflict Counsel Nunc Pro Tunc.” The trial court
granted this motion on December 30, 2016, and Guerriero, through counsel,
filed a notice of appeal on January 27, 2017.

2We note the Commonwealth’s position that the imposition of the mandatory
sentence requires remand for resentencing. See Commonwealth Brief at 17.
However, based upon our disposition, we do not reach this issue.
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decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert.

denied, Pennsylvania v. Muniz, ___ U.S. ___ [2018 U.S. LEXIS 822] (2018),

requires that his conviction for failure to comply with SORNA registration

requirements be vacated. We agree, and vacate the judgment of sentence

and conviction.

      Guerriero    was   convicted   of   failing   to    comply     with   registration

requirements based upon retroactive application of lifetime registration under

SORNA.    As the trial court explained:

      The testimony revealed [Guerriero] entered a plea of guilty on
      September 26, 2002, in Allegheny County to a charge of
      [i]ndecent [a]ssault graded as a misdemeanor of the first degree.
      Initially, this offense carried with it a ten year registration
      requirement [under Megan’s Law II (42 Pa.C.S. § 9795.1)] but,
      by virtue of a change in the law [SORNA], [Guerriero] became a
      lifetime registrant.

Trial Court Opinion, 4/21/2017, at 2 (record citation omitted).

      On July 19, 2017, while this appeal was pending, the Pennsylvania

Supreme Court issued Muniz, holding 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, 174 A.3d 1094 (Pa. Super. 2017) (en

banc).

      Guerriero admits he did not challenge the constitutionality of SORNA in

the trial court and in his Pa.R.A.P. 1925(b) statement, and that he has raised

the issue for the first time in his brief. He acknowledges:


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             This Court has held that issues regarding the
      constitutionality of a statute can be waived. Commonwealth v.
      Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014). In regard to ex
      post facto challenges, the Court has held that “these arguments
      fall into the category of a sentencing issue that presents a legal
      question rather than a claim that the sentence is illegal.” Id. at
      124. As a result, arguments under the ex post facto clauses are
      waived if not raised in the trial court.

            Based upon the foregoing, it appears that [Guerriero] has
      waived any issues involving the constitutionality of SORNA by not
      raising them in the lower court.

Guerriero’s Brief, at 19.   Guerriero continues:    “However, given the far-

reaching impact of the Supreme Court’s decision in Muniz, [Guerriero]

submits that Muniz should be applied retroactively to his conviction for failure

to comply with registration requirements under the requirements imposed by

SORNA.” Id. at 19-20.

      The Commonwealth, in its brief, takes the position Guerriero has waived

the challenge to the constitutionality of SORNA. See Commonwealth’s Brief,

at 20. However, the Commonwealth posits, “If this Honorable Court does not

find that [Guerriero] waived this issue for appeal and finds that the holding in

Muniz should be applied retroactively, the Commonwealth acknowledges that

[Guerriero’s] conviction stems from an incident that occurred after his initial

ten (10) year registration period would have elapsed.” Id. at 20.

      We are not aware of any published decision concerning retroactive

application of Muniz to a conviction where, as here, the case is on direct

appeal, Muniz was decided while the appeal was pending, and the issue was

not raised before the trial court. However, in Commonwealth v. Rivera-

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Figueroa, 174 A.3d 674 (Pa. Super. 2017), a panel of this Court, which

included two of the present panel members, held that “[t]he recent holding in

Muniz created a substantive rule that retroactively applies in the collateral

context[.]”    Id. at 678.        In Rivera-Figueroa, the appellant’s case was

pending on appeal from the denial of collateral relief when the Pennsylvania

Supreme Court issued the Muniz decision.           Id. at 678-679.   This Court

vacated the order denying PCRA relief and remanded to the PCRA court to

allow the appellant to amend his petition to include a Muniz claim. Id. at

679. It is important to note that Rivera-Figueroa involved a timely-filed Post

Conviction Relief Act3 (PCRA) petition.4

        Even though here, as we have pointed out, Guerriero is proceeding on

direct appeal, we find it appropriate to apply Muniz retroactively to

Guerierro’s conviction based upon Rivera-Figueroa. Otherwise, Guerriero



____________________________________________


3   42 Pa.C.S. §§ 9541-9546.

4 Recently, in Commonwealth v. Murphy, ___ A.3d ___ [541 MDA 2017]
(Pa. Super. February 20, 2018), involving an untimely PCRA petition, this
Court held that the appellant/petitioner was required to demonstrate that the
Pennsylvania Supreme Court has held Muniz applies retroactively in order to
satisfy the time bar exception of 42 Pa.C.S. 9545(b)(1)(iii) (new constitutional
right exception), and because, currently, no such holding has been issued by
our Supreme Court, the appellant/petitioner could not rely on Muniz to meet
that timeliness exception.

       The Murphy Court acknowledged the holding in Rivera-Figueroa and
distinguished the case before it from Rivera-Figueroa. Murphy, __ A.3d at
___ [541 MDA 2017, at 6] (“Appellant’s petition is untimely (unlike the petition
at issue in Rivera-Figueroa[.]”).

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would obtain relief by filing a timely PCRA petition with a Muniz claim, which

would only serve to waste valuable judicial and legal resources. Accordingly,

applying   Muniz    retroactively,   and   in   light   of   the   Commonwealth’s

acknowledgment, we vacate the judgment of sentence and the conviction.

     Judgment of sentence and conviction vacated.            .



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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