J-A05039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MICHAEL D. PERRY

                        Appellant                 No. 1022 WDA 2016


               Appeal from the Order Entered June 28, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0011774-1995
                                       CP-02-CR-0011776-1995
                                       CP-02-CR-0011777-1995
                                      CP-02-CR-0011779-1995
                                      CP-02-CR-0011780-1995
                                      CP-02-CR-0011784-1995
                                      CP-02-CR-0011785-1995
                                      CP-02-CR-0011900-1995


BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

JUDGMENT ORDER BY MOULTON, J.:                   FILED AUGUST 25, 2017

     Michael D. Perry appeals, pro se, from the June 28, 2016 order

entered in the Allegheny County Court of Common Pleas denying his motion

to enforce plea agreement.         We reverse and remand in light of the

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

A.3d ____, 2017 WL 3173066 (Pa. July 19, 2017).

     On April 8, 1996, Perry entered a guilty plea to numerous charges,

including rape, kidnapping, indecent assault, corruption of minors, and
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involuntary deviate sexual intercourse.1         That same day, the trial court

sentenced Perry to 10 to 20 years’ incarceration. Perry completed serving

his sentence of incarceration on June 10, 2016.          On February 19, 2016,

Perry filed a motion to enforce plea agreement, arguing that he should be

held exempt from the requirements of the Sexual Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.44, because SORNA

became effective after he pled guilty and an implied term of his plea

agreement was that he would not be required to register as a sex offender.

On June 28, 2016, the trial court denied the motion.        Perry filed a timely

notice of appeal.

       On appeal, Perry raises the following issues:

            1. Did the lower court properly enforce [Perry’s] plea
            agreement where the parties reasonably understood that
            all of [Perry’s] obligations to the Commonwealth of
            Pennsylvania relating to the charges to which [he] pled
            guilty, terminate on June 10, 2016? (Should [Perry] have
            to register as a sex offender?)

            2. Did the Commonwealth via the Department of
            Corrections and Board of Probation and Parole breach
            [Perry’s] plea agreement by applying unlawful rules and
            policies that eliminated [his] chance of release on parole?

            3. Does the irrebuttable presumption doctrine from In Re
            J.B., 107 A.3d [1 (Pa. 2014)] apply to adults as well as
            juveniles, when the risk posed by adult offenders is often
            lower and always more predictable?

Perry’s Am. Br. at 9 (trial court answers omitted).

____________________________________________


       1
           18 Pa.C.S. §§ 3121, 2901, 3126(6), 3601, and 3123, respectively.



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       On July 19, 2017, the Pennsylvania Supreme Court issued its decision

in Muniz, concluding that SORNA’s registration provisions are punitive and,

thus, that retroactive application of SORNA’s registration provisions violates

the ex post facto clauses of the federal and Pennsylvania constitutions.

2017 WL 3173066, at *1.2

       Because     the    application    of    SORNA   to   Perry   appears   to   be

unconstitutional under Muniz, we vacate the order denying the motion to

enforce plea agreement and remand to the trial court for further proceedings

consistent with that decision.3

       Order vacated. Case remanded. Jurisdiction relinquished.




____________________________________________


       2
        While the lead opinion in Muniz was joined in full by only three
Justices, that opinion, read together with the concurring opinion authored by
Justice Wecht and joined by Justice Todd, supports the statement of the
holding set out above. Justice Wecht’s opinion disagreed with the lead
opinion’s conclusion that the Pennsylvania Constitution’s ex post facto clause
provides greater protection than its federal counterpart. The concurring
opinion concluded that:

           [T]he state and federal ex post facto clauses are
           coterminous. Nonetheless, as the lead opinion’s thorough
           analysis makes clear, OAJC at 27-45, applying the federal
           ex post facto standards also leads to the conclusion that
           SORNA is punitive and cannot be applied retroactively.

Muniz, 2017 WL 3173066, at *34 (Wecht, J., concurring).
       3
          Because Perry is no longer incarcerated, Perry’s second issue
challenging the failure to the Board of Probation and Parole to grant him
parole is moot.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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