J-E01004-17

                               2018 PA Super 245


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CARLOS FERNANDEZ                        :
                                         :
                   Appellant             :   No. 1888 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0902501-2005

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DEBORAH JEDRZEJ                         :
                                         :
                   Appellant             :   No. 1900 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1110002-2004

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSEPH LEWIS                            :
                                         :
                   Appellant             :   No. 1904 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000638-2010

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
J-E01004-17


              v.                        :
                                        :
                                        :
 A.M.,                                  :
                                        :
                   Appellant            :   No. 1907 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003016-2009

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 CARL C. CORBIN                         :
                                        :
                   Appellant            :   No. 1909 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0006112-2010

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 WILLIE COLBERT                         :
                                        :
                   Appellant            :   No. 1913 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0907851-1996

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ALBERT DONNELLY                        :

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J-E01004-17


                                        :
                   Appellant            :   No. 1917 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0206991-2001

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 VICTOR DEFLICE                         :
                                        :
                   Appellant            :   No. 1918 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0108471-2004

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 APRIL GREGHINI                         :
                                        :
                   Appellant            :   No. 1936 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0806121-2005

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 TRACY L. MCKINNEY                      :
                                        :
                   Appellant            :   No. 1939 EDA 2015



                                  -3-
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                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CP-0006404-2009

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 JOSE MELENDEZ                          :
                                        :
                   Appellant            :   No. 1940 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1110221-2004

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 MARIANO ORTIZ                          :
                                        :
                   Appellant            :   No. 1941 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0203931-2006

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ROBERT NED                             :
                                        :
                   Appellant            :   No. 1943 EDA 2015

                   Appeal from the Order June 15, 2015




                                  -4-
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 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012780-2008

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 MICHAEL STANGER                        :
                                        :
                   Appellant            :   No. 1944 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012763-2010

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ALBERT WILSON                          :
                                        :
                   Appellant            :   No. 1945 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0005469-2008

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 TYREK WHITE                            :
                                        :
                   Appellant            :   No. 1946 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012967-2008



                                  -5-
J-E01004-17


 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ALBERT TILSON                          :
                                        :
                   Appellant            :   No. 1947 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003959-2010

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 FRANK GARCIA                           :
                                        :
                   Appellant            :   No. 1948 EDA 2015

                   Appeal from the Order June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003899-2011

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 MICHAEL T. LOVELACE                    :
                                        :
                   Appellant            :   No. 2039 EDA 2015

               Appeal from the Order Entered June 15, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): MC-51-CR-0050091-2008


BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS,
        J., OLSON, J., DUBOW, J., MOULTON, J., and SOLANO, J.


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DISSENTING OPINION BY BOWES, J.:               FILED SEPTEMBER 05, 2018

      In these consolidated appeals, Appellants were convicted of varying

offenses that were subject to sexual offender registration obligations pursuant

to the body of laws generically referred to as “Megan’s Law.”      Later, each

violated probation and was resentenced. In the intervening years, Megan’s

Law was replaced by SORNA, which imposed more onerous obligations than

which existed at the time of Appellants’ pleas. Appellants sought to avoid the

more stringent requirements by filing motions seeking enforcement of the

sexual offender registration obligations in effect at the time of their guilty

pleas, based upon Commonwealth v. Hainesworth, 82 A.3d 444 (Pa.Super.

2013) (en banc) (affirming order of trial court that stated appellee was not

required to register as a sex offender as result of plea bargain).        See

Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016) (approving

Hainesworth).

      The trial court denied each petition, relying on Commonwealth v.

Partee, 86 A.3d 245 (Pa.Super. 2014), which held that a probation violation

constituted a failure to abide by the terms of the plea agreement, thereby

voiding that agreement.    This en banc panel was set to address whether

Partee should be overruled.     Rather than decide that issue, the learned

Majority chooses to answer a wholly different question, namely, whether

Appellants are now serving an illegal sentence due to the subsequent holding

in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (OAJC), which


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declared SORNA to constitute punishment. The Majority does not address the

fundamental restriction in our plea enforcement line of cases, which is that we

could not reach issues pertaining to the legality of the sentences.          We

therefore lack jurisdiction to apply Muniz retroactively, as the Majority has

done. Moreover, the sua sponte decision to address Appellants’ sentences is

unnecessary, as the Legislature has amended SORNA and applied Muniz

retroactively. Finally, the Legislature enacted Act 10 to fill in the gap caused

by the retroactive application of Muniz. Accordingly, I dissent.

      Preliminarily, I disagree with the Majority’s framing of what is at issue

in these appeals. The Majority states that the trial court “ordered Appellants

to comply with the new registration conditions and terms assigned to their

crimes under SORNA,” and then elects to apply Muniz to these cases. “We

are constrained to order that under Muniz, the trial court may not increase

their registration requirements under SORNA.” Majority Opinion at 7-8. This

characterization is incorrect. Appellants’ SORNA obligations were imposed by

the Legislature and the Pennsylvania State Police, not the trial court. The trial

court simply denied motions seeking restoration of non-SORNA obligations as

contained within their plea agreements.

      Muniz has nothing to do with whether Appellants are entitled to

restoration of their prior plea bargains. The specific question presented on

appeal was: “Whether Appellants’ plea agreements should be enforced with

respect to the length or fact of sexual offender registration where they violate


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a condition of probation?” Appellants’ brief at 2. Muniz did not abrogate

Partee’s holding that criminal defendants who breach their plea agreements

by violating the terms of probation are not entitled to enforcement of their

bargains. I would apply Partee, which I believe was correctly decided, and

hold that Appellants’ breach of their agreement precludes enforcement of the

earlier bargain. I would therefore affirm the orders.

      This resolution would theoretically leave the SORNA portions of

Appellants’ sentences intact, but for the subsequent legislative action,

discussed infra. The Majority endeavors to address that point, by avoiding

the question presented on appeal and answering whether this Court should

address the legality of Appellants’ sentences by retroactively applying the

holding in Muniz. We do not have jurisdiction to do so.

      These cases are appeals from orders denying motions to enforce plea

agreements, and a critical point in Hainesworth and its progeny was whether

such motions were subject to the PCRA, since, if so, such motions would have

to comply with the PCRA’s one-year time bar. The Majority declines to discuss

how we may address the legality of Appellants’ sentences in a non-PCRA

setting by observing that there is “no reason to conclude Muniz overruled our

jurisdiction to review the decisions of trial courts to enforce plea bargains,

especially given Martinez.”    Majority Opinion, at 21-22.     Relatedly, the

Majority states that “we may correct an illegal sentence sua sponte so long as




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we maintain jurisdiction over the case.”1 Id. at 22. I agree that Muniz did

not overrule our jurisdiction to enforce plea agreements, but that is because

Muniz has nothing to do with plea agreements.

       The Majority erroneously assumes that we may apply Muniz’s holding

to these Appellants by asserting that Muniz abrogated Partee. I agree with

that statement insofar as Muniz holds that requiring persons convicted of

offenses without adequate notice of the SORNA obligations cannot be ordered

to comply with SORNA. The problem, however, is that this conclusion does

not supply an answer as to whether Muniz’s rule retroactively applies to these

offenders. Our current precedents hold that Muniz does not satisfy the

exception to the PCRA’s one-year time bar pertaining to new constitutional

rights.    Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018).

Therefore, our Court continues to affirm judgments of sentence that are no

less unconstitutional than Appellants’ sentences. The existence of Murphy

disproves the Majority’s statement that “reclassifications of the Appellants

after the effective date of SORNA cannot stand.”             Majority Opinion at 26.

Murphy      accepts     that   SORNA       classifications   may   remain   in   place

notwithstanding Muniz, and we therefore cannot simply ignore Partee


____________________________________________


1 Suppose a defendant files a motion for a return of property seized during
the criminal proceedings. No one would suggest that the court’s jurisdiction
to address that matter gives the court jurisdiction to address the legality of
any sentence imposed in that case.



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despite the fact that affirming on that basis raises the possibility of affirming

a sentence that Muniz says is illegal.2

       Therefore, the Majority seeks to apply Muniz retroactively, without

acknowledging the fact that the continuing existence of cases like Murphy

means that Muniz would henceforth apply in a disparate fashion.3

____________________________________________


2 The Majority has overlooked the distinction between jurisdiction to address
the legality of sentence, and what body of law applies to the legality of that
sentence. As this Court has observed with respect to attempts to apply
Alleyne v. United States, 570 U.S. 99 (2013) in collateral proceedings:

       Appellant conflates the concept of illegal sentences with
       whether Alleyne can be applied retroactively in the collateral
       review context. [Our Supreme Court] clearly articulated that the
       fact that Alleyne may raise a legality-of-sentence issue does not
       obviate the need for a retroactivity analysis as to
       whether Alleyne can be applied to a collateral attack on a
       judgment of sentence.

Commonwealth v. Ciccone, 152 A.3d 1004, 1007 (Pa.Super. 2016)
(en banc).

3  Whether that would be permissible is a difficult question. This Court has
held that Muniz created a substantive rule of constitutional law that must
apply retroactively in timely PCRA proceedings. Commonwealth v. Rivera–
Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017). Simultaneously, Muniz does
not satisfy the PCRA’s time-bar exception pertaining to newly-announced
constitutional rights. Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super.
2018). Therefore, similarly-situated offenders, i.e. persons whose criminal
sentences were already final when Muniz was announced, are treated
differently.

While I believe that Murphy was correctly decided as a matter of statutory
interpretation, States are arguably prohibited from refusing to grant
retroactive effect to new substantive rules of constitutional law.    See
Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (States required to give
retroactive effect to such rules). Montgomery controls as to questions of



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Fortunately, this issue is one we need not answer since the Legislature has

already applied Muniz retroactively.           In response to Muniz, the General

Assembly amended SORNA to include the following language: “This

subchapter shall apply to individuals who committed a sexually violent offense

on or after December 20, 2012, for which the individual was convicted.” 42

Pa.C.S. § 9799.11(d). That language has freed Appellants and all offenders

who committed their crimes before SORNA was law from its punitive

obligations, which is precisely what Muniz demands. Thus, the Legislature

has itself applied Muniz retroactively and has abrogated Murphy.4

____________________________________________


federal law. “If a state collateral proceeding is open to a claim controlled
by federal law, the state court has a duty to grant the relief that federal law
requires. Id. at 731 (emphasis added, quotation marks and citation omitted).
In turn, we have held that the binding precedent in Muniz “is confined to the
determination that SORNA’s registration requirement is punishment that runs
afoul of the ex post facto clause of the Pennsylvania Constitution when applied
retroactively.” Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa.Super.
2017).

If Muniz simply represents the announcement of a pure state law claim,
disparate retroactive application may or may not be permissible.              Cf.
Commonwealth v. Cunningham, 81 A.3d 1, 8 (Pa. 2013) (noting that the
federal retroactivity model “is not necessarily a natural model for retroactivity
jurisprudence as applied at the state level.”). Suffice to say, the necessity of
applying Muniz in the absence of controlling legislation is a complicated
question, and one we need not decide.

4 To the extent that the Majority disagrees with my position that the
Legislature has retroactively applied Muniz, I would note that the Majority
has crafted a retroactivity scheme in which only some offenders receive the
benefit of Muniz. Offenders who have no plea bargain to enforce or elected
to go to trial cannot take advantage of the Majority’s theory, yet they too are
serving unconstitutional sentences that the Majority posits “cannot stand.”



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        Additionally, effective February 21, 2018, the Legislature enacted Act

10, which added a new subchapter to SORNA, “Continued Registration of

Sexual Offenders.”5 42 Pa.C.S. §§ 9799.51-9799.75. The stated purpose of

Act 10 was, inter alia, to address Muniz, and it applies to the following

individuals:

        This subchapter shall apply to individuals who were:

        (1) convicted of a sexually violent offense committed on or after
        April 22, 1996, but before December 20, 2012, whose period of
        registration with the Pennsylvania State Police, as described in
        section 9799.55 (relating to registration), has not expired; or

        (2) required to register with the Pennsylvania State Police under
        a former sexual offender registration law of this Commonwealth
        on or after April 22, 1996, but before December 20, 2012, whose
        period of registration has not expired.

42 Pa.C.S. § 9799.52.

         Additionally, I note that the Majority declares that “Appellants are

instead subject to the original periods of sexual offender registration and

conditions imposed at the time of their plea bargains, if applicable.” Majority

Opinion at 29. It is unclear what the opaque language “if applicable” means,

and the Majority dispenses with the need to answer that question by claiming

that the issue is not before us.               The Majority has fashioned a kind of

severability law by reviving the former obligations through judicial fiat.

        However, the issue of the possible retroactive application of the
        legislature’s new amendments to Appellants is not before us. The
____________________________________________



5   Act 29 of 2018 reenacted Act 10, effective June 12, 2018.

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J-E01004-17


      only issue raised by Appellants, and argued to the Court, was
      whether the reclassification under the then-existing version of
      SORNA, as applied to each Appellant, was lawful. Under Muniz,
      we hold that the more onerous registration requirements under
      these reclassifications are barred. Unless and until the
      Pennsylvania State Police attempt to again reclassify Appellants,
      this time under Act 29, and this new reclassification is challenged,
      this issue is not before the Court.

Majority Opinion at 28 (footnote omitted).

      Speaking to this point, it appears to me that the enabling legislation of

SORNA may have eliminated all prior versions of Megan’s Law. See 42 Pa.C.S.

§ 9799.41 (listing provisions that shall expire on December 20, 2012);

Derhammer, supra at 726 (“As noted, Megan's Law III expired and was

replaced by SORNA[.]”). There is some confusion regarding whether Megan’s

Law II continued to exist following the enactment of Megan’s Law III. See id.

at 725 n.4 (“Megan’s Law III did not completely repeal and replace Megan’s

Law II; rather, it made significant changes to Megan’s Law II.”). Nevertheless,

the notion that some remnants of Megan’s Law II survive in vestigial form

seems questionable, and I am skeptical of an analytical framework that

requires Appellants to comply with statutes that may no longer exist.

      Finally, the Majority emphasizes that its disposition is simply giving

Appellants what they asked for: the restoration of their prior obligations.

However, the Appellants are not entitled to that relief under Partee, and, in

any event, that relief was sough in a pre-Muniz world. We do not know if

Appellants herein would continue to ask for restoration of their prior bargains

post-Muniz and the changes in law. It may be that some of these Appellants

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J-E01004-17


would pursue the theory outlined above, that in the absence of SORNA

obligations, all prior obligations were eliminated. Or perhaps they would wish

to pursue some other theory. The Majority has rendered an advisory opinion

on this point, finding, without the benefit of any advocacy, that Appellants

must comply with their previous obligations.

      “[W]e have known that, from time to time, judicial decisions will leave

a law in pieces. It is the legislators' (and not the judges') job to put those

pieces back together. We interpret the law. We do not make it.” Derhammer,

supra at 733 (Pa. 2017) (Wecht, J., concurring). Muniz left the law in pieces,

and we could not do the work of putting it back together even if the Legislature

had opted to remain silent. But they have spoken, and there is no need to

create a cacophony by adding our voice. I therefore respectfully dissent.




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