J-S39038-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
            Appellee                     :
                                         :
     v.                                  :
                                         :
RUSSELL BARRY HARKINS,                   :
                                         :
           Appellant                     :   No. 66 WDA 2017

              Appeal from the PCRA Order December 6, 2016
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0002213-2002

BEFORE:    BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED AUGUST 18, 2017

     Russell Harkins (Appellant) appeals from the order entered on

December 6, 2016, in which the trial court denied Appellant’s motion to

enforce the terms of his plea agreement and preclude application of the Sex

Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-

9799.41.   After review, we vacate the trial court’s order and remand for

proceedings consistent with this memorandum.

     On September 26, 2002, Appellant was charged with one count of

criminal attempt, one count of rape, two counts of involuntary deviate

sexual intercourse (IDSI), five counts of indecent assault, and one count of

corruption of minors for conduct alleged to have occurred in May 2002.

Appellant agreed to plead guilty to two counts of IDSI, three counts of

indecent assault, and one count of corruption of minors; in exchange, the



*Retired Senior Judge assigned to the Superior Court.
J-S39038-17


Commonwealth agreed to nolle prosse the remaining counts.                See

Defendant’s Statement of Understanding of Rights Prior to Guilty/No Contest

Plea, 10/7/2002.

      Appellant’s plea was accepted by the court, and on November 25,

2002, Appellant was sentenced to five to twelve years of incarceration for

IDSI at count three; five to twelve years of incarceration for IDSI at count

four, concurrent to count three; one to two years of incarceration for each

count of indecent assault at counts five, six and seven, concurrent to count

three; and one to two years of incarceration for corruption of minors at

count ten, concurrent to count three.     At the time Appellant plead guilty,

IDSI was an enumerated offense under the then-current version of Megan’s

Law, commonly known as Megan’s Law II, requiring Appellant to register

with the state police for the remainder of his lifetime.   See 42 Pa.C.S. §

9795.1(b)(2) (expired).

      Prior to entering into his plea, Appellant signed a written Megan’s Law

colloquy indicating, inter alia, that he understood as a result of pleading

guilty to two counts of IDSI, he would be “required to register with the

Pennsylvania State Police for a period of ________ (at least ten [] years or

lifetime)” from his release from incarceration.    Addendum to Guilty Plea

Statement Sexually Violent Offenders, 10/7/2002, at 1 (emphasis in

original).   The space was left blank and no exact term was specified.    No

post-sentence motion or direct appeal was filed.



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      Appellant was paroled to a community correction center on December

10, 2010, and his sentence expired on May 24, 2014.               Meanwhile, on

December 20, 2011, the legislature enacted SORNA. See 42 Pa.C.S.

§§ 9799.10 and 9799.41. SORNA became effective on December 20, 2012.

SORNA increased the registration period for certain crimes, but the

registration requirement for those convicted of IDSI remained a lifetime

registration. Compare 42 Pa.C.S. § 9795.1(b)(2) (expired) with 42 Pa.C.S.

§ 9799.14(d)(4) and § 9799.15(a)(3).        Although it did not increase the

period of registration for IDSI, SORNA did enhance registration requirements

for IDSI and other Tier III offenses, including quarterly in-person reporting

and   dissemination   of   personal   information   via   an   Internet   website.

Commonwealth v. Muniz, __ A.3d __ (Pa. July 17, 2017) (slip. op. at 40),

(citing Commonwealth v. Perez, 97 A.3d 747, 765 (Donohue, J.

concurring)). Because Appellant was still required to register with the state

police at the time SORNA went into effect, SORNA purported to impose the

new registration requirements and other provisions of SORNA on him

retroactively. 42 Pa.C.S. § 9799.13(3)(i) (requiring any individual who had

not completed his or her registration period under prior registration statutes

as of SORNA’s December 20, 2012 effective date to register and comply with

SORNA).

      On July 20, 2016, Appellant filed pro se a motion, wherein he argued

that SORNA should not apply to him.       Motion to Enforce Specific Terms of



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Plea Agreement, 7/20/2016, at 1.      Interpreting Appellant’s motion as a

petition under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546, the trial court appointed Attorney William Hathaway as counsel for

Appellant and permitted counsel to file a supplemental petition.    Attorney

Hathaway did so on October 17, 2016, arguing, inter alia, that SORNA

cannot ex post facto impose heightened and more punitive conditions upon

Appellant. Supplement to Motion for Post-Conviction Relief, 10/17/2016, at

1.

     On November 9, 2016, the trial court issued notice of its intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907,

and dismissed Appellant’s petition by order dated December 6, 2016.

     This timely-filed appeal followed.1   Both Appellant and the trial court

complied with the mandates of Pa.R.A.P. 1925.

     Appellant raises one issue for our review:

     Whether the lower court committed legal error and abused its
     discretion in failing to grant PCRA relief in that the terms of
     [Appellant’s] plea agreement were violated in that he should be
     subject to the reporting requirements then existing at the time
     of the entry of the pleas [sic] and not the heightened
     requirements of SORNA passed in 2011?

Appellant’s Brief at 2.   Although Appellant’s analysis is rather sparse,

Appellant maintains his argument on appeal that SORNA cannot impose


1
 Appellant filed a notice of appeal pro se on December 14, 2016. The clerk
of records for Erie County forwarded it to Attorney Hathaway pursuant to
Pa.R.Crim.P. 576(A)(4), who then filed a notice of appeal on Appellant’s
behalf on January 5, 2017.


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heightened     and   more   punitive   conditions   upon   him   ex   post   facto.

Appellant’s Brief at 4.

        While this appeal was pending, our Supreme Court issued its decision

in Muniz.2 Muniz was convicted of two counts of indecent assault in 2007.

He was scheduled for sentencing later that year, “at which time he would

have been ordered to register as a sex offender with the Pennsylvania State

Police for a period of ten years pursuant to then-effective Megan’s Law III.”3

Muniz, __ A.3d at __ (slip. op. at 2) (citing 42 Pa.C.S. § 9795.1 (expired)).

Before he could be sentenced, Muniz absconded, and was later sentenced in

2014 after he was apprehended. Id. at __ (slip. op. at 2-3).

        At his sentencing in 2014, Muniz was ordered to comply with lifetime

registration provisions under SORNA, which had replaced Megan’s Law III in

his absence. Muniz filed a post-sentence motion seeking application of the

ten-year registration period under Megan’s Law III instead of lifetime

registration under SORNA. After his motion was denied by the trial court,

Muniz appealed to this Court, claiming, inter alia, that retroactive application

of SORNA violates the ex post facto clauses of the United States and



2
  Based on the law existing at the time, the lower court erred by treating
Appellant’s initial motion, which sought to enforce the terms of his plea
agreement and preclude application of SORNA, as a PCRA petition. See
Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014) (holding
that a petition to enforce the terms of a plea agreement is outside the scope
of the PCRA and traditional contract principles should apply instead).
3
    Megan’s Law III replaced Megan’s Law II.


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Pennsylvania Constitutions.     This Court affirmed Muniz’s judgment of

sentence.

      On appeal, our Supreme Court reversed this Court’s decision and

vacated the portion of the sentence requiring Muniz to comply with SORNA.

Five of the six participating justices held that SORNA’s enhanced registration

provisions constitute punishment, notwithstanding the General Assembly’s

identification of the provisions as nonpunitive, and, further, determined that

retroactive application of SORNA’s registration provisions violates the ex

post facto clause of the Pennsylvania Constitution.4 See Muniz, __ A.3d at

__ (slip. op. at 2); id. at __ (Wecht, J. concurring) (slip. op. at 1-2). The

Court noted that Muniz’s seven-year absence from the Commonwealth did

not affect its decision, because had Muniz been sentenced in 2007 and

subject to registration under Megan’s Law III, pursuant to section 9799.13

of SORNA, his ten-year registration period would have converted to a


4
  The lead opinion, which was authored by Justice Dougherty and joined by
Justices Baer and Donohue, also stated that retroactive application of
SORNA’s registration provisions is unconstitutional under the ex post facto
clause in Article I, Section 10 of the United States Constitution. See Muniz,
__ A.3d at __ (slip. op. at 45). Justice Wecht, in a concurring opinion joined
by Justice Todd, declined to address Muniz’s claim that SORNA also violates
the ex post facto clause of the United States Constitution, preferring to
resolve the case on state grounds only, and further, disagreed with the lead
opinion’s statement that Article 1, Section 17 of the Pennsylvania
Constitution provides more protections than the ex post facto clause of the
federal Constitution. See id. at __ (Wecht, J. concurring) (slip. op. at 1-3).
Nevertheless, Justices Wecht and Todd agreed that SORNA is punitive in
effect, and therefore, that applying SORNA retroactively to Muniz violates
Article I, Section 17 of the Pennsylvania Constitution. Id.



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lifetime registration period when SORNA became effective. Id. at __ (slip.

op. at 3).

      In the instant case, as Appellant acknowledges, he was subject

originally to the registration and reporting requirements of Megan’s Law II.5

See Appellant’s Brief at 3-4. Appellant had not completed his registration

period when SORNA took effect, and section 9799.13 of SORNA purported to

apply SORNA to him. On appeal, Appellant contends SORNA cannot apply to

him. Under Muniz, he is correct.

      Accordingly, we vacate the PCRA court’s order dismissing Appellant’s

motion pursuant to the PCRA and finding that application of SORNA to

Appellant does not violate constitutional ex post facto prohibitions, and

remand for the lower court to re-examine Appellant’s motion in light of

Muniz.




5
  We note that the terms of Appellant’s plea bargain agreement concerning
registration are not clear from the record before us. As described supra, in
the written Megan’s Law colloquy, Appellant agreed that he was required to
register to either a ten-year or lifetime term, but the specific term is left
blank. Addendum to Guilty Plea Statement Sexually Violent Offenders,
10/7/2002, at 1. The certified record does not contain transcripts from
Appellant’s plea or sentencing hearings or the order or opinion by Judge
Connelly regarding registration referenced by the written colloquy. See
Defendant’s Statement of Understanding of Rights Prior to Guilty/No Contest
Plea, 10/7/2002, at 1. Nevertheless, even if Appellant’s plea agreement
subjected Appellant to a lifetime registration term, SORNA enhanced the
registration requirements for IDSI and other Tier III offenses, and
application of these requirements to Appellant retroactively runs afoul of
constitutional ex post facto prohibitions. See Muniz, __ A.3d at __ (slip.
op. at 2, 40).


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     Order     vacated.   Remand   for   proceedings   consistent   with   this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/18/2017




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