J-S38024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL HOMER SUPERNAW                     :
                                               :
                       Appellant               :   No. 1696 WDA 2017

                 Appeal from the PCRA Order November 2, 2017
    In the Court of Common Pleas of Washington County Criminal Division at
                        No(s): CP-63-CR-0002913-2015


BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 29, 2018

        Appellant Michael Homer Supernaw appeals from the order denying his

first timely Post Conviction Relief Act1 (PCRA) petition. Appellant claims that

he is entitled to reconsideration of his eligibility for the Recidivism Risk

Reduction Incentive2 (RRRI) program in light of Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017).3 We affirm.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   61 Pa.C.S. §§ 4501-4512.

3  Muniz held that retroactive application of the former version of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S. §§ 9799.10-9799.41, violated the federal and state ex post facto
clauses. Muniz, 164 A.3d at 1193.
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       The parties are familiar with the facts and procedural history of this

appeal and agree to the following matters. In 2009, Appellant pled guilty to

interference with the custody of children4 (2009 conviction).           Initially,

Appellant’s 2009 conviction did not require him to register as a sexual

offender.     However, in 2012, the former version of the Sex Offender

Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41

(Subchapter H) (subsequently amended) took effect. Under that version of

Subchapter H, Appellant’s 2009 conviction required him to register for a period

of fifteen years.

       In the instant case, Appellant entered a negotiated guilty plea to driving

under the influence (DUI)-third or subsequent offense, receiving stolen

property, and driving under suspension-DUI related.5 On April 1, 2016, the

trial court accepted Appellant’s plea and sentenced him to an aggregate term

of two to five years’ imprisonment. Although the trial court did not consider

RRRI at the time of sentencing, there is no dispute that Appellant was deemed




____________________________________________


4 18 Pa.C.S. § 2904. A review of the public dockets reveals that Appellant
pled guilty to interference with custody of children at CP-63-CR-0000022-
2008. According to the docket, Appellant’s charge was graded as a felony of
the second degree.

5 75 Pa.C.S. § 3802(c), 18 Pa.C.S. § 3925, and 75 Pa.C.S. § 1543(b)(1),
respectively.




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ineligible for the program.6 Appellant did not file post-sentence motions or

take a direct appeal.

       On September 26, 2016, the PCRA court docketed Appellant’s pro se

PCRA petition giving rise to this appeal. The PCRA court appointed present

counsel (Counsel) to represent Appellant. Counsel filed an amended petition

claiming that Appellant’s guilty plea was involuntary and unknowing due to

the ineffective assistance of plea counsel.7 On October 5, 2017, the PCRA

court conducted a hearing on Appellant’s ineffectiveness claims, and on

October 31, 2017, entered the order denying relief.

       Appellant timely appealed.          In his court-ordered Pa.R.A.P. 1925(b)

statement, Appellant for the first time raised a claim that he was eligible for

RRRI in light of Muniz. The PCRA court declined to address that issue finding

it waived due to Appellant’s failure to present it in his PCRA petition or an




____________________________________________


6 RRRI eligibility is governed by 61 Pa.C.S. § 4503. As discussed below,
Section 4503 excludes defendants convicted of an offense listed in Subchapter
H or convicted of a “personal injury crime” from the RRRI program. 61 Pa.C.S.
§ 4503(3)-(4).

7 The Pennsylvania Supreme Court decided Muniz on July 19, 2017, while
Appellant’s PCRA petition was pending. Appellant did not seek leave to amend
his petition to raise a claim based on Muniz in the present case. Counsel,
however, states that he separately petitioned for the removal of Appellant’s
registration requirement in light of Muniz and that the court granted relief
with respect to Appellant’s 2009 conviction.




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amended petition. PCRA Ct. Op., 2/2/18, at 15. In any event, the court noted

that Appellant failed to prove he was eligible for RRRI.8 Id. at 16.

       Appellant raises a single issue in this appeal: “Whether [Appellant] is

currently serving an illegal sentence, which can be raised at any time, where

a RRRI minimum sentence was not imposed and [Appellant] is now statutorily

eligible for RRRI?”9 Appellant’s Brief at 4.

       Appellant initially asserts that this Court may consider his RRRI claim as

a challenge to the legality of the sentence that cannot be waived on appeal.

Id. at 8 (citing Commonwealth v. Tobin, 89 A.3d 663 (Pa. Super. 2014);

Commonwealth v. Robinson, 7 A.3d 868 (Pa. Super. 2010)). Appellant

further asserts that he is eligible for RRRI because his 2009 conviction is no

longer subject to a Subchapter H registration requirement in light of Muniz.

Appellant requests that this Court vacate the judgment of sentence and

remand for the imposition of a RRRI sentence.           Id. at 13.     Appellant

alternatively requests a remand to develop the record and determine whether

he is RRRI eligible. Id. at 12 n.5.




____________________________________________


8 Appellant’s Rule 1925(b) statement included claims that the PCRA court
erred in denying his claims of ineffective assistance of counsel. The court
responded that those claims were meritless. PCRA Ct. Op., 2/2/18, at 3-14.

9 Appellant has abandoned his ineffective assistance counsel claim in this
appeal. See Pa.R.A.P, 2116(a), 2119(a).




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       The Commonwealth does not assert that Appellant waived his RRRI

claim and does not oppose a remand for further development of the record.10

See Commonwealth’s Brief at 7. Alternatively, the Commonwealth argues

that the appeal could be dismissed as “moot” because Appellant’s 2009

conviction makes him ineligible for RRRI on another basis.          Id. at 9.

Specifically, the Commonwealth asserts that the Subchapter H registration

requirement is immaterial because the interference with the custody of

children constitutes a personal injury crime disqualifying Appellant from RRRI.

Id.

       Eligibility for RRRI has been regarded as implicating the legality of a

sentence. Tobin, 89 A.3d at 669; Robinson, 7 A.3d at 871. Therefore, a

claim that a defendant is RRRI eligible is not subject to waiver and may be

addressed sua sponte. Tobin, 89 A.3d at 670.

       Appellant’s claim that he is eligible for RRRI raises a question of

statutory interpretation and the application of 61 Pa.C.S. § 4503. Thus, our

standard of review is de novo, and our scope of review is plenary.

Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1241 (Pa. 2017).

       Section 4503, in relevant part, defines the persons eligible for RRRI as

follows:




____________________________________________


10 The Commonwealth also alleges that Appellant has been convicted of other
offenses that could disqualify him from RRRI. See Commonwealth’s Brief at
11 n.1.

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          A defendant or inmate convicted of a criminal offense who
          will be committed to the custody of the department and who
          meets all of the following eligibility requirements:

                                    ***

            (3) Has not been found guilty of or previously convicted
            of or adjudicated delinquent for or an attempt or
            conspiracy to commit a personal injury crime as defined
            under section 103 of the act of November 24, 1998 (P.L.
            882, No. 111),[] known as the Crime Victims Act, except
            for an offense under 18 Pa.C.S. § 2701 (relating to simple
            assault) when the offense is a misdemeanor of the third
            degree, or an equivalent offense under the laws of the
            United States or one of its territories or possessions,
            another state, the District of Columbia, the
            Commonwealth of Puerto Rico or a foreign nation.

            (4) Has not been found guilty or previously convicted or
            adjudicated delinquent for violating any of the following
            provisions or an equivalent offense under the laws of the
            United States or one of its territories or possessions,
            another state, the District of Columbia, the
            Commonwealth of Puerto Rico or a foreign nation:

                                    ***

               Any offense for which registration is required under 42
               Pa.C.S. Ch. 97 Subch. H (relating to registration of
               sexual offenders).

61 Pa.C.S. § 4503(3)-(4) (emphasis added).        For the purpose of Section

4503(3), a “personal injury crime” includes, in relevant part, “[a]n act,

attempt or threat to commit an act which would constitute a misdemeanor or

felony under . . . 18 Pa.C.S. Ch. 29 (relating to kidnapping).”     18 P.S. §

11.103.

     Instantly, there is no dispute that Appellant’s 2009 conviction involved

interference with the custody of children.    That offense is codified under


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Chapter 29 of Title 18. See 18 Pa.C.S. § 2904(a). At a minimum, the offense

constitutes a misdemeanor of the second degree. See 18 Pa.C.S. § 2904(c).

Thus, as noted by the Commonwealth, interference with the custody of

childern constitutes a “personal injury crime,” which renders Appellant

ineligible for RRRI under Section 4503(3). See 61 Pa.C.S. § 4503(3).

      Accordingly, Appellant’s argument based on Muniz fails to establish that

he meets all the conditions for eligibility as required by Section 4503. Because

Appellant’s 2009 conviction disqualifies him from RRRI under 61 Pa.C.S. §

4503(3), we need not address Appellant’s narrow contention that Muniz

altered his eligibility for RRRI under 61 Pa.C.S. § 4503(4).     Lastly, having

reviewed the arguments in a light most favorable to Appellant, we discern no

need to remand this matter for further proceedings in the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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