J-S12014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRETT MICHAEL SMEAL                        :
                                               :
                       Appellant               :   No. 757 MDA 2018

          Appeal from the Judgment of Sentence Entered April 18, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                        No(s): CP-41-CR-0000287-2017,
                            CP-41-CR-0000499-2018


BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED OCTOBER 30, 2019

       Brett Michael Smeal appeals from the judgment of sentence of six to

twelve years of incarceration that was imposed after he pled guilty to failing

to verify his address and failing to provide accurate registration information,

as required under the Pennsylvania Sex Offender Registration and Notification

Act (“SORNA”).1 Appellant’s counsel, Dance Drier, Esquire, has filed a petition

to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant counsel’s request to withdraw and affirm the judgment of sentence.



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1  This Court does not quash the present appeal, despite Appellant’s failure to
file separate notices at each docket number, as this appeal was filed prior to
the decision in Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018),
which applies prospectively.
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      On September 9, 2013, Appellant was convicted of unlawful contact or

communication with a minor based on an incident that occurred on June 13,

2013, and he was sentenced to six to twenty-three months of incarceration in

the Lycoming County prison.     As a result of this conviction, Appellant was

deemed a Tier II sexual offender, and was required to register for a period of

twenty-five years pursuant to SORNA.

      In December of 2016, Appellant moved from his registered address, but

did not register the change with the Pennsylvania State Police (“PSP”). The

Commonwealth charged Appellant with failing to comply with sexual offender

registration requirements under SORNA. On August 23, 2017, Appellant pled

guilty to the charge in exchange for an agreed-upon sentence of thirteen to

sixty months of incarceration. Sentencing was deferred in order for a pre-

sentence investigation report to be prepared. However, Appellant failed to

appear for sentencing twice, resulting in the revocation of the plea agreement

and his bail.

      In March of 2018, Appellant was charged at a separate information with

twelve counts of failing to provide accurate registration information and three

counts of failing to register with the PSP after Appellant did not provide

accurate information regarding his employment, his Facebook account, and

his email address. On April 18, 2018, Appellant appeared before the trial court

to enter an open guilty plea at both cases. Appellant pled guilty at each case

to one count of failing to register in exchange for the Commonwealth’s




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withdrawal of the remaining charges. The trial court sentenced Appellant to

an aggregate sentence of six to twelve years of incarceration.

      Appellant filed a timely notice of appeal.     The trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement and the clerk of courts to

prepare the appropriate transcripts within fourteen days after receipt of a

request by Appellant. Counsel filed a timely concise statement, but did not

order any transcripts. In response, the trial court authored an opinion.

      Before this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. However, because counsel had not reviewed the hearing

transcripts we denied his request to withdraw and remanded the case for

further proceedings. After requesting and reviewing the transcripts, counsel

filed a second Anders brief and a petition to withdraw as counsel, which

triggers specific requirements:

      Direct appeal counsel seeking to withdraw under Anders must file
      a petition averring that, after a conscientious examination of the
      record, counsel finds the appeal to be wholly frivolous. Counsel
      must also file an Anders brief setting forth issues that might
      arguably support the appeal along with any other issues necessary
      for the effective appellate presentation thereof.

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007).                 Our

Supreme Court has also clarified portions of the Anders procedure:

      [I]n the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel must: (1) provide a summary of the

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        procedural history and facts, with citations to the record; (2) refer
        to anything in the record that counsel believes arguably supports
        the appeal; (3) set forth counsel’s conclusion that the appeal is
        frivolous; and (4) state counsel’s reasons for concluding that the
        appeal is frivolous. Counsel should articulate the relevant facts of
        record, controlling case law, and/or statues on point that have led
        to the conclusion that the appeal is frivolous.

Santiago, supra at 361.           If counsel has met these obligations, “it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Id. at 354 n.5.

        Counsel’s petition to withdraw and Anders brief substantially complies

with the requirements set forth above. Counsel has set forth the case history,

referred to an issue that arguably supports the appeal, stated his conclusion

that the appeal is frivolous, and cited to controlling case law. See Anders

brief at 7-14. Additionally, counsel has twice given Appellant proper notice of

his right to immediately proceed pro se or retain another attorney.2            See

Santiago, supra; Petition to Withdraw, 1/14/19, at 2; Petition to Withdraw,

10/8/19, at unnumbered 2. Accordingly, we proceed to an examination of the

issue raised to discern if it is frivolous. Commonwealth v. Dempster, 187

A.3d 266, 273 (Pa.Super. 2018) (en banc).

        Counsel identified one issue that arguably supports this appeal: “Did

the trial court fail to apply or erroneously apply any new laws or acts regarding



____________________________________________


2   Appellant did not file a response to either of counsel’s petitions.

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Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) which

may have affected Appellant’s sentence or periods of registration?” Anders

brief at 7.       More specifically, he addresses whether the holding in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) invalidated Appellant’s

failure-to-register convictions such that they should be vacated. Id. at 12.

Alternatively, counsel posits that Appellant should be subject to a lesser period

of registration under Act 10.3 Id. at 13.

       To the extent that Appellant wishes to challenge the duration of his

underlying registration requirements, he cannot do so here. This appeal is

from Appellant’s judgments of sentence in his two failure-to-register cases,

not the case in which he was convicted of the underlying sexual offense. As

a result, any consideration of his registration requirements that are the result

of his prior conviction, which has long been final and is not before us, would

be improper.

       Regarding the validity of Appellant’s failure-to-register convictions in

light of the holding in Muniz, we observe that Muniz does not apply to

Appellant’s case.       In Muniz, our Supreme Court held that retroactive



____________________________________________


3 In response to the holding in Muniz, the legislature enacted Act 10, a new
subchapter of SORNA, which applies to individuals who were convicted of a
sexually violent offense after April 22, 1996, but before December 20, 2012
whose period of registration has not expired and to those who were required
to register under a former registration law and their period of registration has
not expired. 42 Pa.C.S. § 9799.52 (effective February 21, 2018). Act 29 of
2018 reenacted Act 10, effective June 12, 2018.

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application of SORNA violated the ex post facto clauses of the United States

and Pennsylvania Constitutions. Muniz, supra at 1193-96, 1216. Appellant

committed all of his offenses in 2013, after SORNA was already in effect.

Therefore, SORNA was never retroactively applied to Appellant. As such the

holding in Muniz is not relevant and Appellant’s claim is meritless.              See

Commonwealth v. Horning, 193 A.3d 411, 417 (Pa.Super. 2018) (holding

that the critical inquiry for determining whether the application of SORNA to

a convicted sex offender violates ex post facto prohibitions is the date of the

offense).

       Further, we have conducted a “full examination of the proceedings” and

have    determined       that   “the    appeal   is   in   fact   wholly   frivolous.”4

Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since

our review did not disclose any other arguably meritorious claims, we grant

counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.

Dempster, supra at 273.

       Petition of Dance Drier, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.




____________________________________________


4 We undertook our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.”            Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on
those subjects are apparent from the record before us.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2019




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