J-S23025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN RICHARD JAE                           :
                                               :
                       Appellant               :   No. 1312 WDA 2018

            Appeal from the PCRA Order Entered September 10, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0015145-2011


BEFORE:      BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 13, 2019

        Appellant John Richard Jae appeals from the order dismissing his

petition challenging the application of Subchapter I 1 of the Sexual Offender

Registration and Notification Act (SORNA) as a meritless Post Conviction Relief

Act2 (PCRA) petition. Appellant claims that the application of Subchapter I

violates ex post facto and double jeopardy principles. For the reasons that

follow, we vacate the order and remand this matter to the PCRA court.

        The procedural history relevant to this appeal is as follows. On April 25,

2012, Appellant pled guilty to one count of sexual abuse of children for


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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9799.51-9799.75 (eff. Feb. 21, 2018).

2   42 Pa.C.S. §§ 9541-9546.
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possessing images of child pornography found on his computers in May of

2011. As part of the plea agreement, the Commonwealth agreed to waive the

mandatory sentences of twenty-five years or life imprisonment based on 42

Pa.C.S. § 9718.2 (sentences for sexual offenders).3 On July 12, 2012, the
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3It appears that Appellant had two prior convictions for sexual offenses. The
Commonwealth noted that:

       At CP-02-CR-0006152-1987, [Appellant] was convicted, on
       December 22, 1987, of:

          One (1) count of rape forcible compulsion (F1), 18 Pa.C.S. §
          3121(a) and received four (4) to ten (10) years’ incarceration;

          One (1) count of indecent assault (M2), 18 Pa.C.S. § 3126(1)
          and received a concurrent sentence of four (4) to ten (10)
          years’ incarceration;

          One (1) count of unlawful restraint (M1), 18 Pa.C.S. § 2902(1)
          and received a concurrent sentence of four (4) to ten (10)
          years’ incarceration; and

          One (1) count of terroristic threats (M1), 18 Pa.C.S. § 2706
          and received a concurrent sentence of four (4) to ten (10)
          years’ incarceration.

       At CP-02-CR-0013134-1990, [Appellant] was convicted, on May
       3, 1991, of:

          Two (2) counts of IDSI (F1), 18 Pa.C.S. § 3123(a)(1) and
          received two consecutive sentences of five (5) to ten (10)
          years’ incarceration;

          Two (2) counts of indecent assault (M2), 18 Pa.C.S. §
          3126(a)(1); and

          One (1) count of terroristic threats (M1), 18 Pa.C.S. § 2706.

Commonwealth’s Answer to Appellant’s PCRA, 4/14/16, at 25 (some
formatting altered). However, the details of Appellant’s prior convictions, such
as the dates of the offenses, were not included in the record in this case.



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trial court sentenced Appellant to three to twenty-five years’ imprisonment to

be followed by ten years’ probation. The trial court also noted that Appellant

was subject to a ten-year term of registration under Megan’s Law, apparently

referring to Megan’s Law III, which was in effect at the time of his sentence.4

       Appellant did not file a direct appeal, but he filed a pro se PCRA petition

in July of 2013. On July 24, 2013, the PCRA court granted Appellant’s petition

and reinstated his post-sentence and appellate rights, and Appellant took a

direct appeal nunc pro tunc.

       On appeal, this Court found that the trial court illegally sentenced

Appellant beyond the maximum sentence for a felony-three offense.

Commonwealth v. Jae, 1698 WDA 2013, at 6-7 (Pa. Super. filed Mar. 23,

2015) (unpublished mem.).              The Court concluded that because the

Commonwealth waived the application of Section 9718.2, the lawful maximum

for the felony-three offense of sexual abuse of children was seven years. Id.

       On May 7, 2015, the trial court resentenced Appellant to three and one-

half to seven years’ imprisonment. In its resentencing order, the trial court

indicated “SORNA registration required for lifetime.” Order, 5/7/15. Appellant

did not file a post-sentence motion, but in June of 2015 filed a pro se notice

of appeal among several other motions.           On October 21, 2015, Appellant

withdrew his pro se appeal.
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4See 2004, Nov. 24, P.L. 1243, No. 152. Our Supreme Court subsequently
held that Megan’s Law III was unconstitutional as the act amending Megan’s
Law II violated the single subject rule of the Pennsylvania Constitution. See
Commonwealth v. Neiman, 84 A.3d 603, 605 (Pa. 2013).

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       In March of 2016, Appellant filed a pro se PCRA petition. The PCRA court

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss. On June 17, 2016,

the PCRA court dismissed Appellant’s PCRA petition, and Appellant timely filed

a pro se notice of appeal.

       On appeal, this Court vacated the order dismissing Appellant’s PCRA

petition and remanded for the PCRA court to conduct a Grazier5 hearing.

Commonwealth v. Jae, 1064 WDA 2016, at 7 (Pa. Super. filed Mar. 27,

2018) (unpublished mem.).           This Court noted that Appellant’s underlying

petition was technically his first, he had a right to counsel, and his insistence

to proceed pro se did not constitute a proper waiver of his right to counsel.

Id. at 6-7.

       On April 9, 2018, the PCRA court appointed present counsel as “stand-

by counsel.”     Order, 4/9/18.      On July 30, 2018, present counsel filed the

amended PCRA petition and/or petition for writ of habeas corpus (the

amended petition), which gives rise to this appeal.6

       In the amended petition, Appellant initially asserted that he was “no

longer subject to the sex offender reporting requirements imposed under

Megan’s Law I, II, III or SORNA.” Am. Pet., 7/30/18, at ¶ 10. In support,


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5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

6 Although the record does not contain a transcript of the Grazier hearing
conducted on remand, the Commonwealth noted that the PCRA court
conducted a hearing at which Appellant agreed to have present counsel
represent him. Answer to Am. Pet., 8/9/18, at 7-8.

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Appellant cited Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and

Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017).

      Appellant further claimed that the application of Subchapter I would

violate ex post facto and double jeopardy concerns. Specifically, Appellant

argued that Subchapter I, like the former version of SORNA addressed in

Muniz, is punitive. Appellant asserted that, like the former version of SORNA,

Subchapter I requires offenders to: (1) be included on a publicly accessible

internet website; (2) register with the Pennsylvania State Police (PSP) or face

criminal prosecution; (3) provide the PSP with information regarding all

current or intended residences, employment, or schools; (4) inform the PSP

of changes in residences or employment within three days; (5) verify their

residences; (6) submit to decisions by parole or probation authorities to

impose conditions, including the use of offender tracking using global

positioning systems (GPS); and (7) submit to being photographed and

fingerprinted. Id. at ¶ 50.

      Appellant noted two changes between the former version of SORNA and

Subchapter I. First, Subchapter I returns “to a two-tier system of registration,

namely ten-year and lifetime periods of registration, which [were] what

existed under Megan’s Law II.” Id. at ¶ 51. Second, Subchapter I contains

a provision for the “potential removal of lifetime registrants . . . after [twenty-

five] years.” Id. at ¶ 52. Appellant, however, asserted that “these differences

are not sufficiently meaningful to render Subchapter I non-punitive for

purposes of [an] ex post facto analysis.” Id. at ¶ 53.

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      Appellant further claimed that because Subchapter I imposes a penalty,

its application would violate double jeopardy principles. In support, Appellant

argued that Muniz relieved him of a punitive registration requirement under

the former version of SORNA. Appellant continued that because Subchapter

I is punitive, “it necessarily follows that Subchapter I effectuates a second

punishment upon [him]. Id. at ¶¶ 73, 84.

      The Commonwealth responded that Subchapter I is not punitive.

Answer to Am. Pet., 8/9/18, at 12. The Commonwealth asserted that two

changes in Subchapter I are critical.    Id.    First, Subchapter I contains a

provision for lifetime registrants to relieve themselves of registration

requirements after twenty-five years.          Id. (discussing 42 Pa.C.S. §

9799.15(a.2)). Second, Subchapter I provides for a reduced number of in-

person verification requirements for some offenders. Id. at 13 (discussing 42

Pa.C.S. § 9799.23(a.1)).

      Furthermore, the Commonwealth noted that Subchapter I contains

fewer crimes subject to a registration requirement than the former version of

SORNA and a ten-year and lifetime classification system. Id. (discussing 42

Pa.C.S. §§ 9799.54-9799.56).       According to the Commonwealth, these

changes “mean[] that Megan’s Law II applies to those sex offenders who

committed their crimes before December 20, 2012.” Id.

      The PCRA court issued a Rule 907 notice of its intent to dismiss

Appellant’s amended petition as meritless. Appellant did not file a response.

On September 10, 2018, the PCRA court dismissed Appellant’s petition.

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      Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement with

his notice of appeal. The PCRA court filed an opinion concluding that because

Appellant committed his offense prior to December 20, 2012, the registration

provisions of Megan’s Law II applied. PCRA Ct. Op., 12/10/18, at 3. The

PCRA court further reasoned that those provisions were determined to be non-

punitive collateral consequences that did not raise ex post facto concerns. Id.

at 3-4 (citing Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008), and

Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007)).

      Appellant presents the following issue for review:

      Whether the trial court erred by not ruling that Subchapter I of
      Act 10 of 2018 is unconstitutional under the federal and state ex
      post facto and double jeopardy clauses?

Appellant’s Brief at 5.

      On appeal, Appellant restates his claim that although Subchapter I

changes some of the provisions discussed in Muniz, Subchapter I remains

punitive. Appellant asserts that “there are far more similarities (and identical

provisions)   than   differences   between   [former]   SORNA’s     registration

requirements and the Subchapter I registration requirements.”        Id. at 21.

Appellant further contends that “although the eligible offenses and duration of

registration under Subchapter I mirror those of Megan’s Law II, neither

Leidig, nor Lee, nor any of the various other decisions over the years is

controlling or dispositive in light of the jurisprudential shift of the Muniz

decision.” Id. at 25.



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       The     Commonwealth         responds   with    procedural    and   substantive

arguments.7 In its procedural arguments, the Commonwealth first notes that

the trial court’s 2015 resentencing order directed that Appellant register for

life under the former version of SORNA.                Commonwealth’s Brief at 16.

However, the PCRA court’s opinion asserted that Appellant is subject to

Megan’s Law II’s registration requirement. Id. Therefore, the Commonwealth

suggests that this Court could remand for a determination of which

registration    period    applies    to   Appellant.      Id.       Nevertheless,   the

Commonwealth asserts “that it is clear that [Subchapter I] applies to

[A]ppellant by the terms of the statute” and that a remand is unnecessary in

this case. Id. at 17.

       Second, the Commonwealth questions whether Appellant’s claim that

Subchapter I is unconstitutional can be raised under the PCRA. Id. at 17-18.


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7 As to the merits, the Commonwealth restates its assertion that Subchapter
I does not intend, or have the effect of imposing, a punishment. Specifically,
the Commonwealth cites to Subchapter I’s provisions that (1) establish
alternative verification provisions, (2) permit some offenders to seek an
exemption from registration after twenty-five years, and (3) narrow the types
of offenses subject to registration. Following the analysis conducted in Muniz,
the Commonwealth asserts that the requirements of Subchapter I are not
sufficiently punitive to overcome the express intent of the General Assembly
to enact a non-punitive statute. As such, the Commonwealth concludes that
Subchapter I does not violate ex post facto or double jeopardy principles.

Additionally, the Office of the Attorney General and the Pennsylvania State
Police (the intervenors) have submitted a joint intervenors’ brief. Like the
Commonwealth, the intervenors contend that Subchapter I is not punitive.
The intervenors note that Subchapter I did not increase the terms of
registration for Appellant from those contained in Megan’s Law II or III.

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The Commonwealth asserts that a registration requirement under Subchapter

I is not punitive, and therefore, is not part of Appellant’s sentence. Id. at 18.

The Commonwealth notes that the PCRA requires that a petitioner be

“currently serving a sentence of imprisonment, probation or parole” to be

eligible for relief. Id. at 17-18 (citing 42 Pa.C.S. § 9543(a)(1)(i)). Therefore,

the Commonwealth concludes that Appellant has not established his eligibility

for relief under the PCRA. Id. at 18.

      Initially, we note that a post-conviction claim that an original sentence

is illegal due to the retroactive application of a sexual offender registration

requirement must be raised in a PCRA petition.        See Commonwealth v.

Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019); Commonwealth v.

Murphy, 180 A.3d 402, 405-406 (Pa. Super. 2018).             Moreover, because

Appellant filed the instant petition within one year of the resentencing order

setting forth a lifetime registration requirement, his petition was timely filed.

      Our review is governed by the following standards:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the PCRA
      court is supported by the evidence of record and is free of legal
      error. The PCRA court’s findings will not be disturbed unless there
      is no support for the findings in the certified record.

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted).

      Here, as indicated above, the trial court initially informed Appellant that

he was subject to a ten-year registration term under Megan’s Law III, which



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was in effect at the time of his original sentencing. Following the 2015 remand

for resentencing, the trial court then informed Appellant that he was subject

to a lifetime registration period under the former version of SORNA. The PCRA

court subsequently concluded that because Appellant committed his offense

prior to December 20, 2012, the registration provisions of Megan’s Law II

applied. PCRA Ct. Op., 12/10/18, at 3.

        Given this procedural history, we agree with the Commonwealth that a

remand is appropriate in order to clarify the threshold issue of which statute

applies to Appellant. See Commonwealth’s Brief at 16. On remand, the PCRA

court    should   consider   whether   Subchapter   I    determines   Appellant’s

registration requirement and, if necessary, the parties’ specific arguments

regarding the constitutionality of Subchapter I.

        We add that the law in this area has been rapidly evolving. Notably, the

Pennsylvania Supreme Court is currently considering the constitutionality of

Subchapter I. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

Furthermore, this Court has recently concluded that the internet dissemination

provision of Subchapter I violates the federal ex post facto clause but is

severable from the remainder of Subchapter I.           See Commonwealth v.

Moore, ___ A.3d, ___, ___, 2019 PA Super 320, 2019 WL 5415854, at *9

(Pa. Super. filed Oct. 23, 2019).      Therefore, assuming that Subchapter I

applies, it appears Appellant could be entitled to partial relief. See id.

        Order vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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