J-S68024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH DEWAYNE PENNYBAKER                   :
                                               :
                                               :   No. 671 WDA 2019
    APPEAL OF: PENNSYLVANIA STATE              :
    POLICE                                     :

                  Appeal from the Order Entered April 3, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0009324-2017


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 27, 2020

        Pennsylvania State Police (PSP) appeals from the order, entered in the

Court of Common Pleas of Allegheny County, denying its motion for

clarification and/or reconsideration/motion to intervene following the court’s

April 24, 2018 order removing Keith DeWayne Pennybaker from the

Pennsylvania Sexual Offender Registry (Registry).          After our review, we

quash.1




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Because we quash this appeal, we deny as moot the PSP’s motion to
supplement the record.
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        On April 8, 1997, Pennybaker entered a guilty plea to one count each of

rape2 and involuntary deviate sexual intercourse.3 He committed his offenses

on September 8, 1995, prior to the date Megan’s Law I4 went into effect.

While he was incarcerated, Megan’s Law II5 went into effect. Pennybaker was

released from incarceration in 2011; shortly thereafter, Pennybaker was

notified that he was required to register for life as a Tier III offender under

the Sex Offender Registration and Notification Act (SORNA).6 See 42 Pa.C.S.A.

§§ 9799.14(b), 9799.15(a)(3), (e)(3).

         On July 19, 2017, the Pennsylvania Supreme Court issued its Opinion

Announcing the Judgment of the Court in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), which found SORNA to be punitive in nature and held

that retroactive application of the registration and reporting requirements of

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




____________________________________________


2   18 Pa.C.S.A. § 3121.

3   18 Pa.C.S.A. § 3121(a)(1).

442 Pa.C.S.A § 9791 et seq., Act of Oct. 24, 1995, P.L. 1079, No. 24, effective
Oct. 24, 1995 (Spec. Sess. No.1).

542 Pa.C.S.A. § 9791, et seq., Act of May 10, 2000, P.L. 74, No. 18, effective
July 9, 2000.

6 Act of Dec. 20, 2011, P.L. 446, No. 111, amended as 42 Pa.C.S.A. §§
9799.10-9799.41.




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Pennsylvania Constitutions.          Id. at 1223.     In response to Muniz, the

legislature enacted Act 10 of 2018, 42 Pa.C.S.A. § 9799.51,7

       On February 12, 2018, Pennybaker filed a motion for removal from the

Registry. Here, Pennsybaker’s offense occurred prior to the effective date of

SORNA or any version of Megan’s Law.             On April 24, 2018, the trial court

granted the motion and ordered Pennybaker removed from the Registry. See

Order of Court, 4/24/18.

       On August 31, 2018, PSP filed a motion for reconsideration and a motion

to intervene, alleging that it was not served with notice of Pennybaker’s

motion (although the Commonwealth was served), and that “failure to serve

PSP–let alone join PSP as an indispensable party–robbed this [c]ourt of subject



____________________________________________


7 Act 10, 2018, Feb. 21, P.L. 27, No. 10, § 6, imd. effective, was reenacted at
2018, June 12, P.L. 140, No. 29, §, imd. effective (referred to collectively as
“Act 10”). Essentially, Act 10 sought to eliminate the punitive effects of
SORNA and return the law back to Megan’s Law II, adding a mechanism for
removal from the registry after 25 years. Act 10 structured two different
tracks for sex offenders: Subchapter H applies to offenses committed after
December 20, 2012, and provides that an offender may petition for removal
from the registry and also allows some reporting requirements to be
completed remotely; and Subchapter I applies to offenses committed
between April 22, 1996 and December 20, 2012, requires offenders to register
for periods of either 10 years or life (Sexually Violent Predators), and reduced
the length of time from 15 or 25 years to 10 years, eliminated some offenses
from registration and provides for a mechanism for removal of lifetime
registration after 25 years.     Our Supreme Court is currently considering
whether Acts 10 and 29 are constitutional.            See Commonwealth v.
Lacombe, 35 MAP 2018 (Pa. 2018).




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matter jurisdiction to rule on his [m]otion.” Motion for Clarification and/or

Reconsideration, 8/13/18, at 7.8
____________________________________________


8 In its motion, the PSP acknowledges, “because of [Muniz] . . . [Pennybaker]
no longer had to register as a sex offender.” Id. at 9. PSP alleges, however,
that due to the enactment of Subchapters H and I of Act 10, “reporting
requirements are again considered a collateral consequence of the conviction.”
Id. at 10. Further, PSP alleges that the fact that Pennybaker’s offense
occurred prior to the enactment of Megan’s Law I is irrelevant. The PSP
argues: Subchapter I of Act 10 applies to those “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.” Supplement to Motion for
Clarification and/or Reconsideration, 11/15/18, at 2. In support of this
contention, PSP avers:

       Megan’s Law I became effective [on] May 22, 1996, and required
       defendants convicted of rape to register for ten years as a sex
       offender. See former 42 Pa.C.S. § 9793(b). This ten-year
       registration applied “to all offenders convicted of an offense
       equivalent to an offense set forth in § 9793(b) before the effective
       date of this section who remain[ed] incarcerated or on parole
       on the effective date of this section.” See former 42 Pa.C.S. §
       9799.6 (emphasis added).          [Pennybaker] was serving his
       sentence at the time that Megan’s Law I became effective;
       therefore, Megan’s Law I applied to him and he was required to
       register for ten years. See Commonwealth v. Gaffney, 733
       A.2d 616, 617 (Pa. 1999) (finding no violation of any ex post facto
       provision in requiring registration when the acts underlying an
       individual’s conviction occurred prior to the effective date of the
       registration requirements of Megan’s Law I). Megan’s Law II
       became effective on July 10, 2000, subjecting defendants
       convicted of rape to lifetime registration requirements.
       Specifically, Megan’s Law II applied “to individuals incarcerated or
       convicted on or after the effective date of this act.” See former
       42 Pa.C.S. § 9791(2) (emphasis added). Therefore, because
       [Pennybaker] had not yet finished serving his registration
       requirements under Megan’s Law II as of the effective date of Act
       10 of 2018, he must continue as a lifetime registrant.



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       The    question     of    timeliness    of   an   appeal   is   jurisdictional.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Time

limitations on appeal periods are strictly construed and cannot be extended

as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.

Super. 2002); see also Pa.R.A.P. 105(b) (stating that, although appellate

court may enlarge time prescribed in rules of appellate procedure for good

cause shown, court may not enlarge time for filing notice of appeal).

       In order to preserve the right to appeal a final order of the trial court, a

notice of appeal must be filed within thirty days after the date of entry of that

order.    Pa.R.A.P. 903(a). Although the entry of a final order triggers the

thirty-day appeal period, this period may be tolled if the trial court expressly

grants a motion for reconsideration within the thirty-day period. Pa.R.A.P.


____________________________________________


Id. at 3 (emphasis in original).

       Even if we were to reach the merits, we are not convinced by this
argument. Subchapter I sets forth the registration requirements that apply
to all offenders convicted of committing offenses on or after Megan’s Law I’s
effective date (April 22, 1996), but prior to SORNA’s effective date. See
Commonwealth v. Bricker, 198 A.3d 371, 375–76 (Pa. Super. 2018). Here,
Pennybaker was convicted on April 8, 1997 for his 1995 offense. Retroactively
applied registration requirements are unconstitutional under Muniz. “Critical
to relief under the Ex Post Facto Clause is not an individual’s right to less
punishment, but the lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was prescribed when the
crime was consummated.” Muniz, 164 A.3d at 1194 (quoting Weaver v.
Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (emphasis
added). The “critical inquiry” is the “date of the offense.” Commonwealth
v. Lippincott, 208 A.2d 143, 149 (Pa. Super. 2019) (en banc), citing
Commonwealth v. Horning, 193 A.3d 411, 417 (Pa. Super. 2018).


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1701(b)(3). Although a party may file a motion for reconsideration pursuant

to Rule 1701, a trial court’s “[f]ailure to ‘expressly’ grant reconsideration

within the time set by the rules for filing an appeal will cause the trial court to

lose its power to act on the application for reconsideration.” Moir, 766 A.2d

at 1254. The mere filing of a motion for reconsideration is insufficient to toll

the appeal period. Moore v. Moore, 634 A.2d 163, 167 (Pa. 1993). Rule

1701 is clear: the thirty-day appeal period is tolled only by a timely order

“expressly granting” reconsideration; the establishment of a briefing schedule,

hearing date, or issuance of a rule to show cause does not suffice. Valley

Forge Center Associates v. Rib–It, K.P., Inc., 693 A.2d 242, 245 (Pa.

Super. 1997); see Moir, 766 A.2d at 1254 (holding trial court’s action of

granting rule to show cause and setting hearing date on motion for

reconsideration was insufficient to toll appeal period).       “Therefore, as the

comment to Pa.R.A.P. 1701 explains, although a party may petition the court

for reconsideration, the simultaneous filing of a notice of appeal is necessary

to preserve appellate rights in the event that either the trial court fails to grant

the petition expressly within 30 days, or it denies the petition.” Moir, 766

A.2d at 1254; Pa.R.A.P. 1701, Cmt.

      The appeal in this case should have been filed within thirty days from

the April 24, 2018 order, or reconsideration should have expressly been

granted within thirty days of that order. Neither event occurred. The court’s

April 24, 2018 order became final on May 24, 2018, when no appeal was filed

and the court did not expressly grant reconsideration. As Pennybaker states

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in his motion to quash, PSP attempts to remedy its failure to file a timely

appeal by purporting to appeal from the trial court’s order denying its motion

for reconsideration and motion to intervene. See Motion to Quash, 6/12/19,

at 9.    An appeal from an order denying reconsideration is improper and

untimely. Moir, supra at 1254; Valentine v. Wroten, 580 A.2d 757 (Pa.

Super. 1990); Fortune/Forsythe v. Fortune, 508 A.2d 1205 (Pa. Super.

1986). Since the untimely filing of an appeal goes to the jurisdiction of this

Court, we quash this appeal. Pa.R.A.P. 903(a); Moir, supra; Valley Forge

Center, supra.

        Appeal quashed.

        Judge Pellegrini joins this Memorandum.

        President Judge Emeritus Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2020




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