J-S03039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    CHARLES ALLEN FULLER, SR.                       :
                                                    :
                       Appellant                    :   No. 1313 WDA 2019

             Appeal from the PCRA Order Entered August 15, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0002478-2016


BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED FEBRUARY 24, 2020

        Charles Allen Fuller, Sr. (Fuller) appeals from the order of the Court of

Common Pleas of Fayette County (PCRA court) denying his petition for relief

filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546.      We reverse the PCRA court’s order and vacate the underlying

convictions and judgment of sentence for failure to comply with the Sexual

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

9799.41.

                                               I.

        On September 12, 2002, Fuller was convicted by a jury of aggravated

indecent assault of a minor under 16 years old. See 18 Pa.C.S. § 3125(a)(8).


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*   Retired Senior Judge assigned to the Superior Court.
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On December 16, 2002, the trial court sentenced him to serve 40 to 90

months’ imprisonment. At the time that he was sentenced, Fuller was subject

to lifetime reporting requirements as a sexual offender under Megan’s Law II.

See 42 Pa.C.S. § 9795.1 (expired). He was eventually released in 2009 and

registered with the Pennsylvania State Police (PSP) as a sexual offender.

       In February 2016, PSP charged Fuller with three counts of failure to

comply with registration of sexual offender requirements.1 PSP alleged that

Fuller:    (1) failed to register an address after being released from

Westmoreland County Jail in December 2015; (2) failed to appear for a

required quarterly in-person verification by January 7, 2016; and (3) failed to

register the address of a Fayette County home that he resided in from January

to February 2016.         Fuller eventually proceeded to a jury trial and was

convicted on the first two counts. The trial court sentenced him to 6 to 12

years’ imprisonment on the first count and no further penalty on the second.2



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1 In its criminal information, the Commonwealth charged Fuller under the
former version of failure to comply with sexual offender requirements, 18
Pa.C.S. § 4915, which had expired in December 2012. The Commonwealth
later amended its information to the current version, alleging that Fuller was
subject to registration under SORNA and had failed to “verify his address or
be photographed as required under 42 Pa.C.S. § 9799.15, 9799.19 or
9799.25[.]” 18 Pa.C.S. § 4915.1(a)(2).

2The trial court further ordered that its sentence would run consecutive to an
aggregate sentence of one to two years’ imprisonment that Fuller was serving
on two other Fayette County cases in which he pleaded guilty to failure to
comply with registration of sexual offender requirements.


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       On direct appeal, Fuller challenged the sufficiency of the evidence for

his convictions.     On May 30, 2018, this Court affirmed the judgment of

sentence. See Commonwealth v. Fuller, 1305 WDA 2017 (Pa. Super. 2018)

(unpublished memorandum). Because he did not seek discretionary appeal in

our Supreme Court, his judgment of sentence became final on June 29, 2018.

See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the conclusion

of direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.”).

       Fuller filed a pro se PCRA petition on August 8, 2018, alleging, among

other things, that his conviction and sentence for failure to register were

unconstitutional based on our Supreme Court’s holding in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017). The PCRA court appointed counsel who

filed an amended PCRA petition reasserting Fuller’s claim that his convictions

were unconstitutional under Muniz.3 After holding an evidentiary hearing,

the PCRA court denied the petition on August 15, 2019, following which Fuller




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3 PCRA counsel also raised a claim of ineffective assistance of counsel for
appellate counsel’s failure to file a petition for allowance of appeal after this
Court affirmed the judgment of sentence on direct appeal.




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filed a timely notice of appeal to challenge the PCRA court’s denial of his

petition.4

                                               II.

        On appeal, Fuller contends that he is entitled to PCRA relief because his

convictions were based on the retroactive application of increased reporting

requirements under SORNA. Under Muniz, he notes, our Supreme Court held

that retroactive application of SORNA’s registration requirements violates the

ex post facto clauses of the United States and Pennsylvania Constitutions.

Fuller further notes that this Court has held that our Supreme Court’s decision

in Muniz created a substantive rule that retroactively applies in the collateral

context.     See Commonwealth v. Rivera-Figueroa, 174 A.3d 674 (Pa.

Super. 2017). Based on this, Fuller contends that the PCRA court erred in

denying him relief. We agree.5

        A PCRA petitioner is eligible for relief if his conviction resulted from a

constitutional violation.     See 42 Pa.C.S. § 9543(a)(2)(i).     In Muniz, our

Supreme Court determined that SORNA, despite the General Assembly’s

stated civil remedial purpose, was punitive in nature and, therefore,



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4 “Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error.” Commonwealth v.
Shaw, 217 A.3d 265, 269 (Pa. Super. 2019) (citation omitted).

5   The Commonwealth has not filed a responsive brief in this appeal.


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unconstitutional where it was retroactively applied to sex offenders who

committed their crimes before its effective date in December 2012.          See

Muniz, 164 A.3d at 1223. Additionally, as Fuller points out, our Supreme

Court’s decision in Muniz announced a substantive rule that “should be

applied retroactively applied in state collateral courts to comply with the

United States and Pennsylvania Constitutions.” Rivera-Figueroa, 174 A.3d

at 678.

      After Muniz, this Court reversed a conviction for failure to comply with

SORNA in Commonwealth v. Wood, 208 A.3d 131 (Pa. Super. 2019) (en

banc). In Wood, the defendant pleaded guilty to statutory sexual assault, an

offense that he committed just a few months before SORNA became effective

in December 2012. In June 2017, a month before Muniz was decided, the

defendant pleaded guilty to one count of failure to comply with SORNA. After

Muniz was decided, the defendant timely appealed and argued that

retroactive application of SORNA’s registration requirements to him was

unconstitutional because his underlying sexual offense was committed before

SORNA’s effective date.       This Court agreed and held that retroactive

application of SORNA’s registration and reporting requirements to the

defendant violated his ex post facto rights. Id. at 138. This Court then went

on to reverse the defendant’s conviction under 18 Pa.C.S. § 4915.1 because

it was “based on his violation of retroactively applied registration requirements




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under SORNA, and because such retroactive application of SORNA is

unconstitutional under Muniz[.]” Id. at 140.

       Like the defendant in Wood, Fuller’s underlying conviction was for a

crime that was committed well before the effective date of SORNA in

December 2012.6 Despite this being the case, Fuller’s convictions under 18

Pa.C.S. § 4915.1(a)(2) stemmed from his failure to comply with SORNA’s

increased reporting requirements, which included increasing his periodic in-

person verification to four times a year based on his being classified as a Tier

III offender under SORNA.           See 42 Pa.C.S. § 9799.15(e)(3).   However,

“application of SORNA to sex offenders for offenses committed before its

effective date violates the ex post facto clauses of the United States and

Pennsylvania Constitutions.” Commonwealth v. Lippincot, 208 A.3d 143,

150 (Pa. Super. 2019) (en banc). Fuller’s convictions for failure to comply

with SORNA’s registration requirements must, therefore, be vacated. As a

result, we reverse the order of the PCRA court denying relief and vacate the


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6  At trial, the Commonwealth admitted Fuller’s Megan’s Law packet that
included his criminal history report. According to that report, Fuller committed
the underlying offense of aggravated indecent assault in January 1996. The
first version of Megan’s Law became effective later in 1996 and required
defendants convicted of aggravated indecent assault to register for ten years.
See former 42 Pa.C.S. § 9793(b) (effective April 1996 to July 2000). Megan’s
Law II became effective in 2000 and increased the registration period for
aggravated indecent assault from ten years to lifetime. See 42 Pa.C.S.
§ 9795.1(b)(2) (effective July 2000).




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underlying convictions and judgment of sentence for failure to comply with

SORNA.7

       Order reversed; conviction and judgment of sentence vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2020




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7 Because of our decision, we need not address Fuller’s second issue arguing
that appellate counsel was ineffective for not filing a petition or allowance of
appeal on direct appeal.

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