J-S30009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    THOMAS STEPHEN CUMMINGS,

                             Appellant                No. 966 WDA 2017


                   Appeal from the Order Entered June 1, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011550-2003


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY BENDER, P.J.E.:                   FILED AUGUST 07, 2018

        Appellant, Thomas Stephen Cummings, appeals from the order entered

on June 1, 2017, that denied his “Motion to Enforce Plea Agreement Under

Contract Law Principles” (hereinafter “the Motion”), in which he claimed that

a lifetime registration requirement imposed upon him under the Sex Offender

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

violates the terms of his negotiated plea agreement. After review, we vacate

and remand for further proceedings.

        Briefly, on July 19, 2004, Appellant pled nolo contendere to indecent

assault (victim less than 13 years of age), 18 Pa.C.S. § 3126(a)(7). That

same day, he was sentenced to five years’ probation.       Appellant was also


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*   Retired Senior Judge assigned to the Superior Court.
J-S30009-18



subjected to a 10-year registration requirement under Megan’s Law II. He did

not file a direct appeal.

       As the trial court explains,

             [n]o further action was taken [by Appellant] until May 23,
       2017, when [he] filed [the Motion]. Therein, [Appellant] asserted
       that he was notified in 2012 that his 10-year term of registration
       had been increased to lifetime registration with the passage of
       SORNA.[1] He provided no explanation for his failure to challenge
       the increased term at that time. Nevertheless, he asserted that
       the 10-year registration period was a term of his plea agreement
       and should therefore be enforced so that he could receive the
       benefit of his bargain.

Trial Court Opinion (TCO), 10/17/17, at 2.

       On June 1, 2017, the trial court denied Appellant’s motion. He filed a

timely notice of appeal, presenting one issue for our review:

       Did the trial court err in denying Appellant’s “Motion to Enforce
       Plea Agreement [U]nder Contract Law Principles” given that at the
       time of his sentencing, the law required him to register for ten
       years, and given that as part of his plea agreement, he was
       required to register for ten years, but later, after the 2012
       enactment of SORNA, he was directed to register for his lifetime,
       a directive now barred by the Pennsylvania Supreme Court’s
       decision in Commonwealth v. Muniz, 164 A.3d 1189, 1208 (Pa.
       2017)[,] which held that SORNA cannot be applied retroactively?

Appellant’s Brief at 7.



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1 See 42 Pa.C.S. § 9799.14(d)(8) (requiring lifetime registration for an
individual convicted of 18 Pa.C.S. § 3126(a)(7)); 42 Pa.C.S. § 9799.13(3)(i)
(requiring any individual who had not completed his or her registration period
under prior registration statutes as of SORNA’s December 20, 2012 effective
date to register and comply with SORNA). We recognize that SORNA was
amended on February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess.
(Pa. 2018), Act 10 of 2018.

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       In Muniz, our Supreme Court held that SORNA’s enhanced registration

provisions constitute criminal punishment and, thus, retroactive application of

SORNA’s registration requirements violates the ex post facto clause of the

Pennsylvania Constitution. Muniz, 164 A.3d at 1218, 1223. In this case, it

is undisputed that, under Muniz, applying SORNA to Appellant would

constitute an ex post facto violation.2 Therefore, we vacate the trial court’s

order denying the Motion and remand for the trial court to determine what, if

any, registration requirements apply to Appellant.3

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/07/2018


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2 The trial court concedes that SORNA cannot be applied to Appellant, as he
committed his crimes well before SORNA’s enactment date. See TCO at 2.
Thus, the trial court requests that we vacate its June 1, 2017 order denying
the Motion and remand for further proceedings. Id. The Commonwealth has
not objected to our remanding, as it has not filed a brief in this case.

3 Based on the trial court’s conceding that remand is appropriate, and the
Commonwealth’s lack of objection thereto, Appellant filed a “Motion to
Remand” with this Court on January 16, 2018. In light of our disposition
remanding his case, we deny his January 16, 2018 motion as moot.



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