J-S28038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARLOS GENE MOOSE, JR.                     :
                                               :
                       Appellant               :   No. 1897 MDA 2014

                 Appeal from the Order Dated October 17, 2014
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0000798-1988


BEFORE: BENDER, P.J.E., BOWES, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                     FILED: JANUARY 11, 2019

       Carlos Gene Moose, Jr., appeals from the order, entered in the Court of

Common Pleas of York County, denying his motion to enforce a negotiated

plea agreement and to enjoin any requirement that he register under the Sex

Offender Registration and Notification Act (“SORNA”).1        Moose’s appeal is
____________________________________________


142 Pa.C.S.A. §§ 9799.10 et seq. SORNA was originally enacted on December
20, 2011, effective December 20, 2012, and then amended on July 5, 2012,
also effective December 20, 2012. In response to Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017), and this Court’s decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017), the General Assembly passed Acts
10 and 29 of 2018 to cure SORNA’s constitutional defects. See 42 Pa.C.S.A.
§ 9799.51(b)(4) (“it is the intention of the General Assembly to address
[Muniz and Butler].”) Specifically, our General Assembly modified
Subchapter H's registration requirements for those offenders convicted of
committing offenses that occurred on or after SORNA's effective date, i.e.,
December 20, 2012. Moreover, the General Assembly added Subchapter I to
Title 42, Part VII, Chapter 97.       Subchapter I sets forth registration
requirements that apply to all offenders convicted of committing offenses on
or after the effective date of Megan's Law I (April 22, 1996), but prior to
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before us pursuant to the Pennsylvania Supreme Court’s order of February 23,

2018, which vacated our June 8, 2015 disposition and remanded for

reconsideration in light of its decision in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017). In Muniz, the Court held that the registration requirements

set forth under SORNA constitute criminal punishment. Accordingly, the Court

held that retroactive application of the registration requirements violates the

ex post facto clause of the Pennsylvania Constitution. Id. at 1218-19. After

consideration of Muniz, we reverse and remand.

       In 1987, Moose participated in the rape and murder of Judy Ketterman,

whom police found dead beneath a railroad bridge along Codorus Creek in

York County. Moose restrained the victim while his co-defendant raped her

and held a knife to her throat.

       Following a remand from our Supreme Court,2 Moose was scheduled for

re-trial. On May 9, 1995, Moose pled guilty pursuant to a negotiated plea



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SORNA’s effective date (December 20, 2012), whose period of registration has
not expired, as well as those offenders required to register 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. We note that the Supreme Court recently granted review, in its
original jurisdiction, to determine the issue of whether Acts 10 and 29 are
constitutional. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

2The Pennsylvania Supreme Court reversed Moose’s conviction in 1992 on the
grounds of prosecutorial misconduct. See Commonwealth v. Moose, 602
A.2d 1265 (Pa. 1992).




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agreement. In exchange for pleading guilty to third-degree murder,3 rape,4

and criminal conspiracy to commit rape,5 Moose received an aggregate

sentence of 15 to 30 years’ incarceration.

        At the time Moose committed his offenses, and at the time he entered

his plea, Pennsylvania had not yet enacted Megan’s Law legislation.         On

December 20, 2012, SORNA went into effect, requiring lifetime registration. 6

Moose was informed he was subject to SORNA and would be required to

submit to lifetime registration as a sex offender with the Pennsylvania State

Police. See supra, n. 6.

        On August 13, 2014, Moose filed a motion to enforce the negotiated plea

agreement and enjoin any requirement that he register under SORNA. On

October 27, 2014, the trial court denied Moose’s motion to enforce his plea.

Moose filed a timely appeal.

        We first address our jurisdiction, and we rely on this Court’s recent

decision in Commonwealth v. Fernandez, 2018 PA Super 245 (September

5, 2018) (en banc). There, this Court reviewed the consolidated appeals of

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3   18 Pa.C.S.A. § 2502(c).

4   18 Pa.C.S.A. § 3121.

5   18 Pa.C.S.A. §§ 903, 3121.

6 Under SORNA, persons convicted of rape, 18 Pa.C.S.A. § 3121, or conspiracy
to commit rape, 18 Pa.C.S.A. §§ 903 and 3121, are categorized as Tier III
offenders and are required to register as sex offenders for the remainder of
their lives. See 42 Pa.C.S.A. §§ 9799.14(d)(2), (14) and 9799.15(a)(3).


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nineteen appellants, each of whom filed a “Petition to Enforce Plea Agreement

or for a Writ of Habeas Corpus,” all of which were denied by the trial courts.

The Fernandez appellants challenged the retroactivity of SORNA to their

cases, and this Court, granting the relief, stated, “Appellants filed petitions to

enforce their plea agreements, and the trial court denied these in subsequent

orders. We see no reason to conclude Muniz overruled our jurisdiction to

review the decisions of trial courts to enforce plea agreements[.]” Id. at *6

(emphasis added).       Moose, like the Fernandez appellants, was not

proceeding under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546, and, instead, was afforded relief under a theory of enforcement

of plea agreement. Moose sits in procedurally similar posture as the nineteen

appellants in Fernandez; specifically, his position is comparable to two of the

Fernandez appellants, Wilson and Colbert.

      Wilson and Colbert pled guilty to crimes that, at the time, did not require

any period of registration as sexual offenders.      Fernandez, at *1. Thus,

neither Wilson nor Colbert, like Moose, had registration requirements imposed

as a result of their pleas. The only distinction separating Moose from Wilson

and Colbert is that Wilson and Colbert violated parole years later and were

resentenced and notified at that time that they had to register under SORNA.

Here, Moose, who pled guilty in 1995 and is serving a 15-30 year sentence,

did not violate parole; rather, he was informed (sometime after 2012), that

he would have to register under SORNA. Beyond that, there is no significant




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distinction between Moose and the Fernandez appellants, Wilson and Colbert.

The Fernandez Court, concluding the cases were properly before us, stated:

     The law on the enforcement of plea agreements is well
     established. Although a plea agreement occurs in a criminal
     context, it remains contractual in nature and is to be analyzed
     under contract-law standards.       In determining whether a
     particular plea agreement has been breached, we look to what the
     parties to this plea agreement reasonably understood to be the
     term of the agreement. When the Commonwealth’s promise or
     agreement provides consideration for the defendant’s acceptance
     of the plea, the Commonwealth must fulfill that promise. . . .
     Following Muniz, SORNA’s sexual offender requirements may not
     be imposed retroactively on any defendant, regardless of whether
     the defendant accepted a plea bargain or was convicted at trial.
     Even offenders who, like Appellants, were sentenced before
     SORNA became law, have since violated the terms of their
     probation, and have been resentenced, are not subject to
     retroactive application of SORNA’s requirements. . . .
     Consequently, we find Muniz abrogates [Commonwealth v.]
     Partee, [86 A.3d 245 (Pa. Super. 2014),] and hold Appellants are
     not subject to SORNA’s retroactive registration increases. . . .
     Appellants are instead subject to the original periods of sexual
     offender registration and conditions imposed at the time of their
     plea bargains, if applicable.”

Fernandez, at *6-9 (emphasis added).

     Further, we find unconvincing the suggestion that Fernandez is

inapplicable because registration requirements did not exist at the time of

Moose’s plea and thus were not a consideration for him when he accepted the

plea. We look to what Moose and the Commonwealth reasonably understood

to be the terms of the plea agreement, and registration under SORNA was not

a term.   There was no Megan’s Law applicable to Moose at the time he

committed his offenses or entered his plea. Similarly, in Fernandez, Megan’s



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Law did not apply to appellants Wilson’s and Colbert’s offenses at the time

they entered their pleas, hence our en banc court’s phrase, “if applicable.”

Id.    We see no significant distinction, and we conclude, pursuant to

Fernandez, that our jurisdiction is not compromised.7 Fernandez, supra at

*6.   In accordance with our Supreme Court’s remand order, we now address

Moose’s argument in light of Muniz.

       On appeal, Moose argues that his forced compliance with the

registration requirement of SORNA violates due process of law, fundamental

fairness,   and    the   negotiated     plea   agreement   he   entered   with   the

Commonwealth. In our prior determination, we concluded that Moose was

subject to the registration requirement of SORNA, relying on Commonwealth

v. Perez, 97 A.3d 747, 760 (Pa. Super. 2014). In Perez, this Court held

retroactive application of SORNA did not violate the ex post facto clauses of

the Pennsylvania and United States Constitutions. Id. at 760. However, the

Muniz decision renders SORNA an unconstitutional ex post facto law as

applied to Moose.

       In Muniz, the defendant was convicted in 2007 of two counts of

indecent assault. He was scheduled for sentencing later that year, “at which
____________________________________________


7 We note that the recent decision in Commonwealth v. Johnson, 2018 PA
Super 336 (filed December 10, 2018), is distinguishable here. Johnson filed a
petition for habeas corpus, which the Johnson Court reviewed as a PCRA
petition, stating: “[T]he PCRA clearly offers a remedy for the requested relief,
i.e. the retroactive application of Muniz[,]” and concluding that since
Johnson’s judgment of sentence became final more than twenty-five years
ago, “the instant petition does not qualify as an exception to the PCRA's time-
bar.” Id. at *3.

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time he would have been ordered to register as a sex offender with the

Pennsylvania State Police for a period of ten years pursuant to then-effective

Megan’s Law III.” Muniz, 164 A.3d at 1192 (citing 42 Pa.C.S.A. § 9795.1

(expired)). Before he could be sentenced, however, Muniz absconded; it was

not until 2014 that he was apprehended and later sentenced. Id.          At his

sentencing in 2014, Muniz was ordered to comply with the lifetime registration

provisions under the then-enacted SORNA, which had replaced Megan’s Law

III in his absence.   Muniz filed post-sentence motions, seeking application of

the ten-year registration period under Megan’s Law III, which was the law at

the time he committed his offenses and was convicted, instead of lifetime

registration under SORNA. The trial court denied that motion and, on appeal

to this Court, Muniz unsuccessfully argued, inter alia, that retroactive

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

Constitution and the Pennsylvania Constitution. This Court affirmed Muniz’s

judgment of sentence.       Commonwealth v. Muniz, No. 2169 MDA 2014

(unpublished memorandum, Pa. Super. filed August 7, 2015).

      On appeal, our Supreme Court reversed this Court’s decision and

vacated the portion of the sentence requiring Muniz to comply with SORNA.

Five of the six participating justices held that SORNA’s enhanced registration

provisions constitute punishment, notwithstanding the General Assembly’s




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identification of the provisions as nonpunitive,8 Muniz, 64 A.3d at 1218, and

further, determined that retroactive application of SORNA’s registration

provisions violates the ex post facto clause of the Pennsylvania Constitution.9

Id. at 1218-19.      Thus, the binding precedent arising out of Muniz is limited

to the finding that SORNA’s registration requirements violate the ex post facto




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8 See Declaration of Policy, 42 Pa.C.S.A. § 9799.11(b)(2) (“It is the policy of
the Commonwealth to require the exchange of relevant information about
sexual offenders among public agencies and officials and to authorize the
release of necessary and relevant information about sexual offenders to
members of the general public as a means of assuring public protection and
shall not be construed as punitive.”). See also Legislative Findings, 42
Pa.C.S.A. § 9799.11(a)(2) (“This Commonwealth’s laws regarding registration
of sexual offenders need to be strengthened. The Adam Walsh Child
Protection and Safety Act of 2006 provides a mechanism for the
Commonwealth to increase its regulation of sexual offenders in a manner
which is nonpunitive but offers an increased measure of protection to the
citizens of this Commonwealth.”).

9 Article I, Section 17 of the Pennsylvania Constitution provides: “No ex post
facto law, nor any law impairing the obligation of contracts, or making
irrevocable any grant of special privileges or immunities, shall be passed.” Pa.
Const., art. I, § 17. The Muniz Court noted that Muniz’s seven-year absence
from the Commonwealth did not affect its decision; had Muniz been sentenced
in 2007 and subject to registration under Megan’s Law III, pursuant to section
9799.13 of SORNA, his ten-year registration period would have converted to
a lifetime registration period when SORNA became effective. Muniz, 64 A.3d
at 1193 n.3.




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clause of the Pennsylvania Constitution.10 See Commonwealth v. Hart, 174

A.3d 660, 666 n.9 (Pa. Super. 2017).11

       We reconsider this case in light of Muniz mindful of the following:

       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.
       Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),]
       Chief Justice Chase set out four categories of laws that violate
       such prohibitions:

          1st. Every law that makes an action done before the passing
          of the law, and which was innocent when done, criminal;
          and punishes such action. 2nd. Every law that aggravates
          a crime, or makes it greater than it was, when committed.
          3rd. Every law that changes the punishment, and inflicts a
          greater punishment, than the law annexed to the crime,
          when committed. 4th. Every law that alters the legal rules
          of evidence, and receives less, or different, testimony, than
          the law required at the time of the commission of the
          offense, in order to convict the offender.

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10Although a plurality Opinion Announcing the Judgment of the Court (“OAJC”)
has no precedential value, “where a concurring opinion enumerates the
portions of the plurality’s opinion in which the author joins or disagrees, those
portions of agreement gain precedential value.” Commonwealth v. Brown,
23 A.3d 544, 556 (Pa. Super. 2011). In Muniz, the OAJC found that SORNA
violates the ex post facto clauses under both the Pennsylvania and United
States Constitutions. Justice Wecht’s Concurring Opinion, joined by Justice
Todd, found that SORNA violates the Pennsylvania Constitution and declined
to consider whether SORNA violates the United States Constitution.

11  Additionally, since the Muniz Court determined the registration
requirements were punitive, this Court later held that a portion of SORNA’s
framework for designating a convicted defendant an SVP, 42 Pa.C.S.A. §
9799.24(e)(3), was unconstitutional. See Commonwealth v. Butler, 173
A.3d 1212, 1218 (Pa. Super. 2017) (holding section 9799.24(e)(3) of SORNA
unconstitutional as it “specifies clear and convincing evidence as the burden
of proof required to designate a convicted defendant as an SVP.”).

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      Furthermore, two critical elements must be met for a criminal or
      penal law to be deemed ex post facto: it must be retrospective,
      that is, it must apply to events occurring before its enactment,
      and it must disadvantage the offender affected by it. As such,
      [o]nly those laws which disadvantage a defendant and fall within
      a Calder category are ex post facto laws and constitutionally
      infirm. The ex post facto clauses of the United States and
      Pennsylvania Constitutions are implicated here because a holding
      rendering the effects of SORNA’s registration requirements
      punitive would place the statute into the third Calder category:
      application of the statute would inflict greater punishment on
      appellant than the law in effect at the time he committed his
      crimes.

Muniz, 164 A.3d at 1195–96 (quotation marks, unnecessary capitalization,

and some citations omitted) (emphasis added). “The Muniz Court held that

Pennsylvania’s SORNA is an unconstitutional Ex Post Facto law when applied

retroactively to those sexual offenders convicted of applicable crimes before

the   [A]ct’s   effective[]   date   and   subjected   to   increased   registration

requirements under SORNA after its passage.”                 Commonwealth v.

McCullough, 174 A.3d 1094, 1095 (Pa. Super. 2017); Hart, supra.

       As in Muniz, the ex post facto clause of the Pennsylvania Constitution

is implicated here because application of SORNA’s registration requirements

would inflict greater punishment on Moose than the law in effect in 1987, the

time he committed his crimes. Muniz, supra.            SORNA became effective on

December 20, 2012, after Moose committed the instant offenses. At the time

of his offenses and his plea, Pennsylvania had not yet enacted Megan’s Law

legislation or, in particular, SORNA. Thus, enforcement of the requirement

that Moose register under SORNA would constitute a greater punishment than

what would have been imposed under the law in effect at the time the crimes

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were committed.       As such, retroactive application of these enhanced

registration    requirements   runs   afoul    of   constitutional   ex   post   facto

prohibitions. Muniz, 164 A.3d at 1193, 1216. See also Fernandez, supra.

      Thus, we are constrained to conclude that Moose is not required to

register under SORNA. Since Moose’s offenses occurred prior to any version

of Megan’s Law or SORNA, the post-Muniz legislation does not apply to him.

We reverse the trial court’s order denying Moose’s motion to enforce the plea

agreement and to enjoin registration requirements, and we remand with

instructions to vacate that portion of Moose’s sentence requiring him to

comply with SORNA.

      Order reversed.      Case remanded with instructions.               Jurisdiction

relinquished.

      President Judge Emeritus Bender joins this Memorandum.

      Judge Bowes files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/11/2019




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