J-S42003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    ROBERT POLZER                :
                                 :
                  Appellant      :             No. 298 WDA 2015
                                 :

               Appeal from the PCRA Order December 15, 2014
    In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013546-2008


BEFORE:      SHOGAN, J., OTT, J., and FITZGERALD*, J.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 29, 2018

       This case returns to us following remand from our Supreme Court

directing that we reconsider Appellant’s appeal concerning the application of

the Sexual Offender Registration and Notification Act (“SORNA I”), 42 Pa.C.S.

§§ 9799.10-9799.41,1 in light of the decision in Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017) (Opinion Announcing the Judgment of the Court), 2

cert. denied. sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925 (2018).


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1 Amended and replaced by 2018, Feb. 21, P.L. 27, No. 10, § 19, immediately
effective. Reenacted 2018, June 12, P.L. 140, No. 29, § 14, immediately
effective. 42 Pa.C.S. §§ 9799.51-9799.75 (“SORNA II”).

2 Portions of a plurality opinion announcing the judgment of the court have
precedential value insofar as they are joined by the concurring opinion.
Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super. 2011). In Muniz,


____________________________________
* Former Justice specially assigned to the Superior Court.
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       In this appeal, Appellant, Robert Polzer, appeals from the order entered

on December 15, 2014, that denied his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we are

constrained to reverse the order of the PCRA court and reinstate the

registration requirements imposed at the time of sentencing.

       The relevant facts and procedural history of this matter were set forth

in our prior memorandum, and we need not restate them here. The salient

points for purposes of our analysis are that Appellant was convicted of rape 3

and false imprisonment for acts he committed on August 20, 2008.            On

March 2, 2011, the trial court sentenced Appellant to an aggregate term of

ten and one-half to twenty-one years of incarceration.      Appellant was not

designated a sexually violent predator, and he was required to comply with




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the opinion announcing the judgment of the court concluded that the
retroactive application of SORNA I violates the ex post facto clauses of the
United States and Pennsylvania Constitutions. In his concurring opinion,
Justice Wecht, who was joined by Justice Todd, concluded that the retroactive
application of SORNA I violates the Pennsylvania Constitution, but Justice
Wecht declined to consider whether the retroactive application violates the
United States Constitution. Muniz, 164 A.3d at 1224 n.2 (Wecht, J.,
concurring).    Thus, the precedential value of Muniz is limited to the
determination that retroactive application of SORNA I violates the ex post
facto prohibition of the Pennsylvania Constitution.

3 Rape was subsequently categorized as a Tier III offense under SORNA I. 42
Pa.C.S. § 9799.14.




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the registration mandates set forth in Megan’s Law III,4 requiring a person

convicted of rape, who was not deemed a sexually violent predator, to register

and report for the duration of his life. 42 Pa.C.S. § 9795.1(b). Therefore,

Appellant was required to report once annually to the Pennsylvania State

Police to verify his address and other personal information.       42 Pa.C.S.

§ 9796(b).

       Appellant filed a direct appeal to this Court, and after review, we

affirmed Appellant’s judgment of sentence. Commonwealth v. Polzer, 575

WDA 2011, 87 A.3d 386 (Pa. Super. filed September 18, 2013) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal in the




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4  We note that the original version of Megan’s Law, Megan’s Law I, was
enacted on October 24, 1995 (P.L. 1079 Spec. Sess. No. 1, as amended 42
Pa.C.S. §§ 9791-9799.6), and became effective in 180 days. Megan’s Law II
was enacted on May 10, 2000, in response to Megan’s Law I being ruled
unconstitutional in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999).
Subsequently, our Supreme Court held that although Megan’s Law II was
constitutional, the penalty provisions were unconstitutional, but severable, in
Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003). The
legislature responded by enacting Megan’s Law III on November 24, 2004.
Later, in an effort to align Pennsylvania with the federal notification
requirements enumerated in the Adam Walsh Child Protection and Safety Act
of 2006, 42 U.S.C. §§ 16901-16945, the legislature enacted SORNA I on
December 20, 2011, and SORNA I went into effect on December 20, 2012.
Megan’s Law III was ultimately struck down by our Supreme Court for
violating the single subject rule of Article III, Section 3 of the Pennsylvania
Constitution. Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013).




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Pennsylvania Supreme Court. Accordingly, his judgment of sentence became

final thirty days later on October 18, 2013.5

       On August 13, 2014, Appellant filed a timely pro se PCRA petition, and

the PCRA court appointed counsel on September 3, 2014. On October 24,

2014, PCRA counsel filed a Turner/Finley6 no-merit letter and a motion to

withdraw as counsel.         On November 18, 2014, the PCRA court granted

counsel’s motion to withdraw and notified Appellant of its intention to dismiss

his PCRA petition.       The PCRA court denied Appellant’s PCRA petition on

December 15, 2014.

       When Appellant first appealed the denial of his PCRA petition to this

Court, we concluded that his appeal was timely. Commonwealth v. Polzer,

298 WDA 2015 (Pa. Super. filed June 22, 2016) (unpublished memorandum).

In that prior appeal, Appellant raised the following issues:

       A.     Did the PCRA Court err in its decision dismissing Appellant’s
              PCRA petition without a hearing where:

              I.     The trial court erred in excluding statements of
                     an unavailable declarant as an exception to the
                     hearsay rule?; and on

              II.    Whether the trial court erred on its defense
                     motion sequestration order that allowed the


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5   42 Pa.C.S. § 9545(b)(1) and (3).

6   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw from representation
in a collateral proceeding under the PCRA).

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                 lead case detective to conform her testimony to
                 that of the complainant?;

          III.   Whether trial counsel was ineffective in failing
                 to    cross-examine      Detective     Campbell
                 concerning her prior inconsistent statements?;

          IV.    Whether trial counsel was ineffective in failing
                 to secure an available witness who was willing
                 to testify on Appellant’s behalf?;

          V.     Whether the sentencing court imposed an illegal
                 sentence in violation of the Ex Post Facto Clause
                 by invoking the “two strikes” mandatory
                 minimum sentencing provision of 42 Pa.C.S.A.
                 § 9714(a)(1), where the repeal of subsections
                 (b) and (c) made the statute more harsh and
                 punitive, subjecting Appellant to a greater
                 punishment that took away the discretionary
                 aspects of sentencing contrary to legislatures
                 intent of Section 9714?;

          VI.    Whether the sentencing court imposed an illegal
                 sentence, as to whether the mandatory
                 minimum sentence provisions under Section
                 9714 (a)(1) constitute an illegal sentence
                 pursuant to the United States Supreme Court’s
                 decision in Alleyne?;

          VII.   Whether the sentencing court imposed an illegal
                 sentence in violation of the Sixth Amendment to
                 the U.S. Const. by invoking the mandatory
                 minimum sentencing provision of Section 9714,
                 where such determination was not found by a
                 jury and proved beyond a reasonable doubt ?;

          VIII. Whether Section 9714 imposes new legal
                burdens of past transaction or occurrence and
                changes the punishment for the predicate
                offense in violation of the Fourteenth and Sixth
                Amendments?;

          IX.    Whether     [SORNA    I’s]  registration and
                 verification requirements under 42 Pa.C.S.A.

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                  § 9799.15(e)(3) violate the due process clause
                  of the Fourteenth Amendment, and the
                  prohibition of the Ex Post Facto Clause to the
                  U.S. Constitution, where Appellant has not been
                  designated a sexually violent predator to
                  warrant quarterly verification?

Appellant’s Brief at 8-9 (verbatim). Following our review, we affirmed the

PCRA court’s denial of relief.       Polzer, 298 WDA 2015 (unpublished

memorandum).

      Appellant filed a timely petition for allowance of appeal in the Supreme

Court of Pennsylvania on July 18, 2016. On February 23, 2018, our Supreme

Court granted Appellant’s petition for allowance of appeal limited to one issue,

which the Supreme Court reproduced verbatim from Appellant’s petition for

allowance of appeal:

      Whether the appellate Superior Court erred in its findings and
      conclusions, and the PCRA court committed legal error in denying
      Petitioner’s claim that the Sex Offender Registration and
      Notification Act (SORNA [I]) under 42 Pa.C.S.A. §9799, i.e.,
      §§9799.15(e) and (e)(3) violate the due process clause of the
      Fifth and the Fourteenth Amendments to the United States
      Constitution, and the due process rights under the Pennsylvania
      Constitution, Art. 1, §1, and Art. 1, §9, and, therefore, violate the
      prohibition of the Ex Post Facto Clauses to the United States
      Constitution, Art. 1, §10, Clause 1, and the Pennsylvania
      Constitution, Art. 1, §17, where Petitioner is clearly not
      designated as a Sexually Violent Predator (SVP) to justify and
      warrant such progressively rigid conditions and “quarterly in-
      person” reporting requirements previously subject only to those
      deemed an SVP, whereas, SORNA [I’s] irrebuttable presumption
      that all sexual offenders pose a high risk of reoffending violates
      procedural and substantive due process under the Pennsylvania
      Constitution, and as such, SORNA [I]’s Internet notification
      provision and quarterly verification requirements constitute an ex
      post facto law under the Pennsylvania Constitution?


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Order, 457 WAL 2016. The Supreme Court vacated this Court’s order and

remanded to this Court for reconsideration in light of Muniz. The Supreme

Court of Pennsylvania denied Appellant’s petition for allowance of appeal in all

other respects.

      On March 23, 2018, we remanded this matter to the PCRA court for the

appointment of counsel.       The PCRA court appointed counsel, and counsel

dutifully filed a brief on Appellant’s behalf.   The Allegheny County District

Attorney’s Office filed a responsive brief on behalf of the Commonwealth, and

the Pennsylvania Office of the Attorney General and Pennsylvania State Police

filed a brief as intervenors. This matter is now ripe for disposition.

      Our standard of review for an order denying PCRA relief is limited to

determining whether the record supports the PCRA court’s determination and

whether that decision is free of legal error. Commonwealth v. Allen, 48

A.3d 1283, 1285 (Pa. Super. 2012) (citation omitted).            The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Pursuant to our Supreme Court’s mandate, we address the application

of SORNA I following the Muniz decision. As noted, on December 20, 2011,

Pennsylvania enacted SORNA I, which became effective one year later, on

December 20, 2012. Thus, Appellant’s crimes, sentencing, and imposition of

sex-offender   registration    requirements   occurred   prior    to   SORNA   I’s

enactment.


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       In Muniz, our Supreme Court concluded that SORNA I altered the

registration requirements for Tier III offenses, which includes rape, and these

alterations increased the reporting obligation from annual in-person7 reporting

to quarterly in-person reporting. Muniz, 164 A.3d at 1210-1211, (citing 42

Pa.C.S. § 9799.15(e)(3)). SORNA I also allowed for more of a defendant’s

private information to be displayed online. Muniz, 164 A.3d at 1216 (citation

omitted). The Muniz Court determined that retroactive application of SORNA

I’s registration provisions violates the ex post facto clause of the Pennsylvania

Constitution. Muniz, 164 A.3d at 1223.

        Moreover, this Court held that Muniz applies retroactively to cases,

such as this one, which were pending on collateral appeal following the filing

of a timely PCRA petition, at the time Muniz was decided.                   See

Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017)

(“The Muniz decision should be retroactively applied in state collateral courts

to comply with the United States and Pennsylvania Constitutions.”); compare

Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018) (distinguishing

Rivera-Figueroa and declining to apply Muniz where the petitioner files an

untimely PCRA petition).

       However, during the pendency of this appeal, SORNA II was enacted,

and it abrogated SORNA I. Accordingly, SORNA I has no applicability, and we



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7   42 Pa.C.S. § 9796(b).

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are therefore constrained to reverse the order of the PCRA court which applied

SORNA I. Commonwealth v. Fernandez, ___A.3d___, ___, 2018 PA Super

245, 2018 WL 4237535, at *9 (Pa. Super. 2018).8               Thus, Appellant’s

registration requirements remain as they were at the time of sentencing. Id.

Appellant’s registration requirements will not be altered unless and until the

Pennsylvania State Police reclassify Appellant under SORNA II.9 Id.

       Order reversed.

       Judge Ott concurs in the result.

       Justice Fitzgerald did not participate in the consideration or decision of

this case.




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8  The Commonwealth and Intervenors make a compelling argument that this
issue is moot in light of SORNA II. Commonwealth’s Brief at 62; Brief for
Pennsylvania Attorney General and State Police as Intervenors at 14.
However, because this Court in Fernandez did not conclude the issue was
moot and addressed the sentences imposed, we are bound to follow that
precedent. Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).

9  The ramifications of SORNA II are not before this Court presently, and we
offer no opinion on the impact of SORNA II. See Fernandez, 2018 WL
4237535, at *9 (“[T]he issue of the possible retroactive application of [SORNA
II] is not before us. The only issue raised by Appellants, and argued to the
Court, was whether the reclassification under SORNA I, as applied . . . was
lawful.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2018




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