J-S15036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
               v.                         :
                                          :
 CHARLES C. THOMPSON                      :
                                          :
                    Appellant             :        No. 1342 WDA 2018

          Appeal from the Judgment of Sentence August 15, 2018
            In the Court of Common Pleas of Jefferson County
           Criminal Division at No(s): CP-33-CR-0000279-2015


BEFORE:    GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                    FILED JANUARY 14, 2020

      Appellant, Charles C. Thompson, appeals from the new judgment of

sentence entered in the Jefferson County Court of Common Pleas, based on

his guilty plea to failure to comply with registration requirements under the

Sexual Offender Registration and Notification Act (“SORNA”). We reverse the

conviction, vacate the judgment of sentence, and remand for further

proceedings.

      The relevant facts and procedural history of this case are as follows. In

2001, Appellant pled guilty in Mesa County, Colorado to ten counts of sexual

exploitation of a child, per C.R.S.A. § 18-6-403(3)(b.5). As a result, Appellant

was required under Colorado law to register as a sex offender for a minimum

of ten (10) years. After the ten years expired, Appellant became eligible to

petition the Colorado court to remove him from the registry. In 2010, while


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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the ten-year Colorado registration requirement was still in effect, Appellant

moved to Pennsylvania.       When the ten-year registration period expired,

Appellant did not to petition the Colorado court for removal from the registry,

so his registration requirements continued.

      On August 18, 2015, the Commonwealth charged Appellant for failing

to update his information as required under SORNA.           The Commonwealth

alleged that between February 2, 2015, and February 25, 2015, Appellant

failed to notify the Pennsylvania State Police (“PSP”) within three business

days of his change of address from Hamilton, Pennsylvania to Punxsutawney,

Pennsylvania, in violation of 18 Pa.C.S.A. § 4915.1(a)(1). On August 3, 2016,

Appellant entered a guilty plea to failure to comply with registration

requirements, and the court sentenced Appellant to five (5) to ten (10) years’

imprisonment, plus ten (10) years’ probation. Appellant did not seek direct

review.

      On July 31, 2017, Appellant timely filed a pro se PCRA petition, and the

court subsequently appointed counsel. Counsel filed an amended petition on

October 6, 2017, claiming, inter alia, SORNA was unconstitutionally applied to

Appellant, and the offense of Appellant’s failure to comply with registration

requirements was improperly graded as a Felony 1. The PCRA court held a

hearing on January 30, 2018. On February 8, 2018, the court granted relief

in part and denied relief in part. Specifically, the court granted Appellant relief

on the grading challenge and ordered resentencing.          The court, however,


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denied PCRA relief regarding the SORNA/Muniz1 claim, explaining that SORNA

did not function as an unconstitutional ex post facto law in Appellant’s case

because SORNA had not created or enhanced his reporting requirements.

Rather, the court stated Appellant’s continuing obligation to report stemmed

from his Colorado convictions and his failure to petition the Colorado court for

release from his duty to register.

       On August 15, 2018, the court resentenced Appellant to twenty-eight

(28) months to ten (10) years’ imprisonment. On the same day, Appellant

timely filed a post-sentence motion based on an illegal sentence, which the

court denied. On September 13, 2018, Appellant filed a notice of appeal. The

court ordered Appellant on September 19, 2018, to file a concise statement

of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied

on September 24, 2018.

       Appellant raises the following issue for our review:

          WAS [APPELLANT’S] CONVICTION OF THE CRIME OF
          FAILURE TO COMPLY WITH REGISTRATION REQUIREMENTS
          (18 PA.C.S.A. SEC. 4915.1(A)(1)) INVALID, AND THE
          AUGUST 15, 2018, SENTENCE FOR SAID CONVICTION OF,
          INTER ALIA, 28 MONTHS TO NO MORE THAN 10 YEARS’
          INCARCERATION THEREBY RENDERED ILLEGAL AS BEING
          IN VIOLATION OF BOTH THE CONSTITUTION OF THE
          COMMONWEALTH OF PENNSYLVANIA AND OF THE
          CONSTITUTION OF THE UNITED STATES WHERE THE
          ELEMENTS OF THE CRIME HE WAS CONVICTED OF CAN
          ONLY BE ESTABLISHED BY PROOF THAT [APPELLANT] WAS
          THEN SUBJECT TO THE PROVISIONS OF PENNSYLVANIA’S
____________________________________________


1 Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert.
denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018).

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         SEX OFFENDER REGISTRATION AND NOTIFICATION ACT
         (SORNA) AND SAID CONVICTION RESULTED FROM
         RETROACTIVE APPLICATION OF SORNA’S REGISTRATION
         PROVISIONS IN VIOLATION OF THE EX POST FACTO
         CLAUSES OF BOTH CONSTITUTIONS?

(Appellant’s Brief at 2).

      Appellant argues his conviction for failure to comply with the registration

requirements per 18 Pa.C.S.A. § 4915.1(a)(1) can be established only if

Appellant was subject to the provisions of SORNA. Appellant, however, avers

his Colorado convictions predate the effective date of SORNA so SORNA does

not apply to him. Appellant contends the court retroactively applied SORNA,

in violation of the ex post facto clauses of both the United States and

Pennsylvania Constitutions. Appellant claims this ex post facto application of

SORNA invalidates his conviction and renders his sentence illegal pursuant to

Muniz.    Appellant concludes this Court should vacate his conviction and

sentence for failure to comply with SORNA. We agree.

      A challenge to the legality of a sentence is a question of law.

Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa.Super. 2017) (en banc).

Thus, our standard of review is de novo and our scope of review is plenary.

Id. This Court has observed:

         A claim that implicates the fundamental legal authority of
         the court to impose a particular sentence constitutes a
         challenge to the legality of the sentence. If no statutory
         authorization exists for a particular sentence, that sentence
         is illegal and subject to correction. An illegal sentence must
         be vacated.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013) (internal

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citations and quotation marks omitted).

       In July 2017, our Supreme Court declared SORNA unconstitutional,

where it violates the ex post facto clauses of both the United States and

Pennsylvania Constitutions.   Muniz, supra.      The Muniz court determined

SORNA’s purpose was punitive, despite the General Assembly’s stated civil

remedial purpose. Id. at 748-49, 164 A.2d at 1218. Therefore, a retroactive

application of SORNA to pre-SORNA sex offenders violates the ex post facto

clause of the United States Constitution. Id. SORNA also violates the ex post

facto clause of the Pennsylvania Constitution because it places a unique

burden on the right to reputation and undermines the finality of sentences by

enacting increasingly severe registration law.    Id. at 756-57, 164 A.2d at

1223. A plea to failure to register under SORNA is unconstitutional and must

be vacated, where the defendant committed his underlying sex offense prior

to the effective date of SORNA. Commonwealth v. Wood, 208 A.3d 131,

140 (Pa.Super. 2019) (en banc) (holding effective date of SORNA controls for

purposes of ex post facto analysis); Commonwealth v. Lippincott, 208 A.3d

143 (Pa.Super. 2019) (en banc) (stating same).

       Instantly, Appellant was convicted of his underlying sex offenses in

Colorado in 2001, eleven years before the effective date of SORNA. Appellant

moved to Pennsylvania in 2010, and began registering under Pennsylvania

law.   In 2015, police discovered Appellant had changed his Pennsylvania

address without notifying the PSP. The Commonwealth charged him for failing


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to update his information as required under SORNA. Appellant entered a guilty

plea to failure to comply with the SORNA registration requirements. Following

a challenge to the initial judgment of sentence, the court granted partial relief

on Appellant’s grading claim but denied his SORNA/Muniz claim. Regarding

its denial of the SORNA/Muniz claim, the court explained that SORNA did not

function as an unconstitutional ex post facto law in Appellant’s case because

SORNA had not created or enhanced his reporting requirements. Rather, the

court emphasized that Appellant’s reporting obligation stemmed from his

failure to petition the Colorado court to discontinue his duty to register. The

court’s reasoning, however, is flawed.

      Here, Appellant committed his offenses in Colorado before the effective

date of SORNA, when Megan’s Law II was operative in Pennsylvania. When

the Commonwealth charged Appellant in 2015 with failure to comply with

registration requirements, SORNA was operative.            Because Appellant’s

underlying sex offenses occurred prior to the effective date of SORNA, SORNA

does not apply to his case.      See Muniz, supra.        Appellant’s reporting

obligation stemmed from another state but that is not controlling.           The

unconstitutional ex post facto application of SORNA to Appellant invalidates

his guilty plea to “violating SORNA” and renders his sentence illegal. See id.;

Wood, supra; Lippincott, supra. Accordingly, we reverse the conviction

and vacate the judgment of sentence for failing to comply with SORNA. See

Infante, supra.


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      Nevertheless, Appellant failed to petition the Colorado court to

discontinue his registration duties. While Appellant did not have to register

as specified in SORNA, he was still required to register in Pennsylvania.

Therefore, we remand this case to the trial court to determine Appellant’s

appropriate registration requirements.

      Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2020




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