J-S38028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES H. HERB, III

                            Appellant               No. 1569 MDA 2014


           Appeal from the PCRA Order entered September 11, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No: CP-40-CR-0003100-2011


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 15, 2015

       Appellant, James H. Herb, III, appeals from the September 11, 2014

order entered in the Court of Common Pleas of Luzerne County, denying his

amended petition for collateral relief pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.1

       Appellant appeared before the Honorable Fred A. Pierantoni, III, on

July 30, 2013 and entered into a plea for failure to comply with Megan’s Law
____________________________________________


1
  The record reflects that on October 7, 2014, a motions panel of this Court
issued a Rule to Show Cause why this appeal should not be dismissed
pursuant to Pa.R.A.P. 301(a)(1), which provides that no order is appealable
until it has been entered upon the trial court docket. By subsequent order
entered December 17, 2014, the motions panel acknowledged receipt of
Appellant’s response to the rule; discharged the show cause rule; and noted
the issue would be referred to the merits panel. Our review of the trial court
docket confirms the entry of the September 11, 2014 order as required by
Rule 301(a)(1). Therefore, the appeal is properly before us.
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III, which included the sexual offender registration requirements in effect at

the time. Judge Pierantoni sentenced Appellant to a minimum of 36 months

and maximum of 72 months in a state correctional institution.

      On December 16, 2013, our Supreme Court ruled that Megan’s Law III

was unconstitutional because Act 152 of 2004 (Act 152), which included the

provisions of Megan’s Law III, violated the Single Subject Rule of Article III,

Section 3, of the Pennsylvania Constitution. Commonwealth v. Neiman,

84 A.3d 603 (Pa. 2013). However, the Court noted:

      [A]s we have observed previously in striking down other
      legislation which violated Article III, Section 3, “nothing ...
      precludes the General Assembly from enacting similar provisions
      in a manner consistent with the Constitution.”             City of
      Philadelphia[ v. Commonwealth, 838 A.2d 566, 594 (Pa.
      2003)].     [S]ince we find merit in the General Assembly's
      suggestion that our decision abrogating the entirety of Act 152
      will have a significant impact on a wide variety of individuals and
      entities which have ordered their affairs in reliance on its
      provisions, we will stay our decision, as we have done under
      similar circumstances, in order to provide a reasonable amount
      of time for the General Assembly to consider appropriate
      remedial measures, or to allow for a smooth transition period.
      See City of Philadelphia, [] 838 A.2d at 594.

Id. at 616. Significantly, despite striking Act 152 in its entirety, the Court

commented:

      We stress, however, that this action should, in no way, be read
      as a repudiation of the merits of the various legislative
      components of Act 152 such as Megan's Law III, which serves a
      vital purpose in protecting our Commonwealth’s citizens and
      children, in particular, from victimization by sexual predators.

Id. at 615.




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      The Supreme Court stayed its decision for 90 days, by which time the

Legislature passed Act 19 of 2014 (Act 19) with a retroactive effective date

of December 20, 2012.       Act 19 amended the sexual offender registration

requirements imposed by 42 Pa.C.S.A. § 9799.10 et seq., also known as the

Sexual Offender Registration and Notification Act (SORNA), and included a

declaration by the Legislature that “[i]t is the intention of the General

Assembly    to   address   the   Pennsylvania   Supreme   Court’s   decision   in

Commonwealth v. Neiman [] by amending this subchapter in the act of

(March 14, 2014, P.L. 41, No. 19).” 42 Pa.C.S.A. § 9799.11(b)(3).

      On May 12, 2014, the Luzerne County Public Defender’s Officer filed a

PCRA petition on Appellant’s behalf. The office filed an amended petition on

July 18, 2014 that included Appellant’s requisite verification and consent. A

hearing on the petition was held on September 11, 2014. At the conclusion

of the hearing, Judge Pierantoni, who was also the PCRA court judge, denied

Appellant’s petition. This timely appeal followed in which Appellant presents

one issue for our consideration:

      Whether the [PCRA] court erred in denying [Appellant’s] Petition
      for Post-Conviction Relief where [Appellant] is currently serving
      an illegal sentence and is incarcerated in violation of the due
      process clauses of both the Constitution of the United States and
      the Constitution of the Commonwealth of Pennsylvania?

Appellant’s Brief at 2.

      In essence, Appellant argues that the Megan’s Law III provisions under

which he was sentenced are void ab initio, rendering his sentence


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unconstitutional because the offense for which he was sentenced never

existed.    Appellant does not dispute that he entered a guilty plea to a

violation of his reporting requirements, nor does he suggest that his

transgression is no longer a violation under the provisions of Act 19 that

amended SORNA and were retroactive to December 20, 2012.               Simply

stated, he is attempting to play a “Get Out of Jail Free” card by claiming

Neiman should be applied retroactively and the Legislature’s enactment of

Act 19 should be disregarded.

       Appellant looks to this Court’s ruling in Commonwealth v. Michuck,

686 A.2d 403 (Pa. Super. 1996), in which we vacated a conviction under the

Vehicle Code because, while the appeal was pending, our Supreme Court

struck down a subsection of the Code under which Michuck was convicted.2

We recognized that “[a] court does not have power to enforce a law which is

no longer valid.” Id. at 407. Similarly, Appellant relies on Commonwealth

v. Muhammed, 992 A.2d 897 (Pa. Super. 2010), in which we affirmed

Muhammed’s conviction for unauthorized transfer of sounds on recording

devices but sua sponte reversed his conviction for trademark counterfeiting

because our Supreme Court declared the trademark counterfeiting statute

____________________________________________


2
  Michuck had been convicted under 75 Pa.C.S.A. § 3731(a)(5), which
imposed criminal penalties on individuals with a certain blood alcohol content
within three hours of driving, a provision our Supreme Court determined to
violate both state and federal due process guarantees in Commonwealth v.
Barud, 681 A.2d 162 (1996). See Michuck, 686 A.2d at 407.



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unconstitutional.3      “If no statutory authorization exists for a particular

sentence, that sentence is illegal and subject to correction. An illegal

sentence must be vacated.”             Id. at 903 (quoting Commonwealth v.

Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en banc)).

       Preliminarily, we note that Appellant’s reliance on Michuck and

Muhammed is misplaced.             Unlike the case before us, both Michuck and

Muhammed were pending on direct appeal when the relevant statutes were

declared unconstitutional.

       In Commonwealth v. Riggle, 2015 WL 4094427 (Pa. Super. July 7,

2015), this Court considered whether a constitutional rule warrants

retroactive application on collateral review, as in the case before us, rather

than on direct appeal, as in Michuck and Muhammed. Looking to Teague

v. Lane, 489 U.S. 288 (1989), we explained:

       Under the Teague framework, an old rule applies both on direct
       and collateral review, but a new rule is generally applicable only
       to cases that are still on direct review. A new rule applies
       retroactively in a collateral proceeding only if (1) the rule is
       substantive or (2) the rule is a ‘watershed rule of criminal
       procedure’ implicating the fundamental fairness and accuracy of
       the criminal proceeding.

Riggle at *4 (quoting Whorton v. Bocktin, 549 U.S. 406, 416 (2007)).

Without attempting to “define the spectrum of what may or may not
____________________________________________


3
  In Commonwealth v. Omar, 981 A.2d 179 (Pa. 2009), our Supreme
Court struck down the criminal statute of trademark counterfeiting (18
Pa.C.S.A. § 4119) as unconstitutionally overbroad. See Muhammed, 992
A.2d at 903.



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constitute a new rule for retroactivity purposes[,]” this Court explained that

generally, “a case announces a new rule when it breaks new ground or

imposes a new obligation on the States or the Federal Government.” Id. at

*5 (citations omitted).   Appellant urges us to consider Neiman as a new

rule to be applied retroactively.

      Applying the Teague standard, it is clear that Neiman, which struck

down Megan’s Law III as unconstitutional, announced a new rule.           With

regard to collateral proceedings, in accord with Teague and its progeny, the

new rule will be applied retroactively if it falls under one of two exceptions:

“it places certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe” or it is a watershed

procedural rule that “alters the understanding of the bedrock procedural

elements essential to the fairness of a proceeding.” Id. at *5-*6 (citations

and internal quotations omitted).

      “The only rule explicitly recognized by the United States Supreme

Court as a watershed criminal procedural rule was announced in Gideon v.

Wainwright, 372 U.S. 335 [] (1963), i.e., the right to counsel during a

felony criminal prosecution.” Id. at *6 (citing Whorton, 549 U.S. at 419).

Recognizing that the rule announced in Neiman does not rise to the level of

a watershed procedural rule such as announced in Gideon, we will limit our

discussion to whether the Neiman rule falls under the first exception.




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      By striking down the provisions of Megan’s Law III, Neiman does

place violations of that law beyond the power of the criminal law-making

authority to proscribe.      If our analysis were to conclude here, it would

appear Appellant would be entitled to relief under the first exception. If the

Neiman rule were to be applied retroactively, the PCRA court would not

have authority to convict Appellant or sentence him for a violation of

Megan’s Law III as an unconstitutional law that was stricken.   However, the

Court in Neiman did more than hold that Act 152, including Megan’s Law

III, was unconstitutional.    The Court stayed abrogation of Act 152 for 90

days to provide an opportunity for the General Assembly to take remedial

measures to address the manner in which the legislations was enacted. In

doing so, the Court, as previously stated, proclaimed that its action in

striking down Act 152 “should, in no way, be read as a repudiation of the

merits of the various legislative components of Act 152 such as Megan’s Law

III, which serves a vital purpose in protecting our Commonwealth’s citizens

and children, in particular, from victimization by sexual predators.”

Neiman, 84 A.3d at 615.          The Legislature acted in response to and in

accord with Neiman and passed Act 19, retroactive to December 20, 2012,

which once again made Appellant’s failure to register a criminal offense.

      Accordingly, Appellant’s contention—that by invalidating Megan’s Law

III from its enactment, the Neiman decision placed conduct covered by the

statute beyond the Commonwealth’s power to punish and that he is being


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punished for a crime that did not exist—must be rejected. Appellant ignores

the fact the sexual offender registration provisions were reinstated by Act

19, retroactive to December 20, 2012, prior to the effective date of Neiman

and prior to Appellant’s July 2013 guilty plea and sentencing.            Although

Appellant would like to think that Neiman makes him innocent of violating

sexual offender registration requirements in place as of July 30, 2013, that is

simply not the case in light of the retroactive application of Act 19. With the

enactment of Act 19, SORNA was amended and criminalized the conduct for

which Appellant was convicted.4                Consequently, due to the retroactive

application of Act 19, Appellant is not entitled to benefit from the new rule

announced in Neiman because his sentence was not illegal under the law

existing at the time of his conviction.

       Finding no error in the PCRA court’s denial of Appellant’s PCRA

petition, we affirm.




____________________________________________


4
  As the PCRA court aptly observed, “It is obvious . . . that the Pennsylvania
legislature seized the opportunity afforded by the Pennsylvania Supreme
Court and appropriately enacted the provisions of law deemed
unconstitutional as violating the single subject rule. No other conclusion is
rational, reasonable or warranted as a matter of law or logic.” PCRA Court
Opinion, 10/28/14, at 7.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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