J-S19017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 RANDELL HOLLY                         :
                                       :
                   Appellant           :   No. 383 EDA 2017

               Appeal from the PCRA Order January 5, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0008395-2009

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 RANDELL HOLLY                         :
                                       :
                   Appellant           :   No. 386 EDA 2017

               Appeal from the PCRA Order January 5, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0008456-2009

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 RANDELL HOLLY                         :
                                       :
                   Appellant           :   No. 445 EDA 2017

               Appeal from the PCRA Order January 5, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0009089-2009
J-S19017-18


BEFORE:       SHOGAN, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED JUNE 28, 2018

        Appellant Randell Holly appeals from the order denying his first Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition. Appellant’s

sole claim is that an increase of his sexual offender registration period from

ten to twenty-five years violates the prohibition against ex post facto

punishment. We affirm in part but remand for further proceedings.

        Appellant was charged in the above-captioned cases with committing

sexual offenses against three children. In CP-51-CR-0008395-2009 (8395-

2009), Appellant was charged with assaulting U.A. (Victim 1) and B.L. (Victim

2) in November and December of 2008, respectively. In CP-51-CR-0008456-

2009 (8456-2009), Appellant was charged with assaulting P.L. (Victim 3) in

December of 2008. In CP-51-CR-0009089-2009 (9089-2009), Appellant was

charged with assaulting Victim 1 in December of 2008.

        On November 22, 2010, a jury found Appellant guilty of the following

offenses: (1) on 8395-2009, indecent assault–person less than thirteen years

of age,1 unlawful contact with a minor,2 and corruption of the morals of a



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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 3126(a)(7).

2   18 Pa.C.S. § 6318(a)(1).




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minor3 with respect to Victim 2;4 (2) on 8456-2009, unlawful contact with a

minor with respect to Victim 3; and (3) on 9089-2009, unlawful contact with

a minor with respect to Victim 1.              On February 11, 2011, the trial court

sentenced Appellant to serve an aggregate term of three-and-one-half to

seven years’ imprisonment. At that time, the convictions for indecent assault–

person less than thirteen years of age and unlawful contact with a minor

required Appellant to register as a sexual offender for a term of ten years.

See 42 Pa.C.S. § 9795.1(a)(1) (expired).5

        Appellant filed a first PCRA petition in 2012. The PCRA court reinstated

Appellant’s right to take a direct appeal, and Appellant took an appeal to this

Court.

        While Appellant’s direct appeal was pending, the Sexual Offender

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

(subsequently amended Feb. 21, 2018), took effect on December 20, 2012.

Under SORNA, indecent assault–person less than thirteen years of age and

unlawful contact with a minor were classified as a Tier II sexual offense and

required a sexual offender to register for a term of twenty-five years.          42


____________________________________________


3   18 Pa.C.S. § 6301(a)(1).

4The charges with respect to Victim 1 in 8395-2009 were dismissed by nolle
prosequi.

5 The record does not indicate whether Appellant was designated as a sexually
violent predator.



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Pa.C.S. §§ 9799.14(c)(1.3) & (5) (subsequently amended Feb. 21, 2018);

9799.15(a)(2) (subsequently amended Feb. 21, 2018).           Additionally, the

former version of SORNA applied retroactively to individuals who committed

offenses before its enactment or effective date.

       On January 16, 2015, this Court affirmed the judgment of sentence.6

Commonwealth v. Holly, 407 EDA 2014 (Pa. Super. filed Jan. 16, 2015)

(unpublished mem.).         Appellant did not seek allowance of appeal in the

Pennsylvania Supreme Court.

       On October 13, 2015, Appellant timely a pro se PCRA petition, which

gives rise to the instant appeal.7 The PCRA court appointed counsel who filed

an amended PCRA petition raising two ineffective assistance of counsel

claims.8 The PCRA court issued a notice of its intent to dismiss Appellant’s

petition on November 21, 2016. See Pa.R.Crim.P. 907(1). Appellant did not

respond, and the PCRA court dismissed Appellant’s PCRA petition on January

5, 2017.

       Appellant timely appealed and complied with the PCRA court’s order to

file and serve a Pa.R.A.P. 1925(b) statement. In his Rule 1925(b) statement,
____________________________________________


6 Appellant attempted to raise a claim of trial counsel’s ineffectiveness in his
direct appeal. Holly, 407 EDA 2014, at 2. This Court affirmed the judgment
of sentence without prejudice to Appellant’s right to raise his claim in a
subsequent PCRA proceeding. Id. at 6.

7Appellant’s pro se petition bore a post stamp dated October 13, 2015, and
was stamped by the trial court as received that same day.

8 As noted below, Appellant has abandoned his ineffective assistance of
counsel claims in this appeal.


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Appellant asserted that the trial court erred in dismissing his ineffectiveness

claims. Appellant’s Pa.R.A.P. 1925(b) Statement, 3/20/17. The PCRA court

filed a responsive opinion on May 26, 2017, suggesting that Appellant’s claims

were meritless.

      While this appeal was pending, the Pennsylvania Supreme Court decided

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and concluded that

the registration requirements of the former version of SORNA were punitive

in nature. Id. at 1218. The Muniz Court held that the retroactive application

of SORNA to increase a sexual offender’s term of registration violated ex post

facto principles under the United States and Pennsylvania Constitutions. Id.

at 1223.

      The General Assembly subsequently responded to the Muniz decision

by amending SORNA.      See 2018, Feb. 21, P.L. 27, No. 10 (Act 10).       The

amended version of SORNA, which is currently in effect, clarifies that its

registration requirements apply to a defendant who committed an offense on

or after its initial effective date of December 20, 2012. See 42 Pa.C.S. §

9799.11(c).

      Act 10 also added Subchapter I to SORNA, which purports to address

the retroactivity and ex post facto concerns set forth in Muniz.       See 42

Pa.C.S. § 9799.51(b)(4). Under Subchapter I, indecent assault–person less

than thirteen years of age and unlawful contact with a minor, when committed

“on or after April 22, 1996, but before December 2012” requires the defendant

to register for ten years. 42 Pa.C.S. § 9799.55(a).


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       Appellant now presents the following question for our review:

       Did the order revising the original sentence of ten years’
       registration under Megan’s Law to one of twenty-five years’ to
       life[9] under SORNA result[] in the imposition of an illegal
       sentence?

Appellant’s Brief at 3 (capitalization omitted).

       Appellant, for the first time on appeal, contends that the increase in the

term of his sexual offender registration requirements from ten to twenty-five

years constitutes an illegal sentence in light of Muniz. Id. at 11-12. Appellant

requests that this Court

       find that SORNA does not apply to him and, then issue an order
       vacating the order increasing the period of time during which
       [A]ppellant must register as a sex offender. In lieu of the grant of
       such relief, [A]ppellant asks that the matter be remanded to the
       PCRA court with instructions that it strike the order requiring
       [A]ppellant to register beyond ten years or to hold a hearing on
       [A]ppellant’s claim.

Id. at 12.

       The Commonwealth responds that Appellant’s claim is moot in light of

Act 10. Commonwealth’s Brief at 6. The Commonwealth asserts that Act 10

“restores the ten-year registration term that originally applied” and concedes

that Appellant “is no longer subject to a twenty-five year registration term[.]”

Id. The Commonwealth concludes that “there is no live controversy in this

appeal, and the order below should be affirmed.” Id. (citation omitted).

____________________________________________


9 There is no suggestion in the record that the trial or PCRA court entered a
separate order increasing Appellant’s registration period from ten to twenty-
five years or life.


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      Preliminarily, we note that Appellant initially took this appeal from the

PCRA court’s order denying his claims of ineffective assistance of counsel, but

has abandoned those issues on appeal.          Appellant’s Pa.R.A.P. 1925(b)

Statement.      Therefore, Appellant’s original claims that trial counsel was

ineffective are waived. See Pa.R.A.P. 2119(a); Commonwealth v. Clayton,

816 A.2d 217, 221 (Pa. 2002) (reiterating that undeveloped claims are not

reviewable on appeal). Accordingly, we affirm the PCRA court’s order to the

extent it dismissed Appellant’s claims of ineffective assistance of counsel.

      However, a claim that the former version of SORNA unconstitutionally

increased the period for which a sexual offender was to register implicates the

legality of the sentence. See Commonwealth v. Butler, 173 A.3d 1212,

1215 (Pa. Super. 2017), (concluding “SORNA registration requirements are

now deemed to be punitive and part of the criminal punishment imposed upon

a convicted defendant” and applying legality of sentence principles to an SVP

designation).    Moreover, there is no dispute that Appellant timely filed his

instant PCRA petition from the judgment of sentence. See Commonwealth

v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018). Therefore, we may

consider Appellant’s claim on appeal.      See Commonwealth v. Rivera-

Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017); cf. Butler, 173 A.3d at 1215

(noting that issues implicating the legality of sentence may be raised sua

sponte and that our review of issues is de novo and plenary).

      As noted above, the law regarding a sexual offender registration period

has changed significantly while this appeal was pending. Muniz held that the


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registration requirements in the former version of SORNA were punitive and

that an increase in a sexual offender’s term of registration violated ex post

facto principles. Of particular relevance to this appeal, the General Assembly

also created Subchapter I, which addresses sexual offenders who committed

an offense before December 20, 2012, and generally requires the offender to

register for a term equivalent to the term called for before the effective date

of SORNA. Cf. 42 Pa.C.S. § 9799.55(a). Hence, we agree with Appellant and

the Commonwealth that Appellant is no longer subject to SORNA’s twenty-five

year registration period for indecent assault–person less than thirteen years

of age and unlawful contact with a minor. Further, under Act 10, Appellant

appears to be subject to a ten-year registration period for those offenses.

       Nevertheless, neither the parties nor the PCRA court have had an

opportunity to address Act 10 in any detail. Therefore, we remand this matter

for further proceedings at which the parties may address Act 10.10        See

Rivera-Figueroa, 174 A.3d at 679.

       Order affirmed in part.           Case remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.




____________________________________________


10We note that this Court has recently granted en banc review in two cases
that may involve Act 10. See Order, Commonwealth v. Lippincott, 2057
EDA 2014, (Pa. Super. filed Apr. 20, 2018); Order, Commonwealth v.
Wood, 1193 & 1194 MDA 2017 (Pa. Super. filed Apr. 20, 2018).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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