J-S47042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    Appellee               :
                                           :
                      v.                   :
                                           :
    AARON M. NAZARIO,                      :
                                           :
                    Appellant              :     No. 256 WDA 2018

                Appeal from the PCRA Order December 15, 2017
                in the Court of Common Pleas of McKean County
                     Criminal Division at No(s): 120 CR 2016

BEFORE:      OLSON, J., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 25, 2018

        Aaron M. Nazario (Appellant) appeals from the December 15, 2017 order

denying his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546.      Upon review, we affirm the PCRA court’s order

dismissing Appellant’s PCRA petition, but vacate his judgment of sentence to

the extent it requires him to register under SORNA, and remand for

proceedings consistent with this memorandum.

        We begin with a brief procedural history. On June 1, 2016, Appellant

entered into a negotiated guilty plea to one count of indecent assault of a

person less than 13 years of age, a misdemeanor of the first degree. 1 The



1   18 Pa.C.S. § 3126(a)(7).




*Retired Senior Judge appointed to the Superior Court.
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offense occurred sometime between October 1, 2012 and May 31, 2014, when

the victim was between seven and nine years old.2 The victim’s mother was

Appellant’s paramour, and Appellant resided with the victim and her mother

at the time of the offense.3 As part of the plea agreement, the Commonwealth

withdrew the remaining charges of unlawful contact with a minor and

corruption of minors set forth in the criminal information.

        On December 23, 2016, Appellant was found to be a sexually violent

predator (SVP) pursuant to 42 Pa.C.S. § 9799.24, and on February 14, 2017,

was sentenced to 18 to 36 months of incarceration.            Due to Appellant’s

conviction and SVP designation, he is subject to the provisions of

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42

Pa.C.S. §§ 9799.10-9799.42, and is required to register for his lifetime as a

sex offender. 42 Pa.C.S. §§ 9799.14(d)(8), 9799.15(a)(3), 9799.15(a)(6).

        Appellant timely filed a direct appeal, and on September 18, 2017, this

Court affirmed Appellant’s judgment of sentence.          Commonwealth v.

Nazario, 178 A.3d 169 (Pa. Super. 2017) (unpublished memorandum).

Appellant did not seek allowance of appeal with our Supreme Court; thus, his

judgment of sentence became final on October 18, 2017.



2Information, 3/31/2016, at 1; N.T. 2/14/2017, at 9; N.T., 12/23/2016, at
33, 54-55.

3   N.T., 12/23/2016, at 32.



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      On November 3, 2017, Appellant, through counsel, timely filed a PCRA

petition challenging the legality of his sentence.     Specifically, Appellant

claimed that his SVP status should be vacated pursuant to Commonwealth

v. Butler, 173 A.3d 1212 (Pa. Super. 2017),4 appeal granted, 47 WAL 2018

(Pa. filed July 31, 2018) (holding that SORNA’s provision relating to SVP

designation is unconstitutional because it increases criminal punishment

without a fact-finder making factual findings beyond a reasonable doubt).

PCRA Petition, 11/3/2017, at ¶¶ 4, 11.       Appellant further claimed that,

pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding

that certain registration requirements under SORNA are punitive in nature),

his sentence is illegal because his lifetime registration requirement exceeds

the maximum period of incarceration for his conviction. Id. at ¶¶ 4, 12.

      On December 15, 2017, the PCRA court held a hearing.             At the

conclusion of the hearing, the PCRA court orally denied Appellant’s petition

and entered the order on the docket on December 18, 2017.          In denying

Appellant’s petition, the PCRA court declined to apply Butler retroactively to

Appellant. N.T., 12/15/2017, at 27-28. The PCRA court further declined to

grant Appellant relief on his claim that his lifetime registration exceeds the

maximum period of incarceration for the crime to which he pleaded guilty,




4Butler was filed on October 31, 2017, after Appellant’s judgment of sentence
became final.


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stating that “this is something that there[ i]s no basis upon which [the PCRA

court] can make that decision that [a] sexually violent predator designation …

cannot be longer than the allowable sentence because again, this would go

back and reverse sexually violent predator lifetime registrations for many,

many years -- decades … and the [PCRA court is] just not going to do that.”

Id. at 28.

      On February 14, 2018, Appellant filed a notice of appeal.    The PCRA

court ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied. In lieu of a

Rule 1925(a) opinion, the PCRA court directed this Court to pages 27-28 of

the transcript of the PCRA evidentiary hearing.5

      On appeal, Appellant raises two issues for our review:

      (1) Did the [PCRA] court err in denying Appellant’s request for
      relief under the [] PCRA, holding that the determination of
      [Appellant’s] status as a “sexually violent predator” will remain,
      following the Superior Court’s ruling in [] Butler.

      (2) Did the [PCRA] court err in determining that Appellant’s
      sentence requiring lifetime registration under SORNA was lawful,
      following the determination by the Pennsylvania [Supreme] Court
      in [] Muniz, which now classifies sex offender registration as
      punitive rather than a collateral consequence to conviction?

Appellant’s Brief at 4.



5The PCRA court noted that the senior judge who had presided over the PCRA
hearing is no longer serving as a senior judge because he had “reached the
mandatory age limit before the pending appeal was filed.” Order, 3/9/2018.



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      Before addressing Appellant’s arguments, we examine whether his

appeal is timely filed. While not raised by the parties or the PCRA court, this

Court may consider the issue of jurisdiction sua sponte. Commonwealth v.

Khalil, 806 A.2d 415, 418 (Pa. Super. 2002).

      A notice of appeal must be filed within 30 days after the entry of the

order from which the appeal is taken. Pa.R.A.P. 903. Here, the PCRA court

filed its order on December 18, 2017, and the notice of appeal was filed on

February 14, 2018, beyond the 30 day timeframe. However, due to errors by

the clerk and court below, we conclude Appellant’s appeal was timely filed. In

a criminal case, “docket entries shall contain: (a) the date of receipt in the

clerk’s office of the order or court notice; (b) the date appearing on the order

or court notice; and (c) the date of service of the order or court notice.”

Pa.R.Crim.P. 114(C)(2) (emphasis added); see also Pa.R.Crim.P. 113

(referring to criminal case file and docket entries).

      Here, our review of the certified copy of the docket entries discloses no

notation on the docket to indicate that the clerk furnished to Appellant a copy

of the order denying his PCRA petition. Although the order itself contains a

handwritten notation indicating service on the parties, the docket fails to state




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the date of service.6   See Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1),

(d)(1) (stating that appeal period only begins to run on the date the clerk

“mails or delivers copies of the order to the parties”). Thus, the period for

taking an appeal was never triggered and the instant appeal is considered to

be timely filed. Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.

2000) (holding appeal was timely filed because appeal period was never

triggered where docket entry did not indicate clerk furnished copy of order to

appellant).

      Further, in post-conviction collateral proceedings,

      [i]f the judge disposes of the case in open court in the presence
      of the defendant at the conclusion of the hearing, the judge shall
      advise the defendant on the record of the right to appeal from the
      final order disposing of the petition and of the time within which
      the appeal must be taken. If the case is taken under advisement,
      or when the defendant is not present in open court, the judge, by
      certified mail, return receipt requested, shall advise the defendant
      of the right to appeal from the final order disposing of the petition
      and of the time limits within which the appeal must be filed.

Pa.R.Crim.P. 908(E) (emphasis added).        Here, Appellant appeared at the

hearing via telephone and the PCRA court disposed of the petition in open

court. See N.T., 12/15/2017, at 3, 27-28. Thus, pursuant to Rule 908, the




6
  We also note with displeasure the clerk’s unexplained change to the date
stamp appearing on the notice of appeal. The clerk appears to have originally
date-stamped the notice of appeal on January 5, 2018 (which is also the date
Appellant’s counsel indicated he served the notice of appeal on all parties),
but that date has been “whited out” and a new, handwritten date of February
14, 2018 appears.


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judge was required to advise Appellant on the record of his appellate rights.

However, the PCRA court failed to do so. We further note that, while not

technically required under Rule 908 in this case, because Appellant was

present at the hearing, the PCRA court’s order denying Appellant’s petition

likewise failed to advise him of his appellate rights.    Pa.R.Crim.P. 908(E).

Thus, at no point following denial of his petition did the PCRA court advise

Appellant of his appellate rights, even though it was required to do so.

      Based on the foregoing, we conclude that we may address Appellant’s

appeal.   See Jerman, 762 A.2d at 368.        Even if Appellant’s appeal were

untimely, we would still address it. See Khalil, 806 A.2d at 419 (holding this

Court “will address an otherwise untimely appeal if fraud or [a] breakdown in

the trial court’s processes resulted in an untimely appeal”).

      We now turn to the merits of Appellant’s claims. Our standard of review

of the denial of a PCRA petition is limited to examining whether the PCRA

court’s rulings are supported by the evidence of record and free of legal error.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

      Appellant first raises an argument under Butler to challenge his SVP

designation. Appellant’s Brief at 14-18. In that case, Butler challenged his

SVP designation on direct appeal. This Court concluded that, in light of our

Supreme Court’s decision in Muniz classifying registration requirements as

punitive, “[sub]section 9799.24(e) of SORNA [relating to SVP designation]




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violates the federal and state constitutions because it increases the criminal

penalty to which a defendant is exposed without the chosen fact-finder making

the necessary factual findings beyond a reasonable doubt.” Butler, 173 A.3d

at 1218. This Court’s reasoning in Butler relied on the United States Supreme

Court’s decision in Alleyne,7 which our Supreme Court has held does not

apply retroactively where, as here, judgment of sentence is final.        See

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding

that “Alleyne does not apply retroactively to cases pending on collateral

review”). Accordingly, we decline to construe Butler to apply retroactively to

cases pending on collateral review. As noted supra, Appellant’s judgment of

sentence became final on October 18, 2017, which predates Butler, and we

therefore agree with the PCRA court that Appellant is not entitled to relief on

this claim.

      Appellant next claims that the PCRA court “erred in denying Appellant’s

PCRA petition, determining that Appellant’s sentence requiring lifetime

registration under SORNA was a lawful sentence.” Appellant’s Brief at 18.

      To address this issue, we now examine Appellant’s sex offender

registration requirements. There is no dispute that Appellant entered into a



7 Alleyne v. United States, 570 U.S. 99, 102 (2013) (holding that “[a]ny
fact that, by law, increases the penalty for a crime is an element that must be
submitted to the jury and found beyond a reasonable doubt”) (citation and
internal quotation marks omitted).



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negotiated guilty plea to one count of indecent assault of a person less than

13 years of age, which is a Tier III sexual offense requiring lifetime registration

under SORNA.       42 Pa.C.S. §§ 9799.14(d)(8), 9799.15(a)(3).          However,

Appellant argues that because the charge to which he pleaded guilty carries a

maximum sentence of 5 years of incarceration, under Muniz, his period of

registration “should be capped at the 5 year maximum punishment permitted

for a misdemeanor of the [first] degree.” Appellant’s Brief at 18-19. This

Court recently addressed this issue as one of first impression, concluding that

      SORNA’s registration requirements are an authorized punitive
      measure separate and apart from [an a]ppellant’s term of
      incarceration. The legislature did not limit the authority of a court
      to impose registration requirements only within the maximum
      allowable term of incarceration; in fact, the legislature mandated
      the opposite and required courts to impose registration
      requirements in excess of the maximum allowable term of
      incarceration.

Commonwealth v. Strafford, __ A.3d __, 2018 WL 3717081 at *3 (Pa.

Super. filed August 6, 2018).      Thus, we conclude that Appellant’s lifetime

registration requirement authorized by SORNA does not constitute an illegal

sentence and no relief is due in that regard.

      Finally, while Appellant does not assert that SORNA was applied

retroactively to him in violation of the ex post facto clause of the Pennsylvania

constitution, because Muniz implicates the legality of his sentence, we may

review it sua sponte. Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.

Super. 2001).



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     We begin with the relevant legal framework.

     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.

     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. Commonwealth v. Young, [] 637 A.2d 1313, 1318
     ([Pa. ]1993) (emphasis in original). 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).




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        “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 act’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);

see also Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa. Super. 2017)

(holding that “the binding precedent emerging from Muniz is confined to the

determination that SORNA’s registration requirement is punishment that runs

afoul of the ex post facto clause of the Pennsylvania Constitution when applied

retroactively”).

        SORNA became effective on December 20, 2012, replacing Megan’s Law

III.8   Under the Megan’s Law III scheme, a person with one conviction of

indecent assault with a person less than 13 years of age was subject to a 10-

year registration period. 42 Pa.C.S. § 9795.1(a)(1) (expired). Under SORNA,

a person with such a conviction is subject to lifetime registration. 42 Pa.C.S.

§§ 9799.14(d)(8), 9799.15(a)(3).      Thus, SORNA increased the period of




8  Megan’s Law III was invalidated by our Supreme Court’s decision
in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).




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registration for one conviction of indecent assault of a person less than 13

years of age.9

      We cannot discern from the record the date on which Appellant

committed the offense to which he pleaded guilty.          Appellant’s criminal

information charged him with three sexual offenses that were committed

between October 1, 2012 and May 31, 2014. Because Appellant entered into

a negotiated plea agreement, resulting in the remaining charges being

withdrawn, we cannot determine from the record whether Appellant

committed the crime to which he pleaded guilty before or after SORNA’s

effective date. If Appellant committed the crime at issue here before SORNA’s

effective date (i.e., before December 20, 2012), “application of [SORNA]

would inflict greater punishment on [A]ppellant than the law in effect at the

time he committed his crime” and thus, the statute cannot be applied

retroactively to Appellant without violating the ex post facto clause of the

Pennsylvania constitution.    See Muniz, 164 A.3d at 1192-93, 1196.            If

Appellant committed the crime to which he pleaded guilty on or after



9 In addition, SORNA enhanced registration requirements for Tier III offenses,
including quarterly in-person reporting and dissemination of personal
information via an Internet website. Muniz, 164 A.3d at 1210-11 (citing
Commonwealth v. Perez, 97 A.3d 747, 765 (Pa. Super. 2014) (Donohue, J.
concurring)). These additional, more stringent registration requirements
constitute a greater punishment than what would have been imposed under
Megan’s Law III.      As such, retroactive application of these enhanced
registration requirements runs afoul of constitutional ex post facto prohibition.
See Muniz, 164 A.3d at 1193, 1216.


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December 20, 2012, imposing registration under SORNA was legal.

Regardless, due to Appellant’s SVP status, he must still register as a sex

offender for his lifetime. See Butler discussion, supra.

     Accordingly, we vacate Appellant’s judgment of sentence to the extent

it requires Appellant to register as a sex offender pursuant to SORNA, and

remand for a determination of the date on which Appellant committed the

crime to which he pleaded guilty.    Following that determination, Appellant

shall be provided with the appropriate tier-based registration obligations and

resentenced accordingly.

     PCRA court order affirmed.       Portion of sentencing order requiring

Appellant to comply with SORNA vacated to permit a determination of the date

on which Appellant committed the crime to which he pleaded guilty. Judgment

of sentence affirmed in all other respects. Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

     Judge Olson concurs in the result.

     Judge McLaughlin concurs in the result.




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