J-S52002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    JASON HOOVER SENSENIG,

                             Appellant                 No. 141 MDA 2018


       Appeal from the Judgment of Sentence Entered November 30, 2017
                In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000071-2017


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 22, 2018

        Appellant, Jason Hoover Sensenig, appeals from the judgment of

sentence imposed after he pled guilty to one count of indecent assault of a

person less than 13 years of age, 18 Pa.C.S. § 3126(a)(7).            Appellant

specifically challenges the trial court’s imposition of a 10-year registration

requirement pursuant to Megan’s Law III, 42 Pa.C.S. §§ 9791-9799.9. After

careful review, we vacate that aspect of Appellant’s sentence, affirm the

remainder of his judgment of sentence, and remand for further proceedings.

        The trial court summarized the pertinent facts and procedural history of

this case, as follows:

             The underlying facts, as acknowledged by [Appellant], are
        that between January 1, 2010 and December 31, 2011,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     [Appellant], who was between the ages of fifteen (15) and
     seventeen (17), touched the vagina of the victim, who was
     between the ages of ten (10) and twelve (12). The victim did not
     disclose the sexual assault until 2016 and charges were not filed
     until [Appellant] was over the age of twenty-one (21). On May
     23, 2017, [Appellant] pled guilty to indecent assault of a person
     less than thirteen (13) years of age. Sentencing was deferred
     pending an assessment by the Sexual Offender’s Assessment
     Board, which determined that [Appellant] was not a sexually
     violent predator. Pursuant to the negotiated plea agreement,
     [Appellant] was sentenced on September 14, 2017[,] to a split-
     sentence of six (6) to twenty-three (23) months of house arrest
     and a consecutive three (3) years of probation.

            Prior to sentencing, [Appellant] filed a motion on September
     7, 2017[,] seeking to bar imposition of sexual offender registration
     requirements pursuant to the decision in [Commonwealth v.]
     Muniz[, 164 A.3d 1189, 1223 (Pa. 2017) (holding that the
     registration provisions under the Sexual Offender Registration and
     Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41,
     constitute criminal punishment for purposes of the ex post facto
     clause of the Pennsylvania Constitution and, therefore, those
     requirements cannot be constitutionally applied to offenders
     whose crimes occurred before SORNA’s effective date)].
     [Appellant’s] motion was denied at the time of sentencing and he
     was ordered to comply with the lifetime reporting requirement
     applicable pursuant to SORNA. [Appellant] filed a post-sentence
     motion on September 20, 2017, which was granted, in part, on
     October 30, 2017[,] for the reasons stated within the Opinion and
     Order filed on that date.        [Appellant] was resentenced on
     November 30, 2017[,] to the ten (10) year registration and
     reporting requirements that were in effect at the time [Appellant]
     committed the offense. A second post-sentence motion was filed
     by [Appellant] on December 7, 2017, which was denied by Order
     dated January 2, 2018.

Trial Court Opinion (TCO), 3/14/18, at 2-3 (footnotes omitted).

     Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The court filed its Rule 1925(a) opinion on

March 14, 2018. Herein, Appellant raises three issues for our review:

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      I.     Whether the lower court[’s] … order[ing] [Appellant] to
             comply with the registration and notification requirements
             of 42 Pa.C.S.[] § 9799.51[,] when the predicate acts
             occurred when [Appellant] was less than 18 years of age[,]
             was unconstitutional[, as it] violat[ed] [Appellant’s] due
             process rights by relying on an irrebuttable presumption?

      II.    Whether the imposition of the ten-year reporting
             requirements upon [Appellant] consistent with the
             provisions of 42 Pa.C.S.[] § 9799.51 is legal and
             constitutional ex post facto law?

      III.   Whether the lower court correctly required [Appellant] to
             register pursuant to 42 Pa.C.S.[] § 9799.51 when
             [Appellant] would not have been required to register i[f]
             [Appellant] had been adjudicated delinquent?

Appellant’s Brief at 1 (unnecessary capitalization and emphasis omitted).

      Appellant’s issues are interrelated and, therefore, we will address them

together. Appellant’s claims all stem from the fact that he was a juvenile at

the time he committed his offense, although he was ultimately prosecuted and

convicted for that crime as an adult. He summarizes his arguments premised

on this fact, as follows:

            The imposition of the ten year reporting requirements of 42
      Pa.C.S. § 9799.51 upon [Appellant,] who committed the predicate
      offense when he was less than 18 years of age[,] was illegal and
      unconstitutional for three separate reasons.

            First, it violates his rights to due process by utilizing an
      irrebuttable presumption that juvenile sex offenders present a
      high risk of recidivism. See In the Interest of J.B., 107 A.3d 1
      (Pa. 2014).

            Second, the imposition of [a] ten year reporting
      requirement[] as allegedly made applicable upon [Appellant] by
      the provisions of 42 Pa.C.S.[] § 9799.51 is illegal and
      unconstitutional as it is violative of the prohibition against ex post
      facto laws contained in the United States and Pennsylvania
      Constitutions. Commonwealth v. Muniz, 163 A.3d 1189, 1204
      (Pa. 2017).

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            Finally, [had Appellant] … been prosecuted in a timely
      manner an[d] adjudicated delinquent, he would not have been
      subject to the registration provisions of SORNA. To require
      [Appellant,] who committed acts as a juvenile[,] to comply with
      the registration provisions[,] which would not have been
      applicable to him if [he] [w]as adjudicated delinquent[,]
      establishes a classification of offenders which lacks a rational
      basis. For this reason, [Appellant] is denied the equal protection
      of the laws under the Pennsylvania and United States
      Constitution[s.]

Appellant’s Brief at 10.

      We need not address Appellant’s arguments, as we conclude, on a

different basis, that the court’s imposition of a 10-year reporting requirement

under Megan’s Law III cannot stand. Specifically, the Pennsylvania General

Assembly passed SORNA, which “provided for the expiration of prior

registration requirements commonly referred to as Megan’s Law, 42 Pa.C.S.

§§ 9791-9799.9, as of December 20, 2012, and for the effectiveness of

SORNA on the same date.” In the Interest of J.B., 107 A.3d 1, 3 (Pa. 2017).

Additionally, Megan’s Law III was also deemed unconstitutional by our

Supreme Court in Commonwealth v. Neiman, 84 A.3d 603, 607 (Pa. 2013),

for violating the single-subject rule of Article III, Section 3 of the Pennsylvania

Constitution.   Consequently, Megan’s Law III is no longer a statute under

which registration requirements can be imposed.

      Therefore, we vacate the court’s November 30, 2017 judgment of

sentence to the extent that it imposes a Megan’s Law III registration

requirement upon Appellant. We remand for the trial court to determine what,




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if any, registration requirements apply to Appellant under the current law.1 In

all other respects, we affirm Appellant’s judgment of sentence.

       Judgment of sentence vacated in part and affirmed in part.            Case

remanded for further proceedings. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2018




____________________________________________


1 See Act of February 21, 2018, P.L. 27, No. 10 (“commonly referred to as Act
10”). Act 10 amended several existing provisions of SORNA and also added
several new sections found at 42 Pa.C.S. §§ 9799.42, 9799.51-9799.75.
While Appellant challenges the constitutionality of Act 10, we need not address
those arguments because Act 10 was not applied in his case and, in any event,
the Governor recently signed new legislation striking the Act 10 amendments
and reenacting new SORNA provisions, effective June 12, 2018. See Act of
June 12, 2018, P.L. 1952, No. 29. Accordingly, it is appropriate for the trial
court to discern, in the first instance, what registration provisions apply in this
case.


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