J-S10003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELISEO ORTIZ                               :
                                               :
                       Appellant               :   No. 327 EDA 2018

           Appeal from the Judgment of Sentence December 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006597-2015


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

MEMORANDUM BY COLINS, J.:                           FILED NOVEMBER 19, 2019

        Appellant, Eliseo Ortiz, appeals from the aggregate judgment of

sentence of two to four years of confinement followed by ten years of

probation, which was imposed after he pleaded nolo contendere to involuntary

deviate sexual intercourse (IDSI) with a person less than 16 years of age and

unlawful contact with a minor.1 For the reasons set forth below, we conclude

that the retrospective application of sex offender registration under the Sex

Offender Registration and Notification Act (SORNA)2 violates our Supreme

Court’s ruling in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

Accordingly, we vacate in part the judgment of sentence and remand for

resentencing.

____________________________________________


1   18 Pa.C.S. §§ 3123(a)(7) and 6318(a)(1), respectively.
2   42 Pa.C.S. §§ 9799.10-9799.42.


*    Retired Senior Judge assigned to the Superior Court.
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      We previously summarized the factual and procedural history of this

case as follows:

      On May 14, 2015, Appellant was charged with rape, IDSI, unlawful
      contact with a minor and various other charges related to
      allegations concerning the sexual abuse of a minor female. On
      September 22, 2017, Appellant entered into a negotiated plea
      agreement and pleaded nolo contendere with respect to the IDSI
      and unlawful contact with a minor charges. Plea Agreement,
      9/22/17. Pursuant to the agreement, the Commonwealth agreed
      to nolle pros the remaining charges and to recommend a sentence
      of two to four years of confinement followed by ten years of state-
      supervised sex offender probation. Id.
      At the September 22, 2017 hearing, Appellant stipulated to “the
      affidavit of probable cause, investigation paperwork and any other
      police paperwork along with any other records in the discovery
      packet as the basis for the plea….” N.T., 9/22/17, at 12.
      According to the affidavit of probable cause accompanying
      Appellant’s arrest warrant, the complaining witness, a fourteen-
      year-old girl, stated that
         when she was in second grade (approx. 2005) she was
         sleeping with her sister and woke to [Appellant] touching
         her vagina. The [complaining witness] further stated that
         [Appellant] carried [the complaining witness] to his room
         and while there put his mouth on and in the [complaining
         witness’s] vagina. The [complaining witness] stated that
         during another incident… [she] again awoke to [Appellant]
         sticking his finger in the [complaining witness’s] vagina,
         moving [his] finger in and out of her vagina.          The
         [complaining witness] stated that [Appellant] exposed his
         penis to [her] and that [the] incidents stopped when the
         [complaining witness] was in the second grade (approx.
         2007).
      Affidavit of Probable Cause, 5/14/15.
      On December 22, 2017, the trial court sentenced Appellant to the
      terms of confinement and probation as set forth in the plea
      agreement. Sentencing Order, 12/22/17. At the sentencing
      hearing, Appellant was advised that he would be permitted to file
      a post-sentence motion to withdraw his guilty plea within ten days
      of the sentence. N.T., 12/22/17, at 9. Appellant did not file a
      post-sentence motion within ten days of the date of sentencing.

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        On January 18, 2018, Appellant filed this timely direct appeal from
        the judgment of sentence.

Commonwealth v. Ortiz, No. 327 EDA 2018, unpublished memorandum at

2-3 (Pa. Super. filed April 23, 2019) (footnotes omitted). Subsequent to the

filing of the appeal, Appellant’s counsel filed a petition to withdraw and

Anders3 brief with this Court and contemporaneously sent a letter to

Appellant informing him that he may retain new counsel or proceed pro se in

this appeal.

        On April 23, 2019, this Court issued a memorandum decision denying

the petition to withdraw.        We first concluded that Appellant’s counsel had

complied with the procedural requirements for withdrawal and that the issue

raised by counsel in the Anders brief regarding whether Appellant’s waiver of

his right to trial was knowing, voluntary, and intelligent was wholly frivolous.

Id. at 6-10. However, as part of our independent review of the record, we

discovered an additional issue of arguable merit related to the application of

SORNA registration requirements to Appellant even though Appellant’s crimes

were committed prior to SORNA’s effective date. Id. at 10-13. In light of this

potentially meritorious issue, we directed Appellant’s counsel’s to file an

advocate’s brief or new Anders brief within thirty days. Id. at 13.

        Counsel subsequently filed an advocate’s brief on behalf of Appellant

raising the following issue:



____________________________________________


3   Anders v. California, 386 U.S. 738 (1967).


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        Is Appellant’s sentence in error, as it involves the retrospective
        application of the registration and reporting obligations of SORNA,
        42 Pa.C.S. [§]§ 9799.10-9799.42, which has been found
        unconstitutional by the Pennsylvania Supreme Court[?]

Appellant’s Brief at 2.      Appellant argues that, because his crimes occurred

prior to the effective date of SORNA on December 20, 2012, the trial court

was required to impose sex offender reporting requirements in accordance

with the prior statute, Megan’s Law III.4 While Appellant recognizes that he

would be subject to lifetime sex offender registration under either Megan’s

Law III or SORNA, he argues that the stricter reporting and registration

requirements under SORNA constitute a greater punishment than was

applicable under Megan’s Law III, violating the ex post facto clauses of the

United States and Pennsylvania Constitutions.       In its responsive brief, the

Commonwealth concurs that the trial court violated Muniz by applying the

lifetime registration requirements of SORNA to conduct occurring prior to the

statute’s effective date.

        We agree with Appellant that the imposition of sex offender registration

under SORNA for conduct that occurred prior to the date that law went into

effect violated the ex post facto clauses of the U.S. and Pennsylvania

Constitutions. SORNA went into effect on December 20, 2012, replacing the

existing sexual offender registration statute, Megan’s Law III. See 42 Pa.C.S.

§ 9799.41; Muniz, 164 A.3d at 1204 (discussing statutory history). Among

the changes of SORNA was that the statute classified offenders into three tiers
____________________________________________


4   42 Pa.C.S. §§ 9791-9799.9 (expired).


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based on the severity of the offense committed with different registration

periods and in-person reporting requirements for each tier. See 42 Pa.C.S. §

9799.15; Muniz, 164 A.3d at 1206-07. Under either SORNA or Megan’s Law

III, an offender convicted of IDSI, such as Appellant, would be subject to

lifetime registration. Compare 42 Pa.C.S. § 9795.1(b)(2) (expired) with 42

Pa.C.S. §§ 9799.14(d)(4), 9799.15(a)(3). However, lifetime registration as a

Tier III offender under SORNA includes stricter registration and reporting

requirements compared to lifetime registration under Megan’s Law III,

including the addition of quarterly in-person reporting regardless of whether

the offender changes his address or employment. Compare 42 Pa.C.S. §§

9799.15, 9799.16 with 42 Pa.C.S. § 9795.2 (expired); see also Muniz, 164

A.3d at 1207-08.

      In Muniz, the defendant was convicted in 2007 of indecent assault of a

person less than 13 years of age, but absconded and was not ultimately

apprehended and sentenced until 2014. 164 A.3d at 1193. The sentencing

court imposed Tier III lifetime registration under SORNA, whereas Megan’s

Law III, which was in effect at the time of conviction, only required registration

for a ten-year period.     Id.    The defendant appealed, arguing that the

application of SORNA to an individual who committed crimes prior to the

enactment of that statute was an unconstitutional ex post facto punishment.

After a thorough review of SORNA’s regulatory structure as compared to its

predecessor statute, our Supreme Court agreed that SORNA was punitive in

effect despite its expressed civil intent.    Id. at 1218.     In analyzing the

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registration requirements of SORNA as compared to its predecessor statute,

the Court held that the additional registration and reporting requirements of

SORNA, including the quarterly in-person reporting requirements for Tier III

offenders, constituted a greater punishment than would have been imposed

prior to the enactment of that statute. Id. at 1210-11. The Court therefore

determined that the retroactive application of SORNA to crimes committed

prior to the enactment of the statute violates the ex post facto clauses of both

the United States and Pennsylvania constitutions. Id. at 1218, 1223.5

       Subsequently, in Commonwealth v. Horning, 193 A.3d 411 (Pa.

Super. 2018), a defendant who pleaded guilty in 2017 to multiple counts of

IDSI and rape committed between 2002 and 2004, when Megan’s Law III was

in effect, appealed from the imposition of lifetime registration as a Tier III

offender under SORNA. Id. at 413-14. A panel of this Court concluded that,

even though the crimes the defendant committed required the imposition of

lifetime registration under both SORNA and Megan’s Law III, SORNA imposed

heightened reporting requirements, including quarterly in-person reporting,

that constituted greater punishment than the prior law and thus ran afoul of

Muniz. Id. at 416-17; see also Commonwealth v. Fernandez, 195 A.3d

299, 310 (Pa. Super. 2018) (en banc).            In addition, we rejected the
____________________________________________


5Though Justice Dougherty’s lead opinion in Muniz was only joined in full by
two other justices, Justice Wecht in his concurrence, joined by Justice Todd,
agreed with the holding of the lead opinion that retrospective application of
SORNA violates the ex post facto clauses. 164 A.3d at 1232-33 (Wecht, J.,
concurring).


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Commonwealth’s argument that Muniz was inapplicable because the guilty

plea and sentence occurred after SORNA became effective, holding that the

relevant date for determining whether the application of SORNA violates the

ex post facto clauses is the date of the commission of the offense, not the

date of conviction. Horning, 193 A.3d at 417; see also Commonwealth v.

Wood, 208 A.3d 131, 136 (Pa. Super. 2019) (en banc).

       According to the affidavit of probable cause accompanying Appellant’s

arrest warrant, Appellant committed his offenses between 2005 and 2007,6

prior to the effective date of SORNA. At the plea hearing, the assistant district

attorney recognized that SORNA was not applicable to Appellant based on the

recently decided Muniz decision. N.T., 9/22/17, at 12-13. However, at the

sentencing hearing, Appellant was notified orally and in writing that he was

required to register as a Tier III offender and would have to comply with the

SORNA reporting requirements applicable to Tier III offenders, including in-

person quarterly reporting to the Pennsylvania State Police.          Notice of

Registration Requirements Form, 12/22/17; N.T., 12/22/17, at 7-8.             In

addition, the sentencing order stated that Appellant would be required to



____________________________________________


6 We recognize that there appears to be a typographical error in the affidavit
of probable cause as it states that the abusive conduct began in approximately
2005 when the complaining witness “was in second grade” and ended in
approximately 2007 when the witness “was in second grade.” Affidavit of
Probable Cause, 5/14/15. This error does not affect our conclusion that
SORNA requirements were improperly imposed upon Appellant for conduct
occurring before its effective date in 2012.


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“register with the State Police [as a lifetime registrant] and comply with all

Tier III requirements.” Sentencing Order, 12/22/17.

        As explained in Muniz and Horning, though SORNA did not increase

the reporting period for Appellant’s IDSI conviction from Megan’s Law III, the

imposition of the heightened reporting requirements of SORNA on Appellant

constitute greater punishment than the prior law and thus violate the ex post

facto clauses of the United States and Pennsylvania constitutions. Muniz, 164

A.3d at 1210-11, 1218, 1223; Horning, 193 A.3d at 416-17. We accordingly

vacate the portion of Appellant’s judgment of sentence that required him to

register as a Tier III offender under SORNA and remand for resentencing.

        In its brief, the Commonwealth asserts that it does not oppose a limited

remand to allow the trial court to impose sex offender registration

requirements pursuant to Subchapter I of the Sentencing Code, known as

SORNA II.7 We agree with the Commonwealth that SORNA II is applicable to

Appellant upon resentencing. SORNA II was enacted by the General Assembly

in 2018 to address our Supreme Court’s decision in Muniz and applies to sex

offender reporting requirements applicable to offenders convicted of sex

offenses after Megan’s Law I went into effect on April 22, 1996 but prior to

the effective date of SORNA.8          42 Pa.C.S. §§ 9799.51(b)(4), 9799.52(1),

____________________________________________


7   42 Pa.C.S. §§ 9799.51-9799.75.
8In 2018, the General Assembly also addressed the Muniz decision by
amending SORNA to only make it applicable to offenses committed



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9799.55; see also Commonwealth v. Bricker, 198 A.3d 371, 375-76 (Pa.

Super. 2018). In Commonwealth v. Moore, ___ A.3d ___, 2019 PA Super

320 (filed Oct. 23, 2019), this Court ruled that the retrospective application

of Section 9799.63 of SORNA II, 42 Pa.C.S. § 9799.63, which requires the

dissemination of information regarding sexual offenders on a Pennsylvania

State Police website, violates the federal ex post facto clause in light of Muniz.

Moore, 2019 PA Super 320, *21.                 However, the Court held that Section

9799.63 was severable from SORNA II and that the remainder of the SORNA

II registration and reporting requirements for pre-SORNA offenders remained

in effect. Id. at *21-*22.

       SORNA requirements vacated.             Judgment of sentence affirmed in all

other respects. Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/19




____________________________________________


after SORNA’s effective date of December 20, 2012.               See 42 Pa.C.S. §
9799.11(c).


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