J-A02042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW DAVID NEIL                         :
                                               :
                       Appellant               :   No. 1335 MDA 2017

              Appeal from the Judgment of Sentence July 24, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0005360-2011


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 17, 2019

        Appellant Matthew David Neil appeals from the judgment of sentence

imposed following violation of probation (VOP) proceedings for sexual abuse

of children and criminal use of a communication facility.1      Appellant’s sole

claim is that the trial court erred by refusing to enter an order that he is not

subject to the sex offender registration requirements of either the Sex

Offender Registration and Notification Act (SORNA) or Megan’s Law III,2 which

was in effect at the time of his conviction and sentencing. We affirm.

        The trial court summarized the relevant background of this matter as

follows:

____________________________________________


1   18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.

242 Pa.C.S. §§ 9799.10-9799.41 and 42 Pa.C.S. §§ 9791-9799.9 (expired
December 20, 2012), respectively.
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       On September 7, 2012, [Appellant] entered open nolo contendere
       pleas to one (1) count each of sexual abuse of children and
       criminal use of a communication facility[, for offenses committed
       in December 2010]. Following the preparation of a presentence
       investigation report, [Appellant] was sentenced on November 1,
       2012 to an aggregate term of seven (7) years of probation. At the
       time of his original sentencing, [Appellant] was notified that,
       because of his conviction, he would be required to comply with
       sex offender registration requirements for ten (10) years [under
       Megan’s Law III].

       Subsequently, [Appellant] was twice found to be in violation of his
       probation and was sentenced accordingly on May 2, 2013 and
       January 10, 2014 to new seven (7) year probation periods.
       [Appellant] was most recently found to be in violation of his
       probation on May 10, 2017 due to the filing of new charges for
       possession of child pornography. [Appellant was not ordered to
       register under SORNA during any of the VOP proceedings.]
       Following the completion of a pre-sentence investigation report,
       [Appellant] was sentenced on July 24, 2017 to a split sentence of
       one (1) to three (3) years of incarceration and four (4) years of
       probation. . . .

       At the time of his probation/parole violation sentencing, counsel
       for [Appellant (VOP counsel)] made a statement that he did not
       believe his client was subject to the requirements of [SORNA], but
       went on to state that he merely wanted to place that statement
       on the record and did[ not] know how the new, probation violation
       sentence, would be affected.[3] [Appellant] did not request any
____________________________________________


3 We note that in 2014, this Court decided Commonwealth v. Partee, 86
A.3d 245 (Pa. Super. 2014), which held that a violation of probation
constituted a breach of plea agreement that would otherwise entitle a
defendant to avoid SORNA’s increased registration period. Partee, 86 A.3d
at 250. On July 19, 2017, five days before the VOP sentencing hearing in the
present matter, the Pennsylvania Supreme Court decided Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017). The Muniz Court held that the enhanced
registration provisions of the former version of SORNA were punitive and the
retroactive application of those provisions violated the ex post facto clauses
of the Pennsylvania and federal constitutions. See Muniz, 164 A.3d at 1223.
This Court subsequently decided Commonwealth v. Fernandez, 195 A.3d
299 (Pa. Super. 2018) (en banc), on September 8, 2018, during the pendency



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       relief or order at that time and his judgment of sentence contained
       no order to comply with any sex offender registration
       requirements. Furthermore, [Appellant] did not file any post-
       sentence motions.         [Appellant] first sought relief from his
       judgment of sentence with the filing of his August 23, 2017 notice
       of appeal[.]

Trial Ct. Op., 10/27/17, at 1-3.

       After Appellant filed his notice of appeal, the trial court ordered him to

file a Pa.R.A.P. 1925(b) statement.            Appellant timely filed a Rule 1925(b)

statement in which he asserted that the trial court erred in refusing to order

that Appellant is no longer required to register as a sex offender. The trial

court complied with Rule 1925(a), and noted:

       [Appellant] seeks an order declaring that he is no longer required
       to register as a sex offender because of the decision in
       Com[monwealth] v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017).
       Regardless of whether [Appellant’s] claim has any merit, the
       Courts of Common Pleas simply do not have jurisdiction to grant
       relief to persons in [Appellant’s] circumstances. Unlike the
       defendants in Muniz and [Commonwealth v. Leonard, 172
       A.3d 628 (Pa. Super. 2017)], there is no order by any court of this
       Commonwealth stating that [Appellant] is subject to the
       requirements of SORNA. Furthermore, no court of this
       Commonwealth has ordered that [Appellant] continue to register
       as a sex offender. [Appellant’s] sentence for his recent
       parole/probation violation contained no provision concerning sex
       offender registration and there was no reason for it to contain any
       such provision. If [Appellant] continues to be subject to any
       registration requirements, it is as a result of his original conviction
       and sentencing and not a result of his having been found in
       violation of his parole/probation.

                                       *       *   *
____________________________________________


of this appeal, and after the trial court authored its Pa.R.A.P. 1925(a) opinion.
The Fernandez Court expressly found that Muniz abrogated Partee.
Fernandez, 195 A.3d at 311.


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      [Appellant’s] claim raises no challenge to the July 24, 2017
      judgment of sentence and clearly seeks only declaratory and
      injunctive relief against [the Pennsylvania State Police, and the
      court does] not have jurisdiction to grant such relief.

Id. at 7-8

      On appeal, Appellant raises one question for our review: “Did the trial

court err in refusing to issue an [o]rder that [Appellant] is no longer required

to register as a sex offender, pursuant to Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017)?” Appellant’s Brief at 4. Appellant argues that he

      committed the offense for which he was subjected to sex offender
      registration prior to SORNA’s effective date. Therefore, pursuant
      to Muniz, he cannot constitutionally be subject to registration
      under SORNA. Nor can any other prior version of Megan’s Law
      apply to [Appellant] because since December 20, 2012, there is
      no applicable statutory mechanism which can impose registration
      obligations upon a person whose underlying sexual offense
      occurred prior to December 20, 2012.

Id. at 9.

      Initially, we note that Appellant failed to raise a challenge to the

applicability of Megan’s Law in the trial court. Appellant’s VOP counsel merely

stated for the record that he believed that SORNA was not applicable to

Appellant’s case. However, VOP counsel did not object to the application of

Megan’s Law. Accordingly, any argument regarding Megan’s Law has been

waived.     See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).

      Regarding Appellant’s challenge to the applicability of SORNA, we note

that “application of a statute is a question of law, . . . our standard of review

is plenary, [and] our standard of review is limited to a determination of

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whether the trial court committed an error of law.”       Commonwealth v.

Baird, 856 A.2d 114, 115 (Pa. Super. 2004) (citation omitted). Under Muniz,

the retroactive application of SORNA’s provisions violated the ex post facto

clauses of the Pennsylvania and federal constitutions. Muniz, 164 A.3d at

1223.

        Here, no order has been entered during any of Appellant’s VOP

proceedings requiring Appellant to comply with SORNA. Accordingly, we agree

with Appellant that the pre-Muniz version of SORNA cannot apply

retroactively to Appellant. See Baird, 856 A.2d at 115.

        However, contrary to Appellant’s arguments, Muniz does not hold that

a defendant may avoid a registration requirement under the law.             Cf.

Commonwealth v. Horning, 193 A.3d 411, 417 n.3 (Pa. Super. 2018).

Appellant, furthermore, fails to cite any authority that the trial court was

required to determine Appellant’s registration requirement, or reclassify

Appellant, at the time of his VOP sentencing hearing. Cf. Fernandez, 195

A.3d at 310. Lastly, Appellant has not acknowledged the developments in the

relevant statutes and case law regarding the registration of sexual offenders

while this appeal has been pending. See id.; see also 2018, June 12, P.L.

140, No. 29 (“Act 29”); 2018, Feb. 21, P.L. 27, No. 10 (“Act 10”).

        Under the unique circumstances of this case, and because Appellant will

not be precluded from raising the issue of the applicable registration

requirements in the future, see Fernandez, 195 A.3d at 310, we conclude

that Appellant has not established reversible error.

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J-A02042-19



     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/17/2019




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