J-A12029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JUSTIN LEE GREENE

                            Appellant                      No. 1353 EDA 2013


                  Appeal from the Order entered April 19, 2013
                In the Court of Common Pleas of Carbon County
                Criminal Division at No: CP-13-CR-0000286-2011


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                FILED AUGUST 20, 2014

        Justin Lee Greene, who pleaded guilty to indecent assault in 2011, was

required to register as a sex offender under the Pennsylvania Sexual

Offender     Registration     and    Notification   Act   (SORNA),   42   Pa.C.S.A.

§§ 9799.10-.41, which became effective in 2012.             He argues that SORNA

cannot be applied to him retroactively. A recent amendment to SORNA, as



requirements to Greene. Accordingly, we vacate the trial c

        The Commonwealth charged Greene with, among other crimes, the

forcible rape of an adult female. On August 3, 2011, after a jury had been

empaneled and immediately prior to the beginning of trial, Greene entered a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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guilty plea to indecent assa                                              -

degree misdemeanor. 18 Pa.C.S.A. § 3126(a)(1) and (b)(1). In exchange

for Greene pleading guilty, the Commonwealth dismissed the remaining

charges.

       The sex-                                             s Law,1 did not



Law required registration for persons convicted of indecent assault only if

the offense was a first-degree misdemeanor or felony.         42 Pa.C.S.A.

§ 9795.1(a)(1) (expired Dec. 20, 2012).

       On October 17, 2011, the trial court sentenced Greene to seven to

twenty-four months less one day in jail, with the maximum set to expire on

March 27, 2013.          Because Greene had already served the minimum

sentence, he was paroled shortly thereafter. On August 14, 2012, Greene

was recommitted to jail for violating his parole.   The revocation petition

alleged that Greene committed a new criminal offense in Lehigh County and

violated the terms of his parole.

       While in jail, Greene received a letter from the Lehigh County

Department of Adult Probation and Parole dated December 28, 2012. The

                                                                  -offender

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1
  Act of May 10, 2000, P.L. 74, No. 18 (formerly codified at 42 Pa.C.S.A.
§§ 9791-
replaced by SORNA. See 42 Pa.C.S.A. § 9799.41.



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registration law, i.e., the passage of SORNA, and that he was required to

register as a sex offender under SORNA. On January 11, 2013, Greene filed

a petition with the trial court to preclude registration under SORNA.        He

alleged that SORNA did not apply to him, or that applying it to him would

violate his plea agreement and the federal and state constitutions.

      On February 22, 2013, the trial court held a hearing to address



found Greene in violation of his parole, and sentenced him to 90 days in jail.

On April 1

SORNA registration. Greene timely appealed to this Court.

      On appeal, Greene raises eleven sub-issues, which we have grouped

into three categories: (1) statutory language precludes application of SORNA

to him; (2) applying SORNA to Greene would violate his guilty plea

agreement; and (3) applying SORNA to Greene would violate the contracts

clauses and ex post facto clauses of the federal and state constitutions. See

                    -iii.

      G                                                               a question

of law.   Therefore, our scope of review is plenary, and our standard of

review is de novo. Commonwealth v. Warren, 84 A.3d 1092, 1095 (Pa.

Super. 2014). In construing a statute, we apply the Statutory Construction

Act of 1972, 1 Pa.C.S.A. §§ 1501-

construction of statutes is to ascertain and effectuate the intention of the

                     Id. § 1921(a). The plain language of a statute is the

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                                                          Ario v. Ingram Micro,

Inc., 965 A.2d 1194, 1201 (Pa. 2009).             For that reason, we may not

disregard the plain meaning of a statute under the pretext of divining the

                                § 1921(b).

      In interpreting the meaning of the words of a statute,

      [w]ords and phrases shall be construed according to rules of
      grammar and according to their common and approved usage;
      but technical words and phrases and such others as have
      acquired a peculiar and appropriate meaning or are defined in
      [the Statutory Construction Act], shall be construed according to
      such peculiar and appropriate meaning or definition.

1 Pa.C.S.A. § 1903(a).        If a statute is ambiguous, we may interpret the

statute using other factors.       See id. § 1921(c); Ario, 965 A.2d at 1201.

Finally,

      [w]henever a general provision in a statute shall be in conflict
      with a special provision in the same or another statute, the two
      shall be construed, if possible, so that effect may be given to
      both. If the conflict between the two provisions is irreconcilable,
      the special provisions shall prevail and shall be construed as an
      exception to the general provision, unless the general provision
      shall be enacted later and it shall be the manifest intention of
      the General Assembly that such general provision shall prevail.

1 Pa.C.S.A. § 1933.

           The relevant section of SORNA provides:

      The following individuals shall register with the Pennsylvania
      State Police as provided in [42 Pa.C.S.A. §§] 9799.15 (relating
      to period of registration), 9799.19 (relating to initial registration)
      and 9799.25 (relating to verification by sexual offenders and
      Pennsylvania State Police) and otherwise comply with the
      provisions of this subchapter:

            (2) An individual who, on or after the effective date of this
            section, is, as a result of a conviction for a sexually violent

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        offense, an inmate in a State or county correctional
        institution of this Commonwealth, including a community
        corrections center or a community contract facility, is
        being supervised by the Pennsylvania Board of Probation
        and Parole or county probation or parole, is subject to a
        sentence of intermediate punishment or has supervision
        transferred pursuant to the Interstate Compact for Adult
        Supervision     in   accordance   with    [42   Pa.C.S.A.
        §] 9799.19(g).

        (3.1) The following:

           (i) An individual who between January 23, 2005, and
           December 19, 2012, was:

              (A) convicted of a sexually violent offense;

              (B) released from a period of incarceration resulting
              from a conviction for a sexually violent offense; or

              (C) under the supervision of the Pennsylvania Board
              of Probation and Parole or county probation or parole
              as a result of a conviction for a sexually violent
              offense.

           (ii) For purposes of this paragraph, the ter

           Pa.C.S.A. §] 9799.12 (relating to definitions), except
           that it shall not include:

                                      ***

              (B) A conviction under 18 Pa.C.S. § 3126 (relating to
              indecent assault) where the crime is graded as a
              misdemeanor of the second degree or where the
              conviction occurred between January 22, 2006, and
              January 1, 2007, when the crime is graded as a
              felony of the third degree.

42 Pa.C.S.A. § 9799.13(2) and (3.1) (other paragraphs omitted).

     Paragraph (3.1) was added to SORNA by the Act of March 14, 2014,

P.L. 41, No. 19 (Act 19), effective retroactively to December 20, 2012. The

General Assembly explicitly intended Act 19 to respond to our Supreme


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                          Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).

42 Pa.C.S.A. § 9799.11(b)(3). In Neiman, the court held unconstitutional



legislation violated the Single Subject Rule.2 Neiman, 84 A.3d at 605, 616.

Neiman was decided on December 16, 2013, but because of its significant

impact, the Supreme Court stayed effect of its decision for 90 days              or

March 17, 2014. Id. The Governor approved Act 19 on March 14, 2014, the

business day before Neiman

                                  t is further manifested by the time period to

which ¶ (3.1) applies. The time-period begins on January 23, 2005           the day

                                                                         see Act of

Nov. 24, 2004, P.L. 1243, No. 152 § 19(5) and ends on December 19,

2012, the day before SORNA took effect.

       Turning to this case, we note that both ¶¶ (2) and (3.1) could apply to

Greene. Paragraph (2) could apply, because on December 20, 2012, Greene



for a parole violation.3      Paragraph (3.1) also could apply, because Greene
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2
                                    g more than one subject, which shall be
clearly expressed in its title, except a general appropriation bill or a bill
                                                                      3.
3
                                                                        ond-degree

registration as       a    sex   offender.       See   42   Pa.C.S.A.   §§ 9799.12,
9799.14(b)(6).



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was convicted of indecent assault graded as a second-degree misdemeanor

between January 23, 2005 and December 19, 2012.                      The two provisions

conflict, because ¶ (2) requires Greene to register under SORNA, while

¶ (3.1) does not.

        This     Court     recently       addressed        an   identical    situation   in

Commonwealth v. Bundy, --- A.3d ---, 2014 WL 3367069, 2014 PA Super

144, 2014 Pa. Super. LEXIS 1780 (filed July 10, 2014).                      Bundy pleaded

guilty to, inter alia, indecent assault in which the complainant was than 16

years old and the offender was four or more years older than the

complainant and the complainant and offender were not married to each

other, 18 Pa.C.S.A. § 3126(a)(8). Bundy, 2014 WL 3367069, at *1, 2014

Pa. Super. LEXIS 1780, at *2.             That version of indecent assault is also a

second-degree misdemeanor, see 18 Pa.C.S.A. § 3126(b)(1), and therefore

did   not      require    registration    under     the    now-

Additionally, Bundy was subject to probation for his conviction on December

20, 2012. Bundy, 2014 WL 3367069, at *1, 2014 Pa. Super. LEXIS 1780,

at *2-3.       Thus, like Greene, Bundy was potentially subject to both ¶ (2),

which would have required SORNA registration, and ¶ (3.1), which would not

have.

        Addressing       the   conflict   between     ¶¶

applicability provision, the Bundy court held:

        We are mindful that there is possible tension between Paragraph
        (3.1)(ii) and Paragraph (2) of Section 9799.13, with the latter
        stating, in relevant part, that the registration requirements apply

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       section [December 20, 2012], is, as a result of a conviction for a
       sexually violent offense, . . . being supervised by the
       Pennsylvania Board of Probation and Parole or county probation

       extent there may be a conflict in the statute, the general
       provision in Paragraph (2) yields to the specific provision set
       forth in Paragraph (3.1) and Paragraph (3.1) controls. See 1
       Pa.C.S. § 1933.

Id. at *5 n.4; 2014 Pa. Super. LEXIS 1780, at *12-13 n.4.

       This case is indistinguishable from Bundy.         Like Bundy, Greene was

convicted of indecent assault graded as a second-degree misdemeanor

between January 23, 2005 and December 19, 2012.                       42 Pa.C.S.A.

§ 9799.13(3.1)(ii)(B) excludes second-degree misdemeanor indecent assault

convictions obtained between January 23, 2005 and December 19, 2012

                                       of sexually violent offenses. Therefore, like

Bundy, Greene does not need to register under SORNA per 42 Pa.C.S.A.

§ 9799.13(3.1).       Finally, the preclusion from SORNA registration applies

even though Greene        like Bundy could be covered under ¶ 2 of § 9799.13,

because Greene was in prison and Bundy was on probation on December 20,

2012 as a result of their convictions of sexually violent offenses. Paragraph

(3.1), as a specific provision of SORNA trumps the more general provision of

¶ (2).4 Bundy, 2014 WL 3367069, at *5 n.4; 2014 Pa. Super. LEXIS 1780,

at *12-13 n.4.
____________________________________________


4
  We recognize a potential counterargument that would compel a different
result. When the general provision of a statute conflicts with a specific
provision, the Statutory Construction Act directs us to construe the two
(Footnote Continued Next Page)


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provision. He does not have to register as a sex offender.5 Accordingly, we



      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014

                       _______________________
(Footnote Continued)

provisions, if possible to give effect to both. 1 Pa.C.S.A. § 1933. In that
regard, it is possible to construe the language in 42 Pa.C.S.A.
§
apply to only those offenders (1) whose convictions occurred during the
enumerated time period and (2) who are not also still subject to
imprisonment or supervision as a result of their convictions.          This
interpretation is in accord with the express intent of Act 19, which was to
respond to the Neiman decision
retroactive application. See 42 Pa.C.S.A. § 9799.11(b)(3). However, we
must reject this counterargument and apply Bundy, which is controlling
here.
5
  Because we conclude that SORNA does not apply to Greene, we need not
consider his arguments that application of SORNA would violate his plea
agreement or the Ex Post Facto Clause of the United States Constitution.
But cf. Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014) (holding
that defendants who violate probation or parole cannot seek specific
performance of their plea agreements); Commonwealth v. Perez, 2014 PA
Super 142, 2014 WL 3339161, 2014 Pa. Super. LEXIS 1777 (filed July 9,
2014) (holding that retroactive application of SORNA registration
requirements is not an ex post facto violation).



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