J-S56013-17



                              2018 PA Super 336

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                    v.

JAMES JOHNSON

                         Appellant                         No. 346 EDA 2017


            Appeal from the Order Entered December 19, 2016
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001899-1992


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

OPINION BY BOWES, J.:                              FILED DECEMBER 10, 2018

     James Johnson appeals from the denial of his petition seeking an order

declaring   him   exempt   from      obligations   under    the   Sexual   Offender

Registration and Notification Act (“SORNA”). We affirm.

     On November 4, 1992, Appellant pleaded guilty to one count of

robbery, and entered a nolo contendere plea to one count of involuntary

deviate sexual intercourse – forcible compulsion, 18 Pa.C.S. § 3123(a)(1),

graded as a felony of the first degree.      On December 19, 1992, Appellant

received an aggregate sentence of thirteen to twenty-six years incarceration.

At the time of his plea, the law did not impose registration obligations upon

sexual offenders, as the first version of such laws (hereinafter generally

referred to as “Megan’s Law”) was not enacted until 1995.


* Retired Senior Judge specially assigned to the Superior Court.
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       While Appellant served his sentence, four different versions of Megan’s

Law were enacted. In brief, our Supreme Court declared portions of the first

Megan’s Law unconstitutional in Commonwealth v. (Donald) Williams,

733 A.2d 593 (Pa. 1999).          In response, the General Assembly passed the

second iteration of these laws, Megan’s Law II, effective July 10, 2000.

Subsequently, in Commonwealth v. (Gomer) Williams, 832 A.2d 962

(Pa. 2003), our Supreme Court reviewed that statutory scheme and deemed

some     provisions    unconstitutionally      punitive.   The   Legislature   again

responded, by enacting Megan’s Law III, which amended Megan’s Law II and

went into effect on January 24, 2005. Megan’s Law III remained in effect

until December 20, 2012, when SORNA became effective.1

       In June of 2009, Appellant was granted parole, but was not released

from confinement until March 8, 2012, due to the unavailability of placement

in a specialized Community Corrections Center.             As a condition of his

release, Appellant was required to register with the Pennsylvania State

____________________________________________


1 On December 16, 2013, Megan’s Law III was struck down in its entirety for
violating the single subject rule of Article III, Section 3 of the Pennsylvania
Constitution. See Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).
The decision was stayed ninety days to give the General Assembly an
opportunity to amend.       However, since SORNA went into effect as of
December 20, 2012, the Legislature thereafter amended SORNA. See 42
Pa.C.S. § 9799.11(b)(3) (“It is the intention of the General Assembly to
address the Pennsylvania Supreme Court’s decision in [Neiman] . . . by
amending this subchapter in the act of March 14, 2014 (P.L. 41, No. 19).”).



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Police as a sexual offender.2          Appellant was required to register “upon

release from incarceration, [or] upon parole[.]” See (former) 42 Pa.C.S. §

9795.2(a)(1) (effective February 21, 2012 to December 19, 2012).           As of

March of 2012, Megan’s Law III required a lifetime registration for persons

convicted of involuntary deviate sexual intercourse.           See (former) 42

Pa.C.S. § 9795.1(b)(2)(i) (lifetime registration for individuals convicted of,

inter alia, involuntary deviate sexual intercourse) (effective December 20,

2011 to December 19, 2012).              Following his release to Communications

Corrections Center, Appellant violated his parole conditions by possessing a

cell phone, and was reincarcerated as a result.

       SORNA incorporates by reference those persons who were required to

register under former versions of the law, in addition to persons currently

serving a sentence.       See 42 Pa.C.S. § 9799.12 (defining “sexually violent

offense” as an offense specified in § 9799.14 as a Tier I, Tier II, or Tier III

offense); 42 Pa.C.S. § 9799.1411(d) (classifying involuntary deviate sexual

intercourse as a Tier III offense). Therefore, at the time Appellant filed this

petition, he was required to register under SORNA for life, due either to his



____________________________________________


2  The Megan’s Law registry lists a James Johnson, who is currently
incarcerated for a violation of 18 Pa.C.S. § 3123, with a conviction date of
December 4, 1992. The registry states that Appellant’s registration began
on March 13, 2012.



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obligations under Megan’s Law III as carried forward under SORNA, and/or

upon his release from incarceration pursuant to SORNA itself.3

       Having set forth the statutory background, we now address the issues

on appeal.     On November 28, 2016, Appellant filed a Petition for Writ of

Habeas Corpus and Declaratory Relief, seeking an order declaring him

exempt from SORNA’s provisions. The trial court denied the motion, relying

on case law holding that the retroactive application of SORNA was

permissible,    since    the   consequences      were    not   punitive.   See   e.g.

Commonwealth v. Perez, 97 A.3d 747 (Pa.Super. 2014).

       Following the trial court’s denial of the motion, our Supreme Court

issued Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (OAJC), which

held that SORNA constituted criminal punishment and therefore could not be

retroactively applied.4        We have held that Muniz announced a new

substantive rule of law that applies retroactively in a timely Post Conviction

Relief Act (“PCRA”) petition.        See Commonwealth v. Rivera-Figueroa,

174    A.3d     674,     678     (Pa.Super.      2017)    (“[T]he    recent   holding
____________________________________________


3 Effective February 21, 2018, the Legislature enacted Act 10, which added a
new subchapter to SORNA, “Continued Registration of Sexual Offenders.”
42 Pa.C.S. §§ 9799.51-9799.75. The stated purpose of Act 10 was, inter
alia, to address Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). Act
29 of 2018 reenacted Act 10, effective June 12, 2018.

4 Appellant filed an application for leave to file a post-case submission,
drawing our attention to Muniz. See Pa.R.A.P. 2501(b) (duty to alert court
of change in status of authorities). We grant the application.



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in Muniz created a substantive rule that retroactively applies in the

collateral context, because SORNA punishes a class of defendants due to

their status as sex offenders and creates a significant risk of punishment

that the law cannot impose.”). However, we have also held that Muniz does

not   qualify   as   an   exception   to   the   PCRA’s   one-year   time   bar.

Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018).               Therefore,

Muniz applies retroactively on collateral review only to those persons who

could raise the issue in a timely PCRA petition.

      This distinction is outcome determinative.      Procedurally, the instant

case comes to this Court as a filing outside of the PCRA.             However,

Appellant’s selected designation does not control. See Commonwealth v.

Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (“We agree that Appellant’s writ

of habeas corpus should be treated as a PCRA petition.”). Hence, we must

examine whether Appellant’s request for relief must be treated as a PCRA

petition.   The PCRA time limits are jurisdictional, and we therefore cannot

address the merits of an untimely petition.          See Commonwealth v.

Montgomery, 181 A.3d 359, 365 (Pa.Super. 2018).

      Our Supreme Court has stated that “claims that could be brought

under the PCRA must be brought under that Act.            No other statutory or

common law remedy ‘for the same purpose’ is intended to be available;

instead, such remedies are explicitly ‘encompassed’ within the PCRA.”

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis in

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original).   The instant claim, that   Muniz applies retroactively, is clearly

cognizable under the PCRA. Rivera-Figueroa; Murphy.

      In an attempt to evade the timeliness requirements of the PCRA,

Appellant specifically cited the line of cases seeking relief under a contractual

theory, such as Commonwealth v. Partee, 86 A.3d 245 (Pa.Super. 2014).

Partee held that such claims fall outside the PCRA as their theory of relief is

predicated upon an attack that does not pertain to the criminal sentence

itself. We explained that a motion seeking enforcement of a plea bargain is

not within the scope of the PCRA:

      We note that the within petition is not an attack on Appellant’s
      sentence, nor is he alleging that he is innocent of the offenses of
      which he was convicted. Appellant is not asserting that his
      conviction or sentence resulted from a violation of the
      Constitution, ineffective assistance of counsel, an unlawfully-
      induced plea, obstruction by government officials of his right to
      appeal, newly-discovered evidence, an illegal sentence, or a lack
      of jurisdiction. 42 Pa.C.S. § 9543(a)(2). In short, we agree with
      Appellant that his claim does not fall within the scope of the
      PCRA and should not be reviewed under the standard applicable
      to the dismissal of PCRA petitions.

Id. at 247. Thus, Partee concluded that such petitions were not subject to

the PCRA time bar.     The claim nonetheless failed on the merits, as Partee

had violated the terms of his probation and was therefore not entitled to the

benefit of his bargain.

      Recently, this Court held in Commonwealth v. Fernandez, 2018 WL

4237535 (Pa.Super. September 5, 2018) (en banc), that Partee has been

abrogated by Muniz, and therefore offenders may seek restoration of the

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sexual offender obligations that existed at the time of their plea even if the

offender breached their bargain by violating the terms of probation. Here,

however, the plea enforcement theory does not apply, as Appellant has no

plea bargain to enforce: he entered a nolo contendere plea prior to the

enactment of any sexual offender laws. By definition, the parties could not

have contemplated non-registration as a term of the plea. We explained the

applicable principles as follows:

         To summarize: (a) where a plea bargain is structured so the
         defendant will not have to register or report as a sex offender or
         he will have to register and report for a specific time; and (b)
         the defendant is not seeking to withdraw his plea but to enforce
         it, then the “collateral consequence” concept attributed generally
         to sex offender registration requirements does not trump
         enforcement of the plea bargain.

Commonwealth v. Farabaugh, 136 A.3d 995, 1002 (Pa.Super. 2016).

         Thus, we cannot apply Muniz via a plea enforcement theory, as the

parties clearly could not structure the plea to accommodate law that did not

exist.

         We acknowledge that the “collateral consequences” referred to by

Farabaugh are in fact punitive post-Muniz and hence not collateral.

Nevertheless, the PCRA clearly offers a remedy for the requested relief, i.e.

the retroactive application of Muniz.          Rivera-Figueroa.       Appellant’s

judgment of sentence became final more than twenty-five years ago.

Therefore, Murphy controls and the instant petition does not qualify as an




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exception to the PCRA’s time-bar. Accordingly, Appellant is not entitled to

relief.5

____________________________________________


5 Speaking for myself only, I dissented in Commonwealth v. Fernandez,
2018 WL 4237535 (Pa.Super. September 5, 2018) (en banc), expressing the
belief that subsequent legislation has addressed the retroactivity of Muniz.
My dissent further noted that the holding in Fernandez lent itself to unequal
application:

       To the extent that the Majority disagrees with my position that
       the Legislature has retroactively applied Muniz, I would note
       that the Majority has crafted a retroactivity scheme in which only
       some offenders receive the benefit of Muniz. Offenders who
       have no plea bargain to enforce or elected to go to trial cannot
       take advantage of the Majority’s theory, yet they too are serving
       unconstitutional sentences that the Majority posits “cannot
       stand.”

Id. at *11 n.4 (Bowes, J., dissenting) (internal citation omitted).

This case demonstrates that point. If any set of persons is unfairly saddled
with SORNA requirements, surely it is someone like Appellant who pleaded
guilty prior to the existence of any sexual offender law. Additionally, Muniz
is a new substantive rule, and the refusal to judicially apply the case
retroactively poses its own set of problems. See id. at *11 n.3.

Finally, I note my belief that retroactive application of Muniz may be
permissible outside of the PCRA. Muniz effectively imposes a brand new
criminal sentence as a substantive, not procedural, matter. In the ordinary
ex post facto case, there is a clearly-defined date from which punishment is
imposed: the date the trial judge announces the sentence. Herein, Appellant
was not serving any sentence with respect to his sexual offender obligations
until our Supreme Court declared that to be so. That fact presents an
unusual issue with respect to ex post facto issues, and Muniz is largely
academic if its holding does not apply retroactively to all.

Since this Court disagrees with my position that Muniz has been applied
retroactively through legislation, I would not foreclose reaching Muniz via
an alternative theory. See e.g. Commonwealth v. West, 938 A.2d 1034,
(Footnote Continued Next Page)


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      Application for leave to file post-submission communication granted.

Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/18




(Footnote Continued) _______________________

1036 (Pa. 2007) (holding substantive due process claim to nine-year delay
in committing defendant and requiring him to start serving sentence was not
subject to PCRA and its time limits). Cf. Commonwealth v. Descardes,
136 A.3d 493, 503 (Pa. 2016) (Saylor, C.J., concurring) (agreeing that writ
of coram nobis was not available even though litigant was unable to seek
timely relief under the PCRA under then-prevailing case law; litigant’s claim
was “in substance . . . an entreaty for [a United States Supreme Court
case] to be applied retroactively.” The substantive nature of Muniz, in my
view, necessitates retroactive application. However, this view has not been
presented nor briefed in the present case.



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