J-S20019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM RONALD BUTCHER                     :
                                               :
                       Appellant               :   No. 1161 WDA 2018

             Appeal from the PCRA Order Entered January 5, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0003437-2016


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                              FILED JUNE 5, 2019

        William Ronald Butcher appeals from the order granting in part and

denying in part his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Because Butcher was sentenced

following a conviction for failure to comply with registration requirements1 of

the Sex Offender Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-

9799.41, effective December 2012 (“SORNA I”),2 at a time when SORNA I did

not apply to him, he is entitled to relief. We therefore reverse the order of the

PCRA court.
____________________________________________


1   18 Pa.C.S.A. § 4915.1.

2 SORNA was amended by Act of February 21, 2018, P.L. 27 (Act 10). Act of
June 12, 2018, P.L. 140 (Act 29) reenacted and amended various provisions
of Act 10. We refer to Act 10 and Act 29 as SORNA II.
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        On May 7, 2008, Butcher was convicted of rape, criminal attempt (rape),

and indecent assault.3 The trial court sentenced Butcher to 60 to 120 months’

incarceration.

        On December 21, 2016, Butcher pled guilty to failing to comply with the

registration requirements of SORNA I in June 2016. On February 6, 2017, the

trial court sentenced Butcher to 12 to 24 months’ incarceration and ordered

that the sentence would be served consecutive to a sentence imposed at a

separate docket in a different county.

        On August 21, 2017, Butcher filed a timely pro se PCRA petition alleging

that his conviction and sentence for failure to register were unconstitutional

based on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied

sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925 (2018). He claimed he was

entitled to relief because SORNA I changed the grading of his failure to comply

with registration conviction from a felony 2 to a felony 3. He requested a

“reduction of sentence consistent with the recent decision in Muniz, as the

offense grading has been downgraded.” PCRA Petition, filed Aug. 21, 2017, at

¶ 16.

        The PCRA court appointed counsel, who filed a Supplement to Motion

for Post Conviction Collateral Relief. Counsel stated that, based on Muniz,

Butcher “sought the reduction of the grading or dismissal of the criminal

charge to which he was found guilty and the concomitant modification of

____________________________________________


3   18 Pa.C.S.A. §§ 3121(a)(3), 901(a), and 3126(a)(4), respectively.

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sentence.” Supplement to Motion for Post Conviction Collateral Relief, filed

Oct. 18, 2017.

       The PCRA court issued a Notice of Intent to Dismiss PCRA Pursuant to

Pa.R.Crim.P. 907. It found Butcher failed to state a meritorious claim. The

PCRA court noted that Butcher challenged the grading of the conviction and

that “[n]otably, [Butcher] does not challenge the imposition of a lifetime

registration or any of the enhanced reporting procedures enumerated under

SORNA [I]. [Butcher] only seeks to be resentenced consistent with an offense

grading of a felony of the third degree rather than a felony of the second

degree[.]” Notice at 2. The PCRA court found that SORNA I did not elevate the

offense grading for failure to register for an individual subject to lifetime

registration and that Muniz “[did] not warrant fashioning a new sentence as

[Butcher] requests.” Id.4

       Following reinstatement of his right to file an appeal from the dismissal

of his PCRA petition, Butcher filed a timely Notice of Appeal.

       Butcher raises the following issue:

          A. Whether the lower Court erred in failing to abide by the
          holding in Commonwealth v. Muniz as a legal predicate
          to challenge the conviction for failure to register in this case
____________________________________________


4 The PCRA court also held that “in accordance with the Supreme Court’s
decision in Muniz and the guidance provided by the Superior Court in
[Commonwealth v. Harkins, No. 66 WDA 2017, 2017 WL 3574399
(Pa.Super. filed Aug. 18, 2017) (unpublished memorandum)], it is hereby
ordered that SORNA [I]’s enhanced requirements shall not be retroactively
applied to [Butcher’s] 2008 sentence, as he was convicted of a sexual offense
and sentenced prior to the enactment of SORNA [I] in 2012.” Notice of Intent
at 6.

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         and compel the expungement of said conviction and the
         lapsing of the judgment of sentence and the reversal of any
         sanction imposed upon the appellant under SORNA [I]
         including any sexually violent predator designation?

Butcher’s Br. at 2.

      In the issue presented, Butcher challenges his conviction for failure to

register and requests the expungement of the conviction. However, before the

PCRA court and in the argument section of his brief, Butcher challenged the

offense grading of his conviction.

      We find that we need not reach whether the grading of the offense

requires reversal. Rather, we conclude that his sentence for the conviction for

failure to comply with the registration requirements of SORNA I is

unconstitutional.

      Although Butcher challenged the grading of the conviction, rather than

the ability to impose a sentence for the conviction itself, we may raise the

legality of his sentence sua sponte. See Commonwealth v. Butler, 173 A.3d

1212, 1213 (Pa.Super. 2017) (finding this Court may raise the issue of

whether Muniz made sentence illegal sua sponte), pet. for allowance of

appeal granted 190 A.3d 581 (Pa. 2018); Commonwealth v. Wood, --- A.3d

----, 2019 PA Super 117, at *6 (Pa.Super. filed Apr. 15, 2019) (en banc)

(noting appellant was convicted for failing to comply with registration

requirements under SORNA and that he argued his sentence for failing to

comply was illegal pursuant to Muniz and concluding that application of

SORNA to him violated the ex post facto clause because it inflicted greater

punishment than law in effect at time he committed underlying crime);

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Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678-79 (Pa.Super.

2017) (noting Muniz decided while appellant’s case was on appeal from denial

of collateral relief, and nearly two years after counsel filed PCRA petition, and

remanding to allow petitioner to argue he was entitled to relief from his failure

to register conviction following Muniz).

      We recently reversed a conviction for failure to register where Muniz

precluded any finding of a duty to register. See Wood, 2019 PA Super 117,

at *1. In Woods, the appellant had pled guilty to one count of statutory sexual

assault for a crime that he committed prior to December 2012. Id. In June

2017, the appellant pled guilty to failure to comply with registration

requirements. Id. at *2. The court sentenced the appellant to 1½ to five years’

imprisonment. Id. Weeks later, in July 2017, the Pennsylvania Supreme Court

issued its decision in Muniz, which “found SORNA [I] to be punitive in nature

and held that retroactive application of the registration and reporting

requirements of SORNA [I] violated the ex post facto clauses of the United

States and Pennsylvania constitutions.” Id. We concluded that, because Wood

committed the underlying crime before SORNA I’s effective date, application

of SORNA I’s registration and reporting requirements to him “violated ex post

facto prohibitions.” Id. at *7. Because the conviction for failure to register

was based on a violation of “retroactively applied registration requirements

under SORNA [I], and because such retroactive application of SORNA [I] [wa]s

unconstitutional under Muniz,” we reversed the appellant’s conviction for

failure to register and vacated that judgment of sentence. Id., at *8.

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      Here, similar to the appellant in Wood, Butcher’s underlying conviction

was for a crime he committed prior to December 2012. Therefore, his 2016

conviction for failure to comply with registration requirements was based on

a violation of “retroactively applied registration requirements under SORNA

[I].” Wood, 2019 PA Super 117, at *8. Because the retroactive application of

SORNA I is unconstitutional under Muniz, his conviction and sentence for

failure to register cannot stand.

      Further, when SORNA I became effective in 2012, Megan’s Law III was

no longer effective. See Commonwealth v. Derhammer, 173 A.3d 723, 726

(Pa. 2017) (“As noted, Megan’s Law III expired and was replaced by SORNA

[I.]”). Therefore, Butcher could not have been convicted in 2016 for failing to

register under Megan’s Law III. In addition, although SORNA I has been

amended to require registration of certain individuals convicted of crimes

committed between 1996 and 2012, the amended version, SORNA II, which

became effective in 2018, cannot save the 2016 conviction.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2019




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