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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                              Appellee

                        v.

    WILLIAM ELSWORTH HUGHES, JR.

                              Appellant                No. 559 WDA 2017


        Appeal from the Judgment of Sentence entered November 7, 2016
                  In the Court of Common Pleas of Blair County
                     Criminal Division at No.: 0001692-2015


BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                               FILED JULY 16, 2018

        Appellant, William Elsworth Hughes, Jr., appeals from the November 7,

2016 judgment of sentence imposing a mandatory five to ten year sentence

for failure to register under 18 Pa.C.S.A. § 4915.1(a)(1).1      We vacate and

remand for resentencing.



____________________________________________


1    That section provides:

        (a) Offense defined.--An individual who is subject to
        registration under 42 Pa.C.S. § 9799.13 (relating to applicability)
        commits an offense if he knowingly fails to:

              (1) register with the Pennsylvania State Police as required
              under 42 Pa.C.S. § 9799.15 (relating to period of
              registration), 9799.19 (relating to initial registration) or
              9799.25 (relating to verification by sexual offenders and
              Pennsylvania State Police)

18 Pa.C.S.A. § 4915.1(a)(1).
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       Appellant was convicted of rape in Maryland in 2004 and, upon his move

to Pennsylvania in 2005, was subject to the lifetime reporting and notification

requirements of Pennsylvania’s Megan’s Law III. N.T. Trial, 2/24/16, at 36;

Commonwealth Exhibit 1.            At trial, the Commonwealth established that

Appellant missed his periodic registration deadline of July 7, 2015, thus

resulting in this prosecution. N.T. Trial, 2/24/16, at 47-48. At the conclusion

of trial, the jury found Appellant guilty as charged. The trial court imposed a

mandatory sentence of five to ten years of incarceration pursuant to 42

Pa.C.S.A. § 9718.4(a)(2)(i).2




____________________________________________


2   That section provides:

       (a)    Mandatory sentence.—Mandatory sentencing shall be as
              follows:

                                           […]

              (2)    Sentencing upon conviction for a first offense shall be
                     as follows:

                                           […]

                     (i) Not less than five years for an individual who:

                            (A)    is subject to section 9799.13 and must
                                   register for a period of 25 years or life
                                   under section 9799.15 or a similar
                                   provision from another jurisdiction; and

                            (B)    violated 18 Pa.C.S. § 4915.1(a)(3).

42 Pa.C.S.A. § 9718.4(a)(2)(i).


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      In his first argument on appeal, Appellant claims, correctly, that his five-

year mandatory minimum sentence is illegal.            In Commonwealth v.

Blakney, 152 A.3d 1053 (Pa. Super. 2016), this Court held § 9781.4 to be

unconstitutional pursuant to Alleyne v. United States, 570 U.S. 99 (2013),

because its application of a mandatory minimum sentence depends upon a

fact (the length of the reporting requirement) that is not submitted to a jury

and proven beyond a reasonable doubt. Blakney is controlling here. The

Commonwealth concedes as much. Commonwealth’s Brief at 4-5. We will

vacate the judgment of sentence under Blakney and remand for further

proceedings in accordance with this memorandum.

      Appellant also argues that we must vacate his conviction under § 4915.1

based on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), in which our

Supreme Court held that the reporting and registrations requirements under

the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.S.C.A.

§ 9799.10, et seq. are punitive and that their retroactive application to

offenses committed prior to SORNA’s effective date (December 20, 2012)

violates the ex post facto clause of the United States Constitution. U.S. Const.

art. 1, § 10 (No State shall […] pass any ex post facto law.”). The Muniz

Court considered whether SORNA was unconstitutional as applied to a

defendant subjected to an increased registration period under SORNA. Id. at

1192-93. Muniz was convicted of indecent assault in 2007 and subject to a

ten-year registration requirement pursuant to then-extant Megan’s Law III


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(42 Pa.C.S.A. § 9795.1 et seq. (expired)). Id. at 1193. Muniz absconded

prior to sentencing. In 2014, he was apprehended, sentenced, and subjected

to a lifetime reporting requirement under SORNA.       Id.     In summary, the

Supreme    Court   concluded   that   SORNA’s   notification   and   registration

requirements were punitive rather than civil, and that SORNA was

unconstitutional as applied to Muniz because it increased the punishment for

indecent assault after he committed the offense.

      Appellant claims that SORNA is unconstitutional in its entirety, and that

his conviction cannot stand “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 [that date].”

Appellant’s Brief at 10.    Appellant’s argument rests on an overly broad

misreading of Muniz.       Muniz held that SORNA was unconstitutional as

applied to Muniz because it increased his registration requirement from ten

years to life. SORNA did not change Appellant’s reporting period, as he was

subject to lifetime reporting prior to the enactment of SORNA. The Muniz

Court did not hold that SORNA was unconstitutional and unenforceable in all

circumstances.

      In its brief, the Commonwealth cites Commonwealth v. Derhammer,

173 A.3d 723 (Pa. 2017) as well as Muniz, and defers to this Court’s discretion

in discerning their application here.    Commonwealth’s Brief at 6-7.         In

Derhammer, the defendant failed to timely report a change of address in


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early April 2009 in accordance with 18 Pa.C.S.A. § 4915, the predecessor to

current § 4915.1. Derhammer was convicted in 2011, but awarded a new trial

due to a faulty waiver colloquy. Subsequently Megan’s Law III expired and

was replaced by SORNA, and our Supreme Court, in Commonwealth v.

Nieman, 84 A.3d 603 (Pa. 2013) held that Megan’s Law III was

unconstitutional in its entirety because it was included in a bill that violated

the single subject rule.      Thus, former § 4915 was not constitutionally

enforceable at the time of Derhammer’s 2009 offense.            Well-settled law

establishes that “a conviction based on an unconstitutional statute is a nullity.”

Id. at 728. The Commonwealth argued that the conviction was salvageable

under an amendment to Megan’s Law III that post-dated Derhammer’s

offense and/or the continued applicability of Megan’s Law II, which the

successor statute did not repeal.         The Supreme Court rejected both

arguments. The Court also noted that current § 4915.1 expanded the time

for reporting an address change, and Derhammer’s report would have been

timely under that section.     Id. at 730-31.     When the General Assembly

“removes the State’s condemnation from conduct formerly deemed criminal,”

dismissal of the charge is required. Id. at 731 (quoting Bell v. Maryland,

378 U.S. 226 (1964)) (emphasis added in Derhammer).

      Derhammer is distinguishable because the offense at issue occurred in

2009 under a statute that was later ruled unconstitutional in Nieman. The

instant offense took place in 2015, when SORNA was applicable. Derhammer


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is pertinent insofar as it post-dates Muniz and it relied on § 4915.1 to hold

that the General Assembly removed the condemnation of the more restrictive

deadline that existed under prior law. This reinforces the point that Muniz

did not render § 4915.1 unenforceable.

      For his third and final argument, Appellant claims the trial court erred

in denying his pre-trial motion in limine and permitting the prosecution to refer

to “Megan’s Law” during trial within the jury’s hearing. Appellant cite no law

for this proposition, not does he explain how reference to “Megan’s Law” was

prejudicial to him given that the jury clearly was aware he was a sexual

offender. We discern no merit in this argument.

      In conclusion, we advise both parties that developments in the law

following landmark cases such as Muniz should be based on thorough

advocacy from the parties and reasoned decisions from the trial court.

Appellant’s brief provided this Court with an overview of Muniz, but provided

little in the way of that case’s application to the specific circumstances of this

case. Appellant’s brief appears to use slightly varied fonts and font sizes, and

we wonder whether portions of it were cut and pasted from other documents.

The Commonwealth, for its part, simply cited Muniz and Derhammer and

deferred to this Court’s discretion. Deferring to this court’s discretion is not

advocacy. Likewise, the trial court filed only a two-page document noting that

the record and the applicable statutes speak for themselves, and referred to




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its prior opinion regarding Appellant’s pre-trial motion that did not address

Appellant’s SORNA argument. Order, 9/18/17.

      Judgment of sentence vacated.         Case remanded.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2018




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