J-S42016-18

                                  2019 PA Super 30


  COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                 v.                         :
                                            :
                                            :
  ROCCO ROBERT GRECO                        :
                                            :
                      Appellant             :   No. 219 MDA 2018

           Appeal from the PCRA Order Entered January 12, 2018
    In the Court of Common Pleas of Dauphin County Criminal Division at
                      No(s): CP-22-CR-0000608-1986


BEFORE:        BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

CONCURRING AND DISSENTING OPINION BY BOWES, J.:FILED FEBRUARY

08, 2019

      My distinguished colleagues cogently explain why Appellant’s request

for relief must be construed as a PCRA petition under governing precedent,

and I concur in the determination that Appellant’s petition did not satisfy any

exception to the one-year time bar. However, I dissent as to the disposition.

In my view, the PCRA court could not modify Appellant’s reporting obligations,

as it purported to do, when it ordered him to comply with Megan’s Law II.

Finally,   I    address   Appellant’s   argument     that   our   precedents   are

unconstitutional.

      Preliminarily, I note that the order appealed from did not simply deny

Appellant’s request.      Instead, the PCRA court also sua sponte modified

Appellant’s sexual offender obligations. The instant action commenced when

Appellant filed a motion requesting the following relief: “[P]etitioner asks this


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* Retired Senior Judge assigned to the Superior Court.
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Court ORDER that petitioner is immune to the registration provisions of SORNA

at above docket.”     Motion, 8/14/17, at 1.   The Commonwealth replied as

ordered, and asserted that Appellant’s obligations remain under Megan’s Law

II. The PCRA court agreed, issuing the following order:

      AND NOW, this 12th day of January, 2018, upon consideration of
      the Motion to Confirm Defendant is Not Required to Register under
      SORNA, and any responses thereto, and in light of the
      Pennsylvania Supreme Court’s decision in [Muniz], it is hereby
      ORDERED that, barring any legislative action or further court
      action, Petitioner is required to comply with Megan’ s Law II.[fn]


         As the Commonwealth has indicated, Petitioner is still required
      [fn]

      to register under Megan’s law II. As such, Petitioner is required
      to register for life due to his guilty plea to Rape.

Order, 1/12/18, at 1.

      Appellant filed a notice of appeal, arguing that Megan’s Law II no longer

exists. The Majority holds that the PCRA court lacked jurisdiction over this

untimely petition, stating that “claims challenging application of SORNA’s

registration provisions – unlike prior versions of Megan’s Law – are properly

considered under the PCRA.” Majority Opinion, at 5. I agree.

      As explained by the Majority, our precedents treat petitions seeking

retroactive application of Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017) (OAJC), in disparate ways. In timely PCRA proceedings, we give Muniz

retroactive effect.   Commonwealth v. Rivera-Figueroa, 174 A.3d 674

(Pa.Super. 2017). In untimely PCRA proceedings, however, Commonwealth

v. Murphy, 180 A.3d 402 (Pa.Super. 2018), holds that Muniz fails to satisfy


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the relevant PCRA time-bar exception. Thus, similarly-situated offenders, i.e.,

persons whose judgment of sentence were final when Muniz was decided, are

treated differently. Since this is an untimely PCRA, Murphy controls and the

PCRA court had no jurisdiction to address the merits of his claim.

       For that same reason, I find that the order must be reversed to the

extent it purports to impose Megan’s Law II obligations upon Appellant. The

same logic that compels a conclusion that the PCRA court lacked jurisdiction

to “confirm” Appellant’s absence of SORNA obligations dictates that the court

cannot now require Appellant to comply with some other non-SORNA set of

obligations. That matter does not concern the PCRA court.1

       I now address Appellant’s claim that Murphy conflicts with the United

States Constitution. He argues that “When a state enforces a constitutionally-

barred    penalty,     the   resulting    conviction   or   sentence   is   unlawful.

Montgomery v. Louisiana, 136 S. Ct. 718 (2016).                The United State[s]

Constitution requires state collateral review courts to give retroactive effect to


____________________________________________


1 The Pennsylvania State Police administer the sex offender registry and
impose reporting obligations as a result of duly-enacted laws. Absent a filing
by a defendant seeking enforcement of a plea bargain, I discern no basis for
a court to issue an order directing Appellant to comply with some alternative
set of obligations. If the PCRA court was modifying Appellant’s sentence, it
lacked jurisdiction to do so; if the court was attempting to impose collateral
obligations, it had no authority to do so. Either way, the order cannot stand.
Furthermore, the Legislature has enacted laws that seek to address Muniz.
See 42 Pa.C.S. §§ 9799.51-9799.75. Those statutes constitute a new
subchapter, “Continued Registration of Sexual Offenders.” Thus, the PCRA
court order purports to impose obligations in place of this statute. Whether
the requirements set forth by those laws is not germane to this appeal.

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new substantive rules of constitutional law, which control the outcome of

cases.” Appellant’s brief at 5. Appellant’s point is similar to that set forth in

my dissenting opinion in Commonwealth v. Fernandez, --- A.3d ---, 2018

WL 4237535 (en banc). Fernandez was accepted en banc to determine if

Commonwealth v. Partee, 86 A.3d 245 (Pa.Super. 2014), should be

overruled. Partee held that a probation violation constituted a failure to abide

by the terms of a plea agreement, thereby precluding attempts to seek

restoration of less onerous Megan’s Law requirements that existed at the time

of the original pleas. Muniz was issued while Fernandez was on appeal, and

this Court held that Muniz abrogated Partee. I set forth my prior analysis of

this issue:

      The Majority erroneously assumes that we may apply Muniz's
      holding to these Appellants by asserting that Muniz abrogated
      Partee. I agree with that statement insofar as Muniz holds that
      requiring persons convicted of offenses without adequate notice
      of the SORNA obligations cannot be ordered to comply with
      SORNA. The problem, however, is that this conclusion does not
      supply an answer as to whether Muniz's rule retroactively applies
      to these offenders. Our current precedents hold that Muniz does
      not satisfy the exception to the PCRA's one-year time bar
      pertaining to new constitutional rights. Commonwealth v.
      Murphy, 180 A.3d 402 (Pa.Super. 2018). Therefore, our Court
      continues to affirm judgments of sentence that are no less
      unconstitutional than Appellants' sentences. The existence of
      Murphy disproves the Majority's statement that “reclassifications
      of the Appellants after the effective date of SORNA cannot stand.”
      Majority Opinion at 310. Murphy accepts that SORNA
      classifications may remain in place notwithstanding Muniz, and
      we therefore cannot simply ignore Partee despite the fact that
      affirming on that basis raises the possibility of affirming a
      sentence that Muniz says is illegal.




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     Therefore, the Majority seeks to apply Muniz retroactively,
     without acknowledging the fact that the continuing existence of
     cases like Murphy means that Muniz would henceforth apply in
     a disparate fashion.

Fernandez, supra at *11 (Bowes, J., dissenting) (footnotes omitted). In my

view, the Legislature cured the problem by amending SORNA in the wake of

Muniz. Regarding Appellant’s claim that this disparate treatment is unlawful,

I observed:

     Whether that would be permissible is a difficult question. This
     Court has held that Muniz created a substantive rule of
     constitutional law that must apply retroactively in timely PCRA
     proceedings. Commonwealth v. Rivera–Figueroa, 174 A.3d
     674, 678 (Pa.Super. 2017). Simultaneously, Muniz does not
     satisfy the PCRA's time-bar exception pertaining to newly-
     announced constitutional rights. Commonwealth v. Murphy,
     180 A.3d 402 (Pa.Super. 2018). Therefore, similarly-situated
     offenders, i.e. persons whose criminal sentences were already
     final when Muniz was announced, are treated differently.

     While I believe that Murphy was correctly decided as a matter of
     statutory interpretation, States are arguably prohibited from
     refusing to grant retroactive effect to new substantive rules of
     constitutional law. See Montgomery v. Louisiana, ––– U.S. ––
     ––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (States required to
     give retroactive effect to such rules). Montgomery controls as to
     questions of federal law. “If a state collateral proceeding is open
     to a claim controlled by federal law, the state court has a duty
     to grant the relief that federal law requires.” Id. at 731 (emphasis
     added, quotation marks and citation omitted). In turn, we have
     held that the binding precedent in Muniz “is confined to the
     determination that SORNA's registration requirement is
     punishment that runs afoul of the ex post facto clause of the
     Pennsylvania      Constitution     when     applied    retroactively.”
     Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa.Super.
     2017).

     If Muniz simply represents the announcement of a pure state law
     claim, disparate retroactive application may or may not be
     permissible. Cf. Commonwealth v. Cunningham, 622 Pa. 543,

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       81 A.3d 1, 8 (2013) (noting that the federal retroactivity model
       “is not necessarily a natural model for retroactivity jurisprudence
       as applied at the state level.”). Suffice to say, the necessity of
       applying Muniz in the absence of controlling legislation is a
       complicated question, and one we need not decide.

Id. at n.3.

       I continue to adhere to this view. Muniz is a creature of state law, and

thus the scope of its retroactive effect is not governed by the United States

Constitution. Furthermore, I believe that Muniz retroactivity encompasses

two separate questions. The first is whether offenders who were convicted of

sexual offenses pre-SORNA are entitled to retroactive application of Muniz in

the sense that such offenders are free from ongoing SORNA obligations. The

answer to that question, in my view, is unquestionably yes.        However, as

discussed in Fernandez I believe that the Legislature has already

retroactively applied Muniz in this sense. The second is whether Muniz is

retroactive to the extent that offenders are entitled to relief from convictions

stemming from failures to comply with SORNA obligations, which is an entirely

separate retroactivity problem.2 The latter circumstance is not involved in this

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2 Justices Scalia, Thomas, and Alito took a contrary view in Montgomery
regarding a State court’s obligation to give retroactive effect to new rules:

       That line of finality demarcating the constitutionally required rule
       in Griffith from the habeas rule in Teague supplies the answer
       to the not-so-difficult question whether a state postconviction
       court must remedy the violation of a new substantive rule: No. A
       state court need only apply the law as it existed at the time a
       defendant's conviction and sentence became final. See Griffith,



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case, and its resolution must await a future case directly raising that issue.3

Until such time, I adhere to the aforementioned views.




____________________________________________


       supra, at 322, 107 S.Ct. 708. And once final, “a new rule cannot
       reopen a door already closed.” James B. Beam Distilling Co. v.
       Georgia, 501 U.S. 529, 541, 111 S.Ct. 2439, 115 L.Ed.2d 481
       (1991) (opinion of Souter, J.). Any relief a prisoner might receive
       in a state court after finality is a matter of grace, not constitutional
       prescription.

Montgomery v. Louisiana, 136 S.Ct. 718, 739 (Scalia, J., dissenting) (some
citations omitted).

3  Commonwealth v. Rivera-Figueroa, 174 A.3d 674 (Pa.Super. 2017),
involved a PCRA petition seeking to challenge a conviction for failing to comply
with SORNA. This Court determined that “the best resolution of this case is
to vacate, remand, and offer [Rivera-Figueroa] the opportunity to argue
Muniz.” Id. at 679. The public docket reveals that following our remand the
trial court granted the Lebanon County District Attorney’s motion to nolle
prosse the charges.


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