J-S22022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 GREGORY PERSON

                             Appellant                No. 1367 MDA 2016


                   Appeal from the Order Entered July 22, 2016
                In the Court of Common Pleas of Lycoming County
               Criminal Division at No(s): CP-41-CR-0000566-1994


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED NOVEMBER 20, 2017

       Gregory Person appeals the July 22, 2016 order entered in the Lycoming

County Court of Common Pleas denying his motion to enforce negotiated plea

contract. We vacate and remand in light of the Pennsylvania Supreme Court’s

decision in Commonwealth v. Muniz, ___ A.3d ____, 2017 WL 3173066

(Pa. July 19, 2017).

       On November 7, 1994, Person pled guilty to statutory rape, involuntary

deviate sexual intercourse, and corruption of minors.1 That same day, the

trial court sentenced Person to an aggregate sentence of 5 to 10 years’

incarceration.


____________________________________________


       *   Retired Senior Judge assigned to the Superior Court.

       1   18 Pa.C.S. §§ 3122, 3123(a)(1), and 6301(a), respectively.
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      On October 5, 2015, Person filed a pro se motion to enforce negotiated

plea contract. The court appointed counsel, who filed an amended motion to

enforce negotiated plea contract arguing, among other things, that Person

should not be required to register under the Sexual Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.44, because such

registration was not part of his plea agreement.

      The parties agreed to stipulated facts, including:

         4. At the time of the plea and subsequent sentencing,
         Pennsylvania did not have any type of sexual offender
         registration requirements in place.

         5. [Person] served his sentence and was released from the
         state correctional institution on June 23, 2003.

                                     ...

         7. During [Person’s] period of incarceration, Pennsylvania
         enacted and made effective Megan’s Law, which later
         became SORNA.

         8. [Person] first registered with the Pennsylvania State
         Police on June 6, 2003, prior to his release from prison, as
         required by law.

Opinion, 7/22/16, at 3-4.

      On July 22, 2016, the trial court denied the motion to enforce negotiated

plea contract. Person filed a timely notice of appeal.

      On appeal, Person raises the following issues:

         I. The Trial Court erred when it denied [Person’s] Motion to
         Enforce a Negotiated Plea Agreement.

         II. The Trial Court erred when it ruled that [Person’s] due
         process rights were not violated when [Person] was
         classified as a sexual offender and required to register as
         such.

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J-S22022-17


           III. The Trial Court erred when it declined to address the
           issues of ex post facto impairment of contracts, privacy, and
           reputation.

Person’s Br. at 6.

       On July 19, 2017, the Pennsylvania Supreme Court issued its decision

in Muniz, concluding that SORNA’s registration provisions are punitive and,

thus, that retroactive application of SORNA’s registration provisions violates

the ex post facto clauses of the federal and Pennsylvania constitutions. 2017

WL 3173066, at *1.2

       Because     the   application     of    SORNA   to   Person   appears   to   be

unconstitutional under Muniz, we vacate the order denying the motion to

enforce negotiated plea contract and remand to the trial court for further

proceedings consistent with that decision.3
____________________________________________


       2While the lead opinion in Muniz was joined in full by only three
Justices, that opinion, read together with the concurring opinion authored by
Justice Wecht and joined by Justice Todd, supports the statement of the
holding set out above. Justice Wecht’s opinion disagreed with the lead
opinion’s conclusion that the Pennsylvania Constitution’s ex post facto clause
provides greater protection than its federal counterpart. The concurring
opinion concluded that:

           [T]he state and federal ex post facto clauses are
           coterminous. Nonetheless, as the lead opinion’s thorough
           analysis makes clear, OAJC at 27-45, applying the federal
           ex post facto standards also leads to the conclusion that
           SORNA is punitive and cannot be applied retroactively.

Muniz, 2017 WL 3173066, at *34 (Wecht, J., concurring).

       3At the time Person pled guilty, no statute in Pennsylvania required
registration as a sex offender. Accordingly, it does not appear that non-
registration was, or could have been, a condition of the plea agreement. Cf.



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J-S22022-17



       Order vacated. Case remanded. Jurisdiction relinquished.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




____________________________________________


Commonwealth v. Martinez, 147 A.3d 517. 532-33 (Pa. 2016) (concluding
that plea agreement included term related to registration where registration
requirements were discussed at hearing, where Commonwealth stipulated
that it agreed to a specific number of years of registration, or where
requirements expressly included as term of plea agreement).

      Megan’s Law became effective prior to Person’s release from prison and
requires Person to register as a sex offender for his lifetime. See 42 Pa.C.S.
§ 9795.1(2) (requiring defendants convicted of involuntary deviate sexual
intercourse to register for life); Commonwealth v. Williams, 832 A.2d 962,
982 (Pa. 2003) (concluding registration, notification, and counseling
requirements of Megan’s Law II do not constitute punishment). SORNA,
however, enhanced the registration requirements, and retroactive application
of these requirements to Person runs afoul of constitutional ex post facto
prohibitions. See Muniz, 2017 WL 3173066, at *1.

       4   Counsel’s application to withdraw as counsel is denied.

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