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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GERALD RUSSELL SCHNEIDER,                  :
                                               :
                       Appellant               :       No. 867 WDA 2018

                    Appeal from the PCRA Order May 30, 2018
                in the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000103-2011

BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 12, 2019

        Gerald Russell Schneider (“Schneider”) appeals from the Order denying

his first Petition for relief filed pursuant to the Post Conviction Relief Act.1 We

affirm.

        On January 31, 2012, Schneider pled guilty to three counts of corruption

of minors, and one count each of aggravated indecent assault of a person less

than 13 years of age, statutory sexual assault, indecent assault of a person

less than 16 years of age, and endangering the welfare of children. 2 On the

same date, the trial court sentenced Schneider to an aggregate term of 57

months to 22 years in prison.          Schneider was also found to be a sexually


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1   See 42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 6301(a)(1), 3125(a)(7), 3122.1, 3126(a)(8), 4304(a).
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violent predator (“SVP”), and, notably to this appeal, was subject to a period

of lifetime registration and reporting, pursuant to Megan’s Law II. See 42

Pa.C.S.A. § 9795.1(b)(2) (expired).3 Schneider did not appeal his judgment

of sentence.

       On September 14, 2017, Schneider filed a pro se PCRA Petition.

Therein, he asserted that pursuant to the Pennsylvania Supreme Court’s

decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), retroactive

application of SORNA’s registration requirements to Schneider’s convictions

rendered this component of his sentence unlawful.4 The PCRA court thereafter

appointed Schneider counsel, who filed an Amended PCRA Petition, requesting

a PCRA hearing on Schneider’s claim.

       After a hearing, by an Order entered on May 30, 2018, the PCRA court

denied Schneider’s PCRA Petition.              Schneider subsequently filed a timely

Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

       Schneider now presents the following issues for our review:


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3 Effective December 20, 2012, approximately one year after Schneider’s SVP
classification, Megan’s Law was replaced by the Sex Offenders Registration
and Notification Act (“SORNA”). See 42 Pa.C.S.A. §§ 9799.10-9799.41
(subsequently amended Feb. 21, 2018).

4 In Muniz, our Supreme Court held that SORNA’s registration requirements
constitute criminal punishment, and therefore, their retroactive application to
increase a sexual offender’s term of registration violates the ex post facto
clauses of the United States and Pennsylvania Constitutions. Muniz, 164 A.3d
at 1193, 1223.

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       1. Whether the PCRA court erred as a matter of law or abused its
          discretion when the PCRA court denied the PCRA [P]etition
          raising the whether [sic] [Schneider] had to register under
          SORNA, now Act 10, when it violated his constitutional rights[,]
          under the Pennsylvania Constitution and the United States
          Constitution[,] to due process to a right to hearing[,] and a
          right to a jury determination before having to register to a
          higher Punishment[,] when he was sentenced under Megan’s
          Law[,] which has expired[?]

       2. Whether the PCRA court erred as a matter of law or abused its
          discretion when the PCRA court denied the PCRA [P]etition
          raising the whether [sic] [Schneider] had to register under
          SORNA, now Act 10, when it violated his constitutional rights
          under the Pennsylvania Constitution and the United States
          Constitution[,] since violating the ex po[st] facto provisions[?]

       3. Whether the PCRA court erred as a matter of law or abused its
          discretion when the PCRA court denied the PCRA [P]etition
          raising the whether [sic] [Schneider] had to register under
          SORNA, now Act 10, when it violated his constitutional rights
          under the Pennsylvania Constitution[,] violating his protected
          right to reputation[?]

       4. Whether the PCRA court erred as a matter of law or abused its
          discretion when the PCRA court denied the PCRA [P]etition
          raising the whether [sic] [Schneider] had to register under
          SORNA, now Act 10, when it violated his constitutional rights
          under the Pennsylvania Constitution and the United States
          Constitution[,] and in violation of [Commonwealth v.]
          Butler, [173 A.3d 1212 (Pa. Super. 2017),5] when the court
          failed to vacate the finding that [Schneider] is a sexually violent
          predator[?]
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5 In Butler, this Court concluded that, in light of the decision in Muniz,
“section 9799.24(e)(3) of SORNA [(which concerns SVP designation)] violates
the federal and state constitutions because it increases the criminal penalty
to which a defendant is exposed without the chosen fact-finder making the
necessary factual findings beyond a reasonable doubt.” Butler, 173 A.3d at
1218 (emphasis added); see also Alleyne v. United States, 570 U.S. 99,
103 (2013) (holding that “[a]ny fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.”).

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Brief for Appellant at 5-6 (footnote added).

      In reviewing an order denying PCRA relief, “we examine whether the

PCRA court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

      Before addressing Schneider’s claims, we first must ascertain whether

he timely filed his PCRA Petition, as any PCRA petition must be filed within one

year of the date the petitioner’s judgment of sentence became final. See 42

Pa.C.S.A. § 9545(b)(3). The one-year time limitation is jurisdictional, and a

PCRA court has no power to address the substantive merits of an untimely

petition. Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003).

The three exceptions to the one-year filing requirement are for after-

discovered facts, interference by a government official, and a newly-

recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition

asserting one of these exceptions must also establish that the exception was

raised within sixty days of the date the claim could have been first presented.

42 Pa.C.S.A. § 9545(b)(2).

      Here, because Schneider filed no direct appeal of his January 31, 2012

judgment of sentence, and he did not file the instant PCRA Petition until

September 14, 2017, it is facially untimely. However, Schneider asserts the




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exception to the PCRA’s timeliness requirement for a newly-recognized

constitutional right, invoking Muniz and Butler.6

       In Schneider’s first three issues, which we address simultaneously due

to their relatedness, he argues that the portion of his sentence imposing

sexual offender registration requirements is illegal under Muniz, and must be

vacated. See Brief for Appellant at 10-15.

       In its Opinion, the PCRA court addressed Schneider’s claims as follows:

       As to [Schneider’s] issues … pertaining to the Pennsylvania
       Supreme Court’s holding in [] Muniz, we specifically find that his
       issues are meritless given the General Assembly’s enactment of
       Act 2018, Feb, 21, P.L. 27, No, 10, § 19 [(hereinafter “Act 10”)],
       which was effective on February 21, 2018. This Act created the
       Continued Registration of Sexual Offenders portions of SORNA,
       effectively solving the issue of applying the requirements of
       SORNA retroactively to those who committed sexually violent
       crimes before December 20, 2012. Created by [] Act [10], 42
       Pa.C.S.A. § 9799.52[] provides the following:

           This subchapter shall apply to individuals who were: (1)
           convicted of a sexually violent offense committed on or
           after April 22, 1996, but before December 20, 2012, whose
           period of registration with the Pennsylvania State Police,
           as described in section 9799.55 (relating to registration),
           has not expired; or (2) required to register with the
           Pennsylvania State Police under a former sexual offender
           registration law of this Commonwealth on or after April 22,
           1996, but before December 20, 2012, whose period of
           registration has not expired.

       Id. Here, [Schneider] was convicted of a sexually violent crime,
       specifically[,] aggravated indecent assault[,] in violation of 18
       Pa.C.S.A. § 3125(a)(7). The alleged conduct relating to his
____________________________________________


6We note that Schneider filed his PCRA Petition within 60 days of the Muniz
and Butler decisions, in compliance with 42 Pa.C.S.A. § 9545(b)(2).


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       conviction occurred between 2003 and 2006, effectively
       committing the offense after April 22, 1996, but before December
       20, 2012. As the [O]rder paroling [Schneider] was docketed on
       April 16, 2018, his period of registration has not expired.
       Therefore, the newly-enacted Continued Registration of Sexual
       Offenders statutes are directly applicable to him.

              As [Schneider] was convicted of violating 18 Pa.C.S.A.
       § 3125 on or after April 22, 1996, but before December 20, 2012,
       he is therefore required by 42 Pa.C.S.A. § 9799.55(b)(2)(i)(A) to
       register with the Pennsylvania State Police for life.[FN]

           [FN]42 Pa.C.S.A. § 9799.55(b)(2)(i)(A) reads as follows:
           “(b) Lifetime registration.— The following individuals shall
           be subject to lifetime registration: … (2) Individuals
           convicted: (i)(A) in this Commonwealth of the following
           offenses, if committed on or after April 22, 1996, but
           before December 20, 2012: … 18 Pa.C.S. § 3125 (relating
           to aggravated indecent assault)[.]”

PCRA Court Opinion, 5/30/18, at 3-4 (footnote in original). We agree with the

PCRA court’s rationale and determination, which is supported by the law and

the record. There is no merit to Schneider’s challenge to the legality of the

sexual offender registration component of his sentence, since he is currently

subject to the same registration requirements (i.e., lifetime registration)

under Act 10 as he originally was when he was sentenced under Megan’s Law

II.7 Accordingly, Schneider’s first three issues entitle him to no relief.

       In his fourth and final issue, Schneider argues that his classification as

an SVP was rendered illegal by Butler, supra, “since the determination of


____________________________________________


7 To the extent Schneider contends that he was originally required to register
for only a “limited time” (as opposed to his lifetime), when his sentence was
imposed, Brief for Appellant at 15, this claim is belied by the record. See
Notice of Sexually Violent Predator Requirements, 2/14/12, at ¶ 1.

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sexually violent predator raises the penalty and is outside of the determination

of the jury ….” Brief for Appellant at 17. Schneider urges that the Butler

“holding should not be limited to SORNA or Act 10[,] but also [be] applied to

Megan’s Law[,] … since the statutory language for both statutes is the same.”

Id. at 18.

      In its Opinion, the PCRA court concisely and appropriately rejected this

claim as follows:

      [The sentencing c]ourt held a sexually violent predator hearing on
      January 31, 2012, and found [Schneider] to be a sexually violent
      predator[,] using the clear and convincing standard. In light of
      Butler, [Schneider] avers that his sexually violent predator status
      constitutes an illegal sentence. However, [Schneider] was not
      found a sexually violent predator under SORNA, which [] Butler
      directly pertains to. But rather, as he was found a sexually violent
      predator on January 31, 2012, the determination was made when
      Megan’s Law was still effective.          Therefore, [Schneider’s]
      argument that [] Butler requires this [c]ourt to vacate his
      sexually violent predator finding is unfounded, as our Supreme
      Court has held that a sexually violent predator finding under
      Megan’s Law is not punishment. [See] Commonwealth v. Lee,
      935 A.2d 865, 886 (Pa. 2007) (holding that the lifetime
      registration, notification, and counseling obligations of sexually
      violent predators, as mandated by Megan’s Law, were not
      punitive, and therefore did not violate due process, the double
      jeopardy clause, or the prohibition against ex post facto laws).

PCRA Court Opinion, 5/30/18, at 5-6 (footnote omitted). We agree with the

PCRA court’s rationale. The holding in Butler does not apply to SVP findings




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made pursuant to Megan’s Law, nor have our appellate courts held that Butler

may be applied retroactively to pre-SORNA SVP designations.8

       Accordingly, as none of Schneider’s issues entitle him to relief and we

discern no legal error by the PCRA court, we affirm the Order denying his first

PCRA Petition.

       Order affirmed.

       Judge Panella joins the memorandum.

       Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/2019




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8 On July 31, 2018, the Pennsylvania Supreme Court granted allowance of
appeal in Butler. If the Supreme Court issues a decision holding that Butler
applies retroactively, Schneider may file another PCRA petition within one year
of that decision, attempting to invoke a time-bar exception in
subsection 9545(b)(1)(iii). See Act 2018, Oct. 24, P.L. 894, No. 146, §§ 2
and 3 (recent amendment to the PCRA Act); see also Commonwealth v.
Murphy, 180 A.3d 402, 406 n.1 (Pa. Super. 2018).

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