                                  [J-14-2020]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.



    COMMONWEALTH OF PENNSYLVANIA,                :   No. 25 EAP 2019
                                                 :
                      Appellee                   :
                                                 :
                                                 :   Appeal from the Judgment of
               v.                                :   Superior Court entered on
                                                 :   December 17, 2018 at No. 3698
                                                 :   EDA 2016, affirming the November
    JEROME MCINTYRE,                             :   4, 2016 PCRA Order in the Court of
                                                 :   Common Pleas, Philadelphia
                      Appellant                  :   County, Criminal Division at No. CP-
                                                 :   51-CR-0009339-2010.
                                                 :
                                                 :
                                                 :   SUBMITTED: January 31, 2020

                                        OPINION

JUSTICE TODD                                                   FILED: June 16, 2020

        On April 1, 2020, our Court issued a per curiam order reversing the judgment of

sentence of Appellant Jerome McIntyre who had been convicted of violating 18 Pa.C.S.

§ 4915 (effective 1/1/2007-12/19/2011) (“Section 4915”) for failing to register as a

convicted sex offender. See Commonwealth v. McIntyre, --- A.3d ---, 2020 WL 1546458

(Pa. filed April 1, 2020) (order). As explained more fully herein, Appellant’s challenge to

his sentence was raised in proceedings under the Post Conviction Relief Act (“PCRA”). 1

Because we found his challenge to be meritorious, but because his prison sentence



1   42 Pa.C.S. §§ 9541-9546.
expired on April 7, 2020, thus terminating our jurisdiction to grant relief as of that date, 2

we took the unusual action of issuing our April 1, 2020 order, with an opinion to follow.

We now set forth our reasons in support of that order.

                             I. Facts and Procedural History

       Appellant was convicted of indecent assault in 2001. Pursuant to “Megan’s Law

II” 3 as then in effect, Appellant was required to register for 10 years as a sex offender with

the Pennsylvania State Police upon his release from prison in 2003. Subsequently, in

2004, the legislature enacted “Megan’s Law III,” 4 a provision of which made it a crime to

fail to register. See 18 Pa.C.S. § 4915 (effective 1/24/05 to 12/31/06). Later, in 2005,

Appellant was charged under this statute with not fulfilling this mandatory registration

requirement. He pled guilty, and he was sentenced to a year of probation.

       In 2010, Appellant was (again) charged with failing to register, under the version

of Section 4915 then in effect, which is the version of that provision at issue herein. 5 In

April 2012, following a jury trial, Appellant was convicted and received a mandatory

sentence of 5 to 10 years incarceration. As noted, this sentence expired on April 7, 2020.6



2 See Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA precludes granting
relief to a petitioner who is no longer serving a sentence of imprisonment, probation, or
parole); 42 Pa.C.S. § 9543(a)(1).
3 Act of May 10, 2000, P.L. 74, No. 18.
4 Act of Nov. 24, 2004, P.L. 1243, No. 152, effective January 24, 2005.
5 The initial version of Section 4915 which became effective, along with the remainder of

Megan’s Law III, on January 24, 2005, and the version in effect in 2010 at the time
Appellant was charged with the instant offense, differed from the original version only in
that the later version increased the grading of a first offense from a second-degree
misdemeanor to a third-degree felony, and, for a second offense, as here, from a third-
degree felony to a second-degree felony.
6 In December 2011, the General Assembly enacted the “Sex Offender Registration and

Notification Act” (“SORNA”), Act of Dec. 20, 2011, P.L. 446, No. 111, § 12, December 20,
2012. SORNA repealed 18 Pa.C.S. § 4915, and replaced it with 18 Pa.C.S. § 4915.1.



                                       [J-14-2020] - 2
       Appellant, through appointed counsel, filed a direct appeal, and the Superior Court

affirmed his judgment of sentence on July 16, 2013. Commonwealth v. McIntyre, 2009

EDA 2012 (Pa. Super. filed July 16, 2013). Appellant did not seek further review with our

Court of the Superior Court’s decision. On December 16, 2013, we handed down our

decision in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), in which we held that

Megan’s Law III, which included Section 4915, was unconstitutional in its entirety as it

was passed in violation of the single subject rule of the Pennsylvania Constitution.

       Appellant next filed a pro se PCRA petition on April 22, 2014, asserting his

innocence of his underlying conviction for indecent assault, and also raising several

claims of ineffective assistance of counsel. Counsel was appointed for him, but was

subsequently removed. Substitute counsel did not file an amended PCRA petition, but,

rather, a motion to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

(en banc).

       The trial court, by order issued in November 2016, granted counsel’s motion and

dismissed Appellant’s PCRA petition. Appellant, again proceeding pro se, filed a timely

notice of appeal of this order, and, thereafter, filed a Pa.R.A.P. 1925(b) statement raising

over 30 claims of PCRA court error.

       No further action was taken in this matter until October 10, 2017, when Appellant

filed, pro se, an amended PCRA petition in which he asserted that his sentence for

violating Section 4915 was illegal as a result of our Court’s July 19, 2017 decision in



Section 4915.1, which has been subsequently reenacted by the Act of June 12, 2018,
P.L. 140, No 29, § 1, is not at issue in this appeal.



                                      [J-14-2020] - 3
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that retroactive application

of SORNA’s registration provisions violated the ex post facto clauses of the Pennsylvania

and United States Constitutions). 7

        The trial court issued a Rule 1925(a) opinion in which it summarily rejected the

claims which Appellant raised in his Rule 1925(b) statement. In his pro se brief filed with

the Superior Court, Appellant argued that Muniz, and also our Court’s 2017 decision in

Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017) (holding that the Commonwealth

lacked authority to prosecute a defendant for violating Section 4915 after Megan’s Law

III was struck down by Neiman), changed the law such that his “conviction in whole and

in part cannot be sustained.” Appellant’s Brief in Commonwealth v. McIntyre, 3698 EDA

2016 (Pa. Super.), at 9.

        The Superior Court affirmed the denial of PCRA relief.         Commonwealth v.

McIntyre, 3698 EDA 2016 (Pa. Super. filed Dec. 17, 2018).              In its unpublished

memorandum opinion, the court considered Appellant’s claims based on Muniz and

Derhammer – even though he did not raise the applicability of these cases in his original

PCRA petition – because, in its view, these claims concerned the legality of Appellant’s

sentence, which it concluded it had jurisdiction to consider. The court first determined

that Muniz did not apply to Appellant’s case because Appellant was convicted under

Megan’s Law III, not SORNA. Regarding Derhammer, the court opined that that case

was distinguishable since the defendant therein was prosecuted after our Court’s decision

in Neiman, whereas Appellant’s judgment of sentence became final before Neiman was




7   The trial court took no action on this amended petition.

                                       [J-14-2020] - 4
issued, and Appellant did not argue that Neiman applied retroactively to invalidate his

conviction.

       Appellant filed a pro se petition for allowance of appeal to this Court, raising the

following three issues:

               1. Whether the Superior Court erred by failing to apply the
               standard delineated in Teague v. Lane (1989) and its
               progeny, including and specifically Montgomery v. Louisiana
               (2016), allowing a retroactive application in collateral
               proceedings for new substantive rules, as it is United States
               Supreme Court precedent?

               2. Whether a complete and fundamental miscarriage of justice
               issued fatally depriving Appellant of his constitutional rights to
               due process under the United States and Pennsylvania
               Constitutions where the court of original jurisdiction lacked
               subject matter jurisdiction to prosecute in this instant case?

               3. Whether Commonwealth v. Neiman and/or Commonwealth
               v. Derhammer, both Pennsylvania Supreme Court
               precedents, are to be applied to his first timely PCRA as new
               substantive rules in accord with the United States and
               Pennsylvania Constitutions?
Commonwealth v. McIntyre, 217 A.3d 792, 792-93 (Pa. 2019) (order).

       Our Court granted this petition on September 4, 2019, and we referred the matter

to our Court’s pro bono coordinator to select volunteer counsel to represent Appellant in

this appeal.    Attorneys Bruce P. Merenstein and Brandy S. Ringer entered their

appearance on behalf of Appellant, and filed a brief on his behalf, along with an

unopposed motion for expedited consideration in light of the looming expiration of

Appellant’s sentence. The Commonwealth, by the Philadelphia District Attorney’s Office,

also filed a brief in which, as explained below, it concurs with Appellant that his sentence

for violating Section 4915 was illegal and subject to reversal.




                                        [J-14-2020] - 5
         After this briefing process was complete, our review, as discussed below, indicated

that Appellant was entitled to reversal of his judgment of sentence; however, because the

expiration of Appellant’s sentence was rapidly approaching, at which point our Court

would be deprived of jurisdiction to grant relief, 8 we issued a per curiam order on April 1,

2020, reversing his judgment of sentence and indicating that the present opinion would

be forthcoming. See Commonwealth v. McIntyre, --- A.3d ---, 2020 WL 1546458 (Pa. filed

April 1, 2020) (order).

                               II. Arguments of the Parties

         Appellant first argues that, after our Court’s decision in Neiman, Section 4915

became null and void dating back to its inception, and, thus, it was as if this statute never

existed. Consequently, he maintains that it would violate due process to uphold his

conviction and to permit his incarceration thereunder. Appellant highlights that our Court

has recognized the principle that a statute which is stricken for constitutional infirmity must

be regarded as void ab initio and treated as if it never existed. See Appellant’s Brief at

11 (citing Glen-Gery Corporation v. Zoning Hearing Board, 907 A.2d 1033, 1037 (Pa.

2006) (holding that a facially untimely challenge to a zoning statute based on a claim that

the manner of the statute’s enactment violated due process must be allowed to proceed,

as the constitutional claim, if proven, would render the statute void ab initio)). Appellant

asserts that, in Derhammer, our Court acted in accordance with this principle by

recognizing that Section 4915 was rendered void ab initio as the result of our Court’s

ruling in Neiman that Megan’s Law III was unconstitutionally enacted. See id. at 12-13

(quoting Derhammer, 173 A.3d at 728 (“a conviction based on an unconstitutional statute


8   See supra note 2.

                                       [J-14-2020] - 6
is a nullity[;] . . . an offense created by an unconstitutional law ‘is not a crime’ and ‘a

conviction under it is illegal and void, and cannot be a legal cause of imprisonment.’” (in

turn quoting Ex Parte Siebold, 100 U.S. 371, 376-77 (1879)))). Likewise, Appellant

reasons that his conviction for allegedly violating Section 4915 “is a nullity. [It] is illegal

and void, and cannot be a legal cause of imprisonment.” Id. at 13 (internal quotation

marks omitted).

       Appellant further argues that, as a general matter, the Due Process Clause of the

Fourteenth Amendment of the United States Constitution prohibits a state from convicting

an individual “for conduct that its criminal statute, as properly interpreted, does not

prohibit.” Appellant’s Brief at 13 (quoting Fiore v. White, 531 U.S. 225, 228-29 (2001)

(per curiam) (holding that this Court’s interpretation of a criminal statute as precluding

criminal culpability for the offense of which petitioner was convicted, handed down after

petitioner’s conviction became final, did not constitute a new rule of law, but rather

effectively stated the law at the time of petitioner’s conviction; thus, petitioner’s conviction

and continued incarceration violated due process)). Appellant proffers that, if a conviction

based on conduct not prohibited by a criminal statute violates due process, then it

necessarily follows that a conviction for violating a criminal statute which does not exist

must also violate due process, inasmuch as there is no more fundamental principle of

justice than that “an individual should not be convicted and sentenced for violating a non-

existent statute.” Id. at 15.

       Additionally, Appellant highlights that the PCRA entitled him to relief from his

conviction and sentence because the fact that his conviction was void ab initio meets

several of the criteria for PCRA relief enumerated in 42 Pa.C.S. § 9543(a)(2): his




                                       [J-14-2020] - 7
conviction constituted a violation of his constitutional guarantee of due process,

warranting relief under Section 9543(a)(2)(i) (conviction or sentence resulted from a

violation of the Pennsylvania and United States Constitutions); his conviction resulted in

an unlawful sentence, necessitating relief under Section 9543(a)(2)(vii) (sentence is

greater than the lawful maximum) inasmuch as there is no lawful sentence for violation of

a nonexistent statute, and, thus, any sentence of incarceration is greater than allowed by

law; and his conviction warranted relief under Section 9543(a)(2)(viii) (a proceeding in a

tribunal without jurisdiction), given that the non-existence of Section 4915 deprived the

court of common pleas of jurisdiction to try him for that offense.

       Appellant finally argues that, were our Court to apply the framework utilized by the

United States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989) (plurality), 9 we

would apply our Neiman decision to cases, like Appellant’s, on collateral review. In that

regard, Appellant contends that Neiman merely applied settled rules of constitutional

interpretation that existed for over 150 years. Hence, as expressing an established

constitutional rule of criminal procedure, in Appellant’s view, Neiman should be applied

retroactively under Teague. Appellant maintains that, even were we to consider Neiman



9 Teague was a plurality decision with respect to the proper standard to apply in
determining whether a decision of the high Court should be given retroactive effect in
federal habeas corpus proceedings challenging criminal convictions. Yet, a majority of
the high Court has subsequently adopted its pronouncement that a new constitutional
rule of criminal procedure does not apply, as a general matter, to federal collateral review
of convictions. By contrast, new substantive rules of constitutional law – i.e., “rules
forbidding criminal punishment of certain primary conduct” – as well as “rules prohibiting
a certain category of punishment for a class of defendants because of their status or
offense,” Montgomery v. Louisiana, 136 S.Ct. 718, 728 (2016), must be given retroactive
effect. Likewise, new rules of criminal procedure which are considered “watershed rules”
that implicate “the fundamental fairness and accuracy of the criminal proceeding” will also
be retroactively applied in federal collateral challenges to criminal convictions. Welch v.
United States, 136 S.Ct. 1257, 1264 (2016).

                                      [J-14-2020] - 8
to have established a substantive change in the law, given that it altered the range of

criminally proscribed conduct by eliminating the offense which Appellant was charged

with committing, Teague requires its retroactive application to his case.

       The Commonwealth responds that it believes, “in the interest of justice, [the]

defendant could not have been convicted of a criminal offense that was enacted through

unconstitutional legislation.” Commonwealth’s Brief at 11. The Commonwealth points

out that our Court in Neiman determined that all of Megan’s Law III, which includes

Section 4915, was passed in violation of the single subject rule of the Pennsylvania

Constitution, and that our Court has subsequently concluded in Derhammer, albeit in what

it characterizes as dicta, that the violation of the single subject rule resulted in Megan’s

Law III (and thus Section 4915) being void ab initio. The Commonwealth acknowledges

that Derhammer involved a direct appeal; however, the Commonwealth considers “the

refusal to retroactively apply those decisions in post-conviction review cases, like the

instant one, where a defendant’s judgment of sentence has become final, would create

an inequitable and unacceptable result,” with “some defendants remaining convicted of

violating a non-existent criminal statute, while others are not.” Id. at 11.

       In the Commonwealth’s view, though, affording relief in this case is complicated by

the fact that Appellant did not include this claim in his PCRA petition, arguably resulting

in waiver for purposes of appellate review. The Commonwealth posits that, nevertheless,

our Court should treat Appellant’s claim for retroactive application of Neiman and

Derhammer as a claim which implicates the legality of Appellant’s sentence, given that it

is in the genus of claims involving a trial court’s lack of constitutional or statutory authority

to impose a sentence.       Commonwealth’s Brief at 26-27 (quoting Commonwealth v.




                                        [J-14-2020] - 9
Foster, 17 A.3d 332, 344 (Pa. 2011) (plurality) (legality of sentence is implicated when “a

sentencing court’s inherent, discretionary authority to wield its statutorily prescribed

powers is supplanted, abrogated, or otherwise limited, or the legislature’s intent in

fashioning a sentence has been potentially misapplied” (citation omitted)).             The

Commonwealth considers Appellant’s claim to fall within this “catch-all” category of

legality of sentence claims given that, “if there was no authority to enact the criminal

statute that defendant was convicted under, then there was no legal authority for any

sentence to be imposed in this case.” Id. at 26-27 (emphasis original).

       Thus, the Commonwealth agrees Appellant should be granted relief “because

there does not appear to be any authority in Pennsylvania that would provide that a

defendant can be lawfully incarcerated for breaking a law that was rendered

unconstitutional due to the manner in which it was improperly enacted.” Id. at 29. The

Commonwealth declares that it “cannot advocate for the incarceration of a person for

breaking a law that has been struck down as unconstitutional.” Id. 10



10  The Commonwealth disputes Appellant’s claim that retroactive application of Neiman
and Derhammer is implicated by Teague, inasmuch as the analysis articulated in Teague
is implicated only when a state court is considering whether to give retroactive application
to a new rule of federal law interpreting the United States Constitution, and, in any event,
Neiman and Derhammer did not articulate a new rule of constitutional law. At most, from
the Commonwealth’s perspective, Neiman involved a procedural rule, in that it was
concerned with the process the legislature used in enacting the statute; therefore, it was
not a watershed rule implicating retroactive application. The Commonwealth also rejects
Appellant’s claim that the trial court lacked jurisdiction to adjudicate his guilt and impose
a sentence, because the trial court was empowered statutorily to hear criminal cases of
this nature, and offers that Appellant is actually arguing that the trial court lacked the
power to try Appellant and impose his sentence. The Commonwealth considers such a
claim to be waivable. Commonwealth’s Brief at 25 (citing In re Melograne, 812 A.2d 1164
(Pa. 2002) (explaining the difference between a claim that a court lacked subject matter
jurisdiction, which is nonwaivable, and a claim that a court lacked power to take a
particular action, which can be waived)).



                                      [J-14-2020] - 10
                                       III. Analysis

       Appellant claims that he is entitled to relief because our Court’s decision in Neiman

– striking down Megan’s Law III due to its unconstitutional enactment – rendered Section

4915 void ab initio, and his conviction (and sentence) based thereon invalid. Before

addressing the merits of this claim, however, we must address its preservation for our

review.

       Initially, as recounted above, both parties characterize the nature of Appellant’s

claim as a challenge to the legality of his sentence. Our own independent analysis has

confirmed this characterization. 11

       In Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016), our Court considered the

question of whether the defendant’s challenge to a mandatory minimum sentence

imposed before such sentences were later deemed to be unconstitutional by the United

States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), was preserved

for direct appellate review, notwithstanding the fact that the defendant failed to raise the

challenge in the proceedings below. Relying on the lead opinion in Foster, supra, 12 the

defendant contended that our Court could consider his claim because it implicated the

legality of his sentence, due to the fact that the trial court lacked authority to enter the

sentence which it did. Our Court accepted this argument, and held that, because the

sentencing provision in question was later ruled by our Court to be unconstitutional, “it is



11 Because the issues involved in this appeal present pure questions of law, our review is
plenary. Commonwealth v. Parrish, 224 A.3d 682, 699 (Pa. 2020).
12 In Foster, the lead opinion authored by Justice Baer, and joined by this author and

Justice McCaffery, concluded that a challenge to a sentencing court’s authority to impose
a mandatory minimum sentence, under an unconstitutional mandatory minimum
sentencing statute, implicated the legality of sentence and was not waivable. Foster, 17
A.3d at 344-45.

                                      [J-14-2020] - 11
as if that statutory authority never existed.” Barnes, 151 A.3d at 127. Hence, we

reasoned that, because the sentencing statute was “void on its face,” and the trial court

possessed no other legal authority to enter the imposed sentence, the defendant was

entitled to challenge the legality of his sentence, regardless of the fact that he did not

preserve the issue prior to seeking direct appellate review with our Court. Id.

       Likewise, Appellant’s assertion that the statute under which he was convicted was

void ab initio because it was passed in an unconstitutional fashion necessarily implicates

the trial court’s authority to impose a sentence of incarceration for that conviction, given

that a trial court is not empowered under our Commonwealth’s Sentencing Code to

sentence an individual for a non-existent criminal offense. We, therefore, conclude that

Appellant’s claim is one which implicates the legality of his sentence. See Commonwealth

v. Monarch, 200 A.3d 51 (Pa. 2019) (defendant’s claim that trial court lacked legal

authority to impose mandatory minimum sentence for his DUI conviction, because

Pennsylvania’s    mandatory      minimum     sentencing     statute   was    invalidated   as

unconstitutional by the decision of the United States Supreme Court in Birchfield v. North

Dakota, 136 S.Ct. 2160 (2016), implicated the legality of his sentence); see also

Commonwealth v. Spruill, 80 A.3d 453, 464 (Pa. 2013) (Saylor, J., concurring) (“Since a

conviction is the essential supporting infrastructure for a sentence, . . . ‘illegality’ with

respect to the former extends to the latter as well. The alternative is for courts to accept

as legal a sentence which is grounded upon an illegal conviction.” (citation omitted)).

       Moreover, the PCRA specifically permits the courts of our Commonwealth to grant

relief from an illegal sentence. See 42 Pa.C.S. § 9542 (“This subchapter provides for an

action by which persons . . . serving illegal sentences may obtain collateral relief.”). Thus,




                                      [J-14-2020] - 12
in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), our Court found that the

defendant’s assertion – that the trial court lacked the authority to impose his mandatory

minimum sentence because the mandatory sentencing statute under which the sentence

was imposed was rendered unconstitutional by Alleyne – should be treated as a claim

involving the legality of sentence under Barnes; as a result, it was cognizable under the

PCRA and could be raised in a timely filed PCRA petition. Inasmuch as Appellant’s claim

that the trial court lacked authority to sentence him because the statute under which he

was convicted was void ab initio is also, under Barnes, a claim involving the legality of his

sentence, it too is cognizable under the PCRA. See generally Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“legality of sentence is always subject to review within the

PCRA,” provided the PCRA’s time limits for filing a petition thereunder, or one of its

exceptions, are satisfied). 13

        However, as the Commonwealth highlights, Appellant did not include this legality

of sentence claim in his pro se PCRA petition, nor did his appointed counsel file an

amended PCRA petition presenting this issue to the PCRA court. These procedural facts,

in the Commonwealth’s view, implicate a question of waiver.

       As a general matter, under the PCRA, an issue is waived “if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in

a prior state postconviction proceeding.” 42 Pa.C.S. § 9544; Commonwealth v. Mason,

130 A.3d 601, 674 (Pa. 2015). In the case at bar, Appellant could not have raised the

issue of whether Nieman and Derhammer rendered his conviction void ab initio at trial or




13 It is undisputed that Appellant’s pro se PCRA petition was timely filed within one year
of his judgment of sentence becoming final.

                                       [J-14-2020] - 13
on direct appeal, as Nieman was not issued by our Court until five months after his

conviction was affirmed by the Superior Court (and Derhammer was issued years after

that); thus, textually, the PCRA does not require waiver on this basis.

       Appellant first raised his challenge to the legality of his sentence in his appeal to

the Superior Court from the denial of his PCRA petition – in his pro se brief – after

appointed counsel had been permitted to withdraw. In that brief, he argued that our

Court’s decisions in Neiman and Derhammer changed the law such that his “conviction

in whole and in part can not be sustained.” Appellant’s Brief in Commonwealth v.

McIntyre, 3698 EDA 2016 (Pa. Super.), at 9. For the following reasons, we conclude that,

due to the unique nature of Appellant’s legality of sentence claim – founded, as it is, on

the claim that his conviction under Section 4915 was void ab initio – we may presently

address it, even though it was first raised on appeal from the denial of PCRA relief. 14

       As our Court has previously explicated, the void ab initio doctrine is rooted in a

judicial imperative to protect individual constitutional rights, such as the right of due

process, against transgression by coordinate branches of government:

              Under this theory, a statute held unconstitutional is
              considered void in its entirety and inoperative as if it had no
              existence from the time of its enactment. The origin of this
              doctrine may lie in the early case of Marbury v. Madison[, 5
              U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)], in which Chief Justice


14  Neither Barnes nor DiMatteo directly addresses this question, given that both cases
arrived at our Court in a different procedural posture than the case at bar — Barnes
involved a direct appeal from a judgment of sentence, and DiMatteo involved an appeal
from a PCRA petition in which the legality of sentence had been raised in the PCRA
petition. Moreover, prior to both decisions, our Court had previously held in
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that, under the Teague
framework, the high Court’s ruling in Alleyne – which was the focus in Barnes and
DiMatteo – was not entitled to retroactive application to cases pending on collateral
review, and that, as a result, the defendant’s sentence in that case was not rendered
illegal by Alleyne.

                                     [J-14-2020] - 14
             Marshall wrote that “a law repugnant to the constitution is
             void.”
             Oliver P. Field, the most noted scholar on this issue has
             suggested that the void ab initio theory is premised on the
             historical American concern over excessive authority asserted
             by a tyrannical executive or legislative branch in violation of
             the rights of individuals protected by the Constitution. Field
             explains that whereas the Constitution prohibits the legislature
             and executive from overstepping their limits, the courts came
             to regard themselves as the ultimate guardians of individual
             rights. Any act that invaded these rights was to be judged
             unconstitutional and treated as though it never existed.

Glen-Gery, 907 A.2d at 1037 (quoting Erica Frohman Plave, The Phenomenon of Antique

Laws: Can a State Revive Old Abortion Laws in a New Era?, 58 Geo. Wash. L.Rev. 111

(1990)).

      Thus, in Glen-Gery, following these precepts, our Court ruled that a claim alleging

that a zoning ordinance was passed in a manner that deprived landowners of their due

process rights to notice and an opportunity to be heard could be brought outside the time

period allowed for bringing such challenges under the Municipalities Planning Code

enacted by the General Assembly. We reasoned that such a challenge could not be

dismissed as time-barred by legislative fiat, because, if the constitutional claim were

proven, the zoning ordinance would be void ab initio and, thus, judicially unenforceable.

Glen-Gery, 907 A.2d 1044-45.

      This void ab initio principle has been applied in the realm of criminal proceedings

by the United States Supreme Court in the seminal case of Ex Parte Siebold, supra. This

case established, as a fundamental principle of our system of jurisprudence, that an

unconstitutional law cannot serve as the foundation of a court’s authority to try and

imprison an individual, and, thus, criminal convictions and sentences based upon such

unconstitutional laws must not be permitted to stand. The high Court declared therein


                                    [J-14-2020] - 15
that “[a]n unconstitutional law is void, and is as no law. An offence created by it is not a

crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot

be a legal cause of imprisonment.” Ex parte Siebold, 100 U.S. at 376–77.

       Appellant’s void ab initio claim therefore implicates all phases of the criminal

proceedings against him, dating to their beginning, and seeks to have them declared null

and void, as, in his view, judicial enforcement of his incarceration under an

unconstitutionally enacted statute would result in a denial of his most basic due process

right — that of liberty. This claim does not, therefore, involve the more typical question,

such as that which our Court confronted in Washington, see supra note 14, of whether a

judicial decision declaring a species of sentence to be unconstitutional should be given

retroactive effect on collateral review. Indeed, this question does not involve retroactivity

at all, given that, as Appellant develops in his brief to our Court, his claim is, at its core,

an assertion that his conviction and resulting sentence are, and in effect always were,

illegal under Pennsylvania law. See, e.g., Fiore, 531 U.S. at 228 (where our Court’s

interpretation of a criminal statute rendered after the defendant was convicted “was the

law of Pennsylvania - as properly interpreted - at the time of [defendant’s] conviction.

[Thus] this case presents no issue of retroactivity.”); cf. Kendrick v. District Attorney of

Philadelphia County, 916 A.2d 529, 539 (Pa. 2007) (“[a] person does not run afoul of

Pennsylvania criminal law unless he violates a specific statute;” our Court’s construction

of a criminal statute as not proscribing certain conduct reflects the scope of the statute at

the time of its enactment).

       Consequently, given that this case involves an assertion of an illegal sentence due

to a void ab initio conviction, we conclude that Appellant is entitled to judicial review of his




                                       [J-14-2020] - 16
unique Derhammer-based claim, even though it was raised for the first time in his appeal

from the denial of his PCRA petition.

      Turning to the merits of Appellant’s claim, our Court in Neiman declared Megan’s

Law III, of which Section 4915 was a part, to be unconstitutionally enacted – a

determination that it was void from the date it purported to take effect. Our Court

acknowledged this fact in Derhammer, wherein we ruled that the Commonwealth was

barred from prosecuting a defendant under Section 4915 following Neiman:

              It is undisputed that a conviction based on an unconstitutional
              statute is a nullity. In [Ex Parte] Siebold the Supreme Court
              explained that an offense created by an unconstitutional law
              “is not a crime” and “[a] conviction under it . . . is illegal and
              void, and cannot be a legal cause of imprisonment.” Siebold,
              100 U.S. at 376-77. It follows that [a]ppellant’s conviction
              cannot be sustained to the extent it is based on Megan’s Law
              III as enacted in 2004.

Derhammer, 173 A.3d at 728.

      Likewise, Appellant’s conviction and sentence cannot stand, even though pre-

dating our Neiman decision, because his conviction was likewise based on Section 4915,

which, after Neiman, must be regarded as void from the time of its enactment. Accord

Commonwealth v. Wolfe, 140 A.3d 651, 661 (Pa. 2016) (“[A] sentence based on an

unconstitutional statute that is incapable of severance is void.”).        Indeed, to permit

Appellant’s conviction and sentence to stand would, as he contends, and the

Commonwealth concurs, violate principles of due process, inasmuch as there was no

validly-enacted criminal statute on which the Commonwealth could base Appellant’s

conviction.   Cf. Fiore (a criminal conviction offends due process whenever the

Commonwealth has failed to prove any element of a criminal offense beyond a




                                      [J-14-2020] - 17
reasonable doubt). Appellant was, therefore, entitled to reversal of his sentence and

discharge from his conviction.

       On this basis, we entered our per curiam order of April 1, 2020, reversing

Appellant’s judgment of sentence.

       Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy

join the opinion.




                                    [J-14-2020] - 18
