J-S36013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD WILLIAM NEETZ                       :
                                               :
                       Appellant               :   No. 1606 MDA 2018

        Appeal from the Judgment of Sentence Entered August 15, 2018
                In the Court of Common Pleas of Clinton County
             Criminal Division at No(s): CP-18-CR-0000233-2015


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY PANELLA, P.J.:                              FILED JULY 19, 2019

        Ronald William Neetz appeals from the judgment of sentence entered

after a jury found him guilty of failing to comply with sexual offender

registration requirements under the Sex Offender Registration and Notification

Act, 42 Pa.C.S.A. §§ 9799.10-9799.41 (“SORNA”). As we conclude Neetz’s

sentence is illegal in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), we reverse his conviction and vacate the judgment of sentence.

        On December 17, 2015, Neetz was convicted of failure to comply with

registration requirements. The trial court sentenced him to 3 to 6 years’

imprisonment. After trial counsel filed an untimely Rule 1925(b) statement, a

panel of this court found all of Neetz’s issues on appeal waived and affirmed



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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his judgment of sentence. See Commonwealth v. Neetz, 752 MDA 2016

(filed May 30, 2017) (unpublished memorandum).

      On December 1, 2017, Neetz filed a pro se petition for relief pursuant

to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9542-9546 (“PCRA”).

Through his petition, Neetz claimed trial counsel’s ineffectiveness for failing to

preserve his issues in a timely Rule 1925(b) statement. Additionally, Neetz

claimed his sentence was unconstitutional because it relied upon mandatory

minimum sentences. Following a hearing on August 15, 2018, the PCRA court

agreed that Neetz’s sentence was unconstitutional and resentenced him to 24

to 72 months’ imprisonment. Further, the court reinstated Neetz’s direct

appeal rights. This timely appeal follows.

      On appeal, Neetz contends his conviction was unconstitutional because

it relied upon the retroactive application of SORNA in violation of our Supreme

Court’s holding in Muniz. Conversely, both the Commonwealth and the PCRA

court argue that Neetz has waived this challenge on appeal by failing to raise

it before the lower court. See Trial Court Opinion, 11/16/16, at 2;

Commonwealth’s Brief, at 7-8.

      Generally, issues not raised before the trial court are waived for

appellate review. See Pa.R.A.P. 302(a). However, “[a] challenge to the

legality of a particular sentence may be reviewed by any court on direct

appeal; it need not be preserved in the lower courts to be reviewable and may

even be raised by an appellate court sua sponte.” Commonwealth v. Batts,

163 A.3d 410, 434 (Pa. 2017) (citation omitted). The retroactive application

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of SORNA has been held to implicate the legality of a sentence. See

Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019).

Therefore, because Neetz’s Muniz claim rests on the impermissible retroactive

application of SORNA, we may review this issue on appeal.

       Sometime before 2012,1 Neetz was convicted of a crime that required

him to register as a sex offender for the rest of his life pursuant to Megan’s

Law III. Relevant to the instant appeal, the Pennsylvania legislature replaced

Megan’s Law with SORNA, effective December 20, 2012. Among other

modifications, SORNA effectively increased the registration requirements of

many offenders subject to its rules.

       Subsequently, our Supreme Court determined that SORNA’s registration

requirements      impermissibly       constituted   de   facto   punishment.   See

____________________________________________


1 Strangely, the record does not contain the date of Neetz’s initial conviction.
As a result, Neetz filed an application for remand for further proceedings in
the PCRA court. See Application for Remand, 3/11/19. The PCRA court and
Commonwealth supported this motion. See Trial Court Opinion, 11/16/16, at
3; Commonwealth’s Answer to Application for Remand, 3/19/19, at ¶ 2.
However, a remand to include this information in the record is unnecessary.
As discussed in more detail infra, Muniz held that the retroactive application
of SORNA’s registration requirements is unconstitutional. See 164 A.3d at
1218. At Neetz’s trial, both the Commonwealth and defense stipulated that
Neetz was convicted and ordered to register pursuant to Megan’s Law. See
N.T., Jury Trial, 12/17/15, at 27. Further, a review of the publicly available
criminal docket sheets indicates that Neetz was sentenced in 2007 for conduct
occurring                    in                  2006.                      See
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=
CP-13-CR-0000654-2006&dnh=TUkhPbIljb%2fug%2bhefCEHLg%3d%3d,
retrieved 6/27/19. Under these circumstances, any application of SORNA’s
registration requirements on Neetz constitutes a retroactive application of
SORNA. Because our decision resolves Neetz’s appeal, we deny Neetz’s
“Application for Remand” as moot.

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Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017). Additionally,

the Court held that retroactive application of SORNA’s registration scheme

violated the ex post facto clause of the United States Constitution. See id.

      Neetz was convicted of failure to comply with registration requirements

on December 17, 2015. Specifically, the trial court found that Neetz’s failure

to register his change of address within three days of moving violated 18

Pa.C.S.A. § 4915.1(a)(2). Therefore, Neetz’s conviction stemmed from his

violation of SORNA’s registration requirements.

      However, SORNA’s requirements cannot be lawfully imposed on Neetz

after Muniz. See Commonwealth v. Wood, ___ A.3d ___, 2019 WL

1595871, *6 (Pa. Super., filed April 15, 2019) (en banc) (holding “application

of SORNA to sexual offenders for offenses committed before its effective date

violates the ex post facto clauses of the United States and Pennsylvania

Constitution[s]”); see also Commonwealth v. Fernandez, 195 A.3d 299,

310 (Pa. Super. 2018) (en banc) (“Following Muniz, SORNA’s sexual offender

requirements may not be imposed retroactively on any defendant”). Further,

pursuant to Commonwealth v. Derhammer, 173 A.3d 723, 729 (Pa. 2017),

the Commonwealth could not convict Neetz of failing to register under any

version of Megan’s Law. Finally, we conclude that Neetz could not have been

convicted of failing to comply with 42 Pa.C.S.A. § 9799.55 as that statute was

not passed until February 21, 2018 – more than two years after his trial.

Accordingly, we reverse his conviction for failing to comply with sexual

offender registration requirements.

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     Conviction reversed. Judgment of sentence vacated. Application for

remand denied as moot.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2019




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