J-A07032-20

                                   2020 PA Super 111

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW MICHAEL ZENO                       :
                                               :
                       Appellant               :   No. 880 MDA 2019

                  Appeal from the Order Entered May 17, 2019
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0004524-2006

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW MICHAEL ZENO                       :
                                               :
                       Appellant               :   No. 881 MDA 2019

                  Appeal from the Order Entered May 17, 2019
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0004525-2006


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                                FILED MAY 07, 2020

       Matthew Michael Zeno appeals from the order denying his motion to bar

registration under the Sexual Offender Registration and Notification Act

(“SORNA”).1 Because Zeno was a juvenile at the time he committed the
____________________________________________


1 Sexual Offender Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-
9799.41, amended and replaced by 2018, Feb. 21, P.L. 27, No. 10, § 19,
immediately effective. Reenacted 2018, June 12, P.L. 140, No. 29, § 14,
(“SORNA II”), immediately effective. 42 Pa.C.S.A. §§ 9799.51-9799.75.
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crimes, we conclude that he is entitled to relief. We therefore reverse the order

denying the motion and remand this case to the trial court.

       In 2006, Zeno was alleged to have committed delinquent acts, when he

was 14 and 16 years old. He was charged at two separate dockets.2 His cases

were transferred to the criminal division of the Court of Common Pleas. In

September 2007, Zeno pled guilty to rape of a child, sexual assault, criminal

attempt (rape), criminal attempt (incest), and indecent assault. The trial court

sentenced him to an aggregate sentence of four to eight years’ incarceration

followed by five years’ probation, and informed him that he would be required

to register as a sex offender. Zeno did not file an appeal.

       In August 2017, the trial court found Zeno violated probation and parole,

and imposed a violation sentence of two to ten years’ incarceration. Zeno filed

notices of appeal, arguing the court abused its discretion when imposing the

sentence.

       This Court affirmed the judgment of sentence, concluding the court did

not abuse its discretion. However, we raised sua sponte the issue of “Zeno’s

sex offender registration requirements in light of Megan’s Law III being

deemed unconstitutional.” Commonwealth v. Zeno, No. 21 MDA 2018, 2018
____________________________________________


2 At docket number CP-36-CR-0004524-2006, Zeno was charged with rape of
a child, 18 Pa.C.S.A. § 3121(c), and sexual assault, id. at § 3124.1. At docket
CP-36-CR-0004525-2006, Zeno was charged with criminal attempt of rape,
id. at § 901(a), criminal attempt of incest, id. at § 4302, and indecent assault,
id. at § 3126(a)(1).




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WL 5629647, at *5 (Pa.Super. filed Oct. 31, 2018).3 We concluded that Zeno

had been advised of his registration requirements under Megan’s Law III and

“remand[ed] to the trial court for the sole purpose of determining Zeno’s

registration requirements.” Id.

       Following remand, the trial court issued an order directing counsel to

file “an Answer as to how SORNA and its amendments shall effect the required

re-sentencing of [Zeno].” Order, filed Dec. 4, 2018. The Commonwealth

argued Zeno was required to register for his lifetime under Subchapter I of

SORNA II, also known as Act 29 of 2018. Subchapter I “addresses sexual

offenders who committed an offense on or after April 22, 1996, but before

December 20, 2012.” Commonwealth v. Alston, 212 A.3d 526, 529

(Pa.Super. 2009); see 42 Pa.C.S.A. §§ 9799.51-9799.75. Zeno filed a motion

to bar imposition of registration pursuant to SORNA. He argued that because

____________________________________________


3 In Zeno, we noted that the Pennsylvania Supreme Court ruled Megan’s Law
III unconstitutional because it violated the Single Subject Rule of Article III,
Section 3, of the Pennsylvania Constitution. 2018 WL 5629647, at *5 n.9
(citing Commonwealth v. Neiman, 84 A.3d 603, 615 (Pa. 2013)). SORNA
went into effect on December 20, 2012, and provided for the “Expiration of
Megan’s Law III at that time.” Zeno, 2018 WL 5629647, at *5 n.9 (citing
Commonwealth v. Derhammer, 173 A.3d 723, 725 (Pa. 2017)). The
Supreme Court stayed its decision in Neiman for 90 days. Id. Within the 90
days, the General Assembly modified SORNA “to clarify that persons who were
required to register with the state police at any time before SORNA's effective
date, and whose registration period had not expired, were still obligated to
register with the state police as provided in Section 9799.15. Derhammer,
173 A.3d at 725. The Pennsylvania Supreme Court then held that retroactive
application of SORNA to those who committed their crime prior to SORNA’s
effective date was unconstitutional. Commonwealth v. Muniz, 164 A.3d
1189, 1218 (Pa. 2017). SORNA has since been amended and replaced by
SORNA II.

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he was a juvenile at the time he committed the offenses, requiring him to

register as a sex offender would constitute cruel and unusual punishment, and

violate the due process and equal protection clauses of the United States and

Pennsylvania Constitutions.

      In April 2019, the trial court denied the motion to bar imposition of

registration. Counsel filed timely notices of appeal, one at each docket. The

parties filed with this Court a stipulation to consolidate the appeals, and we

have done so.

      Zeno raises the following issue on appeal:

         Did the trial court err in denying Mr. Zeno’s Motion to Bar
         Imposition of Registration where Mr. Zeno should not have
         been required to register as a sex offender for offenses
         which he committed at ages 14 and 16, and the requirement
         that he register constitutes cruel and unusual punishment,
         and is a violation of the due process provisions of the United
         States and Pennsylvania Constitutions?

Zeno’s Br. at 4.

      In its opinion finding Zeno was not entitled to relief, the trial court

concluded that Zeno’s motion was an untimely PCRA petition, and that it

therefore lacked jurisdiction to address the motion. We disagree. SORNA

registration was connected to the 2007 judgment of sentence. However, the

court sentenced Zeno for a violation of probation and parole and, in October

2018, we ordered that the trial court address Zeno’s sex offender registration

requirements. Because we required the trial court to determine Zeno’s

registration requirements, we conclude that his motion requesting relief from

such requirements was not an untimely PCRA petition. Rather, it was a motion

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J-A07032-20



in response to our remand instructions and the trial court’s order requesting

that the parties file an “[a]nswer as to how SORNA and its amendments shall

effect the required re-sentencing of this Defendant.” Order, filed Dec. 4, 2018.

      We next address Zeno’s issue. He argues that, because he was a

juvenile when he committed the offense, requiring him to register under

SORNA violated the cruel and unusual punishment and due process clauses of

the Pennsylvania and United States Constitutions. The Commonwealth

concedes that Zeno is entitled to relief, following this Court’s decision in

Commonwealth v Haines, 222 A.3d 756, 759 (Pa.Super. 2019). We agree.

      In In re J.B., 107 A.3d 1 (Pa. 2014), the Pennsylvania Supreme Court

concluded that “SORNA’s registration requirements improperly brand all

juvenile offender’s reputations with an indelible mark of a dangerous recidivist

even though the irrebuttable presumption linking adjudication of specified

offenses with a high likelihood of recidivating is not ‘universally true’” Id. at

19. It concluded “the application of SORNA’s current lifetime registration

requirements upon adjudication of specified offenses violates juvenile

offenders’ due process rights by utilizing an irrebuttable presumption.” Id. at

19-20.

      In Haines, this Court concluded that the “J.B. court’s holding should

apply with equal weight to juvenile adjudications as well as to defendants

convicted as adults for crimes committed as juveniles.” 222 A.3d at 759.

Therefore, following Haines, a person convicted in criminal court for acts

committed while a juvenile cannot be required to register under SORNA.

                                      -5-
J-A07032-20



      Here, because Zeno was a juvenile at the time he committed the crimes,

he cannot be required to register under SORNA. We accordingly remand for

the trial court to vacate the part of the sentence requiring Zeno to register as

a sex offender.

      Order reversed. Case remanded. Jurisdiction relinquished.



 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2020




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