J-S54020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TOMAS JAVIER QUINTANILLA-               :
 PINEDA                                  :
                                         :    No. 478 MDA 2019
                    Appellant

             Appeal from the Order Entered February 22, 2019
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0004448-2016


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 21, 2020

     Tomas Javier Quintanilla-Pineda appeals from the order, entered in the

Court of Common Pleas of York County, denying his motion to bar sex offender

registration on resentencing. After our review, we affirm.

     On December 17, 2011, West York Police responded to a call regarding

a sexual assault.   The victim identified Quintanilla-Pineda as the assailant.

Quintanilla-Pineda was charged with one count each of rape, involuntary

deviate sexual intercourse by forcible compulsion (IDSI), aggravated assault,

robbery, simple assault and theft by unlawful taking. Quintanilla-Pineda

absconded before he was apprehended; he was ultimately arrested on April

16, 2016.

     Quintanilla-Pineda entered a plea of no contest, and the court sentenced

him on February 27, 2017 to thirteen to twenty-six years’ imprisonment.
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Pursuant to Pennsylvania’s Sexual Offender Registration and Notification Act

(SORNA), 42 Pa.C.S. §§ 9799.51 et seq., rape and IDSI were enumerated as

Tier III offenses at the time Quintanilla-Pineda entered his plea.    See 42

Pa.C.S. § 9799.14(d); 42 Pa.C.S. § 9799.15(a)(3). At sentencing, Quintanilla-

Pineda signed a sexual offender registration form, certifying that he

understood his registration requirements. The Sex Offender Assessment

Board (SOAB) found that Quintanilla-Pineda was not a sexually violent

predator (SVP).

       Quintanilla-Pineda filed post-sentence motions, which were denied, and

a timely direct appeal.        While his appeal was pending, the Pennsylvania

Supreme Court issued its decision in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017). In light of Muniz, this Court vacated the requirement that

Quintanilla-Pineda comply with SORNA, as amended by Acts 10 and 29 of

2018,1 affirmed his judgment of sentence in all other respects, and remanded

for the sole purpose of having the trial court determine whether Quintanilla-

Pineda was subject to any registration requirements. See Commonwealth

v. Quintanilla-Pineda, 736 MDA 2017 (Pa. Super. March 29, 2018)

(unpublished memorandum).

       On May 22, 2018, Quintanilla-Pineda filed a motion to bar sex offender

registration on resentencing. The Pennsylvania State Police (PSP) and the

Pennsylvania Office of the Attorney General filed a motion to intervene. The
____________________________________________


1See 42 Pa.C.S. §§ 9799.10-9799.41 (amended by Act of Feb. 21 2018, P.L.
27, No. 10 and Act of June 12, 2018, P.L. 1952, No. 29) (SORNA II).

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J-S54020-19



court granted this motion to intervene and held a hearing on October 4, 2018.

In light of the fact that the Supreme Court of Pennsylvania had granted

allowance of appeal in Commonwealth v. Lacombe, 35 MAP 2018 (Pa.

2018),2 the trial court entered an order staying its decision in this case.

Quintanilla-Pineda opposed the stay.

       The trial court issued a Pa.R.A.P. 1925(a) opinion, addressing the

constitutionality of Act 103 in light of Muniz. The court conducted a


____________________________________________


2 The Pennsylvania Supreme Court granted review in its original jurisdiction
to determine the issue of whether Acts 10 and 29, see infra n.3, are
constitutional.

3 SORNA II resulted from several amendments and additions to its precursor,
SORNA. See 42 Pa.C.S. §§ 9799.10-9799.41 (amended by Act of Feb. 21
2018, P.L. 27, No. 10 and Act of June 12, 2018, P.L. 1952, No. 29. Act 10
(now Act 29) (2018, Feb. 21, P.L. 27, No. 10, § 6, imd. effective). Essentially,
Act 10 sought to eliminate “punitive” effects and return the law back to
Megan’s Law II, adding a mechanism for removal from registry after 25 years.
Act 10 structured two different tracks for sex offenders:

       Subchapter H, which is nearly identical to SORNA and applies to
       offenses committed after Dec. 20, 2012 (date SORNA was
       effective), provides an offender may petition for removal from
       registry and allows some reporting requirements to be completed
       remotely.

       Subchapter I, (applicable here, as Quintanilla-Pineda committed
       offenses on December 17, 2011), regulates those persons with
       offenses that occurred prior to SORNA (Dec. 20, 2012), applies to
       offenses committed between April 22, 1996 and December 20,
       2012, and requires offenders to register for periods of either 10
       years or life (SVPs for life). It reduced the length of time for which
       many offenders must register from 15 or 25 years to 10 years,
       and eliminated some offenses from registration. It also provides



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comprehensive review of the factors in Kennedy v. Mendoza-Martinez, 372

U.S. 144 (1963),4 and concluded that Subchapter I5 of Act 10 is not punitive

in either intent or effect and, therefore, did not violate the ex post facto clause

of either the United States Constitution or the Pennsylvania Constitution. The

court denied Quintanilla-Pineda’s motion to bar sex offender registration and

ordered him to register in accordance with the requirements of Act 10.

        In this appeal, Quintanilla-Pineda raises one issue: “Is Subchapter I of

Act 10 of 2018 punitive and incapable of retroactive application, thus leaving

Tomas Javier Quintanilla-Pineda with no duty to register as a sex offender?”

Appellant’s Brief, at 4.

        Quintanilla-Pineda argues that Subchapter I of Act is a “punitive

registration scheme under the factors set forth in Kennedy v. Mendoza -
____________________________________________


        for a mechanism for possible removal of lifetime registration after
        25 years.
4   The Mendoza-Martinez factors are as follows:

         (1) whether the sanction involves an affirmative disability or
        restraint; (2) whether it has historically been regarded as a
        punishment; (3) whether it comes into play only on a finding of
        scienter; (4) whether its operation will promote the traditional
        aims of punishment, that is, retribution and deterrence; (5)
        whether the behavior to which it applies is already a crime; (6)
        whether an alternative purpose to which it may rationally be
        connected is assignable for it; and (7) whether it appears
        excessive in relation to the alternative purpose assigned.


Mendoza-Martinez, 372 U.S. at 146.

5  42 Pa.C.S. §§ 9799.51-9799.75.              Subchapter I is entitled “Continued
Registration of Sex Offenders.”

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J-S54020-19



Martinez.” Appellant’s Brief, at 13. As such, Quintanilla-Pineda contends

that, under the reasoning of Muniz, retroactive imposition violates the ex post

facto clauses of the United States and Pennsylvania Constitutions. Appellant’s

Brief, at 14.

      On   July   21,   2020,   the   Pennsylvania    Supreme    Court   decided

Commonwealth v. Lacombe, --- A.3d ----, 2020 WL 4148262 (Pa. July 21,

2020), holding “Subchapter I does not constitute criminal punishment, and

the ex post facto claims . . . necessarily fail.”   Id., slip op. at 35. As such,

Quintanilla-Pineda’s claim necessarily fails.

      Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020




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