COMMONWEALTH OF PENNSYLVANIA v. DONALD A. HAGAN
No. 872 WDA 2022, No. 928 WDA 2022
IN THE SUPERIOR COURT OF PENNSYLVANIA
December 6, 2023
2023 PA Super 256
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
J-S22015-23
Appeal from the PCRA Order Entered June 30, 2022 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000116-2009
FILED: December 6, 2023
In this consolidated appeal,1 Appellant, Donald A. Hagan, appeals from the June 30, 2022 order entered in the Court of Common Pleas of Venango County that dismissed a filing originally styled as a petition for writ of habeas corpus. The PCRA court treated Appellant‘s submission as a petition filed pursuant to the Post Conviction Relief Act (“PCRA“),
The record demonstrates that, on November 13, 1992, Appellant was convicted of involuntary deviate sexual intercourse (“IDSI“).3 Appellant was sentenced to 7 to 14 years’ incarceration for his conviction. Trial Court Opinion, 7/1/16, at 3. Appellant was not subject to registration requirements at the time of his conviction and sentencing but, with the subsequent passage of Megan‘s Law I in 1996, he became subject to registration with the Pennsylvania State Police as a sexual offender.4 See
While Appellant remained incarcerated for his 1992 IDSI conviction, Pennsylvania‘s sexual offender registration laws continued to evolve. In Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999), cert. denied, 528 U.S. 1077 (2000) (”Williams I“), our Supreme Court invalidated the SVP provisions of Megan‘s Law I after determining that those procedures violated procedural due process. Williams, 733 A.2d at 608. This determination arose from our Supreme Court‘s conclusion that a finding of SVP status under Megan‘s Law I entailed a separate factual determination that ultimately increased a sexual offender‘s maximum term of confinement above the statutory maximum for the underlying offense. Id. at 603. After
As a result of unrelated events in January 2009, police discovered that Appellant, as a sexual offender subject to lifetime registration, failed to register his then-current residential address.7 Accordingly, the Commonwealth charged Appellant, at trial court docket CP-61-CR-0000116-2009 (“CR-116-2009“), with failure to comply with registration of sexual offender requirements,
This Court affirmed Appellant‘s judgment of sentence at CR-116-2009 on October 21, 2010, and Appellant did not seek discretionary review with our Supreme Court. Commonwealth v. Hagan, 15 A.3d 537, 2010 WL 5697370 (Pa. Super. filed Oct. 21, 2010) (unpublished memorandum). As such, Appellant‘s judgment of sentence
On April 1, 2015, Appellant, while incarcerated for his 2009 conviction for failure to register, was charged at trial court docket CP-61-CR-0000242-2015 (“CR-242-2015“) with rape - forcible compulsion, involuntary deviate sexual intercourse - threat of forcible compulsion, and sexual assault.9 On October 19, 2015, Appellant pled guilty, pursuant to a negotiated plea agreement, to one count each of indecent assault - forcible compulsion and indecent assault - threat of forcible compulsion.10 On July 22, 2016, the trial court sentenced Appellant to 16 to 60 months’ incarceration on each of the two aforementioned convictions. The periods of incarceration were set to run concurrently to each other, and set to run consecutively to all sentences previously imposed on Appellant. On August 4, 2016, the trial court, having designated Appellant an SVP at CR-242-2015,11 notified Appellant that, as a result of his convictions, he was subject to lifetime registration with the Pennsylvania State Police pursuant Section 9799.15(a)(6) of SORNA.12 See
After the trial court imposed its sentence at CR-116-2009 on July 28, 2009, but before Appellant‘s sentence was imposed at CR-242-2015 on July 22, 2016, our Supreme Court, in Neiman, supra, invalidated Megan‘s Law III, including Section 4915(a)(1) (the provision of the Crimes Code used to prosecute Appellant‘s failure to comply with registration requirements at CR-116-2009), because passage of Act 152 violated the single subject rule of the Pennsylvania Constitution.13 Neiman, 84 A.3d at 605, 613, 615-616. Thereafter, in
On December 20, 2021, Appellant filed pro se at CR-116-2009 and CR-242-2015 a petition for writ of habeas corpus.15 Counsel was appointed to represent Appellant on January 7, 2022, and subsequently filed an amended petition for writ of habeas corpus on May 6, 2022. The amended petition alleged that Appellant was entitled to relief under Neiman, Derhammer, and McIntyre. The PCRA court entertained argument on Appellant‘s petition for writ of habeas corpus on June 30, 2022, and, thereupon, concluded that Appellant‘s December 2021 submission should be treated as a petition for collateral relief under the PCRA. That same day, the PCRA court denied Appellant‘s December 2021 filing.16 PCRA Court Order, 6/30/22. This appeal followed.17
Appellant raises the following issues for our review:
-
Whether [Appellant‘s petition for] writ of habeas corpus[] is an allowable procedural mechanism[] to challenge[] the sexual offender registration statute[?] - Whether [Appellant‘s] conviction[] in 2009 for failure to register violate[s] the ex post facto laws of the United States and Pennsylvania constitutions and this being the case, the Commonwealth cannot hold [Appellant] criminally liable for violating Section [] 4915(a)(1) of the Crimes Code[?]
Appellant‘s Brief at 4 (extraneous capitalization omitted).18
Appellant‘s first issue challenges the PCRA court‘s treatment of his petition for writ of habeas corpus as a PCRA petition. Id. at 8-14.19 Appellant asserts that, pursuant to our Supreme Court‘s decision in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), he “may challenge the application of a sexual offender registration statute outside the framework of the PCRA.” Id. at 8, citing Lacombe, 234 A.3d at 618. Appellant contends that his petition for writ of habeas corpus is “the proper vehicle” to raise a constitutional challenge to the sentences imposed at CR-116-2009 and CR-242-2015 and, therefore, his December 2021 filing is not subject to the PCRA‘s jurisdictional limitations or the requirement that he currently be incarcerated to be eligible for relief.20 Appellant‘s Brief at 9.
In so arguing, we find Appellant raises a challenge to the PCRA court‘s determination that it lacked jurisdiction at CR-116-2009 and CR-242-2015 to grant Appellant‘s request for relief. Because jurisdiction is purely a question of law, our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Merced, 265 A.3d 786, 789 (Pa. Super. 2021).
CR-116-2009
It is well-established that “the PCRA subsumes the remedy of habeas corpus with respect to remedies offered under the PCRA[.]” Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998); see also
Recently, however, our Supreme Court held that a petition filed pursuant to the PCRA was not the “exclusive method for challenging sexual offender registration statutes[.]” Lacombe, 234 A.3d at 618. In other words, challenges to the sexual offender registration statutes asserting, for example, that the registration statutes violate the constitutional prohibition against ex post facto laws, may be raised in, inter alia, a petition for writ of habeas corpus.21
In the case sub judice, Appellant presents his challenge to the sentence imposed at CR-116-2009 as a challenge to the sexual offender registration statute commonly referred to as SORNA.22 Appellant‘s Brief at 14 (stating, “because [Appellant] could not be subject to SORNA‘s registration requirements, the Commonwealth could not hold [Appellant] criminally liable for violating [Section] 4915(a)(1) of the Crimes Code“). Specifically, Appellant contends,
[he committed and] was convicted of [IDSI] in 1992. [At that time,] there was no sexual offender[] registration law in existence. [Appellant] was not subject at that time to any reporting requirements[.] In 1995, three years after [Appellant] was convicted of IDSI, Pennsylvania
enacted Megan‘s Law [I], and [Appellant] was then required to register for 10 years [upon completing his term of incarceration.] In 2012, [Appellant] was required to register for life vis[-]a[-]vis SORNA. The triggering offense occurred in 1992. SORNA is being applied to [Appellant] retroactively. SORNA is punitive. [Appellant] was convicted of IDSI in 1992. [Appellant] faced no punishment beyond his imposed [term of incarceration.] Thus, because [Appellant] could not be subject to SORNA‘s registration requirements, the
Commonwealth v. Kizak, 148 A.3d 854, 856-857 (Pa. Super. 2016) (original brackets omitted), overruled on other grounds by Commonwealth v. Lippincott, 208 A.3d 143 (Pa. Super. 2019) (en banc).
Commonwealth could not hold [Appellant] criminally liable for violating [Section] 4915(a)(1) of the Crimes Code.
Id. at 14. In so arguing, Appellant attempts to characterize his petition for writ of habeas corpus as a challenge to retroactive application of SORNA, which falls within the purview of Lacombe and which escapes PCRA jurisdictional requirements. We find Appellant‘s reliance on Lacombe to be misplaced.
We begin by reiterating that Appellant‘s 2009 conviction at CR-116-2009 was for failure to register as a sexual offender under Section 4915(a)(1) of the Crimes Code. By 2009, and specifically by January 2009, when Appellant was arrested and charged with failure to register under Section 4915(a)(1), Appellant‘s lifetime registration requirement based upon his 1992 IDSI conviction was fixed by Megan‘s Law III, not SORNA. See
registration requirement attached to Appellant‘s sentence at CR-116-2009 under Megan‘s Law III or later under SORNA, when SORNA became effective on December 20, 2012.
As noted supra, in Lacombe, our Supreme Court declined “to find the PCRA, or any other procedural mechanism, is the exclusive method for challenging sexual offender registration statutes[.]” Lacombe, 234 A.3d at 618. In so finding, our Supreme Court recognized the well-established requirement that a PCRA petition, in order to be timely, must be filed within one year of the judgment of sentence becoming final. Id. at 617, citing
The decision announced in Lacombe offered registrants an opportunity to challenge current or future registration requirements through a procedural mechanism other than a PCRA petition when the registrant has fulfilled his or her sentence, has been released from incarceration, and the registration requirements have begun. Common procedural devices used to challenge punitive registration schemes outside the scope of the PCRA include: (1) petitions to enjoin the Pennsylvania State Police from enforcing registration requirements; (2) petitions to terminate registration requirements; and, (3) petitions to enforce negotiated plea bargain agreements. Appellant‘s instant petition for writ of habeas corpus, which targets the validity of his past conviction and sentence at CR-116-2009, is not exclusively directed at challenging a current or future registration obligation but it also is not expressly excluded by Lacombe.
We also cannot overlook, however, the fact that Appellant‘s conviction at CR-116-2009 arose purely from his failure to register pursuant to the lifetime registration obligation imposed under Megan‘s Law III.24 As such, in a practical sense, Appellant‘s claim challenges his lifetime registration obligations imposed by Megan‘s Law III. In support of his claim that his lifetime registration obligations violate ex post facto laws, Appellant relies upon our Supreme Court‘s decision in Santana, supra.25 Appellant‘s Brief at 11-14.
In Santana, Santana, as a result of his 1983 conviction of rape, which was committed while he resided in New York State, became subject to SORNA‘s lifetime registration when he moved to Pennsylvania in 2015.26
Santana, 266 A.3d at 530-531. During his “check-ins” with the Pennsylvania State Police, as required under SORNA,
Muniz, Santana filed a motion to withdraw his guilty plea, arguing that “applying SORNA retroactively to his 1983 New York offense constituted an ex post facto violation[.]” Id. at 531-532. The trial court denied Santana‘s motion, and an en banc panel of this Court reversed that decision. Commonwealth v. Santana, 241 A.3d 660 (Pa. Super. 2020) (en banc).
In affirming the en banc decision of this Court, our Supreme Court explained that “[w]hen applied retroactively, sexual offender registration laws implicate the third Calder category of retroactive provisions.”29 Santana, 266 A.3d at 537. The Santana Court explained that
An ex post facto analysis concerning the third Calder category of laws distills to the following questions. First, a court must ask when the initial offense was committed. Second, the court must ask whether the challenged law was enacted after the occurrence of the triggering offense and was then applied retroactively. If so, the final question is whether that retroactive law is punitive or
Santana, 266 A.3d at 537. The Santana Court found that in 2015, when Santana relocated to Pennsylvania, the SORNA registration requirements to which he was subjected were retroactively applied to his 1983 rape conviction.30 Santana, 266 A.3d at 538. Having previously ruled in Muniz that SORNA‘s registration requirements were punitive, the Santana Court determined that Santana was similarly situated to Muniz in that SORNA‘s registration requirements were imposed retroactively to his 1983 rape conviction.31 Id. at 539. As such, the Santana Court held that the punitive registration requirements of SORNA were a constitutionally infirm ex post facto law as they applied to Santana‘s case. Id.
In Santana, our Supreme Court held that a challenge to the retroactive application of SORNA‘s punitive registration scheme can be raised and adjudicated in the context of a failure to register prosecution. As discussed supra, Santana - who failed to provide accurate registration information in 2015 - was subject to unlawful retroactive application of SORNA‘s punitive registration requirements, owing to a 1983 rape conviction. In the case sub judice, Appellant - who failed to register his new residential address in January 2009 - was retroactively subjected to registration requirements under Megan‘s Law III (not SORNA) because of his 1992 IDSI conviction.
Although the registration requirements of Megan‘s Law III were retroactively applied to Appellant‘s 1992 IDSI conviction, key distinctions differentiate Appellant‘s case from Santana. Unlike the SORNA registration requirements considered in Santana, our Supreme Court has never declared the registration requirements under Megan‘s Law III to be punitive. Rather, our Supreme Court in Neiman, supra, invalidated Megan‘s Law III, which included Section 4915, because the method by which Megan‘s Law III and Section 4915 were enacted was unconstitutional in that Act 152, which contained amendments to deficiency judgment procedures, asbestos statutes of limitations, county police jurisdiction, Megan‘s Law II, and Section 4915, violated the single subject rule under
In the case sub judice, Appellant has not undertaken an analysis of the Mendoza-Martinez two-part test to support, or even put forth a claim, that the registration requirements of Megan‘s Law III were punitive. See Appellant‘s Brief at 8-15. We decline to undertake such an analysis on Appellant‘s behalf.
Rather, Appellant simply asserts that SORNA is punitive and being retroactively applied. Id. at 14 (stating, “SORNA is being applied to [Appellant] retroactively. SORNA is punitive.“). This unsupported assertion is unavailng, as retroactive application of SORNA did not, and could not, occur at the time of Appellant‘s 2009 conviction for failure to register.
In sum, we decline Appellant‘s invitation to read Lacombe as a vehicle allowing him to challenge his 2009 conviction and sentence outside the PCRA and its restrictive jurisdictional and eligibility requirements. Our Supreme Court‘s decision in Lacombe provided a means by which registrants, disadvantaged by the jurisdictional and eligibility requirements of the PCRA, were permitted to challenge the application of punitive sexual offender registration requirements more than one year after their judgments of sentence became final or after they fulfilled their terms of incarceration. Appellant has not demonstrated that his 2009 conviction for failure to register resulted from an unlawful, retroactive application of a punitive sexual offender registration scheme. Moreover, no registration requirement attached to Appellant‘s 2009 conviction. Hence, Lacombe does not allow Appellant to challenge his conviction and sentence at CR-116-2009 outside the context of the PCRA. Therefore, we discern no error in the PCRA court‘s decision to review Appellant‘s petition under the PCRA.
We now consider whether the PCRA court correctly reviewed Appellant‘s challenges at CR-116-2009 under the PCRA. For the reasons that follow, we conclude that it did.
As we stated supra, Appellant asserted that jurisdiction over his claims was proper under Lacombe and that his submission was not subject to the strictures of the PCRA. Specifically, Appellant maintained in his pro se petition for writ of habeas corpus that his sentence at CR-116-2009 was illegal because Section 4915 was deemed unconstitutional by our Supreme Court in Neiman, supra, as affirmed by Derhammer, supra. Because his sentence at CR-116-2009 was illegal, Appellant contends the sentence imposed at CR-242-2015, which was set to run consecutively to the sentence Appellant received at CR-116-2009, should have commenced on July 22, 2016, the sentencing date at CR-242-2015, and that the time Appellant served as part of the sentence at CR-116-2009 should be credited towards his sentence at CR-242-2015. When his sentences are viewed in this light, Appellant asserts he
Appellant‘s argument, and the underlying facts, closely align with the circumstances addressed by our Supreme Court in McIntyre, supra. In McIntyre, McIntyre was convicted of indecent assault in 2001, and upon his release from prison in 2003, he was required, as a sexual offender, to register with the Pennsylvania State Police for a period of 10 years. McIntyre, 232 A.3d at 611. In April 2012, McIntyre was convicted of violating Section 4915 based upon his failure to fulfill his mandatory registration requirements as a sexual offender. Id. As a result of his conviction of Section 4915, McIntyre was sentenced to 5 to 10 years’ incarceration. Id. This Court affirmed Appellant‘s judgment of sentence on July 16, 2013, several months before our Supreme Court‘s decision in Neiman, supra. See Commonwealth v. McIntyre, 82 A.3d 1006, 2013 WL 6704859 (Pa. Super. filed Jul. 16, 2013) (unpublished memorandum).
McIntyre filed a timely PCRA petition, which the PCRA court subsequently dismissed. McIntyre, 232 A.3d at 612, 617 n.13. On appeal before this Court, McIntyre asserted for the first time that pursuant to our Supreme Court‘s decision in Derhammer, which affirmed Neiman, the Commonwealth lacked authority to prosecute him for violating Section 4915 after Megan‘s Law III, which included Section 4915, was struck down by our Supreme Court in Neiman. Id. at 612. This Court affirmed the order dismissing McIntyre‘s PCRA petition, finding Derhammer distinguishable because McIntyre‘s judgment of sentence became final before the decision in Neiman was handed down and McIntyre did not assert that Neiman applied retroactively. Id.; see also Commonwealth v. McIntyre, 2018 WL 6598422, at *2 (Pa. Super. filed Dec. 17, 2018) (unpublished memorandum).
On discretionary appeal, our Supreme Court held that McIntyre‘s claim - that he was “entitled to relief because our [Supreme] Court‘s decision in Neiman ... rendered Section 4915 void ab initio, and his conviction (and sentence) based thereon invalid - implicated the legality of his sentence and, as such, was a claim cognizable under the PCRA. McIntyre, 232 A.3d at 616-617. The McIntyre Court also noted that, “[i]nasmuch as [McIntyre‘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[] a claim involving the legality of his sentence, [] it too is cognizable under the PCRA.” Id. at 617 (stating that, “legality of sentence is always subject to review within the PCRA, provided the PCRA time limits for filing a petition thereunder, or one of its exceptions, are satisfied” (original quotation marks omitted; emphasis added)). Our Supreme Court, having found McIntyre‘s PCRA petition was timely filed (and that McIntyre remained eligible for collateral relief under the PCRA), reversed the order dismissing his petition and reversed McIntyre‘s judgment of sentence. Id. at 610-611. In doing so, the McIntyre Court, relying upon a well-established fundamental principle of our system of jurisprudence, stated,
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 [H]igh Court declared therein that an 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.
Id. at 618 (original brackets and quotation marks omitted), citing Ex Parte Siebold, 100 U.S. 371, 376-377 (1879).
In the case sub judice, Appellant argues pro se that the trial court lacked authority to convict him and impose its sentence at CR-116-2009. He concludes, therefore, that his sentence is illegal. As stated, our Supreme Court has held that such a claim raises a challenge to the legality of Appellant‘s sentence, a claim cognizable under the PCRA. McIntyre, 232 A.3d at 616-617; see also
CR-242-2015
At CR-242-2015, Appellant pled guilty to one count each of indecent assault - forcible compulsion and indecent assault - threat of forcible compulsion on October 29, 2015. Appellant‘s convictions stemmed from his sexual assault of his son between September 2006, and September 2007. As discussed supra, Appellant‘s aggregate sentence of 16 to 60 months’ incarceration was set to run consecutively to the sentence he was serving at CR-116-2009. After sentencing Appellant on July 22, 2016, the trial court designated Appellant an SVP on August 4, 2016, and notified Appellant that pursuant to
At the core of Appellant‘s petition for writ of habeas corpus, as it pertains to CR-242-2015, is the assertion that because Section 4915(a)(1), for which he was convicted and sentenced at CR-116-2009, was found to be constitutionally infirm by our Supreme Court in Neiman, supra, his conviction at CR-116-2009 was a nullity. As such, the sentence imposed as a result of his conviction at CR-116-2009 was illegal. Because his sentence at CR-116-2009 was illegal, the aggregate sentence imposed at CR-242-2015, which was set to run consecutively to the sentence Appellant was then-serving at CR-116-2009, should have started to run on July 22, 2016, the commencement date of the CR-242-2015 sentence, and that the time Appellant served toward the sentence imposed at CR-116-2009 should be credited towards his sentence at CR-242-2015. When the sentence imposed at CR-242-2015 is viewed in this light, Appellant asserts he fulfilled his term of incarceration imposed at CR-242-2015 and requests, through his petition for writ of habeas corpus, that he be released from incarceration. See generally, Pro Se Petition
It is well-established that “[a] challenge to [a] trial court‘s failure to award credit for time [served] prior to sentencing involves [a challenge to] the legality of sentence and is cognizable under the PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008). To reiterate, “[i]ssues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition.” Taylor, 65 A.3d at 466. As such, we discern no error of law or abuse of discretion in the PCRA court‘s treatment of Appellant‘s December 2021 filing as a petition filed pursuant to the PCRA.33 Moreover, at a hearing on Appellant‘s petition for writ of habeas corpus, Appellant conceded that any challenge to his sentence imposed at CR-242-2015 must be in the form of a petition filed pursuant to the PCRA.34 N.T., 6/30/22, at 8.
As discussed supra, Appellant‘s judgment of sentence at CR-242-2015 became
If a PCRA petition is untimely filed, the jurisdictional time-bar can only be overcome if the petitioner alleges and proves one of the three statutory exceptions, as set forth in
In Appellant‘s pro se PCRA petition (petition for writ of habeas corpus), his counseled amended petition, and his appellate brief, Appellant presents no claim, or argument, as to the applicability of one of the three exceptions to the jurisdictional time-bar. See Appellant‘s Brief at 8-14. Nonetheless, to the extent Appellant relies upon our Supreme Court‘s decision in Neiman, as affirmed by Derhammer, in support of his claim that the sentence imposed at CR-116-2009 is illegal, we consider whether this judicial decision provides an exception to the jurisdictional time-bar as it pertains to the sentence imposed at CR-242-2015.
It is well-established that a judicial decision, such as the decision rendered in Neiman, as affirmed by Derhammer, does not constitute a “fact” for purposes of the newly-discovered facts exception under
In order to invoke the after-recognized constitutional right exception under
Therefore,
Based upon our review of the record, Appellant‘s PCRA petition filed at CR-242-2015 was untimely and without an exception. Therefore, we discern no error of law or abuse of discretion in the order dismissing Appellant‘s PCRA petition as the PCRA court lacked jurisdiction to address the merits of Appellant‘s claim, and we may not address it on appeal. See Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (stating, “[w]hen a PCRA court lacks jurisdiction to consider the merits of a petition, we likewise lack jurisdiction to consider an appeal from disposition of the petition“).
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
12/6/2023
Notes
§ 3. Form of bills
No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.
The Neiman Court stressed that its act of invalidating Act 152, which enacted, inter alia, Megan‘s Law III and Section 4915, because the passage of the legislative act violated the single subject rule “should not, in any way, be read as a repudiation of the merits of the various legislative components of Act 152 such as Megan‘s Law III, which serves a vital purpose in protecting our Commonwealth‘s citizens and children, in particular, from victimization by sexual predators.” Neiman, 84 A.3d at 615.
[Appellant‘s] petition for writ of habeas corpus, with respect to [CR-116-2009], is dismissed due to [the PCRA] court‘s lack of jurisdiction since that sentence has expired in its entirety. With respect to [Appellant‘s] petition for writ of habeas corpus concerning [CR-242-2015, the PCRA] court finds that [a petition for writ of] habeas corpus is not the proper procedure to appeal any issues in that case, as the only relief that may be granted, is through a [PCRA] hearing.
PCRA Court Order, 6/30/22 (extraneous capitalization and formatting modified).
In Pennsylvania, constitutional principles applicable to the ex post facto doctrine are coextensive under federal and state law.
Both the
In Muniz, our Supreme Court held that
- SORNA‘s registration provisions constitute punishment notwithstanding the General Assembly‘s identification of the provisions as nonpunitive;
- retroactive application of SORNA‘s registration provisions violate the federal ex post facto clause; and
- retroactive application of SORNA‘s registration provision also violates the ex post facto clause of the Pennsylvania Constitution.
Santana, 266 A.3d at 533 and 533 n.18 (extraneous capitalization omitted) (noting that, the “the ex post facto holding arising from the Pennsylvania Constitution . . . represented the opinion of only a plurality of [our Supreme Court]“), citing Muniz, 164 A.3d at 1193.
The Santana Court explained,
[i]n Calder v. Bull, 3 U.S. 386 (1798), the Supreme Court of the United States identified four types of laws that traditionally constitute ex post facto violations.
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
As noted by our Supreme Court in Santana, the Supreme Court of the United States in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
articulated a two-part test for deciding whether a legislative enactment is punitive. The first inquiry asks whether the legislature intended a statutory scheme to be punitive. If so, the inquiry ends. If not, the reviewing court must assess whether the statute nonetheless is punitive in its effect. This second inquiry requires consideration of the following seven factors:
[(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-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.
Santana, 266 A.3d at 538 n.46 (internal citation and original brackets omitted), citing Mendoza-Martinez, 372 U.S. at 168-169.
To the extent that Appellant relies upon our Supreme Court‘s decisions in Lacombe, supra, and Santana, supra, to challenge the lifetime registration requirements imposed for this sexual offense convictions at CR-242-2015, the registration requirements under SORNA II to which Appellant will be subjected upon his release from incarceration do not present an ex post facto concern because the SORNA II registration requirements to which Appellant will be obligated upon his release have been deemed non-punitive.
As discussed supra, as part of the sentence imposed at CR-242-2015 Appellant was designated an SVP and subjected to lifetime registration under SORNA. Appellant‘s sentence, at the time it was imposed in 2016, involved the retroactive application of SORNA‘s lifetime registration requirements because the underlying sexual assault of his son that led to his convictions at CR-242-2015 occurred in 2006, and 2007. Pursuant to Santana (as well as Muniz), as discussed supra, the retroactive application of SORNA‘s punitive lifetime registration requirements would have violated the ex post facto clauses of the United States Constitution and the Pennsylvania Constitution. Appellant did not, however, file his petition for writ of habeas corpus until December 20, 2021. By that time, SORNA II was enacted, which divided the sexual offender registration law (SORNA) into Subchapter H and Subchapter I. The provisions of Subchapter H apply to sexual offenses that were committed on or after December 20, 2012, and Subchapter I applies to sexual offenses that were committed after April 22, 1996, but before December 20, 2012. Thus, under SORNA II, Appellant is subject to Subchapter I‘s registration requirements upon his release from incarceration because the sexual assault of his son which led to his convictions at CR-242-2015 occurred in 2006, and 2007. In Lacombe, our Supreme Court deemed the registration provisions in Subchapter I to be non-punitive. Lacombe, 234 A.3d at 626. As such, their retroactive application does not present an ex post facto problem. Id. Thus, in the case sub judice, because Appellant is currently subjected, upon his release, to the lifetime registration requirements under Subchapter I of SORNA II, and those registration requirements are non-punitive, Appellant is not entitled to relief on the ground that the registration requirements imposed at CR-242-2015 violate the ex post facto clauses of the United States Constitution or the Pennsylvania Constitution.
At the hearing, the following dialogue occurred:
| [PCRA Court:] | [A petition for writ of habeas corpus] would not be appliable to the [CR-242-2015] case. The only mechanism [] for [] an appeal at this time of [] those convictions and sentence[s] would be [via the PCRA]. |
| [Appellant‘s Counsel:] | Right. |
| [Commonwealth:] | Agreed. |
| [PCRA Court:] | Okay. So[,] there is no argument that [the PCRA] court would dismiss the petition for writ of habeas corpus with respect to [CR-242-2015.] Correct? |
| [Appellant‘s Counsel:] | Correct. |
N.T., 6/30/22, at 8 (extraneous capitalization omitted).
We acknowledge that, while the decision in McIntyre, supra did not explicitly state that the decision in Neiman, as affirmed by Derhammer, was to be considered as applying retroactively for purposes of the PCRA timeliness exception under
Nonetheless, even if McIntyre were read to announce the retroactive application of Neiman, as affirmed by Derhammer, for purposes of an exception to the PCRA jurisdictional time-bar under