Com. v. Albert, T.

• Court: Superior Court of Pennsylvania
• Decided: April 16, 2021
• Docket: 340 WDA 2020
• Status: Unpublished

Opinion

J-A02015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS LAWRENCE ALBERT : : Appellant : No. 340 WDA 2020

Appeal from the PCRA Order Entered February 10, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002407-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS LAWRENCE ALBERT : : Appellant : No. 341 WDA 2020

Appeal from the PCRA Order Entered February 10, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003395-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS LAWRENCE ALBERT : : Appellant : No. 342 WDA 2020

Appeal from the PCRA Order Entered February 10, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003918-2009

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J. J-A02015-21

MEMORANDUM BY BOWES, J.: FILED: April 16, 2021

Thomas Lawrence Albert appeals from the February 10, 2020 order

denying his petition challenging the validity of his registration status under

Subchapter I of the Pennsylvania Sentencing Code, 42 Pa.C.S. §§ 9799.51-

.75. After careful review, we affirm.

Due to the nature of Appellant’s arguments and our holding, we will

review the underlying facts of the above-captioned cases only briefly. At

docket number 3395-2010, Appellant was charged with aggravated indecent

assault and corruption of minors in connection with allegations that he

assaulted a fourteen-year-old girl in Pittsburgh, Pennsylvania, on June 26,

2009. During the investigation of these events, the Commonwealth

discovered that Appellant was subject to the registration requirements of

Megan’s Law due to a prior sexual offense conviction from 1997, but Appellant

had failed to register his address at the time of the assault. As a result, at

docket number 2407-2010, Appellant was charged with this failure to comply

with registration. The Commonwealth also discovered an outstanding charge

related to a separate registration violation at docket number 3918-2009.

On July 6, 2011, Appellant entered a negotiated guilty plea at docket

numbers 3395-2010 and 2407-2010. On July 6, 2011, Appellant entered a

negotiated guilty plea at 3918-2009, and the trial court sentenced him to an

aggregate sentence of four to fifteen years of imprisonment at all three of the

above-captioned docket numbers. Immediately following sentencing, the trial

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court conducted a hearing to determine if Appellant was a sexually violent

predator (“SVP”). Ultimately, the trial court adjudged Appellant to be an SVP.

Appellant filed a timely direct appeal to this Court asserting that there

was insufficient evidence to support his designation as an SVP.

Commonwealth v. Albert, 64 A.3d 276 (Pa.Super. 2013) (unpublished

memorandum at 1-4). This Court affirmed his judgment of sentence.

Appellant filed a petition for allowance of appeal to the Pennsylvania Supreme

Court, which was denied on July 31, 2013. Thereafter, Appellant did not file

a petition for a writ of certiorari to the United States Supreme Court.

On September 20, 2017, Appellant submitted a pro se filing styled as a

petition for relief under the Post-Conviction Relief Act (“PCRA”) challenging his

registration obligations under the Sexual Offenders Registration and

Notification Act (“SORNA”), which had replaced Megan’s Law by this point.

Specifically, Appellant relied upon the Pennsylvania Supreme Court’s ruling in

Commonwealth v. Muniz, 164 A.3d 1189, 1218-23 (Pa. 2017) (holding that

ex post facto application of SORNA was unconstitutional under both the United

States and Pennsylvania Constitutions), superseded by statute as stated in

Commonwealth v. Lacombe, 234 A.3d 602, 615 (Pa. 2020). Since

Appellant’s crimes took place prior to the enactment of SORNA, he asserted

that applying the registration requirements of SORNA to him was

unconstitutional. Counsel was appointed to represent Appellant, and an

amended petition expanding upon his claim under Muniz was filed in

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December 2017. For reasons not evident from the certified record, the trial

court took no further action on the petition for more than two years.

In that interim, SORNA’s regulatory framework was amended:

Following [the Supreme Court’s] decision in Muniz . . ., the General Assembly passed Act 10 of 2018, which divided SORNA into two subchapters. Subchapter H is based on the original SORNA statute and is applicable to offenders, . . ., who committed their offenses after the December 20, 2012 effective of SORNA, Subchapter I is applicable to offenders who committed their offenses prior to the effective date of SORNA and to whom the Muniz decision directly applied. . . . The General Assembly later passed Act 29 of 2018, which replaced Act 10[.]

Commonwealth v. Butler, 226 A.3d 972, 981 n.11 (Pa. 2020) (“Butler II”).

Thus, Appellant became subject to registration under Subchapter I of the

Pennsylvania Sentencing Code. See 42 Pa.C.S. § 9799.52(1) (“This

subchapter shall apply to individuals who were convicted of a sexually violent

offense committed on or after April 22, 1996, but before December 20,

2012[.]”).

In response to a pro se inquiry from Appellant concerning the status of

his case, the trial court filed notice of its intention to dismiss Appellant’s

petition without a hearing pursuant to Pa.R.Crim.P. 907 in January 2020.

Specifically, the trial court concluded that Appellant’s petition did not satisfy

the timeliness requirements of the PCRA while also noting that the

aforementioned legislative amendments had superseded the holding in

Muniz. Appellant responded that his claim was not subject to the PCRA

timeliness requirements. Thereafter, the trial court dismissed his petition.

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Appellant filed a timely notice of appeal at each of the above-captioned

cases. The trial court did not direct Appellant to file any concise statements

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March

20, 2020, this Court consolidated these appeals sua sponte. The trial court

filed an opinion pursuant to Rule 1925(a), incorporating by reference its

reasoning set forth in an earlier filing. In his brief, Appellant has raised a

single issue for our consideration in these consolidated cases: “[W]hether

subjecting Appellant, ex post facto, to the reporting requirements of SORNA

is constitutional.” Appellant’s brief at 4.

Our standard and scope of review over questions concerning the

constitutionality of Pennsylvania statutes are well-established: “Analysis of the

constitutionality of a statute is a question of law; therefore, our standard of

review is de novo, and our scope of review is plenary.” Commonwealth v.

Brensinger, 218 A.3d 440, 456 (Pa.Super. 2019).

From the outset of our analysis, we must properly characterize the

nature of Appellant’s petition for relief in this case. As noted above,

Appellant’s petition for relief in this case was characterized as a PCRA petition

and was treated as such by the trial court. At the time that Appellant’s petition

was filed in late 2017, there was no definitive case law providing that Appellant

could seek relief from his registration obligations through any other procedural

mechanism other than the PCRA. Indeed, the state of Pennsylvania law at

that time dictated that such a claim sounded in legality of sentence and,

therefore, arose exclusively under the PCRA. See Commonwealth v. Butler,

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173 A.3d 1212, 1215 (Pa.Super. 2017) (holding challenges to sexual offender

registration obligations under Muniz implicate legality of sentence), reversed

on separate grounds, 226 A.3d 972 (Pa. 2020); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always subject

to review within the PCRA, claims must still satisfy the PCRA’s time limits or

one of the exceptions thereto.”); Commonwealth v. Watts, 23 A.3d 980,

983 (Pa. 2011) (“The PCRA is the sole means of obtaining collateral relief on

issues that are cognizable under the statute.”).

However, while the instant appeal was pending before this Court, the

Pennsylvania Supreme Court provided instructive guidance on the ambit of

such claims in Commonwealth v Lacombe, 234 A.3d 602 (Pa. 2020).

Lacombe was subject to registration under Subchapter I due to his designation

as an SVP and challenged the constitutionality of his obligation by filing a

“Petition to Terminate His Sexual Offender Registration Requirements.” Id.

at 606-07, 618. Relying upon Muniz, the reviewing court granted Lacombe’s

petition and denied the Commonwealth’s motion for reconsideration, which

argued that the PCRA provided the exclusive procedural mechanism by which

Lacombe could challenge his registration status. On direct appeal, the

Supreme Court explicitly ratified this portion of the lower court’s holding under

the following rationale:

This Court has not yet required that sexual offender registration statutes be challenged through the PCRA or some other procedural mechanism. Indeed, we have consistently decided cases regarding sexual offender registration statutes that were challenged via different types of filings. Our approach in this

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regard takes into account the fact that frequent changes to sexual offender registration statutes, along with more onerous requirements and retroactive application, complicate registrant’s ability to challenge new requirements imposed years after their sentences become final.

This is especially so under the PCRA as many registrants, Lacombe included, would be ineligible for relief on timeliness grounds. Both situations arise from the fact that the registration period does not begin until registrants are released from prison, which may be well after their sentence has become final or may signal the completion of their sentence. Accordingly, we decline to find the PCRA, or any other procedural mechanism, is the exclusive method for challenging sexual offender registration statutes and we thus conclude the trial court had jurisdiction to consider Lacombe’s “Petition to Terminate His Sexual Offender Registration Requirements.”

Id. at 617-18 (internal citations and quotations omitted). Thus, the Supreme

Court held that a challenge to the constitutionality of Pennsylvania’s sexual

offender registration regime did not arise exclusively under the PCRA. Id.

The gravamen of Appellant’s claim for relief is identical to that

adjudicated in Lacombe, i.e., he asserts that Subchapter I remains

unconstitutional under Muniz. In Lacombe, our High Court identified such

challenges to the constitutionality of sexual offender registration requirements

as that rare type of collateral claim that is not subsumed by the PCRA. See

Id. This holding constituted a new and significant rule of law, and we are

particularly mindful that “the general rule is that the decision announcing a

new rule of law is applied retroactively so that a party whose case is pending

on direct appeal is entitled to the benefit of the changes in the law.”

Commonwealth v. Hays, 218 A.3d 1260, 1264-65 (Pa. 2019).

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In the specific context of Appellant’s case, we read the above-quoted

portion of Lacombe as instructing courts to take a broad view of the potential

procedural bases for claims challenging the validity of sexual offender

registration regimes. Although Appellant initially sought relief pursuant to the

PCRA, we believe that he is entitled to benefit from that portion of the holding

in Lacombe discussed above that was announced during the pendency of his

appeal. Based on the foregoing discussion, we conclude that the trial court

committed legal error dismissing Appellant’s petition as untimely under the

PCRA. Appellant’s sole claim for relief is not bounded by the requirements of

the PCRA and under the reasoning of Lacombe, the trial court had jurisdiction

to entertain it. Thus, we will address the merits of Appellant’s claim.

Overall, Appellant asserts that Subchapter I is unconstitutional pursuant

to the Supreme Court’s analysis in Muniz, irrespective of the passage of Acts

10 and 29. See Appellant’s brief at 9 (“Based on the Muniz holding,

[Appellant] was entitled to relief because it is unconstitutional for SORNA to

be retroactively applied to him.”). We disagree.

The Supreme Court’s holding in Muniz concerning the constitutionality

of requiring a defendant to register under SORNA ex post facto depended

entirely upon “a determination of whether SORNA’s retroactive application to

appellant constitutes punishment” under the factors enumerated in Kennedy

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v. Mendoza-Martinez, 372 U.S. 144 (1963).1 Lacombe, supra at 732. As

a result of the enactment of Acts 10 and 29, Appellant is now subject to

registration under the amended version of SORNA, e.g., Subchapter I.

Although that law is undoubtedly being retroactively applied to

Appellant, the Supreme Court has reassessed its analysis of the Mendoza-

Martinez factors and concluded that Subchapter I is not punitive and,

therefore, passes constitutional muster: “Subchapter I effected significant

changes from the original version of SORNA, retroactive application of which

we found unconstitutional in Muniz. . . . We hold Subchapter I does not

constitute criminal punishment, and the ex post facto claims

forwarded by [defendants] necessarily fail.” Lacombe, supra at 626-

27 (emphasis added) (citing Muniz, supra at 1208).

While acknowledging the existence of the holding in Lacombe,

Appellant asks us to simply ignore that holding in favor of the earlier analysis

set forth in Muniz. See Appellant’s brief at 12. We may not disregard binding

precedent from our Supreme Court in the manner suggested by Appellant.

Stated succinctly, his arguments predicated solely upon Muniz are entirely

foreclosed by Lacombe. No relief is due on this claim. See Commonwealth ____________________________________________

1 These factors include whether the at-issue sanction: (1) involves an affirmative disability or restraint; (2) has historically been regarded as punishment; (3) comes into play only on a finding of scienter; (4) will promote the traditional aims of punishment, i.e., retribution and deterrence; (5) applies to behavior that is already a crime; (6) has any alternative purpose to which it may rationally be connected; and (7) appears excessive in relation to the alternative purpose assigned. See Kennedy v. Mendoza Martinez, 372 U.S. 144, 168-69 (1963).

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v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (“This Court may affirm a PCRA

court’s decision on any grounds if the record supports it.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/16/2021

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