Com. v. Bohn, E.

• Court: Superior Court of Pennsylvania
• Decided: October 5, 2021
• Docket: 1347 MDA 2020
• Status: Unpublished

Opinion

J-S10021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC BOHN : : Appellant : No. 1347 MDA 2020

Appeal from the PCRA Order Entered October 16, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003115-2014

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 05, 2021

Eric Bohn appeals pro se from the order dismissing a petition that the

lower court treated as a Post Conviction Relief Act (“PCRA”) petition. See 42

Pa.C.S.A. §§ 9541-9546. Bohn argues the Sexual Offender Registration and

Notification Act (“SORNA”) is unconstitutional. We affirm.

As a result of an incident that occurred in 2014, Bohn pleaded guilty to

Aggravated Indecent Assault of a Child Less than 13 Years Old1 in exchange

for a sentence of four to 10 years’ incarceration. The court notified Bohn at

his 2015 sentencing that he would be subject to registration and reporting

requirements under SORNA. See 42 Pa.C.S.A. § 9799.13. Bohn did not file a

direct appeal.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3125(a)(7). J-S10021-21

Bohn filed a “Motion to be Removed from SORNA as it is Punitive” in

February 2020, which the court treated as Bohn’s first PCRA petition. Bohn

claimed that SORNA registration requirements were punitive and were

unconstitutionally applied to him retroactively, and sought relief under

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and its progeny. The

PCRA court appointed counsel, who filed a “no-merit” letter and motion to

withdraw.2

The PCRA court thereafter issued a notice of its intent to dismiss Bohn’s

petition without a hearing. See Pa.R.Crim.P. 907. The court found the petition

was untimely under the PCRA’s filing requirements, as Muniz does not qualify

a petition as timely under the PCRA’s third timeliness exception, and

moreover, Bohn did not file his petition within 60 days of the Muniz decision.

See Rule 907 Notice, filed 7/16/20, at 4-5. The same day, the court issued an

order granting counsel’s motion to withdraw.

Bohn filed a pro se response, in which he claimed PCRA counsel was

ineffective for failing to contact him, and that the PCRA court had “jurisdiction

to waive untimel[i]ness as said issue has been deemed unconstitutional by

the Pa Supreme Court.” Bohn’s Objections to Rule 907 notice, 9/19/20, at 1-

2.

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc).

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The court dismissed the petition, and Bohn filed a pro se notice of

appeal.3 He raises the following issues:

1. Whether the [c]ourt abused its discretion or committed error of [l]aw by denying [Bohn’s] Post-Conviction Relief Act (“PCRA”) [petition] under timeliness pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii)(2) when [Bohn] was entitled [to] retroactive relief as [a] result of the Supreme Court’s ruling [in] Commonwealth v. Muniz, 164 A.3d 1189 ([Pa.] 2017).

2. Whether the [c]ourt abused its discretion or committed error of [l]aw by denying [Bohn] relief to be removed from Registration Requirement (SORNA).

3. Whether the [c]ourt abused its discretion or committed error of [l]aw by denying [PCRA] relief caused by Honorable Stephen B. Liberman for misapprehending or ignoring facts of record and misapplying the Law.

Bohn’s Br. at 2 (suggested answers omitted).

Bohn argues that in Muniz, the Pennsylvania Supreme Court held that

SORNA was unconstitutional. See Bohn’s Br. at 8. He claims that the 2018

amendments to SORNA were an impermissible attempt to sever the

unconstitutional provisions. Id. at 8-9. He asserts that because the prior

version of SORNA was struck down, the amended version of SORNA “cannot

be applied to past offenders retroactively, as it would violate the ex Post facto

clause of the PA Constitution Art. 1 sect. 17.” Id. at 10.

3 Although Bohn’s Notice of Appeal does not reference the date of the order

under appeal, and Bohn has attached to his Notice of Appeal the court’s July 16, 2020 Rule 907 notice of its intention to dismiss Bohn’s petition, Bohn filed his Notice of Appeal four days after the court issued the order dismissing his PCRA petition, and we deem the appeal to be from that final, appealable order.

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Bohn also asserts his petition is timely, because he filed his petition

within 60 days of “when the claim became present” [sic] to him. He states

that “because of [his] incarceration, up dates [sic] on the law library

computers comes not often. So [he] put in his petition as soon as the

information came [be]came avail[able] to him.” Id. at 9.

“Whether an individual’s claims are cognizable under the PCRA presents

a question of law.” Commonwealth v. Smith, 240 A.3d 654, 657 (Pa.Super.

2020). “Thus, our standard of review is de novo, and our scope of review is

plenary.” Id.

In Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), the

Pennsylvania Supreme Court declared that registrants should not be restricted

to using the PCRA as the exclusive means for challenging their registration

requirements. Id. at 617-18. Therefore, Bohn’s challenge to his sex offender

registration need not comport with the PCRA’s requirements, including those

related to timeliness. See Smith, 240 A.3d at 658; Commonwealth v.

Moose, 245 A.3d 1121, 1129, 1129 n.6 (Pa.Super. 2021).

However, we discern no constitutional violations related to Bohn’s sex

offender registration requirements. Muniz held that SORNA, in its initial form,

was punitive and therefore its retroactive application to offenders who

committed offenses prior to its 2012 effective date violated the ex post facto

clauses of the federal and state constitutions. Muniz, 164 A.3d at 1218. Here,

Bohn committed his offense in 2014, after SORNA’s effective date, and

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therefore subjecting him to SORNA’s requirements is not an ex post facto

violation. Muniz simply does not apply.

While the General Assembly amended SORNA in 2018—adding

Subchapter I to apply to those offenders who committed offenses prior to

SORNA’s 2012 enactment4—these amendments have no bearing on Bohn’s

requirements under SORNA. Moreover, as the trial court noted, the Supreme

Court has held that Subchapter I’s requirements are non-punitive and

therefore their application cannot constitute an ex post facto violation. See

Lacombe, 234 A.3d at 626-27. We therefore affirm the order denying Bohn

relief.5

Order affirmed.

Judge Murray joins the memorandum.

Judge Pellegrini files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/05/2021

4 See 42 Pa.C.S.A. §§9799.51-9799.75.

5 We may affirm the order of the trial court on any basis. See Commonwealth v. Gross, 232 A.3d 819, 846 (Pa.Super.) (en banc), appeal denied, 242 A.3d 307 (Pa. 2020).

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