Com. v. Hall, S.

• Court: Superior Court of Pennsylvania
• Decided: February 7, 2022
• Docket: 392 MDA 2021
• Status: Unpublished

Opinion

J-S34022-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN BRADY HALL : : Appellant : No. 392 MDA 2021

Appeal from the Order Entered March 3, 2021 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000980-2016

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

MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 7, 2022

Steven Brady Hall appeals from the order entered following his

resentencing. His counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and a petition to withdraw as counsel. We affirm and

grant counsel’s petition to withdraw.

In 2017, Hall pleaded guilty to aggravated indecent assault of a child. 1

Hall did not file a direct appeal. However, this Court granted him post-

conviction relief for his claim concerning his sex-offender registration. The

court vacated the portion of Hall’s sentence requiring him to register as a Tier

III offender and remanded to the trial court to instruct him on the applicable

registration and reporting requirements under Subchapter I of the Sex ____________________________________________

118 Pa.C.S.A. § 3125(b). In a related case in Dauphin County, Hall pleaded guilty to unlawful contact with a minor, 18 Pa.C.S.A. § 6318, corruption of minors, 18 Pa.C.S.A. § 6301(a)(1)(ii), and indecent assault, 18 Pa.C.S.A. § 3126(a)(1). The Dauphin County case is not before us. J-S34022-21

Offender Registration and Notification Act (“SORNA”). See 42 Pa.C.S.A. §§

9799.51-9799.75.2

On June 8, 2020, the trial court informed Hall of the proper registration

requirements, including that, pursuant to Subchapter I of SORNA, he must

register as a convicted sex offender with the Pennsylvania State Police for the

remainder of his life. The court advised Hall that he had not been determined

to be a sexually violent predator.

This timely appeal followed.3 Counsel filed with this Court an Anders

brief and a petition to withdraw as counsel, asserting that the appeal is wholly

frivolous. Hall did not respond to counsel’s Anders brief.

Before we assess the substance of the Anders brief, we must first

determine whether counsel’s request to withdraw meets certain procedural

requirements. See Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). An Anders brief that accompanies a request to

withdraw must:

____________________________________________

2Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L. 140, No. 29 (Act 29). Subchapter I of SORNA applies to offenders like Hall who have committed their crimes prior to December 20, 2012. See 42 Pa.C.S.A. § 9799.52.

3 The court did not impose a new judgment of sentence or enter an order concerning the June 8, 2020 hearing. However, Hall appealed, and, in February 2021, this Court remanded to the trial court for the entry of a final order. On March 3, 2021, the trial court entered a final order and Hall’s counsel filed the instant, timely appeal.

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(1) provide a summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Counsel must also provide a copy of the Anders brief to the client, and

a letter that advises the client of the right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877,

880 (Pa.Super. 2014) (quoting Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (alteration omitted)). If counsel has satisfied these

requirements, we then conduct “a full examination” of the record “to decide

whether the case is wholly frivolous.” Commonwealth v. Dempster, 187

A.3d 266, 271 (Pa.Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).

Here, counsel has substantially complied with the requirements of

Anders as set forth in Santiago. In the Anders brief, counsel discusses the

issues arguably supporting the appeal and explains why counsel concludes

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those issues are wholly frivolous.4 Counsel has supplied Hall with a copy of his

Anders brief and a letter advising him that he may raise any additional issues

before this Court pro se or with private counsel. See Petition to Withdraw,

8/24/21, at Exhibit A.

Accordingly, counsel has complied with the technical requirements for

withdrawal. We will therefore address the issue counsel has identified.

Counsel’s Anders brief identifies one issue.

Did the trial court commit an error of law by finding that the application of 42 Pa.C.S.[A.] § 9799.63 relating to internet dissemination provision of Subchapter I of the Sexual Offenders Registry and Notification Act is not an unconstitutional ex post facto law under the Pennsylvania Constitution as applied to [Hall]?

Anders Br. at 7.

The Anders brief identifies a challenge to SORNA’s requirement that the

Pennsylvania State Police disseminate an offender’s information over the

internet, pursuant to Section 9799.63. It notes a claim that Section 9799.63

is punitive and therefore is an unconstitutional ex post facto law as applied to

Hall, violating his right to reputation under the Pennsylvania Constitution. See

id. at 10-13.

A constitutional challenge presents a question of law. See

Commonwealth v. Molina, 104 A.3d 430, 441 (Pa. 2014). Thus, our

standard of review is de novo, and our scope of review is plenary. See id.

4 Although counsel relies on the factual summary as set forth in the trial court opinion rather than providing a separate summary, there is no factual dispute involved in this matter.

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Our Supreme Court recently addressed Section 9799.63’s internet

dissemination requirement. See Commonwealth v. Lacombe, 234 A.3d

602, 623 (Pa. 2020). There, the court acknowledged that the requirement to

disseminate the information of sexual offenders over the internet was similar

to public shaming. However, upon review of the statute as a whole, the court

determined that the punitive effect of Section 9799.63 was insufficient to

establish that Subchapter I of SORNA constitutes an unconstitutional ex post

facto law. See id. at 626; see also Commonwealth v. Elliott, 249 A.3d

1190, 1194 (Pa.Super. 2021) (recognizing that, pursuant to Lacombe,

“Subchapter I’s [registration, notification, and counseling] requirements do

not constitute criminal punishment”).

Here, the issue presented in the Anders brief challenges the

constitutionality of Subchapter I’s registration requirements. Our Supreme

Court’s decision in Lacombe is dispositive of this issue. Hence, we agree this

issue is wholly frivolous.

Our independent review of the record has not uncovered any non-

frivolous issues for appeal. We therefore grant counsel’s motion to withdraw

and affirm the March 3, 2021 order.

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Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/7/2022

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