Com. v. Knize, J.

• Court: Superior Court of Pennsylvania
• Decided: November 1, 2021
• Docket: 137 WDA 2021
• Status: Unpublished

Opinion

J-S27021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JACOB KNIZE : : Appellant : No. 137 WDA 2021

Appeal from the PCRA Order Entered January 13, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004204-2012

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: NOVEMBER 1, 2021

Appellant Jacob Knize appeals from the order dismissing his Post

Conviction Relief Act1 (PCRA) petition as untimely and meritless. Appellant

argues that the PCRA court had jurisdiction to review his challenges to the

Sexual Offender Registration and Notification Act2 (SORNA) outside of the

PCRA. He also claims that Subchapter I’s registration requirements violate ex

post facto principles. We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.

140, No. 29 (Act 29) (collectively, SORNA II). Acts 10 and 29 amended the former version of SORNA (SORNA I) after our Supreme Court found SORNA I unconstitutional in Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017). J-S27021-21

Briefly, Appellant pled guilty to multiple sex offenses based on

allegations that he sexually assaulted an eighteen-month-old child in March of

2012. On September 10, 2012, the trial court sentenced Appellant to an

agreed-upon aggregate term of ten to thirty years’ incarceration, followed by

five to ten years’ probation. Appellant’s sentence also included a lifetime

registration requirement under Megan’s Law III.3 Appellant did not file post-

sentence motions or a direct appeal.

On July 3, 2019, Appellant filed a pro se PCRA petition in the instant

matter. The PCRA court appointed counsel, who filed an amended petition on

Appellant’s behalf. Appellant challenged his registration requirements under

SORNA and also requested that the PCRA court stay the proceedings pending

the outcome of our Supreme Court’s decision in Commonwealth v. ____________________________________________

3 On December 20, 2012, Megan’s Law III was replaced by SORNA I, 42 Pa.C.S. §§ 9799.10-9799.41 (eff. 2012). Thereafter, in 2017, our Supreme Court found that SORNA I’s registration requirements were “punitive in effect.” Muniz, 164 A.3d at 1218. Therefore, the Court concluded that SORNA I violated ex post facto principles when applied to individuals who committed a sexual offense before December 20, 2012, the effective date of SORNA I. See id. at 1223; see also Commonwealth v. Lippincott, 208 A.3d 143, 150 (Pa. Super. 2019) (en banc).

In response to Muniz, the legislature enacted SORNA II, which divides sex offender registrants into two distinct subchapters—Subchapter H and Subchapter I. Subchapter H includes individuals who were convicted for an offense that occurred on or after December 20, 2012, and whose registration requirements had not yet expired. See 42 Pa.C.S. § 9799.11(c). Subchapter I includes individuals who were convicted for an offense that occurred “on or after April 22, 1996, but before December 20, 2012,” or who were required to register under a former sexual offender registration law on or after April 22, 1996, but before December 20, 2012, and whose registration requirements had not yet expired. See 42 Pa.C.S. § 9799.52.

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Lacombe, 234 A.3d 602 (Pa. 2020). The PCRA court granted Appellant’s

request and the matter was placed on hold.

On July 21, 2020, our Supreme Court issued its decision in Lacombe.

The Lacombe Court held that petitioners may challenge the application of a

sexual offender registration statute outside the framework of the PCRA.

Lacombe, 234 A.3d at 618. Importantly, the Lacombe Court also held that

“Subchapter I is nonpunitive and does not violate the constitutional prohibition

against ex post facto laws.” Id. at 605-06.

Following Lacombe, Appellant filed a motion to lift the stay, which the

PCRA court granted. The Commonwealth filed a response to Appellant’s PCRA

petition, arguing that (1) Appellant’s petition was untimely under the PCRA;

and (2) even if timely, Appellant was not entitled to relief from SORNA’s

registration requirements in light of our Supreme Court’s decision in

Lacombe. See Commonwealth’s Resp. to Am. PCRA Pet., 11/23/20, at 5-8.

On December 1, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice

of intent to dismiss Appellant’s petition, which stated that Appellant’s PCRA

claims were “without merit and untimely as a matter of law.” Rule 907 Notice,

12/1/20, at 1. Appellant filed a response in which he claimed that (1) the

PCRA court had jurisdiction to consider his SORNA claims outside of the PCRA;

and (2) the Supreme Court’s holding in Lacombe was made in violation of ex

post facto laws and, therefore, Appellant was entitled to relief from his sex

offender registration requirements. See Appellant’s Objs. to Rule 907 Notice,

12/15/20, at 6.

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On January 13, 2021, the trial court issued an order denying Appellant’s

PCRA petition. Appellant filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion

addressing Appellant’s claims.

On appeal, Appellant raises the following issue:

The PCRA court erred in denying relief because the retroactive application of SORNA’s registration and reporting requirements on [Appellant] is a punishment which violates the ex post facto clauses of the United States Constitution and Pennsylvania Constitution.

Appellant’s Brief at 4 (some formatting altered).

Appellant argues that the PCRA court erred in dismissing his PCRA

petition as both untimely and meritless. Id. at 11. First, Appellant argues

that, in light of Lacombe, SORNA claims may be raised outside of the PCRA.

Id. at 12-13. However, with respect to his substantive SORNA claim,

Appellant argues that Lacombe was wrongly decided. Id. at 17. In support,

he asserts that Subchapter I remains punitive and that, therefore, “retroactive

application of SORNA II violates the ex post facto clause of the United States

Constitution.” Id. Specifically, Appellant asserts:

The holding in Lacombe, [Appellant] urges, is wrong. Although the amendments to SORNA (which created “SORNA II”) purport to alleviate punitive requirements, [Appellant] argues that the Subchapter I is, nonetheless, punitive when applied retroactively. Specifically, including an opportunity for individuals to petition for relief from registration requirements, and using a two-tier system, are not substantial changes that negate the punitive nature of the registration requirements contained in Subchapter I. In all other ways, Subchapter I remains unchanged and still maintains punitive characteristics. The imposition of those requirements on

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individuals who committed crimes prior to SORNA is still punitive, and violative of ex post facto clauses. Despite the Supreme Court’s decision in Lacombe, [Appellant] urges that he is entitled to relief.

Id. at 18.

The threshold issue of whether a petitioner must raise a claim for post-

conviction relief under the PCRA raises a question of law. See

Commonwealth v. Descardes, 136 A.3d 493, 495-96 (Pa. 2016). Our

standard of review is de novo, and our scope of review is plenary. Id. at 496-

97.

As discussed previously, in Lacombe, our Supreme Court explicitly

rejected the proposition that claims involving the application of sexual

offender registration requirements must be raised in a timely PCRA petition.4

See Lacombe, 234 A.3d at 618. Instead, the Lacombe Court concluded that

there was no “exclusive method for challenging sexual offender registration

statutes,” and that, therefore, courts have jurisdiction to consider challenges

to SORNA registration requirements outside of the PCRA. Id.

Here, in light of Lacombe, we agree with Appellant that the PCRA court

had jurisdiction to consider his challenges to his sex offender registration

4 In reaching that conclusion, the Lacombe Court noted that “frequent changes to sexual offender registration statutes, along with more onerous requirements and retroactive application, complicate registrants’ ability to challenge new requirements imposed years after their sentences become final.” Lacombe, 234 A.3d at 617. Further, under the PCRA, a petitioner could be ineligible for relief based on timeliness grounds or because their sentence has expired. Id.

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requirements. See id. at 602. Therefore, we are constrained to conclude that

the trial court erred in treating Appellant’s petition as an untimely PCRA

petition.

However, to the extent Appellant argues that Subchapter I violates ex

post facto principles, we agree with the PCRA court that Lacombe is

dispositive. See Lacombe, 234 A.3d at 605-06 (stating that “Subchapter I

is nonpunitive and does not violate the constitutional prohibition against ex

post facto laws”); see also PCRA Ct. Op. at 4 (noting that Appellant’s

registration requirements fall under Subchapter I and our Supreme Court’s

decision in Lacombe).

Further, although Appellant believes that Lacombe was wrongly

decided, it remains controlling law. See Commonwealth v. Reed, 107 A.3d

137, 143 (Pa. Super. 2014) (reiterating the well-settled principle that “[t]his

Court is bound by existing precedent under the doctrine of stare decisis and

continues to follow controlling precedent as long as the decision has not been

overturned by our Supreme Court” (citation and footnote omitted)). For these

reasons, in light of our Supreme Court’s decision in Lacombe, Appellant is

not entitled to relief. See Lacombe, 234 A.3d at 605-06. Accordingly, we

affirm.

Order affirmed.

Judge Colins joins the memorandum.

Judge Olson concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/01/2021

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