Com. v. McCullough, S.

• Court: Superior Court of Pennsylvania
• Decided: November 9, 2017
• Docket: 1755 WDA 2014
• Status: Published

Opinion

J-E02002-16

2017 Pa Super 352

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

STEVEN MCCULLOUGH

No. 1755 WDA 2014

Appeal from the Order Entered October 6, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013438-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., and OTT, J.

OPINION BY PANELLA, J. FILED NOVEMBER 9, 2017

Under Megan’s Law II, the Commonwealth required individuals

convicted of indecent assault to register as sexual offenders for a period of

ten years. See 42 Pa.C.S.A. §§ 9791-9799.7 (expired December 20, 2012).

The registration provisions specifically applied to “individuals incarcerated or

convicted on or after the effective date of this act,” which a prior panel of

this Court interpreted to exclude offenders incarcerated due to revocation of

their probation. See Commonwealth v. Rivera, 10 A.3d 1276 (Pa. Super.

2010).

At the time Megan’s Law II was enacted, Appellee, Steven McCullough,

was incarcerated following the trial court’s revocation of his probation on his

underlying conviction of indecent assault. After his release, McCullough J-E02002-16

began registering as a sexual offender. He was later prosecuted for his

failure to register under the Sexual Offender Registration and Notification Act

(“SORNA”), which ultimately replaced Megan’s Law II. See 42 Pa.C.S.A. §§

9799.10-9799.41 (effective December 20, 2012). Relying on Rivera, the

trial court ordered that McCullough be removed from the sexual offender

registry.

The Commonwealth appealed, on the theory that Rivera was

incorrectly decided. Though this case came before us in order to resolve

conflicting applications of Rivera, we find we must instead decide

McCullough’s case based on the Pennsylvania Supreme Court’s recent

disposition in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

Therefore, we affirm the trial court’s order removing McCullough from the

sexual offender registry.

During the pendency of this appeal, our Supreme Court issued its

decision in Muniz. Muniz challenged SORNA’s increase in required

registration length for certain offenses, when the registrable offense

occurred prior to the imposition of SORNA. Muniz was convicted of indecent

assault of a person under 13 years of age, which carried a ten-year

registration requirement under Megan’s Law II at the time he committed the

act and was convicted. Before the trial court sentenced Muniz, SORNA

became law in Pennsylvania. Under SORNA, Muniz was subject to lifetime

reporting requirements as a sexual offender based on his previous

conviction. The Muniz Court held that Pennsylvania’s SORNA is an

-2- J-E02002-16

unconstitutional ex post facto law when applied retroactively to those sexual

offenders convicted of applicable crimes before the act’s effectiveness date

and subjected to increased registration requirements under SORNA after its

passage.

Instantly, McCullough was convicted in 1994 of indecent assault

involving a victim over 13 years of age, 18 Pa.C.S.A. § 3126. He was

sentenced to five years of probation. At that time, defendants with indecent

assault convictions were not subject to sexual offender registration

requirements. The trial court revoked McCullough’s probation in 1997, and

sentenced him to nine to twenty-three months’ incarceration, followed by an

additional three years of probation. The court revoked McCullough’s

probation again on November 17, 1999, and sentenced him to a further

eleven and a half to twenty-three months’ incarceration, followed by another

consecutive three years of probation.1 On July 10, 2000, while McCullough

was still incarcerated for his second probation violation, Megan’s Law II was

enacted. The law required defendants convicted of indecent assault to

register as sexual offenders for ten years.

Following his incarceration, McCullough began registering as a sexual

offender under Megan’s Law II. The affidavit of probable cause lists April 7,

2004, as the start date of McCullough’s ten-year registration period under

____________________________________________

1 The record indicates McCullough’s incarceration for his second probation violation began on March 6, 2000.

-3- J-E02002-16

Megan’s Law II. See Criminal Complaint, filed September 3, 2013.

McCullough stipulated to the information contained in the affidavit of

probable cause and does not dispute this date on appeal.

Even if we found that McCullough was properly subject to Megan’s Law

II and his registration period began on April 4, 2004, McCullough’s ten-year

registration period under Megan’s Law II would have ended on April 7, 2014.

The Commonwealth’s appeal relies upon SORNA’s inclusion of McCullough as

a registrable offender for an increased total of twenty-five years, because

McCullough had not completed his registration requirements on SORNA’s

effective date of December 20, 2012. However, we need not determine

whether McCullough was properly subject to Megan’s Law II and thus

presently subject to registration under SORNA, as he is no longer required to

register as a sexual offender based on the holding in Muniz.

At first blush, it may appear that Commonwealth v. Demora, 149

A.3d 330 (Pa. Super. 2016), still procedurally controls this case. It does not.

Demora held that the Pennsylvania State Police (“PSP”) must be joined as

an indispensable party in an action for removal from the sexual offender

registry. The panel in Demora found that failure to join the PSP in such an

action deprived the trial court of subject matter jurisdiction. However, our

Supreme Court’s decision in Muniz undercuts the reasoning of Demora in

two ways. First, it implicitly overrules Demora by removing Muniz from the

sexual offender registry despite his failure to join the PSP in his removal

-4- J-E02002-16

action. Second, it holds that registration is a criminal sanction, subject to ex

post facto considerations, which abrogates our holding in Demora. The

rationale behind Demora was based on prior cases holding that registration

was ancillary to sentencing and not part of the criminal sentence. Thus, to

avoid any confusion, we now explicitly recognize Muniz overrules Demora.

Consequently, we affirm the trial court’s order removing McCullough from

the sexual offender registry.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/2017

-5-