Com. v. McWilliams, J.

• Court: Superior Court of Pennsylvania
• Decided: July 18, 2025
• Docket: 1399 MDA 2024
• Status: Unpublished

Opinion

J-S22021-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY W. MCWILLIAMS : : Appellant : No. 1399 MDA 2024

Appeal from the Order Entered September 24, 2024 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001046-2009

BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: JULY 18, 2025

Jeffrey W. McWilliams appeals from the order that denied his petition

seeking review of his sexual offender registration obligations. In this Court,

Brandy Grace Hoke, Esquire, has filed a petition to withdraw as Appellant’s

counsel and brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the

order and grant counsel’s application to withdraw.

Appellant kidnapped and raped a fifteen-year-old child in 2009. In

2010, he pled guilty to those offenses as codified at 18 Pa.C.S. §§ 3121(a)(1)

and 2901(a)(2), respectively. The trial court, pursuant to the negotiated plea

agreement, sentenced Appellant to an aggregate term of six and one-half to

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* Former Justice specially assigned to the Superior Court. J-S22021-25

twenty years of incarceration. As a result of his convictions, Megan’s Law III

purported to render him a lifetime sexual offender registrant. 1 Thereafter,

Appellant submitted “constant and frivolous pro se filings” including “no less

than four previous [Post Conviction Relief Act (“PCRA”)] petitions and multiple

appeals to both the Superior Court and Commonwealth Court.” Trial Court

Opinion, 11/4/24, at 1 (unnecessary capitalization omitted). None garnered

him relief.

Appellant filed the pro se petition at issue in this appeal in August 2024,

contending that a lifetime registration requirement was unconstitutional, and

he should only have to register for ten years pursuant to Megan’s Law I, 42

Pa.C.S. § 9793 (deleted in 2000). The court appointed Attorney Hoke to

represent Appellant and scheduled an argument on the matter. 2 After that

1 Our Supreme Court subsequently held that Megan’s Law III was unconstitutionally enacted and hence void ab initio. See Commonwealth v. McIntyre, 232 A.3d 609, 619 (Pa. 2020). By that time, the Megans’s Laws had been replaced by two versions of a Sexual Offender Registration and Notification Act (“SORNA I” and “SORNA II”). We discuss these laws further infra.

2 The trial court observed that there were “no procedural rules supporting this

filing,” and thus in essence treated it as a PCRA petition. See Trial Court Opinion, 11/4/24, at 2. However, it did not analyze whether the timing of the filing more than one year after Appellant’s judgment of sentence became final deprived it of jurisdiction to entertain it as a PCRA petition. Id. at 2 n.2. As the Pennsylvania Supreme Court ruled that the PCRA is not the sole mechanism for challenging sexual offender registration requirements, we do not treat these as PCRA proceedings or deem the PCRA’s jurisdictional time bar applicable to the petition sub judice. See Commonwealth v. Lacombe, 234 A.3d 602, 618 (Pa. 2020).

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proceeding, the court denied Appellant’s petition by order of September 24,

2024.

Appellant filed a pro se notice of appeal on September 26, 2024,

requesting therein that Attorney Hoke meet with him “prior to filing appeal

[sic].”3 Notice of Appeal, 9/26/24. The court directed Appellant to file a

Pa.R.A.P. 1925(b) statement within twenty-one days its October 10, 2024.

Fifteen days later, Appellant pro se filed (1) a Rule 1925(b) statement, and

(2) a motion for the appointment of new counsel for this appeal, complaining

therein that he had to file his own statement because Attorney Hoke did not

contact him about it.4 The trial court promptly denied Appellant’s motion,

noting that the time for filing the statement had not expired. Attorney Hoke

filed a timely statement on October 30, 2024, identifying three claims of error,

and the trial court authored a responsive Rule 1925(a) opinion.

As noted, in this Court Attorney Hoke filed both an Anders brief and a

petition seeking leave to withdraw as counsel. The following legal principles

guide our review of such requests:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth ____________________________________________

3 Notices of appeal are an exception to the general rule that a pro se filing by

a represented party in a criminal matter is a legal nullity. See, e.g., Commonwealth v. Hopkins, 228 A.3d 577, 580-81 (Pa.Super. 2020).

4 Appellant’s pro se Rule 1925(b) statement was a legal nullity. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010).

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issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate’s brief.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa.Super. 2017) (cleaned up).

Our Supreme Court has further detailed counsel’s duties as follows:

[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (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.

Santiago, 978 A.2d at 361.

As an initial matter, we observe that Anders applies when a litigant has

a constitutional right to counsel, not a statutory or rule-based right. See,

e.g., Commonwealth v. Turner, 544 A.2d 927, 929 (Pa. 1988) (“[T]he

federal constitutional considerations underlying the tortuous procedures of

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Anders do not apply under the [predecessor to the PCRA].”). In collateral

proceedings, for example, where the right is rule-based, counsel need only

indicate that the petition in question is meritless, “even if it is not so anemic

as to be deemed wholly frivolous.” Commonwealth v. Wrecks, 931 A.2d

717, 722 (Pa.Super. 2007); see also Commonwealth v. Finley, 550 A.2d

213, 215 (Pa.Super. 1988) (en banc). Since Anders imposes a higher bar for

withdrawal, we will accept an Anders brief from collateral review counsel.

See, e.g., Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa.Super.

2014).

It is unclear whether Appellant had a right to counsel in pursuing the

instant petition and, if so, from where that right stemmed.5 In any event, we

perceive that Attorney Hoke has substantially complied with the most

stringent withdrawal requirements by, pursuant to Anders, setting forth a

history of the case, referring to issues that arguably support the appeal, citing

case law pertinent to those issues, explaining why the law does not warrant

relief, and stating her conclusion that there is no support for the appeal.6

5 Pursuant to Subchapter I of SORNA II, an individual required thereby to register has a right to counsel in litigating a petition to be exempt from certain notifications after twenty-five years. See 42 Pa.C.S. § 9799.59(a)(4). We have not found a statute or rule providing for the appointment of counsel in the present circumstances.

6 While the word “frivolous” appears nowhere in the documents Attorney Hoke

submitted, we deem her pronouncement that the appeal as a whole is unwarranted as sufficiently analogous. See Petition to Withdraw, 12/20/24, (Footnote Continued Next Page)

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Attorney Hoke further sent the brief and petition to withdraw to Appellant

along with a letter advising him of his immediate right to represent himself or

hire private counsel. Appellant has not availed himself of that opportunity.

As such, we find counsel’s filings sufficient to proceed with our

independent review. The issues Attorney Hoke identified are these:

1. Whether the trial court erred and/or abused its discretion in finding that [Appellant] is correctly required to register as a sex offender for his lifetime pursuant to Megan’s Law III?

2. Whether the trial court erred and/or abused its discretion in finding that Megan’s Law/SORNA registration requirement is neither facially unconstitutional nor unconstitutional as applied to [Appellant] pursuant to Muniz and Santana?

3. Whether the trial court erred and/or abused its discretion in finding that SORNA is not unconstitutional as applied to [Appellant] when the lifetime registration requirement well exceeds the sentence that [he] is serving?

Anders brief at 4 (cleaned up).

We consider these issues together. As noted above, while Appellant was

initially advised that his rape conviction required him to register for life

pursuant to Megan’s Law III, our Supreme Court declared that statute to be

at ¶ 7 (stating the determination that an appeal from the order in question “would be meritless”); Letter to Appellant, 12/20/24, at unnumbered 1 (“I do not believe there are any meritorious issues that warrant the filing of an appeal in your case.”). See also Smith v. Com., Pennsylvania Bd. of Prob. & Parole, 574 A.2d 558, 562 (Pa. 1990) (“[T]he terms ‘wholly frivolous’ and ‘without merit’ are often used interchangeably in the Anders brief context. Whatever term is used to describe the conclusion an attorney must reach as to the appeal before requesting to withdraw and the court must reach before granting the request, what is required is a determination that the appeal lacks any basis in law or fact.” (cleaned up)).

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unconstitutional and our legislature replaced it with SORNA I. The High Court,

finding SORNA I to be a punitive regime, held that it was unconstitutional as

applied to offenders such as Appellant whose crimes predated it. See

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). Our General Assembly

then enacted SORNA II, including the SORNA I requirements in Subchapter H

to apply to individuals who committed their offenses after SORNA I’s

enactment, and the distinct registration and notification requirements of

Subchapter I to apply to persons like Appellant whose offenses predated

SORNA I’s 2012 effective date. See Commonwealth v. Crenshaw, 306

A.3d 383, 388 (Pa.Super. 2023) (discussing the genesis of Subchapter I).

SORNA II provides, inter alia, that individuals who were convicted of

rape under 18 Pa.C.S. § 3121, based upon acts committed between April 22,

1996, and December 20, 2012, are subject to lifetime registration in

accordance with Subchapter I’s mandates. The lifetime period of registration

mandated by the SORNA statutes is, even where punitive, “separate and apart

from [the] term of incarceration” such that it does not result in an illegal

sentence in excess of statutory maximum terms of incarceration allowed for

the various crimes. See Commonwealth v. Strafford, 194 A.3d 168, 173

(Pa.Super. 2018).

Our Supreme Court has ruled that the registration and notification

mandates of Subchapter I, which “effected significant changes from the

original version of SORNA” deemed to be punitive in Muniz, do not constitute

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criminal punishment and thus may be applied retroactively without violating

the constitutional prohibition on ex post facto laws. See Lacombe, 234 A.3d

at 626-27. Furthermore, the irrebuttable presumption of recidivism

underlying the lifetime registration obligation is not unconstitutional. See

Commonwealth v. Ross, 330 A.3d 1262, 1270 (Pa.Super. 2025) (discussing

Commonwealth v. Torsilieri, 316 A.3d 77, 99-100 (Pa. 2024)).

Given this legal landscape, we conclude that challenges to the

constitutionality of the application of Subchapter I’s mandates to Appellant

are wholly frivolous. Accord Commonwealth v. Barger, 325 A.3d 858, 864

(Pa.Super. 2024) (holding challenge to retroactive application of Subchapter

I to person whose reporting and notification obligations originally arose under

Megan’s Law III was “clearly meritless”).

Appellant’s claim that the defunct Megan’s Law I ten-year registration

period should apply to him is also without basis in law or fact, as we have held

that the Megan’s Law provisions superseded by the SORNA enactments cannot

serve as a basis for ordering sexual offender registration. See

Commonwealth v. Lippincott, 273 A.3d 1157 (Pa.Super. 2022) (en banc)

(ruling trial court erred in assessing registration obligations under Megan’s

Law II rather than Subchapter I).

Finally, our “simple review of the record to ascertain if there appear[s]

on its face to be arguably meritorious issues that counsel, intentionally or not,

missed or misstated[,]” has revealed no additional issues concerning the

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court’s denial of Appellant’s petition that counsel failed to address. 7 See

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.Super. 2018) (en

banc).

Therefore, we affirm the trial court’s denial of Appellant’s petition for

review of his sexual offender registration obligations and grant counsel’s

petition to withdraw.

Petition of Brandy Grace Hoke, Esquire, to withdraw as counsel granted.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 07/18/2025

7 In particular, we have reflected that, since Appellant acknowledged at the

time of his negotiated guilty plea that his rape conviction implicated lifetime registration, we perceive no viable claim that he has contractual right to a different registration duty pursuant to Commonwealth v. Hainesworth, 82 A.3d 444 (Pa.Super. 2013), and its progeny.

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