Com. v. Schmidt, R.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

ROBERT E. SCHMIDT :

:

Appellant : No. 638 WDA 2022

Appeal from the Order Entered May 5, 2022 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000372-2013

BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J. MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 20, 2023 Robert E. Schmidt (Appellant) appeals from the order entered in the Butler County Court of Common Pleas, denying his serial petition to vacate his registration requirements as a sexually violent predator (SVP) under the Pennsylvania Sex Offender Registration and Notification Act1 (SORNA II). On appeal, Appellant continues to argue the retroactive application of SORNA II

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1 42 Pa.C.S. §§ 9799.10 to 9799.75. The trial court did not construe Appellant’s petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541- 9545. See Commonwealth v. Elliott, 249 A.3d 1190, 1193 (Pa. Super. 2021) (challenge to SORNA II, Subchapter I requirements pertains to a collateral consequence of criminal sentence and does not fall within purview of the PCRA), appeal denied, 263 A.3d 241 (Pa. 2021).

violates Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality).2 However, we agree with the trial court that no relief is due under Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020),3 as well as Elliott, 249 A.3d 1190. Thus, we affirm.

I. Prior Procedural History On August 14, 2013, Appellant entered a negotiated guilty plea to involuntary deviate sexual intercourse with a child4 (IDSI), for acts committed sometime between June and July of 2012. On November 7, 2013, the trial court imposed the agreed-upon sentence of six to 15 years’ imprisonment and 36 months’ probation. In addition, Appellant was found to be an SVP under the then-in effect SORNA I (discussed infra), and thus ordered to comply with lifetime registration.5 Notice, 11/27/13, at 1. Appellant did not take any direct appeal.

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2 See Muniz, 164 A.3d at 1193 (SORNA I’s registration requirements constituted punishment and their retroactive application violated the constitutional prohibition against ex post facto laws).

3 See Lacombe, 234 A.3d at 626-27 (Subchapter I of SORNA II does not constitute criminal punishment, and thus retroactive application does not violate ex post facto laws).

4 18 Pa.C.S. § 3123(b). The victim was less than one year old.

5 Both the written plea agreement and the sentencing order also included the handwritten notations, “Tier III SORNA Lifetime Registration” and “Tier III SORNA Registration,” respectively. See Plea Agreement, 8/14/13; Sentence, 11/7/13, at 2. We note IDSI was classified a “Tier III” offense under SORNA I, carrying lifetime registration. See 42 Pa.C.S. §§ 9799.14(d)(4), (Footnote Continued Next Page)

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Almost four years later, on August 9, 2017, Appellant filed a pro se petition to correct or modify his purportedly illegal sentence. Appellant averred that because Muniz had ruled SORNA unconstitutional, there was no authority supporting his present reporting requirements. The trial court denied this petition on August 18th, and Appellant filed a notice of appeal.

On September 5, 2017, however, Appellant filed a pro se PCRA petition, and then on September 13th, a pro se motion to modify sentence. Both reiterated the same Muniz claim. In two separate orders, the trial court denied both motions, on the ground Appellant’s notice of appeal was pending. Appellant filed additional notices of appeal from both orders. Ultimately, the Superior Court quashed all three appeals for Appellant’s failure to file briefs. See 1233 & 1403 WDA 2017 (consolidated appeals) (order) (Pa. Super. Apr. 10, 2018); 1470 WDA 2017 (order) (Pa. Super. Feb. 12, 2018).

On May 11, 2018, Appellant filed another pro se PCRA petition, arguing his SVP designation was unconstitutional. The trial court appointed Dennis McCurdy, Esquire, who has represented Appellant through the present appeal. Counsel filed an amended PCRA petition, arguing Appellant’s SVP registration requirements contravened Muniz, as well as the then-in effect Superior Court

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9799.15(a)(3). However, both Appellant’s underlying motion and his appellate brief aver only that he is subject to SVP registration, and make no mention of any Tier III registration.

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decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I),6 rev’d, 226 A.3d 972 (Pa. 2020) (Butler II).

On October 2, 2018, the trial court issued an order, staying the issue of Appellant’s SVP designation pending the Pennsylvania Supreme Court’s decision in Butler II. Meanwhile, we note:

[I]n response to Muniz and Butler I, the Pennsylvania General Assembly amended SORNA I by enacting [SORNA II].

SORNA II now divides sex offenders into two subchapters: (1)

Subchapter H, which applies to an offender who committed a sexually violent offense on or after December 20, 2012 (the date SORNA I became effective); and (2) Subchapter I, which applies to an individual who committed a sexually violent offense on or after April 22, 1996, but before December 20, 2012, whose period of registration has not expired, or whose registration requirements under a former sexual offender registration law have not expired. . . .

Elliott, 249 A.3d at 1193 (paragraph break added). Appellant, who committed his offenses in June or July of 2012, is subject to Subchapter I. His SVP designation carries a lifetime registration requirement under Subchapter I of SORNA II. See 42 Pa.C.S. § 9799.55(b)(3).

On August 7, 2019 — while the trial court’s December 2, 2018, stay order was apparently still in effect — Appellant filed a counseled motion for reconsideration of sentence, again relying on Muniz and arguing the

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6 See Butler I, 173 A.3d at 1217-18 (SVP designations and registration requirements were “increased criminal punishment” and thus violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013)).

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retroactive application of SORNA was an ex post facto violation.7 On December 16th, Counsel filed a memorandum of law, citing both Muniz and the Superior Court’s decision in Butler I. On January 3, 2020, the trial court issued a second stay order, holding a decision on Appellant’s claims pending decisions by the Pennsylvania Supreme Court.

On March 26, 2020, the Supreme Court decided Butler II, reversing the Superior Court’s decision. By this time, SORNA II was in effect, and the Butler II Court determined the Subchapter H registration requirements, applicable to SVPs, did not constitute criminal punishment, and thus Apprendi and Alleyne were not implicated. Butler II, 226 A.3d at 993.

Additionally, on July 21, 2020, the Pennsylvania Supreme Court decided Lacombe, which upheld the constitutionality of Subchapter I. The Court held Subchapter I did not constitute criminal punishment, and thus its retroactive application did not violate ex post facto laws or Muniz. See Lacombe, 234 A.3d at 626-27.

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7 A September 25, 2019, entry on the trial docket is entitled, “Penalty Satisfied.” However, there is no corresponding document in the certified record explaining this notation.

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On December 2, 2020, the trial court denied Appellant’s August 7, 2019, motion for reconsideration of sentence. In support, the court cited Butler II8 and Lacombe.

II. Instant Petitions to Vacate Illegal Sentence Despite the trial court’s December 2, 2020, order, Appellant’s counsel filed the underlying motion to vacate an illegal sentence on November 10, 2021, and an amended motion on February 9, 2022. Neither motion addressed Lacombe, but again argued that Muniz found “the older registry laws . . . unconstitutional” and thus any application of the amended SORNA provisions would violate the ex post facto clauses of the state and federal constitutions. See Appellant’s Motion to Vacate Illegal Sentence, 11/10/21, at 1.

The trial court denied both motions on May 5, 2022. Appellant filed a timely notice of appeal and complied with the court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

III. Appellant’s Argument On appeal, Appellant presents one issue for our review:

Whether the Court properly applied the caselaw to the instant case as the matter was analyzed under . . . Butler and its progeny rather than through a thorough review of the statutory history of SORNA in all its configurations prior and subsequent and

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8 We note, however, that Butler II would not apply to Appellant’s case, as, again, that decision addressed Subchapter H, while Appellant’s SVP registration requirements arose from Subchapter I.

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its statutory exceptions wherein. [Appellant] was sentenced in a period that was exempted statutorily and regardless of the determination of it not being a criminal sentence, it is a sentence, and is applied ex post facto creating an illegal sentence that must be vacated under the law existing at the time of his sentencing.

Appellant’s Brief at viii.

We observe Appellant again fails to make any reference to the Lacombe decision, which was the basis for the trial court’s decision, nor even any mention of the Subchapter H and Subchapter I designations of SORNA II. Instead, Appellant continues to argue: (1) Muniz held that retroactive application of the SORNA registration requirements violated the ex post facto clause; and (2) because he committed his offenses before “all Megan’s Law and SORNA requirements, [he] is to be relieved of all penalties . . . not in place at the commission of his crime[.]” Appellant’s Brief at 4-5. Appellant also cites the Butler I decision, which held the SORNA I’s SVP designations were unconstitutional. Appellant’s Brief at 5. In a footnote, he acknowledges merely that Butler I was overruled, but presents no further discussion on the Butler II holding. See id. at 6 n.2. We conclude no relief is due.

IV. Analysis

Appellant’s challenge to his SVP designation and registration requirements presents a challenge to the legality of his sentence. See Commonwealth v. Prieto, 206 A.3d 529, 534 (Pa. Super. 2019). “Issues relating to the legality of a sentence are questions of law. Our standard of

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review over such questions is de novo and our scope of review is plenary.” Id. (citation omitted).

We determine Appellant’s claim falls squarely under this Court’s decision in Elliott, 249 A.3d 1190. In that case, the defendant was found to be an SVP in 2012 under then-in effect SORNA I. Id. at 1191. In 2018, the defendant filed a petition, arguing that because Muniz found SORNA was unconstitutional under the ex post facto clauses, his SVP designation was likewise unconstitutional and should be vacated. Id. at 1191-92.

On appeal,9 this Court rejected this ex post facto argument. Elliott, 249 A.3d at 1194. We reasoned:

[The defendant] fails to acknowledge the Court’s holding in Lacombe that Subchapter I’s [registration] requirements do not constitute criminal punishment. Lacombe, 234 A.3d at 626.

Additionally, in Butler II, our Supreme Court determined that the . . . requirements applicable to SVPs under Subchapter H are non-punitive[.]

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While here, [the defendant] was deemed an SVP under Subchapter I, this Court has observed that “Subchapter I contains less stringent reporting requirements than Subchapter H . . . .”

Commonwealth v. Alston, . . . 212 A.3d 526, 529 (Pa. Super.

2019). Because Subchapter I’s [registration] requirements applicable to SVPs are less burdensome than are Subchapter H’s requirements for SVPs, it must be the case that Subchapter I’s

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9 The defendant had framed his motion as a PCRA petition, and the trial court dismissed it as untimely under the PCRA filing requirements. Elliott, 249 A.3d at 1191-92. On appeal, this Court found error in the trial court’s construing the motion under the PCRA, but ultimately denied relief on the merits, as we discuss infra. See id. at 1193-94.

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[registration] requirements for SVPs also do not constitute criminal punishment, given our Supreme Court’s decision in Butler II. Thus, we deem meritless [the defendant’s] argument that his [registration] requirements are punitive and violative of the ex post facto clause.

Id. at 1194.

Appellant’s present argument is identical to the one presented in Elliott.

We apply the Elliott Court’s reasoning here, and conclude no relief is due.

V. Conclusion

For the foregoing reasons, we affirm the order of the trial court denying Appellant’s motion for reconsideration of sentence.

Order affirmed.

Judge Nichols joins the Memorandum.

Judge Kunselman Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/20/2023