Com. v. Schmidt, R.

• Court: Superior Court of Pennsylvania
• Decided: April 20, 2023
• Docket: 638 WDA 2022
• Status: Unpublished

Opinion

J-A25041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-A25041-22

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.

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

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

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.

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 ____________________________________________

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[.]

* * *

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 ____________________________________________

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

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