Com. v. Shambaugh, F.

• Court: Superior Court of Pennsylvania
• Decided: January 25, 2023
• Docket: 862 MDA 2022
• Status: Unpublished

Opinion

J-S39002-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREDERICK THOMAS SHAMBAUGH : : Appellant : No. 862 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002285-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREDERICK THOMAS SHAMBAUGH : : Appellant : No. 863 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002223-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREDERICK THOMAS SHAMBAUGH : : Appellant : No. 864 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002224-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-S39002-22

: v. : : : FREDERICK THOMAS SHAMBAUGH : : Appellant : No. 865 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002226-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREDERICK THOMAS SHAMBAUGH : : Appellant : No. 866 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002244-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREDERICK THOMAS SHAMBAUGH : : Appellant : No. 867 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002282-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : :

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FREDERICK THOMAS SHAMBAUGH : : Appellant : No. 868 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002248-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FREDERICK SHAMBAUGH : : Appellant : No. 889 MDA 2022

Appeal from the PCRA Order Entered May 12, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002284-2008

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 25, 2023

Frederick Thomas Shambaugh appeals from the order dismissing his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), see

42 Pa.C.S.A. §§ 9541-9546. In his PCRA petition, Stambaugh sought removal

from the sexual offender registry. Additionally, PCRA counsel, Dennis C.

Dougherty, Esquire, has filed a motion to withdraw as counsel and a no-merit

letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). Because we agree with Attorney Dougherty’s assessment that

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Shambaugh’s claim merits no relief, we grant Attorney Dougherty’s motion to

withdraw and affirm the order denying Shambaugh’s PCRA petition.

In August 2008, Shambaugh pled guilty at eight separate docket

numbers to a total of eleven counts of indecent assault – person less than 13

years old; 9 counts of corruption of minors; and two counts each of aggravated

indecent assault of a child, involuntary deviate sexual intercourse – person

less than 13 years old, indecent assault – person less than 16 years old, and

indecent exposure. These charges were based on sexual contact he had with

eight different minor victims between 1998 and 2006. See Trial Court Opinion,

8/3/22, at 2. As part of his plea agreement, Shambaugh acknowledged that

he would be required to undergo an assessment by the Sexual Offenders

Assessment Board to determine whether he would be classified as a sexually

violent predator (“SVP”). Shambaugh agreed that if he was determined to be

an SVP, he would waive his right to challenge the determination.

After a combined SVP and sentencing hearing, the trial court found

Shambaugh to be an SVP and notified him of his lifetime registration and

reporting requirements under Megan’s Law III. See 42 Pa.C.S.A. §§ 9795.1-

9799.4 (expired). The trial court also sentenced Shambaugh to an aggregate

term of 12½ to 25 years in prison. Shambaugh did not file a direct appeal.

On March 26, 2018, Shambaugh filed a pro se PCRA petition challenging

the retroactive application of the Sex Offender Registration and Notification

Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.75, based on the decisions in

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Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality), and

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (“Butler I”).1

The PCRA court appointed Shambaugh counsel, who filed an amended PCRA

petition on his behalf. In the amended PCRA petition, Shambaugh argued he

should not be required to register as an SVP under SORNA because he was

sentenced under Megan’s Law, which had different requirements.

The PCRA proceedings were temporarily stayed pending this Court’s en

banc decision in Commonwealth v. Lippincott, 208 A.3d 143 (Pa. Super.

2019) (en banc), and our Supreme Court’s decision in Commonwealth v.

Lacombe, 234 A.3d 602 (Pa. 2020). The PCRA court later lifted the stay and

issued Pa.R.Crim.P. 907 notice of its intent to dismiss Shambaugh’s petition

without a hearing. Shambaugh did not file a response. On May 12, 2022, the

PCRA court dismissed Shambaugh’s PCRA petition.2

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1 In Muniz, our Supreme Court held that registration requirements established by SORNA constitute criminal punishment rather than a civil penalty, and therefore, their retroactive application violates the ex post facto clauses of the United States and Pennsylvania Constitutions. Muniz, 164 A.3d at 1193, 1223. Later, in Butler I, this Court declared unconstitutional section 9799.24(e)(3) of SORNA, which outlined SVP designation procedures. See Butler I, 173 A.3d at 1217-18.

2 In its opinion, the PCRA court unnecessarily addressed the patent untimeliness of Shambaugh’s PCRA petition. See Lacombe, 234 A.3d at 617- 18 (clarifying that the PCRA is not the exclusive procedural mechanism under which to challenge sexual offender registration status and recognizing the inherent difficulty in applying the PCRA’s strict requirements in the sexual offender registration context, as there have been frequent changes to registration requirements and may change after a defendant’s sentence (Footnote Continued Next Page)

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Shambaugh filed timely notices of appeal at each of the eight related

dockets. This Court sua sponte consolidated the appeals. Shambaugh and the

PCRA court both complied with the dictates of Pa.R.A.P. 1925.

On September 14, 2022, Attorney Dougherty filed a Turner/Finley no-

merit letter and a motion to withdraw as counsel. Attorney Dougherty notified

Shambaugh of the motion to withdraw, sent him a copy of the Turner/Finley

no-merit letter, and informed Shambaugh of his right to proceed pro se or

retain new counsel. Shambaugh did not file a response.

As an initial matter, we must consider the adequacy of Attorney

Dougherty’s Turner/Finley filings. Pursuant to Turner/Finley, independent

review of the record by competent counsel is required before withdrawal on

collateral appeal is permitted. See Commonwealth v. Reed, 107 A.3d 137,

140 (Pa. Super. 2014).

The necessary independent review requires counsel to file a “no- merit” letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, … then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit….

becomes final). However, the court explained it did not rely on the PCRA’s requirements, and instead “denied [Shambaugh’s] claim for relief—however it was packaged or presented—because it is patently meritless.” PCRA Court Opinion, 8/3/22, at 7.

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Id. (citation omitted). Additionally, counsel must serve his client with the

application to withdraw and no-merit letter, and he must inform his client of

his right to proceed pro se or retain private counsel. See id.

Here, the record confirms that Attorney Dougherty served Shambaugh

with a copy of his motion to withdraw and no-merit letter. The letter properly

details Attorney Dougherty’s review of the record and concludes that all

possible issues would be frivolous to assert on appeal. Attorney Dougherty

served copies of his filings on Shambaugh and provided an explanation of

Shambaugh’s right to raise additional claims by proceeding pro se or by

retaining private counsel. Therefore, we conclude that Attorney Dougherty

complied with the dictates of Turner/Finley.

In the Turner/Finley letter, Attorney Dougherty raised the issue of

whether SORNA’s registration requirements, as amended by Act 10 and Act

29, imposed an unconstitutional ex post facto punishment. See

Turner/Finley Letter, 9/14/22, at 7.

Constitutional challenges to the retroactive application of SORNA

present a question of law, over which an appellate court’s scope of review is

plenary and our standard of review is de novo. See Lacombe, 234 A.3d at

608.

At the time of his guilty plea, Shambaugh was subject to the registration

requirements of Megan’s Law III. Since that time, our laws governing sexual

offender registration have undergone several changes. See generally

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Lacombe, 234 A.3d at 608-17 (explaining in detail the history of changing

sexual offender registration laws following Megan’s Law III). In response to

our Supreme Court’s decisions in Muniz and Butler I, upon which

Shambaugh relies, the General Assembly divided SORNA into two

subchapters. Relevantly, Shambaugh is now subject to the registration

requirements established in Subchapter I of SORNA because he committed

the offenses between 1998 and 2006 and his registration requirements have

not expired. See 42 Pa.C.S.A. § 9799.52(1) (providing that Subchapter I

applies to individuals who were “convicted of a sexually violent offense

committed on or after April 22, 1996, but before December 20, 2012, whose

period of registration with the Pennsylvania State Police … has not expired”);

see also Commonwealth v. Smith, 240 A.3d 654, 657 (Pa. Super. 2020)

(“Because offender registration requirements evolve pursuant to the

legislative decisions of our General Assembly, registrants must comply with

current law.” (emphasis in original)).

Our Supreme Court directly addressed the retroactive application of

Subchapter I in Lacombe. The Lacombe Court found that the registration

requirements set forth in Subchapter I are nonpunitive in nature. See

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Lacombe, 234 A.3d at 626. Therefore, retroactive application of Subchapter

I of SORNA does not violate the ex post facto clause. See id. at 626-27.3

Based upon the foregoing, Shambaugh’s lifetime registration

requirement remains valid, and he is not entitled to relief on his sole claim.

Further, our independent review of the certified record does not reveal any

other meritorious issues. We therefore grant Attorney Dougherty’s motion to

withdraw and affirm the PCRA court’s order dismissing Shambaugh’s PCRA

petition.

Motion to Withdraw as Counsel granted. Order affirmed.

President Judge Emeritus Bender joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/25/2023 ____________________________________________

3 We note that our Supreme Court concluded that the registration and notification requirements for SVPs under Subchapter H of SORNA do not constitute criminal punishment. See Commonwealth v. Butler, 226 A.3d 972, 993 (Pa. 2020) (“Butler II”). The Court held that the procedure for designating individuals as SVPs “remains constitutionally permissible” in light of the fact that the reporting requirements are nonpunitive. Id. at 976. While Butler II specifically addressed Subchapter H, which does not apply to Shambaugh, this Court has previously recognized that Subchapter H imposes more stringent standards than Subchapter I. See Commonwealth v. Alston, 212 A.3d 526, 529 (Pa. Super. 2019).

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