J-S22001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL SINGLETON : : Appellant : No. 1577 MDA 2020
Appeal from the Judgment of Sentence Entered November 4, 2020 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001519-2019
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 15, 2021
This matter returns to this Court after we remanded to the trial court to
hold a hearing to determine whether Michael Singleton wished to proceed with
his appeal from his judgment of sentence for failure to register as a sex
offender with counsel or pro se. The trial court held the hearing, and Singleton
elected to proceed with counsel. Counsel filed an amended Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, essentially claiming that
requiring Singleton to register as a sex offender pursuant to Subchapter I of
the Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§§ 9799.51-9799.75, violated the constitutional prohibition against ex post
facto laws. Counsel has now filed a brief pursuant to Anders v. California,
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S22001-21
386 U.S. 738 (1967), and an application to withdraw from representation. We
grant the application, and affirm Singleton’s judgment of sentence for his
failure to register as a sex offender.
Singleton pled guilty in 2003 to committing a lewd act with a child in
South Carolina. The underlying sexual offense took place sometime between
2000 and 2001. In 2019, Singleton moved to Scranton, Pennsylvania and by
his own admission, did not comply with Subchapter I’s registration
requirements as a tier II sex offender within the requisite time period. See 42
Pa.C.S.A. § 9799.56(a); id. at § 9799.55(a). He was charged with a single
count of violating 18 Pa.C.S.A. § 4915.1(a)(2) for failing to notify authorities
of his address change and to be photographed.
Singleton was appointed counsel, but he continued to file documents
pro se. Singleton indicated a desire to proceed pro se, but then indicated
otherwise in his written waiver of counsel colloquy. The court ordered counsel
of record to remain as counsel in an order filed on September 25, 2020. On
November 4, 2020, Singleton pled guilty for failing to register as a sex
offender pursuant to 18 Pa.C.S.A. § 4915.1(a)(1).1 However, the court
learned that Singleton had mailed a pro se notice of appeal from the court’s
order denying his request to proceed pro se. Singleton withdrew the notice of
1 Pursuant to the plea agreement, Singleton pled guilty to a violation of 18
Pa.C.S.A § 4915.1(a)(1), graded as a felony of the third degree, as opposed to his original charge for violating 18 Pa.C.S.A. § 4915.1 (a)(2), which had been graded as a felony of the second degree.
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appeal and the court accepted Singleton’s guilty plea. The court sentenced
Singleton to 11 ½ to 23 months’ imprisonment.
Singleton filed a pro se notice of appeal. He then filed a pro se
application for relief. The Office of the Public Defender of Lackawanna County
entered its appearance on behalf of Singleton on March 1, 2021. On March 4,
2021, this Court remanded to the trial court to hold a hearing to determine
whether Singleton wished to proceed pro se or with counsel. The court held
the hearing and issued an order finding that Singleton “unequivocally wishes
to pursue his appeal with the assistance of appointed counsel.” Trial Court
Order, 3/12/21. The court therefore directed appointed counsel to continue as
Singleton’s counsel. See id. Counsel filed a supplemental Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, raising two issues:
A. Whether this court abused its discretion and committed an error of law and imposed an illegal sentence when it determined that [A]ppellant’s conviction under SORNA’s punitive registration law did not violate state and federal ex post facto laws where the sexual offense occurred in South Carolina in 2003 prior to the enactment of Pennsylvania SORNA registration’s requirements.
B. Whether this court erred when it determined that Appellant was unconstitutionally subject to registration requirements under … SORNA in violation of Commonwealth v. Santana, 241 A.3d 660 (Pa. Super. 2020) and Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert denied sub nom. Pennsylvania v. Muniz[,] [-]--U.S. ---[,]138 S.Ct. 925 (2018)[.]
Amended Statement of Matters Complained of on Appeal, 3/15/21, at 1
(unpaginated).
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The trial court issued a supplemental Pa.R.A.P. 1925(a) opinion
addressing these two issues. The court initially found that both of the issues
were waived as they were outside the scope of issues Singleton was allowed
to raise on appeal in light of the fact that he had entered a guilty plea. In any
event, the court found that Singleton’s issues were clearly without merit under
our Supreme Court’s decision in Commonwealth v. LaCombe, 234 A.3d 602
(Pa. 2020) (holding that Subchapter I of SORNA is nonpunitive and does not
violate prohibition against ex post facto laws) .
Counsel subsequently filed an Anders brief, agreeing with the court that
the two issues raised in the supplemental 1925(b) statement were meritless
pursuant to LaCombe. Counsel also indicated that there were no other non-
frivolous issues to appeal, and, along with the Anders brief, filed an
application to withdraw from representation. As a threshold matter, we have
reviewed counsel’s brief and application and conclude that they meet the
requirements set forth for counsel seeking to withdraw from representation
on direct appeal. See Commonwealth v. Orellana, 86 A.3d 877, 879-880
(Pa. Super. 2014).2 Accordingly, we turn to our own review of the appeal to
2 Specifically, counsel seeking to withdraw from representation on direct appeal under Anders must file a brief that: 1) provides a summary of the procedural history and facts; 2) refers to anything in the record that counsel believes arguably supports the appeal; and 3) sets forth counsel’s conclusions that the appeal is frivolous, and the reasons for that conclusion. See id. Counsel must also provide a copy of the Anders brief to his client, with an accompanying letter that advises the client of his right to: 1) retain new (Footnote Continued Next Page)
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determine if it is wholly frivolous. See Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa. Super. 2007) (stating that once an appellate court determines
that counsel’s application and brief satisfy Anders, the court must then
conduct its own review of the appeal to determine if it is wholly frivolous).
In doing so, we agree with the trial court, the Commonwealth and
Singleton’s counsel that Singleton’s judgment of sentence for his failure to
register did not violate the prohibition against ex post facto laws. There is no
dispute that it is Subchapter I of SORNA that applies to Singleton, as that
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J-S22001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL SINGLETON : : Appellant : No. 1577 MDA 2020
Appeal from the Judgment of Sentence Entered November 4, 2020 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001519-2019
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 15, 2021
This matter returns to this Court after we remanded to the trial court to
hold a hearing to determine whether Michael Singleton wished to proceed with
his appeal from his judgment of sentence for failure to register as a sex
offender with counsel or pro se. The trial court held the hearing, and Singleton
elected to proceed with counsel. Counsel filed an amended Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, essentially claiming that
requiring Singleton to register as a sex offender pursuant to Subchapter I of
the Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§§ 9799.51-9799.75, violated the constitutional prohibition against ex post
facto laws. Counsel has now filed a brief pursuant to Anders v. California,
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S22001-21
386 U.S. 738 (1967), and an application to withdraw from representation. We
grant the application, and affirm Singleton’s judgment of sentence for his
failure to register as a sex offender.
Singleton pled guilty in 2003 to committing a lewd act with a child in
South Carolina. The underlying sexual offense took place sometime between
2000 and 2001. In 2019, Singleton moved to Scranton, Pennsylvania and by
his own admission, did not comply with Subchapter I’s registration
requirements as a tier II sex offender within the requisite time period. See 42
Pa.C.S.A. § 9799.56(a); id. at § 9799.55(a). He was charged with a single
count of violating 18 Pa.C.S.A. § 4915.1(a)(2) for failing to notify authorities
of his address change and to be photographed.
Singleton was appointed counsel, but he continued to file documents
pro se. Singleton indicated a desire to proceed pro se, but then indicated
otherwise in his written waiver of counsel colloquy. The court ordered counsel
of record to remain as counsel in an order filed on September 25, 2020. On
November 4, 2020, Singleton pled guilty for failing to register as a sex
offender pursuant to 18 Pa.C.S.A. § 4915.1(a)(1).1 However, the court
learned that Singleton had mailed a pro se notice of appeal from the court’s
order denying his request to proceed pro se. Singleton withdrew the notice of
1 Pursuant to the plea agreement, Singleton pled guilty to a violation of 18
Pa.C.S.A § 4915.1(a)(1), graded as a felony of the third degree, as opposed to his original charge for violating 18 Pa.C.S.A. § 4915.1 (a)(2), which had been graded as a felony of the second degree.
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appeal and the court accepted Singleton’s guilty plea. The court sentenced
Singleton to 11 ½ to 23 months’ imprisonment.
Singleton filed a pro se notice of appeal. He then filed a pro se
application for relief. The Office of the Public Defender of Lackawanna County
entered its appearance on behalf of Singleton on March 1, 2021. On March 4,
2021, this Court remanded to the trial court to hold a hearing to determine
whether Singleton wished to proceed pro se or with counsel. The court held
the hearing and issued an order finding that Singleton “unequivocally wishes
to pursue his appeal with the assistance of appointed counsel.” Trial Court
Order, 3/12/21. The court therefore directed appointed counsel to continue as
Singleton’s counsel. See id. Counsel filed a supplemental Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, raising two issues:
A. Whether this court abused its discretion and committed an error of law and imposed an illegal sentence when it determined that [A]ppellant’s conviction under SORNA’s punitive registration law did not violate state and federal ex post facto laws where the sexual offense occurred in South Carolina in 2003 prior to the enactment of Pennsylvania SORNA registration’s requirements.
B. Whether this court erred when it determined that Appellant was unconstitutionally subject to registration requirements under … SORNA in violation of Commonwealth v. Santana, 241 A.3d 660 (Pa. Super. 2020) and Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert denied sub nom. Pennsylvania v. Muniz[,] [-]--U.S. ---[,]138 S.Ct. 925 (2018)[.]
Amended Statement of Matters Complained of on Appeal, 3/15/21, at 1
(unpaginated).
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The trial court issued a supplemental Pa.R.A.P. 1925(a) opinion
addressing these two issues. The court initially found that both of the issues
were waived as they were outside the scope of issues Singleton was allowed
to raise on appeal in light of the fact that he had entered a guilty plea. In any
event, the court found that Singleton’s issues were clearly without merit under
our Supreme Court’s decision in Commonwealth v. LaCombe, 234 A.3d 602
(Pa. 2020) (holding that Subchapter I of SORNA is nonpunitive and does not
violate prohibition against ex post facto laws) .
Counsel subsequently filed an Anders brief, agreeing with the court that
the two issues raised in the supplemental 1925(b) statement were meritless
pursuant to LaCombe. Counsel also indicated that there were no other non-
frivolous issues to appeal, and, along with the Anders brief, filed an
application to withdraw from representation. As a threshold matter, we have
reviewed counsel’s brief and application and conclude that they meet the
requirements set forth for counsel seeking to withdraw from representation
on direct appeal. See Commonwealth v. Orellana, 86 A.3d 877, 879-880
(Pa. Super. 2014).2 Accordingly, we turn to our own review of the appeal to
2 Specifically, counsel seeking to withdraw from representation on direct appeal under Anders must file a brief that: 1) provides a summary of the procedural history and facts; 2) refers to anything in the record that counsel believes arguably supports the appeal; and 3) sets forth counsel’s conclusions that the appeal is frivolous, and the reasons for that conclusion. See id. Counsel must also provide a copy of the Anders brief to his client, with an accompanying letter that advises the client of his right to: 1) retain new (Footnote Continued Next Page)
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determine if it is wholly frivolous. See Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa. Super. 2007) (stating that once an appellate court determines
that counsel’s application and brief satisfy Anders, the court must then
conduct its own review of the appeal to determine if it is wholly frivolous).
In doing so, we agree with the trial court, the Commonwealth and
Singleton’s counsel that Singleton’s judgment of sentence for his failure to
register did not violate the prohibition against ex post facto laws. There is no
dispute that it is Subchapter I of SORNA that applies to Singleton, as that
Subchapter was enacted in 2018 to apply to sexual offenders who, like
Singleton, committed their crimes between April 22, 1996 and December 20,
2012. As our Supreme Court stated in LaCombe, the retroactive application
of Subchapter I “became the operative version of SORNA for those sexual
offenders whose crimes occurred between April 22, 1996 and December 20,
2012.” 234 A.3d at 615.3 LaCombe directly addressed the question of
counsel to pursue the appeal; 2) proceed pro se; or 3) raise additional points deemed worthy of the Court’s attention. See id. at 880. Counsel for Singleton substantially complied with these requirements here. 3 LaCombe provides a detailed summary of the original SORNA statute that
became effective December 20, 2012, our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality) (holding that the retroactive application of SORNA to those who committed their offenses prior to December 20, 2012 was unconstitutional), and the General Assembly’s legislative response to Muniz in 2018. See LaCombe, 234 A.3d at 608-617. As for the latter, the General Assembly divided SORNA into two distinct subchapters: Subchapter H, which applies to sex offenders whose underlying conduct occurred after December 20, 2012 and Subchapter I, (Footnote Continued Next Page)
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whether that retroactive application of Subchapter I constituted a violation of
the prohibition against ex post facto laws. Our Supreme Court held in no
uncertain terms that Subchapter I is nonpunitive and is therefore not an
unconstitutional ex post facto law. See id. at 605-606; 626-627. As such,
even if Singleton’s challenges are not waived, they necessarily fail under
LaCombe.
In her Anders brief, counsel forwards Singleton’s contention that it is
actually this Court’s opinion in Commonwealth v. Santana, 241 A.3d 660
(Pa. Super. 2020), petition for allowance of appeal granted, 252 A.3d 590 (Pa.
2021), rather than LaCombe, that governs his case. The Santana Court held
that it was an ex post facto violation for the Commonwealth to charge and
convict Santana for failing to register as a sex offender under the version of
SORNA then in effect for a 1983 rape in New York. Importantly, however, as
both Singleton’s counsel and the Commonwealth point out, Santana did not
involve Subchapter I of SORNA. Unlike Singleton, Santana was subject to
SORNA’s registration requirements before Subchapter I was enacted in 2018.
Here, in contrast, Singleton was charged with violating SORNA’s registration
which, as noted above, applies to sex offenders whose underlying conduct occurred between April 22, 1996 and December 20, 2012. See id. at 607 n.4.
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requirements in 2019, after Subchapter I had been enacted. 4 Therefore,
Singleton, unlike Santana, was subject to the registration requirements of
Subchapter I, which LaCombe clearly and definitively held is not punitive and
is not an unconstitutional ex post facto law.
We therefore agree with counsel that the two issues Singleton wished
to raise on appeal are without merit. We have reviewed the record and the
appeal and do not discern any other claims that are non-frivolous. Accordingly,
we grant counsel’s application to withdraw and affirm Singleton’s judgment of
sentence.
Application to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/15/2021
4 Moreover, Subchapter I only applies to sexual offenses committed between
April 22, 1996 but before December 20, 2012, and Santana committed rape in 1983. As noted above, Singleton’s sexual offense occurred between 2001 and 2002, within Subchapter I’s timeframe. We recognize that the Santana Court noted the issue of whether the Commonwealth could constitutionally subject Santana to Subchapter I’s registration provisions was not before the Court and so the Court’s decision did not address that issue or Subchapter I in general. See Santana, 241 A.3d at 669 n.10. There is no question here that Subchapter I applied to Singleton.
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