Com. v. Major, J.

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J-S15029-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  JOHN R. MAJOR, JR.                           :
                                               :
                       Appellant               :     No. 1317 WDA 2020

             Appeal from the Order Entered November 19, 2020
     In the Court of Common Pleas of Allegheny County Criminal Division
                      at No(s): CP-02-CR-0005251-2011


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                              FILED: July 14, 2021

       John R. Major, Jr. (Appellant) appeals pro se from the order granting his

request to proceed pro se, vacating the June 9, 20201 order dismissing his

PCRA petition as untimely, and denying the petition on merits. We affirm in

part, reverse in part, vacate in part, and remand.

       The underlying facts are fully set forth in this Court’s decision on direct

appeal. See Commonwealth v. Major,
2014 WL 10965205
(Pa. Super. Apr.

23, 2014) (unpublished memorandum).                Briefly, on March 6, 2012, a jury




____________________________________________


* Retired Senior Judge assigned to the Superior Court.


1 The PCRA court signed the order on May 9, 2020, but it was not filed until

June 9, 2020.
J-S15029-21


convicted Appellant of involuntary deviate sexual intercourse 2 and related

crimes. The charges arose from Appellant’s sexual abuse of his fourteen-year-

old daughter over a period of nearly two years, and an eight-hour armed

standoff between Appellant and police, during which he held his disabled

seven-year-old son hostage.          On June 11, 2012, the trial court sentenced

Appellant to an aggregate 26 - 52 years in prison. At sentencing, the court

noted Appellant had undergone a Sexually Violent Predator (SVP) assessment,

after which the Pennsylvania Sexual Offender Assessment Board (SOAB)

recommended Appellant be designated an SVP. N.T., 6/11/12, at 6. However,

at Appellant’s request, the court bifurcated the proceedings and postponed

the SVP hearing for Appellant to obtain an independent assessment. Id. at 8.

The record indicates no further action was taken in this regard and an SVP

hearing did not occur. N.T., 8/24-25/17, at 155. Thus, the trial court never

determined whether Appellant was an SVP. Nonetheless, Appellant filed an

appeal, and on April 23, 2014, this Court affirmed his judgment of sentence.

Major, supra.         Appellant did not seek allowance of appeal with the

Pennsylvania Supreme Court.

                               PCRA Procedural History

       On April 3, 2015, Appellant pro se filed a PCRA petition. The procedural

history that followed is convoluted. Ultimately, the PCRA court denied all of


____________________________________________


2 18 Pa.C.S.A. § 3123.




                                           -2-
J-S15029-21


Appellant’s claims except those challenging the legality of sentence pursuant

to the Pennsylvania Supreme Court’s decision in Commonwealth v. Wolfe,
140 A.3d 651
(Pa. 2016).      On August 25, 2017, the court resentenced

Appellant, again to 26 - 52 years in prison. During resentencing, the court

emphasized it was not sentencing Appellant to any mandatory minimums.

N.T., 8/25/17, at 152-54. Following a discussion about the Supreme Court’s

decision in Commonwealth v. Muniz,
164 A.3d 1189
(Pa. 2017), the court

informed Appellant he would be “a lifetime Megan’s Law registrant.” Id. at

161. Appellant did not appeal.

     On November 1, 2017, Appellant filed what the trial court deemed an

untimely post-sentence motion. The court dismissed the motion on November

15, 2017. Appellant appealed. On October 15, 2018, this Court found the

trial court erred in treating Appellant’s filing as an untimely post-sentence

motion rather than a timely PCRA petition. Commonwealth v. Major,
2018

WL 4957913
, at *3 (Pa. Super. Oct. 15, 2018) (unpublished memorandum).

We noted that Appellant had not appealed from the August 28, 2017 order

denying his non-sentencing PCRA claims, and explained:

     any non-sentencing/PCRA issues related to the August 28th Order
     have been waived. The only viable issues are sentencing issues
     related to the August 25, 2017 resentencing which, as we have
     explained, are subject to the PCRA.

     Accordingly, we vacate the order denying [Appellant’s] post-
     sentence motion and remand for the appointment of counsel
     (should [Appellant] desire) and further proceedings under the
     PCRA consistent with this memorandum.


                                    -3-
J-S15029-21


Id. at *5.

       On October 22, 2019, in response to this Court’s decision, the PCRA

court issued an order deeming Appellant’s November 1, 2017 pleading to be

a PCRA petition, and providing Appellant time to either file an amended

petition, indicate he would not file one, or request appointment of counsel.

After requesting and receiving multiple extensions of time, Appellant, pro se

filed an amended PCRA petition on January 22, 2020. On February 19, 2020,

the court filed notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, stating,

“after a thorough review of the record, the [c]ourt finds the claims presented

are without merit.” Notice of Intention to Dismiss, 2/19/20.

       On March 25, 2020,3 Appellant moved to stay the PCRA proceedings

pending resolution of his petition for a writ of habeas corpus in the United

States District Court for the Western District of Pennsylvania. Motion for Stay

of PCRA Proceedings, 3/25/20, at 2-4 (unnumbered). The PCRA court denied

the motion on May 1, 2020.4 On June 9, 2020, the PCRA court issued an order

stating “[Appellant’s] Post-Conviction Relief Act Petition is untimely filed and

exceptions to the timeliness requirement have not been met.” Order of Court,

6/9/20.


____________________________________________


3 The motion is signed and dated March 10, 2020.


4 On March 16, 2020, United States Magistrate Judge Maureen P. Kelly stayed

Appellant’s federal proceedings pending completion the instant matter. Major
v. Gilmore,
2020 WL 8996838
, at *4 (W.D.Pa. Mar. 16, 2020) (unpublished
order).

                                           -4-
J-S15029-21


       On June 24, 2020, Appellant filed a “Motion to Vacate Order,” in which

he correctly asserted that his PCRA petition was timely and the dismissal was

improper. Motion to Vacate Order, 6/24/20, at 1-2. The PCRA court denied

the motion to vacate on July 30, 2020. Appellant filed a notice of appeal at

884 WDA 2020, which is a companion to this case.5

       On November 10, 2020, the PCRA court held a hearing pursuant to

Commonwealth v. Grazier,
713 A.2d 81
(Pa. 1998).          On November 19,

2020, the court entered an order permitting Appellant to proceed pro se; sua

sponte vacated its June 9, 2020 order dismissing Appellant’s PCRA petition as

untimely; and dismissed Appellant’s amended PCRA petition based on

Appellant’s claims being “without arguable merit.”   Order, 11/19/20, at 4.

This appeal followed. Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925(b).

       Appellant raises the following issues:

       I. DID THE TRIAL COURT ERROR [sic] SHOWING BIAS AND
       PREJUDICE, WHEN SHE DENIED THE APPELLANT’S MOTION TO
       VACATE AN ORDER THAT WAS FACTUALLY INCORRECT, ILLEGAL
       AND OUTDATED; AND WAS NOT IN FACT SIGNED BY THE TRIAL
       JUDGE ASSIGNED TO THIS CASE?

       II. SHOULD THE TRIAL COURT RECUSE HERSELF PROM THIS
       CASE, DUE TO CONTINUED BIAS AND PREJUDICE THAT HAS LED
       TO IRREGULARITIES, MISTAKES, MIS-REPRESENTATIONS OF
       THE FACTS, A FAILURE TO ACT IN A FAIR AND HONEST MANNER,
       WHICH HAS CAUSED THE APPELLANT TO SUFFER A WILLFUL


____________________________________________


5We issued a judgment order quashing the appeal in Commonwealth v.
Major, 884 WDA 2020.

                                           -5-
J-S15029-21


      DENIAL OF DUE PROCESS BY THE TRIAL COURT, THUS CAUSING
      [sic] INTO QUESTION THE INTEGRITY OF THE COURT ITSELF?

      III. DID THE TRIAL COURT SHOW BIAS AND PREJUDICE AT TRIAL
      SENTENCING AND RESENTENCING; WHEN IT SENTENCED THE
      APPELLANT TO A SENTENCE THAT WAS UNREASONABLY
      EXCESSIVE,     VIOLATED   THE  EIGTH   [sic] AMENDMENT
      PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT, AND
      WAS TANTAMOUNT TO A LIFE SENTENCE?

      IV. DID THE TRIAL COURT ERROR [sic] WHEN IT RESENTENCED
      THE APPPELLANT TO MEGAN'S LAW III; AFTER MEGAN'S LAW III
      AND SORNA WERE DEEMED TO BE UN-CONSTITUTIONAL?

Appellant’s Brief at 4.

      We begin by addressing jurisdiction. Pennsylvania law provides:

      Except as otherwise provided or prescribed by law, a court upon
      notice to the parties may modify or rescind any order within 30
      days after its entry, notwithstanding the prior termination of any
      term of court, if no appeal from such order has been taken
      or allowed.

42 Pa.C.S.A. § 5505 (emphasis added). The Pennsylvania Rules of Appellate

Procedure provide:

      (a) General rule.--Except as otherwise prescribed by these
      rules, after an appeal is taken or review of a quasijudicial order is
      sought, the trial court or other government unit may no longer
      proceed further in the matter.

      (b) Authority of a trial court or other government unit after
      appeal.--After an appeal is taken or review of a quasijudicial
      order is sought, the trial court or other government unit may:

      (1) Take such action as may be necessary to preserve the status
      quo, correct formal errors in papers relating to the matter, cause
      the record to be transcribed, approved, filed, and transmitted,
      grant leave to appeal in forma pauperis, grant supersedeas, and
      take other action permitted or required by these rules or otherwise
      ancillary to the appeal or petition for review proceeding.


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Pa.R.A.P. 1701(a) and (b)(1).

      Here, the PCRA court vacated the June 9, 2020 order on November 19,

2020, outside the thirty-day period, and while the case was on appeal.

Although this Court had ordered the PCRA court to conduct a Grazier hearing,

we retained jurisdiction “pending compliance with this order.” Order, 10/26/20.

Thus, the PCRA court did not have jurisdiction to vacate the June 9, 2020 order

under 42 Pa.C.S.A. § 5505, and it is not clear whether there were “formal errors

in papers” as stated in Pa.R.A.P. 1701.

      However, there are exceptions to the general rule that an appeal divests

a trial court of jurisdiction. One exception is a trial court’s “inherent power”

to correct “patent and obvious errors.” Commonwealth v. Hoover,
231 A.3d

785
, 792 (Pa. 2020) (Opinion Announcing Judgment of the Court) (quoting

Commonwealth v. Holmes,
933 A.2d 57, 67
(Pa. 2007)); see also

Commonwealth v. Hansley,
47 A.3d 1180, 1189
(Pa. 2012) (“Thus, under

limited circumstances, even where the court would normally be divested of

jurisdiction, a court may have the power to correct patent and obvious

mistakes.”). This power may be exercised in circumstances even after a notice

of appeal has been filed to correct “a patent defect or mistake in the record.”

Commonwealth v. Klein,
781 A.2d 1133, 1135
(Pa. 2001).

      The June 9, 2020 order dismissing Appellant’s PCRA as untimely

contained a patent and obvious error, as this Court had already determined

that the PCRA petition was timely. See Commonwealth v. Major, 2018 WL


                                     -7-
J-S15029-21


4957913, at *4. Moreover, on remand, the PCRA court treated the petition

as timely, permitting Appellant to amend, and then finding the petition to lack

merit. While the PCRA court has not explained the confusion,6 it appears the

court had the “inherent power to correct.” Klein,
781 A.2d at 1135
(citations

omitted). Accordingly, we conclude the court had jurisdiction to vacate the

June 9, 2020 order and enter the November 19, 2020 order. We therefore

address Appellant’s issues.

       It is well-settled that in reviewing the denial of PCRA relief, “we examine

whether the PCRA court’s determination is supported by the record and free

of legal error.”    Commonwealth v. Fears,
86 A.3d 795, 803
(Pa. 2014)

(citations omitted).      “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, [that] his conviction or

sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A.

§ 9543(a)(2).” Id.

       “[A]lthough this Court is willing to construe liberally materials filed by a

pro se litigant, pro se status generally confers no special benefit upon an

appellant.” Commonwealth v. Adams,
882 A.2d 496, 498
(Pa. Super. 2005)

(citation omitted). “To the contrary, any person choosing to represent himself



____________________________________________


6 The PCRA court has not explained why the error was not rectified within 30

days, or why it denied the motion to vacate when Appellant identified the
error. Were we to find the PCRA court lacked jurisdiction to vacate the June
9, 2020 order, Appellant would be adversely impacted as a result of the
breakdown in the process of the PCRA court.

                                           -8-
J-S15029-21


in a legal proceeding must, to a reasonable extent, assume that his lack of

expertise and legal training will be his undoing.”
Id.
Instantly, Appellant’s

arguments are rambling, repetitive, and for the most part, lacking citation to

pertinent legal authority. However, we address Appellant’s issues as best we

discern them.

      In his first issue, Appellant claims the PCRA court erred in denying his

motion to vacate. Appellant’s Brief at 14-16. The Commonwealth correctly

observes this issue is moot because the PCRA court vacated the June 9, 2020

order in its November 19, 2020 order. Commonwealth Brief at 16-17.             We

agree. See Commonwealth v. Nava,
966 A.2d 630, 633
(Pa. Super. 2009)

(“An issue before a court is moot if in ruling upon the issue the court cannot

enter an order that has any legal force or effect.”); see also In re Gross,
382 A.2d 116, 119
(Pa. 1978) (“[A] legal question can become moot on appeal

as the result of an intervening change in the facts of the case.”).

      In his second issue, Appellant contends:

      . . . the trial court should recuse herself (Judge Rangos) due to
      continued bias and prejudice. This had led to irregularities,
      blatant and willful mistakes, deliberate misrepresentation of the
      facts, and a failure to act in a fair and honest manner. This had
      caused the Appellant to suffer a willful denial of due process by
      the trial court, thus calling into question the integrity of the court
      itself[.]

Appellant’s Brief at 17. We disagree.

            Our standard of review of a trial court’s determination not
      to recuse from hearing a case is exceptionally deferential. We
      recognize that our trial judges are honorable, fair and competent,
      and although we employ an abuse of discretion standard, we do

                                      -9-
J-S15029-21


      so recognizing that the judge himself is best qualified to gauge his
      ability to preside impartially.

            As a general rule, a motion for recusal is initially
            directed to and decided by the jurist whose
            impartiality is being challenged. In considering a
            recusal request, the jurist must first make a
            conscientious determination of his or her ability to
            assess the case in an impartial manner, free of
            personal bias or interest in the outcome. The jurist
            must then consider whether his or her continued
            involvement in the case creates an appearance of
            impropriety and/or would tend to undermine public
            confidence in the judiciary. This is a personal and
            unreviewable decision that only the jurist can make.

      Accordingly, a party seeking to compel a judge’s disqualification
      must produce evidence establishing bias, prejudice or unfairness
      which raises a substantial doubt as to the jurist’s ability to preside
      impartially.

Commonwealth v. Bonds,
890 A.2d 414
, 418–19 (Pa. Super. 2005)

(citations omitted).   “Adverse rulings alone do not, however, establish the

requisite bias warranting recusal, especially where the rulings are legally

proper.” Commonwealth v. Abu–Jamal,
720 A.2d 79, 90
(Pa. 1998).

      To the extent Appellant argues judicial bias during trial and his original

sentencing, those claims are waived because Appellant could have raised them

on direct appeal, but did not. See 42 Pa.C.S.A. § 9544(b).

      We have reviewed Appellant’s remaining contentions, which focus on

resentencing, and evince a litany of complaints based on Appellant’s mistaken

belief that his status as an inmate and pro se litigant excuses him from

complying with court rules. Appellant also complains of actions by entities,

such as the District Attorney’s Office and Department of Corrections, which

                                     - 10 -
J-S15029-21


operate   independently    of   the   PCRA     court.   In   addition,   Appellant

misapprehends the scope of this Court’s prior remand decision, and criticizes

the court’s adverse rulings. See Appellant’s Brief at 17-21. Appellant does

not cite —and we have not found — anything in the record showing bias on

the part of Judge Rangos.       Because Appellant has not produced “evidence

establishing bias, prejudice or unfairness which raises a substantial doubt as

to the jurist’s ability to preside impartially,” Bond,
890 A.2d at 419
, his second

issue lacks merit.

      In his third issue, Appellant avers “the trial court show[ed] bias and

prejudice at trial sentence and resentencing when it sentenced the Appellant

to a sentence that was unreasonable, excessive, violated the Eighth

Amendment prohibition against cruel and unusual punishment, and was

tantamount to a life sentence.” Appellant’s Brief at 22.

      To the extent that Appellant is challenging the discretionary aspects of

his original sentence, that issue was previously litigated and rejected on direct

appeal. See Major, supra,
2014 WL 10965205
, at **8-10. See also 42

Pa.C.S.A. § 9543(a)(3); Commonwealth v. Spotz,
47 A.3d 63, 101
(Pa.

2012) (issue previously litigated is not cognizable under PCRA). To the extent

Appellant challenges the discretionary aspects of his sentence following

resentencing, this claim is not cognizable under the PCRA. See 42 Pa.C.S.A.

§ 9543(a)(2)(i-viii).




                                      - 11 -
J-S15029-21


     Appellant also asserts his sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment. Appellant’s Brief at 22-43.

This Court has discussed the open question about whether Eighth Amendment

sentencing challenges involve the discretionary aspects or legality of

sentencing. We explained:

     there is no bright line rule establishing whether a challenge to a
     sentence, constitutional or otherwise, implicates the legal or
     discretionary aspects of that sentence. See Commonwealth v.
     Spruill,
622 Pa. 299
,
80 A.3d 453
, 460–461 (2013) (noting the
     Supreme Court’s “experience with claims allegedly implicating
     sentence legality has not always been smooth” and noting the
     complexities involved in the issue). However, this Court has
     stated that “the term ‘illegal sentence’ is a term of art that our
     courts apply narrowly, to a relatively small class of cases.”
     Commonwealth v. Robinson,
931 A.2d 15, 21
(Pa. Super.
     2007).

     “Legality of sentence issues occur generally either: (1) when a
     trial court’s traditional authority to use discretion in the act of
     sentencing is somehow affected and/or (2) when the sentence
     imposed is patently inconsistent with the sentencing parameter
     set forth by the General Assembly.” [Commonwealth v.]
     Schutzues, 54 A.3d [86,] 92 [Pa. Super. 2012] (quoting
     Commonwealth v. Foster,
609 Pa. 502
,
17 A.3d 332, 342
(2011)).     Most other challenges implicate the discretionary
     aspects of a sentence, “even though the claim may involve a legal
     question, a patently obvious mathematical error, or an issue of
     constitutional dimension.” Robinson,
931 A.2d at 21
(finding
     that a claim of vindictiveness by the trial court when sentencing a
     defendant does not implicate the legality of the sentence).
     Indeed, where, as here, an appellant argues that the sentencing
     court exercised its discretion in a way that was harsh,
     unreasonable, or motivated by impermissible factors such as
     personal animus or revenge, those contentions “are the very
     hallmarks of a claim that implicates the discretionary aspects of a
     sentence.”
Id.
Commonwealth v. Succi,
173 A.3d 269, 284-85
(Pa. Super. 2017).


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      Appellant claims the PCRA court “showed bias and prejudice.”

Appellant’s Brief at 23.    He further contends his sentence was “clearly

unreasonable and excessive as Appellant was only charged with statutory

crimes . . . this case was not a case of rape, or any charges that alleged

forcible compulsion, threat of forcible compulsion that would prevent

resistance by a person of reasonable resolution.”       Id. at 24.     Appellant

maintains the court imposed the sentence based on Appellant choosing “to

defend himself against baseless allegations.” Id. at 25. He then argues that

the court failed to consider mitigating factors, including his zero prior record

score; he also complains about his sentences being imposed consecutively.

Id. at 26-33. These assertions do not implicate the legality of Appellant’s

sentence.   Robinson,
931 A.2d at 21
.         Despite being cloaked as Eighth

Amendment claims, they challenge the discretionary aspects sentence, which

is not cognizable under the PCRA. See Succi,
173 A.3d at 285
(finding Eighth

Amendment challenge to sentence waived where challenge implicated

discretionary aspects of sentence rather than legality of sentence).

      Even assuming arguendo that we were to consider this issue a challenge

to the legality of sentence and cognizable under the PCRA, it would fail. “The

Eighth Amendment does not require strict proportionality between the crime

committed and the sentence imposed; rather, it forbids only extreme

sentences that are grossly disproportionate to the crime.” Commonwealth




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v. Baker,
78 A.3d 1044, 1047
(Pa 2013). To determine if a sentence runs

afoul of the Eighth Amendment, we must look to three factors:

      [A] court's proportionality analysis under the Eighth Amendment
      should be guided by objective criteria, including (i) the gravity of
      the offense and the harshness of the penalty; (ii) the sentences
      imposed on other criminals in the same jurisdiction; and (iii) the
      sentences imposed for commission of the same crime in other
      jurisdictions.
Id.
(citation omitted). This Court “is not obligated to reach the second and

third prongs of the [ ] test unless a threshold comparison of the crime

committed and the sentence imposed leads to an interference of gross

disproportionality.”
Id. at 1047
.

      Appellant does not and cannot argue that his sentence exceeded the

statutory maximum. Also, Appellant downplays the seriousness of his crimes

by claiming that his nearly two years of sexual abuse of the victim consisted

only of “statutory offenses,” Appellant’s Brief at 24; that the victim

“fabricated” her testimony, id. at 32; and that holding a young, disabled child

hostage during an armed stand-off with police was a victimless crime because

the child “slept through the entire events of that night, he had no idea that

anything had happened, was not frightened.” Id. at 30.

      Given the facts, along with Appellant’s lack of remorse or acceptance of

responsibility for his crimes, we find Appellant failed to satisfy the first prong

of the proportionality test.   Even if cognizable in the context of the PCRA,

Appellant has failed to show that his sentence is illegal and in violation of the

Eighth Amendment. See Succi,
173 A.3d at 286
(finding sentence of 11½ to

                                     - 14 -
J-S15029-21


28 years for non-violent fraud offenses did not violate Eighth Amendment

even though appellant had no prior criminal record; none of the sentences

exceeded the statutory maximum, there were no mitigating factors, and

Appellant failed to show remorse).        Appellant’s third issue does not merit

relief.

          In his fourth and final issue, Appellant claims the court erred in

resentencing him “to Megan’s Law III after Megan’s Law III and SORNA were

deemed to be unconstitutional[.]” Appellant’s Brief at 44. For the following

reasons, we are constrained to reverse the PCRA court’s denial of relief on this

claim, vacate the portion of Appellant’s sentence requiring him to comply with

Megan’s Law III, and remand for an SVP hearing and determination as to

Appellant’s registration requirements.

          In addressing this issue, we review the history of the relevant statutes,

which culminated with the current law, SORNA II, 42 Pa.C.S.A. § 9799.51, et

seq. This Court explained:

          [c]ourts have also referred to SORNA as the Adam Walsh Act.
          SORNA [I was] the General Assembly’s fourth enactment of the
          law commonly referred to as Megan’s Law. Megan’s Law I, the
          Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was
          enacted on October 24, 1995, and became effective 180 days
          thereafter. Megan’s Law II was enacted on May 10, 2000, in
          response to Megan’s Law I being ruled unconstitutional by our
          Supreme Court in Commonwealth v. Williams, . . .
557 Pa. 285
,
733 A.2d 593
([Pa.] 1999). Our Supreme Court held that some
          portions of Megan’s Law II were unconstitutional in
          Commonwealth v. Gomer Williams, . . .
574 Pa. 487
,
832 A.2d
          962
([Pa.] 2003), and the General Assembly responded by
          enacting Megan’s Law III on November 24, 2004. The United
          States Congress expanded the public notification requirements of

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J-S15029-21


     state sexual offender registries in the Adam Walsh Child Protection
     and Safety Act of 2006,
42 U.S.C. §§ 16901-16945
, and the
     Pennsylvania General Assembly responded by passing SORNA [I]
     on December 20, 2011, with the stated purpose of “bring[ing] the
     Commonwealth into substantial compliance with the Adam Walsh
     Child Protection and Safety Act of 2006.” 42 Pa.C.S. § 9799.10(1).
     SORNA [I] went into effect a year later on December 20, 2012.
     Megan’s Law III was also struck down by our Supreme Court for
     violating the single subject rule of Article III, Section 3 of the
     Pennsylvania Constitution. [Commonwealth] v. Neiman, . . .
624 Pa. 53
,
84 A.3d 603, 616
([Pa.] 2013). However, by the time
     it was struck down, Megan’s Law III had been replaced by SORNA
     [I].

     SORNA I also failed to withstand constitutional scrutiny.       In
     [
Muniz, supra],
our Supreme Court held that

     1) SORNA’s registration provisions constitute punishment
     notwithstanding the General Assembly’s identification of the
     provisions as nonpunitive; 2) retroactive application of SORNA’s
     registration provisions violates the federal ex post facto clause;
     and 3) retroactive application of SORNA’s registration provisions
     also violates the ex post facto clause of the Pennsylvania
     Constitution.

     The Muniz Court deemed SORNA I’s registration provisions to be
     punitive by applying the seven-factor test established in Kennedy
     v. Mendoza–Martinez,
372 U.S. 144
,
83 S.Ct. 554
,
9 L.Ed.2d
     644
(1963). Applying Muniz, in conjunction with Alleyne v.
     United States,
570 U.S. 99
,
133 S.Ct. 2151
,
186 L.Ed.2d 314
(2013), this Court deemed unconstitutional the SVP assessment
     provision of SORNA I, 42 Pa.C.S. § 9799.24, because “it increases
     the criminal penalty to which a defendant is exposed without the
     chosen fact-finder making the necessary factual findings beyond
     a reasonable doubt.” Commonwealth v. Butler,
173 A.3d 1212,
     1218
(Pa. Super. 2017), [order reversed,
226 A.3d 971
(Pa.
     2020)]. In direct response to Muniz and Butler, our General
     Assembly passed SORNA II, which became effective on June 12,
     2018. See 42 Pa.C.S. § 9799.51(d)(4) (indicating the “intention
     of the General Assembly” to “[a]ddress the Pennsylvania Supreme
     Court's decision in . . . Muniz. . ., and the Pennsylvania Superior
     Court's decision in . . . Butler. . . .”).




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Commonwealth v. Cosby,
224 A.3d 372, 428-29
(Pa. Super. 2019) (some

citations omitted), appeal granted in part,
236 A.3d 1045
(Pa. Jun. 23, 2020).

      SORNA II divides sex offender registration into two categories,

depending on the date of the offense. Through Act 10, as amended in Act 29,

the General Assembly created Subchapter I, which pertains to offenders

convicted of crimes occurring on or after April 22, 1996, but before SORNA’s

effective date, December 20, 2012.           See 42 Pa.C.S.A. §§ 9799.52.

Subchapter H addresses offenders convicted of committing crimes on or after

December 20, 2012. Id. at § 9799.11(c).

      On March 6, 2020, the Pennsylvania Supreme Court reversed this

Court’s decision in Butler, holding that the registration, notification and

counseling requirements applicable to SVPs “do not constitute criminal

punishment,” and therefore SORNA’s procedure for designating sex offenders

as SVPs [is permissible because it] did not violate the principles set forth in

Apprendi [v. New Jersey,
530 U.S. 466
(2013)] or Alleyne.” Butler, 226

A.3d at 993.

      On July 21, 2020, our Supreme Court decided Commonwealth v.

Lacombe,
234 A.3d 602
(Pa. 2020).        The Court addressed Subchapter I,

holding it was “markedly different from the version of SORNA invalidated in

Muniz.” Lacombe, 234 A.3d at 606. Employing the Mendoza-Martinez

factors, the Court concluded “Subchapter I is nonpunitive and does not violate

the constitutional prohibitions against ex post facto laws.” Id. at 605-06.


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      Appellant’s resentencing occurred on August 24 - 25, 2017, shortly after

the Muniz case was decided, but prior to the enactment of SORNA II.

Accordingly, the trial court did not find Appellant subject to the registration

requirements of SORNA I.     N.T., 8/24-25/17, at 161.    However, the court

determined Appellant was subject to lifetime registration under Megan’s Law

III. Id.

      At the time of Appellant’s conviction, Megan’s Law III applied, and

required lifetime registration for an IDSI conviction.    See 42 Pa.C.S.A. §

9795.1(b)(2)(i) (expired). In Nieman, supra, our Supreme Court held that

Megan’s Law III was unconstitutional in its entirety because it was included in

a bill that violated the single subject rule.    Therefore, at resentencing,

Appellant could not be subject to the requirements of Megan’s Law III.

      However, Appellant is subject to Subchapter I of SORNA II because

Subchapter I does not violate the ex post facto clause. Lacombe, 234 A.3d

at 605-06.      Thus, Appellant is subject to Subchapter I’s registration

requirements.    While ordinarily we would vacate the portion of Appellant’s

sentence requiring him to comply with Megan’s Law III, and remand for

resentencing under Subchapter I, we are unable to do so. As discussed above,

the SOAB recommended Appellant be designated an SVP, but a breakdown in

the court process ensued, and an SVP hearing never occurred.               The

Commonwealth concedes this fact, but implies Appellant should be treated as

a non-SVP. See Commonwealth Brief at 3 n.2, 28-33. We disagree.


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     Megan’s Law III provided:

     (a) Order for assessment.--After conviction but before
     sentencing, a court shall order an individual convicted of an
     offense specified in section 9795.1 (relating to registration) to be
     assessed by the board. The order for an assessment shall be sent
     to the administrative officer of the board within ten days of the
     date of conviction.

     (b) Assessment.--Upon receipt from the court of an order for an
     assessment, a member of the board as designated by the
     administrative officer of the board shall conduct an assessment of
     the individual to determine if the individual should be classified as
     a sexually violent predator. The board shall establish standards
     for evaluations and for evaluators conducting the assessments. .
     ..

                                     ****
     (e) Hearing.—

          (1) A hearing to determine whether the individual is a
          sexually violent predator shall be scheduled upon the
          praecipe filed by the district attorney. The district attorney
          upon filing a praecipe shall serve a copy of same upon
          defense counsel together with a copy of the report of the
          board.

                                     ****

          (3) At the hearing prior to sentencing the court shall
          determine whether the Commonwealth has proved by clear
          and convincing evidence that the individual is a sexually
          violent predator.

42 Pa.C.S.A. § 9795.4(a), (b), and (e)(1) and (3) (expired) (emphases

added).

     The record in this case indicates the SOAB assessed Appellant and

recommended he be designated an SVP. However, the hearing was not held

as scheduled because Appellant requested an independent assessment. N.T.,


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J-S15029-21


6/11/12, at 6-8. It appears from the record that Appellant never followed

through with obtaining an independent assessment. This Court has held an

Appellant can waive “the sequence in which his sentencing and SVP process”

take place. Commonwealth v. Whanger,
30 A.3d 1212, 1214
(Pa. Super.

2011).    However, the language in Megan’s Law III requires a hearing and

judicial determination of SVP status.              See 42 Pa.C.S.A. § 9795.4(e)(1)

(expired).      Likewise, Subchapter I contains nearly identical language

compelling a hearing and determination. 42 Pa.C.S.A. § 9799.58(e). Thus,

we reverse the PCRA court’s denial of relief on this issue only; we vacate the

portion of Appellant’s sentence subjecting him to registration requirements of

Megan’s Law III, and remand for an SVP hearing pursuant to Subchapter I,7

and disposition as to Appellant’s registration requirements under SORNA II.

       Order affirmed in part and reversed in part. Judgment of sentence with

respect to registration requirements vacated. Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.




____________________________________________


7 The court shall order an updated assessment at its discretion, or at the
request of either Appellant and/or the Commonwealth.

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J-S15029-21




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2021




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