
    COMMONWEALTH of Pennsylvania v. Guy C. HAUGHWOUT, Sr., Appellant
    No. 416 MDA 2018
    Superior Court of Pennsylvania.
    Submitted August 6, 2018 Filed October 30, 2018
    Matthew P. Kelly, Kingston, for appellant.
    Stefanie J. Salavantis, District Attorney, James L. McMonagle, Assistant District Attorney, and Gerry Scott, IV, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    BEFORE: SHOGAN, J., STABILE, J., and STEVENS , P.J.E.
    
      
      Former Justice specially assigned to the Superior Court.
    
   OPINION BY STEVENS, P.J.E.:

Appellant, Guy C. Haughwout Sr., appeals from the judgment of sentence entered by the Court of Common Pleas of Luzerne County after this Court remanded for resentencing on the charges of failing to comply with registration requirements and failure to provide accurate registration information under 18 Pa.C.S.A. § 4915.1(a)(1) and (3), respectively. After careful review, we affirm.

Appellant was convicted of indecent assault in February of 2002; the parties assert that Appellant was classified as a Sexually Violent Predator (SVP) and subject to lifetime registration requirements under Megan's Law I.

In the instant cases, on September 17, 2015, Appellant pled guilty to failure to comply with registration requirements and failure to provide accurate registration information at docket 3790 of 2013 and two counts of failure to provide accurate registration information at docket 1537 of 2014.

On October 26, 2015, the lower court sentenced Appellant to an aggregate sentence of 11-22 years' incarceration, which included several mandatory minimum sentences under 42 Pa.C.S.A. § 9718.4. Appellant filed a post-sentence motion which the lower court denied on November 18, 2015. Appellant filed a timely appeal.

On February 13, 2017, this Court vacated the judgments of sentence and remanded for resentencing without the application of the mandatory minimum sentences under Section 9718.4 based on the precedent set forth in Commonwealth v. Hopkins , 632 Pa. 36, 117 A.3d 247 (2015) and Commonwealth v. Wolfe , 636 Pa. 37, 140 A.3d 651 (2016).

After remand, on October 6, 2017, the lower court resentenced Appellant to an aggregate sentence of 8-16 years' imprisonment. Appellant filed a timely notice of appeal. This Court subsequently dismissed the appeal due to the untimeliness of Appellant's docketing statement.

On February 20, 2018, Appellant filed a petition, uncontested by the Commonwealth, pursuant to the Post Conviction Relief Act (PCRA) seeking the reinstatement of his appellate rights. The lower court granted his petition and reinstated his appellate rights. Appellant filed another notice of appeal and complied with the lower court's direction to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant argues that this Court should vacate his convictions under Section 4915.1 pursuant to Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017). In Muniz , the Supreme Court was asked to decide whether the registration and reporting provisions of the Sexual Offender Registration and Notification Act (SORNA) were unconstitutional as applied to a defendant who was convicted of indecent assault in 2007 and subject to a ten-year registration requirement under Megan's Law III ( 42 Pa.C.S.A. § 9795.1 ) (expired).

However, as Muniz absconded prior to sentencing, he was not apprehended until 2014 after which he was sentenced and deemed subject to lifetime registration under SORNA. The Supreme Court concluded that SORNA's registration and notification requirements were punitive in effect and therefore, the retroactive application of SORNA's registration provisions to offenses committed prior to SORNA's effective date (December 20, 2012) violates the ex post facto clauses in our federal and Pennsylvania Constitutions. Id . at 1193.

In the instant case, Appellant asks this Court to vacate his conviction and argues that the Supreme Court's decision in Muniz rendered SORNA unconstitutional in its entirety and that the prior law under which Appellant was deemed a lifetime registrant cannot be revived. Appellant's Brief at 9.

However, Appellant fails to recognize the Muniz court did not find SORNA unenforceable in all contexts; rather, the Supreme Court held that SORNA was unconstitutional as applied to Muniz because it changed his registration requirement from ten years to lifetime registration, and thus, increased his punishment for indecent assault after he committed the offense.

Appellant's case is distinguishable as he was subject to lifetime registration upon his initial conviction and the enactment of SORNA did not change his reporting period. As a result, we find no merit to Appellant's claim.

For the foregoing reason, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Stabile joins the Opinion.

Judge Shogan files a Concurring Opinion.

CONCURRING OPINION BY SHOGAN, J.

I join the Opinion of the learned Majority. I write separately, however, to further explain my reasons for affirming the trial court's opinion.

As noted by the Majority, Appellant was subject to lifetime registration under Megan's Law I, 42 Pa.C.S. §§ 9791 - 9799.6, as a result of his conviction of indecent assault in 2002. On September 17, 2015, Appellant pled guilty to and was convicted of violating 18 Pa.C.S. § 4915.1(a)(1) and (a)(3) for failing to comply with registration requirements and failing to provide accurate registration information in 2013.

The Pennsylvania Supreme Court has held that the registration provisions of the Sexual Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. §§ 9799.10 - 9799.41, constitute criminal punishment that cannot be retroactively applied to a defendant whose crimes were committed prior to SORNA. Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), cert.denied , --- U.S. ----, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018). In doing so, the High Court reiterated that " 'two critical elements' must be met for a criminal or penal law to be deemed ex post facto : 'it must be retrospective, that is, is must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.' " Muniz , 164 A.3d at 1195-1196 (quoting Weaver v. Graham , 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ).

As noted by the Majority, Appellant was not disadvantaged by being subjected to a longer registration period. Additionally, though, SORNA was not applied to events occurring before its enactment on December 20, 2011, because Appellant violated Sections 4915.1(a)(1) and (a)(3) in 2013. Thus, because Appellant was not subject to retroactive application of SORNA's registration requirements, the ex post facto clauses of the federal and state constitutions were not directly implicated. Accordingly, I agree with the Majority that Appellant is not entitled to relief under Muniz .

I write separately also to address the Commonwealth's suggestion that, given Appellant's designation as a sexually violent predator ("SVP") following his conviction of indecent assault in 2002, he may be entitled to relief under Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017), appeal granted , 190 A.3d 581 (Pa. 2018). Commonwealth's Brief at 5. Although Appellant did not raise this issue, it impacts the legality of his sentence, an issue we may raise sua sponte . Id. at 1215.

In Butler , we held that:

section 9799.24(e)(3) of SORNA violates the federal and state constitutions 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. Moreover, ... trial courts cannot designate convicted defendants SVPs (nor may they hold SVP hearings) until our General Assembly enacts a constitutional designation mechanism. Instead, trial courts must notify a defendant that he or she is required to register for 15 years if he or she is convicted of a Tier I sexual offense, 25 years if he or she is convicted of a Tier II sexual offense, or life if he or she is convicted of a Tier III sexual offense.

Butler , 173 A.3d at 1218.

The record at hand indicates that Appellant was designated an SVP on February 15, 2002, pursuant to Megan's Law I, not SORNA. Neither the Pennsylvania Supreme Court nor this Court has held that Butler may be applied retroactively to pre-SORNA SVP designations. Thus, Appellant is not entitled to relief under Butler . 
      
      This section provides:
      (a) Offense defined.-- An individual who is subject to registration under 42 Pa.C.S. § 9799.13 (relating to applicability) commits an offense if he knowingly fails to:
      (1) register with the Pennsylvania State Police as required under 42 Pa.C.S. § 9799.15 (relating to period of registration), 9799.19 (relating to initial registration) or 9799.25 (relating to verification by sexual offenders and Pennsylvania State Police);
      * * *
      (3) provide accurate information when registering under 42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.
      18 Pa.C.S.A. § 4915.1(a)(1)-(3).
     
      
      The record does not establish when the underlying offense was committed.
     
      
      If the Pennsylvania Supreme Court issues a decision holding that Butler applies retroactively, Appellant may file a petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 -9546, within sixty days of that decision, attempting to invoke a time-bar exception in subsection 9545(b)(1)(iii). See Commonwealth v. Murphy , 180 A.3d 402, 406 n.1 (Pa. Super. 2018).
     