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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES H. HERB, III
Appellant No. 1569 MDA 2014
Appeal from the PCRA Order entered September 11, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0003100-2011
BEFORE: WECHT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 15, 2015
Appellant, James H. Herb, III, appeals from the September 11, 2014
order entered in the Court of Common Pleas of Luzerne County, denying his
amended petition for collateral relief pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.1
Appellant appeared before the Honorable Fred A. Pierantoni, III, on
July 30, 2013 and entered into a plea for failure to comply with Megan’s Law
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1
The record reflects that on October 7, 2014, a motions panel of this Court
issued a Rule to Show Cause why this appeal should not be dismissed
pursuant to Pa.R.A.P. 301(a)(1), which provides that no order is appealable
until it has been entered upon the trial court docket. By subsequent order
entered December 17, 2014, the motions panel acknowledged receipt of
Appellant’s response to the rule; discharged the show cause rule; and noted
the issue would be referred to the merits panel. Our review of the trial court
docket confirms the entry of the September 11, 2014 order as required by
Rule 301(a)(1). Therefore, the appeal is properly before us.
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III, which included the sexual offender registration requirements in effect at
the time. Judge Pierantoni sentenced Appellant to a minimum of 36 months
and maximum of 72 months in a state correctional institution.
On December 16, 2013, our Supreme Court ruled that Megan’s Law III
was unconstitutional because Act 152 of 2004 (Act 152), which included the
provisions of Megan’s Law III, violated the Single Subject Rule of Article III,
Section 3, of the Pennsylvania Constitution. Commonwealth v. Neiman,
84 A.3d 603 (Pa. 2013). However, the Court noted:
[A]s we have observed previously in striking down other
legislation which violated Article III, Section 3, “nothing ...
precludes the General Assembly from enacting similar provisions
in a manner consistent with the Constitution.” City of
Philadelphia[ v. Commonwealth, 838 A.2d 566, 594 (Pa.
2003)]. [S]ince we find merit in the General Assembly's
suggestion that our decision abrogating the entirety of Act 152
will have a significant impact on a wide variety of individuals and
entities which have ordered their affairs in reliance on its
provisions, we will stay our decision, as we have done under
similar circumstances, in order to provide a reasonable amount
of time for the General Assembly to consider appropriate
remedial measures, or to allow for a smooth transition period.
See City of Philadelphia, [] 838 A.2d at 594.
Id. at 616. Significantly, despite striking Act 152 in its entirety, the Court
commented:
We stress, however, that this action should, in no way, be read
as a repudiation of the merits of the various legislative
components of Act 152 such as Megan's Law III, which serves a
vital purpose in protecting our Commonwealth’s citizens and
children, in particular, from victimization by sexual predators.
Id. at 615.
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The Supreme Court stayed its decision for 90 days, by which time the
Legislature passed Act 19 of 2014 (Act 19) with a retroactive effective date
of December 20, 2012. Act 19 amended the sexual offender registration
requirements imposed by 42 Pa.C.S.A. § 9799.10 et seq., also known as the
Sexual Offender Registration and Notification Act (SORNA), and included a
declaration by the Legislature that “[i]t is the intention of the General
Assembly to address the Pennsylvania Supreme Court’s decision in
Commonwealth v. Neiman [] by amending this subchapter in the act of
(March 14, 2014, P.L. 41, No. 19).” 42 Pa.C.S.A. § 9799.11(b)(3).
On May 12, 2014, the Luzerne County Public Defender’s Officer filed a
PCRA petition on Appellant’s behalf. The office filed an amended petition on
July 18, 2014 that included Appellant’s requisite verification and consent. A
hearing on the petition was held on September 11, 2014. At the conclusion
of the hearing, Judge Pierantoni, who was also the PCRA court judge, denied
Appellant’s petition. This timely appeal followed in which Appellant presents
one issue for our consideration:
Whether the [PCRA] court erred in denying [Appellant’s] Petition
for Post-Conviction Relief where [Appellant] is currently serving
an illegal sentence and is incarcerated in violation of the due
process clauses of both the Constitution of the United States and
the Constitution of the Commonwealth of Pennsylvania?
Appellant’s Brief at 2.
In essence, Appellant argues that the Megan’s Law III provisions under
which he was sentenced are void ab initio, rendering his sentence
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unconstitutional because the offense for which he was sentenced never
existed. Appellant does not dispute that he entered a guilty plea to a
violation of his reporting requirements, nor does he suggest that his
transgression is no longer a violation under the provisions of Act 19 that
amended SORNA and were retroactive to December 20, 2012. Simply
stated, he is attempting to play a “Get Out of Jail Free” card by claiming
Neiman should be applied retroactively and the Legislature’s enactment of
Act 19 should be disregarded.
Appellant looks to this Court’s ruling in Commonwealth v. Michuck,
686 A.2d 403 (Pa. Super. 1996), in which we vacated a conviction under the
Vehicle Code because, while the appeal was pending, our Supreme Court
struck down a subsection of the Code under which Michuck was convicted.2
We recognized that “[a] court does not have power to enforce a law which is
no longer valid.” Id. at 407. Similarly, Appellant relies on Commonwealth
v. Muhammed, 992 A.2d 897 (Pa. Super. 2010), in which we affirmed
Muhammed’s conviction for unauthorized transfer of sounds on recording
devices but sua sponte reversed his conviction for trademark counterfeiting
because our Supreme Court declared the trademark counterfeiting statute
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2
Michuck had been convicted under 75 Pa.C.S.A. § 3731(a)(5), which
imposed criminal penalties on individuals with a certain blood alcohol content
within three hours of driving, a provision our Supreme Court determined to
violate both state and federal due process guarantees in Commonwealth v.
Barud, 681 A.2d 162 (1996). See Michuck, 686 A.2d at 407.
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unconstitutional.3 “If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction. An illegal
sentence must be vacated.” Id. at 903 (quoting Commonwealth v.
Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en banc)).
Preliminarily, we note that Appellant’s reliance on Michuck and
Muhammed is misplaced. Unlike the case before us, both Michuck and
Muhammed were pending on direct appeal when the relevant statutes were
declared unconstitutional.
In Commonwealth v. Riggle, 2015 WL 4094427 (Pa. Super. July 7,
2015), this Court considered whether a constitutional rule warrants
retroactive application on collateral review, as in the case before us, rather
than on direct appeal, as in Michuck and Muhammed. Looking to Teague
v. Lane, 489 U.S. 288 (1989), we explained:
Under the Teague framework, an old rule applies both on direct
and collateral review, but a new rule is generally applicable only
to cases that are still on direct review. A new rule applies
retroactively in a collateral proceeding only if (1) the rule is
substantive or (2) the rule is a ‘watershed rule of criminal
procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding.
Riggle at *4 (quoting Whorton v. Bocktin, 549 U.S. 406, 416 (2007)).
Without attempting to “define the spectrum of what may or may not
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3
In Commonwealth v. Omar, 981 A.2d 179 (Pa. 2009), our Supreme
Court struck down the criminal statute of trademark counterfeiting (18
Pa.C.S.A. § 4119) as unconstitutionally overbroad. See Muhammed, 992
A.2d at 903.
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constitute a new rule for retroactivity purposes[,]” this Court explained that
generally, “a case announces a new rule when it breaks new ground or
imposes a new obligation on the States or the Federal Government.” Id. at
*5 (citations omitted). Appellant urges us to consider Neiman as a new
rule to be applied retroactively.
Applying the Teague standard, it is clear that Neiman, which struck
down Megan’s Law III as unconstitutional, announced a new rule. With
regard to collateral proceedings, in accord with Teague and its progeny, the
new rule will be applied retroactively if it falls under one of two exceptions:
“it places certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe” or it is a watershed
procedural rule that “alters the understanding of the bedrock procedural
elements essential to the fairness of a proceeding.” Id. at *5-*6 (citations
and internal quotations omitted).
“The only rule explicitly recognized by the United States Supreme
Court as a watershed criminal procedural rule was announced in Gideon v.
Wainwright, 372 U.S. 335 [] (1963), i.e., the right to counsel during a
felony criminal prosecution.” Id. at *6 (citing Whorton, 549 U.S. at 419).
Recognizing that the rule announced in Neiman does not rise to the level of
a watershed procedural rule such as announced in Gideon, we will limit our
discussion to whether the Neiman rule falls under the first exception.
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By striking down the provisions of Megan’s Law III, Neiman does
place violations of that law beyond the power of the criminal law-making
authority to proscribe. If our analysis were to conclude here, it would
appear Appellant would be entitled to relief under the first exception. If the
Neiman rule were to be applied retroactively, the PCRA court would not
have authority to convict Appellant or sentence him for a violation of
Megan’s Law III as an unconstitutional law that was stricken. However, the
Court in Neiman did more than hold that Act 152, including Megan’s Law
III, was unconstitutional. The Court stayed abrogation of Act 152 for 90
days to provide an opportunity for the General Assembly to take remedial
measures to address the manner in which the legislations was enacted. In
doing so, the Court, as previously stated, proclaimed that its action in
striking down Act 152 “should, in no way, be read as a repudiation of the
merits of the various legislative components of Act 152 such as Megan’s Law
III, which serves a vital purpose in protecting our Commonwealth’s citizens
and children, in particular, from victimization by sexual predators.”
Neiman, 84 A.3d at 615. The Legislature acted in response to and in
accord with Neiman and passed Act 19, retroactive to December 20, 2012,
which once again made Appellant’s failure to register a criminal offense.
Accordingly, Appellant’s contention—that by invalidating Megan’s Law
III from its enactment, the Neiman decision placed conduct covered by the
statute beyond the Commonwealth’s power to punish and that he is being
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punished for a crime that did not exist—must be rejected. Appellant ignores
the fact the sexual offender registration provisions were reinstated by Act
19, retroactive to December 20, 2012, prior to the effective date of Neiman
and prior to Appellant’s July 2013 guilty plea and sentencing. Although
Appellant would like to think that Neiman makes him innocent of violating
sexual offender registration requirements in place as of July 30, 2013, that is
simply not the case in light of the retroactive application of Act 19. With the
enactment of Act 19, SORNA was amended and criminalized the conduct for
which Appellant was convicted.4 Consequently, due to the retroactive
application of Act 19, Appellant is not entitled to benefit from the new rule
announced in Neiman because his sentence was not illegal under the law
existing at the time of his conviction.
Finding no error in the PCRA court’s denial of Appellant’s PCRA
petition, we affirm.
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4
As the PCRA court aptly observed, “It is obvious . . . that the Pennsylvania
legislature seized the opportunity afforded by the Pennsylvania Supreme
Court and appropriately enacted the provisions of law deemed
unconstitutional as violating the single subject rule. No other conclusion is
rational, reasonable or warranted as a matter of law or logic.” PCRA Court
Opinion, 10/28/14, at 7.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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