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2017 Pa Super 352
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
STEVEN MCCULLOUGH
No. 1755 WDA 2014
Appeal from the Order Entered October 6, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013438-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
and OTT, J.
OPINION BY PANELLA, J. FILED NOVEMBER 9, 2017
Under Megan’s Law II, the Commonwealth required individuals
convicted of indecent assault to register as sexual offenders for a period of
ten years. See 42 Pa.C.S.A. §§ 9791-9799.7 (expired December 20, 2012).
The registration provisions specifically applied to “individuals incarcerated or
convicted on or after the effective date of this act,” which a prior panel of
this Court interpreted to exclude offenders incarcerated due to revocation of
their probation. See Commonwealth v. Rivera, 10 A.3d 1276 (Pa. Super.
2010).
At the time Megan’s Law II was enacted, Appellee, Steven McCullough,
was incarcerated following the trial court’s revocation of his probation on his
underlying conviction of indecent assault. After his release, McCullough
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began registering as a sexual offender. He was later prosecuted for his
failure to register under the Sexual Offender Registration and Notification Act
(“SORNA”), which ultimately replaced Megan’s Law II. See 42 Pa.C.S.A. §§
9799.10-9799.41 (effective December 20, 2012). Relying on Rivera, the
trial court ordered that McCullough be removed from the sexual offender
registry.
The Commonwealth appealed, on the theory that Rivera was
incorrectly decided. Though this case came before us in order to resolve
conflicting applications of Rivera, we find we must instead decide
McCullough’s case based on the Pennsylvania Supreme Court’s recent
disposition in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
Therefore, we affirm the trial court’s order removing McCullough from the
sexual offender registry.
During the pendency of this appeal, our Supreme Court issued its
decision in Muniz. Muniz challenged SORNA’s increase in required
registration length for certain offenses, when the registrable offense
occurred prior to the imposition of SORNA. Muniz was convicted of indecent
assault of a person under 13 years of age, which carried a ten-year
registration requirement under Megan’s Law II at the time he committed the
act and was convicted. Before the trial court sentenced Muniz, SORNA
became law in Pennsylvania. Under SORNA, Muniz was subject to lifetime
reporting requirements as a sexual offender based on his previous
conviction. The Muniz Court held that Pennsylvania’s SORNA is an
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unconstitutional ex post facto law when applied retroactively to those sexual
offenders convicted of applicable crimes before the act’s effectiveness date
and subjected to increased registration requirements under SORNA after its
passage.
Instantly, McCullough was convicted in 1994 of indecent assault
involving a victim over 13 years of age, 18 Pa.C.S.A. § 3126. He was
sentenced to five years of probation. At that time, defendants with indecent
assault convictions were not subject to sexual offender registration
requirements. The trial court revoked McCullough’s probation in 1997, and
sentenced him to nine to twenty-three months’ incarceration, followed by an
additional three years of probation. The court revoked McCullough’s
probation again on November 17, 1999, and sentenced him to a further
eleven and a half to twenty-three months’ incarceration, followed by another
consecutive three years of probation.1 On July 10, 2000, while McCullough
was still incarcerated for his second probation violation, Megan’s Law II was
enacted. The law required defendants convicted of indecent assault to
register as sexual offenders for ten years.
Following his incarceration, McCullough began registering as a sexual
offender under Megan’s Law II. The affidavit of probable cause lists April 7,
2004, as the start date of McCullough’s ten-year registration period under
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1
The record indicates McCullough’s incarceration for his second probation
violation began on March 6, 2000.
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Megan’s Law II. See Criminal Complaint, filed September 3, 2013.
McCullough stipulated to the information contained in the affidavit of
probable cause and does not dispute this date on appeal.
Even if we found that McCullough was properly subject to Megan’s Law
II and his registration period began on April 4, 2004, McCullough’s ten-year
registration period under Megan’s Law II would have ended on April 7, 2014.
The Commonwealth’s appeal relies upon SORNA’s inclusion of McCullough as
a registrable offender for an increased total of twenty-five years, because
McCullough had not completed his registration requirements on SORNA’s
effective date of December 20, 2012. However, we need not determine
whether McCullough was properly subject to Megan’s Law II and thus
presently subject to registration under SORNA, as he is no longer required to
register as a sexual offender based on the holding in Muniz.
At first blush, it may appear that Commonwealth v. Demora, 149
A.3d 330 (Pa. Super. 2016), still procedurally controls this case. It does not.
Demora held that the Pennsylvania State Police (“PSP”) must be joined as
an indispensable party in an action for removal from the sexual offender
registry. The panel in Demora found that failure to join the PSP in such an
action deprived the trial court of subject matter jurisdiction. However, our
Supreme Court’s decision in Muniz undercuts the reasoning of Demora in
two ways. First, it implicitly overrules Demora by removing Muniz from the
sexual offender registry despite his failure to join the PSP in his removal
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action. Second, it holds that registration is a criminal sanction, subject to ex
post facto considerations, which abrogates our holding in Demora. The
rationale behind Demora was based on prior cases holding that registration
was ancillary to sentencing and not part of the criminal sentence. Thus, to
avoid any confusion, we now explicitly recognize Muniz overrules Demora.
Consequently, we affirm the trial court’s order removing McCullough from
the sexual offender registry.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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