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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM ELSWORTH HUGHES, JR.
Appellant No. 559 WDA 2017
Appeal from the Judgment of Sentence entered November 7, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No.: 0001692-2015
BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JULY 16, 2018
Appellant, William Elsworth Hughes, Jr., appeals from the November 7,
2016 judgment of sentence imposing a mandatory five to ten year sentence
for failure to register under 18 Pa.C.S.A. § 4915.1(a)(1).1 We vacate and
remand for resentencing.
____________________________________________
1 That 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)
18 Pa.C.S.A. § 4915.1(a)(1).
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Appellant was convicted of rape in Maryland in 2004 and, upon his move
to Pennsylvania in 2005, was subject to the lifetime reporting and notification
requirements of Pennsylvania’s Megan’s Law III. N.T. Trial, 2/24/16, at 36;
Commonwealth Exhibit 1. At trial, the Commonwealth established that
Appellant missed his periodic registration deadline of July 7, 2015, thus
resulting in this prosecution. N.T. Trial, 2/24/16, at 47-48. At the conclusion
of trial, the jury found Appellant guilty as charged. The trial court imposed a
mandatory sentence of five to ten years of incarceration pursuant to 42
Pa.C.S.A. § 9718.4(a)(2)(i).2
____________________________________________
2 That section provides:
(a) Mandatory sentence.—Mandatory sentencing shall be as
follows:
[…]
(2) Sentencing upon conviction for a first offense shall be
as follows:
[…]
(i) Not less than five years for an individual who:
(A) is subject to section 9799.13 and must
register for a period of 25 years or life
under section 9799.15 or a similar
provision from another jurisdiction; and
(B) violated 18 Pa.C.S. § 4915.1(a)(3).
42 Pa.C.S.A. § 9718.4(a)(2)(i).
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In his first argument on appeal, Appellant claims, correctly, that his five-
year mandatory minimum sentence is illegal. In Commonwealth v.
Blakney, 152 A.3d 1053 (Pa. Super. 2016), this Court held § 9781.4 to be
unconstitutional pursuant to Alleyne v. United States, 570 U.S. 99 (2013),
because its application of a mandatory minimum sentence depends upon a
fact (the length of the reporting requirement) that is not submitted to a jury
and proven beyond a reasonable doubt. Blakney is controlling here. The
Commonwealth concedes as much. Commonwealth’s Brief at 4-5. We will
vacate the judgment of sentence under Blakney and remand for further
proceedings in accordance with this memorandum.
Appellant also argues that we must vacate his conviction under § 4915.1
based on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), in which our
Supreme Court held that the reporting and registrations requirements under
the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.S.C.A.
§ 9799.10, et seq. are punitive and that their retroactive application to
offenses committed prior to SORNA’s effective date (December 20, 2012)
violates the ex post facto clause of the United States Constitution. U.S. Const.
art. 1, § 10 (No State shall […] pass any ex post facto law.”). The Muniz
Court considered whether SORNA was unconstitutional as applied to a
defendant subjected to an increased registration period under SORNA. Id. at
1192-93. Muniz was convicted of indecent assault in 2007 and subject to a
ten-year registration requirement pursuant to then-extant Megan’s Law III
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(42 Pa.C.S.A. § 9795.1 et seq. (expired)). Id. at 1193. Muniz absconded
prior to sentencing. In 2014, he was apprehended, sentenced, and subjected
to a lifetime reporting requirement under SORNA. Id. In summary, the
Supreme Court concluded that SORNA’s notification and registration
requirements were punitive rather than civil, and that SORNA was
unconstitutional as applied to Muniz because it increased the punishment for
indecent assault after he committed the offense.
Appellant claims that SORNA is unconstitutional in its entirety, and that
his conviction cannot stand “because since December 20, 2012, there is no
applicable statutory mechanism which can impose registration obligations
upon a person whose underlying sexual offense occurred prior to [that date].”
Appellant’s Brief at 10. Appellant’s argument rests on an overly broad
misreading of Muniz. Muniz held that SORNA was unconstitutional as
applied to Muniz because it increased his registration requirement from ten
years to life. SORNA did not change Appellant’s reporting period, as he was
subject to lifetime reporting prior to the enactment of SORNA. The Muniz
Court did not hold that SORNA was unconstitutional and unenforceable in all
circumstances.
In its brief, the Commonwealth cites Commonwealth v. Derhammer,
173 A.3d 723 (Pa. 2017) as well as Muniz, and defers to this Court’s discretion
in discerning their application here. Commonwealth’s Brief at 6-7. In
Derhammer, the defendant failed to timely report a change of address in
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early April 2009 in accordance with 18 Pa.C.S.A. § 4915, the predecessor to
current § 4915.1. Derhammer was convicted in 2011, but awarded a new trial
due to a faulty waiver colloquy. Subsequently Megan’s Law III expired and
was replaced by SORNA, and our Supreme Court, in Commonwealth v.
Nieman, 84 A.3d 603 (Pa. 2013) held that Megan’s Law III was
unconstitutional in its entirety because it was included in a bill that violated
the single subject rule. Thus, former § 4915 was not constitutionally
enforceable at the time of Derhammer’s 2009 offense. Well-settled law
establishes that “a conviction based on an unconstitutional statute is a nullity.”
Id. at 728. The Commonwealth argued that the conviction was salvageable
under an amendment to Megan’s Law III that post-dated Derhammer’s
offense and/or the continued applicability of Megan’s Law II, which the
successor statute did not repeal. The Supreme Court rejected both
arguments. The Court also noted that current § 4915.1 expanded the time
for reporting an address change, and Derhammer’s report would have been
timely under that section. Id. at 730-31. When the General Assembly
“removes the State’s condemnation from conduct formerly deemed criminal,”
dismissal of the charge is required. Id. at 731 (quoting Bell v. Maryland,
378 U.S. 226 (1964)) (emphasis added in Derhammer).
Derhammer is distinguishable because the offense at issue occurred in
2009 under a statute that was later ruled unconstitutional in Nieman. The
instant offense took place in 2015, when SORNA was applicable. Derhammer
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is pertinent insofar as it post-dates Muniz and it relied on § 4915.1 to hold
that the General Assembly removed the condemnation of the more restrictive
deadline that existed under prior law. This reinforces the point that Muniz
did not render § 4915.1 unenforceable.
For his third and final argument, Appellant claims the trial court erred
in denying his pre-trial motion in limine and permitting the prosecution to refer
to “Megan’s Law” during trial within the jury’s hearing. Appellant cite no law
for this proposition, not does he explain how reference to “Megan’s Law” was
prejudicial to him given that the jury clearly was aware he was a sexual
offender. We discern no merit in this argument.
In conclusion, we advise both parties that developments in the law
following landmark cases such as Muniz should be based on thorough
advocacy from the parties and reasoned decisions from the trial court.
Appellant’s brief provided this Court with an overview of Muniz, but provided
little in the way of that case’s application to the specific circumstances of this
case. Appellant’s brief appears to use slightly varied fonts and font sizes, and
we wonder whether portions of it were cut and pasted from other documents.
The Commonwealth, for its part, simply cited Muniz and Derhammer and
deferred to this Court’s discretion. Deferring to this court’s discretion is not
advocacy. Likewise, the trial court filed only a two-page document noting that
the record and the applicable statutes speak for themselves, and referred to
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its prior opinion regarding Appellant’s pre-trial motion that did not address
Appellant’s SORNA argument. Order, 9/18/17.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2018
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