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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE ANTOINE THOMAS :
:
Appellant : No. 1333 MDA 2017
Appeal from the Judgment of Sentence July 24, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005820-2002
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
JUDGMENT ORDER BY PANELLA, J. FILED OCTOBER 12, 2018
Shane Antoine Thomas appeals from the judgment of sentence entered
in the Lancaster County Court of Common Pleas, following his probation
violation and resentencing. Specifically, Thomas opposes the trial court’s
directive that he register as a sexual offender under the Sexual Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.14,
9799.15. For the following reasons, we affirm in part and vacate in part
Appellant’s judgment of sentence.
Given our resolution, we briefly summarize the facts and procedural
history as follows. Thomas entered a guilty plea to attempted rape, indecent
assault, simple assault, and terroristic threats. The court sentenced him to an
agreed-upon two to four years of incarceration, followed by ten years of
probation. At sentencing, Thomas also signed a document acknowledging that
he would be a lifetime registrant under then-applicable Megan’s Law II.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Thomas subsequently violated his probation a remarkable six times
afterward. Following the most recent violation, he was sentenced to an
additional three to six years of incarceration. At sentencing, defense counsel
requested an order declaring SORNA inapplicable to Thomas, based on the
Pennsylvania Supreme Court’s recent decision in Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017). The sentencing court denied counsel’s request.
This appeal is now before us.
Thomas’s sole challenge on appeal is to his status as a sex offender
registrant. Thomas argues that after the Muniz decision, he is no longer
required to register as a sexual offender under SORNA. He posits that he is
therefore released from all sexual offender registration obligations. While
Thomas is correct that he is no longer required to register under SORNA, we
disagree that he is released from all registration requirements.
“Issues relating to the legality of a sentence are questions of law…. Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017)
(en banc) (citation omitted).
The Muniz decision found that retroactive application of SORNA violated
both the United States and Pennsylvania’s constitutional provisions against
the imposition of ex post facto laws. See Muniz, 164 A.3d at 1193. Our Court
then confronted the issue of how to address appellants who, sentenced under
Megan’s Law in accordance with plea agreements, then violated these
agreements and were subject to SORNA in Commonwealth v. Fernandez,
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___ A.3d. ___, 2018 WL 4237535 (Pa. Super., filed September 5, 2018) (en
banc). The appellants in Fernandez all accepted plea deals, most of which
included a fixed term of sexual offender registration under then-Megan’s Law
II. The appellants were later resentenced for violations of parole or probation,
and thereafter subject to SORNA’s registration requirements. After the Muniz
decision, appellants challenged the application of SORNA to their cases. The
Fernandez en banc panel found that SORNA registration requirements were
no longer applicable to appellants. However, the Court did not release
appellants from all reporting obligations. Instead, finding that the legislature’s
new Act 29 addressed only the increased length of registration time for certain
crimes under SORNA and not the enhanced registration conditions, the Court
held appellants were subject to the original periods of sexual offender
registration and conditions imposed at the time of their plea bargains.
Here, Thomas agreed to a lifetime reporting requirement under Megan’s
Law II at the time of his initial guilty plea. After Muniz and Fernandez, we
agree that Thomas cannot be retroactively subject to SORNA’s requirements,
despite violating his probation. Though SORNA’s retroactive application to
Thomas could not have increased his already lifetime reporting requirement,
applying SORNA’s enhanced reporting requirements to Thomas nevertheless
violates the dictates of Muniz. See Muniz, 164 A.3d at 1193;
Commonwealth v. Horning, ___ A.3d ___, ___, 2018 WL 3372367, *5 (Pa.
Super., filed July 11, 2018). Therefore, we vacate in part Thomas’s judgment
of sentence, to the extent it requires him to register as a sexual offender
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pursuant to SORNA, and hold that Thomas is instead subject to the initial
period of sexual offender registration and corresponding conditions imposed
at the time of his plea bargain. The trial court shall correct the sentence on
remand.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this judgment order. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2018
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