J-S52002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JASON HOOVER SENSENIG,
Appellant No. 141 MDA 2018
Appeal from the Judgment of Sentence Entered November 30, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000071-2017
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2018
Appellant, Jason Hoover Sensenig, appeals from the judgment of
sentence imposed after he pled guilty to one count of indecent assault of a
person less than 13 years of age, 18 Pa.C.S. § 3126(a)(7). Appellant
specifically challenges the trial court’s imposition of a 10-year registration
requirement pursuant to Megan’s Law III, 42 Pa.C.S. §§ 9791-9799.9. After
careful review, we vacate that aspect of Appellant’s sentence, affirm the
remainder of his judgment of sentence, and remand for further proceedings.
The trial court summarized the pertinent facts and procedural history of
this case, as follows:
The underlying facts, as acknowledged by [Appellant], are
that between January 1, 2010 and December 31, 2011,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S52002-18
[Appellant], who was between the ages of fifteen (15) and
seventeen (17), touched the vagina of the victim, who was
between the ages of ten (10) and twelve (12). The victim did not
disclose the sexual assault until 2016 and charges were not filed
until [Appellant] was over the age of twenty-one (21). On May
23, 2017, [Appellant] pled guilty to indecent assault of a person
less than thirteen (13) years of age. Sentencing was deferred
pending an assessment by the Sexual Offender’s Assessment
Board, which determined that [Appellant] was not a sexually
violent predator. Pursuant to the negotiated plea agreement,
[Appellant] was sentenced on September 14, 2017[,] to a split-
sentence of six (6) to twenty-three (23) months of house arrest
and a consecutive three (3) years of probation.
Prior to sentencing, [Appellant] filed a motion on September
7, 2017[,] seeking to bar imposition of sexual offender registration
requirements pursuant to the decision in [Commonwealth v.]
Muniz[, 164 A.3d 1189, 1223 (Pa. 2017) (holding that the
registration provisions under the Sexual Offender Registration and
Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41,
constitute criminal punishment for purposes of the ex post facto
clause of the Pennsylvania Constitution and, therefore, those
requirements cannot be constitutionally applied to offenders
whose crimes occurred before SORNA’s effective date)].
[Appellant’s] motion was denied at the time of sentencing and he
was ordered to comply with the lifetime reporting requirement
applicable pursuant to SORNA. [Appellant] filed a post-sentence
motion on September 20, 2017, which was granted, in part, on
October 30, 2017[,] for the reasons stated within the Opinion and
Order filed on that date. [Appellant] was resentenced on
November 30, 2017[,] to the ten (10) year registration and
reporting requirements that were in effect at the time [Appellant]
committed the offense. A second post-sentence motion was filed
by [Appellant] on December 7, 2017, which was denied by Order
dated January 2, 2018.
Trial Court Opinion (TCO), 3/14/18, at 2-3 (footnotes omitted).
Appellant filed a timely notice of appeal, and he also timely complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. The court filed its Rule 1925(a) opinion on
March 14, 2018. Herein, Appellant raises three issues for our review:
-2-
J-S52002-18
I. Whether the lower court[’s] … order[ing] [Appellant] to
comply with the registration and notification requirements
of 42 Pa.C.S.[] § 9799.51[,] when the predicate acts
occurred when [Appellant] was less than 18 years of age[,]
was unconstitutional[, as it] violat[ed] [Appellant’s] due
process rights by relying on an irrebuttable presumption?
II. Whether the imposition of the ten-year reporting
requirements upon [Appellant] consistent with the
provisions of 42 Pa.C.S.[] § 9799.51 is legal and
constitutional ex post facto law?
III. Whether the lower court correctly required [Appellant] to
register pursuant to 42 Pa.C.S.[] § 9799.51 when
[Appellant] would not have been required to register i[f]
[Appellant] had been adjudicated delinquent?
Appellant’s Brief at 1 (unnecessary capitalization and emphasis omitted).
Appellant’s issues are interrelated and, therefore, we will address them
together. Appellant’s claims all stem from the fact that he was a juvenile at
the time he committed his offense, although he was ultimately prosecuted and
convicted for that crime as an adult. He summarizes his arguments premised
on this fact, as follows:
The imposition of the ten year reporting requirements of 42
Pa.C.S. § 9799.51 upon [Appellant,] who committed the predicate
offense when he was less than 18 years of age[,] was illegal and
unconstitutional for three separate reasons.
First, it violates his rights to due process by utilizing an
irrebuttable presumption that juvenile sex offenders present a
high risk of recidivism. See In the Interest of J.B., 107 A.3d 1
(Pa. 2014).
Second, the imposition of [a] ten year reporting
requirement[] as allegedly made applicable upon [Appellant] by
the provisions of 42 Pa.C.S.[] § 9799.51 is illegal and
unconstitutional as it is violative of the prohibition against ex post
facto laws contained in the United States and Pennsylvania
Constitutions. Commonwealth v. Muniz, 163 A.3d 1189, 1204
(Pa. 2017).
-3-
J-S52002-18
Finally, [had Appellant] … been prosecuted in a timely
manner an[d] adjudicated delinquent, he would not have been
subject to the registration provisions of SORNA. To require
[Appellant,] who committed acts as a juvenile[,] to comply with
the registration provisions[,] which would not have been
applicable to him if [he] [w]as adjudicated delinquent[,]
establishes a classification of offenders which lacks a rational
basis. For this reason, [Appellant] is denied the equal protection
of the laws under the Pennsylvania and United States
Constitution[s.]
Appellant’s Brief at 10.
We need not address Appellant’s arguments, as we conclude, on a
different basis, that the court’s imposition of a 10-year reporting requirement
under Megan’s Law III cannot stand. Specifically, the Pennsylvania General
Assembly passed SORNA, which “provided for the expiration of prior
registration requirements commonly referred to as Megan’s Law, 42 Pa.C.S.
§§ 9791-9799.9, as of December 20, 2012, and for the effectiveness of
SORNA on the same date.” In the Interest of J.B., 107 A.3d 1, 3 (Pa. 2017).
Additionally, Megan’s Law III was also deemed unconstitutional by our
Supreme Court in Commonwealth v. Neiman, 84 A.3d 603, 607 (Pa. 2013),
for violating the single-subject rule of Article III, Section 3 of the Pennsylvania
Constitution. Consequently, Megan’s Law III is no longer a statute under
which registration requirements can be imposed.
Therefore, we vacate the court’s November 30, 2017 judgment of
sentence to the extent that it imposes a Megan’s Law III registration
requirement upon Appellant. We remand for the trial court to determine what,
-4-
J-S52002-18
if any, registration requirements apply to Appellant under the current law.1 In
all other respects, we affirm Appellant’s judgment of sentence.
Judgment of sentence vacated in part and affirmed in part. Case
remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2018
____________________________________________
1 See Act of February 21, 2018, P.L. 27, No. 10 (“commonly referred to as Act
10”). Act 10 amended several existing provisions of SORNA and also added
several new sections found at 42 Pa.C.S. §§ 9799.42, 9799.51-9799.75.
While Appellant challenges the constitutionality of Act 10, we need not address
those arguments because Act 10 was not applied in his case and, in any event,
the Governor recently signed new legislation striking the Act 10 amendments
and reenacting new SORNA provisions, effective June 12, 2018. See Act of
June 12, 2018, P.L. 1952, No. 29. Accordingly, it is appropriate for the trial
court to discern, in the first instance, what registration provisions apply in this
case.
-5-