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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT POLZER :
:
Appellant : No. 298 WDA 2015
:
Appeal from the PCRA Order December 15, 2014
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013546-2008
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD*, J.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 29, 2018
This case returns to us following remand from our Supreme Court
directing that we reconsider Appellant’s appeal concerning the application of
the Sexual Offender Registration and Notification Act (“SORNA I”), 42 Pa.C.S.
§§ 9799.10-9799.41,1 in light of the decision in Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017) (Opinion Announcing the Judgment of the Court), 2
cert. denied. sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925 (2018).
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1 Amended and replaced by 2018, Feb. 21, P.L. 27, No. 10, § 19, immediately
effective. Reenacted 2018, June 12, P.L. 140, No. 29, § 14, immediately
effective. 42 Pa.C.S. §§ 9799.51-9799.75 (“SORNA II”).
2 Portions of a plurality opinion announcing the judgment of the court have
precedential value insofar as they are joined by the concurring opinion.
Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super. 2011). In Muniz,
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* Former Justice specially assigned to the Superior Court.
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In this appeal, Appellant, Robert Polzer, appeals from the order entered
on December 15, 2014, that denied his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we are
constrained to reverse the order of the PCRA court and reinstate the
registration requirements imposed at the time of sentencing.
The relevant facts and procedural history of this matter were set forth
in our prior memorandum, and we need not restate them here. The salient
points for purposes of our analysis are that Appellant was convicted of rape 3
and false imprisonment for acts he committed on August 20, 2008. On
March 2, 2011, the trial court sentenced Appellant to an aggregate term of
ten and one-half to twenty-one years of incarceration. Appellant was not
designated a sexually violent predator, and he was required to comply with
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the opinion announcing the judgment of the court concluded that the
retroactive application of SORNA I violates the ex post facto clauses of the
United States and Pennsylvania Constitutions. In his concurring opinion,
Justice Wecht, who was joined by Justice Todd, concluded that the retroactive
application of SORNA I violates the Pennsylvania Constitution, but Justice
Wecht declined to consider whether the retroactive application violates the
United States Constitution. Muniz, 164 A.3d at 1224 n.2 (Wecht, J.,
concurring). Thus, the precedential value of Muniz is limited to the
determination that retroactive application of SORNA I violates the ex post
facto prohibition of the Pennsylvania Constitution.
3 Rape was subsequently categorized as a Tier III offense under SORNA I. 42
Pa.C.S. § 9799.14.
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the registration mandates set forth in Megan’s Law III,4 requiring a person
convicted of rape, who was not deemed a sexually violent predator, to register
and report for the duration of his life. 42 Pa.C.S. § 9795.1(b). Therefore,
Appellant was required to report once annually to the Pennsylvania State
Police to verify his address and other personal information. 42 Pa.C.S.
§ 9796(b).
Appellant filed a direct appeal to this Court, and after review, we
affirmed Appellant’s judgment of sentence. Commonwealth v. Polzer, 575
WDA 2011, 87 A.3d 386 (Pa. Super. filed September 18, 2013) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal in the
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4 We note that the original version of Megan’s Law, Megan’s Law I, was
enacted on October 24, 1995 (P.L. 1079 Spec. Sess. No. 1, as amended 42
Pa.C.S. §§ 9791-9799.6), and became effective in 180 days. Megan’s Law II
was enacted on May 10, 2000, in response to Megan’s Law I being ruled
unconstitutional in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999).
Subsequently, our Supreme Court held that although Megan’s Law II was
constitutional, the penalty provisions were unconstitutional, but severable, in
Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003). The
legislature responded by enacting Megan’s Law III on November 24, 2004.
Later, in an effort to align Pennsylvania with the federal notification
requirements enumerated in the Adam Walsh Child Protection and Safety Act
of 2006, 42 U.S.C. §§ 16901-16945, the legislature enacted SORNA I on
December 20, 2011, and SORNA I went into effect on December 20, 2012.
Megan’s Law III was ultimately struck down by our Supreme Court for
violating the single subject rule of Article III, Section 3 of the Pennsylvania
Constitution. Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013).
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Pennsylvania Supreme Court. Accordingly, his judgment of sentence became
final thirty days later on October 18, 2013.5
On August 13, 2014, Appellant filed a timely pro se PCRA petition, and
the PCRA court appointed counsel on September 3, 2014. On October 24,
2014, PCRA counsel filed a Turner/Finley6 no-merit letter and a motion to
withdraw as counsel. On November 18, 2014, the PCRA court granted
counsel’s motion to withdraw and notified Appellant of its intention to dismiss
his PCRA petition. The PCRA court denied Appellant’s PCRA petition on
December 15, 2014.
When Appellant first appealed the denial of his PCRA petition to this
Court, we concluded that his appeal was timely. Commonwealth v. Polzer,
298 WDA 2015 (Pa. Super. filed June 22, 2016) (unpublished memorandum).
In that prior appeal, Appellant raised the following issues:
A. Did the PCRA Court err in its decision dismissing Appellant’s
PCRA petition without a hearing where:
I. The trial court erred in excluding statements of
an unavailable declarant as an exception to the
hearsay rule?; and on
II. Whether the trial court erred on its defense
motion sequestration order that allowed the
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5 42 Pa.C.S. § 9545(b)(1) and (3).
6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw from representation
in a collateral proceeding under the PCRA).
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lead case detective to conform her testimony to
that of the complainant?;
III. Whether trial counsel was ineffective in failing
to cross-examine Detective Campbell
concerning her prior inconsistent statements?;
IV. Whether trial counsel was ineffective in failing
to secure an available witness who was willing
to testify on Appellant’s behalf?;
V. Whether the sentencing court imposed an illegal
sentence in violation of the Ex Post Facto Clause
by invoking the “two strikes” mandatory
minimum sentencing provision of 42 Pa.C.S.A.
§ 9714(a)(1), where the repeal of subsections
(b) and (c) made the statute more harsh and
punitive, subjecting Appellant to a greater
punishment that took away the discretionary
aspects of sentencing contrary to legislatures
intent of Section 9714?;
VI. Whether the sentencing court imposed an illegal
sentence, as to whether the mandatory
minimum sentence provisions under Section
9714 (a)(1) constitute an illegal sentence
pursuant to the United States Supreme Court’s
decision in Alleyne?;
VII. Whether the sentencing court imposed an illegal
sentence in violation of the Sixth Amendment to
the U.S. Const. by invoking the mandatory
minimum sentencing provision of Section 9714,
where such determination was not found by a
jury and proved beyond a reasonable doubt ?;
VIII. Whether Section 9714 imposes new legal
burdens of past transaction or occurrence and
changes the punishment for the predicate
offense in violation of the Fourteenth and Sixth
Amendments?;
IX. Whether [SORNA I’s] registration and
verification requirements under 42 Pa.C.S.A.
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§ 9799.15(e)(3) violate the due process clause
of the Fourteenth Amendment, and the
prohibition of the Ex Post Facto Clause to the
U.S. Constitution, where Appellant has not been
designated a sexually violent predator to
warrant quarterly verification?
Appellant’s Brief at 8-9 (verbatim). Following our review, we affirmed the
PCRA court’s denial of relief. Polzer, 298 WDA 2015 (unpublished
memorandum).
Appellant filed a timely petition for allowance of appeal in the Supreme
Court of Pennsylvania on July 18, 2016. On February 23, 2018, our Supreme
Court granted Appellant’s petition for allowance of appeal limited to one issue,
which the Supreme Court reproduced verbatim from Appellant’s petition for
allowance of appeal:
Whether the appellate Superior Court erred in its findings and
conclusions, and the PCRA court committed legal error in denying
Petitioner’s claim that the Sex Offender Registration and
Notification Act (SORNA [I]) under 42 Pa.C.S.A. §9799, i.e.,
§§9799.15(e) and (e)(3) violate the due process clause of the
Fifth and the Fourteenth Amendments to the United States
Constitution, and the due process rights under the Pennsylvania
Constitution, Art. 1, §1, and Art. 1, §9, and, therefore, violate the
prohibition of the Ex Post Facto Clauses to the United States
Constitution, Art. 1, §10, Clause 1, and the Pennsylvania
Constitution, Art. 1, §17, where Petitioner is clearly not
designated as a Sexually Violent Predator (SVP) to justify and
warrant such progressively rigid conditions and “quarterly in-
person” reporting requirements previously subject only to those
deemed an SVP, whereas, SORNA [I’s] irrebuttable presumption
that all sexual offenders pose a high risk of reoffending violates
procedural and substantive due process under the Pennsylvania
Constitution, and as such, SORNA [I]’s Internet notification
provision and quarterly verification requirements constitute an ex
post facto law under the Pennsylvania Constitution?
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Order, 457 WAL 2016. The Supreme Court vacated this Court’s order and
remanded to this Court for reconsideration in light of Muniz. The Supreme
Court of Pennsylvania denied Appellant’s petition for allowance of appeal in all
other respects.
On March 23, 2018, we remanded this matter to the PCRA court for the
appointment of counsel. The PCRA court appointed counsel, and counsel
dutifully filed a brief on Appellant’s behalf. The Allegheny County District
Attorney’s Office filed a responsive brief on behalf of the Commonwealth, and
the Pennsylvania Office of the Attorney General and Pennsylvania State Police
filed a brief as intervenors. This matter is now ripe for disposition.
Our standard of review for an order denying PCRA relief is limited to
determining whether the record supports the PCRA court’s determination and
whether that decision is free of legal error. Commonwealth v. Allen, 48
A.3d 1283, 1285 (Pa. Super. 2012) (citation omitted). The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record. Id.
Pursuant to our Supreme Court’s mandate, we address the application
of SORNA I following the Muniz decision. As noted, on December 20, 2011,
Pennsylvania enacted SORNA I, which became effective one year later, on
December 20, 2012. Thus, Appellant’s crimes, sentencing, and imposition of
sex-offender registration requirements occurred prior to SORNA I’s
enactment.
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In Muniz, our Supreme Court concluded that SORNA I altered the
registration requirements for Tier III offenses, which includes rape, and these
alterations increased the reporting obligation from annual in-person7 reporting
to quarterly in-person reporting. Muniz, 164 A.3d at 1210-1211, (citing 42
Pa.C.S. § 9799.15(e)(3)). SORNA I also allowed for more of a defendant’s
private information to be displayed online. Muniz, 164 A.3d at 1216 (citation
omitted). The Muniz Court determined that retroactive application of SORNA
I’s registration provisions violates the ex post facto clause of the Pennsylvania
Constitution. Muniz, 164 A.3d at 1223.
Moreover, this Court held that Muniz applies retroactively to cases,
such as this one, which were pending on collateral appeal following the filing
of a timely PCRA petition, at the time Muniz was decided. See
Commonwealth v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017)
(“The Muniz decision should be retroactively applied in state collateral courts
to comply with the United States and Pennsylvania Constitutions.”); compare
Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018) (distinguishing
Rivera-Figueroa and declining to apply Muniz where the petitioner files an
untimely PCRA petition).
However, during the pendency of this appeal, SORNA II was enacted,
and it abrogated SORNA I. Accordingly, SORNA I has no applicability, and we
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7 42 Pa.C.S. § 9796(b).
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are therefore constrained to reverse the order of the PCRA court which applied
SORNA I. Commonwealth v. Fernandez, ___A.3d___, ___, 2018 PA Super
245, 2018 WL 4237535, at *9 (Pa. Super. 2018).8 Thus, Appellant’s
registration requirements remain as they were at the time of sentencing. Id.
Appellant’s registration requirements will not be altered unless and until the
Pennsylvania State Police reclassify Appellant under SORNA II.9 Id.
Order reversed.
Judge Ott concurs in the result.
Justice Fitzgerald did not participate in the consideration or decision of
this case.
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8 The Commonwealth and Intervenors make a compelling argument that this
issue is moot in light of SORNA II. Commonwealth’s Brief at 62; Brief for
Pennsylvania Attorney General and State Police as Intervenors at 14.
However, because this Court in Fernandez did not conclude the issue was
moot and addressed the sentences imposed, we are bound to follow that
precedent. Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).
9 The ramifications of SORNA II are not before this Court presently, and we
offer no opinion on the impact of SORNA II. See Fernandez, 2018 WL
4237535, at *9 (“[T]he issue of the possible retroactive application of [SORNA
II] is not before us. The only issue raised by Appellants, and argued to the
Court, was whether the reclassification under SORNA I, as applied . . . was
lawful.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2018
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