J-S49037-18
2018 PA Super 392
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GUY C. HAUGHWOUT, SR. :
:
Appellant : No. 416 MDA 2018
Appeal from the Judgment of Sentence October 6, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001537-2014,
CP-40-CR-0003790-2013
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
CONCURRING OPINION BY SHOGAN, J.: FILED OCTOBER 30, 2018
I join the Opinion of the learned Majority. I write separately, however,
to further explain my reasons for affirming the trial court’s opinion.
As noted by the Majority, Appellant was subject to lifetime registration
under Megan’s Law I, 42 Pa.C.S. §§ 9791-9799.6, as a result of his conviction
of indecent assault in 2002. On September 17, 2015, Appellant pled guilty to
and was convicted of violating 18 Pa.C.S. § 4915.1(a)(1) and (a)(3) for failing
to comply with registration requirements and failing to provide accurate
registration information in 2013.
The Pennsylvania Supreme Court has held that the registration
provisions of the Sexual Offender Registration and Notification Act (“SORNA”),
42 Pa.C.S. §§ 9799.10–9799.41, constitute criminal punishment that cannot
be retroactively applied to a defendant whose crimes were committed prior to
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S49037-18
SORNA. Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert.denied,
138 S.Ct. 925 (U.S. 2018). In doing so, the High Court reiterated that “‘two
critical elements’ must be met for a criminal or penal law to be deemed ex
post facto: ‘it must be retrospective, that is, is must apply to events occurring
before its enactment, and it must disadvantage the offender affected by it.’”
Muniz, 164 A.3d at 1195-1196 (quoting Weaver v. Graham, 450 U.S. 24,
29 (1981)).
As noted by the Majority, Appellant was not disadvantaged by being
subjected to a longer registration period. Additionally, though, SORNA was
not applied to events occurring before its enactment on December 20, 2011,
because Appellant violated Sections 4915.1(a)(1) and (a)(3) in 2013. Thus,
because Appellant was not subject to retroactive application of SORNA’s
registration requirements, the ex post facto clauses of the federal and state
constitutions were not directly implicated. Accordingly, I agree with the
Majority that Appellant is not entitled to relief under Muniz.
I write separately also to address the Commonwealth’s suggestion that,
given Appellant’s designation as a sexually violent predator (“SVP”) following
his conviction of indecent assault in 2002, he may be entitled to relief under
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
granted, 190 A.3d 581 (Pa. 2018). Commonwealth’s Brief at 5. Although
Appellant did not raise this issue, it impacts the legality of his sentence, an
issue we may raise sua sponte. Id. at 1215.
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J-S49037-18
In Butler, we held that:
section 9799.24(e)(3) of SORNA violates the federal and state
constitutions because it increases the criminal penalty to which a
defendant is exposed without the chosen fact-finder making the
necessary factual findings beyond a reasonable doubt.
Moreover, . . . trial courts cannot designate convicted defendants
SVPs (nor may they hold SVP hearings) until our General
Assembly enacts a constitutional designation mechanism.
Instead, trial courts must notify a defendant that he or she is
required to register for 15 years if he or she is convicted of a Tier
I sexual offense, 25 years if he or she is convicted of a Tier II
sexual offense, or life if he or she is convicted of a Tier III sexual
offense.
Butler, 173 A.3d at 1218.
The record at hand indicates that Appellant was designated an SVP on
February 15, 2002, pursuant to Megan’s Law I, not SORNA. Neither the
Pennsylvania Supreme Court nor this Court has held that Butler may be
applied retroactively to pre-SORNA SVP designations. Thus, Appellant is not
entitled to relief under Butler.1
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2018
____________________________________________
1 If the Pennsylvania Supreme Court issues a decision holding that Butler
applies retroactively, Appellant may file a petition under the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541–9546, within sixty days of that decision,
attempting to invoke a time-bar exception in subsection 9545(b)(1)(iii). See
Commonwealth v. Murphy, 180 A.3d 402, 406 n.1 (Pa. Super. 2018).
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