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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RONALD WILLIAM NEETZ :
:
Appellant : No. 1606 MDA 2018
Appeal from the Judgment of Sentence Entered August 15, 2018
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000233-2015
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY PANELLA, P.J.: FILED JULY 19, 2019
Ronald William Neetz appeals from the judgment of sentence entered
after a jury found him guilty of failing to comply with sexual offender
registration requirements under the Sex Offender Registration and Notification
Act, 42 Pa.C.S.A. §§ 9799.10-9799.41 (“SORNA”). As we conclude Neetz’s
sentence is illegal in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), we reverse his conviction and vacate the judgment of sentence.
On December 17, 2015, Neetz was convicted of failure to comply with
registration requirements. The trial court sentenced him to 3 to 6 years’
imprisonment. After trial counsel filed an untimely Rule 1925(b) statement, a
panel of this court found all of Neetz’s issues on appeal waived and affirmed
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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his judgment of sentence. See Commonwealth v. Neetz, 752 MDA 2016
(filed May 30, 2017) (unpublished memorandum).
On December 1, 2017, Neetz filed a pro se petition for relief pursuant
to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9542-9546 (“PCRA”).
Through his petition, Neetz claimed trial counsel’s ineffectiveness for failing to
preserve his issues in a timely Rule 1925(b) statement. Additionally, Neetz
claimed his sentence was unconstitutional because it relied upon mandatory
minimum sentences. Following a hearing on August 15, 2018, the PCRA court
agreed that Neetz’s sentence was unconstitutional and resentenced him to 24
to 72 months’ imprisonment. Further, the court reinstated Neetz’s direct
appeal rights. This timely appeal follows.
On appeal, Neetz contends his conviction was unconstitutional because
it relied upon the retroactive application of SORNA in violation of our Supreme
Court’s holding in Muniz. Conversely, both the Commonwealth and the PCRA
court argue that Neetz has waived this challenge on appeal by failing to raise
it before the lower court. See Trial Court Opinion, 11/16/16, at 2;
Commonwealth’s Brief, at 7-8.
Generally, issues not raised before the trial court are waived for
appellate review. See Pa.R.A.P. 302(a). However, “[a] challenge to the
legality of a particular sentence may be reviewed by any court on direct
appeal; it need not be preserved in the lower courts to be reviewable and may
even be raised by an appellate court sua sponte.” Commonwealth v. Batts,
163 A.3d 410, 434 (Pa. 2017) (citation omitted). The retroactive application
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of SORNA has been held to implicate the legality of a sentence. See
Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019).
Therefore, because Neetz’s Muniz claim rests on the impermissible retroactive
application of SORNA, we may review this issue on appeal.
Sometime before 2012,1 Neetz was convicted of a crime that required
him to register as a sex offender for the rest of his life pursuant to Megan’s
Law III. Relevant to the instant appeal, the Pennsylvania legislature replaced
Megan’s Law with SORNA, effective December 20, 2012. Among other
modifications, SORNA effectively increased the registration requirements of
many offenders subject to its rules.
Subsequently, our Supreme Court determined that SORNA’s registration
requirements impermissibly constituted de facto punishment. See
____________________________________________
1 Strangely, the record does not contain the date of Neetz’s initial conviction.
As a result, Neetz filed an application for remand for further proceedings in
the PCRA court. See Application for Remand, 3/11/19. The PCRA court and
Commonwealth supported this motion. See Trial Court Opinion, 11/16/16, at
3; Commonwealth’s Answer to Application for Remand, 3/19/19, at ¶ 2.
However, a remand to include this information in the record is unnecessary.
As discussed in more detail infra, Muniz held that the retroactive application
of SORNA’s registration requirements is unconstitutional. See 164 A.3d at
1218. At Neetz’s trial, both the Commonwealth and defense stipulated that
Neetz was convicted and ordered to register pursuant to Megan’s Law. See
N.T., Jury Trial, 12/17/15, at 27. Further, a review of the publicly available
criminal docket sheets indicates that Neetz was sentenced in 2007 for conduct
occurring in 2006. See
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=
CP-13-CR-0000654-2006&dnh=TUkhPbIljb%2fug%2bhefCEHLg%3d%3d,
retrieved 6/27/19. Under these circumstances, any application of SORNA’s
registration requirements on Neetz constitutes a retroactive application of
SORNA. Because our decision resolves Neetz’s appeal, we deny Neetz’s
“Application for Remand” as moot.
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Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017). Additionally,
the Court held that retroactive application of SORNA’s registration scheme
violated the ex post facto clause of the United States Constitution. See id.
Neetz was convicted of failure to comply with registration requirements
on December 17, 2015. Specifically, the trial court found that Neetz’s failure
to register his change of address within three days of moving violated 18
Pa.C.S.A. § 4915.1(a)(2). Therefore, Neetz’s conviction stemmed from his
violation of SORNA’s registration requirements.
However, SORNA’s requirements cannot be lawfully imposed on Neetz
after Muniz. See Commonwealth v. Wood, ___ A.3d ___, 2019 WL
1595871, *6 (Pa. Super., filed April 15, 2019) (en banc) (holding “application
of SORNA to sexual offenders for offenses committed before its effective date
violates the ex post facto clauses of the United States and Pennsylvania
Constitution[s]”); see also Commonwealth v. Fernandez, 195 A.3d 299,
310 (Pa. Super. 2018) (en banc) (“Following Muniz, SORNA’s sexual offender
requirements may not be imposed retroactively on any defendant”). Further,
pursuant to Commonwealth v. Derhammer, 173 A.3d 723, 729 (Pa. 2017),
the Commonwealth could not convict Neetz of failing to register under any
version of Megan’s Law. Finally, we conclude that Neetz could not have been
convicted of failing to comply with 42 Pa.C.S.A. § 9799.55 as that statute was
not passed until February 21, 2018 – more than two years after his trial.
Accordingly, we reverse his conviction for failing to comply with sexual
offender registration requirements.
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Conviction reversed. Judgment of sentence vacated. Application for
remand denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2019
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