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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL D. KARRAKER
Appellant : No. 1020 WDA 2018
Appeal from the Order Entered June 21, 2018
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000559-2016
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 22, 2019
Appellant, Michael D. Karraker, appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.
§§ 9541-9546. Because Appellant was sentenced following a conviction for
failure to comply with registration requirements' of the Sex Offender
Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.41 ("SORNA"),2
and SORNA was not enacted at the time of his underlying conviction, he is
entitled to relief. We therefore reverse the order of the PCRA court.3
The PCRA court summarized the procedural history as follows:
' 18 Pa.C.S. § 49151.1.
2 Effective December 20, 2012.
3 We note that the Commonwealth failed to file a brief in this matter.
Retired Senior Judge assigned to the Superior Court.
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[Appellant] was convicted of the crime of Aggravated
Indecent Assault, 18 Pa.C.S.A. [§] 3125(a)[(]8), in Westmoreland
County on or around July 9, 2010. Under the version of Megan's
Law then in effect, he was subject to a lifetime reporting
requirement because of it and had only 48 hours to notify the
police when he changed addresses. Seven years later, he was
charged in Jefferson County for failing to register when he moved
out of the homeless shelter where he was staying. He was
charged under [42 Pa.C.S.] § 4915.1 for a first violation.
[Appellant] pled guilty and was sentenced in a single
proceeding that took place on July 19, 2017.[4]
PCRA Court Opinion, 6/21/18, at 1.
Appellant filed a timely pro se PCRA petition on December 20, 2017,
challenging his sentence in light of Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017). The PCRA court appointed counsel on December 22, 2017.
Counsel's motion to amend the PCRA petition was granted, and an amended
PCRA petition was filed on January 30, 2018. Appellant's PCRA petition was
denied on June 21, 2018. Appellant filed a notice of appeal on July 16, 2018.
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
1. Was [Appellant's] conviction of the crime of 'Failure to comply
with registration requirements' (18 Pa.C.S.A. Sec.
4915.1(a)(1)) invalid, and the July 19, 2017, sentence for said
conviction of, inter alia, eighteen (18) months to seventy-two
(72) months incarceration thereby rendered illegal, as being in
violation of both the Constitution of the Commonwealth of
Pennsylvania and of the Constitution of the United States
where the elements of the crime he was convicted of can only
be established by proof that [Appellant] was then subject to
the provisions of Pennsylvania's Sex Offender Registration and
4 Appellant did not file a direct appeal.
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Notification Act (SORNA) and said conviction resulted from
retroactive application of SORNA's registration provisions in
violation of the ex post facto clauses of both consitutions?
Appellant's Brief at 4.
When reviewing the propriety of an order denying PCRA relief, we
consider the record "in the light most favorable to the prevailing party at the
PCRA level." Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court's findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
On appeal, Appellant argues that his sentence is illegal under Muniz.
Appellant's Brief at 8-18. In Muniz, our Supreme Court held that retroactive
application of the registration and reporting requirements of SORNA violated
the ex post facto clauses of the United States and Pennsylvania Constitutions.
Muniz, 164 A.3d at 1223. More specifically, the Muniz Court explained that
the reporting and registration requirements under SORNA are punitive and
that their retroactive application to offenses committed prior to SORNA's
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effective date, December 20, 2012,5 violates the ex post facto clauses of the
Constitutions. Id.
Recently, in Commonwealth v. Wood, 208 A.3d 131 (Pa. Super. 2019)
(en banc), this Court applied Muniz in addressing an issue similar to the one
presently before us. In Wood, the appellant pled guilty to one count of
statutory sexual assault for a crime he committed prior to December 2012,
and he was deemed a lifetime registrant. Wood, 208 A.3d at 132. In June
of 2017, the appellant pled guilty to failure to comply with registration
requirements under SORNA. Id. at 132-133. Following our Supreme Court's
ruling in Muniz in July of 2017, the appellant filed an appeal on the basis of
the Muniz holding. Wood, 208 A.3d at 133. The Wood Court concluded that
because the appellant committed the underlying crime before SORNA's
effective date, application of SORNA's registration and reporting requirements
to him "violated ex post facto prohibitions." Id. at 138. Because the
conviction for failure to register was based on a violation of "retroactively
applied registration requirements under SORNA, and because such retroactive
application of SORNA [was] unconstitutional under Muniz," we reversed the
appellant's conviction for failure to register and vacated that judgment of
sentence. Id. at 140.
5 In Commonwealth v. Wood, 208 A.3d 131 (Pa. Super. 2019) (en banc),
this Court stated that SORNA's effective date triggers its application. Wood,
208 A.3d at 137.
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In the case sub judice, similar to the appellant in Wood, Appellant's
underlying conviction was for a crime he committed prior to December 2012.
Therefore, his 2017 conviction for failure to comply with registration
requirements was based on a violation of "retroactively applied registration
requirements under SORNA." Wood, 208 A.3d at 140. Because the
retroactive application of SORNA is unconstitutional under Muniz, his
conviction and sentence for failure to register cannot stand.
We further address the PCRA's court's basis for denying Appellant's
PCRA petition. In its opinion, the PCRA court addressed the holding in Muniz,
but emphasized that in Muniz, the appellant went from being a ten-year
registrant under the version of Megan's Law in effect when he pled guilty to a
being a lifetime registrant under SORNA. PCRA Court Opinion, 6/21/18, at 1.
The PCRA court further stated:
Unlike the Muniz defendant, [Appellant] was a lifetime
registrant from the date of his conviction. Accordingly, SORNA did
not impose a greater burden that that to which he was already
subject, which means that the reasoning adopted in Muniz is
inapposite. As applied to [Appellant], therefore, § 4915.1 was not
an ex post facto law. His substantive claim is thus without merit[.]
PCRA Court Opinion, 6/21/18, at 2.
We recognize that in this case, SORNA does not affect the length of
Appellant's lifetime registration obligation. At the time he committed these
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offenses, he was subject to Megan's Law 111,6 was categorized a Tier III
offender, and was mandated lifetime registration.7 Under SORNA, Appellant
also was subjected to lifetime registration.8 Compare 42 Pa.C.S. §
9795.1(b)(2) (expired) with 42 Pa.C.S. §§ 9799.14(d), 9799.15(a)(3).
Although it did not increase the period of registration, SORNA did enhance
registration requirements for Tier III offenses, including quarterly in -person
reporting and dissemination of personal information via an Internet website.
Muniz, 164 A.3d at 1210-1213 (citing Commonwealth v. Perez, 97 A.3d
747, 765 (Pa. Super. 2014) (Donohue, J. concurring)). These additional, more
stringent registration requirements constitute a greater punishment than what
would have been imposed under Megan's Law III. As such, retroactive
application of these enhanced registration requirements runs afoul of
constitutional ex post facto prohibitions. Muniz, 164 A.3d at 1193, 1216. The
fact that the length of registration requirements under both Acts is the same
does not make the retroactive application of SORNA's reporting requirements
constitutional. See Wood, 208 A.3d at 132-140 (the appellant was subjected
6 Megan's Law III was signed into law on November 24, 2004, and expired on
December 20, 2012, when it was replaced by SORNA. Act 152 of 2004.
Megan's Law III was invalidated by our Supreme Court's decision in
Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013).
8 Because Appellant was still required to register with the state police at the
time SORNA went into effect, SORNA purported to impose the new registration
requirements and other provisions of SORNA on him retroactively. See 42
Pa.C.S. § 9799.13(3)(i) (requiring any individual who had not completed his
or her registration period under prior registration statutes as of SORNA's
December 20, 2012 effective date to register and comply with SORNA).
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to lifetime registration requirements under Meagan's Law III and SORNA, and
this Court held that retroactive application of SORNA registration requirements
was unconstitutional under Muniz). Accordingly, because Appellant's 2017
conviction for failure to register is based on his violation of retroactively
applied registration requirements under SORNA, and because such retroactive
application of SORNA is unconstitutional under Muniz, we reverse the PCRA
court's order denying relief and Appellant's conviction for failure to register,
and vacate that judgment of sentence.
Order reversed. Judgment of sentence vacated. Jurisdiction
relinquished.
Judgment Entered.
J seph D. Seletyn, Es
Prothonotary
Date: 7/22/2019
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