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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHARLES C. THOMPSON :
:
Appellant : No. 1342 WDA 2018
Appeal from the Judgment of Sentence August 15, 2018
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000279-2015
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 14, 2020
Appellant, Charles C. Thompson, appeals from the new judgment of
sentence entered in the Jefferson County Court of Common Pleas, based on
his guilty plea to failure to comply with registration requirements under the
Sexual Offender Registration and Notification Act (“SORNA”). We reverse the
conviction, vacate the judgment of sentence, and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows. In
2001, Appellant pled guilty in Mesa County, Colorado to ten counts of sexual
exploitation of a child, per C.R.S.A. § 18-6-403(3)(b.5). As a result, Appellant
was required under Colorado law to register as a sex offender for a minimum
of ten (10) years. After the ten years expired, Appellant became eligible to
petition the Colorado court to remove him from the registry. In 2010, while
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* Retired Senior Judge assigned to the Superior Court.
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the ten-year Colorado registration requirement was still in effect, Appellant
moved to Pennsylvania. When the ten-year registration period expired,
Appellant did not to petition the Colorado court for removal from the registry,
so his registration requirements continued.
On August 18, 2015, the Commonwealth charged Appellant for failing
to update his information as required under SORNA. The Commonwealth
alleged that between February 2, 2015, and February 25, 2015, Appellant
failed to notify the Pennsylvania State Police (“PSP”) within three business
days of his change of address from Hamilton, Pennsylvania to Punxsutawney,
Pennsylvania, in violation of 18 Pa.C.S.A. § 4915.1(a)(1). On August 3, 2016,
Appellant entered a guilty plea to failure to comply with registration
requirements, and the court sentenced Appellant to five (5) to ten (10) years’
imprisonment, plus ten (10) years’ probation. Appellant did not seek direct
review.
On July 31, 2017, Appellant timely filed a pro se PCRA petition, and the
court subsequently appointed counsel. Counsel filed an amended petition on
October 6, 2017, claiming, inter alia, SORNA was unconstitutionally applied to
Appellant, and the offense of Appellant’s failure to comply with registration
requirements was improperly graded as a Felony 1. The PCRA court held a
hearing on January 30, 2018. On February 8, 2018, the court granted relief
in part and denied relief in part. Specifically, the court granted Appellant relief
on the grading challenge and ordered resentencing. The court, however,
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denied PCRA relief regarding the SORNA/Muniz1 claim, explaining that SORNA
did not function as an unconstitutional ex post facto law in Appellant’s case
because SORNA had not created or enhanced his reporting requirements.
Rather, the court stated Appellant’s continuing obligation to report stemmed
from his Colorado convictions and his failure to petition the Colorado court for
release from his duty to register.
On August 15, 2018, the court resentenced Appellant to twenty-eight
(28) months to ten (10) years’ imprisonment. On the same day, Appellant
timely filed a post-sentence motion based on an illegal sentence, which the
court denied. On September 13, 2018, Appellant filed a notice of appeal. The
court ordered Appellant on September 19, 2018, to file a concise statement
of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied
on September 24, 2018.
Appellant raises the following issue for our review:
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
AUGUST 15, 2018, SENTENCE FOR SAID CONVICTION OF,
INTER ALIA, 28 MONTHS TO NO MORE THAN 10 YEARS’
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
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1 Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert.
denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018).
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SEX OFFENDER REGISTRATION AND 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 CONSTITUTIONS?
(Appellant’s Brief at 2).
Appellant argues his conviction for failure to comply with the registration
requirements per 18 Pa.C.S.A. § 4915.1(a)(1) can be established only if
Appellant was subject to the provisions of SORNA. Appellant, however, avers
his Colorado convictions predate the effective date of SORNA so SORNA does
not apply to him. Appellant contends the court retroactively applied SORNA,
in violation of the ex post facto clauses of both the United States and
Pennsylvania Constitutions. Appellant claims this ex post facto application of
SORNA invalidates his conviction and renders his sentence illegal pursuant to
Muniz. Appellant concludes this Court should vacate his conviction and
sentence for failure to comply with SORNA. We agree.
A challenge to the legality of a sentence is a question of law.
Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa.Super. 2017) (en banc).
Thus, our standard of review is de novo and our scope of review is plenary.
Id. This Court has observed:
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. If no statutory
authorization exists for a particular sentence, that sentence
is illegal and subject to correction. An illegal sentence must
be vacated.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013) (internal
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citations and quotation marks omitted).
In July 2017, our Supreme Court declared SORNA unconstitutional,
where it violates the ex post facto clauses of both the United States and
Pennsylvania Constitutions. Muniz, supra. The Muniz court determined
SORNA’s purpose was punitive, despite the General Assembly’s stated civil
remedial purpose. Id. at 748-49, 164 A.2d at 1218. Therefore, a retroactive
application of SORNA to pre-SORNA sex offenders violates the ex post facto
clause of the United States Constitution. Id. SORNA also violates the ex post
facto clause of the Pennsylvania Constitution because it places a unique
burden on the right to reputation and undermines the finality of sentences by
enacting increasingly severe registration law. Id. at 756-57, 164 A.2d at
1223. A plea to failure to register under SORNA is unconstitutional and must
be vacated, where the defendant committed his underlying sex offense prior
to the effective date of SORNA. Commonwealth v. Wood, 208 A.3d 131,
140 (Pa.Super. 2019) (en banc) (holding effective date of SORNA controls for
purposes of ex post facto analysis); Commonwealth v. Lippincott, 208 A.3d
143 (Pa.Super. 2019) (en banc) (stating same).
Instantly, Appellant was convicted of his underlying sex offenses in
Colorado in 2001, eleven years before the effective date of SORNA. Appellant
moved to Pennsylvania in 2010, and began registering under Pennsylvania
law. In 2015, police discovered Appellant had changed his Pennsylvania
address without notifying the PSP. The Commonwealth charged him for failing
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to update his information as required under SORNA. Appellant entered a guilty
plea to failure to comply with the SORNA registration requirements. Following
a challenge to the initial judgment of sentence, the court granted partial relief
on Appellant’s grading claim but denied his SORNA/Muniz claim. Regarding
its denial of the SORNA/Muniz claim, the court explained that SORNA did not
function as an unconstitutional ex post facto law in Appellant’s case because
SORNA had not created or enhanced his reporting requirements. Rather, the
court emphasized that Appellant’s reporting obligation stemmed from his
failure to petition the Colorado court to discontinue his duty to register. The
court’s reasoning, however, is flawed.
Here, Appellant committed his offenses in Colorado before the effective
date of SORNA, when Megan’s Law II was operative in Pennsylvania. When
the Commonwealth charged Appellant in 2015 with failure to comply with
registration requirements, SORNA was operative. Because Appellant’s
underlying sex offenses occurred prior to the effective date of SORNA, SORNA
does not apply to his case. See Muniz, supra. Appellant’s reporting
obligation stemmed from another state but that is not controlling. The
unconstitutional ex post facto application of SORNA to Appellant invalidates
his guilty plea to “violating SORNA” and renders his sentence illegal. See id.;
Wood, supra; Lippincott, supra. Accordingly, we reverse the conviction
and vacate the judgment of sentence for failing to comply with SORNA. See
Infante, supra.
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Nevertheless, Appellant failed to petition the Colorado court to
discontinue his registration duties. While Appellant did not have to register
as specified in SORNA, he was still required to register in Pennsylvania.
Therefore, we remand this case to the trial court to determine Appellant’s
appropriate registration requirements.
Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2020
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