Com. v. Barger, R.

J-S24040-24

2024 PA Super 233

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT KARL BARGER, JR. :

:

Appellant : No. 1024 WDA 2023

Appeal from the Order Dated August 7, 2023

In the Court of Common Pleas of Westmoreland County Criminal Division

at No(s): CP-65-CR-0004955-2005

BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: OCTOBER 2, 2024

Appellant Robert Karl Barger appeals from the order of the Court of

Common Pleas of Westmoreland County denying in part Appellant’s petition

for writ of habeas corpus. After careful review, we affirm.

In January 2006, Appellant pled guilty at docket CP-65-CR-0004955-

2005 to indecent assault of a person less than 16 years of age, indecent

exposure, and unlawful contact with a minor in connection with offenses he

committed in 2005. On September 25, 2006, the trial court imposed a

sentence of one year less one day to two years less one day of incarceration.

As the trial court deemed Appellant to be a sexually violent predator (SVP),

Appellant was required to comply with lifetime registration under Megan’s Law

III (42 Pa.C.S.A. § 9795.1(b)(3)), the sexual offender registration statute in

effect at that time. On August 14, 2007, this Court affirmed the judgment of

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* Former Justice specially assigned to the Superior Court.

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sentence. See Commonwealth v. Barger, 2042 WDA 2006 (Pa.Super.

August 14, 2007) (unpublished memorandum). Appellant did not file a

petition for allowance of appeal with our Supreme Court.

In a related case, in October 2011, Appellant was charged at docket CP-

65-CR-0003703-2011 with Failure to Comply with Registration of Sexual

Offenders Requirements of Megan’s Law III (formerly 18 Pa.C.S.A. §

4915(a)(1)) and Failure to Provide Accurate Information (18 Pa.C.S.A. §

4915(a)). On June 19, 2012, Appellant was convicted of these offenses and

on September 1, 2012, the trial court sentenced Appellant to an aggregate

sentence of five to ten years’ incarceration. On December 4, 2013, this Court

affirmed the judgment of sentence at the 3703-2011 docket and on May 7,

2014, the Supreme Court denied Appellant’s petition for allowance of appeal.

See Commonwealth v. Barger, 919 WDA 2013 (Pa.Super. December 4,

2013) (unpublished memo), appeal denied, 91 A.3d 161 (Pa. 2014).

On October 8, 2018, Appellant filed identical pro se PCRA motions at

both dockets, challenging his registration requirements imposed for his 2006

convictions for assault, his SVP designation, and his 2012 convictions for

failure to comply with such registration requirements on the basis that

Megan’s Law III, the statute under which he had been convicted, had been

found to be unconstitutional and void ab initio in Commonwealth v. Neiman,

624 Pa. 53, 84 A.3d 603 (2013).

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The PCRA court appointed Appellant counsel, who subsequently filed a

petition to withdraw and a Turner-Finley no-merit letter.1 On June 3, 2019,

the PCRA court issued notice of its intent to dismiss the petitions without a

hearing pursuant to Pa.R.Crim.P. 907. On July 16, 2019, the PCRA court

dismissed the petitions as untimely filed. On May 11, 2020, this Court

affirmed the PCRA court’s order and on October 27, 2020, the Supreme Court

denied Appellant’s allowance of appeal. See Commonwealth v. Barger,

1031 WDA 2019, 1158 WDA 2019 (Pa.Super. May 11, 2020) (unpublished

memo), appeal denied, 240 A.3d 879 (Pa. 2020).

On February 26, 2021, Appellant filed identical pro se “Amended Writs

for Habeas Corpus” in both dockets, again claiming that the Supreme Court’s

decision in Neiman, which invalidated Megan’s Law III, removed statutory

authority for his registration requirements, his SVP designation, and his 2012

convictions. The trial court denied the habeas petitions, finding that Appellant

could not seek habeas relief to obtain the relief previously denied in his

untimely PCRA petitions.

After Appellant filed a timely pro se appeal, the trial court conceded that

it had erred in refusing to consider the merits of Appellant’s habeas petition

and requested a remand pursuant to Commonwealth v. Lacombe, 660 Pa.

568, 234 A.3d 602 (2020) in which our Supreme Court “decline[d] to find that

the PCRA, or any other procedural mechanism, is the exclusive method for

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1 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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challenging sexual offender registration statutes.” Id. at 595, 234 A.3d at

618 (noting that sexual registration statutes may be challenged through a

habeas petition or other procedural mechanisms as defendants would be

unable to raise such challenges under the PCRA based on untimeliness

grounds or because their sentence has expired). On February 18, 2022, this

Court vacated the trial court’s order and remanded for the trial court to review

the merits of Appellant’s habeas petitions. This Court also directed the lower

court to appoint Appellant counsel prior to the merits hearing. See

Commonwealth v. Barger, 503-504 WDA 2021 (Pa.Super. February 18,

2022) (unpublished memorandum).

Upon remand, the trial court appointed Timothy P. Dawson, Esq. to

serve as Appellant’s counsel and scheduled a hearing on the habeas petitions.

Thereafter, the trial court entered an order on August 7, 2023, granting

Appellant’s habeas petition in part and vacating his 2012 conviction for

violating his registration requirements under Megan’s Law III, which was

invalidated in Neiman. The trial court noted that “an offense created by an

unconstitutional law is not a crime and a conviction under it is illegal and void

and cannot be a legal cause of imprisonment.” Trial Court Opinion (T.C.O.),

8/7/23, at 18-19 (quoting Commonwealth v. Derhammer, 643 Pa. 391,

399, 173 A.3d 723, 728 (2017)). The lower court also cited Commonwealth

v. McIntyre, 659 Pa. 428, 445, 232 A.3d 609, 619 (2020), in which our

Supreme Court vacated the defendant’s conviction under Section 4915, which

was deemed to be void from the time of its enactment pursuant to Neiman.

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Nevertheless, the trial court denied Appellant’s habeas petition in part

as it rejected Appellant’s suggestion that the invalidation of Megan’s Law III

relieved him of his lifetime requirement to register as a sex offender with SVP

status since subsequent legislation addressed the deficiencies raised by the

Neiman Court’s invalidation of Megan’s Law III.

On September 1, 2023, Appellant filed a notice of appeal from the

August 7, 2023 order denying Appellant’s habeas petition in part. On

September 14, 2023, Attorney Dawson filed a motion to withdraw. On

September 15, 2023, the trial court granted the motion to withdraw without

elaboration, appointment of substitute counsel, or indication that a colloquy

was conducted pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d

81 (1988). See also Pa.R.Crim.P. 120(A)(4) (“An attorney who has been

retained or appointed by the court shall continue such representation through

direct appeal or until granted leave to withdraw by the court pursuant to

paragraph (B)”); Pa.R.Crim.P. 120(B)(3) (“Upon granting leave to withdraw,

the court shall determine whether new counsel is entering an appearance, new

counsel is being appointed to represent the defendant, or the defendant is

proceeding without counsel”).

Thus, on March 1, 2024, this Court remanded the case back for the trial

court to inform the Court if the trial court had conducted a Grazier colloquy

or to conduct such colloquy if one had not already occurred. On May 3, 2024,

the trial court notified this Court that on April 26, 2024, it conducted a Grazier

colloquy in which Appellant indicated that he wished to proceed pro se and

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declined the appointment of both counsel and standby counsel. As both

Appellant and the Commonwealth submitted briefs on appeal, we may now

review the merits of the appeal.

Appellant raises one issue for our review on appeal:

Whether the collateral proceedings court abused its discretion or

otherwise erred illegally, where said court failed to mention or

otherwise discuss its holding of [Appellant’s] claim concerning his

Sexually Violent Predator Status in accord with the controlling

precedence [sic] of our Supreme Court case of Commonwealth

v. Neiman, 84 A.3d 603 (Pa. 2013) and our controlling Superior

Court case of Commonwealth v. Hooks, 1738 MDA 2017

(Pa.Super. July 24, 2018) by way of stare decisis?

Appellant’s Brief, at 4.

It is necessary to review the timeline of relevant statutory and case law

concerning Pennsylvania’s laws imposing registration, notification, and

counseling (“RNC”) requirements on sex offenders. When Appellant was

convicted of sexual offenses in 2006 and designated as an SVP, he was

required to submit to lifetime registration under Megan’s Law III, which was

the sexual offender registration statute in effect at that time.

On December 20, 2011, the General Assembly enacted the Sexual

Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9791-

9799.9, in order to comply with the federal Adam Walsh Child Protection and

Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§ 16901-16991, “which

mandates that states impose on sex offenders certain tier-based registration

and notification requirements in order to avoid being subject to a penalty, i.e.

the loss of federal grant funding.” Commonwealth v. Muniz, 640 Pa. 699,

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724, 164 A.3d 1189, 1203-1204 (2017) (citing In re J.B., 630 Pa. 408, 412,

107 A.3d 1, 3 (2014)). As a result, SORNA provided for the expiration of

Megan’s Law III, as of December 20, 2012, the effective date of SORNA.

Muniz, 640 Pa. at 724, 164 A.3d at 1204 (citing In re J.B., 630 Pa. at 412,

107 A.3d at 3).

After SORNA had become effective, in 2013, the Pennsylvania Supreme

Court issued its decision in Neiman, striking down Act 2004-152, the

legislation through which Megan’s Law III was enacted, as violative of the

single subject rule. Neiman, 624 Pa. at 57-58, 84 A.3d at 605; Pa. Const.

art. III, § 3 (“No bill shall be passed containing more than one subject, which

shall be clearly expressed in its title, except a general appropriation bill or a

bill codifying or compiling the law or a part thereof”).

Acknowledging the potential impact of its decision in invalidating a

statute that contained provisions establishing registration requirements for

sexual offenders, the Neiman Court stayed its decision for ninety (90) days

to afford the General Assembly time to reenact portions of Act 2004-152 “in

a manner consistent with the Constitution.” Neiman, 624 Pa. at 75, 84 A.3d

616. While the Neiman decision declared Act 152 unconstitutional in its

entirety, the Supreme Court cautioned that:

this action should, in no way, be read as a repudiation of the

merits of the various legislative components of Act 152 such as

Megan’s Law III, “which serves a vital purpose in protecting our

Commonwealth’s citizens and children, in particular, from

victimization by sexual predators. … [S]ince we find merit in the

General Assembly’s suggestion that our decision abrogating the

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entirety of Act 152 will have a significant impact on a whole variety

of individuals and entities which have ordered their affairs in

reliance on its provisions, we will stay our decision, as we have

done under similar circumstances, in order to provide a reasonable

amount of time for the General Assembly to consider appropriate

measures, or to allow for a smooth transition period.

Neiman, 624 Pa. at 74-75, 84 A.3d 615-616.

Thereafter, in March 2014, before the stay expired, the General

Assembly responded to the Neiman decision by enacting Act 19 of 2014, see

Act of Mar. 14, 2014, No. 19, P.L. 41 (Act “2014-19”) “which modified the

wording of § 9799.13(3) to clarify that persons who were required to register

with the state police at any time before SORNA’s effective date, and whose

registration period had not expired, were still obligated to register with the

state police as provided in § 9799.15.” Derhammer, 643 Pa. at 396, 173

A.3d at 726.

Several years later, on June 19, 2017, the Pennsylvania Supreme Court

found in Muniz that SORNA I’s registration requirements were punitive in

nature and the retroactive application of such registration provisions violated

the ex post facto clauses of both the United States and Pennsylvania

Constitutions. Muniz, 640 Pa. at 706, 164 A.3d at 1193. Thereafter, in

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (Butler I), a

panel of this Court held it was constrained by Muniz to find SORNA’s

framework for designating convicted offenders as SVPs constituted criminal

punishment and violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and

Alleyne v. United States, 570 U.S. 99 (2013). Butler I, 173 A.3d at 1218.

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In response to Muniz and Butler I, the Legislature amended SORNA I

and enacted SORNA “Act 10” of 2019, Act of Feb. 21, 2018, P.L. 27 (“Act 10”),

creating a new statutory scheme referred to as SORNA II.

Act 10 split SORNA, which was previously designated in the

Sentencing Code as Subchapter H into two subchapters. Revised

Subchapter H applies to crimes committed on or after December

20, 2012, whereas Subchapter I applies to crimes committed after

April 22, 1996, but before December 20, 2012. In essence,

Revised Subchapter H retained many of the provisions of SORNA

while Subchapter I imposed arguably less onerous requirements

on those who committed offenses prior to December 20, 2012, in

an attempt to address this Court's conclusion in Muniz that

application of the original provisions of SORNA to these offenders

constituted an ex post facto violation.

Commonwealth v. Torsilieri, 659 Pa. 359, 381, A.3d 567, 580–81 (2020).

Importantly, Subchapter I, which applies to certain petitioners who

committed their offense before the effective date of SORNA, imposes lifetime

registration for SVPs. Subchapter I defines a “sexually violent predator” as

…a person who has been convicted of a sexually violent offense

and who is determined to be a sexually violent predator under

section 9799.58 (relating to assessments) due to a mental

abnormality or personality disorder that makes the person likely

to engage in predatory sexually violent offenses or who has ever

been determined by a court to have a mental abnormality or

personality disorder that makes the person likely to engage in

predatory sexually violent offenses under a former sexual offender

registration law of this Commonwealth.

42 Pa.C.S.A. § 9799.53 (emphasis added).

After SORNA II was in effect, on March 26, 2020, the Supreme Court

issued Commonwealth v. Butler, 657 Pa. 579, 226 A.3d 972 (2020) (Butler

II), reversing this Court’s decision in Butler I. The Supreme Court

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determined that the Subchapter H registration requirements applicable to

SVPs did not constitute criminal punishment and thus were not subject to the

requirements of Apprendi and Alleyne. Id. at 585, 226 A.3d at 976.

Thereafter, on July 21, 2020, the Pennsylvania Supreme Court held in

Lacombe that the RNC requirements of Subchapter I of SORNA II do not

constitute criminal punishment, and therefore, are not violative of the ex post

facto rule. Lacombe, 660 Pa. at 609, 234 A.3d at 626-27.

Turning back to the instant case, Appellant argues that he cannot be

required to register under Subchapter I of SORNA II since his duty to register

as a SVP arose under Megan’s Law III, which has since been determined to be

void. Appellant, who committed his qualifying offenses before December 20,

2012, argues that Subchapter I of SORNA cannot be retroactively applied to

him as such a designation would be violative of ex post facto prohibitions.

However, Appellant does not suggest that the RNC requirements imposed

upon him through Subchapter I are in any way punitive.2

As noted above, in Butler II, our Supreme Court rejected a similar

challenge to Subchapter H of SORNA, as it found that the RNC requirements

imposed on SVPs therein do not constitute criminal punishment. The Court

distinguished SVPs from non-SVP registrants “due to heightened public safety

concerns based on the determination that SVPs have a ‘mental abnormality or

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2 See Muniz, 640 Pa. at 732, 164 A.3d at 1208 (“Our decision regarding

violation of [the ex post facto] clause depends on a determination of whether

SORNA’s retroactive application … constitutes punishment”).

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a personality disorder that makes the individual more likely to engage in

predatory sexually violent offenses.’” Butler II, 660 Pa. at 604, 226 A.3d at

987 (quoting 42 Pa.C.S.A. § 9799.12). The Supreme Court clarified that:

[a]lthough we recognize the RNC requirements impose affirmative

disabilities or restraints upon SVPs, and those requirements have

been historically regarded as punishment, our conclusions in this

regard are not dispositive on the larger question of whether the

statutory requirements constitute criminal punishment. This is

especially so where the government in this case is concerned with

protecting the public, through counseling and public notification

rather than deterrent threats, not from those who have been

convicted of certain enumerated crimes, but instead from those

who have been found to be dangerously mentally ill. Under the

circumstances, and also because we do not find the RNC

requirements to be excessive in light of the heightened public

safety concerns attendant to SVPs, we conclude the RNC

requirements do not constitute criminal punishment.

Id. at 614, 226 A.3d at 992-93. We also reiterate that in Lacombe, the

Supreme Court specifically found that Subchapter I of SORNA II “is

nonpunitive and does not violate the constitutional prohibition against ex post

facto laws.” Lacombe, 660 Pa. at 575, 234 A.3d at 605-606.

Given the same logic set forth in Butler II and Lacombe, this Court

has rejected ex post facto challenges brought by a petitioners deemed to be

SVPs under Megan’s Law III, who claimed they should not be subject to

retroactive application of Subchapter I of SORNA II. In Commonwealth v.

Zack, 262 A.3d 497 (Pa.Super. 2021), this Court held that the appellant, who

was originally deemed an SVP under Megan’s Law III, “must now register

under Subchapter I of SORNA II, which has less stringent reporting

requirements than the constitutionally permissible requirements of

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Subchapter H.” Id. at 505 (citing Commonwealth v. Elliott, 249 A.3d 1190

(Pa.Super. 2021)) (rejecting the appellant’s argument that his RNC

requirements as an SVP under Subchapter I of SORNA II are punitive and

violative of the ex post facto clause).3

As a result, Appellant’s claim that he cannot be required to submit to

RNC requirements set forth in Subchapter I of SORNA II is clearly meritless.

Accordingly, the trial court correctly determined that Appellant is not entitled

to habeas relief. However, upon remand of the record, we direct the lower

court to notify Appellant of his registration requirements under Subchapter I.

Order affirmed. Case remanded with instructions. Jurisdiction

relinquished.

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3 We are not persuaded by Appellant’s reliance on Commonwealth v. Hooks,

1738 MDA 2017 (Pa.Super. July 24, 2018) (unpublished memorandum). Our

internal operating procedures provide that while “non-precedential decisions

filed after May 1, 2019, may be cited for their persuasive value, … [a]n

unpublished memorandum decision filed prior to May 2, 2019, shall not be

relied upon or cited by a Court or a party in any other action or proceeding.”

210 Pa.Code § 65.37(B). This rule is subject to exceptions which are not

applicable in this case.

Further, the memorandum decision in Hooks provides no support for

Appellant’s argument as its holding was based its citation to Butler I, which

has since been overruled.

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DATE: 10/2/2024

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