Com. v. Mucci, F.

J-S34042-24

2024 PA Super 267

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT FRANKLIN MUCCI :

:

Appellant : No. 138 WDA 2024

Appeal from the Order Entered December 29, 2023

In the Court of Common Pleas of Elk County Criminal Division at No(s):

CP-24-CR-0000327-2009

BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: November 13, 2024

Appellant Robert Franklin Mucci appeals pro se from the December 29,

2023, order entered in the Court of Common Pleas of Elk County, which denied

his “Motion to Vacate Defendant’s Illegal SVP Designation and Lifetime

Registration Requirements Imposed under Megan’s Law III.” After a careful

review, we affirm.

This Court has previously set forth the relevant facts and procedural

history, in part, as follows:

The record of this case includes [Appellant] having entered

pleas of guilty to two counts of aggravated indecent assault[-

complainant less than 13 years old], 18 Pa.C.S.A. [§] 3125(a)(7),

and one count of sexual abuse of children, 18 Pa.C.S.A. [§]

6312(b), all graded as second degree felonies, on August 18,

2011. [Appellant admitted he committed the crimes on or about

August 29, 2009.] Consequently, [Appellant] was ordered to

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* Former Justice specially assigned to the Superior Court.

J-S34042-24

undergo an assessment by a member of the Sexual Offenders

Assessment Board (SOAB) pursuant to 42 Pa.C.S.A. [§] 9795.4.

The assessment by a member of [the] SOAB was conducted on

October 20, 2011. On November 21, 2011, [Appellant] entered a

signed stipulation with his counsel in which he agreed that the

October 21, 2011, report of the member of [the SOAB] provided

sufficient, clear, and convincing evidence that he was a sexually

violent predator (SVP). [Appellant] also waived the necessity of

any SVP hearing, and [he] agreed that the stipulation that he was

an SVP could be entered as a court order. By order of court dated

November 23, 2011[,] and docketed November 28, 2011,

[Appellant] was found to be [an SVP] pursuant to 42 Pa.C.S.A. [§]

9795.4(e) and 42 Pa.C.S.A. [§] 9792, provisions of Megan’s Law

III[,] which was in effect at that time. [Appellant] was then

sentenced on December 22, 2011[,] in accordance with the terms

of the proposed sentence negotiated by counsel for the

Commonwealth and [defense counsel,] Douglas Sughrue, Esquire.

In accordance with the negotiated pleas and suggested sentences,

he was sentenced, inter alia, to an aggregate period of

incarceration of not less than 8 [years] nor more than 27 years.

The [trial] court provided [Appellant] with a registration notice

dated December 22, 2011[,] and docketed December 27, 2011[,]

stating that he was subject to the lifetime registration

requirements of Megan’s Law III including 42 Pa.C.S.A. [§]

9795.1(b)(2) and 42 Pa.C.S.A. [§] 9795.1(b)(3).

[On August 26, 2016, Appellant filed a] petition for a writ of

habeas corpus/writ of coram nobis, [and a hearing] was scheduled

for February 27, 2017, but continued until May 22, 2017. A pro se

motion for correction of the record and issuance of a corrected

DC-300B commitment order was then filed by [Appellant] on

March 9, 2017. The hearing on that motion was scheduled for the

same time as the continued hearing on May 22, 2017. [Appellant]

then filed a petition on May 4, 2017, withdrawing two claims

asserted in his habeas corpus petition and requesting that the

hearing be conducted by video conference. [Appellant] next

requested a continuance of the May 22, 2017[,] hearing due to

the inability of the Department of Corrections to provide adequate

time to conduct the hearing by video conference. The hearing was

continued until August 4, 2017[,] and then ultimately rescheduled

until September 29, 2017.

On August 24, 2017, [Appellant] filed an

“Addendum/Supplement to Petitioner’s Habeas Corpus/Coram

Petition seeking Declaratory and Injunctive Relief from the

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Retroactive Application of SORNA.” The Commonwealth filed a

motion to dismiss [Appellant’s] petition for a writ of habeas corpus

on September 29, 2017, to which [Appellant] filed an answer.

[Appellant] filed a brief in support of his habeas petition on

December 8, 2017. He next filed a post-brief

submission/addendum to argument/supplemental case authority

supporting relief requested retroactively on December 18, 2017.

[Appellant] then filed a second post brief submission on December

27, 2017. The motion for leave to supplement the record filed by

[Appellant] on April 23, 2018[,] was granted by Order of Court on

September 7, 2018[,] and [Appellant] was given until October 1,

2018[,] to submit any additional authority. An

amendment/supplement to the habeas petition was filed by

[Appellant] on September 24, 2018. The October 1, 2018, date

notwithstanding, [Appellant’s] “post case submissions” received

and filed on November 8, 2018[,] and December 20, 2018[,]

respectively [were] also considered.

On December 28, 2018, the trial court entered an order

denying Appellant’s petition. [Specifically, the trial court

determined Appellant’s filings were untimely petitions filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546.] Appellant did not file an appeal from the December 28,

2018, order. Rather, Appellant filed a petition for reconsideration

on January 7, 2019, which the trial court denied on February 15,

2019. On March 4, 2019, Appellant filed a motion seeking the

reinstatement of his appeal rights nunc pro tunc. On April 22,

2019, the trial court scheduled a hearing on the motion, and on

May 23, 2019, appointed counsel for purposes of the hearing. The

trial court held a hearing on July 29, 2019. On October 2, 2019,

the trial court entered an order denying Appellant’s motion for

reinstatement of his right to appeal. Further, the order vacated

the limited appointment of counsel and appointed new counsel to

represent Appellant in “any subsequent proceedings and to

address the merit, if any, of the positions and issues promoted by

[Appellant].” Order, 10/2/19, at 2.

On October 31, 2019, newly appointed counsel filed a

motion to withdraw and a Turner/Finley[1] no-merit letter. On

June 18, 2020, the trial court filed a “discussion, notice and order,”

ultimately ordering that “in accordance with Pa.R.Crim.P. 907(1),

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

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

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the Commonwealth and [Appellant] are notified that to the extent

any of [Appellant’s] pending pleadings are construed as a PCRA

petition, the [c]ourt intends to dismiss such petition.” Order,

6/18/20, at 3. Also, on June 18, 2020, the trial court filed an

order granting appointed counsel’s request to withdraw….On July

17, 2020, the trial court entered an order denying any pending

PCRA petitions. Appellant filed [a notice of] appeal on August 17,

2020.

Commonwealth v. Mucci, No. 876 WDA 2020, 2021 WL 2592376, at *1-4

(Pa.Super. filed June 24, 2021) (unpublished memorandum) (citation to

record and footnote omitted) (footnote added).

On appeal, this Court quashed Appellant’s appeal on the basis he failed

to file a timely appeal. Specifically, we held as follows:

As set forth in the recitation of the procedural history of this

case, on August 26, 2016, nearly five years after entry of his

judgment of sentence and SVP designation, Appellant filed a

petition for writ of habeas corpus and/or writ of coram nobis.

Appellant then provided the trial court with additional filings, and

a hearing was held on September 29, 2017. Subsequently,

Appellant filed additional pleadings with the trial court. On

December 28, 2018, the trial court entered an order that denied

Appellant’s petition, considering it to be an untimely PCRA

[petition]. However, Appellant failed to take a timely appeal from

that order.

***

We [conclude] that the appealable order in this matter was

entered on December 28, 2018. As such, the instant appeal, filed

on August 17, 2020, is patently untimely, and at this juncture, we

lack jurisdiction to address Appellant’s claims.

Id. at *6-7.

Nevertheless, this Court relevantly noted as follows in a footnote:

We note that in Commonwealth v. Lacombe, 660 Pa. 568,

234 A.3d 602 (2020), our Supreme Court recognized the problems

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registrants face in challenging changes to sex-offender-

registration statutes, and [the Court] declared that registrants are

not to be restricted to using the PCRA as the exclusive means for

challenging their registration requirements. Id. at 617-18.

Consequently, if we had been presented with a timely appeal from

the final order entered [on] December 28, 2018, pursuant to

Lacombe, we would have held Appellant’s challenge to his

registration is not subject to the PCRA’s time limitations. See

Commonwealth v. Smith, 240 A.3d 654, 658 (Pa.Super. 2020)

(holding that substantive claims challenging the application of

SORNA II’s lifetime registration requirements are not cognizable

under the PCRA, and thus, not subject to its time-bar). Hence, if

we had reached the merits of Appellant’s claims, we would have

vacated the December 28, 2018, order of the trial court that

concluded Appellant’s filing was an untimely PCRA petition and

remanded for further proceedings.

Mucci, No. 876 WDA 2020, *7-8 n.4.

Thereafter, Appellant filed a petition for allowance of appeal with our

Supreme Court, which denied the petition on January 4, 2022.

On July 6, 2023, Appellant filed a pro se motion entitled “Motion to

Vacate Defendant’s Illegal SVP Designation and Lifetime Registration

Requirements Imposed under Megan’s Law III.”2 On August 17, 2023, the

Commonwealth filed an answer in opposition to Appellant’s motion.

On October 25, 2023, the trial court held a hearing on Appellant’s pro

se motion. During the hearing, Appellant admitted he was deemed to be a

____________________________________________

2 Although this pro se motion was docketed on July 27, 2023, we deem it to

have been filed on July 6, 2023, when Appellant handed it to prison officials.

See Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (1997) (explaining

the “prisoner mailbox rule”).

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SVP under Megan’s Law III.3 N.T., 10/25/23, at 22. However, he argued,

that Megan’s Law III was void ab initio, and, consequently, there was no

authority to impose registration, notification, and counseling requirements

upon him. Id. at 23. Moreover, Appellant argued that any attempt to apply

Subchapter I of SORNA II retroactively was unconstitutional. Id. at 22.

Furthermore, although Appellant admitted during the October 25, 2023,

hearing that, on November 21, 2011, he signed a stipulation agreeing that the

October 21, 2011, report of the SOAB provided sufficient, clear, and

convincing evidence that he was a SVP, and this stipulation was entered as a

____________________________________________

3 For background purposes, we note that Megan’s Law III, 42 Pa.C.S.A. §§

9795.1-9799.4, was in effect at the time of Appellant’s sentencing. However,

on December 20, 2011, the Pennsylvania General Assembly enacted the

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

9791-9799.9. As a result, SORNA provided for the expiration of Megan’s Law

III, as of December 20, 2012, the effective date of SORNA. Thereafter, in

response to various Pennsylvania Supreme Court decisions, the Legislature

amended SORNA I and enacted SORNA “Act 10” of 2019, Act of Feb. 21, 2018,

P.L. 27, creating a new statutory scheme referred to as SORNA II. Through

Act 10, the General Assembly split SORNA I’s former Subchapter H into a

Revised Subchapter H and Subchapter I. Subchapter I addresses sexual

offenders who committed an offense on or after April 22, 1996, but before

December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I

contains less stringent reporting requirements than Revised Subchapter H,

which applies to offenders who committed an offense on or after December

20, 2012. See 42 Pa.C.S.A. §§ 9799.10-9799.42. Since Appellant committed

his offenses on or about August 29, 2009, Subchapter I applies in this case.

Under Subchapter I, a person designated to be an SVP is subject to

lifetime registration. See 42 Pa.C.S.A. § 9799.55(b)(3)-(4). In Lacombe,

our Supreme Court held that the registration requirements in Subchapter I

are not punitive and thus retroactive application of those requirements does

not violate our constitutional ex post facto rules. See Lacombe, supra, 234

A.3d at 626-27. Lacombe further held that a challenge to a sexual offender

registration statute could be brought outside the PCRA. See id. at 618.

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court order, Appellant offered into evidence “law reviews and some other

reports that have been generated regarding recidivism of sexual offenders[.]”

Id. at 19-20. Appellant averred the evidence was necessary to address the

irrebuttable presumption of recidivism set forth in Subchapter I, which he

alleged violated his right to reputation. Appellant did not present any expert

testimony.

By order and opinion filed on December 29, 2023, the trial court denied

Appellant’s pro se motion. This timely pro se appeal followed, and all Pa.R.A.P.

1925 requirements have been met.

On appeal, Appellant sets forth the following issues in his “Statement of

Questions Involved” (verbatim):

A. Whether the lower court erred by failing to grant Appellant

relief from the void SVP designation and lifetime registration

requirements imposed under Megan’s Law III by applying the

void ab initio doctrine to vacate them and declare them null

and void and unenforceable?

B. Whether the lower court erred by denying Appellant an

opportunity to present scientific case studies rebutting the

irrebuttable presumption of future dangerousness utilized by

the legislature in 42 Pa.C.S.A. § 9799.51(a)(2) during the

evidentiary hearing requiring a remand for further factual

development in accordance with Commonwealth v.

Torsilieri, 659 Pa. 359, 232 A.3d 567, 595 (2020), and

Commonwealth v. Boyd, 287 A.3d 957, 960 (Pa.Super.

2022)?

C. Whether the lower court erred by failing to vacate and correct

Appellant’s illegal sentence sua sponte and impose a lawful

sentence under its inherent powers of correction pursuant to

Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57

(2007), despite the statutory timelines limitations placed upon

a trial court’s constitutional authority by 42 Pa.C.S.A. §

9545(b)(1)?

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Appellant’s Brief at 5 (suggested answers omitted).

In his first issue, Appellant contends he is challenging the “legality of his

SVP designation and the lifetime registration, notification, and counseling

requirements (RNC) imposed upon him absent any valid statutory authority

under void Megan’s Law III[.]” Appellant’s Brief at 16. He contends that his

RNC requirements were imposed under a statute (Megan’s Law III) which is

void ab initio, and any attempt to impose RNC requirements is

unconstitutional.4 Moreover, Appellant claims any attempt to apply

Subchapter I of SORNA II retroactively to him is unconstitutional. See id. at

30. Additionally, he claims an offender who was subjected to Megan’s Law III

cannot lawfully be considered an “existing registrant” under SORNA II based

upon acts rendered null and void. See id. at 42.

Initially, we note Appellant’s claims “raise questions of law for which our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Torsilieri, 659 Pa. 359, 232 A.3d 567, 575 (2020)

(citation omitted). In resolving such claims, our Supreme Court has explained:

____________________________________________

4 We note Appellant initially claims that, since Megan’s Law III is void, we

should cease our inquiry and conclude he cannot be subject to any RNC

requirements. He claims: “Void from the beginning-void for all time.”

Appellant’s Brief at 26. However, given our Legislature’s passing of SORNA

II, and more specifically Subchapter I to which Appellant is subject, we

disagree that our inquiry ends with the voiding of Megans’ Law III. Apparently

recognizing we might so hold, Appellant alternatively argues that application

of Subchapter I of SORNA II retroactively is unconstitutional.

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In addressing constitutional challenges to legislative enactments,

we are ever cognizant that the General Assembly may enact laws

which impinge on constitutional rights to protect the health,

safety, and welfare of society, but also that any restriction is

subject to judicial review to protect the constitutional rights of all

citizens. We emphasize that a party challenging a statute must

meet the high burden of demonstrating that the statute clearly,

palpably, and plainly violates the Constitution.

Id. (citations, quotations, and quotation marks omitted).

On the merits, we agree with Appellant that he is no longer subject to

Megan’s Law III, as our Supreme Court struck down that law eleven years

ago. See Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (2013). We

disagree, however, with Appellant’s claims that his SVP designation cannot

stand, and he may be exempt from Subchapter I. Contrary to his argument,

the applicability of SORNA II to his case has been settled, as the Lacombe

Court held that Subchapter I does not constitute criminal punishment, and its

retroactive application does not violate ex post facto concerns. See Lacombe,

supra, 234 A.3d at 626-27.

Moreover, in Commonwealth v. Barger, ___ A.3d ___, 2024 WL

4367448 (Pa.Super. filed 10/2/24), this Court recently held as follows:

[The] 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. [The] 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, [the] appellant does not suggest that the RNC

requirements imposed upon him through Subchapter I are in any

way punitive.

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[I]n Butler II,[5] 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 a

personality disorder that makes the individual more likely to

engage in predatory sexually violent offenses.’” Butler II, 657

Pa. at 604, 226 A.3d at 987 (quoting 42 Pa.C.S.A. § 9799.12).

***

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 605-06.

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

this Court has rejected ex post facto challenges brought by

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 Subchapter H.” Id. at 505.

As a result, [the] 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 [the] appellant is not entitled to habeas

relief.

Barger, supra, 2024 WL 4367448, at *5-6 (footnotes and citation omitted)

(footnote added). See Commonwealth v. Moreno, No. 1418-19 MDA 2024,

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

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2024 WL 1952686 (Pa.Super. filed May 3, 2024) (unpublished memorandum)6

(recognizing that, in Lacombe, our Supreme Court held that the retroactive

application of Subchapter I of SORNA II is nonpunitive and does not violate

the constitutional prohibition against ex post facto laws).

Based on the aforementioned legal holdings, we conclude Appellant is

not entitled to relief. While we agree with Appellant that Megan’s Law III, the

statute under which his RNC requirements were imposed, has been voided,

this does not end our inquiry. Rather, we conclude Appellant is subject to the

RNC requirements of Subchapter I of SORNA II, and as indicated supra, such

retroactive application is not violative of the ex post facto clause.7

Furthermore, we reject Appellant’s claim that an offender who was

subjected to Megan’s Law III cannot lawfully be considered an “existing

registrant” under SORNA II. We note Section 9799.55(b)(3) of Subchapter I

specifically imposes lifetime registration on an SVP. See 42 Pa.C.S.A. §

9799.55(b)(3). An SVP, in turn, is defined 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

____________________________________________

6 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the

Superior Court filed after May 1, 2019, may be cited for their persuasive

value).

7 We note Appellant also claims Subchapter I violates the separation of powers

doctrine by unconstitutionally usurping judicial sentencing authority.

However, in Lacombe, our Supreme Court noted that such a claim necessarily

fails since Subchapter I is nonpunitive. See Lacombe, supra, 234 A.3d at

608 n.5.

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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. Since the trial court determined, in 2011, that

Appellant met the criteria for an SVP under Megan’s Law III, he remains an

SVP for purposes of Subchapter I. See Commonwealth v. Haggerty, No.

1305 WDA 2023, 2024 WL 4318605 (Pa.Super. filed Sept. 27, 2024)

(unpublished memorandum) (rejecting the appellant’s claim that an offender

who was subjected to Megan’s Law III cannot lawfully be considered an

“existing registrant” under SORNA II based upon acts rendered null and void).

In his next issue, Appellant claims his RNC requirements, as imposed by

Subsection I of SORNA II, violate the right to reputation8 without due process.

See Appellant’s Brief at 44-45. Appellant also claims his SVP designation

under Subsection I of SORNA II creates an unconstitutional irrebuttable

presumption. Id. Specifically, Appellant claims that, in Subchapter I, the

General Assembly created an unconstitutional irrebuttable presumption by

indicating that “sexually violent predators and offenders pose a high risk of

engaging in further offenses,” which is not universally true for all those

required to register and is not true for him. Id.

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8 The Pennsylvania Constitution recognizes the right to reputation as a

fundamental interest. See Commonwealth v. Morgan, 258 A.3d 1147

(Pa.Super. 2021).

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Initially, we note that, in Commonwealth v. Morgan, 258 A.3d 1147

(Pa.Super. 2021), this Court held as follows:

Although an SVP designation and the concomitant RNC

requirements infringe upon a defendant’s right to reputation, it is

only after [a] detailed assessment and hearing process that an

individual may be subject to that infringement. Upon review, we

conclude that this procedure comports with due process and that

Subchapter I is narrowly tailored to its compelling state purpose

of protecting the public from those who have been found to be

dangerously mentally ill. Accordingly, we hold that SVP

designations under Subchapter I of SORNA II are constitutional

and do not violate the right to reputation under Pennsylvania’s

constitution.

Id. at 1157 (citations and quotation marks omitted). See Commonwealth

v. Zepprinans, No. 1815 EDA 2020, 2022 WL 102632 (Pa.Super. filed Jan.

11, 2022) (unpublished memorandum) (holding a defendant’s SVP

designation under Subchapter I of SORNA does not violate a defendant’s right

to reputation).

Further, in Commonwealth v. Guo, No. 643 WDA 2023, 2024 WL

3200042 (Pa.Super. filed June 27, 2024) (unpublished memorandum), after

analyzing Morgan, supra, this Court examined the irrebuttable presumption

doctrine. Specifically, we reasoned as follows:

Our Supreme Court recently issued its disposition in

Commonwealth v. Torsilieri, ___ Pa. ___, 316 A.3d 77 (2024),

in which the Court considered whether the General Assembly’s

determination, in [SORNA II], that individuals who commit sexual

offenses pose a high risk of committing additional sexual offenses

constitutes an unconstitutional irrebuttable presumption violative

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of due process, because it impairs the right to reputation under

the Pennsylvania Constitution.[9]

Our High Court explained:

[T]he first issue before us concerns a presumption

which largely undergirds the criminal justice system’s

treatment of sex offenders: that those who commit

sexual offenses pose a high risk to reoffend. The

General Assembly has memorialized this presumption

in its legislative findings: “Sexual offenders pose a

high risk of committing additional sexual offenses and

protection of the public from this type of offender is a

paramount governmental interest.” 42 Pa.C.S.A. §

9799.11(a)(4).[10] To challenge such assumptions

under the irrebuttable presumption doctrine, a

challenging party must demonstrate: (1) an interest

protected by the due process clause, (2) utilization of

a presumption that is not universally true; and (3) the

existence of a reasonable alternative means to

ascertain the presumed fact.

Id. at 79 (some internal citations omitted).

The Court noted that the parties did not meaningfully

dispute the first prong of the doctrine—that “the right to

reputation is protected by the due process clause and that the

designation as a sexual offender, based upon a presumption of

posing a high risk of recidivism, impacts one’s reputation.” Id. at

97 n.13. Turning to the second prong of the irrebuttable

presumption doctrine, the Court explained that “to meet his heavy

burden of establishing that the General Assembly’s presumption

was not universally true, [the] [a]ppellee was required to establish

that there exists a scientific consensus that sexual offenders pose

____________________________________________

9 We note that the defendant in Torsilieri was not an SVP. Moreover,

Torsilieri focused on Revised Subchapter H and whether the presumption

contained in Section 9799.11(4) of SORNA — that individuals convicted of

sexual offenses pose a high risk of committing additional sexual offenses —

was an unconstitutional irrebuttable presumption.

10 As it applies to Subchapter I, the General Assembly provided: “These

sexually violent predators and offenders pose a high risk of engaging in further

offenses even after being released from incarceration or commitments, and

protection from this type of offender is a paramount governmental interest.”

42 Pa.C.S.A. § 9799.51(a)(2).

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no greater risk of committing additional sexual crimes than other

groups not subject to similar registration laws.” Id. at 98.

The Court held:

Here, [the] [a]ppellee’s own experts concede that

adult sexual offenders reoffend at a rate of at least

three times higher than other individuals convicted of

non-sexual offenses. Accordingly, rather than

refuting it, the evidence supports the legislative

presumption; the evidence validates the statutory

underpinnings of Subchapter H. We need go no

further. Having reviewed arguments and the evidence

presented below, we find that the evidence does not

demonstrate a consensus that the presumption at

issue is not universally true. Thus, we hold [the]

[a]ppellee has failed to meet his heavy burden to

demonstrate that the irrebuttable presumption at

issue was constitutionally infirm.

Id. at 99 (citations and footnote omitted).

Based on its disposition of the second prong, the Court did

not need to evaluate the third prong of the irrebuttable

presumption. Nevertheless, the Court noted that the third prong

would be met because SORNA II provides “for individualized

assessment of adult sexual offenders as [SVPs].” Id. at 97 n.13.

Instantly, we note at the outset that, unlike the defendant

in Torsilieri, [the] [a]ppellant [in Guo] was designated an SVP.

Although [the] [a]ppellant claims that his SVP status violates his

right to reputation as protected under the due process clause, and

that the presumption of his likelihood to reoffend is not universally

true, [the] [a]ppellant offers no reasonable alternative means to

ascertain the presumed fact. The Torsilieri Court noted that the

third prong required to challenge the irrebuttable presumption

doctrine would be met for non-SVPs attacking their registration

requirements, because a reasonable alternative means to

evaluate their likelihood of re-offense would be through an

individualized assessment similar to the assessments conducted

for SVPs. See Torsilieri, supra, at 97 n.13. [The] [a]ppellant

[in Guo] acknowledges that the SOAB has the tools necessary to

conduct individualized assessments, but he complains that the

SOAB representative failed to utilize those tools in [his] case.

Thus, [the] [a]ppellant is essentially challenging the sufficiency of

the evidence for his SVP designation based on what he alleges was

an incomplete assessment by the SOAB. In the absence of any

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proffered “reasonable alternative means to ascertain the

presumed fact,” [the] [a]ppellant’s challenge to his SVP status

under the irrebuttable presumption doctrine necessarily fails.

To the extent [the] [a]ppellant [in Guo] is advancing any

challenge to the irrebuttable presumption doctrine that could

implicate any registration requirement he may be subject to that

falls outside his registration requirements as an SVP, our Supreme

Court has now expressly held that “the evidence does not

demonstrate a consensus that the presumption at issue is not

universally true.” Torsilieri, supra, at 99. [The] [a]ppellant does

not proffer any evidence that would be inconsistent with or go

beyond that which was presented in Torsilieri. In fact, [the]

[a]ppellant’s failure to present evidence to support his

constitutional claim is reason enough to deny relief.

Guo, supra, 2024 WL 3200042, at *5-7 (footnote added) (footnotes omitted)

(citations omitted).

Here, as in Guo, we note that Appellant was designated a SVP. Although

Appellant claims that his SVP status violates the right to reputation as

protected under the due process clause, and that the presumption of his

likelihood to re-offend is not universally true, Appellant offers no reasonable

alternative means to ascertain the presumed fact. As we noted in Guo, the

High Court in Torsilieri held the third prong required to challenge the

irrebuttable presumption doctrine would be met for non-SVPs attacking their

registration requirements because a reasonable alternative means to evaluate

their likelihood of re-offense would be available through an individualized

assessment similar to the assessments conducted for SVPs.

However, in the case sub judice, the SOAB conducted an individualized

assessment of Appellant. While Appellant may challenge whether the SOAB

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considered all evidence, this is essentially a challenge to the sufficiency of the

evidence for his SVP designation. As we held in Guo, “in the absence of any

proffered reasonable alternative means to ascertain the presumed fact,”

Appellant’s challenge to his SVP status in the case sub judice fails under the

irrebuttable presumption doctrine. Guo, supra, 2024 WL 3200042, at *5-6.

In his final claim, Appellant avers that, just as the PCRA is not the

exclusive procedural mechanism for challenging sexual offender registration

statutes, the PCRA is not the exclusive procedural mechanism for challenging

the alleged illegality of his term of imprisonment and/or the voluntariness of

his plea. Thus, Appellant avers the trial court erred in concluding his attempt

to raise the issues was brought forth in an untimely PCRA petition.11

As indicated supra, in Lacombe, our Supreme Court held that

Subchapter I of SORNA II does not constitute criminal punishment and

expressly “decline[d] to find the PCRA, or any other procedural mechanism, is

the exclusive method for challenging sexual offender registration statutes[.]”

Lacombe, supra, 234 A.3d at 618, 626. Accordingly, SORNA registrants

seeking relief from such requirements are not required to do so in a timely-

filed PCRA petition. See id. at 617-18. However, contrary to Appellant’s

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11 We note Appellant raised his claims challenging the legality of his sentence

and the voluntariness of his plea in his pro se “Motion to Vacate Defendant’s

Illegal SVP Designation and Lifetime Registration Requirements Imposed

under Megan’s Law III.” As Appellant indicates, the trial court determined

these claims should be treated under the auspices of the PCRA.

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assertion, we conclude the PCRA court properly treated Appellant’s purported

legality of sentencing claim, as well as his challenge to the voluntariness of

his plea, as claims falling under the auspices of the PCRA.12

It is well-settled the PCRA is “the sole means of obtaining collateral

relief,” and “if the underlying substantive claim is one that could potentially

be remedied under the PCRA, that claim is exclusive to the PCRA.”

Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super. 2004)

(emphasis omitted). Moreover, “[i]ssues that are cognizable under the PCRA

must be raised in a timely PCRA petition and cannot be raised in a habeas

corpus petition [or other self-styled petition outside of the PCRA].”

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013).

Here, Appellant challenges the legality of his sentence on the basis the

trial court did not have the statutory authority to impose a mandatory

minimum term of imprisonment.13 He also avers the trial court’s sentence

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12Our scope and standard of review when reviewing the denial of a PCRA

petition are well-settled:

[O]ur scope of review is limited by the parameters of the [PCRA].

Our standard of review permits us to consider only whether the

PCRA court’s determination is supported by the evidence of record

and whether it is free from legal error. Moreover, in general we

may affirm the decision of the [PCRA court] if there is any basis

on the record to support the [PCRA] court’s action[.]

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa.Super. 2005)

(quotations and citations omitted).

13 As the Commonwealth notes, Appellant misreads the record inasmuch as

the “Commonwealth waived the imposition of a mandatory minimum sentence

(Footnote Continued Next Page)

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exceeds the statutory limits because the trial court imposed consecutive

sentences in addition to the mandatory minimum term of imprisonment. He

also generally avers his guilty plea was involuntarily entered since it was

unlawfully induced.

Appellant’s self-styled petition purports to raise legality of sentencing

claims, as well as challenges to the voluntariness of his guilty plea. Both of

these claims are cognizable under the PCRA and subject to the PCRA

timeliness provisions. See Commonwealth v. Moore, 665 Pa. 95, 247 A.3d

990 (2021) (holding claims implicating legality of sentence must be raised

under the auspices of the PCRA); 42 Pa.C.S.A. § 9543(a)(2)(iii) (indicating a

defendant is eligible for PCRA relief where he alleges “[a] plea of guilty

unlawfully induced where the circumstances make it likely that the

inducement caused the petitioner to plead guilty and the petitioner is

innocent.”). Accordingly, as did the PCRA court below, we deem this portion

of Appellant’s pro se motion to be a serial PCRA petition. Thus, we proceed

to determine whether it was timely filed under the PCRA.

Pennsylvania law makes clear no court has jurisdiction to

hear an untimely PCRA petition. The most recent amendments to

the PCRA, effective January 16, 1996, provide a PCRA petition,

including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at the

conclusion of direct review, including discretionary review in the

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under [Section] 9718(a)(3) when it entered into the negotiated plea

agreement and [Appellant] entered his guilty plea.” Commonwealth’s Brief at

28.

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Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.”

42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(citations omitted).

[There are] three statutory exceptions to the timeliness

provisions in the PCRA [that] allow for the very limited

circumstances under which the late filing of a petition will be

excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a

petitioner must allege and prove:

(i) the failure to raise the claim previously was the result of

interference by government officials with the presentation of the

claim in violation of the Constitution or laws of this Commonwealth

or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been ascertained by

the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or the

Supreme Court of Pennsylvania after the time period provided in

this section and has been held by that court to apply retroactively.

Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).

Under this framework, an appellant must either file a petition within one

year of his judgment of sentence becoming final under Section 9545(b)(3), or

“plead” and “prove” that one of the enumerated exceptions apply. “[T]here

is no generalized equitable exception to the jurisdictional one-year time bar

pertaining to post-conviction petitions.” Commonwealth v. Brown, 596 Pa.

354, 943 A.2d 264, 267 (2008).

In the case sub judice, Appellant does not dispute that his instant

petition, filed on July 6, 2023, was not filed within one year from the date his

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judgment of sentence became final, i.e., in January of 2012, thirty days after

he failed to file a direct appeal to this Court. See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 903(a). Further, although under limited circumstances a petitioner

may invoke a timeliness exception under which the late filing of a petition will

be excused, Appellant does not present or develop any argument related to

the timeliness exceptions. Instead, he contends the PCRA court erred in

treating his pro se document as a PCRA petition subject to the timeliness

requirements. As indicated supra, the PCRA court did not err in this regard.14

Accordingly, for the aforementioned reasons, we affirm the December

29, 2023, order. However, upon remand of the record, we direct the lower

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14 We note Appellant claims that the PCRA time bar does not apply to his

sentencing claims because the errors in his case are patent and obvious. He

relies on Commonwealth v. McGee, ___ Pa. ___, 302 A.3d 659 (2023), for

the proposition that a court has the authority to correct patent and obvious

errors “despite the absence of traditional jurisdiction.” McGee, supra, 302

A.3d at 663. However, our Supreme Court expressly ruled in McGee that

there was no patent error and it “[did] not reach the question of whether a

trial court’s inherent authority to correct patent and obvious errors in the

record is subject to the time limitations of the PCRA.” McGee, supra, 302

A.3d at 670. Therefore, Appellant’s reliance on McGee is not legally

persuasive.

Furthermore, even if a trial court’s authority to correct patent and

obvious errors in the record were not subject to the PCRA’s time limitations,

Appellant’s claim of a patent and obvious error is unavailing. A patent and

obvious error is one that is, as the title implies, obvious. Here, there is no

obvious error.

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court to notify Appellant of his registration requirements under Subchapter

I.15

Order affirmed. Case remanded with instructions. Jurisdiction

relinquished. Application for relief denied.

DATE: 11/13/2024

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15 On or about September 12, 2024, Appellant filed in this Court an

“Application for Relief” wherein he seeks reimbursement of $92.40 for the

copy and mail fees associated with the filing of his appellate brief. Appellant

avers the funds were removed from his personal inmate account, and he wants

the funds reimbursed to him. We deny Appellant’s Application for Relief.

Appellant is not proceeding in forma pauperis in this matter. Further, we note

the trial court conducted an inquiry during the October 25, 2023, hearing as

to Appellant’s ability to pay. Appellant admitted he had over $20,000.00 in his

checking account, and he had no financial impediment.

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