Opinion
127 WDA 2022 J-S25013-22
09-16-2022
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL PAUL JACOBS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 12, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002122-2011
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM
BENDER, P.J.E.
Appellant, Michael Paul Jacobs, appeals pro se from the trial court's January 12, 2022 order denying his petition for writ of habeas corpus, in which he challenged the constitutionality of his designation as a Sexually Violent Predator ("SVP") under the revised version of Subchapter I of the Sexual Offenders Registration and Notification Act ("SORNA II"), 42 Pa.C.S. §§ 9799.10-9799.42. After careful review, we affirm.
The facts underlying Appellant's convictions are not pertinent to the issues he raises herein. We need only note that on June 3, 2013, Appellant pled guilty to statutory sexual assault (18 Pa.C.S. § 3122.1) and unlawful contact with a minor (18 Pa.C.S. § 6318(a)(1)). He was sentenced that same day to 18 to 36 months' incarceration. His statutory sexual assault conviction also subjected him to a 25-year registration requirement as a Tier II sex offender under the prior version of SORNA in effect at that time ("SORNA I").
Notably, during the plea proceeding, the Commonwealth stated - without objection from Appellant - that as part of his plea agreement, Appellant would be required "to obtain a SORNA [e]valuation and follow any recommended treatment, and registration requirements." N.T. Plea, 6/3/13, at 3. Accordingly, after his plea and sentencing hearing, Appellant was assessed by the Sexual Offenders Assessment Board. The Commonwealth thereafter filed a praecipe for an SVP hearing, which was held on November 30, 2013, and February 7, 2014. On February 7, 2014, the court issued an order deeming Appellant an SVP, thereby subjecting him to a lifetime registration requirement. Appellant did not file an appeal.
Instead, over three years later, Appellant filed a pro se petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, challenging the legality of his SVP designation in light of Commonwealth v. Muniz, 164 A.3d 1189, 1223 (Pa. 2017) (holding that the registration requirements of Subchapter H of SORNA I, as applied retroactively, were punitive and unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions), and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (holding that the statutory mechanism for designating a defendant an SVP under SORNA I violated the United States Supreme Court's decisions in Alleyne v. U.S., 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000)). Appellant's PCRA petition was ultimately dismissed on June 29, 2018. This Court affirmed on appeal, and our Supreme Court denied Appellant's subsequent petition for permission to appeal. See Commonwealth v. Jacobs, 217 A.3d 446 (Pa. Super. 2019) (unpublished memorandum), appeal denied, 222 A.3d 752 (Pa. 2019).
Our Supreme Court has abrogated Muniz to the extent that it held that a defendant must prove that he was actually disadvantaged by a retroactively-applied law to demonstrate it is ex post facto. Commonwealth v. Santana, 266 A.3d 528, 536 (Pa. 2021) ("The United States Constitution does not require a defendant to prove that he, in fact, was disadvantaged by the retroactively applied law.").
Alleyne holds that "facts that increase mandatory minimum sentences must be submitted to the jury" and found beyond a reasonable doubt. Id. at 106.
Apprendi held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.
In response to Muniz and Butler, the Pennsylvania General Assembly amended SORNA I by enacting Act 10 on February 21, 2018, and Act 29 on June 12, 2018, which are collectively known as SORNA II. See Act of Feb. 21, 2018, P.L. 27, No. 10 ("Act 10"); Act of June 12, 2018, P.L. 140, No. 29 ("Act 29"). SORNA II now divides sex offenders into two subchapters: (1) Subchapter H, which applies to an offender who committed a sexually violent offense on or after December 20, 2012 (the date SORNA I became effective); and (2) Subchapter I, which applies to an individual who committed a sexually violent offense on or after April 22, 1996, but before December 20, 2012, whose period of registration has not expired, or whose registration requirements under a former sexual offender registration law have not expired. Appellant is now subject to the SVP provisions under Subchapter I of SORNA II.
On August 11, 2021, Appellant filed the pro se petition for writ of habeas corpus that underlies his present appeal. Therein, he challenged the constitutionality of his SVP designation under SORNA II. Appellant also filed a petition for court-appointed counsel. The trial court denied that request, and conducted a hearing on Appellant's petition for writ of habeas corpus, at which Appellant acted pro se. On January 12, 2022, the court issued an order and opinion denying Appellant's petition for writ of habeas corpus.
On February 11, 2022, our Court issued an order to the trial court to clarify whether Appellant was entitled to counsel at the hearing on his petition for writ of habeas corpus under Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) ("It is … well-settled that the PCRA provides the sole means for obtaining collateral review, and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition") (internal citation omitted), and Pa.R.Crim.P. 904(D) ("On a second or subsequent petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided by [Pa.R.Crim.P.] 908, the judge shall appoint counsel to represent the defendant."). The trial court responded with a letter explaining that Appellant was not proceeding under the PCRA and, thus, Rule 904(D) did not apply. See Trial Court Response, 2/23/22, at 1 (unnumbered). The court explained that Appellant was challenging the constitutionality of his SVP designation and, thus, his filing a petition for writ of habeas corpus was permissible under Commonwealth v. Lacombe, 234 A.3d 602, 618 (Pa. 2020) (declining "to find the PCRA, or any other procedural mechanism, is the exclusive method for challenging sexual offender registration statutes"), and Commonwealth v. Elliott, 249 A.3d 1190, 1193 (Pa. Super. 2021), appeal denied, 263 A.3d 241 (Pa. 2021) (concluding that under Lacombe, "the applicability of SORNA II may be challenged outside the PCRA. Therefore, the trial court erred by construing Appellant's challenge to his [registration and notification] requirements as an untimely PCRA petition"). Id. The court also observed that under Com. ex rel. Frey v. Banmiller, 159 A.2d 237, 238 (Pa. Super. 1960), the appointment of counsel is not required in the context of a writ of habeas corpus because such proceedings are civil in nature. Id. at 2 (unnumbered). Accordingly, the trial court concluded that Appellant was not entitled to representation in litigating his petition for writ of habeas corpus. We agree with the trial court. Rule 904(D) applies to proceedings under the PCRA. Here, Appellant appropriately raised his challenge to the constitutionality of his SVP designation under SORNA II in a petition for writ of habeas corpus and, therefore, Rule 904(D) does not automatically apply. To the extent one could argue that the rule should apply to challenges to the sex-offender registration requirements, Appellant makes no such argument on appeal. Moreover, while Appellant's second issue relates to the validity of his guilty plea, he is essentially asking us to enforce, under a contract theory, the 25-year-registration-requirement provision that was ostensibly part of his plea agreement. See Appellant's Brief at 23 ("[A]t the time of Appellant's June 3, 2013, negotiated guilty plea and sentencing, Appellant entered his plea to the charges with the expectation that he would be classified as a Tier [II] … Offender, which would require him to register under SORNA [II] as a sexual offender for a period of twenty-five (25) years, which is contractual in nature."). This Court has held that "a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance." Commonwealth v. Snook, 230 A.3d 438, 444 (Pa. Super. 2020). Therefore, that aspect of Appellant's petition for writ of habeas corpus is also not subsumed by the PCRA, and Rule 904(D) does not automatically apply to necessitate counsel. Accordingly, we do not discern any error in the court's decision not to appoint counsel in this case.
Appellant filed a timely, pro se notice of appeal. That same day, he also filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The court thereafter filed a "Memorandum in Lieu of Statement of the Court Pursuant to Pa.R.A.P. 1925(a)" indicating that it was relying on the rationale set forth in its January 12, 2022 opinion that accompanied its order denying Appellant's petition.
In Appellant's pro se brief to this Court, he presents the following three issues for our review, which we reproduce verbatim:
I. Whether the trial court erred in not finding that the procedural irregularities in this particular case violated the Appellant's Fourteenth Amendment Due Process Clause that guarantees fair notice and enforces the protection against double jeopardy of the Fifth Amendment under the incorporation doctrine?
II. Whether the parties to the plea agreement was reasonably understood to be the terms of the agreement?
III. Whether the RNC requirements, including his SVP designation, under Subchapter I, violate the Appellant's due process protection through an unconstitutional utilization of irrebuttable presumptions infringing upon his right of reputation and the protection of double jeopardy under the incorporation doctrine?
We believe the acronym "RNC" refers to the registration, notification, and counseling requirements of SORNA II.
Appellant's Brief at 9-10 (unnecessary capitalization omitted).
We begin by recognizing that, "[o]rdinarily, an appellate court will review a grant or denial of a petition for writ of habeas corpus for abuse of discretion, but for questions of law, our standard of review is de novo, and our scope of review is plenary." Commonwealth v. Judge, 916 A.2d 511, 521 (Pa. 2007) (citations omitted). "When an appellant challenges the constitutionality of a statute, the appellant presents this Court with a question of law." Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (citation omitted). "A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution. Thus, the party challenging the constitutionality of a statute has a heavy burden of persuasion." Id. (citation omitted).
Here, Appellant first argues that "procedural irregularities" in his case violated his due process rights and the prohibition against double jeopardy. Specifically, he takes issue with the fact that he pled guilty and was sentenced on June 3, 2013, yet the court thereafter granted the Commonwealth's praecipe for an SVP hearing, and ultimately designated Appellant an SVP subject to lifetime registration on October 30, 2013. See Appellant's Brief at 17. According to Appellant, the SVP assessment must be conducted before sentencing and, therefore, his due process rights and double jeopardy protections were violated when his assessment took place after his sentencing in this case. See id. at 18; see also 42 Pa.C.S. § 9799.24(a) ("Order for assessment.--After conviction but before sentencing, a court shall order an individual convicted of an offense specified in [section] 9795.1 (relating to registration) to be assessed by the board. The order for an assessment shall be sent to the administrative officer of the board within 10 days of the date of conviction.") (emphasis in original). Appellant concludes that this procedural error renders his SVP designation "void ab initio and not [e]nforceable…." Appellant's Brief at 21.
This provision, which is part of SORNA I, has been replaced by nearly identical language in SORNA II. See 42 Pa.C.S. § 9799.58(a). We cite to SORNA I, as it was in effect at the time of Appellant's conviction and sentencing.
Relatedly, Appellant contends in his second issue that the Commonwealth breached his plea agreement by seeking and ultimately obtaining his designation as an SVP, which subjected him to a lifetime registration requirement rather than the allegedly bargained-for registration requirement of 25 years. Appellant insists that "[t]here was no mention during the guilty plea colloquy that [he] would have to undergo a[n SVP] evaluation or that an SVP designation would change his tier and registration requirements from [25] years to lifetime." Id. at 23. Consequently, Appellant claims that "the plea agreement [was] breached…." Id. at 28.
Third, Appellant challenges the constitutionality of his SVP designation under Subchapter I of SORNA II. Specifically, he argues that SORNA II imposes an "irrebuttable presumption" that SVPs "pose a high risk of engaging in further offenses even after being released from incarceration." Id. at 30. Appellant insists that this presumption "violates due process because it [i]s not universally true and a reasonable alternative means of ascertaining that presumed fact is available." Id. at 30-31 (citation omitted); see also In re J.B., 107 A.3d 1, 14-15 (Pa. 2014) (reiterating that "irrebuttable presumptions are violative of due process where the presumption is deemed not universally true and a reasonable alternative means of ascertaining that presumed fact are available"). Therefore, he concludes that his SVP designation is unconstitutional.
In assessing Appellant's issues, we have reviewed the briefs of the parties, the certified record, and the applicable law. We have also analyzed the thorough opinion of the Honorable Scott O. Mears of the Court of Common Pleas of Westmoreland County. We conclude that Judge Mears' well-reasoned opinion accurately and completely addresses Appellant's claims, and we discern no error in Judge Mears' conclusion that each of his three issues are meritless. See TCO at 18-25 (rejecting Appellant's claims that his designation as an SVP violated his due process rights and protections against double jeopardy, and/or constituted a breach of his guilty plea); id. at 6-18 (discussing the history of sexual-offender registration requirements and deeming meritless Appellant's claims that his SVP designation under SORNA II is unconstitutional). Accordingly, we adopt Judge Mears' opinion as our own and affirm the order denying Appellant's petition for writ of habeas corpus for the reasons set forth therein.
We note that the Commonwealth treats Appellant's claims as cognizable under the PCRA, and insists that we lack jurisdiction to review them because they are untimely. See Commonwealth's Brief at 5-6. For the reasons set forth in footnote 1, supra, we disagree. Nevertheless, no relief is due for the reasons set forth herein.
Order affirmed.
Judgment Entered.