Commonwealth v. McIntyre

232 A.3d 609

COMMONWEALTH of Pennsylvania, Appellee

v.Jerome MCINTYRE, Appellant

No. 25 EAP 2019

Supreme Court of Pennsylvania.

Submitted: January 31, 2020

Filed: June 16, 2020

Bruce Philip Merenstein, Esq., Brandy Sue Ringer, Esq., Schnader Harrison Segal & Lewis LLP, for Appellant.

Daniel Francis Creedon, Esq., Paul M. George, Esq., Philadelphia, Lawrence Jonathan Goode, Esq., Katelyn Lori Mays, Esq., Philadelphia District Attorney's Office, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE TODD

On April 1, 2020, our Court issued a per curiam order reversing the judgment of sentence of Appellant Jerome McIntyre who had been convicted of violating 18 Pa.C.S. § 4915 (effective 1/1/2007-12/19/2011) (" Section 4915") for failing to register as a convicted sex offender. See Commonwealth v. McIntyre , 227 A.3d 310 (Pa. 2020) (order). As explained more fully herein, Appellant's challenge to his sentence was raised in proceedings under the Post Conviction Relief Act ("PCRA").¹ Because we found his challenge to be meritorious, but because his prison sentence expired on April 7, 2020, thus terminating our jurisdiction to grant relief as of that date,² we took the unusual action of issuing our April 1, 2020 order, with an opinion to follow. We now set forth our reasons in support of that order.

I. Facts and Procedural History

Appellant was convicted of indecent assault in 2001. Pursuant to "Megan's Law II"³ as then in effect, Appellant was required to register for 10 years as a sex offender with the Pennsylvania State Police upon his release from prison in 2003. Subsequently, in 2004, the legislature enacted "Megan's Law III,"⁴ a provision of which made it a crime to fail to register. See 18 Pa.C.S. § 4915 (effective 1/24/05 to 12/31/06). Later, in 2005, Appellant was charged under this statute with not fulfilling this mandatory registration requirement. He pled guilty, and he was sentenced to a year of probation.

In 2010, Appellant was (again) charged with failing to register, under the version of Section 4915 then in effect, which is the version of that provision at issue herein.⁵ In April 2012, following a jury trial, Appellant was convicted and received a mandatory sentence of 5 to 10 years incarceration. As noted, this sentence expired on April 7, 2020.⁶

Appellant, through appointed counsel, filed a direct appeal, and the Superior Court affirmed his judgment of sentence on July 16, 2013. Commonwealth v. McIntyre , 2009 EDA 2012 (Pa. Super. filed July 16, 2013). Appellant did not seek further review with our Court of the Superior Court's decision. On December 16, 2013, we handed down our decision in Commonwealth v. Neiman , 624 Pa. 53, 84 A.3d 603 (2013), in which we held that Megan's Law III, which included Section 4915, was unconstitutional in its entirety as it was passed in violation of the single subject rule of the Pennsylvania Constitution.

Appellant next filed a pro se PCRA petition on April 22, 2014, asserting his innocence of his underlying conviction for indecent assault, and also raising several claims of ineffective assistance of counsel.

Counsel was appointed for him, but was subsequently removed. Substitute counsel did not file an amended PCRA petition, but, rather, a motion to withdraw and a "no-merit" letter pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley , 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc ).

The trial court, by order issued in November 2016, granted counsel's motion and dismissed Appellant's PCRA petition. Appellant, again proceeding pro se, filed a timely notice of appeal of this order, and, thereafter, filed a Pa.R.A.P. 1925(b) statement raising over 30 claims of PCRA court error.

No further action was taken in this matter until October 10, 2017, when Appellant filed, pro se , an amended PCRA petition in which he asserted that his sentence for violating Section 4915 was illegal as a result of our Court's July 19, 2017 decision in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (holding that retroactive application of SORNA's registration provisions violated the ex post facto clauses of the Pennsylvania and United States Constitutions).⁷

The trial court issued a Rule 1925(a) opinion in which it summarily rejected the claims which Appellant raised in his Rule 1925(b) statement. In his pro se brief filed with the Superior Court, Appellant argued that Muniz , and also our Court's 2017 decision in Commonwealth v. Derhammer , 643 Pa. 391, 173 A.3d 723 (2017) (holding that the Commonwealth lacked authority to prosecute a defendant for violating Section 4915 after Megan's Law III was struck down by Neiman ), changed the law such that his "conviction in whole and in part cannot be sustained." Appellant's Brief in Commonwealth v. McIntyre , 3698 EDA 2016 (Pa. Super.), at 9.

The Superior Court affirmed the denial of PCRA relief. Commonwealth v. McIntyre , 3698 EDA 2016 (Pa. Super. filed Dec. 17, 2018). In its unpublished memorandum opinion, the court considered Appellant's claims based on Muniz and Derhammer – even though he did not raise the applicability of these cases in his original PCRA petition – because, in its view, these claims concerned the legality of Appellant's sentence, which it concluded it had jurisdiction to consider. The court first determined that Muniz did not apply to Appellant's case because Appellant was convicted under Megan's Law III, not SORNA. Regarding Derhammer , the court opined that that case was distinguishable since the defendant therein was prosecuted after our Court's decision in Neiman , whereas Appellant's judgment of sentence became final before Neiman was issued, and Appellant did not argue that Neiman applied retroactively to invalidate his conviction.

Appellant filed a pro se petition for allowance of appeal to this Court, raising the following three issues:

1. Whether the Superior Court erred by failing to apply the standard delineated in Teague v. Lane (1989) and its progeny, including and specifically Montgomery v. Louisiana (2016), allowing a retroactive application in collateral proceedings for new substantive rules, as it is United States Supreme Court precedent?

2. Whether a complete and fundamental miscarriage of justice issued fatally depriving Appellant of his constitutional rights to due process under the United States and Pennsylvania Constitutions where the court of original jurisdiction lacked subject matter jurisdiction to prosecute in this instant case?

3. Whether Commonwealth v. Neiman and/or Commonwealth v. Derhammer , both Pennsylvania Supreme Court precedents, are to be applied to his first timely PCRA as new substantive rules in accord with the United States and Pennsylvania Constitutions?

Commonwealth v. McIntyre , 217 A.3d 792, 792-93 (Pa. 2019) (order).

Our Court granted this petition on September 4, 2019, and we referred the matter to our Court's pro bono coordinator to select volunteer counsel to represent Appellant in this appeal. Attorneys Bruce P. Merenstein and Brandy S. Ringer entered their appearance on behalf of Appellant, and filed a brief on his behalf, along with an unopposed motion for expedited consideration in light of the looming expiration of Appellant's sentence. The Commonwealth, by the Philadelphia District Attorney's Office, also filed a brief in which, as explained below, it concurs with Appellant that his sentence for violating Section 4915 was illegal and subject to reversal.

After this briefing process was complete, our review, as discussed below, indicated that Appellant was entitled to reversal of his judgment of sentence; however, because the expiration of Appellant's sentence was rapidly approaching, at which point our Court would be deprived of jurisdiction to grant relief,⁸ we issued a per curiam order on April 1, 2020, reversing his judgment of sentence and indicating that the present opinion would be forthcoming. See Commonwealth v. McIntyre , 227 A.3d 310 (Pa. 2020) (order).

II. Arguments of the Parties

Appellant first argues that, after our Court's decision in Neiman , Section 4915 became null and void dating back to its inception, and, thus, it was as if this statute never existed. Consequently, he maintains that it would violate due process to uphold his conviction and to permit his incarceration thereunder. Appellant highlights that our Court has recognized the principle that a statute which is stricken for constitutional infirmity must be regarded as void ab initio and treated as if it never existed. See Appellant's Brief at 11 (citing Glen-Gery Corporation v. Zoning Hearing Board , 589 Pa. 135, 907 A.2d 1033, 1037 (2006) (holding that a facially untimely challenge to a zoning statute based on a claim that the manner of the statute's enactment violated due process must be allowed to proceed, as the constitutional claim, if proven, would render the statute void ab initio )). Appellant asserts that, in Derhammer , our Court acted in accordance with this principle by recognizing that Section 4915 was rendered void ab initio as the result of our Court's ruling in Neiman that Megan's Law III was unconstitutionally enacted. See id. at 12-13 (quoting Derhammer , 173 A.3d at 728 ("a conviction based on an unconstitutional statute is a nullity[;] ... 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.’ " (in turn quoting Ex Parte Siebold , 100 U.S. 371, 376-77, 25 L.Ed. 717 (1879) ))). Likewise, Appellant reasons that his conviction for allegedly violating Section 4915 "is a nullity. [It] is illegal and void, and cannot be a legal cause of imprisonment." Id. at 13 (internal quotation marks omitted).

Appellant further argues that, as a general matter, the Due Process Clause of the Fourteenth Amendment of the United States Constitution prohibits a state from convicting an individual "for conduct that its...