Commonwealth v. Thompson

258 A.3d 554 (Table)

COMMONWEALTH of Pennsylvania, Appellee

v.Charles Cagle THOMPSON, Appellant

No. 991 WDA 2020

Superior Court of Pennsylvania.

Filed June 28, 2021

MEMORANDUM BY KING, J.:

Appellant, Charles Cagle Thompson, appeals from the order entered in the Jefferson County Court of Common Pleas, following a remand hearing to decide Appellant's appropriate registration requirements under the Sexual Offender Registration and Notification Act ("SORNA II").¹ For the following reasons, we deny counsel's petition to withdraw and remand for the filing of an advocate's brief.

This Court has previously set forth the relevant facts of this case 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 the ten-year Colorado registration requirement was still in effect, Appellant moved to Pennsylvania. When the ten-year registration period expired, Appellant did not...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, denied PCRA relief regarding the SORNA/Muniz 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.

Commonwealth v. Thompson , No. 1342 WDA 2018, at 1-3 (Pa.Super. filed January 14, 2020) (unpublished memorandum) (internal footnote omitted).

On August 15, 2018, the court resentenced Appellant to 28 months’ to 10 years’ imprisonment. On that same day, Appellant filed a post-sentence motion, which the court denied. Appellant filed a notice of appeal on September 13, 2018. On appeal, Appellant argued that his Colorado convictions predated the effective date of SORNA I, such that SORNA I did not apply to him. Appellant contended the court retroactively applied SORNA I, in violation of the ex post facto clauses of the United States and Pennsylvania Constitutions. Thus, Appellant insisted the ex post facto application of SORNA I invalidated his conviction for failure to comply with registration requirements and rendered his sentence illegal under Muniz .

This Court agreed with Appellant's contentions and, on January 14, 2020, vacated and remanded for further proceedings. Specifically, this Court explained that a retroactive application of SORNA I to pre-SORNA I sex offenders violated the ex post facto clauses of the United States and Pennsylvania Constitutions. Appellant committed his offenses in Colorado before the effective date of SORNA I, when Megan's Law II was operative in Pennsylvania. Because Appellant's underlying sex offenses occurred prior to the effective date of SORNA I, SORNA I did not apply to his case and the unconstitutional ex post facto application of SORNA I to Appellant invalidated his guilty plea to "violating SORNA I." Thus, this Court reversed the conviction for failure to register and vacated the judgment of sentence for failing to comply with SORNA I. Nevertheless, because Appellant had failed to petition the Colorado court to discontinue his registration duties, Appellant was still required to register in Pennsylvania. Consequently, this Court remanded for the trial court to determine Appellant's appropriate registration requirements. See Thompson, supra at 5-7.

The trial court held a remand hearing to determine Appellant's registration requirements on August 21, 2020. On August 27, 2020, the court ordered Appellant to register for life under Revised Subchapter H of SORNA II. Appellant timely filed a motion for reconsideration, which the court granted on September 8, 2020, directing Appellant to register under Subchapter I² for life. Appellant timely filed a notice of appeal on September 18, 2020. The court subsequently ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On September 25, 2020, counsel filed a Pa.R.A.P. 1925(c)(4) statement of counsel's intent to file an Anders³ brief in this Court.

As a preliminary matter, counsel seeks to withdraw his representation pursuant to Anders and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; (2) file a brief referring to anything in the record that might arguably support the appeal; and (3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super. 2007). After establishing that counsel has met the antecedent requirements to withdraw, this Court makes an independent review of the record to confirm that the appeal is wholly frivolous. Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa.Super. 2006).

In Santiago, supra , our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor [ Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981) ] requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

* * *

Under Anders , the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel has filed a petition to withdraw. The petition states counsel has conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to retain new counsel or to proceed pro se to raise any additional issues Appellant deems worthy of this Court's attention. In the Anders brief, counsel provides a summary of the facts and procedural history of the case. Counsel's argument refers to relevant law that might arguably support Appellant's issues. Counsel further states the reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the technical requirements of Anders and Santiago . Accordingly, we proceed to an independent evaluation of the issues raised in the Anders brief. See Palm, supra .

Counsel raises the following issue on Appellant's behalf:

Did the trial court err in finding [Appellant] to be a lifetime registrant under the provisions of the Sex Offender Registration and Notification Act (SORNA)?

(Anders Brief at 2).

Appellant advances two arguments to support his proposition that the court erred by subjecting him to lifetime registration. Initially, Appellant argues that his Colorado conviction, which only required him to register as a sex-offender for ten years, expired in 2011.⁴ Appellant emphasizes that at the time he was charged in Pennsylvania with failing to comply with registration requirements, his Colorado registration requirements had already expired. Thus, Appellant seems to suggest that he should not be required to register at all in Pennsylvania.⁵

Even if Appellant is required to register in Pennsylvania, Appellant emphasizes that he received a letter from the PSP which stated...