Commonwealth v. Zack

262 A.3d 497

COMMONWEALTH of Pennsylvania

v.John David ZACK, Appellant

Commonwealth of Pennsylvania

v.John David Zack, Sr., Appellant

No. 229 WDA 2021

No. 230 WDA 2021

Superior Court of Pennsylvania.

Submitted June 21, 2021

Filed: August 17, 2021

James V. Natale, Uniontown, for appellant.

Richard E. Bower, Assistant District Attorney, Fayette, for appellee.

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.^*

OPINION BY PELLEGRINI, J.:

John David Zack, Sr. (Zack) appeals from the orders of the Court of Common Pleas of Fayette County (PCRA court) denying his timely first petitions for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. Zack was convicted in two separate cases for failing to comply with sex offender registration requirements under both the current version of the offense ( 18 Pa.C.S. § 4915.1 ) and the former version under Megan's Law III ( 18 Pa.C.S. § 4915 ). After review, we reverse Zack's convictions and judgments of sentence under the now repealed Section 4915 but affirm the denial of relief for his conviction under Section 4915.1.

I.

A.

In December 2011, a jury found Zack guilty of two counts of indecent assault of a person less than 13 years old, both graded as third-degree felonies.¹ In March 2012, the trial court sentenced him to serve an aggregate three to seven years' imprisonment. At the time of his sentencing, Zack was subject to registration under the then-effective Megan's Law III. While his convictions for indecent assault carried only a ten-year registration period, the trial court designated him a sexually violent predator (SVP), subjecting him to lifetime registration when he was released from state prison.²

While Zack was incarcerated, Megan's Law III was replaced by the first version of the Sex Offender Registration and Notification Act (SORNA I),³ which became effective on December 20, 2012. Among other individuals, SORNA I made its registration provisions applicable to individuals like Zack who, on or after the effective date of the new law, were incarcerated in state prison due to a conviction for a sexually violent offense.⁴ Additionally, under the law's three-tier system for classifying offenders, Zack was classified as a third-tier offender subject to lifetime registration based both on his indecent assault convictions and SVP designation.⁵

In the meantime, in December 2013, our Supreme Court ruled that Megan's Law III was unconstitutional because Act 2004-152 (Act 152), which included the provisions of Megan's Law III, was omnibus legislation violating the single subject rule of the Pennsylvania Constitution. Commonwealth v. Neiman , 624 Pa. 53, 84 A.3d 603, 615 (2013). While Neiman possibly affected individuals who had to register before SORNA I, Zack's lifetime registration was unaffected by the decision.⁶

A few years later, though, in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), the Pennsylvania Supreme Court considered a constitutional challenge to the application of SORNA I to offenders who committed their offenses before its effective date. The Muniz Court explained that a statute violates the ex post facto clause of the United States Constitution where it imposes the equivalent of criminal punishment. To determine this, the Court considered whether the express purpose of SORNA I was to impose punishment and, if not, whether the statutory scheme was so punitive in effect as to negate the legislature's stated non-punitive purpose. Finding that the reporting and registration requirements under SORNA I were punitive, the Muniz Court held that retroactive application of the statute's requirements to offenses committed before its effective date (December 20, 2012) violated the ex post facto clauses of both the United States and Pennsylvania Constitutions. Id . at 1223.

In response to Muniz , the General Assembly amended SORNA I by passing SORNA II, which became effective on June 12, 2018.⁷ SORNA II divided SORNA I into two parts, with one set of obligations applicable to offenses committed on or after December 20, 2012 (Subchapter H), and the other applicable to offenders who were convicted of certain offenses on or after April 22, 1996, but before December 20, 2012 (Subchapter I).⁸ Subchapter I ensured that those required to retroactively register under SORNA—and entitled to relief after Muniz —would still have to do so.⁹ As a result, Zack would still need to register for life under Subchapter I of SORNA II because of his SVP designation.¹⁰

B.

In August 2019, Pennsylvania State Police (PSP) filed two separate criminal complaints against Zack for failing to comply with sex offender registration requirements. As noted earlier, Zack was charged under both the former Megan's Law III version of the offense ( 18 Pa.C.S. § 4915 ) and the current version under SORNA ( 18 Pa.C.S. § 4915.1 ). In Case No. 2297-2018, Zack was charged with: (1) failure to comply with registration requirements, 18 Pa.C.S. § 4915(a)(1) ; (2) failure to verify address or be photographed as required, 18 Pa.C.S. § 4915(a)(2) ; (3) failure to provide accurate information, 18 Pa.C.S. § 4915(a)(3) ; and (4) failure to comply with counseling, 18 Pa.C.S. § 4915.1(a.2)(1). PSP alleged that theses offenses occurred on September 28, 2018. In Case No. 2138-2019, meanwhile, Zack was charged with one count of failure to verify address or be photographed as required, 18 Pa.C.S. § 4915(a)(2). PSP alleged that this offense occurred on August 2, 2019.

Zack quickly negotiated a plea agreement and on October 7, 2019, pleaded guilty to all charges on both cases. On December 3, 2019, the trial court imposed an aggregate sentence of one to two years' imprisonment.¹¹ Because he did not seek appeal, his judgments of sentence became final on January 2, 2020.¹²

On April 17, 2020, Zack filed timely first-time pro se PCRA petitions in both cases. The PCRA court appointed counsel who filed amended petitions to assert that "the Commonwealth violated [Zack's] constitutional rights by imposing additional reporting requirements upon him after he was sentenced by enacting SORNA."

On February 10, 2021, the PCRA court denied both petitions, after which Zack filed timely notices of appeal in both cases.¹³ On appeal, he presents one question for our review:

Whether [Zack's] reporting requirements under the Pennsylvania Sexual Offender Registration and Notification Act (SORNA) II are constitutional?

Zack's Brief at 3.¹⁴

II.

We first address the petition filed in Case No. 2138-2019. In that case, Zack was convicted of one count for failure to verify address or be photographed under 18 Pa.C.S. § 4915(a)(1). As noted above, Section 4915 is the former version of the offense that expired when Megan's Law III was replaced by SORNA on December 20, 2012, and then struck down a year later in the Pennsylvania Supreme Court's decision in Neiman . This being the case, Zack was convicted under an unconstitutional statute and is entitled to reversal of his conviction and judgment of sentence.¹⁵

Our Supreme Court dealt with this very issue in Commonwealth v. Derhammer , 643 Pa. 391, 173 A.3d 723 (2017). There, the defendant was charged in 2009 with violating Section 4915 under Megan's Law III. He was convicted at a 2011 bench trial but later awarded a new trial on appeal. While defendant's retrial was pending, Section 4915 expired and the Supreme Court announced its decision in Neiman . As a result, the defendant moved to dismiss his case because Neiman invalidated the offense for which he was charged. After his motion was denied, the defendant was found guilty at his retrial. On appeal, we affirmed.

However, our Supreme Court reversed and held that the Commonwealth could not convict the defendant under Section 4915 because its decision in Neiman declared Megan's Law III, which included Section 4915, unconstitutionally enacted and, thus, void from the date that it took effect. As the Court explained, because "[i]t is undisputed that a conviction based on an unconstitutional statute is a nullity," then it followed that the defendant's conviction under Section 4915 "cannot be sustained to the extent it is based on Megan's Law III as enacted in 2004." Derhammer , 173 A.3d at 728. It went on to hold that the Commonwealth lacked the authority to retry him for his failure to report under Section 4915. Id . at 731.

It reached a similar result in Commonwealth v. McIntyre , ––– Pa. ––––, 232 A.3d 609 (2020). In that case, the defendant was convicted in April 2012 of failing to register under Section 4915. On direct appeal, we affirmed the judgment of sentence in July 2013 and the defendant did not seek discretionary review in the Supreme Court. After the Supreme Court issued its decision in Neiman , the defendant filed a pro se PCRA petition in April 2014. Counsel was appointed but moved to withdraw by filing a no-merit letter. The PCRA court granted counsel's motion and dismissed the petition, following which the defendant filed a pro se notice of appeal. On appeal to this Court, the defendant raised for the first time that his conviction under Section 4915 could not stand because, under Neiman , Megan's Law III was rendered void ab initio , resulting in his sentence to be illegal because it was based on a non-existent statute. After we affirmed in an unpublished decision, our Supreme Court granted discretionary review.

In a unanimous decision, it concluded that the defendant was entitled to reversal of his conviction and sentence. In its opinion, the Court focused on the question of waiver, finding that the defendant's claim based on Section 4915 being void ab initio implicated the legality of sentence and was not subject to waiver. See McIntyre , 232 A.3d at 616-19. Turning to the merits, our Supreme Court first noted that its decision in Neiman declared Megan's Law III, which included Section 4915 to be unconstitutionally enacted, meaning that the statute was void from the date of its enactment. Id . at 619. It went on to hold...