Commonwealth v. Jacobs, 127 WDA 2022

CourtSuperior Court of Pennsylvania
Writing for the CourtBENDER, P.J.E.
Docket Number127 WDA 2022,J-S25013-22
Decision Date16 September 2022



No. 127 WDA 2022

No. J-S25013-22

Superior Court of Pennsylvania

September 16, 2022


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




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),[1] 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),[2] and Apprendi v. New Jersey, 530 U.S. 466 (2000)).[3] 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).

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.[4] On January 12, 2022, the court issued an order and opinion denying Appellant's petition for writ of habeas corpus.


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[5] 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?

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...

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