Commonwealth v. Moose

• Decision Date: 04 January 2021
• Docket Number: No. 1897 MDA 2014,1897 MDA 2014
• Citation: 245 A.3d 1121
• Parties: COMMONWEALTH of Pennsylvania v. Carlos Gene MOOSE, Jr. Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1121

COMMONWEALTH of Pennsylvania

v.Carlos Gene MOOSE, Jr. Appellant

No. 1897 MDA 2014

Superior Court of Pennsylvania.

Argued October 31, 2019

Filed: January 4, 2021

Brian McNeil, Public Defender, York, for appellant.

Stephanie Elizabeth Lombardo, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.

OPINION BY NICHOLS, J.:

Appellant Carlos Gene Moose, Jr. appeals from the order denying his motion to enforce a negotiated plea agreement and to enjoin any requirement that he register under the Sex Offender Registration and Notification Act¹ (SORNA I). This Court granted en banc reargument to consider (1) whether Appellant's claims must be decided under the Post Conviction Relief Act² (PCRA); (2) whether Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) applied retroactively; (3) whether Commonwealth v. Fernandez , 195 A.3d 299 (Pa. Super. 2018) (en banc ), or Commonwealth v. Johnson , 200 A.3d 964 (Pa. Super. 2018), governed if Muniz applied in determining the retroactive application of SORNA. See Order, 1897 MDA 2014, 5/6/19, at 1-2.

In his supplemental brief, Appellant asserts that the issues set forth in this Court's order granting reargument are no longer relevant in light of the subsequent amendments to SORNA I in Acts 10 and 29 of 2018³ (SORNA II), in particular, Subchapter I of SORNA II. In the alternative, Appellant asserts that his original plea agreement bars any obligation to register as a sex offender. For the reasons that follow, we vacate the trial court's order and remand the matter for further proceedings to consider the applicability of SORNA II.

The following background is relevant to this appeal. In October of 1987, Appellant participated in the rape and murder of a woman in York County. In May of 1995,⁴ Appellant entered a negotiated guilty plea to one count each of third-degree murder, rape, and criminal conspiracy.⁵ Pursuant to the plea agreement, the trial court imposed an aggregate term of fifteen to thirty years’ incarceration. Pennsylvania had no laws relating to registration, community notification, or counseling provisions for convicted sex offenders at the time of Appellant's plea or the date of the underlying offense.

In December of 2011, the Pennsylvania General Assembly enacted SORNA I, which retroactively applied registration requirements to any individual who was serving a sentence for a sexually violent offense on or after the effective date of the statute. The trial court subsequently informed Appellant, who was still incarcerated, that he was considered a Tier III offender and would be subject to lifetime registration requirements.

On August 13, 2014, Appellant filed a pro se motion to enforce his negotiated plea agreement and to enjoin any requirement that he register under the then-existing sex offender registration scheme, SORNA I. See Mot. to Enforce Plea Agreement, 8/13/14. Therein, Appellant argued that "his forced compliance with the registration requirement of SORNA [I] violates due process of law, fundamental fairness, and the negotiated plea agreement entered into between him and the Commonwealth." Id. at 2. Appellant argued that his negotiated plea agreement "did not require him to register as a sex offender [and] must be strictly enforced." Id. at 3.

On October 17, 2014, the trial court denied Appellant's motion. Trial Ct. Order, 10/17/14, at 1. The trial court explained that sex offender registration requirements "could not have been a consideration" in Appellant's decision to plead guilty, as Pennsylvania did not have any laws relating to sex offender registration at the time Appellant negotiated his plea deal. Id. Relying on Commonwealth v. Perez , 97 A.3d 747, 760 (Pa. Super. 2014), the trial court concluded that SORNA I applied retroactively to Appellant, who was still serving a sentence for rape. Id. After a panel of this Court affirmed the trial court's decision on appeal, Appellant filed a petition for allowance of appeal in the Pennsylvania Supreme Court.

On July 19, 2017, our Supreme Court decided Muniz . The Muniz Court held that SORNA I's registration requirements were "punitive in effect." Muniz , 164 A.3d at 1218. As such, the Court concluded that SORNA I violated ex post facto principles when applied to individuals who, like Appellant, committed a sexual offense before December 20, 2012, the effective date of SORNA I. See id. at 1223 ; see also Commonwealth v. Lippincott , 208 A.3d 143, 150 (Pa. Super. 2019) (en banc ).

On February 23, 2018, our Supreme Court, by per curiam order, granted Appellant's petition for allowance of appeal in the instant case, vacated this Court's decision affirming the trial court's denial of Appellant's motion to enforce his plea agreement, and remanded the matter to this Court for reconsideration in light of Muniz . See Commonwealth v. Moose , No. 526 MAL 2015, 182 A.3d 432 (Pa. Feb. 23, 2018).

Meanwhile, SORNA II took effect. SORNA II divides sex offender registrants into two distinct subchapters—Subchapter H and Subchapter I. Amended Subchapter H includes individuals who were convicted for an offense that occurred on or after December 20, 2012 and whose registration requirements had not yet expired. See 42 Pa.C.S. § 9799.11(c). Subchapter I includes individuals who were convicted for an offense that occurred "on or after April 22, 1996, but before December 20, 2012," or who were required to register under a former sexual offender registration law on or after April 22, 1996, but before December 20, 2012, and whose registration requirements had not yet expired. See 42 Pa.C.S. § 9799.52.

Following the remand from the Pennsylvania Supreme Court, a panel of this Court reversed the trial court's order denying relief. See Commonwealth v. Moose , 1897 MDA 2014, 2019 WL 167877 at 2 (Pa. Super. filed January 11, 2019). The majority found that this Court had jurisdiction over Appellant's motion outside of the PCRA because, like the Fernandez petitioners, Appellant sought to enforce the terms of a plea agreement. Id. at 4. Further, the majority reasoned that Appellant's position was comparable to two of the Fernandez petitioners, who pled guilty to offenses that did not require any period of registration at the time of their pleas. Id. Therefore, the majority concluded that it had jurisdiction to review Appellant's motion to enforce his plea agreement based on Fernandez . Id. at 6.

In reviewing Appellant's underlying challenge to SORNA I, the majority explained that "at the time of his offenses and his plea, Pennsylvania had not yet enacted Megan's Law legislation or, in particular, SORNA [I]." Id. at 10. The majority reasoned that requiring Appellant to register under SORNA I "would constitute a greater punishment than what would have been imposed under the law in effect at the time the crimes were committed. As such, retroactive application of these enhanced registration requirements runs afoul of constitutional ex post facto prohibitions." Id. at 10-11. Therefore, the majority concluded that Appellant was "not required to register under SORNA. Since [Appellant's] offenses occurred prior to any version of Megan's Law or SORNA, the post- Muniz legislation does not apply to him." Id. at 11.

The dissent responded that Appellant's motion was an untimely PCRA petition for the same reasons stated in Johnson . Id. at 1 (Bowes, J., dissenting). Specifically, the dissent emphasized that Appellant pled guilty before Pennsylvania had enacted any sex offender registration laws. Therefore, the dissent concluded that Appellant could not avoid sex offender registration based on his plea agreement because "the parties clearly could not structure the plea to accommodate law that did not exist." Id. at 4. This Court granted en banc reargument on May 6, 2019.

Thereafter, on July 21, 2020, our Supreme Court issued its decision in Commonwealth v. Lacombe , 234 A.3d 602 (Pa. 2020). Notably, the Lacombe Court rejected the Commonwealth's argument that the petitioner was "required to challenge his sex offender registration status within the confines of the PCRA." Id. at 617. The Lacombe Court also concluded that "Subchapter I is nonpunitive and does not violate the constitutional prohibition against ex post facto laws." Id. at 605-06.

Parties’ Arguments

With the foregoing background in mind, we summarize the parties’ arguments. In so doing, we note that the parties initially present a procedural dispute as to whether Appellant was required to raise his claims under the PCRA. On the merits, Appellant and the Commonwealth present two lines of arguments directed to (1) Appellant's challenge to SORNA I, as was presented to the trial court and (2) the application of SORNA II, which Appellant raised in his brief to this Court.

Appellant argues that the trial court had jurisdiction to consider his motion to enforce the plea agreement outside of the PCRA. Appellant's Brief at 48-51. Appellant also asserts that "retroactive application of Muniz is unnecessary for this Court to decide ... whether registration requirements can be enforced against [him] at this time." Appellant's Brief at 16. Appellant asserts that Muniz preceded the enactment of Subchapter I, which is the "sole conceivably applicable" sex offender registration scheme currently in effect. Id. Therefore, Appellant argues that this Court need only "address whether Subchapter I applies to Appellant and can be enforced against him. Only if a currently existing scheme actually applies and is enforceable does this Court need to go on and consider whether registration is permissible in light of Appellant's plea agreement." Id. at 17.

Appellant argues that Subchapter I does not apply to him, as "his triggering offenses occurred in 1987" and, because he has been incarcerated since his conviction, he was never required to register under a former version of the sex offender...