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Commonwealth v. Bundy

Superior Court of Pennsylvania

July 10, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LLOYD BUNDY, Appellant

Submitted March 24, 2014

Appeal from the PCRA Order of the Court of Common Pleas, Allegheny County, Criminal Division, No(s).: CP-02-CR-0010465-2008. Before BORKOWSKI, J.

Suzanne M. Swan, Public Defender and Victoria H. Vidt, Public Defender, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, JENKINS, and FITZGERALD,[*] JJ. OPINION BY FITZGERALD, J.

OPINION

Page 391

FITZGERALD, J.

Appellant, Lloyd Bundy, appeals from the order of the Allegheny County Court of Common Pleas denying his petition for writ of habeas corpus seeking relief from the retroactive application of Megan's Law's registration requirement. Appellant argues that (1) the trial court erred in deeming his petition for relief as one filed under the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-9546; and (2) the retroactive application of the Megan's Law's registration requirement would violate the terms of his original plea agreement. Appellant and the Commonwealth also filed a joint petition for permission to submit a post-submission communication with this Court identifying recent amendments to 42 Pa.C.S. § 9799.13 and requesting that the statute be considered in this appeal. See Pa.R.A.P. 2501(b). We grant the petition to submit a post-submission communication, hold that the recent codification of 42 Pa.C.S. § 9799.13(3.1) contains exceptions to the retroactive application of Megan's Law's registration requirement, and conclude that Appellant is not required to register as a sexual offender. Accordingly, we reverse the order of the trial court.

The facts and procedural history of this appeal are not in dispute. Appellant, on August 21, 2008, was charged with several offenses related to sexually assaulting his girlfriend's daughter. On May 12, 2009, Appellant entered negotiated nolo contendere pleas to indecent assault and corruption of minors.[1] The trial court, that same day, imposed the agreed upon sentence of an aggregate probationary term of four years. At the time of the plea hearing, the offense of indecent assault, under Section 3126(a)(8), was graded as a second-degree misdemeanor and was not subject to a registration requirement under Megan's Law. See 18 Pa.C.S. § 3126(b)(1); 42 Pa.C.S. § 9795.1(a)(1) (expired Dec. 20, 2012).

Appellant subsequently violated his probation and on December 8, 2011, appeared before the trial court for sentencing on the probation violation.[2] The trial court sentenced Appellant to three to six months'

Page 392

incarceration in alternative housing on the corruption of minors count and a consecutive two years' probation on the indecent assault count.

Twelve days after Appellant was sentenced on the probation violation, the Governor signed Act 111. See 2011 P.L. 446, No. 111, § 12 (enacted Dec. 20, 2011, effective Dec. 20, 2012). Act 111, in relevant part, included the offense of indecent assault under Section 3126(a)(8) as a " sexually violent offense." [3] See 42 Pa.C.S. § 9799.12. Moreover, a conviction under Section 3126(a)(8) was listed as a " Tier II sexual offense," which triggered a twenty-five year registration period. See 42 Pa.C.S. § § 9799.14(c)(1.2), 9799.15(a)(2). Act 111 also contained the following provision related to the applicability of Megan's Law's registration requirements.

The following individuals shall register with the Pennsylvania State Police as provided in sections 9799.15 (relating to period of registration), 9799.19 (relating to initial registration) and 9799.25 (relating to verification by sexual offenders and Pennsylvania State Police) and otherwise comply with the provisions of this subchapter:
* * *
(2) An individual who, on or after the effective date of this section, is an inmate in a State or county correctional institution of this Commonwealth, including a community corrections center or a community contract facility, is being supervised by the Pennsylvania Board of Probation and Parole or county probation or parole or is subject to a sentence of intermediate punishment and has been convicted of a sexually violent offense.

2011 P.L. 446, No. 111, § 12 (codified at 42 Pa.C.S. § 9799.13(2), subsequently amended by 2012 P.L. 880, No. 91, § 5 (July 5, 2012)) (emphases added). The above-stated registration and applicability provisions took effect on December 20, 2012, one year after Act 111 was enacted. Appellant, who was then serving the probationary term of the December 8, 2011 violation of probation sentence, was informed that he was subject to Megan's Law's registration provisions.

On February 19, 2013, Appellant filed the instant, counseled petition seeking relief from the registration requirement. Although Appellant filed the petition as one seeking a writ of habeas corpus, the trial court considered the petition under the PCRA. The court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition as frivolous and untimely. Appellant filed a response in which he alleged that his claim for relief was cognizable as a petition for a writ of habeas corpus . The court thereafter entered the underlying order dismissing Appellant's petition on May 13, 2013, and Appellant timely filed the notice giving rise to this appeal.

While this appeal was pending, the General Assembly, on March 12, 2014, passed House Bill 1985, which, in turn, was signed by the Governor on March 14, 2014. See 2014 P.L., No. 19, ยง 3, 7(1) (enacted Mar. 14, 2014, effective Dec. 20, 2012) (" Act 19" ). Act 19 again ...


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