Retroactivity Confusion

The Pennsylvania Superior Court, in recent months, has issued two separate PCRA opinions concerning sex offender registration, each addressing retroactivity. In 2017, the Pennsylvania Supreme Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), held that the Sexual Offender Registration and Notification Act ("SORNA") was an unconstitutional ex post facto law. It declared that registration requirements, frequently more onerous than standard probation conditions, was not a collateral civil consequence of a conviction but a punitive measure that was criminal punishment.

In Commonwealth v. Rivera-Figueroa, 174 A.3d 674 (Pa. Super. 2017), the Superior Court, in a timely PCRA matter, concluded that Muniz was a substantive new constitutional rule of law that applied retroactively. In contrast, in Commonwealth v. Murphy, 2018 PA Super 35, in a facially untimely PCRA case, the Superior Court ruled that the individual therein was not entitled to relief based on Muniz, because the Pennsylvania Supreme Court in Muniz had not explicitly stated that the decision was to apply retroactively. This ruling is nonsensical in the context of the Muniz decision because the ruling that SORNA as punishment was ex post facto necessarily must apply retroactively as the ruling is declaring that the statute in question was unconstitutionally retroactive and is substantive by nature--that is, it eliminates retroactive punishment for an entire class of offenders. While it is true that the PCRA timeliness provision mandates that the Court announcing a new constitutional rule hold that it applies retroactively, there is no requirement that it use any magic words. Rather, the key question should be whether the ruling is substantive or a watershed procedural rule. If so, then necessarily the holding is retroactive.

The Murphy rationale is particularly lacking in logic where a person now is subject to an illegal ex post facto registration requirement if they were convicted in 1999 or 2009 or at anytime before the enactment of SORNA, even if at the time of their conviction they were not required to register or register for the same period of time, and could not timely file a direct appeal and/or timely file a PCRA petition challenging SORNA. For those individuals convicted before SORNA went into effect, and whose probation or incarceration had ended, most have been able to achieve relief outside of the PCRA. It remains to be seen if the courts will now funnel all SORNA challenges into the PCRA, even those no longer serving sentences who are not otherwise eligible for PCRA relief.

The retroactivity doctrine was established, in part, to ensure that similarly situated individuals were treated the same under the law. Murphy ignores that principle. Now, it appears that only those who were convicted within a time frame sufficient to allow timely PCRA review, can achieve relief from unconstitutional registration under SORNA. For those defendants subject to SORNA who can not timely file a PCRA petition or who are not serving a sentence (other than registration), coram nobis may be another avenue of relief.