J-S06042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WESLEY MORGAN POLLARD, SR.,

                        Appellant                   No. 2153 MDA 2014


              Appeal from the PCRA Order November 6, 2014
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-DR-0003717-2011


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED JANUARY 28, 2016

      This is an appeal from the order entered in the Court of Common Pleas

of Luzerne County denying Appellant’s first petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.      Upon review, we

affirm.

      The relevant facts and procedural history are as follows:

             In 1990, Appellant was convicted of involuntary deviate
      sexual intercourse, an offense requiring lifetime registration
      under Megan’s Law. On June 30, 2003, Appellant registered as a
      Megan’s Law offender with the Pennsylvania State Police. On
      that date, Appellant received a written notification of his
      registration obligations, which Appellant signed. Every year
      thereafter, Appellant registered his address with the
      Pennsylvania State Police.      On May 11, 2011, Appellant
      registered his address at 286 Hazel Street in Wilkes-Barre. On
      August 31, 2011, Trooper Martin Connors, the Megan’s Law field
      liaison and custodian of records for the Pennsylvania State
      Police, received a call from a probation officer who informed
      Trooper Connors that he had gone to Appellant’s registered

*Former Justice specially assigned to the Superior Court.
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        address at 286 Hazel Street, and upon speaking with the owner
        of the residence, learned that Appellant was not living there.
        Trooper Connors conducted his own investigation and verified
        that Appellant was not residing at 286 Hazel Street. Appellant
        was subsequently arrested and charged with failure to provide
        accurate information in compliance with Megan’s Law [III’s]
        registration requirements.[1]
              Following a jury trial on July 23, 2012, Appellant was found
        guilty of the aforementioned crime. On September 20, 2012,
        following a hearing, the trial court sentenced Appellant to a term
        of imprisonment of ten to twenty years. Appellant filed a timely
        notice of appeal.

Commonwealth v. Pollard, No. 1912 MDA 2012, 2 (Pa. Super. filed

5/22/13) (unpublished memorandum) (footnote added).

        On direct appeal, Appellant’s counsel filed a petition to withdraw his

representation, as well as an Anders2 brief in which he raised the sole claim

of whether the evidence was sufficient to support Appellant’s conviction.

Upon independent review of the record, and finding the evidence was

sufficient, this Court found Appellant’s appeal to be frivolous, thus permitting

counsel to withdraw and affirming the judgment of sentence.            Pollard,

supra.

        Thereafter, on December 16, 2013, the Supreme Court ruled that

Megan’s Law III was unconstitutional because Act 152 of 2004 (“Act 152”),

____________________________________________


1
  Appellant was convicted under 18 Pa.C.S.A. § 4915(a)(3). Effective
December 20, 2012, 18 Pa.C.S.A. § 4915 expired and was replaced by 18
Pa.C.S.A. § 4915.1. Based on Appellant’s offense date of May 11, 2011, the
former section, 18 Pa.C.S.A. § 4915, applied to Appellant’s case.
2
    Anders v. California, 386 U.S. 738 (1967).



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which included the provisions of Megan’s Law III under which Appellant was

convicted, violated the Single Subject Rule of Article III, Section 3, of the

Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d 603 (Pa.

2013). However, the Court noted:

        [A]s we have observed previously in striking down other
        legislation which violated Article III, Section 3, “nothing . . .
        precludes the General Assembly from enacting similar provisions
        in a manner consistent with the Constitution.” [S]ince we find
        merit in the General Assembly’s suggestion that our decision
        abrogating the entirety of Act 152 will have a significant impact
        on a wide variety of individuals and entities which have ordered
        their affairs in reliance on its provisions, we will stay our
        decision, as we have done under similar circumstances, in order
        to provide a reasonable amount of time for the General
        Assembly to consider appropriate remedial measures, or to allow
        for a smooth transition period.

Id. at 616 (quotation and citation omitted).

        In fact, despite striking Act 152 in its entirety, the Supreme Court

held:

        We stress, however, that this action should, in no way, be read
        as a repudiation of the merits of the various legislative
        components of Act 152 such as Megan’s Law III, which serves a
        vital purpose in protecting our Commonwealth’s citizens and
        children, in particular, from victimization by sexual predators.

Id. at 615.

        The Supreme Court stayed its decision for 90 days, by which time the

Legislature passed Act 19 of 2014 (“Act 19”) with a retroactive effective date

of December 20, 2012.       Act 19 amended the sexual offender registration

requirements imposed by 42 Pa.C.S.A. § 9799.10 et seq., also known as the

Sexual Offender Registration and Notification Act (“SORNA”) or Megan’s Law

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IV, and included a declaration that “[i]t is the intention of the General

Assembly   to    address   the    Pennsylvania    Supreme    Court’s     decision    in

Commonwealth v. Neiman [ ] by amending this subchapter in the act of

(March 14, 2014, P.L. 41, NO. 19).” 42 Pa.C.S.A. § 9799.11(b)(3).

     On May 15, 2014, Appellant filed a timely pro se PCRA petition alleging

trial counsel was ineffective, and following the appointment of counsel,

Appellant filed a counseled supplemental PCRA petition.            In his counseled

supplemental petition, Appellant averred that, since Megan’s Law III was

declared unconstitutional by Neiman, he is serving an illegal sentence, and

therefore, his conviction and sentence must be vacated.

     Following a hearing, by order and opinion filed on November 6, 2014,

the PCRA court denied Appellant relief under the PCRA.             Specifically, as it

relates to Appellant’s argument that his conviction and sentence should be

vacated under Neiman, the PCRA court disagreed, finding no merit to the

claim.   This timely appeal followed, and all Pa.R.A.P. 1925 requirements

have been met.

     On    appeal,    Appellant     presents     the   following    issue   for     our

consideration:

     Did the PCRA court err in denying Appellant’s petition for Post-
     Conviction Relief where [Appellant] is currently serving an illegal
     sentence and is incarcerated in violation of the due process
     clauses of both the Constitution of the United States and the
     Constitution of the Commonwealth of Pennsylvania?




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Appellant’s Brief at 5.3

       In essence, Appellant argues that the Megan’s Law III provisions under

which he was sentenced are void ab initio, rendering his sentence

unconstitutional because it is as if the offense for which he was convicted

never existed. Appellant does not dispute that the reporting requirements of

Megan’s Law III were in effect when he was tried and sentenced, as well as

during the entirety of his direct appeal.        However, he claims that the

Supreme Court’s subsequent holding in Neiman striking Megan’s Law III as

unconstitutional should be applied retroactively on collateral review and the

Legislature’s enactment of Act 19 should be disregarded.

       In so arguing, Appellant relies primarily on this Court’s unpublished

memorandum decision in Commonwealth v. Myers, No. 1295 MDA 2014

(Pa. Super. filed 7/31/15) (unpublished memorandum).         However, we find

Myers to be unavailing for several reasons.          First, as an unpublished

memorandum decision, Myers has no precedential value and, thus, we are
____________________________________________


3
  This Court has held:
       Our standard of review of the denial of a PCRA petition is limited
       to examining whether the court’s determination is supported by
       the evidence of record and free of legal error. This Court grants
       great deference to the findings of the PCRA court if the record
       contains any support for those findings.
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(citations omitted). “Of course, if the issue pertains to a question of law, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quotation
marks and quotation omitted).



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not bound by its dictates. Commonwealth v. Swinson, 626 A.2d 627 (Pa.

Super. 1993).    Additionally, Appellant’s reliance on Myers is misplaced.

Unlike the case before us, the appellant in Myers had not yet been

sentenced in the trial court when the relevant statutes were declared

unconstitutional, and in vacating the appellant’s sentence, this Court applied

Neiman on direct appeal. Thus, the issue of whether Neiman should apply

retroactively on collateral review was not before this Court in Myers, and

accordingly, Myers is not dispositive. See Commonwealth v. Riggle, 119

A.3d 1058 (Pa. Super. 2015) (distinguishing the application of opinions to

direct appeals as opposed to retroactively in collateral appeals).

      Appellant next argues that, under the framework set forth by the U.S.

Supreme Court in Teague v. Lane, 489 U.S. 288 (1989) (plurality), which

was subsequently adopted by a majority of our Supreme Court in

Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), Neiman applies

retroactively on collateral review. See Appellant’s Brief at 14-16.

      This Court recently recognized that “[t]he seminal test in determining

whether   a   constitutional   rule   warrants   retroactive   application   during

collateral review was delineated in Teague[.]”       Riggle, 119 A.3d at 1065

(citations omitted).

      “Under the Teague framework, an old rule applies both on direct
      and collateral review, but a new rule is generally applicable only
      to cases that are still on direct review. A new rule applies
      retroactively in a collateral proceeding only if (1) the rule is
      substantive or (2) the rule is a ‘watershed rule of criminal


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       procedure’ implicating the fundamental fairness and accuracy of
       the criminal proceeding.”

Riggle, 119 A.3d at 1065 (quoting Whorton v. Bockting, 549 U.S. 406,

416 (2007)). Generally “a case announces a new rule if the result was not

dictated by precedent existing at the time the defendant’s conviction became

final.” Teague, 489 U.S. at 301. Appellant urges us to consider Neiman a

new rule to be applied retroactively in a collateral proceeding under the

substantive rule exception.4 See Appellant’s Brief at 14-15.

       Assuming, arguendo, Appellant is correct that Neiman, which struck

down Megan’s Law III as unconstitutional, announced a new substantive

rule, see Riggle, 119 A.3d at 1066 (“Substantive rules are those that

decriminalize conduct or prohibit punishment against a class of persons.”)

(citation omitted)), we disagree that Appellant is entitled to collateral relief.

As the PCRA court noted, the Supreme Court in Neiman did more than hold

that Act 152, including Megan’s Law III, was unconstitutional.        The Court

additionally stayed its decision and abrogation of Act 152 for 90 days to

provide the General Assembly with an opportunity to take remedial

measures to address the manner in which the legislations were enacted. In

doing so, the Court, as indicated supra, proclaimed that its action in striking

down Act 152 “should, in no way, be read as a repudiation of the merits of

____________________________________________


4
  Appellant has not advanced an argument that Neiman pertained to a
“watershed rule of criminal procedure.”



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the various legislative components of Act 152 such as Megan’s Law III,

which serves a vital purpose in protecting our Commonwealth’s citizens and

children, in particular, from victimization by sexual predators.” Neiman, 84

A.3d at 615. On March 14, 2014, the Legislature responded and passed Act

19, with a retroactive effective date of December 20, 2012.           With the

enactment of Act 19, the Legislature addressed Neiman’s concerns by

retroactively amending SORNA and again criminalizing the conduct for which

Appellant was convicted. Therefore, Appellant is not entitled to benefit from

any new rule announced in Neiman since his sentence was not illegal under

the law existing at the time of his conviction, sentence, and direct appeal.

      Accordingly, we reject Appellant’s suggestion that he is entitled to

collateral relief pursuant to the Supreme Court’s decision in Neiman, and

we affirm the denial of PCRA relief.

      Affirmed.

      Judge Panella joins the memorandum.

      Judge Mundy concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2016




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