J-S33026-19

                                   2019 PA Super 311

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PATRICK BRIAN KIRWAN                       :
                                               :
                       Appellant               :   No. 1789 MDA 2018

              Appeal from the Order Entered September 28, 2018
                 In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000188-2010


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

OPINION BY OTT, J.:                            FILED: OCTOBER 16, 2019

        Patrick Brian Kirwan appeals from the order entered September 28,

2018, in the Adams County Court of Common Pleas, dismissing his first

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Kirwan seeks relief from the judgment of sentence of an aggregate

term of nine months’ to 23 months’, 29 days’ imprisonment, and five years’

concurrent probation, imposed on September 20, 2012, following his guilty

plea to two counts of indecent assault of a minor under the age of 13.2

Specifically, Kirwan challenges the requirement he register as a sexually

violent predator (“SVP”) under the Sexual Offender Registration and



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1   See 42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. § 3126(a)(7).
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Notification Act (“SORNA”),3 for an offense committed prior to SORNA’s

effective date. Because we conclude Kirwan is ineligible for PCRA relief, we

affirm the order on appeal.

        The facts underlying Kirwan’s conviction are well-known to the parties,

and not relevant to the issues on appeal. In summary, Kirwan was charged

in April of 2010 with two counts each of aggravated indecent assault, indecent

assault, and corruption of minors,4 for his sexual assault of two minor victims,

one in January of 2002, and the other in August of 2005. On July 25, 2011,

Kirwan entered a guilty plea to two counts of aggravated indecent assault.

However, the trial court subsequently granted Kirwan’s pre-sentence motion

to withdraw his plea. Thereafter, on April 2, 2012, Kirwan entered an open

guilty plea to two counts of indecent assault under Section 3126(a)(7). The

trial court ordered an assessment by the Sexual Offenders Assessment Board

to determine if Kirwan met the criteria for classification as an SVP. 5 At the
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3   See 42 Pa.C.S. § 9799.10 et seq.

4   See 18 Pa.C.S. §§ 3125(a)(7), 3126(a)(7), and 6301(a)(1), respectively.

5 We note that Megan’s Law II was in effect at the time Kirwan committed his
first offense. See 42 Pa.C.S. §§ 9791-9799.7. Megan’s Law III was enacted
in 2004, effective August 1, 2005, and therefore, governed Kirwan’s second
offense. See 42 Pa.C.S. §§ 9791-9799.9. That statute remained in effect
until it expired and was replaced by SORNA, effective December 20, 2012.
See Act 152 of 2004; 42 Pa.C.S. §§ 9799.10-9799.42. Subsequently, a panel
of this Court in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017),
appeal granted, 190 A.3d 581 (Pa. 2018), determined that the SVP
assessment subsection in SORNA - 42 Pa.C.S. § 9799.24 - was
unconstitutional. In response, the Legislature amended SORNA in February



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September 20, 2012, sentencing hearing, the court determined that Kirwan

did meet the criteria for classification as an SVP, and sentenced him to a term

of nine months’ to 23 months’, 29 days’, imprisonment with five years’

concurrent probation, on one count of indecent assault, and a concurrent term

of five years’ probation on the second count of indecent assault. No direct

appeal was filed. On December 22, 2016, Kirwan’s probation was revoked as

a result of an admitted violation, and he was resentenced to two concurrent

terms of four months to nine months’ partial confinement. On September 29,

2017, Kirwan completed serving his sentence and was released from parole.

       On March 13, 2018, Kirwan filed the present, counseled PCRA petition,

in which he argues he is entitled to PCRA or habeas corpus relief based upon

this Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017), appeal granted, 190 A.3d 581 (Pa. 2018). In Butler, a panel of this

Court concluded that SORNA’s SVP assessment procedure, set forth in Section

9799.24, is unconstitutional because it permits a trial court to increase a

defendant’s     punishment        (i.e.,   impose   sexual   offender   registration

requirements), under a standard of clear and convincing evidence, rather than

beyond a reasonable doubt. See id. at 1217-1218. Kirwan requests the court

remove his SVP designation because: (1) he continues to be subjected to this

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and June of 2018. See Feb. 21, P.L. 27, No. 10, § 5.2, imd. effective, and
reenacted 2018, June 12, P.L. 140, No. 29, § 4, imd. effective. The June
amendment added Subchapter I to address those defendants, like Kirwan,
who were convicted of sexual offenses committed before the enactment of
SORNA.

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punishment based upon his registration requirements as an SVP, and (2) the

newly enacted law, Subchapter I, which now governs his registration

requirements, did not resolve the unconstitutionality of the SVP standard as

outlined in Butler. On April 27, 2018, Kirwan filed a motion to amend his

petition, asserting the newly enacted law, Subchapter I, also subjects him to

retroactive punishment in violation of Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017).6

       On May 21, 2018, the PCRA court directed Kirwan to file a brief

addressing the timeliness of his petition. Kirwan complied with the court’s

directive, and on September 28, 2018, the PCRA court entered an order

denying relief.7 This timely appeal follows.8


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6 In Muniz, the Pennsylvania Supreme Court held SORNA’s registration
provisions constitute punishment, and, therefore, the retroactive application
of those provisions to offenses committed prior to SORNA’s effective date
(December 20, 2012), violates the ex post facto clauses of the federal and
Pennsylvania constitutions. Muniz, supra, 164 A.3d at 1193.

7 We note that although the PCRA court did not comply with the mandate of
Pa.R.Crim.P. 907, and notify Kirwan of its intent to dismiss his petition without
first conducting an evidentiary hearing, Kirwan has not raised the lack of Rule
907 notice on appeal. “The failure to challenge the absence of a Rule 907
notice constitutes waiver.” Commonwealth v. Taylor, 65 A.3d 462, 468
(Pa. Super. 2013). See also Commonwealth v. Zeigler, 148 A.3d 849, 852
n.2 (Pa. Super. 2016) (same).

8 On October 26, 2018, the PCRA court ordered Kirwan to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Kirwan complied with the court’s directive, and filed a concise statement on
November 16, 2018.



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       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined

that Kirwan was ineligible for PCRA relief because he is no longer serving a

sentence of imprisonment, probation, or parole for his crimes.9 See PCRA

Court Opinion, 9/28/2018, at 2-3. We agree.

       The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.” 42 Pa.C.S. § 9542. In order to be eligible for relief under

the Act, a petitioner must, initially, plead and prove by a preponderance of

the evidence:

       That the petitioner has been convicted of a crime under the laws
       of this Commonwealth and is at the time relief is granted:

          (i) currently serving a sentence of imprisonment, probation
          or parole for the crime;

          (ii) awaiting execution of a sentence of death for the crime;

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9  Alternatively, the PCRA court determined Kirwan’s petition was untimely
filed, and Kirwan failed to prove the applicability of any of the time for filing
exceptions. See PCRA Court Opinion, 9/28/2018, at 4-6. We recognize that
the timeliness of a petition implicates the court’s jurisdiction, while the
requirements of Section 9543 “establish only a petitioner’s eligibility for post-
conviction relief, and do not implicate the PCRA court’s jurisdiction to act on a
petition.” Commonwealth v. Fields, 197 A.3d 1217, 1223 (Pa. Super. 2018)
(en banc), appeal denied, 206 A.3d 1025 (Pa. 2019). Nevertheless, because
we agree Kirwan is statutorily ineligible for relief, we decline to address the
timeliness of his petition.


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            (iii) serving a sentence which must expire before the person
            may commence serving the disputed sentence; or

            (iv) has completed a sentence of imprisonment, probation
            or parole for the crime and is seeking relief based upon DNA
            evidence obtained under section 9543.1(d) (relating to
            postconviction DNA testing).

42 Pa.C.S. § 9543(a)(1)(i)-(iv).

         Here, the PCRA court concluded Kirwan was unable to meet the eligibility

requirements in Subsection 9543(a)(1) because he has served his sentence in

full. See PCRA Court Opinion, 9/28/2018, at 2. While Kirwan does not dispute

the fact that he was released from parole, he contends his registration

requirements under SORNA II, “as a direct result of [his] criminal conviction

for a sexual offense, undoubtedly restrict[] his liberty interests to such a

substantial degree that it must fall under the jurisdiction of 42 Pa.C.S.

9543(a)(1) as a ‘sentence of imprisonment, probation, or parole for the

crime.’” Kirwan’s Brief at 9. He insists the Pennsylvania Supreme Court, in

Muniz, recognized “SORNA’s registration requirements and probation are

essentially the same in scope and consequence.” Id. at 10. Consequently,

Kirwan asserts SORNA “falls squarely within the plain meaning of ‘probation,’

… [and] so long as [he] is subject to SORNA II’s new registration

requirements, [he] is ‘eligible’ for relief under 42 Pa.C.S. 9543(a)[(1)](i).” Id.

at 13.

         The issue before us involves an interpretation of the PCRA’s statutory

eligibility requirements. As the Pennsylvania Supreme Court has explained:

         It is well established that when the language of a statute is clear
         and unambiguous, it must be given effect in accordance with its

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      plain and obvious meaning. Commonwealth v. Corporan, 531
      Pa. 348, 351, 613 A.2d 530, 531 (1992); Commonwealth v.
      Kriston, 527 Pa. 90, 94, 588 A.2d 898, 899 (1991);
      Commonwealth v. Bursick, 526 Pa. 6, 10, 584 A.2d 291, 293
      (1990); Commonwealth v. Bell, 512 Pa. 334, 339–40, 516 A.2d
      1172, 1175 (1986); Statutory Construction Act of 1972, 1 Pa.C.S.
      § 1921(b).

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).

      In Ahlborn, the Supreme Court considered the very provision at issue

herein.   The petitioner had pled guilty to DUI, and completed serving his

sentence before his PCRA hearing. The court dismissed his petition, finding

he was no longer eligible for relief. See id. at 719. The petitioner argued

that although he was released from custody, “he will continue to suffer

consequences of his convictions[,]” namely the suspension of his driver’s

license   and   “the    possibility   of    further   sentencing   and   recidivist

enhancements,” such that the legislature “would not have intended that

review under the PCRA would be unobtainable.” Id. at 720. The Supreme

Court, however, rejected this claim stating: “The search for legislative intent

is at an end, however, where the language used by the legislature is clear.”

Id.

      We apply the same reasoning here. Pertinent to the facts before us, the

PCRA restricts relief to those petitioners “currently serving a sentence of

imprisonment, probation or parole for the crime[.]”                42 Pa.C.S. §

9543(a)(1)(i) (emphasis supplied).         Under a plain reading of the statute,

Kirwan is not currently imprisoned, on probation or on parole, and is,

therefore, ineligible for PCRA relief.


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        Furthermore, the fact that the Supreme Court in Muniz declared that

SORNA’s registration requirements constituted punishment, does not affect

our decision. While the Muniz Court found the registration requirements of

SORNA were “akin to probation” for purposes of determining whether the

requirements were punitive, Muniz, supra, 164 A.3d at 1213, the Court did

not determine the registration requirements constitute a “sentence of …

probation”10 for purposes of PCRA eligibility.           The language of the statute

clearly states that only the sanctions of imprisonment, probation and parole

are “sentences” for eligibility purposes. See Commonwealth v. Kistler, ___

A.3d ___, 2019 WL 4273907 (Pa. Super. filed 9/9/2019) (unpublished

memorandum at *4 n.11).11

        Accordingly, because we conclude Kirwan is not eligible for PCRA relief

even     if   he   could   demonstrate         an   exception   to   the   time-for-filing

requirements,12 we affirm the order on appeal.13


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10   See 42 Pa.C.S. § 9543(a)(1)(i).

11 Although we recognize the Kistler decision was not a published opinion, we
may cite to non-precedential decisions filed after May 1, 2019, “for their
persuasive value.” Pa.R.A.P. 126(b)(2). We note the Kislter panel came to
the same conclusion as we do here, i.e., that the petitioner completed serving
his sentence. However, that panel also determined the petitioner did not meet
any of the timing exceptions in Subsection 9454(b).

12   See 42 Pa.C.S. § 9545.

13We note the constitutionality of SORNA II’s Subchapter I is currently on
appeal before the Pennsylvania Supreme Court. See Commonwealth v.
Lacombe, 35 MAP 2018.

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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2019




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