J-S07030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    EDWARD DONAHUE                             :
                                               :
                       Appellant               :         No. 253 EDA 2019

         Appeal from the Judgment of Sentence Entered March 4, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000667-2014


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                            Filed: April 15, 2020

        Appellant, Edward Donahue, appeals nunc pro tunc from the judgment

of sentence entered in the Philadelphia County Court of Common Pleas,

following his negotiated guilty plea to involuntary deviate sexual intercourse

(“IDSI”) and endangering the welfare of a child (“EWOC”).1 We vacate in part

and remand with instructions.

        The relevant facts and procedural history of this case are as follows.

Between August 2000 and December 2011, Appellant sexually abused Victim,

who was a minor throughout that time frame. On March 4, 2014, Appellant

entered a negotiated guilty plea to one count each of IDSI and EWOC. That


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3123(a)(1) and 4304(a)(1), respectively.
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same day, the court sentenced Appellant to the negotiated aggregate term of

eight (8) to sixteen (16) years’ incarceration, plus four (4) years’ probation,

and lifetime registration and reporting as a “Tier III” sex offender under

“Megan’s Law.”2 Appellant filed no post-sentence motions or direct appeal.

       Subsequently, Appellant filed pro se his first petition under the Post

Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. In the petition,

Appellant asserted plea counsel did not comply with his requests to petition to

withdraw his guilty plea and file a notice of appeal from the judgment of

sentence. The PCRA court appointed counsel, who filed an amended PCRA

petition, expressly seeking reinstatement of Appellant’s post-sentence motion

and direct appeal rights nunc pro tunc. On January 18, 2019, the PCRA court

conducted a hearing on Appellant’s petition and restored only Appellant’s

direct appeal rights nunc pro tunc, without also reinstating his post-sentence

motion rights nunc pro tunc. Appellant filed a timely notice of appeal nunc

pro tunc on January 20, 2019. The court ordered Appellant on January 23,

2019, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied on January 29, 2019.

       Appellant raises the following issues for our review:

          DID [PLEA] COUNSEL RENDER INEFFECTIVE ASSISTANCE
          OF COUNSEL FOR THE FOLLOWING:

              A.     FAILING       TO     SUBPOENA   [APPELLANT]’S
____________________________________________


2 The Commonwealth waived the Sexual Offender Assessment Board
evaluation of whether Appellant met the criteria of a sexually violent predator.

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             MEDICAL RECORDS PRIOR TO HAVING HIM ENTER
             INTO A GUILTY PLEA, WHEN HE CLEARLY SUFFERED
             FROM   SEVERE    MENTAL   INCAPACITY  WHICH
             AFFECTED HIS ABILITY TO UNDERSTAND WHAT HE
             WAS DOING, RENDERING THE PLEA UNKNOWING
             AND INVOLUNTARY[?]

             B.   FAILING TO OBTAIN AND/OR REVIEW ALL
             DISCOVERY WITH [APPELLANT] PRIOR TO ENTERING
             A PLEA AT THE PRETRIAL STAGE, SHORTLY AFTER
             THE PRELIMINARY HEARING?

         SHOULD THE GUILTY PLEA BE VACATED AND THE MATTER
         SET DOWN FOR TRIAL AS [APPELLANT] DID NOT
         UNDERSTAND THE CONTENTS OF THE PLEA, THE
         RAMIFICATIONS OF SAME NOR HIS AVAILABLE OPTIONS[?]

(Appellant’s Brief at 4).

      In his first issue, Appellant argues plea counsel rendered ineffective

assistance when, prior to the entry of Appellant’s negotiated guilty plea,

counsel failed to: (i) subpoena Appellant’s medical records; and (ii) obtain and

review with Appellant all discovery. Appellant submits he suffers from mental

illness/incapacity, which affected his ability to understand the terms of his

guilty plea and for which he was taking medication at the time of the plea.

Appellant contends plea counsel’s inaction resulted in Appellant entering an

unknowing, unintelligent, and involuntary guilty plea.       Appellant concludes

this Court should vacate his judgment of sentence, and remand to allow

Appellant to withdraw his guilty plea. For the following reasons, Appellant is

not entitled to relief at this juncture.

      “[A]s a general rule, a petitioner should wait to raise claims of ineffective

assistance of trial counsel until collateral review.” Commonwealth v. Grant,

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572 Pa. 48, 67, 813 A.2d 726, 738 (2002). Our Supreme Court has recognized

two very limited exceptions to the general rule: (1) in extraordinary

circumstances where claims of trial counsel’s ineffectiveness are apparent

from the record and immediate consideration best serves the interests of

justice and/or; (2) where there is good cause shown and review of the claim

is    preceded   by    a    waiver   of   the   right    to   seek   collateral   review.

Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64

(2013). Ineffectiveness claims may be raised on direct appeal only if: (1) the

appellant raised his claim(s) in a post-sentence motion; (2) an evidentiary

hearing was held on the claim(s); and (3) a record devoted to the claim(s)

has been developed. Commonwealth v. Leverette, 911 A.2d 998, 1004

(Pa.Super. 2006).

       Instantly, Appellant’s claims of plea counsel’s alleged ineffectiveness are

premature, as the record confirms that Appellant did not develop these claims

in the trial court. Moreover, Appellant did not make a knowing, intelligent,

and voluntary waiver of PCRA review.             Thus, we decline to entertain his

ineffectiveness complaints on this direct appeal, and defer them instead for a

review in a timely PCRA petition. See Holmes, supra; Grant, supra.

       In his second issue, Appellant argues he did not understand the terms

and    ramifications   of    his   negotiated   guilty    plea   due   to   his   mental

illness/incapacity. Appellant avers he entered an unknowing, unintelligent,

and involuntary guilty plea. Appellant concludes this Court should vacate his


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negotiated guilty plea and remand for trial. We agree some limited relief is

due.

       Preliminarily, in general, a defendant must preserve a challenge to the

validity of his guilty plea by objecting during the plea colloquy or raising the

claim in a timely filed post-sentence motion. Commonwealth v. Lincoln, 72

A.3d 606 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).

“Failure to employ either measure results in waiver.” Id. at 610. See also

Pa.R.Crim.P.    720(A)(1),   (B)(1)(a)(i)   (stating   post-sentence    motion

challenging validity of guilty plea shall be filed no later than 10 days after

imposition of sentence).

       Where the PCRA court reinstates direct appeal rights nunc pro tunc, the

defendant is not automatically entitled to reinstatement of his post-sentence

rights nunc pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977

A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s

post-sentence rights nunc pro tunc if the defendant pleads and proves he was

deprived of the right to file and litigate post-sentence motions as a result of

ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at 1094 n.9 (noting

counsel may be deemed ineffective for failing to file post-sentence motions

when claim requires preservation in trial court for purposes of appellate

review).   See also Commonwealth v. Rivera, 154 A.3d 370 (Pa.Super.

2017) (en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072 (2017) (stating

PCRA court properly restored appellant’s post-sentencing rights nunc pro tunc


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because one issue appellant wanted to raise required preservation in trial

court).

      Instantly, in his PCRA petitions, Appellant expressly stated he wanted

to challenge the validity of his guilty plea, which required preservation in the

trial court.   See Lincoln, supra.    Consequently, restoration of Appellant’s

direct appeal rights nunc pro tunc without restoration of his post-sentence

motion rights nunc pro tunc was essentially an empty gesture. In light of

Appellant’s stated intent to challenge the validity of his guilty plea, the PCRA

court should have restored Appellant’s post-sentencing rights as well. See

Liston, supra; Rivera, supra. Therefore, we remand to the trial court to

reinstate Appellant’s post-sentence and direct appeal rights nunc pro tunc, so

Appellant will have an opportunity to litigate in post-sentence motions his

challenge regarding the validity of his guilty plea.

      Further, our review of the record shows that the written sentencing

order in this case states: “Megan’s Law Tier III Offender—Lifetime registration

with the Pennsylvania State Police.” (See Order of Sentence, 3/4/14, at 2.)

This directive is inherently inconsistent, because Megan’s Law has no “tiers”

but does require lifetime registration for Appellant’s conviction for IDSI. On

the other hand, the Sex Offender Registration and Notification Act (“SORNA”)

has a Tier III lifetime registration with additional requirements, which are not

included in Megan’s Law. To the extent Appellant’s registration requirements

implicate SORNA, our Supreme Court has declared SORNA unconstitutional ex


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post facto law when applied retroactively to those sex offenders convicted of

applicable crimes before SORNA’s effective date and subjected to increased

registration requirements under SORNA after its passage. Commonwealth

v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___,

138 S.Ct. 925, 200 L.Ed.2d 213 (2018). Consequently, we elect to review the

legality of Appellant’s sentence sua sponte. See Commonwealth v. Randal,

837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges to illegal

sentence may be raised by this Court sua sponte, assuming jurisdiction is

proper; illegal sentence must be vacated).

     Importantly:

        The Muniz court determined SORNA’s purpose was punitive
        in effect, despite the General Assembly’s stated civil
        remedial purpose. SORNA also violates the ex post facto
        clause of the Pennsylvania Constitution because it places a
        unique burden on the right to reputation and undermines
        the finality of sentences by demanding more severe
        registration requirements. The effective date of SORNA,
        December 20, 2012, controls for purposes of an ex post
        facto analysis.

                                 *    *      *

        Following Muniz…, the Pennsylvania General Assembly
        enacted legislation to amend SORNA. Act 10 amended
        several provisions of SORNA, and also added several new
        sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-
        9799.75. In addition, the Governor of Pennsylvania signed
        new legislation striking the Act 10 amendments and
        reenacting several SORNA provisions, effective June 12,
        2018. Through Act 10, as amended in Act 29, the General
        Assembly created Subchapter I, which addresses sexual
        offenders who committed an offense on or after April 22,
        1996, but before December 20, 2012.        Subchapter I
        contains less stringent reporting requirements than

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            Subchapter H, which applies to offenders who committed an
            offense on or after December 20, 2012.

Commonwealth v. Alston, 212 A.3d. 526, 528-29 (Pa.Super. 2019)

(footnotes and some internal citations omitted). See also Commonwealth

v. Wood, 208 A.3d 131, 140 (Pa.Super. 2019) (en banc) (holding effective

date   of    SORNA    controls   for    purposes   of   ex   post   facto   analysis);

Commonwealth v. Lippincott, 208 A.3d 143 (Pa.Super. 2019) (en banc)

(stating same).       Additionally, this Court recently decided the internet

dissemination provision of Subchapter I is unconstitutional because it violates

the federal ex post facto clause. Commonwealth v. Moore, 222 A.3d 16

(Pa.Super. 2019).

       Instantly, Appellant committed the sex offenses at issue between

August 2000 and December 2011, which pre-dates the effective date of

SORNA.       See Muniz, supra.         Thus, Appellant is subject to the reporting

requirements of Subchapter I, with the exception of the internet dissemination

provision. See Moore, supra; Alston, supra. Accordingly, we vacate only

that portion of the judgment of sentence regarding Appellant’s sex offender

registration and reporting requirements, and remand for the trial court to

impose the applicable Subchapter I requirements.             Upon remand, the trial

court shall also restore Appellant’s post-sentence and direct appeal rights nunc

pro tunc.

       Sex offender registration and reporting requirements vacated; case

remanded with instructions. Jurisdiction is relinquished.

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     Judge Strassburger joins this memorandum.

     Judge Nichols concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/20




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