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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TUAN ANH LE,

                            Appellant                No. 1098 MDA 2015


                   Appeal from the PCRA Order May 27, 2015
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0001638-2013


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 29, 2015

        Appellant, Tuan Anh Le, appeals from the order denying his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        We take the following facts from our review of the certified record. On

August 30, 2013, the Commonwealth filed an information charging Appellant

with failure to register or to provide accurate information pursuant to sexual

offender registration requirements of Megan’s Law III.1

        On November 18, 2013, Appellant entered a negotiated guilty plea to

the charges.      The same day, pursuant to the agreement, the trial court
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 4915(a)(1) and (a)(3), respectively.
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sentenced him to an aggregate term of not less than two nor more than four

years’ incarceration. No direct appeal was filed.

        Appellant filed a timely pro se PCRA petition on July 22, 2014.

Appointed counsel filed an amended petition on September 11, 2014, which

the court denied on May 27, 2015 after a hearing.                 Appellant timely

appealed.    The PCRA court did not order Appellant to file a Rule 1925(b)

statement of errors alleged on appeal, but it filed a Rule 1925(a) opinion on

July 9, 2015 in which it relied on its May 27, 2015 opinion. See Pa.R.A.P.

1925.

        Appellant raises one issue for our review:

              In a PCRA action filed within one year of [Appellant’s]
        conviction, is not [Appellant] entitled to an order vacating the
        sentence and discharging [him] from further prosecution under
        this docket number because the Pennsylvania Supreme Court
        after the date of [Appellant’s] conviction struck down as
        [un]constitutional the offense statute (18 Pa.C.S.[A.] §[]4915)
        [(Megan’s Law III)] under which [Appellant] was convicted?

(Appellant’s Brief, at 4) (most capitalization omitted).

        “Our standard of review of the denial of a PCRA petition is limited to

examining     whether    the   evidence     of   record    supports    the    court’s

determination     and   whether    its    decision   is   free   of   legal   error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015)

(citation 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.”




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Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (internal

quotation marks and citation omitted).

       The PCRA provides, in pertinent part:

       To be eligible for relief . . . the petitioner must plead and prove
       by a preponderance of the evidence . . . [t]hat the conviction or
       sentence resulted from . . . [a] violation of the Constitution of
       this Commonwealth or the Constitution or laws of the United
       States which, in the circumstances of the particular case, so
       undermined the truth-determining process that no reliable
       adjudication of guilt or innocence could have taken place.

42 Pa.C.S.A. § 9543(a)(2)(i).

       Here, Appellant claims that Megan’s Law III, under which he was

sentenced, is void ab initio, resulting in an unconstitutional sentence

because it is as if the offense for which he was convicted never existed.

(See Appellant’s Brief, at 9-18).              Appellant premises his issue on the

Pennsylvania Supreme Court case, Commonwealth v. Neiman, 84 A.3d

603 (Pa. 2013).       (See id.).     Specifically, Appellant claims that, “[t]o the

extent that [his] issue . . . must be analyzed in terms of the retroactive

application of Neiman to a case on collateral review,[2] Neiman is clearly

retroactive because it handed down a new substantive rule.”            (Id. at 15)

(emphases omitted). Appellant’s claim does not merit relief.
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2
   Appellant first maintains that, because his PCRA petition was timely,
Neiman should be applied as if this were a direct appeal. (See Appellant’s
Brief, at 13-15).    However, he provides absolutely no legal authority
supporting the proposition that, where a PCRA petition is timely filed, it is to
be treated as a direct, rather than a collateral review, and we are not aware
of any. This argument lacks merit.



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      It is well-settled that:

      The seminal test in determining whether a constitutional rule
      warrants retroactive application during collateral review was
      delineated in Teague v. Lane, 489 U.S. 288 [] (1989)
      (plurality), which was subsequently adopted by a majority of the
      Supreme Court. See Commonwealth v. Lesko, [] 15 A.3d
      345, 363 (2011). 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 procedure implicating the fundamental fairness and
      accuracy of the criminal proceeding.

Commonwealth v. Riggle, 119 A.3d 1058, 1065 (Pa. Super. 2015)

(quotation marks and some citations omitted).

      As further explained by the Riggle Court:

      Substantive rules are those that decriminalize conduct or
      prohibit punishment against a class of persons. Concomitantly,
      the Supreme Court has made clear that rules that regulate only
      the manner of determining the defendant’s culpability are
      procedural. A constitutional criminal procedural rule will not
      apply retroactively unless it is a watershed rule that implicates
      the fundamental fairness and accuracy of the criminal
      proceeding.

Id. at 1066 (citations, quotation marks, and emphases omitted).

      On December 16, 2013, the Pennsylvania Supreme Court ruled in

Neiman that Act 152 of 2004 (Act 152), which included the provisions of

Megan’s Law III, violated the single subject rule of Article III, Section 3, of




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the Pennsylvania Constitution.3         See Neiman, supra at 613.     In striking

down Act 152, the Court observed:

              [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 (citations and quotation marks omitted).           The Court further

stated:

             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.

       Applying the Teague framework, we agree with Appellant that

Neiman announced a new substantive rule when it struck down Act 152 as

unconstitutional.     (See Appellant’s Brief, at 15-16).   However, our inquiry

does not end there.
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3
  Pursuant to Article III, Section III of the Pennsylvania Constitution: “No
bill shall be passed containing more than one subject, which shall be clearly
expressed in its title, except a general appropriation bill or a bill codifying or
compiling the law or a part thereof.” Pa. Const. Art. 3, § 3.




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      Consistent with its above reasoning, the Neiman Court stayed its

decision and the abrogation of Act 152 for ninety days. See id. at 616. On

March 14, 2014, the Legislature passed Act 19 with a retroactive effective

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

registration requirements imposed by the Sexual Offender Registration and

Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41, and included a

declaration by the Legislature 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).

      In other words, the Court in Neiman did not merely strike down Act

152, and hence Megan’s Law III.             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,

retroactive to December 20, 2012.          Therefore, Appellant is not entitled to

benefit from the new rule announced in Neiman where his sentence was not

illegal under the law existing at the time of his November 18, 2013

conviction.

      Accordingly, Appellant’s claim that the holding in Neiman renders his

conviction void fails.       The PCRA court properly denied his petition as a

matter of law. See Smith, supra at 1052.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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