J-A17041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

D.L.W.

                          Appellant                 No. 2741 EDA 2013


               Appeal from the Order dated September 5, 2013
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No: CP-46-CR-0001665-2004


BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 14, 2014

      Appellant D.L.W. appeals from the September 5, 2013, order of the

Court of Common Pleas of Montgomery County (trial court), which denied his

petition to enforce a plea agreement.     By petitioning the court, Appellant

sought relief from the requirement to register for lifetime as a sex offender

under the Pennsylvania Sexual Offender Registration and Notification Act

(SORNA), 42 Pa.C.S.A. §§ 9799.10-.41, which became effective on

December 20, 2012.        Upon review, we vacate the order and remand this

matter to the trial court.

      By way of background, on January 29, 2004, Detective Mark

Wickersham, Pottstown Police Department, charged Appellant with two
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counts of indecent assault of a minor child,1 two counts of endangering the

welfare of children,2 two counts of corruption of minors,3 and two counts of

unlawful contact with a minor.4                In his affidavit of probable cause

accompanying the complaint, Detective Wickersham alleged:
        On November 26, 2003, Detective David Brooks #165 of the
        Norristown Police Department interviewed 7 year old [boy] at
        the Norristown Police Department in Montgomery County.
        Detective Brooks was interviewing [boy] to attempt to learn
        about possible sexual abuse to [boy] at the hands of the father,
        [Appellant], [D.L.W.].      Through the interview, [boy] told
        Detective Brooks that over the past 4-5 years, that his father
        has been touching him. [Boy] explained to Detective Brooks
        that his father, [Appellant], would touch him every time that he
        visited his father, which was every week . . . .
        [Boy] described his father teaching [him] how to “encircle his
        hand and fingers around his father’s penis, and to move his hand
        up and down, until sperm came out.” [Boy] told Detective
        Brooks that his father would on occasion touch [boy’s] penis with
        his hand too. [Boy] revealed to his mother . . . what was
        happening on November 14, 2003 because he did not want it to
        happen again, and he was suppose[d] to go to his father[’]s
        house on that day.

Affidavit of Probable Cause, 1/29/04.

        On August 17, 2004, in lieu of proceeding to trial, Appellant entered

into a negotiated plea agreement under which he pled guilty to one count of

indecent assault of a minor and one count of endangering the welfare of

children.    As a result, the trial court imposed upon him a concurrent

sentence of one to twenty-three months in county prison, followed by one
____________________________________________


1
    18 Pa.C.S.A. § 3126(a)(7).
2
    18 Pa.C.S.A. § 4304(a)(1).
3
    18 Pa.C.S.A. § 6301(a)(1).
4
    18 Pa.C.S.A. § 6318(a)(1).



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year of probation. Also, as a direct consequence of the guilty plea, the trial

court directed Appellant to register as a sex offender for ten years under the

then-existing Megan’s Law.5 The remaining counts of indecent assault of a

minor child, endangering the welfare of children, corruption of minors, and

unlawful contact with a minor were nolle prossed. Appellant did not file a

direct appeal.

       On May 6, 2013, Appellant filed in the trial court a petition titled

“PETITION TO ENFORCE PLEA AGREEMENT AND/OR WRIT OF HABEAS

CORPUS AND/OR FOR EXEMPTION FROM APPLICABILITY TO CONTINUE TO

RE-REGISTER UNDER PENNSYLVANIA’S ‘NEW’ MEGAN’S LAW AS A LIFETIME

REGISTRANT” (the Petition).6 By filing the Petition, Appellant sought relief
____________________________________________


5
  Act of May 10, 2000, P.L. 74, No. 18 (formerly codified at 42 Pa.C.S.A.
§§ 9791-99.9). Megan’s Law expired on December 20, 2012, and was
replaced by SORNA. See 42 Pa.C.S.A. § 9799.41.
6
  The Petition was a direct consequence of the Pennsylvania State Police’s
(PSP) December 3, 2012, notice to Appellant regarding lifetime registration
under SORNA. SORNA’s registration requirements apply to persons who
were required to register with PSP prior to December 20, 2012, and who had
not fulfilled their period of registration as of December 20, 2012. See 42
Pa.C.S.A. § 9799.13(3)(i).        SORNA reclassified the offenses requiring
registration as a sex offender, and the length of the required registration.
See 42 Pa.C.S.A. § 9799.14. During the period of registration, SORNA
requires regular, in-person reporting to PSP. See 42 Pa.C.S.A. § 9799.15(e)
(imposing quarterly, semiannual, or annual reporting requirements); see
also 42 Pa.C.S.A. § 9799.15(g) (imposing requirements to appear in person
to update information, including employment, telephone numbers, vehicle
information and email and Internet identifiers). SORNA also increases the
depth and scope of registry information collected.        See 42 Pa.C.S.A.
§ 9799.16(b). Under SORNA, Appellant’s conviction for indecent assault of a
minor child (18 Pa.C.S.A. § 3126(a)(7)) was reclassified as a Tier III sexual
(Footnote Continued Next Page)


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from the lifetime registration requirement imposed upon sex offenders under

SORNA.      Specifically, Appellant asserted that the lifetime registration

requirement did not apply to him because, pursuant to his negotiated plea

agreement, he was subject only to a ten-year registration.       The Petition,

5/6/13, ¶ 4.    Appellant further asserted that his constitutional rights were

violated to the extent SORNA was applied to him retroactively. Id. at ¶ 12.

In all, through the Petition, Appellant principally sought to enforce the ten-

year registration requirement and enjoin the retroactive application of

SORNA’s lifetime registration requirement.

      On June 25, 2013, the trial court conducted a hearing on the Petition.

At the hearing, Appellant testified that he entered into a negotiated plea deal

with the Commonwealth to avoid lifetime registration under Megan’s Law.

N.T. Hearing, 6/25/13, at 45. Specifically, the hearing transcript reveals:
      [Appellant’s counsel]: And technically back when this case was
      going on in ’04 you were potentially facing lifetime registration
      because of the two counts of indecent assault; is that correct?
      [Appellant]: Yes.
      [Appellant’s counsel]: And you knew that, correct?
      [Appellant]: Yes. And that [is] why I took the plea agreement
      with the 10 year knowing that there’s a lot of other factors
      around it.


                       _______________________
(Footnote Continued)

offense, demanding lifetime registration as a sex offender. See 42 Pa.C.S.A.
§§ 9799.14(d)(8), 9799.15(a)(3).       His conviction for endangering the
welfare of children (18 Pa.C.S.A. § 4304(a)(1)), however, does not have any
SORNA consequences and, as such, is irrelevant for purposes of the instant
appeal.



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Id.7

        On September 5, 2013, following the hearing, the trial court issued an

order denying the Petition.         Appellant appealed to this Court.   Although,

based on the docket, it did not direct Appellant to file a Pa.R.A.P. 1925(b)

statement, the trial court nonetheless issued a Pa.R.A.P. 1925(a) opinion.

In its opinion, the trial court concluded that the Petition had to be denied, in

part, because it was time-barred under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. Trial Court 1925(a) Opinion, 11/22/13, at

3.     Specifically, in treating the Petition as a PCRA petition, the trial court

reasoned:
        [Appellant’s] Petition here is time-barred because, under the
        PCRA, all petitions must be filed within one year of the date on
        which judgment becomes final unless one of three statutory
        exceptions applies.
         ....
        [Appellant’s] judgment of sentence became final on September
        17, 2004 when the time for filing a direct appeal with the
        Pennsylvania Superior Court expired. [Appellant] thus had one
        year from that date—September 17, 2005—to file a timely PCRA
        petition. He did not file the instant petition until May 6, 2013,
        almost eight years after the deadline, therefore making this
        petition untimely. Furthermore, [Appellant] does not fall within
        one of the exceptions to the PCRA time-bar provisions because
        he did not plead one of the exceptions in [the] Petition[.]

Id. at 3-4. Moreover, the trial court concluded that the Petition had to be

denied, because “the registration requirements of Megan’s Law are not a



____________________________________________


7
  The Commonwealth did not cross-examine Appellant at the Petition
hearing.



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direct[, but rather a collateral,] consequence of [Appellant’s] guilty plea.”

Id.

      On appeal, Appellant raises 5 arguments for our review:
      1. In failing to grant [Appellant’s] petition because the [trial
      court] failed to consider that the Commonwealth’s retroactive
      application of SORNA to Appellant substantially impairs the
      Commonwealth’s and Appellant’s contract, the plea agreement,
      in violation of the Contract Clauses and Due Process Clauses of
      both the United States and Pennsylvania Constitutions;
      2. In failing to grant [Appellant’s] petition because the [trial
      court] failed to consider 42 Pa.C.S.[A]. § 9799.13
      (“Applicability”) as it pertains to Appellant;
      3. In failing to grant [Appellant’s] petition because the [trial
      court] failed to consider that changing, or expanding and
      extending, [Appellant’s] registration and reporting requirements
      is a form of punishment as it in essence is equivalent to an
      extension of probation, and therefore, SORNA is a direct and not
      a collateral consequence;
      4. In failing to grant [Appellant’s] petition because the [trial
      court] failed to consider that requiring [Appellant] to register
      under SORNA when the acts underlying his conviction occurred
      prior to the effective date of SORNA violated the Ex Post Facto
      provisions of the United States and the Pennsylvania
      Constitutions; [and]
      5. In failing to grant [Appellant’s] petition because the [trial
      court] failed to consider that [Appellant’s] petition does not
      constitute a PCRA petition.

Appellant’s Brief at 4-5.

      At the outset, we must examine whether the trial court erred in

treating the Petition as one anchored in the PCRA. It is firmly established

that to be eligible for PCRA relief, a petitioner must be (i) currently serving a

sentence of incarceration, probation or parole; (ii) awaiting a sentence of

death; or (iii) serving a sentence that must expire before the petitioner

begins to serve the disputed sentence.        42 Pa.C.S.A. § 9543(a)(1).       A

person who has finished serving a sentence is ineligible for PCRA relief. See


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Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009),

appeal denied, 990 A.2d 730 (Pa. 2010).                 Specifically, a person who is

required to register as a sex offender but has finished serving his sentence is

not eligible for relief under 42 Pa.C.S.A. § 9543(a)(1). See id. at 1175.

       Instantly, we conclude that the trial court erred in addressing the

Petition under the PCRA. The trial court lacked jurisdiction to entertain the

merits of a PCRA claim because Appellant had finished serving his sentence.8

Indeed, as the court noted, he finished serving his sentence years ago. 9

Also, none of the claims raised in the Petition fall within the purview of the

PCRA, because Appellant did not challenge his sentence or allege that he

was    innocent    of   the   offenses     of   which   he   was   convicted.    See

Commonwealth v. Masker, 34 A.3d 841, 843-44 (Pa. Super. 2011) (en

banc) (holding that a challenge to the classification of the defendant as a

sexually violent predator is not a challenge to the conviction or sentence,

and therefore not cognizable under the PCRA), appeal denied, 47 A.3d 846

(Pa. 2012).
____________________________________________


8
 The record reveals that Appellant’s maximum sentence would have expired
on July 20, 2006, and that the consecutive probationary period would have
expired on July 20, 2007. See Application for County Probation.
9
  Like the PCRA, habeas corpus requires the petitioner to be in custody. 42
Pa.C.S.A. § 6502(a); see also Commonwealth v. Smith, 486 A.2d 445,
448 (Pa. Super. 1984) (per curiam) (“By its very nature, a petition for a writ
of habeas corpus is appropriate only where the relator is in custody.”). For
the same reason, the trial court could not have addressed the Petition as a
habeas corpus petition.



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       The proper means to address the substance of the Petition here is as a

petition to enforce a plea agreement, as suggested by the title of the

Petition.10    See Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa.

Super. 2013) (en banc), appeal denied, 95 A.3d 276 (Pa. 2014).                    In

Hainesworth, the defendant pled guilty to statutory sexual assault,

indecent assault, and criminal use of a communication facility. Id. at 445.

None of the offenses to which Hainesworth pled guilty required him to

register as a sex offender.         Id. at 446.    After SORNA became effective,

however, Hainesworth’s indecent assault offense was reclassified as a Tier II

sexual offense, requiring him to register for twenty-five years. Id. Because

he was still on probation when SORNA went into effect, Hainesworth filed a

motion    to    terminate    his   supervision    to   avoid   SORNA’s   registration

requirements. Id. Although the trial court denied his motion, it nonetheless

issued an order declaring that Hainesworth was not subject to the

registration requirements of SORNA. Id.

____________________________________________


10
   Our review of the trial court’s grant or denial of a petition to seek
enforcement of a plea agreement is as follows:
       In determining whether a particular plea agreement has been
       breached, we look to “what the parties to this plea agreement
       reasonably understood to be the terms of the agreement.” Such
       a determination is made “based on the totality of the
       surrounding circumstances,” and “[a]ny ambiguities in the terms
       of the plea agreement will be construed against the
       [Commonwealth].”
Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en
banc) (internal citations omitted) (emphasis added), appeal denied, 95
A.3d 276 (Pa. 2014).



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       Upon review, we affirmed, concluding that the requirement for

Hainesworth to register under SORNA should be framed as an issue of

contract law. Id. at 447. Specifically, we noted, based upon our review of

the plea colloquy, that Hainesworth’s guilty plea was premised on the

withdrawal of all charges requiring registration and concluded that non-

registration was a term of the plea agreement.       See id. at 447-49 (“The

terms of the plea agreements are not limited to the withdrawal of charges,

or the length of a sentence. Parties may agree to—and seek enforcement

of—terms that fall outside of these areas.”).            We recognized that

“[r]egistration has serious and restrictive consequences for the offender,

including prosecution if the requirement is violated,” and determined that

the plea agreement should be enforced specifically under principles of

contract law, including fundamental fairness. Id. at 449 (stating that plea-

bargaining is a crucial element of the criminal justice system, as nearly

ninety-four percent of state convictions are the result of guilty pleas and that

“it is crucial that plea agreements are enforced, ‘to avoid any possible

perversion of the plea bargaining system.’”) (internal citations omitted).

       In the case sub judice, Appellant alleges that he conditioned the entry

of his plea on the Commonwealth’s withdrawal of the charges that would

have subjected him to lifetime registration under Megan’s Law.11 Appellant

____________________________________________


11
  Under 42 Pa.C.S.A. § 9795.1(b)(1), which is now expired, Appellant would
have been subject to lifetime registration had the Commonwealth not agreed
(Footnote Continued Next Page)


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further alleges that because of the withdrawal of those charges, he pled

guilty to only one Megan’s Law offense—i.e., indecent assault of a minor

child—that only required registration as a sex offender for ten years.

Regrettably, because the trial court dismissed the Petition under the PCRA,

the court had no occasion to render factual findings regarding the

circumstances surrounding Appellant’s guilty plea. Differently put, although

we appreciate Appellant’s allegations on appeal, we are unable to determine

whether the ten-year registration requirement was a term of the bargain

struck in the plea agreement that must be enforced.         Thus, given this

Court’s inability to engage in a meaningful review of the case, we remand

this matter to the trial court with instruction to review the August 17, 2012,

guilty plea and June 25, 2013, hearing transcripts to render factual findings

on this issue. In the event the trial court determines that Appellant credibly

has established that the ten-year registration requirement was a term of the

plea agreement, the court shall enforce such agreement and grant the

Petition.   See Commonwealth v. Fruehan, 557 A.2d 1093, 1094 (Pa.

Super. 1998) (“If a trial court accepts a plea bargain, the defendant who has

                       _______________________
(Footnote Continued)

to withdraw the second count for indecent assault of a minor child (18
Pa.C.S.A. § 3126(a)(7)) and two counts of unlawful contact with minors (18
Pa.C.S.A. § 6318(a)(1)). See Commonwealth v. Merolla, 909 A.2d 337,
345 (Pa. Super. 2006) (holding that where the defendant pled nolo
contendere to two separate counts of indecent assault, albeit at the same
plea hearing, he had two convictions of that offense for purposes of Section
9795.1).



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given up his constitutional right to trial by jury must be afforded the benefit

of all promises made by the district attorney.”); accord Hainesworth, 82

A.3d at 449. On the other hand, if the court determines that the ten-year

registration was not bargained-for, it shall address Appellant’s constitutional

argument pertaining to SORNA’s retroactive application prior to denying the

Petition.12

       Based on the foregoing, we vacate the trial court’s order because it

improperly dismissed the Petition as arising under the PCRA, and remand the

matter to the trial court to render findings of fact necessary to determine

whether Appellant negotiated the ten-year registration requirement and rule

on the Petition.13

       Order vacated. Case remanded. Jurisdiction relinquished.




____________________________________________


12
   We direct the trial court’s attention to Commonwealth v. Perez, 2014
PA Super 142, __ A.3d __, 2014 WL 3339161 at *11 (filed July 9, 2014)
(“SORNA is constitutional under the Federal and State Ex Post Facto
Clauses[, a]s a result, the trial court did not err when it retroactively applied
the new requirements and classification to [a]ppellant.”).
13
  Because we remand this matter to the trial court to render factual findings
on an issue dispositive of this appeal, we decline to address Appellant’s
remaining arguments.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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