J-S64020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                         Appellee

                   v.

JEFFREY PELKOFER,

                         Appellant                       No. 408 WDA 2014


              Appeal from the Order Entered February 19, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003262-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED OCTOBER 22, 2014

      Appellant, Jeffrey Pelkofer, appeals from the order of the trial court

denying   his   motion   for   the   removal    of    sex   offender   registration

requirements.   For the reasons that follow, we reverse.

      On February 1, 2010, Appellant entered a negotiated plea to one count

of statutory sexual assault, 18 Pa.C.S. § 3122.1. At the time of his plea, the

registration of sex offenders was governed by 42 Pa.C.S. § 9791 et. seq.,

colloquially known as “Megan’s Law.”           Pursuant to that law, offenders

convicted of 18 Pa.C.S. § 3122.1 were not subject to a registration

requirement.

      New statutory provisions regarding the registration of sex offenders

became effective on December 20, 2012. These provisions, known as the

Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. § 9799
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et seq., required individuals convicted of 18 Pa.C.S. § 3122.1 to register as a

sex offender. Appellant remained on probation at the time SORNA became

effective and, thus, was subject to this new registration requirement.

       This Court issued an en banc decision on December 12, 2013, holding

that a defendant who negotiated for non-registration as a term of their plea

bargain was entitled to specific performance of that bargain.                See

Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en

banc), appeal denied, 95 A.3d 276 (Pa. 2014).          On February 10, 2014,

Appellant filed a motion seeking an order excluding him from sex offender

registration requirements pursuant to this Court’s holding in Hainesworth.1




____________________________________________


1
  Appellant construed this pleading as a “Motion to Enforce Terms of Plea
Agreement / Petition for Post-Conviction Relief.” We have held that such
pleadings are not PCRA petitions:

       We note that the within petition is not an attack on Appellant's
       sentence, nor is he alleging that he is innocent of the offenses of
       which he was convicted. Appellant is not asserting that his
       conviction or sentence resulted from a violation of the
       Constitution, ineffective assistance of counsel, an unlawfully-
       induced plea, obstruction by government officials of his right to
       appeal, newly-discovered evidence, an illegal sentence, or a lack
       of jurisdiction. In short, we agree with Appellant that his claim
       does not fall within the scope of the PCRA and should not be
       reviewed under the standard applicable to the dismissal of PCRA
       petitions. Furthermore, it is not subject to the PCRA's time
       constraints, and hence, we have jurisdiction to entertain it.

Commonwealth v. Partee, 86 A.2d 245, 247 (Pa. Super. 2014).




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J-S64020-14



The trial court denied this motion on February 19, 2014. Appellant filed a

timely appeal, raising the following claims for our review:

      1. Did the PCRA/Trial Court err[] in dismissing Appellant's
         Motion to Enforce Terms of Plea Agreement/Petition for Post-
         Conviction Collateral Relief, without an evidentiary hearing,
         which sought to enforce Appellant's 2010 plea agreement
         with the Commonwealth, where the Commonwealth withdrew
         charges that would have required Appellant to register as a
         sex offender, permitting Appellant to then plead guilty to one
         charge that did not require him to register as a sex offender?

      2. Did the PCRA/Trial Court err[] in dismissing Appellant's
         Motion to Enforce Terms of Plea Agreement/Petition for Post-
         Conviction Collateral Relief where Appellant pleaded guilty to
         18 Pa.C.S.A. § 3122.1, where SORNA only requires
         registration of those convicted of 18 Pa.C.S.A. §
         3122.1(a)(2)?

      Appellant’s claims in the instant appeal have been mooted by a

subsequent amendment to SORNA relieving Appellant of a duty to register,

as conceded in the Commonwealth’s brief.       See Commonwealth’s brief at

10, 12. Accordingly, the Commonwealth also asks this Court to reverse the

trial court’s order.

      On March 14, 2014, SORNA was amended, retroactive to December

20, 2012. This amendment removed individuals convicted of 18 Pa.C.S. §

3122.1, who had been convicted between January 23, 2005 and December

19, 2012, from the class of individuals required to register as sex offenders.

See 42 Pa.C.S. § 9799.13(3.1).       Appellant clearly falls into this class of

individuals.   Consequently, he is now statutorily exempt from registration.

As such, we reverse the trial court’s order on the basis of this statutory



                                     -3-
J-S64020-14



authority, and direct that Appellant no longer be required to register as a

sex offender.

     Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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