J-S18016-20

                                   2020 PA Super 201

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DERRICK DUNCAN                             :
                                               :
                       Appellant               :       No. 1308 MDA 2019

                   Appeal from the Order Entered May 9, 2019
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001283-1994


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY KING, J.:                                   FILED AUGUST 18, 2020

        Appellant, Derrick Duncan, appeals nunc pro tunc from the order

entered in the Dauphin County Court of Common Pleas, which denied his

petition for writ of error coram nobis, which the court treated as a petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546.      For the following reasons, we vacate and remand for further

proceedings.

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

1994, Appellant entered a negotiated guilty plea to robbery, conspiracy,

kidnapping of a minor, unlawful restraint, recklessly endangering another

person, and carrying firearms without a license.          The court imposed the

negotiated aggregate sentence of 4-10 years’ imprisonment.          Notably, the


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*   Former Justice specially assigned to the Superior Court.
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record confirms Appellant was a juvenile when he committed his offenses,

even though he was later charged as an adult. Appellant did not file a direct

appeal from his judgment of sentence.

       On January 2, 2019, Appellant filed a pro se petition for writ of error

coram nobis.1 Appellant alleged, inter alia, that on the day prior to his release

from prison on April 27, 2004, the Department of Corrections told him that he

must register as a sex offender upon release, pursuant to the then-effective

version of Megan’s Law, due to the kidnapping of a minor conviction.

Appellant complained he was subsequently required to register as a sex

offender under SORNA I. Appellant claimed application of the sex offender

statutes violated ex post facto principles under 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), where Appellant committed his crimes before

those statutes were effective. Appellant also insisted the Commonwealth was

in breach of his plea agreement, which contained no provision requiring him

to register as a sex offender.         Appellant acknowledged he was no longer

serving his sentence for the underlying crimes, so he conceded he was

ineligible for relief under the PCRA. Thus, Appellant sought coram nobis relief

and expressly requested removal of his name from the sex offender registry.


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1 A writ of coram nobis “is generally available to challenge the validity of a
judgment based on facts not before the court when the judgment was
entered.” Commonwealth v. Descardes, 635 Pa. 395, 397 n.1, 136 A.3d
493, 494 n.1 (2016).

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       On April 3, 2019, the court initially granted relief, stating:

          At the time [Appellant] committed the offense of kidnapping
          a minor, no registration requirement under any of the
          Megan’s Law frameworks [was] required for said crime. The
          Megan’s Law I framework did not become effective until
          April 22, 1996, and [Appellant] committed the offense in
          1994. Thus, this [c]ourt is prohibited from imposing any
          registration requirements on him pursuant to the
          Pennsylvania Supreme Court’s holding in [Muniz]. …

(Order, filed 4/3/19, at 1) (internal footnotes omitted).

       Nevertheless, on April 18, 2019, the court vacated its April 3, 2019

order, to afford the Commonwealth an opportunity to respond to Appellant’s

petition. The Commonwealth responded on May 7, 2019, alleging the court

should have denied relief because Appellant’s filing was an untimely PCRA

petition with no time-bar exceptions met. Specifically, the Commonwealth

relied on Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018),

appeal denied, 649 Pa. 148, 195 A.3d 559 (2018) (stating PCRA petitioner

cannot rely on Muniz to meet timeliness exception under 42 Pa.C.S.A. §

9545(b) unless and until Supreme Court allows). The court agreed and denied

relief on May 9, 2019, stating Appellant’s current prayer for relief was an

untimely PCRA petition, which the court lacked jurisdiction to consider.

       On June 19, 2019, Appellant filed a motion to restore his post-conviction

appellate rights nunc pro tunc, which the court granted on July 16, 2019.2 On

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2In his motion requesting nunc pro tunc relief, Appellant alleged that he had
been transferred from SCI-Somerset (where the order denying PCRA relief



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August 1, 2019, Appellant timely filed a pro se nunc pro tunc appeal. On

August 8, 2019, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which

Appellant timely filed pro se on August 28, 2019. On September 11, 2019,

this Court remanded for a hearing under Commonwealth v. Grazier, 552

Pa. 9, 713 A.2d 81 (1998), after which the court appointed appellate counsel.

         On appeal, Appellant argues only that the court should have appointed

counsel to assist him with litigating his petition for relief, which the court

treated as a first PCRA petition. In its Rule 1925(a) opinion, the court agrees

this Court should vacate the order denying relief and remand for the

appointment of counsel.3 (See Rule 1925(a) Opinion, filed January 14, 2020,

at 3).

         Preliminarily, we must decide whether the court properly treated

Appellant’s petition for writ of error coram nobis as a PCRA petition. A petition

for collateral relief will generally be considered a PCRA petition if it raises

issues cognizable under the PCRA. See Commonwealth v. Peterkin, 554

Pa. 547, 553, 722 A.2d 638, 640 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA



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was sent) to SCI-Greene. Due to Appellant’s failure to notify the court of his
change of address, mail was delayed and Appellant did not receive the order
denying PCRA relief in a timely fashion. The Commonwealth filed a response,
indicating it did not oppose nunc pro tunc relief and agreeing that the order
denying PCRA relief had been sent to the incorrect prison institution.

3   The Commonwealth has not filed a responsive brief in this case.

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shall be sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies for same purpose, including habeas

corpus and coram nobis).      The plain language of the PCRA mandates that

claims which could be brought under the PCRA, must be brought under the

PCRA. Commonwealth v. Hall, 565 Pa. 92, 96-97, 771 A.2d 1232, 1235

(2001).

     Significantly, however, our Supreme Court “has not yet required that

sexual offender registration statutes be challenged through the PCRA or some

other procedural mechanism.” Commonwealth v. Lacombe, ___ A.3d ___,

2020 WL 4150283 (Pa. filed July 21, 2020). Our Supreme Court explained:

          Indeed, we have consistently decided cases regarding
          sexual offender registration statutes that were challenged
          via different types of filings. See Muniz, supra (successful
          challenge to constitutionality of SORNA via direct appeal);
          Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016)
          (successful challenge to increase of registration term
          through “Petition to Enforce Plea Agreement or for a Writ of
          Habeas Corpus” where PCRA petition would have been
          untimely), A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7
          (Pa. 2016) (successful challenge to registration term
          through mandamus action against PSP), [Commonwealth
          v. Williams, 832 A.2d 962 (Pa. 2003)] (unsuccessful
          challenge to constitutionality of Megan’s Law II through
          “Motion for Extraordinary Relief” and “Motion for Relief”).
          Our approach in this regard takes into account the fact that
          frequent changes to sexual offender registration statutes,
          along with more onerous requirements and retroactive
          application, complicate registrants’ ability to challenge new
          requirements imposed years after their sentences become
          final.

          This is especially so under the PCRA as many
          registrants…would be ineligible for relief on timeliness
          grounds. See 42 Pa.C.S.A. § 9545(b)(1) (PCRA petition

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         must be filed within one year of judgment of sentence
         becoming final unless exception applies). Other registrants
         may be ineligible because their sentence has expired while
         their registration requirements continue. See 42 Pa.C.S.A.
         § 9543(a)(1) (PCRA petitioner must be serving sentence to
         be eligible for relief). Both situations arise from the fact that
         the registration period does not begin until registrants are
         released from prison, which may be well after their sentence
         has become final or may signal the completion of their
         sentence. Accordingly, we decline to find the PCRA, or any
         other procedural mechanism, is the exclusive method for
         challenging sexual offender registration statutes and we
         thus conclude the trial court had jurisdiction to consider
         Lacombe’s “Petition to Terminate His Sexual Offender
         Registration Requirements.”

Id. at *___.

      Additionally, we observe:

         In In re J.B., 630 Pa. 408, 107 A.3d 1 (2014), the
         Pennsylvania Supreme Court concluded that “SORNA’s
         registration requirements improperly brand all juvenile
         offender’s reputations with an indelible mark of a dangerous
         recidivist even though the irrebuttable presumption linking
         adjudication of specified offenses with a high likelihood of
         recidivating is not ‘universally true’” Id. at 19. It concluded
         “the application of SORNA’s current lifetime registration
         requirements upon adjudication of specified offenses
         violates juvenile offenders’ due process rights by utilizing an
         irrebuttable presumption.” Id. at 19-20.

         In [Commonwealth v Haines, 222 A.3d 756 (Pa.Super.
         2019)], this Court concluded that the “J.B. [C]ourt’s holding
         should apply with equal weight to juvenile adjudications as
         well as to defendants convicted as adults for crimes
         committed as juveniles.” [Id.] at 759. Therefore, following
         Haines, a person convicted in criminal court for acts
         committed while a juvenile cannot be required to register
         under SORNA.

Commonwealth v. Zeno, 2020 PA Super 111, 2020 WL 2206857 at *2

(Pa.Super. filed May 7, 2020) (holding appellant is not required to register as

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sex offender because he was juvenile at time he committed crimes; remanding

for trial court to vacate portion of sentence requiring appellant to register as

sex offender).

       Instantly, although Appellant styled his current prayer for relief as a

petition for writ of error coram nobis, the court construed the filing as falling

within the purview of the PCRA. Appellant, however, has finished serving his

sentence of imprisonment for the underlying 1994 crimes, and he is ineligible

for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible

for PCRA relief, petitioner must be “currently serving a sentence of

imprisonment, probation or parole for the crime”); Commonwealth v. Hart,

911 A.2d 939, 942 (Pa.Super. 2006) (stating: “As soon as his sentence is

completed, the petitioner becomes ineligible for relief, regardless of whether

he was serving his sentence when he filed the petition”).

       In light of our Supreme Court’s recent holding in Lacombe, we conclude

the PCRA court was not required to treat Appellant’s filing as a PCRA petition.

See Lacombe, supra. Additionally, we recognize that Appellant might have

a valid ex post facto and due process claim. See Muniz, supra; Zeno, supra.

Accordingly, we vacate the order denying PCRA relief and remand for the court

to consider Appellant’s petition for writ of error coram nobis.4


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4 On June 10, 2020, this Court (with one dissent) stayed disposition of this
matter pending this Court’s en banc decision in Commonwealth v. Moose,
1897 MDA 2014. As Lacombe controls the outcome of this case, we lift the
stay order.

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      Order vacated.      Case remanded with instructions.   Jurisdiction is

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/18/2020




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