J-S28038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CARLOS GENE MOOSE, JR.                  :
                                         :
                   Appellant             :   No. 1897 MDA 2014

               Appeal from the Order Dated October 17, 2014
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0000798-1988


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

DISSENTING MEMORANDUM BY BOWES, J.: FILED: JANUARY 11, 2019

      I respectfully dissent. I would hold that Appellant’s petition must be

treated as a PCRA petition, and, for the reasons discussed in Commonwealth

v. Johnson, --- A.3d ---, 2018 WL 6442321 (Pa.Super. December 10, 2018),

I would find that Appellant’s petition is untimely and fails to meet any

exception to the time-bar.

      In my view, Johnson is indistinguishable from this case. Johnson, like

Appellant herein, entered a guilty plea before any version of Megan’s Law

came into effect. Johnson sought an order declaring him exempt from SORNA

obligations. We concluded that he was not entitled to relief:

      Procedurally, the instant case comes to this Court as a filing
      outside of the PCRA. However, Appellant's selected designation
      does not control. See Commonwealth v. Taylor, 65 A.3d 462,
      465 (Pa.Super. 2013) (“We agree that Appellant's writ of habeas
      corpus should be treated as a PCRA petition.”). Hence, we must
      examine whether Appellant's request for relief must be treated as
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     a PCRA petition. The PCRA time limits are jurisdictional, and we
     therefore cannot address the merits of an untimely petition. See
     Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa.Super.
     2018).

     Our Supreme Court has stated that “claims that could be brought
     under the PCRA must be brought under that Act. No other
     statutory or common law remedy ‘for the same purpose’ is
     intended to be available; instead, such remedies are explicitly
     ‘encompassed’ within the PCRA.” Commonwealth v. Hall, 565
     Pa. 92, 771 A.2d 1232, 1235 (2001) (emphasis in original). The
     instant claim, that Muniz applies retroactively, is clearly
     cognizable under the PCRA. Rivera-Figueroa; Murphy.

     In an attempt to evade the timeliness requirements of the PCRA,
     Appellant specifically cited the line of cases seeking relief under a
     contractual theory, such as Commonwealth v. Partee, 86 A.3d
     245 (Pa.Super. 2014). Partee held that such claims fall outside
     the PCRA as their theory of relief is predicated upon an attack that
     does not pertain to the criminal sentence itself. We explained that
     a motion seeking enforcement of a plea bargain is not within the
     scope of the PCRA:

           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. 42 Pa.C.S. §
           9543(a)(2). 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.

     Id. at 247. Thus, Partee concluded that such petitions were not
     subject to the PCRA time bar. The claim nonetheless failed on the
     merits, as Partee had violated the terms of his probation and was
     therefore not entitled to the benefit of his bargain.

     Recently, this Court held in Commonwealth v. Fernandez, 195
     A.3d 299 (Pa.Super. 2018) (en banc), that Partee has been

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         abrogated by Muniz, and therefore offenders may seek
         restoration of the sexual offender obligations that existed at the
         time of their plea even if the offender breached their bargain by
         violating the terms of probation. Here, however, the plea
         enforcement theory does not apply, as Appellant has no plea
         bargain to enforce: he entered a nolo contendere plea prior to the
         enactment of any sexual offender laws. By definition, the parties
         could not have contemplated non-registration as a term of the
         plea. We explained the applicable principles as follows:

               To summarize: (a) where a plea bargain is structured
               so the defendant will not have to register or report as
               a sex offender or he will have to register and report
               for a specific time; and (b) the defendant is not
               seeking to withdraw his plea but to enforce it, then
               the “collateral consequence” concept attributed
               generally to sex offender registration requirements
               does not trump enforcement of the plea bargain.

         Commonwealth v. Farabaugh, 136 A.3d 995, 1002 (Pa.Super.
         2016).

         Thus, we cannot apply Muniz via a plea enforcement theory, as
         the parties clearly could not structure the plea to accommodate
         law that did not exist.

Id. at *2-3 (emphases in original).

         The Majority attempts to distinguish Johnson by noting that Johnson

filed a petition for habeas corpus relief, whereas Appellant did not.         See

Majority Memorandum at 6 n.7. Yet, as noted in Johnson, the designation

selected by Appellant does not control. Furthermore, while Johnson did not

utter the phrase “I wish to enforce my plea agreement,” he cited cases

invoking that theory. Therefore, Johnson cannot be distinguished on this

basis.




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      Having swept Johnson aside, the Majority next finds that Appellant has

a plea bargain to enforce. Again, the Majority ignores that Johnson already

rejected that proposition: “we cannot apply Muniz via a plea enforcement

theory, as the parties clearly could not structure the plea to

accommodate law that did not exist.” Id. at *3 (emphasis added). This

statement is not dicta, as the critical question in Johnson was whether the

pleading was a PCRA petition. If there were any question that Johnson had a

plea bargain to enforce, the Johnson Court would have remanded for an

evidentiary hearing. The fact Johnson did not do so has a simple explanation:

“the parties clearly could not structure the plea to accommodate law that did

not exist.” Id. Hence, there was no bargain to enforce as a matter of law.

The same is true herein. However, compare the Majority’s analysis of the

exact same point:

      Further, we find unconvincing the suggestion that Fernandez is
      inapplicable because registration requirements did not exist at the
      time of Moose’s plea and thus were not a consideration for him
      when he accepted the plea. We look to what Moose and the
      Commonwealth reasonably understood to be the terms of the plea
      agreement, and registration under SORNA was not a term. There
      was no Megan’s Law applicable to Moose at the time he committed
      his offenses or entered his plea.

Majority Memorandum, at 5.

      The Majority may well find that “suggestion” unconvincing, but it is not

a suggestion, it is a holding, as explained supra.       Furthermore, a lack of

conviction in precedent is obviously no justification to ignore it.




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      The Majority’s final attempt to avoid Johnson is to claim that Appellant

is similarly-situated to two of the offenders at issue in the consolidated

Fernandez cases. “[N]either Wilson nor Colbert pled guilty to crimes that, at

the time, did not require any period of registration as sexual offenders.” Id.

at 4. That is true, but Wilson and Colbert pleaded guilty after 1996, the first

time that a Megan’s Law existed. Fernandez, supra at 306 (“On February

17, 2011, Wilson entered a plea of nolo contendere”); id. at 308 (“On April 9,

1997, Colbert entered into a negotiated guilty plea to one count of attempted

rape”).

      It is self-evident that the inquiry regarding what terms are included in a

plea agreement changes when the parties negotiated in light of laws actually

on the books.    What the Majority holds, as far as I can tell, is that the

Commonwealth implicitly promised—and Appellant implicitly expected—that

Appellant was entitled to future relief if the Legislature happened to pass a

law that made Appellant register as a sex offender. Such an approach requires

prosecutors to act as soothsayers when negotiating a plea.

      Notwithstanding, there is much reason to doubt that our precedents in

this area are correct. Indeed, I penned a footnote in Johnson expressing my

belief that our decisions in this area have failed to grapple with the

retroactivity issue. Johnson, supra at *3 n.5. Additionally, I filed a dissent

in Fernandez, which the Majority heavily relies upon, that raised this precise

problem. “Offenders who have no plea bargain to enforce or elected to go to


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trial cannot take advantage of the Majority's theory, yet they too are serving

unconstitutional     sentences     that    the   Majority   posits   ‘cannot   stand.’”

Fernandez, supra at 313 n.4 (Bowes, J., dissenting).

       I continue to adhere to the view that Muniz must retroactively apply in

this context1 to all offenders. Until our Court revisits the issue in the proper

case, Johnson applies and Appellant is not entitled to relief.            I therefore

dissent.




____________________________________________


1 I view the retroactivity of Muniz as encompassing two discrete inquiries.
The first is whether offenders who were convicted of sexual offenses pre-
SORNA are entitled to retroactive application of Muniz in the sense that such
offenders are free from ongoing SORNA obligations. The answer to that
question, in my view, is unquestionably yes; there is not a dime’s worth of
difference between offenders who pled guilty and those who went to trial with
respect to the constitutionality of imposing ex post facto sentences. The
second is whether Muniz is retroactive to the extent that offenders are
entitled to relief from convictions stemming from failures to comply with
SORNA obligations, which is an entirely distinct retroactivity problem.

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