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Commonwealth v. Partee

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RAYMOND DOUGLAS PARTEE, Appellant

Submitted: January 6, 2014.

Appeal from the PCRA Order of the Court of Common Pleas, Allegheny County, Criminal Division, No(s): CP-02-CR-0018825-2005. Before McDANIEL, J.

Suzanne M. Swan, Public Defender and Victoria H. Vidt, Public Defender, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.

Page 246

OPINION

BOWES, J.

Raymond Douglas Partee appeals from the April 25, 2013 order treating his petition seeking enforcement of plea agreement as a PCRA petition and dismissing it as patently frivolous under Pa.R.Crim.P. 907. We agree with Appellant that the relief sought is not cognizable under the PCRA and that it was error to treat it as such. However, Appellant is not entitled to specific performance of a negotiated plea bargain that he subsequently breached. Hence, we affirm.

On September 17, 2007, Appellant entered a negotiated nolo contendere plea to indecent assault (person under age of thirteen), corruption of minors, and endangering the welfare of children. Pursuant to the agreement, counts one and two of the information, rape and incest, were withdrawn. Appellant was sentenced to intermediate punishment for six months, followed by a four-year probationary term.

On May 11, 2010, following a hearing, Appellant was found to be in violation of his probation [1] and sentenced at count three, indecent assault, to a term of imprisonment of thirty to sixty months, with credit from February 2, 2010. His motion for reconsideration of sentence was denied.

On June 2, 2011, Appellant filed a PCRA petition seeking reinstatement of his appellate rights regarding the VOP sentence. Counsel was appointed and filed an amended petition. Appellant's right to appeal the May 11, 2010 sentence was reinstated, a notice of appeal was filed, and this Court affirmed judgment of sentence on June 19, 2012. Commonwealth v. Partee , 53 A.3d 935 (Pa.Super. 2012) (unpublished memorandum).

Appellant filed a petition for habeas corpus and/or seeking enforcement of a plea agreement on February 19, 2013. The Commonwealth treated the petition as a PCRA petition and filed an answer. The trial court issued Pa.R.Crim.P. 907 notice of intent to dismiss on March 5, 2013, and Appellant filed a response. On April 25, 2013, the trial court dismissed the petition, and this appeal ensued. Appellant complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal and the court issued its Rule 1925(a) opinion. Appellant presents the following issues:

I. Did the trial court err in dismissing Mr. Partee's petition to enforce his plea agreement?
(A) Did the court err in construing the petition as a PCRA petition, and calling it " patently frivolous?"
(B) Should the terms of Mr. Partee's plea agreement, including the length of time he will be required to register under the Adam Walsh Act, be strictly enforced?

Appellant's brief at 5. The Sex Offender Registration and Notification Act (" SORNA" ), commonly referred to as the Adam Walsh Act, became effective on December 20, 2012. By its terms, any individual who was then being supervised by the board of probation or parole was subject to its provisions. A conviction for indecent assault was designated therein as a Tier II ...


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