Appeal from the PCRA Order of May 14, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0011852-2011
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and WECHT, J.
Lawrence Jones appeals the trial court's order dismissing his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. We vacate the trial court's order and remand for further proceedings.
Under the circumstances of this case, and given the nature of our resolution, we need not review in detail the factual history of this case. On or about July 25, 2011, Jones was charged with one count of statutory sexual assault, a second-degree felony. See 18 Pa.C.S. § 3122.1(a). Jones allegedly engaged in sexual intercourse with a fifteen-year-old female not his wife when Jones was at least four years older than the victim.
Jones and the Commonwealth negotiated a plea agreement, pursuant to which Jones would plead nolo contendere to one count of indecent assault, a second-degree misdemeanor, and one count of corruption of the morals of a minor, a misdemeanor of the first degree. See 18 Pa.C.S. §§ 3126(a)(1)(8), 6301(a)(1)(i). In return, the Commonwealth agreed to the imposition of a sentence of probation, with the duration of the sentence left to the trial court's discretion. The trial court accepted the plea and sentenced Jones to two years' probation, subject to certain case-specific conditions to which the Commonwealth and Jones agreed.
During the plea proceedings, the Commonwealth attested as follows:
Regarding the charge, Your Honor, the Commonwealth is moving to amend the information from one charge of statutory sexual assault to one charge of indecent assault as well as one count of corruption of the morals of a minor. We have agreed to a sentence of probation to be set by the Court as well as the special conditions of probation. That's the sum of our agreement, Your Honor.
Notes of Testimony ("N.T."), 3/5/2012, at 2-3. Notably, the parties made no reference whatsoever to the imposition of any registration and reporting obligations under Megan's Law, see 42 Pa.C.S. §§ 9791-9799.9, which governed sex offender reporting obligations at the time that Jones entered his plea,  and applied neither to the crime charged (statutory rape) nor to the crimes to which Jones pleaded guilty (indecent assault and corruption of the morals of a minor).
In connection with his plea, Jones also executed a written guilty plea colloquy, entitled "Nolo Contendere Explanation of Defendant's Rights." On that form, Jones reviewed and acknowledged his understanding of the various constitutional rights that he relinquished by entering a plea of nolo contendere. Although that form cautioned Jones regarding the trial court's discretion to accept or reject the negotiated plea, and reviewed various potential consequences arising from the imposition of a sentence upon his plea, it contained no reference whatsoever to Megan's Law or sex offender registration obligations.
The applicable probation conditions were enumerated in a document captioned "Charge Specific Special Conditions, " and included a number of provisions that echoed restrictions associated with Megan's Law. They specified, inter alia, that Jones attend and participate in a mental health treatment program and/or sex offender treatment program, as approved and directed by Jones' probation officer; follow all lifestyle restrictions or treatment requirements imposed by the therapist; refrain from consuming alcohol; avoid non-incidental contact with children under the age of eighteen; avoid places primarily used by children, such as schools and playgrounds; avoid any contact with the victim; and not undertake any employment or volunteer activity involving contact with children. Form, Charge Specific Conditions, at 1-2.
Jones did not appeal his judgment of sentence. However, on January 10, 2013, Jones timely filed a pro se PCRA petition. Therein, Jones alleged the following basis for relief:
I accepted a plea to Indecent Assault [and] Corruption of Minors. When that happened, I was told that I was not going to have to register as a sex offender. I now discover that I must register under [the Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. §§ 9799.10, et seq.] I would not have plead[ed] nolo contendere if I had been told that this was a possibility. I am not guilty and would have gone to trial. I am not receiving the benefit of the bargain.
Pro Se PCRA petition, 1/10/2013, at 3.
On January 16, 2013, the trial court appointed PCRA counsel to represent Jones. On February 15, 2013, PCRA counsel filed a motion to stay SORNA's registration and reporting requirements. On February 27, 2013, the trial court denied Jones' request for a stay. On March 8, 2013, PCRA counsel filed an amended PCRA petition. Therein, Jones raised two bases for relief. First, Jones alleged that requiring him to register as a sex offender under SORNA, which took effect after he entered his guilty plea, was a violation of his protection against the imposition of ex post facto punishment. Second, Jones alleged that he "was unlawfully induced into taking the plea agreement" because sex offender registration reflected a sanction "that was not included with the special conditions of probation." Amended PCRA Petition at 2 ¶9; see Brief in Support of Amended PCRA Petition at 5-9.
On April 4, 2013, the Commonwealth filed its answer in opposition to Jones' petition. Therein, relying upon our Supreme Court's decision in Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008), the Commonwealth argued that the SORNA requirements were non-punitive, but rather a collateral consequence of Jones' plea and sentence. As such, the registration requirements did not constitute ex post facto punishment. Consequently, Jones' nolo contendere plea was not unknowing or involuntary. Answer to Post-Conviction Relief Act Petition at 8-19.
On April 19, 2013, the trial court entered an order informing Jones of the court's intent to dismiss his amended PCRA petition without a hearing, as required by Pa.R.Crim.P. 907. Jones filed no opposition. On May 15, 2013, more than twenty days after the trial court filed its Rule 907 notice, the court entered a Final Order & Opinion dismissing Jones' petition. Jones timely filed a notice of appeal on May 17, 2013. On May 20, 2013, the trial court ordered Jones to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Jones timely complied on May 29, 2013, and the court filed its Rule 1925(a) opinion on July 24, 2013.
Before this Court, Jones raises the following issues:
1) Whether the trial court erred in dismissing [Jones'] Petition when the Commonwealth seeks to require [Jones] to register as a sex offender based on a statute that was not in effect at the time of the plea and said statute increases the punishment for the offense?
2) Whether the trial court erred by refusing to rescind the plea when the Commonwealth has violated the agreement by impermissibly adding sex offense registration as a further penalty that was not contemplated by the parties?
Brief for Jones at 3. Underlying Jones' first issue is the argument that the imposition of reporting requirements under SORNA that did not apply at the time that he entered his negotiated plea violates his constitutional protections against ex post facto punishment. However, because we find his second issue dispositive, we need not pass on Jones' first issue.
Before we examine Jones' second claim, we must consider the form in which Jones filed his petition, and we must address the trial court's jurisdiction to hear this matter, as well as our jurisdiction to consider this appeal. As noted, supra, Jones' judgment of sentence called for two years of probation, with certain conditions. As of this writing, more than two years has passed since the commencement of Jones' two-year probationary term on March 5, 2012. Consequently, we must assume that the relevant probation sentence has expired, and that Jones no longer is under supervision for the instant claim. Because PCRA relief is available only to petitioners who are "currently serving a sentence of imprisonment, probation or parole" "at the time relief is granted, " 42 Pa.C.S. § 9543(a)(1)(i), we lack jurisdiction to consider this appeal to the extent that Jones asserts a claim that arises under the PCRA. See Commonwealth v. Jeffrey Williams, 977 A.2d 1174, 1176 (Pa. Super. 2009) (quoting Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa. Super. 2006)) ("As soon as [a defendant's] sentence is completed, [he] becomes ineligible for [PCRA] relief, regardless of whether he was serving his sentence when he filed his petition.").
Another significant problem concerns the trial court's jurisdiction to decide Jones' petition in the first instance. When the underlying proceedings involved a guilty plea, PCRA relief is limited to circumstances in which the petitioner establishes that his plea was "unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa.C.S. § 9543(a)(2)(iii). In his pro se petition, Jones asserted that his plea was unlawfully induced, and that he was actually innocent. He asserted that he would have proceeded to trial had he known that he would have been required to register as a sex offender with the Pennsylvania State Police. Pro Se PCRA Petition at 3. He renewed his claim of unlawful inducement in his counseled, amended PCRA petition.
The prayer for relief in Jones' amended petition sought vacatur of his judgment of sentence and a new trial (and hence, implicitly, withdrawal of his plea); vacatur of his judgment of sentence and a remand for re- sentencing to exclude him from SORNA's registration and reporting requirements; an evidentiary hearing on his claims; or other relief as deemed appropriate by the trial court. Amended PCRA Petition at 3 (unnumbered). However, in his brief in support of his amended petition, Jones requested only the following relief: "[T]he defendant should be permitted to conclude his sentence according to the express terms of the agreement." Brief in Support of Amended PCRA Petition at 9.
While the PCRA provides that it "shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis, " it further provides that it "is not intended . . . to provide relief from collateral consequences of a criminal conviction." 42 Pa.C.S. § 9542 (emphasis added); cf. Commonwealth v. Masker, 34 A.3d 841, 843-44 (Pa. Super. 2011) (en banc) (holding that the PCRA does not afford relief arising from ineffective assistance of counsel in connection with the collateral classification of a defendant as a sexually violent predator under Megan's Law). Thus, we have held that "a petition raising a claim for which the PCRA does not offer a remedy will not be considered a PCRA petition." Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (citing Commonwealth v. Fahy, 737 A.2d 214, 223-24 (Pa. 1999)). Although no Pennsylvania Court yet has held that SORNA's sex offender registration and reporting requirements are "collateral consequences" of a criminal conviction, we have so held with regard to its predecessor versions of Megan's Law, which vary only in form and detail, not substance, from SORNA. See Leidig, 956 A.2d at 403-06 (Pa. 2008); Commonwealth v. Price, 876 A.2d 988, 992 (Pa. Super. 2005). Thus, we assume, without deciding, that what was deemed a collateral consequence of sentence under Megan's Law would be deemed a collateral consequence of sentence under SORNA.
As noted, the principal relief sought by Jones is specific enforcement of his plea agreement with the Commonwealth, a claim that, for the foregoing reasons, is not cognizable under the PCRA. In light of this fact, and the plain language of PCRA section 9542, as well as our assumption that SORNA's registration and reporting requirements are, like its predecessors' provisions, collateral consequences of Jones' conviction, we find that Jones failed to plead a PCRA claim upon which relief could be granted. Thus, one of two circumstances must be the case: First, because Jones' claim is not cognizable under the PCRA, no remedy is available; or second, because Jones' claim is not ...