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Commonwealth v. Kerns

Superior Court of Pennsylvania

October 4, 2019

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
SCOTT KERNS Appellant

          Appeal from the Order Dated March 14, 2018 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000371-2001

          BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

          OPINION

          GANTMAN, P.J.

         Appellant, Scott Kerns, appeals from the order entered in the Berks County Court of Common Pleas, which denied his petition that he styled as a "Nunc Pro Tunc Motion to Open, and Vacate Sentence Due to Breach of Plea Agreement Pursuant to 42 Pa.C.S.A. § 5505." We affirm.

         The relevant facts and procedural history of this case are as follows. The Commonwealth charged Appellant with involuntary deviate sexual intercourse ("IDSI"), sexual assault, rape, aggravated indecent assault, and indecent assault, where Appellant engaged in various sex acts in March through October of 2000, with a minor child under thirteen years old. On May 14, 2001, Appellant entered an open guilty plea to one count of IDSI. At the plea hearing, the court announced that Appellant would undergo an evaluation by the Sexual Offenders Assessment Board ("SOAB"), pursuant to Megan's Law II, and a possible hearing on whether Appellant should be classified as a sexually violent predator ("SVP"). Appellant filed a motion to withdraw his plea on June 13, 2001, but he withdrew that motion on August 6, 2001. After receiving the SOAB report, the Commonwealth moved for an SVP hearing. On September 12, 2001, Appellant filed a motion for extraordinary relief challenging the constitutionality of the SVP provisions of Megan's Law II, which the court denied. On January 18, 2002, the trial court determined the Commonwealth had met its burden to prove Appellant was an SVP and imposed SVP status, sentenced Appellant to 7½ to 20 years' incarceration, with credit for time served, and explained to him that he was subject to lifetime sex offender registration under Megan's Law II. Appellant timely filed a notice of appeal on February 19, 2002. On December 23, 2003, this Court affirmed the judgment of sentence. See Commonwealth v. Kerns, 844 A.2d 1282 (Pa.Super. 2003) (unpublished memorandum). Appellant did not pursue further review, so the judgment of sentence became final on January 22, 2004, upon expiration of the 30 days for filing a petition for allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113 (governing time for filing petition for allowance of appeal with Pennsylvania Supreme Court).

         Appellant pro se timely filed his first petition under the Post-Conviction Relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541-9546, on February 17, 2004. The PCRA court appointed counsel on February 23, 2004, who filed a no-merit letter and petition to withdraw on April 20, 2004, pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On May 10, 2004, the PCRA court issued notice of its intent to dismiss, pursuant to Pa.R.Crim.P. 907, and granted counsel's petition to withdraw. Following Appellant's pro se response on May 25, 2004, the PCRA court denied and dismissed Appellant's petition on June 8, 2004. This Court affirmed on March 4, 2005. See Commonwealth v. Kerns, 875 A.2d 388 (Pa.Super. 2005) (unpublished memorandum).

         Appellant unsuccessfully litigated twelve more PCRA petitions. On October 14, 2016, Appellant pro se filed his 14th PCRA petition. On January 26, 2017, the PCRA court issued Rule 907 notice and dismissed the 14thpetition on March 13, 2017. Appellant pro se timely filed a notice of appeal on April 5, 2017.

         While that appeal was still pending, Appellant pro se filed a 15th PCRA petition on August 24, 2017, and a motion to stay the 15th petition until this Court disposed of his appeal regarding his 14th petition. The PCRA court denied Appellant's 15th PCRA petition on August 31, 2017.

         On September 8, 2017, Appellant pro se filed a 16th PCRA petition. On September 11, 2017, Appellant filed a pro se motion to bar applicability of sex offender registration and/or petition for writ of habeas corpus. The PCRA court dismissed both the 16th PCRA petition and the habeas corpus petition on September 18, 2017.

         Appellant timely filed pro se notices of appeal from the denials of his 15th and 16th PCRA petitions on September 28, 2017, and October 13, 2017, respectively. Appellant withdrew the appeal from the denial of his 15th PCRA petition on December 1, 2017. This Court affirmed the denial of Appellant's 16th PCRA petition on November 7, 2018. See Commonwealth v. Kerns, 201 A.3d 826 (Pa.Super. 2018) (unpublished judgment order) (affirming denial of Appellant's 16th PCRA petition for lack of jurisdiction, because appellate review of Appellant's 14th PCRA petition was still pending when Appellant filed his 16th petition).

         With respect to Appellant's appeal from the denial of his 14th PCRA petition, this Court ultimately affirmed on November 7, 2017. See Commonwealth v. Kerns, 181 A.3d 386 (Pa.Super. 2017) (unpublished memorandum). Then Appellant sought further review in a timely filed pro se petition for allowance of appeal with our Supreme Court, which he filed on December 5, 2017. While that appeal was still pending, Appellant pro se filed his 17th effort to obtain collateral relief on December 26, 2017, and styled his pleading as a motion for "Nunc Pro Tunc Motion to Open, and Vacate Sentence Due to Breach of Plea Agreement Pursuant to 42 Pa.C.S.A. § 5505." The court denied relief on March 14, 2018. Appellant pro se timely filed a notice of appeal on March 27, 2018. On April 3, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on April 20, 2018. On June 11, 2018, our Supreme Court denied review of Appellant's 14th PCRA petition.

         Appellant raises the following issues for our review:

DID THE COURT ERR BY NOT ENFORCING THE PLEA AS IT IS ...

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