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Commonwealth v. Kirwan

Superior Court of Pennsylvania

October 16, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
PATRICK BRIAN KIRWAN Appellant

          Appeal from the Order Entered September 28, 2018 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000188-2010

          BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

          OPINION

          OTT, J.

         Patrick Brian Kirwan appeals from the order entered September 28, 2018, in the Adams County Court of Common Pleas, dismissing his first petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA").[1] Kirwan seeks relief from the judgment of sentence of an aggregate term of nine months' to 23 months', 29 days' imprisonment, and five years' concurrent probation, imposed on September 20, 2012, following his guilty plea to two counts of indecent assault of a minor under the age of 13.[2] Specifically, Kirwan challenges the requirement he register as a sexually violent predator ("SVP") under the Sexual Offender Registration and Notification Act ("SORNA"), [3] for an offense committed prior to SORNA's effective date. Because we conclude Kirwan is ineligible for PCRA relief, we affirm the order on appeal.

         The facts underlying Kirwan's conviction are well-known to the parties, and not relevant to the issues on appeal. In summary, Kirwan was charged in April of 2010 with two counts each of aggravated indecent assault, indecent assault, and corruption of minors, [4] for his sexual assault of two minor victims, one in January of 2002, and the other in August of 2005. On July 25, 2011, Kirwan entered a guilty plea to two counts of aggravated indecent assault. However, the trial court subsequently granted Kirwan's pre-sentence motion to withdraw his plea. Thereafter, on April 2, 2012, Kirwan entered an open guilty plea to two counts of indecent assault under Section 3126(a)(7). The trial court ordered an assessment by the Sexual Offenders Assessment Board to determine if Kirwan met the criteria for classification as an SVP.[5] At the September 20, 2012, sentencing hearing, the court determined that Kirwan did meet the criteria for classification as an SVP, and sentenced him to a term of nine months' to 23 months', 29 days', imprisonment with five years' concurrent probation, on one count of indecent assault, and a concurrent term of five years' probation on the second count of indecent assault. No direct appeal was filed. On December 22, 2016, Kirwan's probation was revoked as a result of an admitted violation, and he was resentenced to two concurrent terms of four months to nine months' partial confinement. On September 29, 2017, Kirwan completed serving his sentence and was released from parole.

         On March 13, 2018, Kirwan filed the present, counseled PCRA petition, in which he argues he is entitled to PCRA or habeas corpus relief based upon this Court's decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 (Pa. 2018). In Butler, a panel of this Court concluded that SORNA's SVP assessment procedure, set forth in Section 9799.24, is unconstitutional because it permits a trial court to increase a defendant's punishment (i.e., impose sexual offender registration requirements), under a standard of clear and convincing evidence, rather than beyond a reasonable doubt. See id. at 1217-1218. Kirwan requests the court remove his SVP designation because: (1) he continues to be subjected to this punishment based upon his registration requirements as an SVP, and (2) the newly enacted law, Subchapter I, which now governs his registration requirements, did not resolve the unconstitutionality of the SVP standard as outlined in Butler. On April 27, 2018, Kirwan filed a motion to amend his petition, asserting the newly enacted law, Subchapter I, also subjects him to retroactive punishment in violation of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).[6]

         On May 21, 2018, the PCRA court directed Kirwan to file a brief addressing the timeliness of his petition. Kirwan complied with the court's directive, and on September 28, 2018, the PCRA court entered an order denying relief.[7] This timely appeal follows.[8]

         "In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Mitchell, 141 A.3d 1277, 1283-1284 (Pa. 2016) (internal punctuation and citation omitted). Here, the PCRA court determined that Kirwan was ineligible for PCRA relief because he is no longer serving a sentence of imprisonment, probation, or parole for his crimes.[9] See PCRA Court Opinion, 9/28/2018, at 2-3. We agree.

         The PCRA "provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S. § 9542. In order to be eligible for relief under the Act, a petitioner must, initially, plead and prove by a preponderance of the evidence:

That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime;
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence; or
(iv) has completed a sentence of imprisonment, probation or parole for the crime and is seeking relief based upon DNA evidence obtained under section 9543.1(d) ...

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