J-S18016-20
2020 PA Super 201
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DERRICK DUNCAN :
:
Appellant : No. 1308 MDA 2019
Appeal from the Order Entered May 9, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001283-1994
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
OPINION BY KING, J.: FILED AUGUST 18, 2020
Appellant, Derrick Duncan, appeals nunc pro tunc from the order
entered in the Dauphin County Court of Common Pleas, which denied his
petition for writ of error coram nobis, which the court treated as a petition
filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. For the following reasons, we vacate and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows. In
1994, Appellant entered a negotiated guilty plea to robbery, conspiracy,
kidnapping of a minor, unlawful restraint, recklessly endangering another
person, and carrying firearms without a license. The court imposed the
negotiated aggregate sentence of 4-10 years’ imprisonment. Notably, the
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* Former Justice specially assigned to the Superior Court.
J-S18016-20
record confirms Appellant was a juvenile when he committed his offenses,
even though he was later charged as an adult. Appellant did not file a direct
appeal from his judgment of sentence.
On January 2, 2019, Appellant filed a pro se petition for writ of error
coram nobis.1 Appellant alleged, inter alia, that on the day prior to his release
from prison on April 27, 2004, the Department of Corrections told him that he
must register as a sex offender upon release, pursuant to the then-effective
version of Megan’s Law, due to the kidnapping of a minor conviction.
Appellant complained he was subsequently required to register as a sex
offender under SORNA I. Appellant claimed application of the sex offender
statutes violated ex post facto principles under Commonwealth v. Muniz,
640 Pa. 699,
164 A.3d 1189 (2017), cert. denied, ___ U.S. ___,
138 S.Ct.
925,
200 L.Ed.2d 213 (2018), where Appellant committed his crimes before
those statutes were effective. Appellant also insisted the Commonwealth was
in breach of his plea agreement, which contained no provision requiring him
to register as a sex offender. Appellant acknowledged he was no longer
serving his sentence for the underlying crimes, so he conceded he was
ineligible for relief under the PCRA. Thus, Appellant sought coram nobis relief
and expressly requested removal of his name from the sex offender registry.
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1 A writ of coram nobis “is generally available to challenge the validity of a
judgment based on facts not before the court when the judgment was
entered.” Commonwealth v. Descardes,
635 Pa. 395, 397 n.1,
136 A.3d
493, 494 n.1 (2016).
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On April 3, 2019, the court initially granted relief, stating:
At the time [Appellant] committed the offense of kidnapping
a minor, no registration requirement under any of the
Megan’s Law frameworks [was] required for said crime. The
Megan’s Law I framework did not become effective until
April 22, 1996, and [Appellant] committed the offense in
1994. Thus, this [c]ourt is prohibited from imposing any
registration requirements on him pursuant to the
Pennsylvania Supreme Court’s holding in [Muniz]. …
(Order, filed 4/3/19, at 1) (internal footnotes omitted).
Nevertheless, on April 18, 2019, the court vacated its April 3, 2019
order, to afford the Commonwealth an opportunity to respond to Appellant’s
petition. The Commonwealth responded on May 7, 2019, alleging the court
should have denied relief because Appellant’s filing was an untimely PCRA
petition with no time-bar exceptions met. Specifically, the Commonwealth
relied on Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018),
appeal denied,
649 Pa. 148,
195 A.3d 559 (2018) (stating PCRA petitioner
cannot rely on Muniz to meet timeliness exception under 42 Pa.C.S.A. §
9545(b) unless and until Supreme Court allows). The court agreed and denied
relief on May 9, 2019, stating Appellant’s current prayer for relief was an
untimely PCRA petition, which the court lacked jurisdiction to consider.
On June 19, 2019, Appellant filed a motion to restore his post-conviction
appellate rights nunc pro tunc, which the court granted on July 16, 2019.2 On
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2 In his motion requesting nunc pro tunc relief, Appellant alleged that he had
been transferred from SCI-Somerset (where the order denying PCRA relief
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August 1, 2019, Appellant timely filed a pro se nunc pro tunc appeal. On
August 8, 2019, the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which
Appellant timely filed pro se on August 28, 2019. On September 11, 2019,
this Court remanded for a hearing under Commonwealth v. Grazier, 552
Pa. 9,
713 A.2d 81 (1998), after which the court appointed appellate counsel.
On appeal, Appellant argues only that the court should have appointed
counsel to assist him with litigating his petition for relief, which the court
treated as a first PCRA petition. In its Rule 1925(a) opinion, the court agrees
this Court should vacate the order denying relief and remand for the
appointment of counsel.3 (See Rule 1925(a) Opinion, filed January 14, 2020,
at 3).
Preliminarily, we must decide whether the court properly treated
Appellant’s petition for writ of error coram nobis as a PCRA petition. A petition
for collateral relief will generally be considered a PCRA petition if it raises
issues cognizable under the PCRA. See Commonwealth v. Peterkin, 554
Pa. 547, 553,
722 A.2d 638, 640 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA
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was sent) to SCI-Greene. Due to Appellant’s failure to notify the court of his
change of address, mail was delayed and Appellant did not receive the order
denying PCRA relief in a timely fashion. The Commonwealth filed a response,
indicating it did not oppose nunc pro tunc relief and agreeing that the order
denying PCRA relief had been sent to the incorrect prison institution.
3 The Commonwealth has not filed a responsive brief in this case.
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shall be sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for same purpose, including habeas
corpus and coram nobis). The plain language of the PCRA mandates that
claims which could be brought under the PCRA, must be brought under the
PCRA. Commonwealth v. Hall, 565 Pa. 92, 96-97,
771 A.2d 1232, 1235
(2001).
Significantly, however, our Supreme Court “has not yet required that
sexual offender registration statutes be challenged through the PCRA or some
other procedural mechanism.” Commonwealth v. Lacombe, ___ A.3d ___,
2020 WL 4150283 (Pa. filed July 21, 2020). Our Supreme Court explained:
Indeed, we have consistently decided cases regarding
sexual offender registration statutes that were challenged
via different types of filings. See Muniz, supra (successful
challenge to constitutionality of SORNA via direct appeal);
Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016)
(successful challenge to increase of registration term
through “Petition to Enforce Plea Agreement or for a Writ of
Habeas Corpus” where PCRA petition would have been
untimely), A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7
(Pa. 2016) (successful challenge to registration term
through mandamus action against PSP), [Commonwealth
v. Williams, 832 A.2d 962 (Pa. 2003)] (unsuccessful
challenge to constitutionality of Megan’s Law II through
“Motion for Extraordinary Relief” and “Motion for Relief”).
Our approach in this regard takes into account the fact that
frequent changes to sexual offender registration statutes,
along with more onerous requirements and retroactive
application, complicate registrants’ ability to challenge new
requirements imposed years after their sentences become
final.
This is especially so under the PCRA as many
registrants…would be ineligible for relief on timeliness
grounds. See 42 Pa.C.S.A. § 9545(b)(1) (PCRA petition
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must be filed within one year of judgment of sentence
becoming final unless exception applies). Other registrants
may be ineligible because their sentence has expired while
their registration requirements continue. See 42 Pa.C.S.A.
§ 9543(a)(1) (PCRA petitioner must be serving sentence to
be eligible for relief). Both situations arise from the fact that
the registration period does not begin until registrants are
released from prison, which may be well after their sentence
has become final or may signal the completion of their
sentence. Accordingly, we decline to find the PCRA, or any
other procedural mechanism, is the exclusive method for
challenging sexual offender registration statutes and we
thus conclude the trial court had jurisdiction to consider
Lacombe’s “Petition to Terminate His Sexual Offender
Registration Requirements.”
Id. at *___.
Additionally, we observe:
In In re J.B., 630 Pa. 408,
107 A.3d 1 (2014), the
Pennsylvania Supreme Court concluded that “SORNA’s
registration requirements improperly brand all juvenile
offender’s reputations with an indelible mark of a dangerous
recidivist even though the irrebuttable presumption linking
adjudication of specified offenses with a high likelihood of
recidivating is not ‘universally true’” Id. at 19. It concluded
“the application of SORNA’s current lifetime registration
requirements upon adjudication of specified offenses
violates juvenile offenders’ due process rights by utilizing an
irrebuttable presumption.” Id. at 19-20.
In [Commonwealth v Haines, 222 A.3d 756 (Pa.Super.
2019)], this Court concluded that the “J.B. [C]ourt’s holding
should apply with equal weight to juvenile adjudications as
well as to defendants convicted as adults for crimes
committed as juveniles.” [Id.] at 759. Therefore, following
Haines, a person convicted in criminal court for acts
committed while a juvenile cannot be required to register
under SORNA.
Commonwealth v. Zeno, 2020 PA Super 111,
2020 WL 2206857 at *2
(Pa.Super. filed May 7, 2020) (holding appellant is not required to register as
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sex offender because he was juvenile at time he committed crimes; remanding
for trial court to vacate portion of sentence requiring appellant to register as
sex offender).
Instantly, although Appellant styled his current prayer for relief as a
petition for writ of error coram nobis, the court construed the filing as falling
within the purview of the PCRA. Appellant, however, has finished serving his
sentence of imprisonment for the underlying 1994 crimes, and he is ineligible
for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible
for PCRA relief, petitioner must be “currently serving a sentence of
imprisonment, probation or parole for the crime”); Commonwealth v. Hart,
911 A.2d 939, 942 (Pa.Super. 2006) (stating: “As soon as his sentence is
completed, the petitioner becomes ineligible for relief, regardless of whether
he was serving his sentence when he filed the petition”).
In light of our Supreme Court’s recent holding in Lacombe, we conclude
the PCRA court was not required to treat Appellant’s filing as a PCRA petition.
See Lacombe, supra. Additionally, we recognize that Appellant might have
a valid ex post facto and due process claim. See Muniz, supra; Zeno, supra.
Accordingly, we vacate the order denying PCRA relief and remand for the court
to consider Appellant’s petition for writ of error coram nobis.4
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4 On June 10, 2020, this Court (with one dissent) stayed disposition of this
matter pending this Court’s en banc decision in Commonwealth v. Moose,
1897 MDA 2014. As Lacombe controls the outcome of this case, we lift the
stay order.
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Order vacated. Case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/18/2020
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