Commonwealth v. Kerns

• Decision Date: 04 October 2019
• Docket Number: No. 545 MDA 2018,545 MDA 2018
• Citation: 220 A.3d 607
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Scott KERNS, Appellant
• Court: Pennsylvania Superior Court

220 A.3d 607

COMMONWEALTH of Pennsylvania, Appellee

v.Scott KERNS, Appellant

No. 545 MDA 2018

Superior Court of Pennsylvania.

Submitted September 4, 2018

Filed October 4, 2019

Scott Kerns, appellant, pro se.

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellee.

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

OPINION BY 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 See Commonwealth v. Kerns , 844 A.2d 1282 (Pa.Super. 2003) (unpublished memorandum).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 , 379 Pa.Super. 390, 550 A.2d 213 (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 14^th PCRA petition. On January 26, 2017, the PCRA court issued Rule 907 notice and dismissed the 14^th petition 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 15^th PCRA petition on August 24, 2017, and a motion to stay the 15^th petition until this Court disposed of his appeal regarding his 14^th petition. The PCRA court denied Appellant's 15^th PCRA petition on August 31, 2017.

On September 8, 2017, Appellant pro se filed a 16^th 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 16^th PCRA petition and the habeas corpus petition on September 18, 2017.

Appellant timely filed pro se notices of appeal from the denials of his 15^th and 16^th PCRA petitions on September 28, 2017, and October 13, 2017, respectively. Appellant withdrew the appeal from the denial of his 15^th PCRA petition on December 1, 2017. This Court affirmed the denial of Appellant's 16^th 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 16^th PCRA petition for lack of jurisdiction, because appellate review of Appellant's 14^th PCRA petition was still pending when Appellant filed his 16^th petition).

With respect to Appellant's appeal from the denial of his 14^th 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 17^th 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 14^th PCRA petition.

Appellant raises the following issues for our review:

DID THE COURT ERR BY NOT ENFORCING THE PLEA AS IT IS WRITTEN[?]

DID THE COURT ERR BY NOT HAVING A HEARING ON THE ISSUES[?]

DID THE COURT ERR BY ACCEPTING THE D.A.'S REPLY WITHOUT [APPELLANT] HAVING A CHANCE TO REBUT IT SINCE APPELLANT NEVER RECEIVED A COPY OF THE D.A.'S ANSWER UNTIL THE ORDER WAS FILED[?]

(Appellant's Brief at 3).

Appellant argues the court and the Commonwealth breached the plea agreement because he is subject to sex offender registration when the possibility of sex offender registration was not an express term of his written or oral plea colloquies. Appellant avers the SVP designation after a SOAB evaluation and a Megan's Law hearing, plus the imposition of the registration requirements, exceeded his bargained-for exchange with the Commonwealth. Appellant maintains he is not attempting to withdraw his open guilty plea or attack its validity or the sentence of incarceration. Instead, he insists he is just trying to enforce the plea agreement as written, because it has no term in it about sex offender registration and SVP designation. Appellant complains the court should have held a hearing on his issue and erred by accepting the Commonwealth's answer to his petition without giving Appellant a chance to rebut it. Appellant concludes this Court should vacate his Megan's Law II registration requirements based on contract principles. We cannot agree.

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 shall be sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for same purpose). 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). The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler , 148 A.3d 849, 853 (Pa.Super. 2016). A PCRA petition must be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is "final" at the conclusion of direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The exceptions to the PCRA time-bar allow for very limited circumstances under which the late filing of a petition will be excused; a petitioner asserting an exception must file a petition within 60 days of the date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

On the other hand, a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance. See, e.g., Commonwealth v. Martinez , 637 Pa. 208, 147 A.3d 517 (2016) ; Commonwealth v. Fernandez , 195 A.3d 299 (Pa.Super. 2018) (en banc ); Commonwealth v. Hainesworth , 82 A.3d 444 (Pa.Super. 2013) (en banc ), appeal denied , 626 Pa. 683, 95 A.3d 276 (2014) ; Commonwealth v. Farabaugh , 136 A.3d 995 (Pa.Super. 2016), appeal denied , 643 Pa. 140, 172 A.3d 1115 (2017) ; Commonwealth v. Nase , 104 A.3d 528 (Pa.Super. 2014), appeal denied , 640 Pa. 389, 163 A.3d 405 (2016). Compare Commonwealth v. James Johnson , 200 A.3d 964 (Pa.Super. 2018) (stating generally that plea enforcement theory is unavailable as ground for collateral relief if there is no plea bargain to enforce). The designation of the petition "does not preclude a court from deducing the proper nature of a pleading." See Commonwealth v. Porter , 613 Pa. 510, 524, 35 A.3d 4, 12 (2012) (citing Commonwealth v. Abdul–Salaam , 606 Pa. 214, 996 A.2d 482 (2010) (involving deceptive labeling of PCRA pleading)).

Contract interpretation is a question of law, so "[o]ur standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary." Gillard v. Martin , 13 A.3d 482, 487 (Pa.Super...