Commonwealth v. Schade
| Decision Date | 13 September 2022 |
| Docket Number | 329 EDA 2022,767 EDA 2022,J-A17024-22 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. BERNARD KENNETH SCHADE Appellant COMMONWEALTH OF PENNSYLVANIA v. BERNARD KENNETH SCHADE Appellant |
| Court | Pennsylvania Superior Court |
COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD KENNETH SCHADE Appellant
COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD KENNETH SCHADE Appellant
Nos. 329 EDA 2022, 767 EDA 2022
No. J-A17024-22
Superior Court of Pennsylvania
September 13, 2022
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered November 24, 2021 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000681-2014, CP-45-CR-0000917-2014
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
NICHOLS, J.
Appellant Bernard Kenneth Schade appeals pro se from the order denying his motion to amend his sex offender registration status. Appellant argues that he is not subject to registration under the Sex Offender
Registration and Notification Act (SORNA II)[1] because of the date on which the offenses were committed. Appellant also challenges the voluntariness of his guilty plea and the legality of his sentence. We affirm.
A previous panel of this Court summarized the factual and procedural history of this matter as follows:
On July 14, 2014, Appellant entered into a negotiated guilty plea to one count of statutory sexual assault and two counts of possessing child pornography.[1] The underlying facts of Appellant's first case[, Docket No. 681-2014,] were that, between 1995 and 1997, he had sexual relations with S.T., a person less than sixteen years of age. In the second case, [Docket No. 917-2014,] Appellant possessed 1,101 images of child pornography
[1] 18 Pa.C.S. § 3122.1(a) and 18 Pa.C.S § 6312(d), respectively
In exchange for this plea, the Commonwealth agreed to nolle pros the remaining charges on both dockets.
Commonwealth v. Schade, 3679 EDA 2015, 2016 WL 6519102, at *1 (Pa. Super. filed Nov. 3, 2016) (unpublished mem.) (some formatting altered).
We add that the information filed at Docket No. 917-2014 alleged that Appellant possessed child pornography on April 1, 2014. See Criminal Information, 917-2014, 5/15/14, at 1. During the guilty plea hearing, the trial court explained to Appellant that he was pleading guilty to charges at two different informations and cited both docket numbers. N.T. Plea Hr'g, 7/14/14, at 7. The Commonwealth stated that the statutory sexual assault occurred between 1995 and 1997 as part of its summary of the factual basis
for the plea.[2] Id. at 16. However, during the hearing, the Commonwealth did not specify the date on which Appellant possessed child pornography. Id. Both the Commonwealth and Appellant's counsel agreed that because of this plea, Appellant would be required to register as a Tier III sex offender under SORNA I. Id. at 14-15.
A previous panel of this Court summarized the subsequent procedural history as follows:
On January 7, 2015, the court held a hearing pursuant to 42 Pa.C.S. § 9799.24(e) to determine if Appellant met the criteria to be classified as a sexually violent predator (SVP) and immediately thereafter proceeded to sentencing. The court found that Appellant was an SVP and sentenced him to an aggregate of 54 to 120 months' incarceration.[3]
[3] Although Appellant filed a post-sentence motion to modify his sentence, which the court denied on April 15, 2015, he did not file a direct appeal.
Schade, 2016 WL 6519102, at *1.
Appellant subsequently filed three PCRA petitions, all of which were denied.[3]
On April 15, 2021, Appellant filed a motion challenging the validity of his guilty plea, convictions, and obligation to register under SORNA II. Specifically, Appellant argued that he had been coerced into pleading guilty and claimed that his convictions were illegal due to the statute of limitations and double jeopardy. Appellant also challenged his designation as an SVP and argued that because he pled guilty to offenses that occurred before December 20, 2012, Subchapter H[4] of SORNA II did not apply to him.[5]
On August 2, 2021, the trial court issued an order denying Appellant's motion in part. Specifically, the trial court denied as untimely any claims that Appellant could have raised in a PCRA petition. See Trial Ct. Order, 8/2/21, at 3. However, the trial court scheduled a hearing to address Appellant's SORNA II claims and directed both parties to file memoranda of law.
On November 24, 2021,[6] the trial court denied Appellant's motion to amend his sex offender registration requirements.
Appellant filed timely notices of appeal on December 22, 2021.[7]Appellant subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) statement adopting the legal analysis set forth in its November 24, 2021 order. See Trial Ct. Op., 2/7/22, at 1-2.
Appellant raises the following issues for our review, which we reorder as follows:
1. Whether the [trial] court erred as a matter of law when recognizing that facts of record establish that the plea entered,
in [Docket No. 681-2014], is to a crime whose statute of limitations expired prior to charging; thereby, the exercise of inherent jurisdiction should have been invoked to correct a patent miscarriage of justice?
2. Whether the [trial] court erred in denying specific enforcement of the plea agreement in the [Docket No. 917-2014] matter where the written factual basis for the plea established dates, accepted by the court and the Commonwealth, that preclude sexual offender registration, in belated reliance on non-record accusatory instruments that were not stipulated to; thereby, violating Appellant's right to benefit from the terms of the plea agreement?
3. Whether the [trial] court erred in refusing to correct the State Police's record, as to the [Docket No. 681-2014] matter, where no registration is required under Subchapters H or I?
4. Whether the [trial] court erred in construing that the Legislature anticipated sex offender registration for allegations of crimes for which no legal basis exists, and whether such registration can be challenged outside of the Post-Conviction Relief Act?
Appellant's Brief at 5-6.[8]
PCRA Claims
In his first claim, Appellant argues that his convictions are legal nullities and his sentences are illegal because, at the time the Commonwealth filed these charges, they were barred by the applicable statute of limitations.
Appellant's Brief at 25-30. Appellant further alleges that he was coerced to plead guilty. Id. at 28, 30.
It is well settled that "[i]ssues that are cognizable under the PCRA must be raised in a timely PCRA petition . . . ." Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (citation omitted). Generally, "all motions filed after a judgment of sentence is final are to be construed as PCRA petitions." Id.; but see Commonwealth v. Moose, 245 A.3d 1121, 1128 (Pa. Super. 2021) (en banc) (explaining that in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), our Supreme Court "emphasized that petitioners may challenge the application of a sexual offender registration statute outside the framework of the PCRA"), appeal denied, 268 A.3d 1077 (Pa. 2021). Our Supreme Court has repeatedly stated that the "legality of the sentence is always subject to review within the PCRA . . ." Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (citations omitted). A claim that a guilty plea was unlawfully induced also falls within the scope of the PCRA. See, e.g., Commonwealth v. Oliver, 128 A.3d 1275, 1280 (Pa. Super. 2015) (citing 42 Pa.C.S. § 9543(a)(2)(iii)).
A PCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final" unless the petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final for PCRA purposes "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3). "The PCRA's time restrictions are jurisdictional in nature." Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Therefore, the courts of this Commonwealth do not have jurisdiction over an untimely PCRA petition. Id. (citation omitted); see also Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (stating that in the absence of a timely filed PCRA petition, "even if there was an obvious illegality in [the] sentence, the PCRA court would not have had jurisdiction to consider [the] claim.").
Further, it is the PCRA petitioner's "burden to allege and prove that one of the timeliness exceptions applies." Id. at 1094 (citation omitted and some formatting altered); see also 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, Section 9545(b)(2) requires that any petition attempting to invoke one of these exceptions must "be filed within one year of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
Here the trial court explained:
On April 15, 2021, [Appellant] filed a pro se "motion to update/correct reporting assignment to Subchapter I," properly characterized as [Appellant's] fourth petition for post-conviction collateral relief ("petition") . . .
On April 20, 2021, this court filed a notice of disposition without a hearing ("notice") pursuant to Pennsylvania Rule of Criminal Procedure 907 in which [Appellant] was advised that: (1) his PCRA petition was untimely; and (2) he did not satisfy his burden for an exception to the timeliness requirement under 42 Pa.C.S.[] § 9545(b)(1). [Appellant] was afforded twenty (20) days from the date of the notice to file a response to the proposed dismissal.
On May 10, 2021, [Appellant] timely filed an "objection to this court's misconstruction of his motion as an untimely PCRA,"
("objection") arguing . . . [that] he was not raising any claims...
To continue reading
Request your trial