Com. v. Pollard, W.M., Sr. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WESLEY MORGAN POLLARD, SR.,
Appellant No. 2153 MDA 2014
Appeal from the PCRA Order November 6, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-DR-0003717-2011
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 28, 2016
This is an appeal from the order entered in the Court of Common Pleas
of Luzerne County denying Appellant’s first petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we
affirm.
The relevant facts and procedural history are as follows:
In 1990, Appellant was convicted of involuntary deviate
sexual intercourse, an offense requiring lifetime registration
under Megan’s Law. On June 30, 2003, Appellant registered as a
Megan’s Law offender with the Pennsylvania State Police. On
that date, Appellant received a written notification of his
registration obligations, which Appellant signed. Every year
thereafter, Appellant registered his address with the
Pennsylvania State Police. On May 11, 2011, Appellant
registered his address at 286 Hazel Street in Wilkes-Barre. On
August 31, 2011, Trooper Martin Connors, the Megan’s Law field
liaison and custodian of records for the Pennsylvania State
Police, received a call from a probation officer who informed
Trooper Connors that he had gone to Appellant’s registered
*Former Justice specially assigned to the Superior Court.
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address at 286 Hazel Street, and upon speaking with the owner
of the residence, learned that Appellant was not living there.
Trooper Connors conducted his own investigation and verified
that Appellant was not residing at 286 Hazel Street. Appellant
was subsequently arrested and charged with failure to provide
accurate information in compliance with Megan’s Law [III’s]
registration requirements.[1]
Following a jury trial on July 23, 2012, Appellant was found
guilty of the aforementioned crime. On September 20, 2012,
following a hearing, the trial court sentenced Appellant to a term
of imprisonment of ten to twenty years. Appellant filed a timely
notice of appeal.
Commonwealth v. Pollard, No. 1912 MDA 2012, 2 (Pa. Super. filed
5/22/13) (unpublished memorandum) (footnote added).
On direct appeal, Appellant’s counsel filed a petition to withdraw his
representation, as well as an Anders2 brief in which he raised the sole claim
of whether the evidence was sufficient to support Appellant’s conviction.
Upon independent review of the record, and finding the evidence was
sufficient, this Court found Appellant’s appeal to be frivolous, thus permitting
counsel to withdraw and affirming the judgment of sentence. Pollard,
supra.
Thereafter, on December 16, 2013, the Supreme Court ruled that
Megan’s Law III was unconstitutional because Act 152 of 2004 (“Act 152”),
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1
Appellant was convicted under 18 Pa.C.S.A. § 4915(a)(3). Effective
December 20, 2012, 18 Pa.C.S.A. § 4915 expired and was replaced by 18
Pa.C.S.A. § 4915.1. Based on Appellant’s offense date of May 11, 2011, the
former section, 18 Pa.C.S.A. § 4915, applied to Appellant’s case.
2
Anders v. California, 386 U.S. 738 (1967).
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which included the provisions of Megan’s Law III under which Appellant was
convicted, violated the Single Subject Rule of Article III, Section 3, of the
Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d 603 (Pa.
2013). However, the Court noted:
[A]s we have observed previously in striking down other
legislation which violated Article III, Section 3, “nothing . . .
precludes the General Assembly from enacting similar provisions
in a manner consistent with the Constitution.” [S]ince we find
merit in the General Assembly’s suggestion that our decision
abrogating the entirety of Act 152 will have a significant impact
on a wide variety of individuals and entities which have ordered
their affairs in reliance on its provisions, we will stay our
decision, as we have done under similar circumstances, in order
to provide a reasonable amount of time for the General
Assembly to consider appropriate remedial measures, or to allow
for a smooth transition period.
Id. at 616 (quotation and citation omitted).
In fact, despite striking Act 152 in its entirety, the Supreme Court
held:
We stress, however, that this action should, in no way, be read
as a repudiation of the merits of the various legislative
components of Act 152 such as Megan’s Law III, which serves a
vital purpose in protecting our Commonwealth’s citizens and
children, in particular, from victimization by sexual predators.
Id. at 615.
The Supreme Court stayed its decision for 90 days, by which time the
Legislature passed Act 19 of 2014 (“Act 19”) with a retroactive effective date
of December 20, 2012. Act 19 amended the sexual offender registration
requirements imposed by 42 Pa.C.S.A. § 9799.10 et seq., also known as the
Sexual Offender Registration and Notification Act (“SORNA”) or Megan’s Law
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IV, and included a declaration that “[i]t is the intention of the General
Assembly to address the Pennsylvania Supreme Court’s decision in
Commonwealth v. Neiman [ ] by amending this subchapter in the act of
(March 14, 2014, P.L. 41, NO. 19).” 42 Pa.C.S.A. § 9799.11(b)(3).
On May 15, 2014, Appellant filed a timely pro se PCRA petition alleging
trial counsel was ineffective, and following the appointment of counsel,
Appellant filed a counseled supplemental PCRA petition. In his counseled
supplemental petition, Appellant averred that, since Megan’s Law III was
declared unconstitutional by Neiman, he is serving an illegal sentence, and
therefore, his conviction and sentence must be vacated.
Following a hearing, by order and opinion filed on November 6, 2014,
the PCRA court denied Appellant relief under the PCRA. Specifically, as it
relates to Appellant’s argument that his conviction and sentence should be
vacated under Neiman, the PCRA court disagreed, finding no merit to the
claim. This timely appeal followed, and all Pa.R.A.P. 1925 requirements
have been met.
On appeal, Appellant presents the following issue for our
consideration:
Did the PCRA court err in denying Appellant’s petition for Post-
Conviction Relief where [Appellant] is currently serving an illegal
sentence and is incarcerated in violation of the due process
clauses of both the Constitution of the United States and the
Constitution of the Commonwealth of Pennsylvania?
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Appellant’s Brief at 5.3
In essence, Appellant argues that the Megan’s Law III provisions under
which he was sentenced are void ab initio, rendering his sentence
unconstitutional because it is as if the offense for which he was convicted
never existed. Appellant does not dispute that the reporting requirements of
Megan’s Law III were in effect when he was tried and sentenced, as well as
during the entirety of his direct appeal. However, he claims that the
Supreme Court’s subsequent holding in Neiman striking Megan’s Law III as
unconstitutional should be applied retroactively on collateral review and the
Legislature’s enactment of Act 19 should be disregarded.
In so arguing, Appellant relies primarily on this Court’s unpublished
memorandum decision in Commonwealth v. Myers, No. 1295 MDA 2014
(Pa. Super. filed 7/31/15) (unpublished memorandum). However, we find
Myers to be unavailing for several reasons. First, as an unpublished
memorandum decision, Myers has no precedential value and, thus, we are
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3
This Court has held:
Our standard of review of the denial of a PCRA petition is limited
to examining whether the court’s determination is supported by
the evidence of record and free of legal error. This Court grants
great deference to the findings of the PCRA court if the record
contains any support for those findings.
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(citations omitted). “Of course, if the issue pertains to a question of law, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quotation
marks and quotation omitted).
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not bound by its dictates. Commonwealth v. Swinson, 626 A.2d 627 (Pa.
Super. 1993). Additionally, Appellant’s reliance on Myers is misplaced.
Unlike the case before us, the appellant in Myers had not yet been
sentenced in the trial court when the relevant statutes were declared
unconstitutional, and in vacating the appellant’s sentence, this Court applied
Neiman on direct appeal. Thus, the issue of whether Neiman should apply
retroactively on collateral review was not before this Court in Myers, and
accordingly, Myers is not dispositive. See Commonwealth v. Riggle, 119
A.3d 1058 (Pa. Super. 2015) (distinguishing the application of opinions to
direct appeals as opposed to retroactively in collateral appeals).
Appellant next argues that, under the framework set forth by the U.S.
Supreme Court in Teague v. Lane, 489 U.S. 288 (1989) (plurality), which
was subsequently adopted by a majority of our Supreme Court in
Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), Neiman applies
retroactively on collateral review. See Appellant’s Brief at 14-16.
This Court recently recognized that “[t]he seminal test in determining
whether a constitutional rule warrants retroactive application during
collateral review was delineated in Teague[.]” Riggle, 119 A.3d at 1065
(citations omitted).
“Under the Teague framework, an old rule applies both on direct
and collateral review, but a new rule is generally applicable only
to cases that are still on direct review. A new rule applies
retroactively in a collateral proceeding only if (1) the rule is
substantive or (2) the rule is a ‘watershed rule of criminal
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procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding.”
Riggle, 119 A.3d at 1065 (quoting Whorton v. Bockting, 549 U.S. 406,
416 (2007)). Generally “a case announces a new rule if the result was not
dictated by precedent existing at the time the defendant’s conviction became
final.” Teague, 489 U.S. at 301. Appellant urges us to consider Neiman a
new rule to be applied retroactively in a collateral proceeding under the
substantive rule exception.4 See Appellant’s Brief at 14-15.
Assuming, arguendo, Appellant is correct that Neiman, which struck
down Megan’s Law III as unconstitutional, announced a new substantive
rule, see Riggle, 119 A.3d at 1066 (“Substantive rules are those that
decriminalize conduct or prohibit punishment against a class of persons.”)
(citation omitted)), we disagree that Appellant is entitled to collateral relief.
As the PCRA court noted, the Supreme Court in Neiman did more than hold
that Act 152, including Megan’s Law III, was unconstitutional. The Court
additionally stayed its decision and abrogation of Act 152 for 90 days to
provide the General Assembly with an opportunity to take remedial
measures to address the manner in which the legislations were enacted. In
doing so, the Court, as indicated supra, proclaimed that its action in striking
down Act 152 “should, in no way, be read as a repudiation of the merits of
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4
Appellant has not advanced an argument that Neiman pertained to a
“watershed rule of criminal procedure.”
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the various legislative components of Act 152 such as Megan’s Law III,
which serves a vital purpose in protecting our Commonwealth’s citizens and
children, in particular, from victimization by sexual predators.” Neiman, 84
A.3d at 615. On March 14, 2014, the Legislature responded and passed Act
19, with a retroactive effective date of December 20, 2012. With the
enactment of Act 19, the Legislature addressed Neiman’s concerns by
retroactively amending SORNA and again criminalizing the conduct for which
Appellant was convicted. Therefore, Appellant is not entitled to benefit from
any new rule announced in Neiman since his sentence was not illegal under
the law existing at the time of his conviction, sentence, and direct appeal.
Accordingly, we reject Appellant’s suggestion that he is entitled to
collateral relief pursuant to the Supreme Court’s decision in Neiman, and
we affirm the denial of PCRA relief.
Affirmed.
Judge Panella joins the memorandum.
Judge Mundy concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2016
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