Com. v. Day, F. (memorandum)

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J-A27023-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. FLETCHER W. DAY Appellant No. 233 MDA 2013 Appeal from the Order Entered on January 4, 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No.: CP-22-CR-0003326-1997 BEFORE: BENDER, J., WECHT, J., and FITZGERALD, J.* MEMORANDUM BY WECHT, J.: 1 FILED JUNE 20, 2014 We affirm. ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 Act 111 of 2011 and Act 91 of 2012 refer to the original and amended bills that were subsequently enacted by our General Assembly as the Sex et seq to bring Pennsylvania into compliance with the Adam Walsh Child Protection and Safety Act, 42 U.S.C. §§ 16901 et seq Commonwealth v. Sampolski, 2014 PA Super 74, ___ A.3d ___, at *2 (Pa. Super. 2014). SORNA established a three-tier system of sexual offenses, with each tier mandating a different period of required registration. Id. Rape, to which (Footnote Continued Next Page) J-A27023-13 On April 13, 1998, Day pleaded guilty to rape, aggravated assault, sexual assault, and unlawful restraint,2 charges which arose following a -girlfriend. Thereafter, the trial court imposed an did not file post-sentence motions, even though Day requested counsel to do -sentence motions nunc pro tunc, and remanded the case to the trial court. Commonwealth v. Day, No. 2027 MDA 2000, slip op. at 8 (Pa. Super. Aug. 30, 2001). On remand, Day filed post-sentence motions, in which he sought, inter alia, to withdraw his guilty plea. Counsel was appointed, who thereafter filed amended post-sentence motions alleging that plea counsel was -sentence motions were denied by operation of law. On June 17, 2002, Day filed a notice of appeal. On appeal, a panel of this Court concluded that Day had not been apprised fully of the possibility that fines could be imposed upon him as a result of his (Footnote Continued) _______________________ Day pleaded nolo contendere registration. 42 Pa.C.S. §§ 9799.14(d)(2); 9799.15(a)(3). 2 18 Pa.C.S. respectively. §§ 3121(a)(1), 2702(a)(1), -2- 3124.1, and 2902(1), J-A27023-13 Commonwealth v. Day, No. 841 MDA 2002, slip. op. at 11-12, 15 (Pa. Super. June 10, 2003). On March 11, 2004, Day entered a nolo contendere plea to the same charges to which he earlier had pleaded guilty. On the same date, Day was concurrent probation on the aggravated assault count, and twelve months of concurrent probation on the unlawful restraint count. The trial court imposed no penalty on the sexual assault count, finding that it merged with the rape count. During the nolo plea hearing, Day was instructed that, pursuant to the plea agreement, the Commonwealth would not seek to have Day assessed for purposes of determining whether he met the criteria to be classified as a sexually violent predator pursuant to the relevant pr in effect at that time. See 42 Pa.C.S. § 9795.4(b) (expired on December 20, 2012 pursuant to 42 Pa.C.S. § 9799.41). However, Day also was apprised by the assistant district attorney of the following with regard to his requirement to register with the Pennsylvania State Police pursuant to Just briefly, Mr. Day, this is the notification requirement of the registration of sexual offenders pursuant to 42 Pa.C.S. Section 9795, having been convicted of the above offenses, upon release or parole or incarceration or commencement of a sentence of parole, if you change your address thereafter, you are required to notify the Pennsylvania State Police of that address within 10 days. If you move to another state, you are required to register as a sexual offender with the state police and any local police -3- J-A27023-13 agency of the state within 10 days of establishing residency there. You shall continue indefinitely until terminated by the court. In any event, for not less than 10 years. A failure to comply with these constitutes a felony of the third degree. -15. Apparently, Day complied with his reporting requirements at all times following his nolo contendere plea. On December 3, 2012, Day received a letter from the Pennsylvania State Police informing him that, pursuant to newly-enacted SORNA and based upon the crimes to which Day pleaded nolo contendere Day was informed that he would have to register as a sexual offender with the Pennsylvania State Police for the remainder of his lifetime, and that he was required to verify that registration every three months at an approved registration site. See Letter, 12/3/2012, ¶2. On December 19, 2012, Day filed a pro se lifetime registration requirement was a change from what he believed to be a ten-year reporting requirement, constituting an ex post facto violation of his constitutional rights. See Petition for Judicial Bypass, 12/19/2012, at ¶¶ 6See Order, 1/4/2013. On February 4, 2013, Day filed a notice of appeal. On February 12, 2013, the trial court directed Day to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). -4- Day timely J-A27023-13 complied. On May 3, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). On February 19, 2014, after initial briefing by the parties and oral argument, we entered an order directing the parties to file supplemental Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en banc). Both parties have filed supplemental briefs accordingly. In his principal brief, Day presents the following question for our classification and new registration/verification requirements violate ex post facto laws, due process, and double jeopardy clauses of the United States Before we may assess whether Day is entitled to relief on the substantive merits determinations. of his claim, we must make two preliminary First, we must determine whether we have jurisdiction in this case. Second, if we have jurisdiction, we then must determine whether Day is entitled to relief pursuant to our recent Hainesworth decision. We begin with the jurisdictional question. Generally speaking, all post-conviction petitions for collateral relief must be brought pursuant to the dictates of the Post Conviction Relief Act -46. Indeed, the PCRA is the sole means of collateral relief in Pennsylvania, so long as the PCRA provides a potential -5- J-A27023-13 remedy for the claim that is raised by the litigant. See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013); 42 Pa.C.S. § 9542 (The PCRA other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram within one year that a judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time limit is jurisdictional, and cannot be avoided by titling the petition something other than a PCRA petition. Taylor, 65 A.3d at 466, 468. eight years after his judgment of sentence became final. Thus, if we were to construe his petition as a PCRA petition, it would be facially untimely and we would lack jurisdiction to consider this appeal. However, in Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), we recently considered a similar challenge to the imposition of the new requirements of SORNA upon a sexual offender. In Partee, the appellant entered into a plea agreement that was structured in such a way that the charges to which the appellant would plead would subject him only to a ten-year reporting Id. at 249. The appellant subsequently violated the plea agreement, and was resentenced. Upon resentencing, the appellant learned that the charges to which he had pleaded guilty now required registration pursuant to SORNA for a period of -6- J-A27023-13 twenty-five years. Id. at 246. The appellant filed a petition for habeas corpus, seeking to enforce the terms of the original plea bargain that required only ten years of sexual offender reporting. The trial court considered the petition to be a PCRA petition, and concluded that the petition was untimely. Id. at 246-47. We disagreed with the trial court. We held, inter alia, that the -enacted terms of SORNA did not fall within the purview of the PCRA, and that the PCRA could such a challenge did not fall within any of the statutory bases for relief set forth in 42 Pa.C.S. § 9543(a)(2). We explained that, by challenging the post- tence, nor is he alleging that he is innocent of the offenses of which he was convicted. [The appellant] is not asserting that his conviction or sentence resulted from a violation of the Constitution, ineffective assistance of counsel, an unlawfully-induced plea, obstruction by government officials of his right to appeal, newly-discovered evidence, an illegal sentence, or lack of jurisdiction. In short, we agree with [the appellant] that his claim does not fall within the scope of the PCRA and should not be reviewed under the standard applicable to the dismissal of PCRA petitions. . . . hence, we have jurisdiction to entertain it. Id. at 247. lly is the same as the petition filed in Partee. Day is not challenging his conviction or his sentence based upon any of the bases set forth in 42 Pa.C.S. § 9543(a)(2). Thus, like in -7- J-A27023-13 Partee petition falls outside of the scope of the PCRA and, therefore, is not subject We now turn to our discussion of whether Hainesworth provides Day with the relief that he seeks. Since the filing of his Petition for Judicial Bypass, Day has maintained that, inter alia, the post-sentence application of SORNA to his registration obligations has violated the terms of his nolo contendere plea agreement. See Petition for Judicial Bypass, 12/19/2012 at 2 ¶6. In Hainesworth, we considered the effect that SORNA had on plea negotiations that included agreements pertaining to the registration and notification requirements for sexual offenders. The parties have addressed the application of Hainesworth to this case in their supplemental briefs. For the reasons that follow, we conclude that Hainesworth is inapplicable to the instant matter. In Partee, we set forth a comprehensive discussion of Hainesworth, which follows: [I]n Hainesworth, 82 A.3d 444 (Pa. Super. 2013), [] this Court specifically enforced a negotiated plea agreement that did not Law, despite subsequent amendments to the statute that would have subjected him to reporting requirements. Hainesworth entered a negotiated guilty plea to three counts each of statutory sexual assault and indecent assault, and one count each of indecent assault and criminal use of communication facility in February 2009. None of these convictions required registration under the then42 Pa.C.S. § 9791. Other charges that would have imposed a -8- J-A27023-13 registration requirement were withdrawn by the Commonwealth pursuant to the plea negotiations. Hainesworth filed a motion seeking to terminate supervision effective one week prior to the effective date of SORNA. The trial court denied the petition to terminate supervision, but held Hainesworth violated due process. On appeal, this Court, sitting en banc, concluded first that Hainesworth correctly framed the issue as one of contract law, and applied the standard of review applicable to whether a plea agreement reasonably understood to be the terms of the Hainesworth, supra (quoting Commonwealth v. Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989)). We look to ambiguities in the terms of the plea agreement are construed Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995). The dispositive question Hainesworth, 82 A.3d at 448. We examined the record. The terms of the plea agreement were set forth and included a discussion of the fact that the offenses to which the defendant was pleading guilty did not require registration and supervision as a sex offender. We distinguished Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004) (Benner was always subject to a reporting requirement, albeit ten years instead of a lifetime, and the record did not support -registration as a term of his plea), and held that the plea agreement Hainesworth, 82 A.3d at 448. Partee, 86 A.3d at 247-48 (citations modified). Instantly, the rec promise not to pursue a sexually violent predator designation. Unlike Hainesworth, Day explicitly was instructed that he would have to register -9- J-A27023-13 -15. Nonetheless, Day contends that, according to the terms of his agreement, he was only required to register for ten years, and that the lifetime reporting requirement imposed upon him by SORNA constituted a breach of the specifically was instructed that he was required to report indefinitely until such requirement was terminated by the court, and that it would be at least ten years. Id. Nowhere in the agreement, as reported on the record, did the parties bargain for a reporting term of only ten years. Therefore, the lifetime reporting requirement imposed upon Day by SORNA did not violate a specific term contemplated by, and agreed to, by the parties during the plea negotiations. Consequently, Hainesworth Finally, we turn to the specific claims raised by Day in his brief, namely situation, violated his constitutional right to due process and the constitutional protections against ex post facto laws and double jeopardy. Unfortunately for Day, we are unable to review these allegations, because he has waived them due to his failure to support the claims with pertinent authority. According to Pennsylvania Rule of Appellate Procedure 2119(a), an appellant must support the arguments set forth in his appellate brief with Pa.R.A.P. 2119(a). The failure to support an argument with such authorities - 10 - J-A27023-13 results in waiver of that claim. Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014). Although Day cites the relevant constitutional provisions supporting his claim, he fails entirely to support his argument with binding relevant cases from this Court, or from any Court for that matter. The only case cited by Day is Fletcher v. Peck, 10 U.S. 87 (1810), a case from 1810. Day does not cite any one of the litany of cases addressing ex post facto, due process, or double jeopardy that have been decided in the two hundred years since Fletcher. Moreover, Day fails to cite, or attempt to distinguish, any of the claims, and necessarily produce the type of undeveloped argument that cited no legal authorities nor developed any meaningful analysis, we find this Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012) (citing Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)); Pa.R.A.P. 2119(a). Order affirmed. - 11 - J-A27023-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/20/2014 - 12 -

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