Com. v. Le, T. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TUAN ANH LE,
Appellant No. 1098 MDA 2015
Appeal from the PCRA Order May 27, 2015
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0001638-2013
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 29, 2015
Appellant, Tuan Anh Le, appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
We take the following facts from our review of the certified record. On
August 30, 2013, the Commonwealth filed an information charging Appellant
with failure to register or to provide accurate information pursuant to sexual
offender registration requirements of Megan’s Law III.1
On November 18, 2013, Appellant entered a negotiated guilty plea to
the charges. The same day, pursuant to the agreement, the trial court
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 4915(a)(1) and (a)(3), respectively.
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sentenced him to an aggregate term of not less than two nor more than four
years’ incarceration. No direct appeal was filed.
Appellant filed a timely pro se PCRA petition on July 22, 2014.
Appointed counsel filed an amended petition on September 11, 2014, which
the court denied on May 27, 2015 after a hearing. Appellant timely
appealed. The PCRA court did not order Appellant to file a Rule 1925(b)
statement of errors alleged on appeal, but it filed a Rule 1925(a) opinion on
July 9, 2015 in which it relied on its May 27, 2015 opinion. See Pa.R.A.P.
1925.
Appellant raises one issue for our review:
In a PCRA action filed within one year of [Appellant’s]
conviction, is not [Appellant] entitled to an order vacating the
sentence and discharging [him] from further prosecution under
this docket number because the Pennsylvania Supreme Court
after the date of [Appellant’s] conviction struck down as
[un]constitutional the offense statute (18 Pa.C.S.[A.] §[]4915)
[(Megan’s Law III)] under which [Appellant] was convicted?
(Appellant’s Brief, at 4) (most capitalization omitted).
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.”
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015)
(citation 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.”
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Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (internal
quotation marks and citation omitted).
The PCRA provides, in pertinent part:
To be eligible for relief . . . the petitioner must plead and prove
by a preponderance of the evidence . . . [t]hat the conviction or
sentence resulted from . . . [a] violation of the Constitution of
this Commonwealth or the Constitution or laws of the United
States which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
42 Pa.C.S.A. § 9543(a)(2)(i).
Here, Appellant claims that Megan’s Law III, under which he was
sentenced, is void ab initio, resulting in an unconstitutional sentence
because it is as if the offense for which he was convicted never existed.
(See Appellant’s Brief, at 9-18). Appellant premises his issue on the
Pennsylvania Supreme Court case, Commonwealth v. Neiman, 84 A.3d
603 (Pa. 2013). (See id.). Specifically, Appellant claims that, “[t]o the
extent that [his] issue . . . must be analyzed in terms of the retroactive
application of Neiman to a case on collateral review,[2] Neiman is clearly
retroactive because it handed down a new substantive rule.” (Id. at 15)
(emphases omitted). Appellant’s claim does not merit relief.
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2
Appellant first maintains that, because his PCRA petition was timely,
Neiman should be applied as if this were a direct appeal. (See Appellant’s
Brief, at 13-15). However, he provides absolutely no legal authority
supporting the proposition that, where a PCRA petition is timely filed, it is to
be treated as a direct, rather than a collateral review, and we are not aware
of any. This argument lacks merit.
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It is well-settled that:
The seminal test in determining whether a constitutional rule
warrants retroactive application during collateral review was
delineated in Teague v. Lane, 489 U.S. 288 [] (1989)
(plurality), which was subsequently adopted by a majority of the
Supreme Court. See Commonwealth v. Lesko, [] 15 A.3d
345, 363 (2011). 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 procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.
Commonwealth v. Riggle, 119 A.3d 1058, 1065 (Pa. Super. 2015)
(quotation marks and some citations omitted).
As further explained by the Riggle Court:
Substantive rules are those that decriminalize conduct or
prohibit punishment against a class of persons. Concomitantly,
the Supreme Court has made clear that rules that regulate only
the manner of determining the defendant’s culpability are
procedural. A constitutional criminal procedural rule will not
apply retroactively unless it is a watershed rule that implicates
the fundamental fairness and accuracy of the criminal
proceeding.
Id. at 1066 (citations, quotation marks, and emphases omitted).
On December 16, 2013, the Pennsylvania Supreme Court ruled in
Neiman that Act 152 of 2004 (Act 152), which included the provisions of
Megan’s Law III, violated the single subject rule of Article III, Section 3, of
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the Pennsylvania Constitution.3 See Neiman, supra at 613. In striking
down Act 152, the Court observed:
[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 (citations and quotation marks omitted). The Court further
stated:
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.
Applying the Teague framework, we agree with Appellant that
Neiman announced a new substantive rule when it struck down Act 152 as
unconstitutional. (See Appellant’s Brief, at 15-16). However, our inquiry
does not end there.
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3
Pursuant to Article III, Section III of the Pennsylvania Constitution: “No
bill shall be passed containing more than one subject, which shall be clearly
expressed in its title, except a general appropriation bill or a bill codifying or
compiling the law or a part thereof.” Pa. Const. Art. 3, § 3.
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Consistent with its above reasoning, the Neiman Court stayed its
decision and the abrogation of Act 152 for ninety days. See id. at 616. On
March 14, 2014, the Legislature passed Act 19 with a retroactive effective
date of December 20, 2012. Act 19 amended the sexual offender
registration requirements imposed by the Sexual Offender Registration and
Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41, and included a
declaration by the Legislature 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).
In other words, the Court in Neiman did not merely strike down Act
152, and hence Megan’s Law III. 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,
retroactive to December 20, 2012. Therefore, Appellant is not entitled to
benefit from the new rule announced in Neiman where his sentence was not
illegal under the law existing at the time of his November 18, 2013
conviction.
Accordingly, Appellant’s claim that the holding in Neiman renders his
conviction void fails. The PCRA court properly denied his petition as a
matter of law. See Smith, supra at 1052.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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