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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DWAYNE ALLEN ROACH :
:
Appellant : No. 198 MDA 2020
Appeal from the PCRA Order Entered January 9, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005454-2017
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 15, 2020
Appellant, Dwayne Allen Roach, appeals from the order entered in the
Court of Common Pleas of York County dismissing without a hearing his timely
first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. On appeal, Appellant contends he is due relief from
an illegal sentence requiring that he register for life as a sex offender under
the Sexual Offender Registration and Notification Act (“SORNA”)1 for offenses
he committed as a juvenile. For their parts, both the PCRA court and the
Commonwealth agree that the lifetime registration requirement makes
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* Former Justice specially assigned to the Superior Court.
1 Sexual Offender Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-
9799.41, amended and replaced by 2018, Feb. 21, P.L. 27, No. 10, § 19,
immediately effective. Reenacted 2018, June 12, P.L. 140, No. 29, § 14,
(“SORNA II”), immediately effective. 42 Pa.C.S.A. §§ 9799.51-9799.75.
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Appellant’s sentence illegal under controlling authority. After careful review,
we reverse and remand.
At some time from October 1, 2011 to November 30, 2011, when
Appellant was 15 years old, he committed acts of sexual abuse against his two
younger cousins. The incident was reported on November 3, 2016, and the
two victims were interviewed, which led to Appellant’s confession, arrest, and
eventual open guilty plea on May 30, 2018.
After the Sexual Offenders Assessment Board determined Appellant was
a non-Sexual Violent Predator (“non-SVP”), the court conducted a sentencing
hearing, wherein it imposed an aggregate sentence of four to eight years’
incarceration. The court also sentenced Appellant to pay costs and to comply
with SORNA lifetime registration requirements. Appellant filed no post-
sentence motion or direct appeal.
On March 13, 2019, Appellant, pro se, filed a timely first PCRA petition,
and the PCRA court appointed counsel to assist him in preparing an amended
PCRA petition. Counsel, however withdrew due to a conflict, and the PCRA
court appointed replacement counsel on June 10, 2019. On July 23, 2019,
counsel filed an amended PCRA petition raising issues other than the illegal
sentencing issue presently before this Court. On January 8, 2020, after having
issued its notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 more than
twenty days earlier, the PCRA court dismissed Appellant’s petition without a
hearing.
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Appellant filed both a timely Notice of Appeal on January 24, 2020, and
a court-ordered concise statement of matters complained of on appeal under
Pa.R.A.P. 1925(b) on February 10, 2020. In both Appellant’s concise
statement and his subsequent brief, he asks the following question for our
review:
Was [Appellant’s] sentence, which required him to register as a
sex offender for life under SORNA, legal as In Re J.B. and
Commonwealth v. Haines hold that applying lifetime
registration to a juvenile offender is illegal and SORNA holds that
sex offender registration requirements are part of a criminal
sentence[?]
Appellant’s brief, at 4.
Our standard of review is well-settled:
In PCRA appeals, our scope of review is limited to the findings of
the PCRA court and the evidence on the record of the PCRA court's
hearing, viewed in the light most favorable to the prevailing party.
Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by the
record. In contrast, we review the PCRA court's legal conclusions
de novo.
Commonwealth v. Reyes–Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(internal citations and quotations omitted).
In Appellant’s only issue, he contends his sentence is rendered illegal by
its requirement that he register for life as a sex offender, because he was a
juvenile when he committed the offenses to which he pleaded guilty. This
claim was not presented to or addressed by either the trial court or the PCRA
court. See Pa.R.A.P. 302(a) (providing that issues not raised in the lower
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court are waived and cannot be raised for the first time on appeal). A
challenge to the legality of a sentence, however, is never waived so long as a
court has jurisdiction to address the claim, see Commonwealth v. Berry,
877 A.2d 479, 482 (Pa. Super. 2005), and it is not disputed that we have
jurisdiction over Appellant’s present appeal.2 Issues relating to the legality of
a sentence are reviewed de novo, and our scope of review is plenary.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013).
In support of his position Appellant refers to this Court’s 2019 decision
in Commonwealth v. Haines, 222 A.3d 756 (Pa. Super. 2019). In Haines,
the Superior Court determined that the Supreme Court of Pennsylvania’s
holding in In re J.B., 107 A.3d 1 (Pa. 2014) striking down as unconstitutional
SORNA’s lifetime registration provision as applied to juveniles “should apply
with equal weight to juvenile adjudications as well as to defendants convicted
as adults for crimes committed as juveniles.” Haines, at 7.
Like the defendant in Haines, Appellant was a juvenile (approximately
15 years of age) when he committed his sexual offenses and was convicted of
those crimes as an adult. While application of SORNA to Appellant’s case at
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2 See also Commonwealth v. McIntyre, --- A.3d ----, 2020 WL 3244339,
at **6-8 (Pa. June 16, 2020) (holding waiver principles did not apply to
prevent PCRA petitioner from challenging legality of sentence based on
provision later determined to be unconstitutional, even though petitioner had
failed to raise such challenge prior to PCRA appeal to Superior Court; statute
was void on its face, as if it never existed, and court possessed no other
authority to enter the imposed sentence).
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the time of his sentencing required that he register as a sex offender for his
lifetime, the Haines decision which followed compels the conclusion that the
portion of Appellant’s sentence mandating lifetime registration as a sex
offender is illegal.
On this point, the trial court, the Commonwealth, and Appellant agree
with Appellant, and we likewise construe controlling authority to invalidate his
sentence to the extent it includes lifetime registration. Because Appellant was
a juvenile at the time he committed his crimes, he cannot be required to
register under SORNA. We accordingly remand for the trial court to vacate
that part of his sentence requiring him to register as a sex offender.
Order reversed. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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