J-S18016-20

2020 PA Super 201

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

DERRICK DUNCAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1308 MDA 2019

Appeal from the Order Entered May 9, 2019

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0001283-1994

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY KING, J.: FILED AUGUST 18, 2020

Appellant, Derrick Duncan, appeals nunc pro tunc from the order 

entered in the Dauphin County Court of Common Pleas, which denied his

petition for writ of error coram nobis, which the court treated as a petition 

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. For the following reasons, we vacate and remand for further 

proceedings.

The relevant facts and procedural history of this case are as follows. In

1994, Appellant entered a negotiated guilty plea to robbery, conspiracy, 

kidnapping of a minor, unlawful restraint, recklessly endangering another 

person, and carrying firearms without a license. The court imposed the 

negotiated aggregate sentence of 4-10 years’ imprisonment. Notably, the 

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* Former Justice specially assigned to the Superior Court.
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record confirms Appellant was a juvenile when he committed his offenses, 

even though he was later charged as an adult. Appellant did not file a direct 

appeal from his judgment of sentence. 

On January 2, 2019, Appellant filed a pro se petition for writ of error 

coram nobis.

1

 Appellant alleged, inter alia, that on the day prior to his release 

from prison on April 27, 2004, the Department of Corrections told him that he 

must register as a sex offender upon release, pursuant to the then-effective 

version of Megan’s Law, due to the kidnapping of a minor conviction. 

Appellant complained he was subsequently required to register as a sex 

offender under SORNA I. Appellant claimed application of the sex offender 

statutes violated ex post facto principles under Commonwealth v. Muniz, 

640 Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 

925, 200 L.Ed.2d 213 (2018), where Appellant committed his crimes before 

those statutes were effective. Appellant also insisted the Commonwealth was 

in breach of his plea agreement, which contained no provision requiring him 

to register as a sex offender. Appellant acknowledged he was no longer 

serving his sentence for the underlying crimes, so he conceded he was 

ineligible for relief under the PCRA. Thus, Appellant sought coram nobis relief 

and expressly requested removal of his name from the sex offender registry. 

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1 A writ of coram nobis “is generally available to challenge the validity of a 

judgment based on facts not before the court when the judgment was 

entered.” Commonwealth v. Descardes, 635 Pa. 395, 397 n.1, 136 A.3d 

493, 494 n.1 (2016). 
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On April 3, 2019, the court initially granted relief, stating: 

At the time [Appellant] committed the offense of kidnapping 

a minor, no registration requirement under any of the 

Megan’s Law frameworks [was] required for said crime. The 

Megan’s Law I framework did not become effective until 

April 22, 1996, and [Appellant] committed the offense in 

1994. Thus, this [c]ourt is prohibited from imposing any 

registration requirements on him pursuant to the 

Pennsylvania Supreme Court’s holding in [Muniz]. ...

(Order, filed 4/3/19, at 1) (internal footnotes omitted).

Nevertheless, on April 18, 2019, the court vacated its April 3, 2019 

order, to afford the Commonwealth an opportunity to respond to Appellant’s 

petition. The Commonwealth responded on May 7, 2019, alleging the court 

should have denied relief because Appellant’s filing was an untimely PCRA 

petition with no time-bar exceptions met. Specifically, the Commonwealth 

relied on Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018), 

appeal denied, 649 Pa. 148, 195 A.3d 559 (2018) (stating PCRA petitioner 

cannot rely on Muniz to meet timeliness exception under 42 Pa.C.S.A. § 

9545(b) unless and until Supreme Court allows). The court agreed and denied 

relief on May 9, 2019, stating Appellant’s current prayer for relief was an 

untimely PCRA petition, which the court lacked jurisdiction to consider.

On June 19, 2019, Appellant filed a motion to restore his post-conviction 

appellate rights nunc pro tunc, which the court granted on July 16, 2019.2 On 

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2

In his motion requesting nunc pro tunc relief, Appellant alleged that he had 

been transferred from SCI-Somerset (where the order denying PCRA relief 
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August 1, 2019, Appellant timely filed a pro se nunc pro tunc appeal. On 

August 8, 2019, the court ordered Appellant to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which 

Appellant timely filed pro se on August 28, 2019. On September 11, 2019, 

this Court remanded for a hearing under Commonwealth v. Grazier, 552 

Pa. 9, 713 A.2d 81 (1998), after which the court appointed appellate counsel.

On appeal, Appellant argues only that the court should have appointed 

counsel to assist him with litigating his petition for relief, which the court 

treated as a first PCRA petition. In its Rule 1925(a) opinion, the court agrees 

this Court should vacate the order denying relief and remand for the 

appointment of counsel.3 (See Rule 1925(a) Opinion, filed January 14, 2020, 

at 3).

Preliminarily, we must decide whether the court properly treated 

Appellant’s petition for writ of error coram nobis as a PCRA petition. A petition 

for collateral relief will generally be considered a PCRA petition if it raises 

issues cognizable under the PCRA. See Commonwealth v. Peterkin, 554 

Pa. 547, 553, 722 A.2d 638, 640 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA 

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was sent) to SCI-Greene. Due to Appellant’s failure to notify the court of his 

change of address, mail was delayed and Appellant did not receive the order 

denying PCRA relief in a timely fashion. The Commonwealth filed a response, 

indicating it did not oppose nunc pro tunc relief and agreeing that the order 

denying PCRA relief had been sent to the incorrect prison institution. 

3 The Commonwealth has not filed a responsive brief in this case.
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shall be sole means of obtaining collateral relief and encompasses all other 

common law and statutory remedies for same purpose, including habeas 

corpus and coram nobis). The plain language of the PCRA mandates that 

claims which could be brought under the PCRA, must be brought under the 

PCRA. Commonwealth v. Hall, 565 Pa. 92, 96-97, 771 A.2d 1232, 1235 

(2001). 

Significantly, however, our Supreme Court “has not yet required that 

sexual offender registration statutes be challenged through the PCRA or some 

other procedural mechanism.” Commonwealth v. Lacombe, ___ A.3d ___, 

2020 WL 4150283 (Pa. filed July 21, 2020). Our Supreme Court explained:

Indeed, we have consistently decided cases regarding 

sexual offender registration statutes that were challenged 

via different types of filings. See Muniz, supra (successful 

challenge to constitutionality of SORNA via direct appeal); 

Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016) 

(successful challenge to increase of registration term 

through “Petition to Enforce Plea Agreement or for a Writ of 

Habeas Corpus” where PCRA petition would have been 

untimely), A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7 

(Pa. 2016) (successful challenge to registration term 

through mandamus action against PSP), [Commonwealth 

v. Williams, 832 A.2d 962 (Pa. 2003)] (unsuccessful 

challenge to constitutionality of Megan’s Law II through 

“Motion for Extraordinary Relief” and “Motion for Relief”). 

Our approach in this regard takes into account the fact that 

frequent changes to sexual offender registration statutes, 

along with more onerous requirements and retroactive 

application, complicate registrants’ ability to challenge new 

requirements imposed years after their sentences become 

final.

This is especially so under the PCRA as many 

registrants...would be ineligible for relief on timeliness 

grounds. See 42 Pa.C.S.A. § 9545(b)(1) (PCRA petition 
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must be filed within one year of judgment of sentence 

becoming final unless exception applies). Other registrants 

may be ineligible because their sentence has expired while 

their registration requirements continue. See 42 Pa.C.S.A. 

§ 9543(a)(1) (PCRA petitioner must be serving sentence to 

be eligible for relief). Both situations arise from the fact that 

the registration period does not begin until registrants are 

released from prison, which may be well after their sentence 

has become final or may signal the completion of their 

sentence. Accordingly, we decline to find the PCRA, or any 

other procedural mechanism, is the exclusive method for 

challenging sexual offender registration statutes and we 

thus conclude the trial court had jurisdiction to consider 

Lacombe’s “Petition to Terminate His Sexual Offender 

Registration Requirements.”

Id. at *___. 

Additionally, we observe:

In In re J.B., 630 Pa. 408, 107 A.3d 1 (2014), the 

Pennsylvania Supreme Court concluded that “SORNA’s 

registration requirements improperly brand all juvenile 

offender’s reputations with an indelible mark of a dangerous 

recidivist even though the irrebuttable presumption linking 

adjudication of specified offenses with a high likelihood of 

recidivating is not ‘universally true’” Id. at 19. It concluded 

“the application of SORNA’s current lifetime registration 

requirements upon adjudication of specified offenses 

violates juvenile offenders’ due process rights by utilizing an 

irrebuttable presumption.” Id. at 19-20.

In [Commonwealth v Haines, 222 A.3d 756 (Pa.Super. 

2019)], this Court concluded that the “J.B. [C]ourt’s holding 

should apply with equal weight to juvenile adjudications as 

well as to defendants convicted as adults for crimes 

committed as juveniles.” [Id.] at 759. Therefore, following 

Haines, a person convicted in criminal court for acts 

committed while a juvenile cannot be required to register 

under SORNA.

Commonwealth v. Zeno, 2020 PA Super 111, 2020 WL 2206857 at *2

(Pa.Super. filed May 7, 2020) (holding appellant is not required to register as 
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sex offender because he was juvenile at time he committed crimes; remanding 

for trial court to vacate portion of sentence requiring appellant to register as 

sex offender).

Instantly, although Appellant styled his current prayer for relief as a 

petition for writ of error coram nobis, the court construed the filing as falling 

within the purview of the PCRA. Appellant, however, has finished serving his 

sentence of imprisonment for the underlying 1994 crimes, and he is ineligible 

for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible 

for PCRA relief, petitioner must be “currently serving a sentence of 

imprisonment, probation or parole for the crime”); Commonwealth v. Hart, 

911 A.2d 939, 942 (Pa.Super. 2006) (stating: “As soon as his sentence is 

completed, the petitioner becomes ineligible for relief, regardless of whether 

he was serving his sentence when he filed the petition”). 

In light of our Supreme Court’s recent holding in Lacombe, we conclude 

the PCRA court was not required to treat Appellant’s filing as a PCRA petition. 

See Lacombe, supra. Additionally, we recognize that Appellant might have 

a valid ex post facto and due process claim. See Muniz, supra; Zeno, supra. 

Accordingly, we vacate the order denying PCRA relief and remand for the court 

to consider Appellant’s petition for writ of error coram nobis.

4

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4 On June 10, 2020, this Court (with one dissent) stayed disposition of this 

matter pending this Court’s en banc decision in Commonwealth v. Moose, 

1897 MDA 2014. As Lacombe controls the outcome of this case, we lift the 

stay order. 
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Order vacated. Case remanded with instructions. Jurisdiction is 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/18/2020