J-S28038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS GENE MOOSE, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1897 MDA 2014

Appeal from the Order Dated October 17, 2014

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0000798-1988

BEFORE: BENDER, P.J.E., BOWES, J., and LAZARUS, J.

DISSENTING MEMORANDUM BY BOWES, J.: FILED: JANUARY 11, 2019

I respectfully dissent. I would hold that Appellant’s petition must be 

treated as a PCRA petition, and, for the reasons discussed in Commonwealth 

v. Johnson, --- A.3d ---, 2018 WL 6442321 (Pa.Super. December 10, 2018), 

I would find that Appellant’s petition is untimely and fails to meet any 

exception to the time-bar. 

In my view, Johnson is indistinguishable from this case. Johnson, like 

Appellant herein, entered a guilty plea before any version of Megan’s Law 

came into effect. Johnson sought an order declaring him exempt from SORNA 

obligations. We concluded that he was not entitled to relief:

Procedurally, the instant case comes to this Court as a filing 

outside of the PCRA. However, Appellant's selected designation 

does not control. See Commonwealth v. Taylor, 65 A.3d 462, 

465 (Pa.Super. 2013) (“We agree that Appellant's writ of habeas 

corpus should be treated as a PCRA petition.”). Hence, we must 

examine whether Appellant's request for relief must be treated as 
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a PCRA petition. The PCRA time limits are jurisdictional, and we 

therefore cannot address the merits of an untimely petition. See

Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa.Super. 

2018).

Our Supreme Court has stated that “claims that could be brought 

under the PCRA must be brought under that Act. No other 

statutory or common law remedy ‘for the same purpose’ is 

intended to be available; instead, such remedies are explicitly 

‘encompassed’ within the PCRA.” Commonwealth v. Hall, 565 

Pa. 92, 771 A.2d 1232, 1235 (2001) (emphasis in original). The 

instant claim, that Muniz applies retroactively, is clearly 

cognizable under the PCRA. Rivera-Figueroa; Murphy.

In an attempt to evade the timeliness requirements of the PCRA, 

Appellant specifically cited the line of cases seeking relief under a 

contractual theory, such as Commonwealth v. Partee, 86 A.3d 

245 (Pa.Super. 2014). Partee held that such claims fall outside 

the PCRA as their theory of relief is predicated upon an attack that 

does not pertain to the criminal sentence itself. We explained that 

a motion seeking enforcement of a plea bargain is not within the 

scope of the PCRA:

We note that the within petition is not an attack on 

Appellant's sentence, nor is he alleging that he is 

innocent of the offenses of which he was convicted. 

Appellant is not asserting that his conviction or 

sentence resulted from a violation of the Constitution, 

ineffective assistance of counsel, an unlawfullyinduced plea, obstruction by government officials of 

his right to appeal, newly-discovered evidence, an 

illegal sentence, or a lack of jurisdiction. 42 Pa.C.S. § 

9543(a)(2). In short, we agree with 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.

Id. at 247. Thus, Partee concluded that such petitions were not 

subject to the PCRA time bar. The claim nonetheless failed on the 

merits, as Partee had violated the terms of his probation and was 

therefore not entitled to the benefit of his bargain.

Recently, this Court held in Commonwealth v. Fernandez, 195 

A.3d 299 (Pa.Super. 2018) (en banc), that Partee has been 
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abrogated by Muniz, and therefore offenders may seek 

restoration of the sexual offender obligations that existed at the 

time of their plea even if the offender breached their bargain by 

violating the terms of probation. Here, however, the plea 

enforcement theory does not apply, as Appellant has no plea 

bargain to enforce: he entered a nolo contendere plea prior to the 

enactment of any sexual offender laws. By definition, the parties 

could not have contemplated non-registration as a term of the 

plea. We explained the applicable principles as follows:

To summarize: (a) where a plea bargain is structured 

so the defendant will not have to register or report as 

a sex offender or he will have to register and report 

for a specific time; and (b) the defendant is not 

seeking to withdraw his plea but to enforce it, then 

the “collateral consequence” concept attributed 

generally to sex offender registration requirements 

does not trump enforcement of the plea bargain.

Commonwealth v. Farabaugh, 136 A.3d 995, 1002 (Pa.Super. 

2016).

Thus, we cannot apply Muniz via a plea enforcement theory, as 

the parties clearly could not structure the plea to accommodate 

law that did not exist.

Id. at *2-3 (emphases in original).

The Majority attempts to distinguish Johnson by noting that Johnson 

filed a petition for habeas corpus relief, whereas Appellant did not. See

Majority Memorandum at 6 n.7. Yet, as noted in Johnson, the designation 

selected by Appellant does not control. Furthermore, while Johnson did not 

utter the phrase “I wish to enforce my plea agreement,” he cited cases 

invoking that theory. Therefore, Johnson cannot be distinguished on this 

basis. 
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Having swept Johnson aside, the Majority next finds that Appellant has 

a plea bargain to enforce. Again, the Majority ignores that Johnson already 

rejected that proposition: “we cannot apply Muniz via a plea enforcement 

theory, as the parties clearly could not structure the plea to 

accommodate law that did not exist.” Id. at *3 (emphasis added). This 

statement is not dicta, as the critical question in Johnson was whether the 

pleading was a PCRA petition. If there were any question that Johnson had a 

plea bargain to enforce, the Johnson Court would have remanded for an 

evidentiary hearing. The fact Johnson did not do so has a simple explanation: 

“the parties clearly could not structure the plea to accommodate law that did 

not exist.” Id. Hence, there was no bargain to enforce as a matter of law. 

The same is true herein. However, compare the Majority’s analysis of the 

exact same point:

Further, we find unconvincing the suggestion that Fernandez is

inapplicable because registration requirements did not exist at the 

time of Moose’s plea and thus were not a consideration for him 

when he accepted the plea. We look to what Moose and the 

Commonwealth reasonably understood to be the terms of the plea 

agreement, and registration under SORNA was not a term. There 

was no Megan’s Law applicable to Moose at the time he committed 

his offenses or entered his plea.

Majority Memorandum, at 5.

The Majority may well find that “suggestion” unconvincing, but it is not 

a suggestion, it is a holding, as explained supra. Furthermore, a lack of 

conviction in precedent is obviously no justification to ignore it. 
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The Majority’s final attempt to avoid Johnson is to claim that Appellant 

is similarly-situated to two of the offenders at issue in the consolidated 

Fernandez cases. “[N]either Wilson nor Colbert pled guilty to crimes that, at 

the time, did not require any period of registration as sexual offenders.” Id. 

at 4. That is true, but Wilson and Colbert pleaded guilty after 1996, the first 

time that a Megan’s Law existed. Fernandez, supra at 306 (“On February

17, 2011, Wilson entered a plea of nolo contendere”); id. at 308 (“On April 9, 

1997, Colbert entered into a negotiated guilty plea to one count of attempted 

rape”). 

It is self-evident that the inquiry regarding what terms are included in a 

plea agreement changes when the parties negotiated in light of laws actually 

on the books. What the Majority holds, as far as I can tell, is that the 

Commonwealth implicitly promised—and Appellant implicitly expected—that 

Appellant was entitled to future relief if the Legislature happened to pass a 

law that made Appellant register as a sex offender. Such an approach requires 

prosecutors to act as soothsayers when negotiating a plea.

Notwithstanding, there is much reason to doubt that our precedents in 

this area are correct. Indeed, I penned a footnote in Johnson expressing my 

belief that our decisions in this area have failed to grapple with the 

retroactivity issue. Johnson, supra at *3 n.5. Additionally, I filed a dissent 

in Fernandez, which the Majority heavily relies upon, that raised this precise 

problem. “Offenders who have no plea bargain to enforce or elected to go to 
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trial cannot take advantage of the Majority's theory, yet they too are serving 

unconstitutional sentences that the Majority posits ‘cannot stand.’” 

Fernandez, supra at 313 n.4 (Bowes, J., dissenting).

I continue to adhere to the view that Muniz must retroactively apply in 

this context1to all offenders. Until our Court revisits the issue in the proper 

case, Johnson applies and Appellant is not entitled to relief. I therefore 

dissent. 

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I view the retroactivity of Muniz as encompassing two discrete inquiries. 

The first is whether offenders who were convicted of sexual offenses preSORNA are entitled to retroactive application of Muniz in the sense that such 

offenders are free from ongoing SORNA obligations. The answer to that 

question, in my view, is unquestionably yes; there is not a dime’s worth of 

difference between offenders who pled guilty and those who went to trial with 

respect to the constitutionality of imposing ex post facto sentences. The 

second is whether Muniz is retroactive to the extent that offenders are 

entitled to relief from convictions stemming from failures to comply with 

SORNA obligations, which is an entirely distinct retroactivity problem.