J

- S45013

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WAYNE HARRIS

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1064 EDA 2022
Appeal from the PCRA Order Entered March 25, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0015528

- 2008

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 14, 2023
Appellant, Wayne Harris, appeals from the order entered on March 25,

2022, which denied his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541

- 9546. We affirm.

The PCRA court ably summarized the underlying facts of this case:

On August 26, 2008, Appellant was arrested and charged with r ape, i nvoluntary d eviate s exual i ntercourse, u nlawful

c ontact with m inors, and i ncest, among other offenses, following the accusation that he sexually molested his then

- minor biological daughter between 1994 and 2000. On September 14, 2010, Appellant entered a negotiated guilty plea [to] u nlawful c ontact with m inors, c orruption of m inors, and e ndangering the w elfare of c hildren. [ 1 ] On April 8, 2011,

. . . Appellant was found to be [a sexually violent predator (“SVP”)] and sentenced to a negotiated term of two [to four] years' incarceration followed by eight [] years' probation. Appellant was also required

. . . to undergo sex offender

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1), and 4304(a), respectively.J

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- treatment and his probation was to be su pervised by the Philadelphia Adult Probation and Parole Department's Sex Offenders Unit. [On July 8, 2013, the Pennsylvania Superior Court affirmed Appellant’s judgment of sentence. Commonwealth v. W.H. , 82 A.3d 1057 (Pa. Super. 2013) (unpublished memora ndum) at 1

- 1 1. ]

. . . Appellant began his sex offender treatment on February 25, 2013 and he was discharged unsuccessfully from treatment on January 26, 2015. This was a direct violation of his probation.

On April 8, 2015, Appellant came before [the trial court] for a probation hearing where he was found in violation, had his probation revoked, and was subsequently sentenced to six [to 24] months' incarceration followed by five [] years' reporting probation

. [ The Pennsylvania Superior Court affirmed Appellant’s judgment of sentence on October 18, 2016. Commonwealth v. Harris , 159 A.3d 45 (Pa. Super. 2016) (unpublished memorandum) at 1

- 9

. ]

Appellant filed his current [PCRA petition on] October 18, 2017, an d current counsel was appointed to represent him on September 24, 2021. On November 12, 2021, [the PCRA court] heard argument [] from both the Commonwealth and [] Appellant and requested the arguments be briefed. On [ March 25, 2022, the PCRA court dismiss ed Appellant’s petition and Appellant filed a timely notice of appeal]

. PCRA Court Opinion, 6/13/22, at 1

- 2 (some capitalization omitted).

Appellant raises one claim on appeal:

Did the PCRA court err [in] dismissing [Appellant’s] PCRA petition as the cri mes for which Appellant was convicted occurred between 1994 and 2000, he asserts that the reporting requirements under [Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA”) ] subsection I are unconstitutional as applied to him, to include his “SVP” designation. Appellant asserts that the reporting requirements as applied to him are ex post facto and due process violations. At the time the criminal acts occurred between 1994 and 2000, the crime of unlawful contact was not a predic ate offense that would trigger a “SVP” hearing ,J

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- therefore, a “SVP” hearing should never have occurred in the first place?
Appellant’s Brief at 4.
We “review an order granting or denying PCRA relief t o determine

whether the PCRA court's decision is supported by evidence of record and
whether its decision is free from legal error.” Commonwealth v. Liebel , 825

A.2d 630, 632 (Pa. 2003).

On appeal, Appellant claims the public notification and lifetime rep orting

requirements that he is subject to under SORNA, as an SVP , are

unconstitutional as applied to him, as “unlawful contact [with] a minor was
not a triggering offense [for an SVP hearing] at the time the crimes were

committed

. ” Appellant’s Brief at 22

. However, as Appellant admits, he is no
longer “serving a sentence of imprisonment, probation or parole ” for any of

the crimes for which he was convicted at this docket. See N.T. Oral Argument

on PCRA Petition, 3/25/22, at 48 (“ [Appellant’s Attorney:] ‘ There is one thing,
and I don’t want to go much into it, it’s just that [Appellant] is now done with

his supervision. He’s not on a sentence anymore .’ [PCRA Court: ] ‘ Wait, the

entire sentence is done[?] ’ [Appellant’s Attorney:] ‘I don’t want to

– yes, he ’s

done with his case.’” ) ; see also Appellant’s Brief at 14 (“Appellant is no longer
serving a sentence”). Notwithstanding this fact, Appellant claims that he is

entitled to PCRA relief because “he is still under the shadow of the lifetime

reporting requi rements as he was deemed an ‘SVP’ and[,] therefore, . . . he
is still being punished.” Appellant’s Brief at 10. Appellant’s claim fails.

To be eligible for relief under the PCRA:J

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- the petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. § 9543(a)(1)(i). As soon as his sentence is completed, the petitioner becomes ineligible for relief, regardless of whether he was servi ng his sentence when he filed the petition. In addition, this [C]ourt determined in Commonwealth v. Fisher , 703 A.2d 714 (Pa. Super. 1997), that the PCRA precludes relief for those petitioners whose sentences have expired, regardless of the collateral

co nsequences of their sentence. Id. at 716 (citations omitted).

Commonwealth v. Hart , 911 A.2d 939, 941

– 942 (Pa. Super. 2006) (some

citations omitted). 2

On April 8, 2011 , the trial court originally sentenced Appellant to serve
a term of two to four years i n prison, followed by eight years of probation , for

his crimes. Appellant then violated his probation and, on April 8, 2015, the

trial court resentenced Appellant to serve a term of six to 24 months in jail,

followed by five years of probation, for his crimes. Appellant admits that,
during the pendency of the post

- conviction collateral relief proceedings, he

_________________ __________ ______ ____ _______

2 In relevant part, Section 9543 of the PCRA declares:

(a ) General rule.

-- To be eligible for relief under [the PCRA], the petitioner must plead and prove by a preponderance of the evidence all of the following:

(1 ) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or parole for the crime[.]

42 Pa.C.S.A. § 9543(a)(1)(i).J

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-

completed serving his probationary term at this docket

. See Appellant’s Reply

B rief at 6 (“While [the PCRA] proceedings dragged on and very shortly after

the PCRA petition was dismissed, [Appellant’s] sentence expired”) ; see also
N.T. Oral Argument on PCRA Petition, 3/25/22, at 48 (Appellant’s attorney

admitted that Appellant’s term of probation had expired); Appellant’s Brief at

14 (same). Therefore, in accordance with 42 Pa.C.S.A. § 9543(a)(1)(i) and

our precedent, Appellant is no longer eligible for relief under the PCRA.

Indeed, our opinion in Commonwealth v. Kirwan , 221 A.3d 19 6 (Pa. Super.

2019) is directly on point.

In Kirwan , the defendant was charged with committing several sexual

assaults against minors. The assaults occurred in 2002 and 2005 and Kirwan
pleaded guilty to committing the crimes in 2011

. In 2012, the trial c ourt found

Kirwan to be an SVP and sentenced him to serve a term of incarceration

. Id.

at 19 7

- 19 8

. In 2018, Kirwan filed a PCRA petition and claimed that he was entitled

to PCRA or habeas corpus relief , in part, because “Subchapter I [of SORNA]

subjects him to retroactive punishment in violation of Commonwealth v.

Muniz , 164 A.3d 1189 (Pa. 2017) .” Id. at 198. The PCRA court dismissed

Kirwan’s petition because Kirwan was “no longer serving a sentence of

imprison ment, probation, or parole for his crimes , ” as required by Section

9543(a)(1)(i). Id. at 198. Kirwan appealed to this Court and, on appeal,

Kirwan admitted that he had served his sentence in full. Id. at 199. However,
Kirwan argued that he was still el igible for PCRA relief because SORNA’sJ

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-

registration requirements constituted continued “punishment.” Specifically,

Kirwan argued:

h is registration requirements under SORNA II, as a direct result of his criminal conviction for a sexual offense, undoubtedly restrict his liberty interests to such a substantial degree that it must fall under the jurisdiction of 42 Pa.C.S. § 9543(a)(1) as a sentence of imprisonment, probation, or parole for the crime. [Kirw a n argued ] the Pennsylvania Supreme Court, in Muniz , recognized SORNA's registration requirements and probation are essentially the same in scope and consequence. Consequently, Kirwan [ claimed] SORNA

“ falls squarely within the plain meaning of ‘probation,’ and so long as he is subject to SORNA II's new registration requirements, he is ‘eligible’ for relief under 42 Pa.C.S. § 9543(a)(1)(i). ”

Id. at 199 ( some citations , corrections , and qu otation marks omitted)

.
The Kirwan Court looked to the plain language of Section 9543(a)(1)(i)

and rejected Kirwan’s claim. We reasoned:

the PCRA restricts relief to those petitioners “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S. § 9543(a)(1)(i) (emphasis supplied). Under a plain reading of the statute, Kirwan is not currently imprisoned, on probation or on parole, and is, therefore, ineligible for PCRA relief.

Furthermore, the fact that the Supreme Court in Muniz declared that SORNA's registration requirements constituted punishment, does not affect our decision. W hile the Muniz Court found the registration requirements of SORNA were “akin to probation” for purposes of determining whether the requirements were punitive, the Court did not determine the registration requirements constitute a “sentence of .

. . probati on” for purposes of PCRA eligibility. The language of the statute clearly states that only the sanctions of imprisonment, probation and parole are “sentences” for eligibility purposes.J

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-

Id. at 200 ( footnote and some citations and corrections omitted) (emph asis
in original)

.
Kirwan is on all fours with the case at bar. Therefore, in accordance

with Kirwan (and the plain language of Section 9543(a)(1)(i) ) , since
Appellant is not “currently serving a sentence of imprisonment, probation or
parole” for his crim es, Appellant is not eligible for PCRA relief. We thus affirm

the PCRA court’s order.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/14/2023