The URL can be used to link to this page

Home My WebLink AboutCP-21-CR-0001409-2008COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : CHARGE: FAILURE TO COMPLY WITH REGISTRATION OF SEXUAL OFFENDERS REQUIREMENTS ERIC KENNETH JONES OTN: K559344-2 : CP -21 -CR -1409-2008 IN RE: DEFENDANT'S PETITION FOR WRIT OF HABEAS CORPUS OPINION and ORDER OF COURT OLER, S.J., May 1, 2018. In this criminal case, Defendant has filed a pro se petition for writ of habeas corpus, challenging the validity of his 2008 conviction for failure to comply with registration of sexual offenders requirements under Section 4915(a)(1) of the Crimes Code.' A hearing was held on the petition on April 3, 2018, and April 30, 2018. Based upon the expiration of Defendant's sentence for the offense in question, Defendant's petition will be dismissed. STATEMENT OF FACTS Defendant was charged on May 12, 2008, with failure to comply with registration of sexual offenders requirements, in violation of Section 4915(a)(1) of the Crimes Code,2 as the result of his alleged failure to notify Pennsylvania State Police of his establishment of a new residence in Cumberland County following his release from the Dauphin County Prison on an unrelated matter.3 He was found guilty following a jury trial,4 and sentenced on December 23, 2008, to a standard range period of imprisonment of not less than 40 months nor more than 80 months in a state correctional institution, Defendant's Petition for Writ of Habeas Corpus, filed February 5, 2018. 2 Act of November 24, 2004, P.L. 1243, §1, as amended, 18 Pa. C.S. §4915(a)(1) (2008 Supp.). ' See Criminal Complaint, affidavit of probable cause, filed May 12, 2008. 4 See Order of Court, September 24, 2008. 1 with credit to be given for 205 days previously served .5 A direct appeal from the judgment of sentence was not successful,6 nor was a petition for allowance of appeal from the affirmance.' On July 13, 2009, Defendant was sentenced in Dauphin County, Pennsylvania, in another case to undergo imprisonment in a state correctional institution for a period of not less than 25 years nor more than 50 years pursuant to 42 Pa. C.S. §9718.2 (mandatory minimum sentences for certain repeat sexual offenders).$ The Dauphin County sentencing order read as follows: AND NOW, this 13th day of July, 2009, in the matter of the Commonwealth v. Eric Kenneth Jones, 751 CR 2008, the defendant having been convicted on January 14, 2009, of a single count of indecent assault by forcible compulsion and the Court and the parties having agreed that the defendant had, at the time of this conviction, previously been convicted of the crime of rape, that pursuant to Section 9718.2 of the Judicial Code, I sentence the defendant to a minimum term of incarceration of 25 years, a maximum term of 50 years in the state correctional system. I am imposing a fine of $200 plus costs just to have the fines covered so that it is not going to be changed again in the future. It is imposed. Although the Dauphin County sentencing order was silent as to whether the sentence was to run concurrently with the Cumberland County sentence in the case sub judice, the Dauphin County court subsequently denied a request that its sentence be deemed to run consecutively to the Cumberland County sentence.10 Furthermore, in a hearing on another habeas corpus petition in April of 2015, Defendant testified that his 5 Order of Court, dated December 23, 2008. 6 See Commonwealth v. Jones, 2009 WL 5574700, 988 A.2d 722 (Pa. Super. Ct.). See Commonwealth v. Jones, 606 Pa. 640, 992 A.2d 124 (2010). s Order of Court, dated July 13, 2009, Commonwealth v. Jones, No. 0751 CR 2008 (Dauphin Co.). 9 Id. 10 See Motion for Court To Confirm Sentence Was Not Concurrent to Any Other Sentence, filed February 18, 2015, Commonwealth v Jones, No. 751 CR 2008 (Dauphin Co.); Order of Court, dated April 14, 2015, Commonwealth v. Jones, No. 751 CR 2008 (Dauphin Co.). Pa Cumberland County sentence had expired as of January 12, 2015, and that he was no longer serving that sentence." Finally, the state correctional system has calculated Defendant's current minimum to expire in 2034, consistent with the proposition that his Dauphin County sentence was concurrent with the prior Cumberland County sentence, and that the Cumberland County sentence has expired. Evidence at Defendant's trial in Cumberland County in 2008 revealed that he had been released from the Dauphin County prison on April 29, 2008, did not register his new address in Cumberland County, and was arrested on May 12, 2008, for failure to comply with sexual offender registration requirements in violation of Section 4915(a)(1) of the Crimes Code. 12 This provision of Megan's Law III13 read as follows: An individual who is subject to registration under 42 Pa.C.S. § 9795.1(a) (relating to registration) or an individual who is subject to registration under 42 Pa.C.S. § 9795.1(b)(1), (2) or (3) commits an offense if he knowingly fails to ... register with the Pennsylvania State Police as required under 42 Pa.C.S. § 9795.2 (relating to registration procedures and applicability) .... Act of November 24, 2004, P.L. 1243, §1, 18 Pa. C.S. §4519(a)(1) (expired December 20, 2012). Under Section 9795.2 of Megan's Law III, the period for registration of a new residential address was 10 days. Act of November 24, 2004, P.L. 1243, §8, 18 Pa. C.S. 9795.2. By an amendment to Megan's Law III in 2006, this period was reduced to two days. Act of November 9, 2006, P.L. 1567, §7, 18 Pa. C.S. §9795.2. This latter period was applicable to Defendant's offense in 2008.14 11 N.T. 8, Hearing, April 20, 2015. He also testified at that hearing, however, that the state correctional system had not yet "turned [him] over for that," suggesting that he was being carried on its records as serving both the Cumberland County sentence and the Dauphin County sentence. 12 N.T. 30-34, Trial; Criminal Complaint, filed May 12, 2008; Information, filed July 21, 2008. " See Commonwealth v. Derhammer, Pa. _, _, 173 A.3d 723, 724 (2017). 14 See N.T. 165-66, Trial (charge of court on elements of offense). It would appear, however, that he did not register within the ten-day period either. 3 In 2013, the Pennsylvania Supreme Court held Megan's Law III unconstitutional pursuant to the single -subject rule applicable to legislation under the Pennsylvania Constitution. Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (2013). On November 22, 2017, in Commonwealth v. Derhammer, Pa. , 173 A.3d 723 (2017), the Court held, in the context of a defendant's direct appeal from a judgment of sentence for failure to register, that the 2006 amending statute was equally unviable. On February 5, 2018, Defendant filed the instant petition for writ of habeas corpus. 15 The petition alleges that the Cumberland County sentence is "all [Defendant] is serving," and requests, citing Derhammer, that his conviction be dismissed, that his sentence be vacated, and that he be released. 16 DISCUSSION "[The Post Conviction Relief Act] provides an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in [the act] shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose .... including habeas corpus and coram nobis." 42 Pa. C.S. §9542. Accordingly, Defendant's petition for writ of habeas corpus sub judice will be treated as a petition under the Post Conviction Relief Act. See, e.g., Commonwealth v. Taylor, 2013 PA Super 89, 65 A.3d 462. Under Section 9543(a)(1)(1) of the Post Conviction Relief Act, "[t]o be eligible for relief [under the act], the petitioner must plead and prove by a preponderance of the evidence ... [t]hat the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted ... currently serving a sentence of imprisonment, probation or parole for the crime ....,17A petitioner is ineligible for 15 Defendant's Petition for Writ of Habeas Corpus, filed February 5, 2018. 16 Id. 17 42 Pa. C.S. §9543(a)(1)(1). C! relief under the Post Conviction Relief Act once the sentence for the challenged conviction is completed. Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997); Commonwealth v. Hayes, 408 Pa. Super. 68, 596 A.2d 195 (1991). A sentence is not deemed incomplete merely because a monetary penalty may remain unpaid. Commonwealth v. Fisher, 703 A.2d 714 (Pa. Super. Ct. 1997) (pendency of payment of fine held not impediment to expiration of sentence for purposes of application of this eligibility criterion); cf. Commonwealth v. Delgros, Pa. A.3d , 2018 WL 1959478 (2018). This prerequisite for relief under the Post Conviction Relief Act implicates the jurisdiction of the court. Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997); As a general rule, where a second sentence to a state correctional institution is silent as to whether it is concurrent with, or consecutive to, a previous sentence, it is deemed concurrent. "The law is settled that if the sentencing court does not indicate that a new sentence is consecutive to a prior sentence, it is deemed to run concurrent." Commonwealth v. Fisher, 703 A.2d 714, 716 n.3 (Pa. Super. Ct. 1997). In the present case, the sentence that Defendant challenges collaterally as illegal expired several years ago. As a consequence, this court lacks jurisdiction to afford Defendant relief under the Post Conviction Relief Act. ORDER OF COURT AND NOW, this 1sT day of May, 2018, upon consideration of Defendant's Petition for Writ of Habeas Corpus, following a hearing held on April 3, 2018, and April 30, 2018, and for the reasons stated in the accompanying opinion, the petition is dismissed. BY THE COURT, J. Wesley Oler, Jr., S.J. 61 Charles J. Volkert, Jr., Esq. Cumberland County District Attorney's Office For the Commonwealth Eric Kenneth Jones HW2865 SCI at Camp Hill 2500 Lisburn Road Camp Hill, PA 17011 [certified and regular mail] Probation Office Sheriff SCI -Camp Hill Victim Services Court Administrator's Office Gol