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Cynthia A. Dyrda-Hatton, Esq. Amy Carnicella, Esq. Brian J . Collins

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Cynthia A. Dyrda-Hatton, Esq. Amy Carnicella, Esq. Brian J . Collins ( IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA, v. No. CR 551-2013 PATRICK KELLY, Defendant Cynthia A. Dyrda- Hatton, Esq. Counsel for Commonwealth Assistant District Attorney Amy Carnicella, Esq. Pennsylvania State Police Assistant Counsel Brian J . Collins, Esq. Counsel for Defendant MEMORANDUM OPINION AND ORDER Matika, J. - June J?, 2019 I. INTRODUCTION. This Memorandum Opinion addresses the September 15, 2017 "Defendant's Motion to Bar the Applicability of Sex Offender Registration and/or Petition for Writ of Habeas Corpus" ("Defendant's Motion") filed by Defendant Patrick Kelly ("Defendant" or "Mr. Kelly"). In accordance with the Order that follows this Memorandum Opinion, Defendant's Motion shall be DENIED . ' , 1 [FM - 20 - 19) II . FACTUAL AND PROCEDURAL BACKGROUND. A . The Underlying Charges, the January 1, 2011 through December 31, 2012 Timeframe, and Procedure Prior to The September 15, 2017 Defendant's Motion to Bar the Applicability of Sex Offender Registration and/or Petition for Writ of Habeas Corpus . On May 23 , 2013, the Commonwealth filed a Criminal Complaint and Affidavit of Probable Cause against Defendant . Through these documents, the Common wealth accused Defendant of committing t he following a c ts on or about the time period between January 1 , 2011 and December 31, 2012 : Count 1 : Aggravate d Indecent Assault of Chi ld (18 Pa.C.S.A. §3125 (b)) [Felony 1); Count 2: Agg ravated Indecent Assault of a Comp lainant Who is Less than 1 3 Years Old (18 Pa . C . S.A. §3125(a) (7)) [Felony 2) ; Count 3: Aggr ava ted Indecent Assault of a Complainant Who is Less t han 16 Year s Old (18 Pa.C.S.A. §3126(a) (8)) [Felony 2) ; Count 4 : Indecen t Assault of a Person Who is Less than 13 Years Old (1 8 Pa . C. S.A. §3126(a) (7)) [Misdemea nor 1] ; and Count 5 : Indecent Exposure (18 Pa . C.S.A. § 3126(a) (7)) [Misdemea nor 1 ) . On June 5 , 2 0 13, Defendant waived a preliminary hearing and each of the five counts s et forth above bound over to this Court. See May 23 , 2013 Criminal Complaint and Affidavit of Probable Cause 2 [FM- 20-1 9) On June 18 , 2013, the Commonwealth filed a Criminal Information and charged Defendant with the five crimes delineated above, accusing Defendant i n each count of committing said crimes " (b]etween January 1, 2011 and December 31, 2012 ." On April 29, 2016, the Commonwealth and Defendant entered into a Stipulation to Amend Criminal Information that both re­ iterated that the acts underpinning Counts 1 through 5 set forth in the Criminal Information occurred "on or about 2011 through 2012" and memorialized that " [t]he Commonwealth and the Defendant hereby stipulate that the Criminal Infor mation filed in the above captioned matter be amended to include a charge of Indecent assault which is in violation of 18 Pa.C.S.A. § 3126 §§ (a) (1) of the Pennsylvania Crimes Code, making it Count #6 . " See April 29 , 2016 Stipulation to Amend Criminal Information. This Court, in turn, a lso on April 29, 2016, and in accordance with proposed order submitted by the Commonwealth and Defendant with the Stipulation to Amend Criminal Information, entered an April 29, 2016 Order of Court that ordered and decreed that the Criminal Information be amended to include as Count 6 a count of Indecent Assault, 18 Pa . C . S .A. § 3126 (a) (1) [Misdemeanor 2] . See April 29 , 2016 Order of Court. 1 In what the Court shall treat as a scrivening err or in the proposed order submitted by the Commonwealth and Defendant with the 3 [FM-20-19] Finally, and again on April 2 9, 2016, Defendant entered a guilty plea stipulation to the "added" Count 6 , Indecent Assault, 18 Pa. C.S.A. § 3126 (a) (1) [Mis demeanor 2]. See April 29, 2016 Stipulation. As part of the guilty plea stipulation, the Commonwealth dismissed the remai ning counts, Count 1 through Count 5 , identified supra. In effectuating the guilty plea, Defendant completed a written "Megan' s Law / SORNA Colloquy" wher ein he acknowledged that he understood the duties that would be imposed upon him as a result of the guilty plea . 2 This included Defen dant ' s understanding that as a result of his guilty plea, he would be "subj ect to the provisions of Title 42 Pa.C . S . A. § 9799 . 10 et. seq. entitled ' Registration of Sexual Offenders' which is Pennsylvania' s version of ' Megan' s Law/ SORNA ' " and that he would be required to register with the Pennsylvania State Police for a period of fifteen years. See "Megan's Law/ SORNA Colloquy. " Stipulation to Amend Criminal Information, the accusation constituting Count 6 states that Defendant, "[o)n or about May 23, 2013" - as opposed to the "on or about 2011 through 2012" time period referenced throughout the Stipulation to Amend Criminal Information - "did have indecent contact wit h the complainant, or did cause the complainant to have indecent contact with the actor, or did intentionally cause the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the actor or the complainant, the person does so without the complainant's consent . " See April 29, 2016 Order of Court. As indicated supra , the Commonwealth filed the Criminal Complaint and Affidavit of Probable Cause against Defendant on May 23 , 2013. 2 See generally 42 Pa . C. S.A. § 9799.10 et. seq. "SORNA" serves an acronym for "Sexual Offender Registration and Notification Act." 4 [ FM-20-19) During the verbal guilty plea colloquy, Defendant acknowledged that he committed the Indecent Assault to which he pleaded guilty from January 1, 2011 through December 31r 2012 and as part of his guilty plea, he had to register as a sex offender for fifteen years pursuant to SORNA. Defendant testified under questioning from the Commonwealth: MS. HATTON: Your Honor, this is based upon the affidavit of probable cause of Detective Jack Soberick. Detective Soberick of the Lansford Police Department was assigned to investigate complaints of a sexual assault t hat had occurred between an adult male, at that time age 27 , and a female, at that time age six. The assau1t was a11egedly to have occurred spanning the time:fra.me o:f 2011 and 2012. The Defendant in this matter was Patrick Kelly, at that time age 27. And the female is known as S.K. She was age six at that time . It is the Defendant's child. The allegation, Your Honor, was that he had touched her genital area with his finger. This occurred, Your Honor, at not only a house in which the Defendant had resided in Lansford, but also at another house where he had resided with his mother . THE COURT: Mr. Kelly, are those facts essentially correct and sufficient to meet the elements of the crime that you are here to plead guilty to? THE DEFEDANT: Yeah . THE COURT: I am sorry? THE DEFENDANT: Yes. *** THE COURT: You do understand, Mr. Kelly, that when it does come time for sentencing, regardless of the outcome of the evaluation, there is going to be a 5 [FM-20-19] minimum 15-year reporting requirement pursuant to Megan's Law, do you understand that? THE DEFENDANT: Yes. THE COURT: Attorney Collins has gone over that with you? THE DEFENDANT: Yes. See Transcript of Proceedings, April 29, 2016 at 4, 8 (emphasis added) . 3 Following an assessment conducted by the Sexual Offender Assessment Board ("SOAB"), SOAB found Defendant not to be a sexually violent predator. The Court notes that, while under oath during the April 29, 2016 plea proceedings, Defendant advised the Court of his glowing satisfaction with the services of his counsel, Brian J. Collins, Esq. In particular, Defendant testified: THE COURT: Mr. Kelly, are you satisfied with the services of Attorney Collins? DEFENDANT : Very much sir. THE COURT: Okay. Is there anything that I have asked Attorney Collins in regards to this case, and in particular this proceeding, that you do not feel you have received sufficient answers to? DEFENDANT: There is nothing he wouldn't do. He is a good attorney. THE COURT: You are satisfied then? DEFENDANT: Yes. See Transcript of Proceedi ngs, April 29, 2016 at 6. 6 [FM-20-19) On July 5, 2016, this Court sentenced Defendant to a period of incarceration and parole for commit ting Indecent Assault during the January 1 , 2011 through December 31, 2012 time frame. In conjunction with the sentencing, Defendant completed a "Sentencing Colloquy - Walsh Law Offense" form and received notification that if he elected to file a post-sentence motion, he needed to do so no late r tha n ten days afte r the i mposition of sentence . As it had done during the April 29 , 2016 plea proceedings, the Court advised Defendant that he would have to register for a fifteen year period as a sex offender. B . The September 15, 2017 Defendant's Motion to Bar the Applicability of Sex Offender Registration and/or Petition for Writ of Habeas Corpus. On September 15, 2017 , Defendant filed Defendant's Motion in which he requests "that this Court grant the instant Petition finding registration inapplicable to Petitioner or issue a Writ of Habeas Corpus because the application of sexual offender registration violates due process, and registration of a person whose offense occurred prior to SORNA is not mandated or controlled by any operable law." See Defendant's Motion, Prayer for Relief . In support of this request for relief, Defendant ' s Motion alleges: "8.
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