Com. v. Clark, J.

• Court: Superior Court of Pennsylvania
• Decided: August 10, 2021
• Docket: 1391 EDA 2020
• Status: Unpublished

Opinion

J-S12024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES CLARK : : Appellant : No. 1391 EDA 2020

Appeal from the PCRA Order Entered June 22, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001151-2009

BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED AUGUST 10, 2021

Appellant James Clark appeals from the order dismissing his Post

Conviction Relief Act (PCRA) petition challenging the application of the

increased term of sex offender registration under the former version of the

Sexual Offender Registration and Notification Act.1 Appellant’s counsel has ____________________________________________

1 42 Pa.C.S. §§ 9799.10-9799.42 (subsequently amended eff. Feb. 2018) (SORNA I). We note that at the time of Appellant’s conviction, Act 152, or Megan’s Law III, see 2004, Nov. 24, P.L. 1243, No. 152, governed Appellant’s sex offender registration requirements. Thereafter, SORNA I took effect in December 2012. On December 16, 2013, our Supreme Court held that Act 152 was unconstitutional for violating the single-subject rule. Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013). On July 17, 2017, our Supreme Court decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality), and held that SORNA I was punitive and violated the constitutional prohibitions against ex post facto laws when applied to a defendant who committed a sexual offense before December 20, 2012, the effective date of SORNA I. See Muniz, 164 A.3d at 1223; see also Commonwealth v. Lippincott, 208 A.3d 143, 150-54 (Pa. Super. 2019) (en banc). (Footnote Continued Next Page) J-S12024-21

filed a petition to withdraw and an Anders2 brief. For the reasons that follow,

we affirm the order and grant counsel’s petition to withdraw.

Briefly, on January 12, 2010, Appellant entered a negotiated guilty plea

to two counts of sexual abuse of children and one count of criminal use of

communication facility,3 and the trial court imposed the agreed-upon sentence ____________________________________________

We add that in response to Muniz, the General Assembly amended SORNA I. See 2018, Feb. 21, P.L. 27, No. 10 (Act 10) (SORNA II); see also 2018, June 12, P.L. 140, No. 29 (Act 29). SORNA II divides sex offender registrants into two distinct subchapters—Subchapter H, which includes individuals who were convicted of a sexually violent offense that occurred on or after December 20, 2012, and Subchapter I, which includes individuals who were convicted of a sexually violent offense that occurred “on or after April 22, 1996, but before December 20, 2012,” or who were required to register under a former sexual offender registration law on or after April 22, 1996, but before December 20, 2012, and whose registration requirements had not yet expired. See 42 Pa.C.S. §§ 9799.11(c), 9799.52.

2 Anders v. California, 386 U.S. 738 (1967).

3 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.

We note that the record at the time of Appellant’s plea indicates that the trial court and counsel were uncertain as to whether Appellant would be subject to a ten-year or life registration period due to Appellant’s convictions for the two counts of sexual abuse of children in this case. See N.T., 1/12/10, at 6-9. Appellant’s trial counsel stated that Appellant did not intend to withdraw his plea even if the Pennsylvania State Police later determined that he was subject to a life registration period. Id. at 10.

Our Supreme Court has since held that the provisions in SORNA I and prior versions of Megan’s Law reflect a recidivist philosophy and require that a lifetime registration period for “two or more convictions” involve “an act, a conviction, and a subsequent act . . . .” See A.S. v. Pennsylvania State Police, 143 A.3d 896, 897-98, 908 (Pa. 2016); see also Commonwealth v. Lutz-Morrison, 143 A.3d 891, 895 (Pa. 2016). Put differently, our Supreme Court held that a lifetime registration period did not apply based on multiple (Footnote Continued Next Page)

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of eleven-and-one-half to twenty-three month’s imprisonment and a

consecutive seven years of probation. Appellant signed a written addendum

to his guilty plea colloquy and a “Sexually Violent Offenders Notification at

Sentencing” form that summarized his sex offender registration obligations.

Appellant did not file post-sentence motions, nor did he take a direct appeal.

Appellant filed a pro se PCRA petition, his first, on February 21, 2019,

asserting that he “signed a plea deal for [ten] years [Megan’s Law

registration,] it is now [ten] years later[, and] now it is [twenty-five] years,

which is incorrect.” PCRA Pet., 2/21/19, at 3. Appellant claimed that his

registration period should be ten years and that he was no longer required to

register. Id.

The PCRA court appointed counsel to represent Appellant, and counsel

filed an amended petition on July 1, 2019. In his amended PCRA petition,

____________________________________________

offenses committed in a single criminal prosecution. Although A.S. and Lutz- Morrison did not address Megan’s Law III specifically, Megan’s Law III contained the same “two or more convictions” language discussed in those cases. See 42 Pa.C.S. § 9795.1(b)(1) (expired 2012) (setting a lifetime registration requirement for “an individual with two or more convictions of any of the offenses [subject to a ten-year registration period]”). Moreover, Subchapter I continues to use the same language, see 42 Pa.C.S. § 9799.55(b)(1), and the parties and the PCRA court here do not dispute that the ten-year registration period applies. See Anders Brief at 7; Commonwealth’s Brief at 13; PCRA Ct. Op., 12/7/20, at 4.

Lastly, we note the face sheet of the guilty plea transcript states that the hearing occurred on January 1, 2010, but there is no dispute that the hearing occurred on January 12, 2010. Therefore, we cite to the guilty plea hearing using the January 12, 2010 date.

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Appellant claimed: (1) “[i]t was . . . negotiated between the Commonwealth

and [Appellant] that he was to be subject to ten (10) year registration

requirement under Megan’s Law[;]” (2) “[i]n fact, [Appellant] is subject to a

longer registration requirement than the ten (10) years he negotiated for[;]”

and (3) “[i]f [Appellant] had known about the extended registration

requirement, he would not have entered in the [g]uilty plea . . . .” Am. PCRA

Pet., 7/1/19, at 1-2 (unpaginated). Notably, Appellant did not raise a claim

of ineffective assistance of counsel in his amended petition.

The Commonwealth filed an answer on October 3, 2019, requesting that

the PCRA court dismiss the petition as meritless. Answer to Request for PCRA

Relief/Mot. to Dismiss, 10/3/19, at 3. Specifically, the Commonwealth

asserted that Appellant “will not be subject to the SORNA [I] that was

contested in [Muniz]” and that “any prior application of SORNA [I] has already

been corrected.” Id. at 2. According to the Commonwealth, Appellant is

subject to a ten-year registration requirement and “will not be required to

register for a lengthier period of time under SORNA II [and] has not been

subjected to . . . more onerous registration requirements.”4 Id. at 2-3. For

those reasons, the Commonwealth concluded that Appellant could not assert

a breach of the benefit of his plea agreement or an ex post facto violation.

Id. at 3. ____________________________________________

4 The Commonwealth attached to its answer a printout from the Megan’s Law

website dated October 2, 2019. The page lists Appellant as a ten-year “offender type.” Attach. to Answer to Request for PCRA Relief/Mot. to Dismiss.

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On October 3, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition without a hearing. Appellant did not

file a response,5 and the PCRA court dismissed Appellant’s petition on June

22, 2020.

Appellant timely appealed on July 21, 2020. Both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. In its Rule 1925(a) opinion, the

PCRA court stated that Appellant timely filed his PCRA petition, but that his

claims were frivolous because Appellant was aware that he would be subject

to sex offender registration requirements and a ten-year registration period.

As noted above, Appellant’s counsel has filed a motion to withdraw from

representation in this Court asserting that an appeal is frivolous and an

accompanying Anders brief.

Before addressing the matters raised in counsel’s brief, we first consider

counsel’s request to withdraw. In so doing, we are mindful that our Supreme

Court, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), declined

“to find the PCRA, or any other procedural mechanism, is the exclusive method

for challenging sexual offender registration statutes . . . .” Lacombe, 234

A.3d at 618. Moreover, the Lacombe Court specifically rejected the

application of the PCRA time bar to claims challenging changes to sex offender

5 While counseled, Appellant sent a pro se letter dated April 28, 2020 to the

PCRA court essentially asking how his ten-year registration period was still in effect when it began on February 16, 2010.

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registration laws. See id. at 617-18; see also Commonwealth v. Smith,

240 A.3d 654, 658 (Pa. Super. 2020).

Generally, this Court has recognized two procedures for counsel to seek

withdrawal during an appeal—the Anders/Santiago6 procedures applicable

in a direct appeal, and the Turner/Finley7 procedures applicable in a PCRA

appeal. See Commonwealth v. Wrecks, 931 A.2d 717, 720-22 (Pa. Super.

2007). The Anders/Santiago and the Turner/Finley procedures both

require counsel “to examine the record, present issues, and request

permission to withdraw.” Id. at 721. Additionally, both procedures require

that counsel notify his client of his intent to withdraw, provide a copy of his

brief or letter, and advise the client of his right to proceed in an appeal pro se

or with privately retained counsel. See Commonwealth v. Muzzy, 141 A.3d

509, 511 (Pa. Super. 2016) (discussing Turner/Finley); Commonwealth v.

Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (discussing

Anders/Santiago).

This Court has held that the Anders/Santiago standard to determine

whether an appeal is frivolous is more stringent and provides greater

6 Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). As this Court noted in Commonwealth v. Daniels, 999 A.2d 590 (Pa. Super. 2010), Santiago altered the Anders requirements for withdrawal and requires that counsel “provide the reasons for concluding the appeal is frivolous.” Daniels, 999 A.2d at 593. Before Santiago, counsel seeking to withdraw was required to “not argue against the client’s interests.” See Wrecks, 931 A.2d at 722.

7 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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protection to a defendant than the Turner/Finley standard based on lack of

merit. Wrecks, 931 A.2d at 722. The increased protections afforded by

Anders/Santiago reflect the constitutional right to counsel in a direct appeal.

See id. It is well-settled that because of the greater protections afforded by

Anders, this Court “may accept an Anders brief in lieu of a Turner/Finley

letter.” Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.

2004); accord Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super.

2014).

Instantly, counsel was appointed as Appellant’s counsel for his first

PCRA petition. Accordingly, we review counsel’s petition to withdraw and

Anders brief as follows:

[c]ounsel petitioning to withdraw from PCRA representation must proceed under [Turner and Finley] and must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

Where counsel submits a petition and no-merit letter that . . . satisfy the technical demands of Turner/Finley, the court—trial court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Muzzy, 141 A.3d at 510-11 (citations omitted and formatting altered).

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Instantly, counsel has filed a petition to withdraw asserting that he

thoroughly reviewed the case, believed an appeal was wholly frivolous,

notified Appellant of his intent to withdraw, and provided a copy of his brief.

Counsel attached to his petition a copy of his letter to Appellant, which

informed Appellant of his right to proceed pro se or with private counsel.

Appellant did not file a response pro se or through private counsel.

Counsel’s brief summarizes the relevant record and explains why

Appellant’s claim that he is subject to a longer term of registration than at the

time of his plea lacked merit. Anders Brief at 7-10. Therefore, counsel has

substantially complied with the technical requirements for withdrawal by

explaining why Appellant’s intended issue lacked merit.8

We address first counsel’s analysis of Appellant’s claim that he is subject

to a longer period of registration than at the time of his plea. See Anders

Brief at 7-10. Counsel notes that SORNA I no longer applies to Appellant and

that under SORNA II, he will be subject to a ten-year registration period, which

is the same registration period agreed to at the time of his plea. Id. at 7-8.

Appellant’s issue concerns a review of the relevant statutes, which

implicates a question of law. Therefore, our standard of review is de novo, ____________________________________________

8 Counsel independently raised what he called an issue of arguable merit without explaining why it was meritless. See Anders Brief at 10. Counsel’s failure to explain why the issue is meritless violates the requirements of Turner/Finley and Santiago. See Wrecks, 931 A.2d at 722. In any event, as discussed below, the issue identified by counsel, specifically, the effectiveness of Appellant’s counsel at the time of the plea, is not cognizable in this appeal because it was not preserved before the PCRA court.

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and our scope of review is plenary. Lutz-Morrison, 143 A.3d at 894. We

reiterate that Appellant’s claim based on the changes in the sex offender

registration law is not subject to the PCRA time bar. See Lacombe, 234 A.3d

at 618.

Instantly, our review reveals that at the time of Appellant’s plea,

Megan’s Law III required Appellant to register as a sex offender for a period

of ten years for his sexual abuse of children convictions. See 42 Pa.C.S. §

9795.1(a)(1) (expired 2012). In 2012, SORNA I took effect and listed

Appellant’s sex offenses as Tier I offenses requiring him to register for fifteen

years. See 42 Pa.C.S. §§ 9799.14(b)(9), 9799.15(a)(1) (subsequently

amended 2018). However, Muniz then found SORNA I unconstitutional for

retroactively imposing a punishment, and in response, the General Assembly

passed SORNA II, creating Subchapter I, which applied to Appellant based on

the child pornography found on his computer in 2008. See 42 Pa.C.S. §§

9799.55(a)(1)(i)(A) (requiring ten-year registration for individuals convicted

of the offense of sexual abuse of children committed “on or after April 22,

1996, but before December 20, 2012”).

For these reasons, we agree with counsel’s assessment that Appellant’s

intended challenge based on an increased period of registration lacks merit.

Essentially, Appellant’s claim that SORNA I increased his period of registration

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lacks merit due to the changes in the relevant statutes. Accordingly, no relief

is due.9

To the extent counsel identified an issue based on the effectiveness of

counsel at the time of Appellant’s plea, we cannot address it in this appeal

because Appellant’s amended PCRA petition did not plead a claim of ineffective

assistance of counsel. See Pa.R.A.P. 302(a). Because this issue was not

preserved before the PCRA court, it is waived, and we will not address it for

the first time on appeal. See Commonwealth v. Reid, 99 A.3d 470, 496

(Pa. 2014).

Order affirmed. Petition to withdraw granted.

9 Appellant did not claim that Subchapter I was punitive or that he was subject

to a more stringent registration, notification, or verification provision. Rather, as noted above, Appellant challenged only the length of his registration period.

We add that Appellant attempted to raise claims that his ten-year registration period should have ended. As noted by the Commonwealth, Appellant is serving a sentence of imprisonment in a different case, Commonwealth’s Brief at 13, and the record shows that the trial court also previously revoked Appellant’s probation and imposed new sentences of incarceration for his probation violation in the instant case, most recently, a new sentence of one to five years’ imprisonment imposed on March 3, 2015. According to the Commonwealth, Appellant’s incarceration tolls the sex offender registration period. See id.; see also 42 Pa.C.S. §§ 9799.54(a), 9799.56(a)(3). However, we decline to consider that issue because it was not properly raised in the PCRA court and because the issue appears to concern the Pennsylvania State Police’s authority to administer SORNA II and interpret the tolling provisions of a sex offender registration requirement when an offender is incarcerated. See generally A.S., 143 A.3d at 898-99.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/10/2021

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