Com. v. Peno, K.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2019
• Docket: 1669 MDA 2018
• Status: Unpublished

Opinion

J-S22030-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN PENO : : Appellant : No. 1669 MDA 2018

Appeal from the PCRA Order Entered September 19, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002996-1996

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 09, 2019

Appellant, Kevin Peno, appeals pro se from the September 19, 2018

Order, entered in the Dauphin County Court of Common Pleas, dismissing his

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. He contends that (1) he was denied the effective assistance

of counsel when counsel agreed to the GPS monitoring device as a condition

of his probation; and (2) wearing the GPS monitoring device was punitive and,

therefore, a violation of Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017). After careful review, we affirm.

This Court previously set forth the facts and procedural history of this

case, and we need not reiterate the details to resolve the issues Appellant

raises in this appeal. See Commonwealth v. Peno, No. 1219 MDA 2012 (Pa.

Super. filed Aug 16, 2013) (unpublished memorandum); Commonwealth v.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S22030-19

Peno, No. 1795 MDA 2015 (Pa. Super. filed Oct. 13, 2016) (unpublished

memorandum). Relevant to this appeal, we note the following: Appellant

served his full 15-year sentence of incarceration for various sexual offenses

against minor children. Immediately prior to his release from prison, the

Dauphin County Probation Department lodged a detainer against him alleging

that because he did not fulfill a condition of parole—that he complete sex

offender treatment while in prison—he was not a candidate for probation.

After various proceedings, the court found him in violation of his probation

(“VOP”), revoked his probation, and imposed sentence. On appeal, this Court

vacated the VOP Judgment of Sentence, holding that the condition of parole

imposed by the trial court had been illegal and, therefore, could not be used

as basis to revoke Appellant’s probation. See Commonwealth v. Peno, No.

1219 MDA 2012, unpublished memorandum at 1, 4) (Pa. Super. filed Aug. 16,

2013). The Pennsylvania Supreme Court denied allowance of appeal on July

14, 2014.

On July 18, 2014, “by agreement of the parties to expedite Appellant’s

release from incarceration, the trial court issued an order modifying the

conditions of Appellant’s probation to include certain geographic restrictions

to be enforced by GPS monitoring. (See N.T. Revocation Hearing, 3/16/15,

at 1-4; see also Order of Court, 7/18/14, at unnumbered pages 1-2).”

Commonwealth v. Peno, No. 1795 MDA 2015, unpublished memorandum

at 2-4 (Pa. Super. filed Oct. 13, 2016). Appellant subsequently tampered with

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the GPS monitoring device, which resulted in the Commonwealth charging him

with criminal mischief and filing a Petition alleging a VOP.

After a summary hearing, on May 21, 2015, the court found Appellant

guilty of the criminal mischief offense and immediately sentenced him to pay

the costs of prosecution and a fine of one hundred dollars. See id. at 6, citing

N.T. Summary Hearing, 5/21/15, at 4-6, 29. The VOP court subsequently

issued an Order finding that Appellant had violated the conditions of his

probation. See Order, 6/11/15. On September 10, 2015, the court sentenced

Appellant to a term of incarceration of four years and two months’ to 20 years’

incarceration, to be followed by a term of probation of 20 years.1 See N.T.

Sentencing, 9/10/15, at 13-14.

Appellant filed a Post-Sentence Motion, which the court denied on

October 10, 2015. Appellant timely appealed, challenging, inter alia, the

legality of modifying the conditions of his probation to include GPS monitoring.

This Court affirmed his Judgment of Sentence on October 13, 2016. See

Peno, supra, 1795 MDA 2015 (Pa. Super. filed Oct. 13, 2016) (unpublished

memorandum). The Pennsylvania Supreme Court denied Appellant’s Petition

for Allowance of Appeal on May 3, 2017. Commonwealth v. Peno, 168 A.3d

1290 (Pa. 2017).

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1 The court subsequently modified the term of incarceration to three years, nine months, and 24 days to 20 years’ incarceration.

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On June 23, 2017, Appellant filed pro se the instant PCRA Petition,

alleging that (1) the trial court’s July 18, 2014 Order violated 42 Pa.C.S. §

97712 because it modified his probation before the Superior Court had

remanded his case record to the trial court; (2) the court’s Order subjecting

him to GPS monitoring constituted an illegal search and seizure;3 and (3) “all

my counsels” provided ineffective assistance because he “did not know they

were going to change condition until [he] saw parole, probation Officer on July

18, 2014.” Petition, 6/22/17, at 3, 4.

The PCRA court appointed Damian J. DeStefano, Esq., to represent

Appellant. On September 18, 2017, he filed a Supplemental PCRA Petition

reiterating Appellant’s illegal sentencing claim and requesting additional time

to review and determine the applicability of the Pennsylvania Supreme Court’s

July 19, 2017 holding in Muniz, supra.

After receiving numerous extensions of time to file an additional

Supplemental PCRA Petition, on July 23, 2018, counsel instead filed a Petition

for Leave to Withdraw as Counsel and a Turner/Finley4 “no merit” letter,

concluding that the holding in Muniz did not apply to Appellant’s case and ____________________________________________

2 See 42 Pa.C.S. § 9771 (“Modification or revocation of order of probation”).

3Appellant conceded that he raised this issue on direct appeal. See PCRA Petition at 4. See also Commonwealth v. Peno, No. 1795 MDA 2015, unpublished memorandum at 7, 12 (Pa. Super. filed Oct. 13, 2016.

4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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that the other issues Appellant sought to raise had been previously litigated

and were, therefore, not cognizable under the PCRA.5 See Turner-Finley No

Merit Letter, 7/23/18, at 9-16. With respect to Appellant’s ineffective

assistance of counsel claims, Attorney DeStefano concluded that the claims

lacked merit. See id. at 17-19.

On July 24, 2018, the PCRA court granted counsel’s Petition for Leave

to Withdraw as Counsel.

On August 2, 2018, Appellant filed pro se an Amended PCRA Petition in

response to “Appointed Attorney[’]s No Merit Letter and Petition to Withdraw.”

In his Amended Petition, Appellant averred both that he had timely filed his

Muniz claim and that it had merit, and he again reiterated his claim that the

trial court’s July 18, 2014 sentencing order was illegal on its face. Amended

PCRA Petition, 8/2/18, at 1 (unpaginated).

On September 19, 2018, the PCRA court dismissed Appellant’s PCRA

Petition.6 This timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b)

5 A petitioner is not eligible for post-conviction relief if he has previously litigated the allegation of error. 42 Pa.C.S. § 9543(a)(3). An issue has been previously litigated if either “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue” or “it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.” Id. at §9544. 6 Generally, the PCRA court must provide notice of its intent to dismiss a PCRA Petition and provide the petitioner with twenty days in which to respond. Pa.R.Crim.P. 907(1). However, Appellant did not object to the PCRA court’s failure to provide notice of intent to dismiss pursuant to Rule 907, rendering any argument on this issue waived. Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007).

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Statement as directed by the PCRA court. The court filed a Rule 1925(a)

Opinion in which it adopted the rationale set forth in counsel’s “no-merit”

letter.

Appellant raises the following two issues on appeal:

1. Whether the PCRA court was misplaced by granting appointed PCRA counsel’s No-Merit Letter and Motion to Withdraw without a hearing in that former counsel[] Paul Muller, Andrea Haynes, James J. Karl of Dauphin County Public Defender[’]s Office were all ineffective by allowing conditions which are now illegal since Com[monwealth] v. Muniz, 164 A.3d 1189 (Pa. 2017) made 42 Pa.C.S.[] subsectuions 9799.30, 9733 [sic] thus the entire SORNA program could not apply retroactively to persons who committed their crimes before December 20, 2012.

2. Whether the PCRA court erred by that an issue in this appeal is whether the Commonwealth may punish an individual for conduct which was made a crime by an amended statute where the original version of the statute has been unconstitutional in its entirety?

Appellant’s Brief at 3.

Appellant first asserts that, because he did not consent to the GPS

condition and did not authorize his attorney, Paul Muller, Esq., to waive the

hearing requirement in order to obtain Appellant’s prompt release from

incarceration, counsel provided ineffective assistance of counsel. See id., at

9-10. This issue warrants no relief.

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if the record

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

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2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

rejection of the appellant’s ineffective assistance of counsel claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

Appellant has not supported his bald claim that all his “counsels”

provided ineffective assistance. He has not pled that the actions taken by his

counsel were not designed to effectuate his interests, or that, but for his

counsels’ alleged ineffectiveness, the outcome of these proceedings would

have been different. As a result of Appellant’s failure to address these factors

set forth in Fulton, supra, this issue warrants no relief.

In his second issue, Appellant presents a convoluted, nearly

incomprehensible, discourse that essentially boils down to an averment that

the PCRA court erred in finding that he had not raised a valid Muniz claim

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with respect to the court’s July 18, 2014 imposition of the GPS monitoring

condition. Appellant’s Brief at 16-18.

Appellant’s reliance on Muniz is misplaced. In Muniz, our Supreme

Court held that enhanced sexual offender registration requirements

constituted punishment and that retroactive application of the registration

provisions of the Sexual Offender Registration and Notification Act (“SORNA”)

violates the ex post facto clause of the Pennsylvania Constitution. Muniz, 164

A.3d at 1193.

Muniz pertains to registration requirements imposed on sex offenders;

the “punishment” Appellant complains of is GPS monitoring as a probationary

condition. Unlike Muniz, this probationary condition does not pertain to

SORNA or any other statute relevant to registration requirements imposed on

sex offenders. Thus, the PCRA court did not err in concluding that the Muniz

holding does not entitle Appellant to relief.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/9/2019

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