Com. v. Swartzfager, C.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

CHRISTOPHER L. SWARTZFAGER Appellant No. 929 WDA 2013

Appeal from the PCRA Order of May 3, 2013 In the Court of Common Pleas of Venango County Criminal Division at No.: CP-61-CR-0000580-1998

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and WECHT, J. MEMORANDUM BY WECHT, J.: FILED AUGUST 25, 2014 Christopher L. Swartzfager appeals from the May 3, 2013 order denying his petition for relief pursuant to the Post-Conviction Relief Act §§ 9541-46. We affirm.

On June 9, 1998, Swartzfager, then nineteen years old, was walking along railroad tracks with an eleven-year-old girl. Swartzfager threw the girl to the ground and pulled down her pants, exposing her genitals. Swartzfager lifted her legs and forced his penis against her genitals. Swartzfager ceased the assault when the girl informed him that he was hurting her. Thus, penetration did not occur. On September 29, 1998, based upon these facts, Swartzfager pleaded guilty to one count of criminal attempt rape. See 18 Pa.C.S. §§ 901(a), 3121. On November 23, 1998,

Swartzfager was sentenced to sixty- incarceration.

On October 11, 2000, in an unpublished memorandum, we rejected nge to the discretionary aspects of his sentence on direct appeal. See Commonwealth v. Swartzfager, No. 761 WDA 1999, slip op. at 1, 3 (Pa. Super. Oct. 11, 2000). Swartzfager did not seek allowance of appeal from the Pennsylvania Supreme Court.

On October 19, 2001, Swartzfager filed a pro se PCRA petition.

Counsel was appointed to represent Swartzfager during the PCRA

PCRA petition was untimely. Hence, counsel filed a no-merit letter and a motion to withdraw as counsel. On April 2, 2003, the PCRA court granted

PCRA petition pursuant to Pa.R.Crim.P. 907. Rather than responding to the notice, Swartzfager filed a notice of appeal. On September 22, 2003, this See Commonwealth

v. Swartzfager, No. 830 WDA 2003 (per curiam). No final order was entered dismissing the petition.

In the interim, Swartzfager was released on parole on October 6, 2009. Upon release, Swartzfager was informed that he would have to

see generally 42 Pa.C.S. §§ 9791, et seq. Swartzfager violated his parole and currently is incarcerated on the parole revocation. Upon release,

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Swartzfager will be required to comply with the registration and notification requirements of the Sex Offender Registration and Notification Act see generally 42 Pa.C.S. §§ 9799.10, et seq. Notably, neither of these statutes applied to Swartzfager at the time that he was sentenced in 1998.

On December 29, 2011, Swartzfager filed a second pro se PCRA petition, which the PCRA court dismissed after providing a Rule 907 notice.

petition was timely, and that no final order ever had been entered dismissing

PCRA petition should be treated as an amendment to his timely-filed, still open 2001 PCRA petition. Commonwealth v. Swartzfager, 59 A.3d 616, 620-21 (Pa. Super. 2012). We remanded the case for the appointment of new counsel, and for a hearing to determine whether considering the 2011 PCRA petition as an amendment to the 2001 filing would cause prejudice to the Commonwealth. Id.

On April 25, 2013, the PCRA court held the mandated hearing. On May 3, 2013, that learned court issued its Opinion and Order dismissing tion. On May 28, 2013, Swartzfager filed a notice of appeal. In response, the PCRA court directed Swartzfager to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 17, 2013, Swartzfager timely filed a Rule 1925(b) statement. On June 20, 2013, the PCRA court entered a Pa.R.A.P. 1925(a) statement,

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Counsel for Swartzfager initially filed with this Court an Anders1 brief and a petition to withdraw as counsel. By memorandum, we rejected Anders brief and his motion to withdraw as counsel. We remanded this case for counsel to reconsider the matter in light of this Cour en banc decision in Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en banc), and because counsel failed to adequately

Swartzfager constitute unassailable collateral consequences to a plea or

We instructed counsel to evaluate these issues, and, after careful consideration, decide whether to file a merits brief or another no-merit brief

addressing these issues in more detail. Counsel has filed a merits brief

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1 See Anders v. California, 386 U.S. 738 (1967). Apparently, counsel operated under the mistaken belief that an Anders brief is the proper mechanism when seeking to withdraw on appeal from the denial of PCRA relief. In fact, the proper mechanism under such circumstances is a Turner/Finley brief. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). However, because an Anders brief provides greater protection to a criminal Anders brief in lieu of a Turner/Finley no-merit brief. Commonwealth v. Widgens, 29 A.3d 816, 817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

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addressing the applicability of Hainesworth to this case. However, counsel

has not addressed whether SORNA produces the same legal conclusions that

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We now turn to the sole issue raised by counsel in his merits brief to

discretion in determining that [Swartzfager] had

Our standard of review of an order dismissing a PCRA petition is well-

settled:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level.

This review is limited to the findings of the PCRA court and the

is supported by evidence of record and is free of legal error.

This Court may affirm a PCRA co the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

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2 By filing a merits brief, counsel was entitled to select the issues that he believed warranted review by this Court. Regardless, we note that this Court recently has held that SORNA, as historically has been the case with ot punitive, and constitutionally can be applied retroactively. See Commonwealth v. Perez, --- A.3d ---, 2014 PA Super 142, at *10 (Pa. Super. 2014). Hence, a constitutional challenge to the retroactive application of SORNA to Swartzfager would prove meritless pursuant to Perez.

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Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012); internal citations omitted).

Swartzfager presently argues that, pursuant to Hainesworth, the PCRA court erred by upholding the requirement that Swartzfager must register and comply with SORNA. Swartzfager contends that, at the time he was sentenced in 1998, both the trial court and the assistant district attorney discussed the fact that the offense to which Swartzfager pleaded guilty was not subject to sexual offender reporting and registration. Brief for Swartzfager at 8. As such, Swartzfager maintains that such requirements were not part of his initial plea agreement, and that Hainesworth mandates upholding those terms, which would prohibit application of SORNA upon his release from prison.

Swartzfager also recognizes that, in Commonwealth v. Partee, 86 A.3d 245, 249 (Pa. Super. 2014), this Court held that, because a violation of probation results in an entirely new sentence, the initial terms of a plea bargain that would have been subject to Hainesworth be honored. However, Swartzfager notes that his current incarceration is due to a parole violation, not a probation violation. Because a parole violation commits an offender to prison to continue serving his original sentence, unlike a probation violation that results in a new sentence, Swartzfager argues that his current violation falls outside of Partee, and the initial plea terms should remain subject to Hainesworth.

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We begin with Hainesworth, in which we considered the effect that SORNA had on plea negotiations that included agreements pertaining to the registration and notification requirements for sexual offenders. In Partee, we set forth a comprehensive discussion of Hainesworth, which follows:

[I]n Hainesworth, 82 A.3d 444 (Pa. Super. 2013), [] this Court specifically enforced a negotiated plea agreement that did not

Law, despite subsequent amendments to the statute that would have subjected him to reporting requirements. Hainesworth entered a negotiated guilty plea to three counts each of statutory sexual assault and indecent assault, and one count each of indecent assault and criminal use of communication facility in February 2009. None of these convictions required registration under the then-

42 Pa.C.S. § 9791. Other charges that would have imposed a registration requirement were withdrawn by the Commonwealth pursuant to the plea negotiations.

Hainesworth filed a motion seeking to terminate supervision effective one week prior to the effective date of SORNA. The trial court denied the petition to terminate supervision, but held

Hainesworth violated due process.

On appeal, this Court, sitting en banc, concluded first that Hainesworth correctly framed the issue as one of contract law, and applied the standard of review applicable to whether a plea

agreement reasonably understood to be the terms of the Hainesworth, supra (quoting Commonwealth v.

Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989)). We look to

ambiguities in the terms of the plea agreement are construed Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995). The dispositive question

Hainesworth, 82 A.3d at 448. We examined the record. The terms of the plea agreement were set forth and included a discussion of the fact that the offenses to which the defendant was pleading guilty did not require registration and

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supervision as a sex offender. We distinguished Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004)

(Benner was always subject to a reporting requirement, albeit ten years instead of a lifetime, and the record did not support -registration

as a term of his plea), and held that the plea agreement

Hainesworth, 82 A.3d at 448.

Partee, 86 A.3d at 247-48 (citations modified).

Hence, the operative inquiry for Hainesworth purposes is whether

SORNA were negotiated terms of the plea bargain entered into by the parties. If such terms were a part of the bargain, then, per Hainesworth, that agreement will be enforced as such. If they were not, then Hainesworth is inapplicable and the subsequent application of SORNA will not be precluded by the plea bargain.

the terms of the plea bargain as follows:

C.R. 580, of 1998, pursuant to a written plea agreement with the Commonwealth, Mr. Swartzfager will be pleading guilty to Count 4, Criminal Attempt to Commit Rape, and it is a Felony 1. The offense gravity score is 11. Commonwealth agrees to nol pros [sic] Counts 1, 2, 3, and 5.

explained to Swartzfager the potential maximum sentence associated with

Felony 1 and carries a maximum of $25,000 in fines and 20 years in jail. So

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Id. at 24.

Once the court explained the maximum possible sentence, the court raised the potential applicability of M

THE COURT: [. . . assistant public defender] asked me earlier in chambers whether I felt

think it does, but I have to say I spent about a minute on it. Do you have a position on it?

[ADA]: I

THE COURT:

If it does, we may have to go through those colloquy questions again.

intend to do that unless someone convinces me it does apply.

[ADA]: I will let you know as soon as possible.

THE COURT: ly sure. It

Id. at 24-25.

The trial court then identified the written guilty plea agreement, which Swartzfager signed. Notably, the written agreement did not contain any to sexual offender reporting or registration. Id. at 25-26. The trial court asked Swartzfager if there was anything else that he believed was, or should have been, in the agreement;

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Swartzfager responded in the negative. Id. at 28. At last, the trial court Id. at 32.

It is apparent from the guilty plea colloquy that registration and

were not

part of the plea as explained in open court and on the written plea agreement. Additionally, the parties did not even know whether Swartzfager, by taking the plea as stated, was subject to those requirements. In other words, logically, such terms cannot be said to be part of a plea agreement when the discussion on the record demonstrates that no one even knew if they applied. Moreover, when given the opportunity to express his belief that such terms, or any other terms for that matter, should have been part of the plea agreement as codified in the written plea agreement, Swartzfager made no mention of such

argument that such requirements were a part of his agreement, and Hainesworth is therefore inapplicable.

Partee

does not control this case. We need not delve deeply into the question of whether Partee should be extended to parole violations, because Swartz complicated question. Indeed, Swartzfager argues that, because he is currently incarcerated on a parole violation, instead of a probation violation,

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the original terms of his plea agreement should control for purposes of

requirements. However, as we determined above, the original terms of his plea agreement do not contemplate such requirements, and it is quite clear that his plea was not conditioned upon the applicability, or, perhaps more importantly, the inapplicability of such requirements. Thus, regardless of whether Partee applies or not, Swartzfager is not entitled to relief, and the application of SORNA to him upon his release is not unlawful.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/2014