Com. v. Blakeslee, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEPHEN BLAKESLEE, :
:
Appellant : No. 938 EDA 2013
Appeal from the PCRA Order Entered March 6, 2013,
In the Court of Common Pleas of Delaware County,
Criminal Division, at No(s). CP-23-CR-0002677-2003.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 01, 2015
Appellant, Stephen Blakeslee, appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
On January 20, 2004, Appellant pleaded guilty to two counts of
involuntary deviate sexual intercourse and two counts of indecent assault in
connection with his molestation of three children between 2002 and 2004.
On September 13, 2004, Appellant was found to be a sexually violent
predator (“SVP”) and was sentenced to a term of ten to twenty years of
imprisonment plus a consecutive five-year term of probation. Following the
denial of his post-sentence motion, Appellant filed a timely notice of appeal
and was directed by the trial court to file a concise statement of matters
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 31, 2005,
counsel filed a timely concise statement. On June 8, 2005, counsel filed an
untimely supplemental concise statement in which he argued that the
evidence at the SVP hearing was insufficient to declare Appellant an SVP.
On September 12, 2006, this court affirmed the judgment of sentence.
Commonwealth v. Blakeslee, 664 EDA 2005, 911 A.2d 177 (Pa. Super.
filed September 12, 2006) (unpublished memorandum). Citing
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and Commonwealth
v. Jackson, 900 A.2d 936 (Pa. Super. 2006), we held that Appellant’s issue
challenging the sufficiency of the evidence at the SVP hearing was waived as
having been raised in an untimely Pa.R.A.P. 1925(b) statement.
On November 14, 2007, Appellant timely filed the PCRA petition
underlying the instant appeal.1 Although counsel was appointed, counsel
subsequently filed a motion to withdraw and a “no-merit” letter pursuant to
1
Appellant had until October 12, 2007, to timely file his petition. Although
not docketed until November 14, 2007, there is evidence of record that
Appellant delivered his petition to prison authorities on October 12, 2007,
and that it was received by the court on October 18, 2007. Pursuant to the
“prisoner mailbox rule,” a PCRA petition is deemed filed when it is placed in
the hands of prison authorities for mailing. Commonwealth v. Castro, 766
A.2d 1283, 1287 (Pa. Super. 2001). Thus, we deem Appellant’s petition
timely.
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Turner-Finley.2 On April 2, 2012, the PCRA court issued notice of its intent
to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On
June 1, 2012, Appellant filed a response, and on March 6, 2013, the PCRA
court dismissed Appellant’s petition and permitted counsel to withdraw. This
timely appeal followed.
On appeal, Appellant raises a single issue:
Did the lower court err when it determined that Appellant’s direct
appeal counsel was not ineffective when he waived Appellant’s
right to appeal his SVP determination, by not filing a timely
1925(b) statement regarding this issue?
Appellant’s Brief at 2 (full capitalization omitted).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for them in the certified record. Id.(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).
When considering an allegation of ineffective assistance of counsel,
counsel is presumed to have provided effective representation unless the
PCRA petitioner pleads and proves that: (1) the underlying claim is of
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (setting forth the
procedure for counsel to withdraw in PCRA matters).
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arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order
to meet the prejudice prong of the ineffectiveness standard, a defendant
must show that there is a ‘reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).
A claim of ineffective assistance of counsel will fail if the petitioner does not
meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with
Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
The PCRA court found that Appellant’s ineffectiveness claim was not
cognizable under the PCRA pursuant to Commonwealth v. Masker, 34
A.3d 841 (Pa. Super. 2011) (en banc). The Commonwealth reiterates this
argument on appeal. Commonwealth’s Brief at 8.
In Masker, the appellant raised three claims of ineffective counsel in
his PCRA petition:
a. Trial counsel failed to properly advise the
Defendant of his right to remain silent during
his sexual offender evaluation;
b. Trial counsel failed to provide an expert
witness to counter the sexually violent
predator determination made by the Sexual
Offender Assessment Board;
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c. Trial counsel failed to raise the issue of
whether or not use of the Sexual Offender
Assessment Board (SOAB) assessment
admissions violated the Defendant’s Fifth
Amendment right to remain silent, during
post-sentence motions, or on direct appeal.
Masker, 34 A.3d at 842.
After the denial of Masker’s petition, an appeal was filed in this Court
raising the following three issues:
a) Whether the trial court erred in determining
that consequences of a sexual offenders[’]
evaluation were collateral consequences and
were not cognizable claims under the Post
Conviction Collateral Relief Act?
b) Whether the trial court erred in determining
that trial counsel rendered effective assistance
of counsel at the sentencing phase?
c) Whether the trial court erred in determining
that the Defendant’s Amended PCRA did not
have merit?
Masker, 34 A.3d at 843.
The Masker Court began its analysis by noting the holding in
Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005), which
concluded that because the determination of an SVP hearing is independent
of a challenge to a conviction or a sentence, it is not cognizable under the
PCRA. The Masker Court also observed that the collateral consequences of
a criminal conviction also are not cognizable under the PCRA. Ultimately, in
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holding that all of the appellant’s issues on appeal were not cognizable,
including the issue framed as ineffective assistance of counsel, the Masker
Court stated as follows:
As noted above, a challenge to the classification of the
defendant as a SVP is not a challenge to the conviction or
sentence, and therefore is not cognizable under the PCRA. See
Price, 876 A.2d at 995. In the present appeal, Masker does not
challenge the propriety of his conviction or sentence. See
Amended PCRA petition, 1/15/2009. Rather, in an attempt to
avoid the dictates of Price, Masker seeks to challenge the
method by which he was determined to be a SVP. See id. We
conclude that under the PCRA there is no meaningful difference
between a challenge to the determination itself and a challenge
to the process by which it was reached.
Masker, 34 A.3d at 843-844.
Thus, Masker stands for the proposition that a challenge to one’s
designation as an SVP or a challenge to the process resulting in an SVP
designation is not cognizable under the PCRA. Masker, 34 A.3d at 842.
Here, however, Appellant is neither challenging his designation as an SVP
nor the process by which he was designated an SVP. Therefore, Masker is
inapplicable.
In this case, Appellant is claiming only that his direct appeal counsel
was ineffective in failing to preserve a sufficiency of the evidence challenge
to his SVP designation. Appellant’s Brief at 6. Because the sufficiency of the
evidence supporting an SVP designation may be challenged on direct
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appeal,3 counsel’s failure to preserve the issue for direct appeal is cognizable
as an ineffectiveness claim.
Nevertheless, even though the PCRA court erred in holding that
Appellant failed to present a cognizable claim, we conclude that Appellant is
entitled to no relief.4 At the time of his conviction, the applicable statute
defined an SVP as follows:
A person who has been convicted of a sexually violent
offense...and who is determined to be a sexually violent
predator...due to a mental abnormality or personality disorder
that makes the person likely to engage in predatory sexually
violent offenses.
42 Pa.C.S. § 9792 (expired December 20, 2012, pursuant to 42 Pa.C.S.
§ 9799.41).
The appropriate standard of review regarding the sufficiency of
the evidence is whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the Commonwealth as the verdict winner, is
sufficient to support all the elements of the offenses. As a
reviewing court, we may not weigh the evidence and substitute
our judgment for that of the fact-finder. Furthermore, a fact-
finder is free to believe all, part or none of the evidence
presented.
At the hearing prior to sentencing the court shall determine
whether the Commonwealth has proved by clear and convincing
evidence that the individual is a sexually violent predator.
3
See generally Commonwealth v. Stephens, 74 A.3d 1034 (Pa. Super.
2013).
4
This Court may affirm the lower court’s decision if it is correct on any
ground. Commonwealth v. Turner, 73 A.3d 1283, 1286 n.5 (Pa. Super.
2013), appeal denied, 91 A.3d 162 (Pa. 2014) (citation omitted).
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Accordingly, in reviewing the sufficiency of the evidence
regarding the determination of SVP status, we will reverse the
trial court only if the Commonwealth has not presented clear and
convincing evidence sufficient to enable the trial court to
determine that each element required by the statute has been
satisfied. In most cases, we will determine whether the record
supports the findings of fact made by the trial court and then
review the legal conclusions made from them. However, in
cases...where the trial court has stated its legal conclusions but
has not provided specific findings of fact, we will review the
entire record of the post-conviction SVP hearing as our scope of
review is plenary. Therefore, if it appears based on all of the
evidence viewed in a light most favorable to the Commonwealth
that an SVP classification can not be made out in a clear and
convincing manner, then we will be obligated to reverse the SVP
designation.
Commonwealth v. Moody, 843 A.2d 402, 408 (Pa. Super. 2004) (citation
and quotation marks omitted). Clear and convincing evidence means that:
witnesses must be found to be credible, that the facts to which
they testify are distinctly remembered and the details thereof
narrated exactly and in due order, and that their testimony is so
clear, direct, weighty, and convincing as to enable the [finder of
fact] to come to a clear conviction, without hesitancy, of the
truth of the precise facts in issue.
Id. (citation and quotations marks omitted).
Here, it is undisputed that the crimes to which Appellant pled guilty,
involuntary deviate sexual intercourse and indecent assault, qualified as
sexually violent offenses under the law as it existed. Moreover, at
Appellant’s SVP hearing, both the Commonwealth’s and Appellant’s expert
testified that Appellant suffers from the mental abnormality or personality
disorder of Pedophilia. N.T., SVP Hearing, 8/17/04, at 13, 45. Dr. Thomas
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F. Haworth, the Commonwealth’s expert, testified to a reasonable degree of
psychological certainty that Appellant’s dedication of time and his pattern of
grooming multiple victims made it likely that he would engage in sexually
violent offenses. Id. at 13-16. Additionally, at his guilty plea colloquy,
Appellant stipulated to the facts as set forth in the affidavit of probable
cause. N.T., Guilty Plea, 1/20/04, at 16. The affidavit reveals that Appellant
engaged in separate but similar courses of conduct with three males when
they were approximately seven to eight years old.5 The assaults occurred
over a period of time at Appellant’s residence. Affidavit of Probable Cause,
4/28/03, at 1. Appellant would rub the boys’ bodies and eventually began
placing his hands inside the boys’ pants. Id. Two of the boys stated that
Appellant would remove their clothing and then his own and rub his penis
between their legs. Id. Appellant also applied a lubricant and attempted
anal penetration and engaged in oral intercourse with one of the victims.
Id. Appellant admitted that he had fondled two of the boys and rubbed his
penis between their legs, and he further admitted sexually assaulting the
third child including engaging in oral intercourse. Id. at 2. Because the
record reveals that there was clear and convincing evidence 6 to support
5
One of the victims could not recall exactly how old he was when the sexual
abuse began. Affidavit of Probable Cause, 4/28/03, at 1.
6
At an SVP hearing, the Commonwealth bears the burden of proving by
clear and convincing evidence that the defendant meets the criteria to be
designated an SVP. Stephens, 74 A.3d at 1039.
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Appellant’s designation as an SVP, he has failed to prove that, but for
counsel’s failure to preserve said challenge, there is a reasonable probability
that the result of the proceeding would have been different. Reed, 42 A.3d
at 319.
Therefore, while Appellant has presented a challenge that is cognizable
under the PCRA, we conclude that Appellant suffered no prejudice and,
therefore, is entitled to no relief. Accordingly, we affirm the order.
Order affirmed.
Judge Bowes joins the Memorandum.
P.J.E. Ford Elliott Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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