Com. v. Kilcullen, M. ( 2017 )


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  • J-S58019-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MICHAEL EDWARD KILCULLEN,
    Appellant                No. 277 MDA 2017
    Appeal from the PCRA Order January 13, 2017
    In the Court of Common Pleas of Schuylkill County
    Criminal Division at No(s): CP-54-CR-0000487-2016, CP-54-CR-0000488-
    2016
    BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 13, 2017
    Appellant, Michael Edward Kilcullen, appeals from the order entered on
    January 13, 2017, that denied his petition filed pursuant to the Post
    Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
    On May 27, 2016, Appellant pled guilty to one count of involuntary
    deviate sexual intercourse (“IDSI”)1 at trial court docket number CR-487-
    2016, and one count of IDSI at trial court docket number CR-488-2016. The
    other charges at those docket numbers were nol prossed.        The trial court
    then sentenced Appellant to a term of four to eight years of incarceration at
    CR-487-2016 and a concurrent term of four to eight years of incarceration at
    ____________________________________________
    1   18 Pa.C.S. § 3123(a)(7).
    J-S58019-17
    CR-488-2016. N.T., 5/27/16, at 6-7. IDSI is a Tier III offense for purposes
    of sexual-offender registration under SORNA,2 42 Pa.C.S. § 9799.14(d)(4),
    and following a hearing, Appellant was informed that pursuant to 42 Pa.C.S.
    § 9799.15(a)(3), he was required to register as a sexual offender for the
    remainder of his life.      N.T., 9/1/16, at 2.   Appellant did not file a direct
    appeal.
    On August 31, 2016, Appellant filed a timely pro se PCRA petition, and
    the PCRA court appointed counsel. Counsel filed an amended PCRA petition
    on October 27, 2016.         In his amended PCRA petition, Appellant averred,
    inter alia, that he received ineffective assistance of counsel resulting in the
    entry of an involuntary and unknowing guilty plea.3 Specifically, Appellant
    claims that plea counsel informed him that if he pled guilty, he would have
    to register as a sexual offender under SORNA for only fifteen years.
    Amended PCRA Petition, 10/27/16, at 3.
    On November 25, 2016, the PCRA court held a hearing, and on
    January 13, 2017, the PCRA court denied Appellant’s PCRA petition.          This
    timely appeal followed. Both Appellant and the PCRA court have complied
    with Pa.R.A.P. 1925.
    ____________________________________________
    2  Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.
    §§ 9799.10-9799.41.
    3 To be valid, a guilty plea must be voluntary, knowing, and intelligent.
    Commonwealth v. Diehl, 
    61 A.3d 265
    , 268 (Pa. Super. 2013).
    -2-
    J-S58019-17
    On appeal, Appellant raises the following issue for this Court’s
    consideration:
    A. Did the PCRA Court err when it determined that prejudice was
    not shown since it is clear that [Appellant] was unaware of the
    exact collateral consequen[c]es of pleading [guilty] to [IDSI]?
    Appellant’s Brief at 4.
    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).       The PCRA court’s findings will not be
    disturbed unless there is no support for the findings in the certified record.
    
    Id.
    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
    arguable merit; (2) counsel had no reasonable basis for his conduct; and (3)
    petitioner was prejudiced by counsel’s action or omission. Commonwealth
    v. Spotz, 
    84 A.3d 294
    , 311 (Pa. 2014).        “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 one of the three prongs.
    -3-
    J-S58019-17
    Commonwealth v. Simpson, 
    66 A.3d 253
    , 260 (Pa. 2013). The burden of
    proving ineffectiveness rests with the appellant. Commonwealth v. Rega,
    
    933 A.2d 997
    , 1018 (Pa. 2007).
    As noted, Appellant argues that his guilty plea was not voluntary. He
    asserts that if he had known that his guilty pleas required lifetime
    registration under SORNA, he would not have pled guilty. Appellant’s Brief
    at 9.
    In Commonwealth v. Leidig, 
    956 A.2d 399
    , 406 (Pa. 2008), this
    court held that the registration requirements for sexual offenders are
    collateral consequences of pleading guilty, and any misunderstanding
    regarding registration requirements does not impact the validity of a guilty
    plea.
    [T]he registration requirements of Megan’s[4] Law are not
    punitive.… [T]he registration requirements of Megan’s Law are
    collateral, not direct, consequences of conviction. To the extent
    that there was any confusion following those decisions that the
    registration requirements of Megan’s Law are collateral and not
    direct consequences of a plea or other conviction, we settle the
    issue here: such requirements are collateral consequences and,
    as such, a defendant’s lack of knowledge of these collateral
    consequences to his or her pleading guilty or nolo contendere
    fails to undermine the validity of the plea. Moreover, it is
    immaterial to our holding whether Appellant is subject to lifetime
    registration or only ten-year registration, an issue we need not
    address at this time. Because the Megan’s Law registration
    requirements, of whatever duration, are matters collateral to
    Appellant’s plea, the Superior Court correctly concluded that in
    ____________________________________________
    4  “Megan’s Law was the predecessor statute to SORNA.” Commonwealth
    v. Evans, 
    138 A.3d 28
    , 30 n.3 (Pa. Super. 2016).
    -4-
    J-S58019-17
    accepting Appellant’s plea, the trial court need not have advised
    Appellant as to the length of the registration requirement, and
    that any misunderstanding as to the duration of the registration
    requirement was not a basis for a post-sentence withdrawal of
    the plea.
    Leidig, 956 A.2d at 406 (internal citation omitted).
    In his brief on appeal, Appellant cites to Commonwealth v. Barndt,
    
    74 A.3d 185
     (Pa. Super. 2013), as support for his claim that counsel was
    ineffective for failing to inform him of the reporting requirements and that he
    suffered prejudice.    Appellant’s Brief at 7.   We conclude that Barndt is
    inapplicable.
    Barndt was not a case where counsel failed to inform the appellant
    about the impact a guilty plea would have on his parole; rather, Barndt
    involved an appellant whose attorney directly and specifically misinformed
    him about the consequences of pleading guilty.      Barndt, 
    74 A.3d at 188
    .
    Following an arrest, the appellant therein was subject to a possible
    revocation of his nearly thirty months of “street time” spent on parole in a
    separate case, but the appellant’s counsel told him that the Pennsylvania
    Board of Probation and Parole (“PBPP”) would revoke only eleven months.
    
    Id. at 189
    .     This was patently incorrect, and following his sentencing, the
    PBPP revoked all of the appellant’s street time. 
    Id.
     On review, we held that
    counsel was ineffective for misinforming the appellant that he would lose
    only eleven months of street time, and counsel’s action of affirmatively
    misleading the appellant caused him to enter an unknowing guilty plea
    -5-
    J-S58019-17
    resulting in the appellant losing all of his street time. 
    Id. at 200
    . This Court
    noted that counsel’s failure to inform a defendant about the possibility of
    parole revocation is a collateral consequence of a guilty plea, and it does
    not, without more, invalidate the plea. 
    Id. at 196
    . However, we held that
    when counsel directly misinforms the defendant regarding parole revocation,
    it is not merely a collateral consequence, and it does compromise the
    validity of the plea. 
    Id. at 200
    . Thus, it was counsel’s action in affirmatively
    misinforming the appellant that was the determining factor: “In short, when
    it comes to collateral consequences of a guilty plea, counsel’s sins of
    omission must be treated differently than his sins of commission.”          
    Id. at 201
    .
    Here,   there   is   no   indication   that   plea   counsel   affirmatively
    misrepresented to Appellant that he would be required to register as a
    sexual offender under SORNA for any specific period. In fact, plea counsel
    testified that she had discussed the sexual-offender reporting requirements
    with Appellant, but she did not guarantee a specific period of reporting.
    N.T., 11/25/16, at 10.           Thus, registration was merely a collateral
    consequence of Appellant’s guilty pleas, and the duration of the registration
    did not call into question the validity of the pleas. Leidig, 956 A.2d at 406.
    As counsel cannot be deemed ineffective for failing to advise a defendant
    regarding the collateral consequences of a plea, Appellant’s ineffectiveness
    -6-
    J-S58019-17
    claim fails.   Commonwealth v. Abraham, 
    62 A.3d 343
    , 353 (Pa. 2012).
    Accordingly, we affirm the order denying Appellant’s PCRA petition.5
    Order affirmed.
    P.J.E. Ford Elliott joins the Memorandum.
    P.J. Gantman notes dissent.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/13/2017
    ____________________________________________
    5  We recognize that in Commonwealth v. Muniz, 
    164 A.3d 1189
     (Pa.
    2017), the Supreme Court of Pennsylvania held that SORNA’s registration
    requirements constitute punishment for purposes of application of both the
    federal and state ex post facto clauses. Muniz, 164 A.3d at 1219-1220.
    However, Muniz did not address the specific issue before this Court, and we
    are constrained to follow Leidig, as it has not been overruled by the
    Supreme Court. See Commonwealth v. Reed, 
    107 A.3d 137
    , 143 (Pa.
    Super. 2014) (stating that the Superior Court is bound by existing precedent
    under the doctrine of stare decisis to follow controlling precedent as long as
    the decision has not been overturned by our Supreme Court).
    -7-
    

Document Info

Docket Number: 277 MDA 2017

Filed Date: 10/13/2017

Precedential Status: Precedential

Modified Date: 10/13/2017