Com. v. Tucker, L. ( 2017 )


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  • J-A16039-16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
    COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    Appellant              :
    :
    v.                          :
    :
    LARRY TUCKER,                               :
    :
    Appellee               :   No. 1308 WDA 2015
    Appeal from the Order August 4, 2015
    in the Court of Common Pleas of Allegheny County,
    Criminal Division, at No(s): CP-02-CR-0001897-2013
    BEFORE:       SHOGAN, OLSON, and STRASSBURGER, JJ.
    MEMORANDUM BY STRASSBURGER, J.:             FILED DECEMBER 19, 2017
    The Commonwealth appeals from the August 4, 2015 order that
    granted Appellee Larry Tucker relief pursuant to the Post Conviction Relief
    Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
    The facts relevant to this appeal are not in dispute. In 1992, at docket
    number CP-02-CR-0014918-1991, Tucker pled nolo contendere to, inter alia,
    rape by forcible compulsion and involuntary deviate sexual intercourse
    (IDSI) by forcible compulsion under 18 Pa.C.S. §§ 3121 and 3123(a),
    respectively.    Tucker was sentenced to 364 to 728 days of incarceration
    followed by five years of probation. Tucker’s probation was revoked in 1997,
    resulting in a sentence of five to ten years of incarceration at CP-02-CR-
       Retired Senior Judge assigned to the Superior Court.
    J-A16039-16
    0014918-1991, to run consecutive to another sentence he was serving at
    another docket number.
    No law imposing registration requirements for sex offenders had been
    enacted at the time Tucker committed the sex crimes that led to his 1992
    sentence.     However, various versions of the law were implemented
    subsequently,   both   while   he    was   on   probation    and   while   he   was
    incarcerated. Specifically, the first Megan’s Law became effective in 1996,
    requiring those convicted of rape and IDSI to register as a sex offender for a
    period of ten years, beginning within 30 days of the law’s effective date for
    individuals under supervision (either probation or parole).            42 Pa.C.S.
    § 9793 (effective April 1996 to July 2000).       Megan’s Law II took effect in
    2000, increasing the registration period from ten years to lifetime for, inter
    alia, rape and IDSI. 42 Pa.C.S § 9795.1(b)(2) (effective July 2000).
    Upon release from state prison in 2011, Tucker registered as a sex
    offender for the first time.1       Although Megan’s Law II required regular
    registration, Tucker did not register after that initial time.     As a result, in
    2013, Tucker was charged in the instant case with failure to register under
    Megan’s Law II in violation of 18 Pa.C.S. § 4915.2          Tucker pled guilty and
    1 According to Tucker, the prison authorities informed him that he would not
    be released at the conclusion of his sentence unless he completed the sex
    offender registration documents. N.T., 7/10/2015, at 24.
    2 The Sex Offender Registration and Notification Act (SORNA) replaced
    Megan’s Law in December 2012, providing new, more onerous registration
    (Footnote Continued Next Page)
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    was sentenced to five years of probation.              Tucker thereafter was charged
    two additional times for failing to register, but was acquitted based upon the
    trial court’s conclusion that Tucker was not required to register.
    Tucker thereafter timely filed a PCRA petition in the instant case
    claiming that plea counsel’s ineffectiveness in failing to research whether
    Tucker had a duty to register under Megan’s Law II caused him to enter an
    unknowing, involuntary guilty plea in 2013. After a hearing, the PCRA court
    concluded that Tucker had established a right to relief in the form of
    withdrawal of his plea and the award of a new trial.             The Commonwealth
    timely filed a notice of appeal, and both the Commonwealth and the PCRA
    court complied with Pa.R.A.P. 1925.
    The Commonwealth presents the following question on appeal:
    Whether the [PCRA] court erred in granting a new trial based on
    its conclusion that counsel rendered ineffective assistance in
    connection with Tucker’s guilty plea to a charge of failure to
    register as a sexual offender where the record demonstrates
    (Footnote Continued)   _______________________
    requirements for, inter alia, those who were subject to registration
    requirements under the prior law. 42 Pa.C.S. § 9799.13(3). Our Supreme
    Court invalidated retroactive application of SORNA in Commonwealth v.
    Muniz, 
    164 A.3d 1189
    , 1218 (Pa. 2017) (holding SORNA’s “significant
    differences” from the earlier Megan’s Law registration requirements rose to
    the level of criminal punishment). The Muniz decision does not impact this
    case, as Tucker was charged with and convicted of failing to register under
    the earlier statutes, retroactive application of which was upheld in, inter alia,
    Commonwealth v. Williams, 
    832 A.2d 962
    , 986 (Pa. 2003) (“Megan’s
    Law’s registration, notification, and counseling provisions constitute non-
    punitive, regulatory measures supporting a legitimate governmental
    purpose.”).
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    that, contrary to Tucker’s contention, Tucker was, in fact, an
    individual required to register who had failed to do so?
    Commonwealth’s Brief at 4.
    “Our standard of review of a trial court order granting or denying relief
    under the PCRA calls upon us to determine whether the determination of the
    PCRA court is supported by the evidence of record and is free of legal error.”
    Commonwealth v. Barndt, 
    74 A.3d 185
    , 191–92 (Pa. Super. 2013)
    (citation and quotation marks omitted).        “The PCRA court’s credibility
    determinations, when supported by the record, are binding on this Court;
    however, we apply a de novo standard of review to the PCRA court’s legal
    conclusions.” Commonwealth v. Roney, 
    79 A.3d 595
    , 603 (Pa. 2013).
    The Commonwealth challenges the PCRA court’s determination that
    Tucker’s plea counsel rendered ineffective assistance. On review, we bear in
    mind that counsel is presumed to be effective.           Commonwealth v.
    Andrews, 
    158 A.3d 1260
    , 1263 (Pa. Super. 2017).            To overcome that
    presumption, Tucker had to plead and prove all of the following: “(1) the
    underlying legal claim is of arguable merit; (2) counsel’s action or inaction
    lacked any objectively reasonable basis designed to effectuate his client’s
    interest; and (3) prejudice, to the effect that there was a reasonable
    probability of a different outcome if not for counsel’s error.”   
    Id. (internal quotation
    marks and citation omitted).
    Ineffective assistance of counsel claims arising from the
    plea-bargaining process are eligible for PCRA review. Allegations
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    of ineffectiveness in connection with the entry of a guilty plea
    will serve as a basis for relief only if the ineffectiveness caused
    the defendant to enter an involuntary or unknowing plea. Where
    the defendant enters his plea on the advice of counsel, the
    voluntariness of the plea depends on whether counsel’s advice
    was within the range of competence demanded of attorneys in
    criminal cases.
    Commonwealth v. Kelley, 
    136 A.3d 1007
    , 1012-13 (Pa. Super. 2016)
    (citations and quotation marks omitted).
    The PCRA court determined that Tucker, by proving all three prongs of
    the test for ineffective assistance of counsel, established that his 2013 guilty
    plea had been entered involuntarily. Specifically, the PCRA court found that
    (1) Tucker’s claim that trial counsel failed to review the discovery or “do any
    legal research regarding [Tucker’s] legal obligation to register under Megan’s
    Law” was of arguable merit; (2) counsel had no reasonable basis for failing
    to do so as “[t]he legal research necessary here was readily apparent from
    the face of the criminal information filed against [Tucker] insofar as
    [Tucker’s rape and IDSI] conviction date was prior to the enactment of
    Megan’s Law I;” and (3) if counsel had offered effective representation,
    Tucker would not have pled guilty. PCRA Court Opinion, 1/19/2016, at 4-5.
    If counsel had researched the issue, she would have been able to rely
    upon this Court’s decision in Commonwealth v. Rivera, 
    10 A.3d 1276
    (Pa.
    Super. 2010),3 a case decided more than two years before Tucker pled
    3The delay in our decision stems from our holding this case pending this
    Court’s en banc consideration of Rivera’s holding in Commonwealth v.
    (Footnote Continued Next Page)
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    guilty.   In Rivera, this Court held that Megan’s Law II’s applicability to
    “individuals incarcerated or convicted on or after the effective date of this
    act,” was “intended by the legislature to refer only to the original period of
    incarceration imposed on a sex offense,” and not “to a period of
    incarceration imposed to a probation violation on that sex offense.” 
    Rivera, 10 A.3d at 1284
    . In this appeal, the Commonwealth argues that the PCRA
    court erred in determining that the Rivera holding did not impact Tucker’s
    registration duty.        Commonwealth’s Brief at 24-30.          However, we are
    unpersuaded by the Commonwealth’s attempts to distinguish Rivera.
    Both Rivera and Tucker were convicted of sex crimes before any sex
    offender registration law was in effect. Both were on probation at the time
    Megan’s Law I became effective, rendering them subject to a ten-year
    registration requirement.4,5           When Megan’s Law II took effect, Rivera was
    (Footnote Continued)   _______________________
    McCullough, --- A.3d ---, 
    2017 WL 5184490
    (Pa. Super. 2017) (en banc).
    However, because McCullough was convicted for failure to register under
    SORNA rather than under the previous Megan’s Law II statute, the issue
    became moot when our Supreme Court held in Muniz that retroactive
    application of SORNA is unconstitutional. Hence, we now proceed to decide
    the issue without the benefit of en banc examination of Rivera.
    4 The Commonwealth contends that Rivera was not required to register at all
    under Megan’s Law I “because his offense - misdemeanor 2 [i]ndecent
    [a]ssault - did not become registerable until Megan’s Law II was enacted.”
    Commonwealth’s Brief at 27. However, Rivera was convicted of a first-
    degree misdemeanor offense of indecent assault of a person less than
    thirteen years of age. 
    Rivera, 10 A.3d at 1278
    n.1. Under 42 Pa.C.S.
    § 9793(b)(3), which was in effect from April 1996 to July 2000, a ten-year
    registration period was required for “[p]ersons convicted of 18 Pa.C.S.
    (Footnote Continued Next Page)
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    sentenced and incarcerated for violating the probation imposed following his
    indecent assault conviction, and was not still imprisoned on the initial sex
    offense sentence; Tucker was incarcerated in the rape/IDSI case on a
    probation violation, rather than the original sentence, at the time Megan’s
    Law II became effective.             Hence, because neither Rivera nor Tucker was
    convicted of a sex offense, or imprisoned on the original period of
    incarceration for a sex offense, on or after the effective date of Megan’s Law
    II, neither had a duty to register under Megan’s Law II.
    Having determined that the Rivera decision did indeed provide Tucker
    with a defense to the charges he faced, we consider whether the PCRA
    court’s determination that Tucker proved all three prongs of his claim of
    ineffective assistance of counsel is free of legal error and supported by the
    record.
    Our review of the transcript of the PCRA hearing supports the finding
    that, prior to advising him about whether to plead guilty, counsel obtained
    (Footnote Continued)   _______________________
    § 3126 (relating to indecent assault) when the offense is a misdemeanor of
    the first degree.”
    5
    Megan’s Law I did not indicate initially a commencement date for the
    registration of persons on probation or parole on its effective date. It was
    amended on May 22, 1996, to require such offenders to register within 30
    days. Hence Tucker and Rivera each should have registered by mid-June
    1996. Tucker did not register, but he was arrested and incarcerated for
    aggravated assault on June 12, 1996, a mere few weeks after his
    registration period should have begun. There is no indication in the Rivera
    opinion that Rivera ever registered under any version of the law.
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    neither the facts applicable to the issue of whether Tucker had a duty to
    register nor relevant case law that provided a complete defense to the
    charges Tucker faced.     N.T., 7/10/2015, at 16-17 (reporting that plea
    counsel testified that she did not have the Megan’s Law discovery packet at
    the time of the plea, and did no legal research regarding Tucker’s culpability
    given that his conviction predated the enactment of Megan’s Law). Because
    counsel did not discover or discuss any available defenses with Tucker, the
    PCRA court properly held that Tucker’s claim had arguable merit. See, e.g.,
    Commonwealth v. Lassiter, 
    722 A.2d 657
    , 662 (Pa. 1998) (Opinion
    Announcing the Judgment of the Court) (holding, in case in which Lassiter
    challenged the voluntariness of a guilty plea entered in exchange for the
    Commonwealth’s promise not to seek the death penalty, that the claim had
    arguable merit because the death penalty did not apply to an accomplice
    who did not “commit” the murder).
    The PCRA court also held that counsel lacked a reasonable basis for
    failing to investigate whether Tucker had a duty to register as a sex
    offender. Such a decision was obviously of “questionable legal soundness,”
    Commonwealth v. Hickman, 
    799 A.2d 136
    , 140 (Pa. Super. 2002), and
    the record reveals that counsel offered no explanation why proceeding
    blindly into a guilty plea rather than obtaining relevant information was
    reasonably designed to effectuate Tucker’s interests.   See, e.g., 
    Lassiter, 722 A.2d at 662
    (holding counsel had no reasonable basis for failing to
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    discuss with Lassiter an argument that the death penalty did not apply in his
    case because “[n]o strategic goals were furthered by trial counsel’s failing to
    fully inform his client of the true nature of the illusory promise with which
    the Commonwealth sought to bargain away [Lassiter’s] right to a jury trial”).
    Finally, the PCRA court’s factual finding that there is a reasonable
    probability that Tucker would have chosen to go to trial had counsel advised
    him that he had a basis to defend himself against the charges is supported
    by the record. See N.T., 7/10/2015, at 21 (“[Counsel] was telling me that
    she couldn’t fight it, she didn’t know how to fight it, so I felt like I had no
    choice but to plead guilty to it, although I knew I wasn’t guilty to it.”); 
    id. at 25-26
    (indicating Tucker was subsequently charged two more times with
    failing to comply with sex-offender registration; counsel in those cases
    informed Tucker of his ability to challenge the statute’s applicability to him,
    and Tucker opted to proceed to trial). We will not disturb factual findings of
    the PCRA court that are supported by the record. Commonwealth v. Ford,
    
    44 A.3d 1190
    , 1194 (Pa. Super. 2012).
    Thus, Tucker produced evidence that his plea counsel failed to inform
    him that he had no duty to register under Megan’s Law, that she had no
    reasonable basis for failing to research and apprise her client of that
    potential for defeating the charges, and that, had he known that he had a
    defense to raise, he would not have pled guilty. Accordingly, the PCRA court
    did not err in allowing Tucker to withdraw his involuntary guilty plea.
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    Order affirmed.
    Judge Shogan joins.
    Judge Olson concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/19/2017
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