Com. v. Swartzfager, C. ( 2014 )


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  • J-S65040-13
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,
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    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    On October 11, 2000, in an unpublished memorandum, we rejected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
    ____________________________________________
    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
    2
    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.
    ____________________________________________
    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
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