Com. v. Swartzfager, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,
J-S65040-13
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On October 11, 2000, in an unpublished memorandum, we rejected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,
-2-
J-S65040-13
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,
-3-
J-S65040-13
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).
-4-
J-S65040-13
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.
-5-
J-S65040-13
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.
-6-
J-S65040-13
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
-7-
J-S65040-13
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
-8-
J-S65040-13
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;
-9-
J-S65040-13
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,
- 10 -
J-S65040-13
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
- 11 -