Com. v. Evans, W. ( 2023 )

J-S13029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WARREN S. EVANS :
:
Appellant : No. 1429 EDA 2022
Appeal from the PCRA Order Entered April 27, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0014523-2011
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023
Warren S. Evans (Appellant) appeals from the order dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. Appellant’s appointed counsel, Gary S. Server, Esquire (PCRA
Counsel), has moved to withdraw. We grant PCRA Counsel’s motion to
withdraw and affirm the PCRA court’s order.
In August 2012, a jury found Appellant guilty of involuntary deviate
sexual intercourse with a child (IDSI with a child), endangering the welfare of
children, and corruption of minors.1 On December 19, 2013, the trial court
sentenced Appellant to an aggregate 6½ – 13 years of incarceration. The
court also found Appellant met the requirements for classification as a sexually
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 3123(b), 4304(a), 6301(a)(1).
J-S13029-23
violent predator (SVP), and required him to register for his lifetime as a sex
offender. Appellant filed a post-sentence motion, which was denied by
operation of law. Appellant timely appealed.
Thereafter:
On December 3, 2014, the Superior Court upheld
[Appellant’s] conviction, but remanded the matter for re-
sentencing[,] as [Appellant] was sentenced for IDSI forcible
compulsion, [18 Pa.C.S.A. § 3123(a)(1),] not IDSI with a child ….
[Commonwealth v. Evans, 135 A.3d 649 (Pa. Super. 2015)
(unpublished memorandum).] [Appellant] filed a pro se petition
for [allowance of appeal] to the Supreme Court Pennsylvania. The
Supreme Court of Pennsylvania denied the petition.
[Commonwealth v. Evans, 145 A.3d 162 (Pa. 2016).]
On January 9, 2016, [Appellant] filed a pro se Writ of
Habeas Corpus, claiming that he was being held unconstitutionally
because he had not received a docket report with the Superior
Court’s Order and Opinion from his December 13, 2016 appeal,
and thus had not been given notice that his conviction had been
remanded.
On February 6, 2017, [Appellant] filed a timely pro se PCRA
petition. On June 23, 2017[,] the [c]ourt resentenced [Appellant]
upon remand from the Superior Court. [Appellant] was
resentenced to six and a half (6½) to thirteen (13) [years in
prison] for IDSI with a child … rather than IDSI forcible
compulsion.
Following this resentencing, [Appellant] filed a pro se
supplemental PCRA petition on February 13, 2018. On March 18,
2018, with assistance of his counsel, Peter Alan Levin, Esquire,
[Appellant] filed an amended PCRA petition on March 18, 2018.
On May 24, 2018 and June 4, 2018, [Appellant], through his
counsel, filed copies of a second supplemental amended PCRA
petition. On April 22, 2019, [Appellant] filed a pro se
supplemental amended PCRA.
-2-
J-S13029-23
PCRA Court Opinion, 11/21/22, at 1-2 (unnumbered) (some capitalization
altered).
On February 19, 2019, Appellant petitioned the PCRA court for leave to
proceed pro se, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998). The PCRA court held a Grazier hearing on October 2, 2020, and
granted Appellant permission to proceed pro se.
Appellant filed a pro se amended PCRA petition on November 10, 2020.
The Commonwealth filed a motion in opposition on March 18, 2021. On
February 8, 2022, the PCRA court notified Appellant of its intention to dismiss
the petition without a hearing pursuant to Pa.R.Crim.P. 907. The court
concluded all of Appellant’s claims were meritless, and stated:
[Appellant claims his] constitutional rights were violated when he
was required to submit to Megan’s Law [lifetime sex offender
reporting] requirements under the Sex Offender Registration and
Notification Act (“SORNA”)[, 42 Pa.C.S.A. §§ 9799.10—9799.42.]
This argument has no merit due to the Pennsylvania Supreme
Court’s decision in Commonwealth v. Lacombe, 234 A.3d 602(Pa. 2020). In Lacombe, the Court held that the retroactive
application of SORNA’s Subchapter I does not violate the ex post
facto laws of the U.S. Constitution and is non-punitive. Id. Here,
[Appellant’s] SORNA conditions are within the scope of
Subchapter I. [Appellant] was convicted on August 31, 2012,
which places him within the scope of retroactive application of
Subchapter I, enacted by the Pennsylvania Legislature.
Therefore, under Lacombe, [Appellant’s] retroactive sex offender
registration under SORNA Subchapter I does not violate ex post
facto laws.
Notice of Intent to Dismiss, 2/8/22, at 10 (unnumbered) (paragraph breaks
and numbering omitted). Appellant filed a pro se response on March 25, 2022.
-3-
J-S13029-23
The PCRA court dismissed Appellant’s PCRA petition on April 27, 2022.
That same day, the court appointed PCRA Counsel for Appellant. Appellant
timely filed a notice of appeal. Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
On January 29, 2023, PCRA Counsel filed in this Court a brief and
separate motion to withdraw as counsel, pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).2 Appellant filed a motion in opposition to
the Turner/Finley Brief and motion to withdraw on March 24, 2023. Motion
in Opposition, 3/24/23, ¶ 2 (“[PCRA] Counsel … did not make a thorough and
conscientious examination”), and id. ¶ 3 (“[PCRA] Counsel cannot possibly
believe the [a]ppeal in its present procedu[r]al posture is wholly frivolous,
without merit, supporting law or facts.”).
Appellant presents two issues for our review:
[1.] Whether the sentence imposed upon the Appellant is illegal,
null and void where there are conditions of submitting to lifelong
Megan’s [L]aw requirements pursuant to 42 Pa.C.S. Section
____________________________________________
2 PCRA Counsel’s Turner/Finley Brief also references Anders v. California,
386 U.S. 738 (1967), and its progeny. See Turner/Finley Brief at 12-14.
The procedure set forth in Anders is not appropriate for withdrawing from
PCRA representation. See Commonwealth v. Karanicolas, 836 A.2d 940,
947 (Pa. Super. 2003) (Anders briefs are procedurally inappropriate in PCRA
appeals). However, PCRA Counsel correctly observes that in Commonwealth
v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004), we held:
“[B]ecause an Anders brief provides greater protection to the defendant, we
may accept an Anders brief in lieu of a Turner/Finley letter.” Turner/Finley
Brief at 13; see also Karanicolas, 836 A.2d at 947 (stating that substantial
compliance with requirements to withdraw will satisfy Turner/Finley criteria).
-4-
J-S13029-23
9795.1 et seq.[,] where the Appellant was designated as a
Sexually Violent Predator pursuant to 42 Pa.C.S. section 9795.4
on 12/19/13[,] following the 8/31/12 conviction under Megan’s
Law III and 18 Pa.C.S. Section 4915 that was thereafter declared
unconstitutional on 12/16/13 as a violation of Pa.Const. Art. 3
Sec. 1 pursuant to Commonwealth v. Neiman, 84 [A.]3d 603
([P]a. 2013[),] which occurred before the Appellant’s final
judgment of sentence on 12/19/13[,] as the lower court lacked
the authority to impose an illegal sentence under Megan’s Law III
because it no longer existed and was stricken as unconstitutional
by the time that the Appellant was actually sentenced?
[2.] Whether the PCRA court erred and abused its discretion where
it denied the Appellant’s request for collateral relief when the
sentence imposed was illegal and violated the Appellant’s due
process and other constitutional protections when the court lacked
the authority to sentence the Appellant and impose lifelong
reporting conditions on 12/19/13[,] following the Appellant’s
August 2012 conviction under Megan’s Law III where it was
declared to be unconstitutional on 12/16/13 pursuant to the
holding of Commonwealth v. Neiman, 84 A.[3]d 603 (Pa.
2013)?
Turner/Finley Brief at 6.3
We first address whether PCRA Counsel has satisfied the requirements
of Turner/Finley in petitioning to withdraw. Commonwealth v. Knecht,
219 A.3d 689, 691 (Pa. Super. 2019) (“When presented with a brief pursuant
to Turner/Finley, we first determine whether the brief meets the procedural
requirements of Turner/Finley.”). This Court has explained:
A Turner/Finley brief must: (1) detail the nature and extent of
counsel’s review of the case; (2) list each issue the petitioner
wishes to have reviewed; and (3) explain counsel’s reasoning for
concluding that the petitioner’s issues are meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)
[(overruled on other grounds by Commonwealth v. Bradley,
____________________________________________
3 Appellant argues his issues together. See Turner/Finley Brief at 13-18.
-5-
J-S13029-23
261 A.3d 381, 401 (Pa. 2021) (“we now … abandon Pitts’s …
approach as the sole procedure for challenging PCRA counsel’s
effectiveness”) (italics added))]. Counsel must also send a copy
of the brief to the petitioner, along with a copy of the petition to
withdraw, and inform the petitioner of the right to proceed pro se
or to retain new counsel. [Commonwealth v.] Wrecks, 931
A.2d [717,] 721 [(Pa. Super. 2007)]. If the brief meets these
requirements, we then conduct an independent review of the
petitioner’s issues. Commonwealth v. Muzzy, 141 A.3d 509,
511 (Pa. Super. 2016).
Knecht, 219 A.3d at 691 (citations modified).
Our review discloses that PCRA Counsel has complied with the above
requirements. See Karanicolas, 836 A.2d at 947. PCRA Counsel’s
Turner/Finley brief (1) sets forth the issues Appellant wants this Court to
review; (2) states PCRA Counsel has conducted a conscientious examination
of the record; (3) determines there are no non-frivolous arguments to support
Appellant’s claims; and (4) explains why Appellant’s claims lack merit. See
Turner/Finley Brief at 13-19. Additionally, PCRA Counsel mailed to Appellant
correspondence informing him of PCRA Counsel’s intention to withdraw from
representation and advising Appellant of his rights, in compliance with
Commonwealth v. Friend, 896 A.2d 607, 614 (Pa. Super. 2006). See
Motion to Withdraw as Counsel, 1/29/23, attachment. As PCRA Counsel has
complied with Turner/Finley, we independently review Appellant’s issues.
Our standard of review is limited to “whether the PCRA court’s findings
of fact are supported by the record, and whether its conclusions of law are
free from legal error.” Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa.
2020).
-6-
J-S13029-23
Appellant argues the PCRA court erred in rejecting his claim that his
lifetime sex offender reporting requirement is illegal, because “SORNA
imposes upon him a punitive and unconstitutional ex post facto law….”
Turner/Finley Brief at 16. Appellant “primarily relies upon Commonwealth
v. Neiman, 84 A.3d 603 (Pa. 2013)….” Turner/Finley Brief at 16 (some
capitalization altered); see also Neiman, 84 A.3d at 613 (holding that
provisions of Megan’s Law III violated the single subject rule of Article III,
Section 3 of the Pennsylvania Constitution).
Appellant’s claim presents a question of law. Therefore, “our standard
of review is de novo, and our scope of review is plenary.” Commonwealth
v. Brensinger, 218 A.3d 440, 456 (Pa. Super. 2019) (en banc) (citation
omitted).
Pertinently, the PCRA court explained:
The Pennsylvania General Assembly enacted Megan’s Law
III on November 24, 2004. Commonwealth v. Stanley, 259
A.3d 989, 990 n.2 (Pa. Super. [] 2021). Although the Supreme
Court of Pennsylvania ruled Megan’s Law III to be unconstitutional
under Article III, Section 3 of the Pennsylvania Constitution, by
the time the law had been struck down, the Pennsylvania General
Assembly had replaced Megan’s Law III with … SORNA[] in order
bring the Commonwealth into compliance with the Federal Adam
Walsh Child Protection and Safety Act of 2006. See
Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013) (striking
down Megan’s Law III); Commonwealth v. Lacombe, 234 A.3d
602, 608-09 (Pa. 2020) (providing details about the [o]riginal
SORNA statute); Stanley, 295 A.3d at 990 n.2 (explaining the
legislative timeline).
The Supreme Court [of] Pennsylvania held that provisions
in the original iteration of SORNA, which retroactively applied to
defendants convicted before SORNA’s effective date, constituted
-7-
J-S13029-23
punishment and violated both the Federal and State ex post facto
clauses. Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa.
2017) [(superseded by statute as stated in Commonwealth v.
Lippincott, 273 A.3d 1157, 1162 (Pa. Super. 2022) (en banc))].
In response to Muniz and the Superior Court’s ruling in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017),
which invalidated SORNA’s mechanism for determining … SVP[]
status, the General Assembly enacted Subchapter I, which
becomes the “operative version of SORNA for those sexual
offenders whose crimes occurred between April 22, 1996 and
December 20, 2012.” Lacombe, 234 A.3d at 616; see also 42
Pa.[C.S.A.] § 9799.51 (2018); Stanley, 295 A.3d at 991 n.4 (“To
address ex post facto concerns, the amendment separates the
provisions into distinct subchapters— Subchapter H, for offenders
whose underlying conduct occurred on or after December 20,
2012, SORNA’s effective date, and Subchapter I, for offenders
required to register under former versions of Megan’s Law.”).
Among the provisions of the enacted Subchapter I is that
offenders convicted of one of the triggering offenses must register
either for a period of ten years or for life. 42 [Pa.C.S.A.] §
9799.55(a)-(b) (2018). Offenders who are convicted of certain
crimes, including IDSI, are subject to lifetime registration under
Subchapter I. [Id.] § 9799.55(b) (2018).
Here, [Appellant] is subject to the provisions of
Subchapter I, including lifetime registration, because he was
convicted of IDSI with a child … on August 31, 2012, which is after
April 22, 1996, but before December 20, 2012. See 42
Pa.[C.S.A.] §§ 9799.52, 9799.55 (2018).
In … Lacombe, the Supreme Court of Pennsylvania
addressed whether Subchapter I of SORNA, as retroactively
applied to those convicted prior to its effective date, constituted a
punitive and unconstitutional ex post facto law. Lacombe, 234
A.3d at 605-06. The Court concluded that the provisions of
Subchapter I explicitly do not constitute criminal
punishment and are not unconstitutional as ex post facto
laws. Id. at 626-27.
Pursuant to the Supreme Court’s ruling in Lacombe,
[Appellant’s] retroactive lifetime sex offender registration
under SORNA Subchapter I does not violate the prohibition
against ex post facto laws. See id.; see also 42 Pa.[C.S.A.]
-8-
J-S13029-23
§§ 9799.52, 9799.55 (2018). Therefore, the sentence [the trial]
court imposed was proper.
PCRA Court Opinion, 11/21/22, at 4-5 (unnumbered) (emphasis added; some
capitalization altered). The PCRA court’s reasoning is supported by the record
and the law. Contrary to Appellant’s claim, his lifetime sex offender reporting
requirement is lawful. See Lacombe, supra.
Based on the foregoing, we grant PCRA Counsel’s motion to withdraw
from representation and affirm the dismissal of Appellant’s PCRA petition.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
-9-