Com. v. Clark, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES CLARK :
:
Appellant : No. 1391 EDA 2020
Appeal from the PCRA Order Entered June 22, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001151-2009
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 10, 2021
Appellant James Clark appeals from the order dismissing his Post
Conviction Relief Act (PCRA) petition challenging the application of the
increased term of sex offender registration under the former version of the
Sexual Offender Registration and Notification Act.1 Appellant’s counsel has
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1 42 Pa.C.S. §§ 9799.10-9799.42 (subsequently amended eff. Feb. 2018)
(SORNA I). We note that at the time of Appellant’s conviction, Act 152, or
Megan’s Law III, see 2004, Nov. 24, P.L. 1243, No. 152, governed Appellant’s
sex offender registration requirements. Thereafter, SORNA I took effect in
December 2012. On December 16, 2013, our Supreme Court held that Act
152 was unconstitutional for violating the single-subject rule.
Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013). On July 17, 2017,
our Supreme Court decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (plurality), and held that SORNA I was punitive and violated the
constitutional prohibitions against ex post facto laws when applied to a
defendant who committed a sexual offense before December 20, 2012, the
effective date of SORNA I. See Muniz, 164 A.3d at 1223; see also
Commonwealth v. Lippincott, 208 A.3d 143, 150-54 (Pa. Super. 2019) (en
banc).
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filed a petition to withdraw and an Anders2 brief. For the reasons that follow,
we affirm the order and grant counsel’s petition to withdraw.
Briefly, on January 12, 2010, Appellant entered a negotiated guilty plea
to two counts of sexual abuse of children and one count of criminal use of
communication facility,3 and the trial court imposed the agreed-upon sentence
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We add that in response to Muniz, the General Assembly amended SORNA I.
See 2018, Feb. 21, P.L. 27, No. 10 (Act 10) (SORNA II); see also 2018, June
12, P.L. 140, No. 29 (Act 29). SORNA II divides sex offender registrants into
two distinct subchapters—Subchapter H, which includes individuals who were
convicted of a sexually violent offense that occurred on or after December 20,
2012, and Subchapter I, which includes individuals who were convicted of a
sexually violent offense that occurred “on or after April 22, 1996, but before
December 20, 2012,” or who were required to register under a former sexual
offender registration law on or after April 22, 1996, but before December 20,
2012, and whose registration requirements had not yet expired. See 42
Pa.C.S. §§ 9799.11(c), 9799.52.
2 Anders v. California, 386 U.S. 738 (1967).
3 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
We note that the record at the time of Appellant’s plea indicates that the trial
court and counsel were uncertain as to whether Appellant would be subject to
a ten-year or life registration period due to Appellant’s convictions for the two
counts of sexual abuse of children in this case. See N.T., 1/12/10, at 6-9.
Appellant’s trial counsel stated that Appellant did not intend to withdraw his
plea even if the Pennsylvania State Police later determined that he was subject
to a life registration period. Id. at 10.
Our Supreme Court has since held that the provisions in SORNA I and prior
versions of Megan’s Law reflect a recidivist philosophy and require that a
lifetime registration period for “two or more convictions” involve “an act, a
conviction, and a subsequent act . . . .” See A.S. v. Pennsylvania State
Police, 143 A.3d 896, 897-98, 908 (Pa. 2016); see also Commonwealth v.
Lutz-Morrison, 143 A.3d 891, 895 (Pa. 2016). Put differently, our Supreme
Court held that a lifetime registration period did not apply based on multiple
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of eleven-and-one-half to twenty-three month’s imprisonment and a
consecutive seven years of probation. Appellant signed a written addendum
to his guilty plea colloquy and a “Sexually Violent Offenders Notification at
Sentencing” form that summarized his sex offender registration obligations.
Appellant did not file post-sentence motions, nor did he take a direct appeal.
Appellant filed a pro se PCRA petition, his first, on February 21, 2019,
asserting that he “signed a plea deal for [ten] years [Megan’s Law
registration,] it is now [ten] years later[, and] now it is [twenty-five] years,
which is incorrect.” PCRA Pet., 2/21/19, at 3. Appellant claimed that his
registration period should be ten years and that he was no longer required to
register. Id.The PCRA court appointed counsel to represent Appellant, and counsel
filed an amended petition on July 1, 2019. In his amended PCRA petition,
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offenses committed in a single criminal prosecution. Although A.S. and Lutz-
Morrison did not address Megan’s Law III specifically, Megan’s Law III
contained the same “two or more convictions” language discussed in those
cases. See 42 Pa.C.S. § 9795.1(b)(1) (expired 2012) (setting a lifetime
registration requirement for “an individual with two or more convictions of any
of the offenses [subject to a ten-year registration period]”). Moreover,
Subchapter I continues to use the same language, see 42 Pa.C.S. §
9799.55(b)(1), and the parties and the PCRA court here do not dispute that
the ten-year registration period applies. See Anders Brief at 7;
Commonwealth’s Brief at 13; PCRA Ct. Op., 12/7/20, at 4.
Lastly, we note the face sheet of the guilty plea transcript states that the
hearing occurred on January 1, 2010, but there is no dispute that the hearing
occurred on January 12, 2010. Therefore, we cite to the guilty plea hearing
using the January 12, 2010 date.
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Appellant claimed: (1) “[i]t was . . . negotiated between the Commonwealth
and [Appellant] that he was to be subject to ten (10) year registration
requirement under Megan’s Law[;]” (2) “[i]n fact, [Appellant] is subject to a
longer registration requirement than the ten (10) years he negotiated for[;]”
and (3) “[i]f [Appellant] had known about the extended registration
requirement, he would not have entered in the [g]uilty plea . . . .” Am. PCRA
Pet., 7/1/19, at 1-2 (unpaginated). Notably, Appellant did not raise a claim
of ineffective assistance of counsel in his amended petition.
The Commonwealth filed an answer on October 3, 2019, requesting that
the PCRA court dismiss the petition as meritless. Answer to Request for PCRA
Relief/Mot. to Dismiss, 10/3/19, at 3. Specifically, the Commonwealth
asserted that Appellant “will not be subject to the SORNA [I] that was
contested in [Muniz]” and that “any prior application of SORNA [I] has already
been corrected.” Id. at 2. According to the Commonwealth, Appellant is
subject to a ten-year registration requirement and “will not be required to
register for a lengthier period of time under SORNA II [and] has not been
subjected to . . . more onerous registration requirements.”4 Id. at 2-3. For
those reasons, the Commonwealth concluded that Appellant could not assert
a breach of the benefit of his plea agreement or an ex post facto violation.
Id. at 3.
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4 The Commonwealth attached to its answer a printout from the Megan’s Law
website dated October 2, 2019. The page lists Appellant as a ten-year
“offender type.” Attach. to Answer to Request for PCRA Relief/Mot. to Dismiss.
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On October 3, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss Appellant’s petition without a hearing. Appellant did not
file a response,5 and the PCRA court dismissed Appellant’s petition on June
22, 2020.
Appellant timely appealed on July 21, 2020. Both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. In its Rule 1925(a) opinion, the
PCRA court stated that Appellant timely filed his PCRA petition, but that his
claims were frivolous because Appellant was aware that he would be subject
to sex offender registration requirements and a ten-year registration period.
As noted above, Appellant’s counsel has filed a motion to withdraw from
representation in this Court asserting that an appeal is frivolous and an
accompanying Anders brief.
Before addressing the matters raised in counsel’s brief, we first consider
counsel’s request to withdraw. In so doing, we are mindful that our Supreme
Court, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), declined
“to find the PCRA, or any other procedural mechanism, is the exclusive method
for challenging sexual offender registration statutes . . . .” Lacombe, 234
A.3d at 618. Moreover, the Lacombe Court specifically rejected the
application of the PCRA time bar to claims challenging changes to sex offender
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5 While counseled, Appellant sent a pro se letter dated April 28, 2020 to the
PCRA court essentially asking how his ten-year registration period was still in
effect when it began on February 16, 2010.
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registration laws. See id. at 617-18; see also Commonwealth v. Smith,
240 A.3d 654, 658 (Pa. Super. 2020).
Generally, this Court has recognized two procedures for counsel to seek
withdrawal during an appeal—the Anders/Santiago6 procedures applicable
in a direct appeal, and the Turner/Finley7 procedures applicable in a PCRA
appeal. See Commonwealth v. Wrecks, 931 A.2d 717, 720-22 (Pa. Super.
2007). The Anders/Santiago and the Turner/Finley procedures both
require counsel “to examine the record, present issues, and request
permission to withdraw.” Id. at 721. Additionally, both procedures require
that counsel notify his client of his intent to withdraw, provide a copy of his
brief or letter, and advise the client of his right to proceed in an appeal pro se
or with privately retained counsel. See Commonwealth v. Muzzy, 141 A.3d
509, 511 (Pa. Super. 2016) (discussing Turner/Finley); Commonwealth v.
Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (discussing
Anders/Santiago).
This Court has held that the Anders/Santiago standard to determine
whether an appeal is frivolous is more stringent and provides greater
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6 Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). As this Court
noted in Commonwealth v. Daniels, 999 A.2d 590 (Pa. Super. 2010),
Santiago altered the Anders requirements for withdrawal and requires that
counsel “provide the reasons for concluding the appeal is frivolous.” Daniels,
999 A.2d at 593. Before Santiago, counsel seeking to withdraw was required
to “not argue against the client’s interests.” See Wrecks, 931 A.2d at 722.
7 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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protection to a defendant than the Turner/Finley standard based on lack of
merit. Wrecks, 931 A.2d at 722. The increased protections afforded by
Anders/Santiago reflect the constitutional right to counsel in a direct appeal.
See id. It is well-settled that because of the greater protections afforded by
Anders, this Court “may accept an Anders brief in lieu of a Turner/Finley
letter.” Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004); accord Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super.
2014).
Instantly, counsel was appointed as Appellant’s counsel for his first
PCRA petition. Accordingly, we review counsel’s petition to withdraw and
Anders brief as follows:
[c]ounsel petitioning to withdraw from PCRA representation must
proceed under [Turner and Finley] and must review the case
zealously. Turner/Finley counsel must then submit a “no-merit”
letter to the trial court, or brief on appeal to this Court, detailing
the nature and extent of counsel’s diligent review of the case,
listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that . . .
satisfy the technical demands of Turner/Finley, the court—trial
court or this Court—must then conduct its own review of the
merits of the case. If the court agrees with counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Muzzy, 141 A.3d at 510-11 (citations omitted and formatting altered).
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Instantly, counsel has filed a petition to withdraw asserting that he
thoroughly reviewed the case, believed an appeal was wholly frivolous,
notified Appellant of his intent to withdraw, and provided a copy of his brief.
Counsel attached to his petition a copy of his letter to Appellant, which
informed Appellant of his right to proceed pro se or with private counsel.
Appellant did not file a response pro se or through private counsel.
Counsel’s brief summarizes the relevant record and explains why
Appellant’s claim that he is subject to a longer term of registration than at the
time of his plea lacked merit. Anders Brief at 7-10. Therefore, counsel has
substantially complied with the technical requirements for withdrawal by
explaining why Appellant’s intended issue lacked merit.8
We address first counsel’s analysis of Appellant’s claim that he is subject
to a longer period of registration than at the time of his plea. See Anders
Brief at 7-10. Counsel notes that SORNA I no longer applies to Appellant and
that under SORNA II, he will be subject to a ten-year registration period, which
is the same registration period agreed to at the time of his plea. Id. at 7-8.
Appellant’s issue concerns a review of the relevant statutes, which
implicates a question of law. Therefore, our standard of review is de novo,
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8 Counsel independently raised what he called an issue of arguable merit
without explaining why it was meritless. See Anders Brief at 10. Counsel’s
failure to explain why the issue is meritless violates the requirements of
Turner/Finley and Santiago. See Wrecks, 931 A.2d at 722. In any event,
as discussed below, the issue identified by counsel, specifically, the
effectiveness of Appellant’s counsel at the time of the plea, is not cognizable
in this appeal because it was not preserved before the PCRA court.
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and our scope of review is plenary. Lutz-Morrison, 143 A.3d at 894. We
reiterate that Appellant’s claim based on the changes in the sex offender
registration law is not subject to the PCRA time bar. See Lacombe, 234 A.3d
at 618.
Instantly, our review reveals that at the time of Appellant’s plea,
Megan’s Law III required Appellant to register as a sex offender for a period
of ten years for his sexual abuse of children convictions. See 42 Pa.C.S. §
9795.1(a)(1) (expired 2012). In 2012, SORNA I took effect and listed
Appellant’s sex offenses as Tier I offenses requiring him to register for fifteen
years. See 42 Pa.C.S. §§ 9799.14(b)(9), 9799.15(a)(1) (subsequently
amended 2018). However, Muniz then found SORNA I unconstitutional for
retroactively imposing a punishment, and in response, the General Assembly
passed SORNA II, creating Subchapter I, which applied to Appellant based on
the child pornography found on his computer in 2008. See 42 Pa.C.S. §§
9799.55(a)(1)(i)(A) (requiring ten-year registration for individuals convicted
of the offense of sexual abuse of children committed “on or after April 22,
1996, but before December 20, 2012”).
For these reasons, we agree with counsel’s assessment that Appellant’s
intended challenge based on an increased period of registration lacks merit.
Essentially, Appellant’s claim that SORNA I increased his period of registration
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lacks merit due to the changes in the relevant statutes. Accordingly, no relief
is due.9
To the extent counsel identified an issue based on the effectiveness of
counsel at the time of Appellant’s plea, we cannot address it in this appeal
because Appellant’s amended PCRA petition did not plead a claim of ineffective
assistance of counsel. See Pa.R.A.P. 302(a). Because this issue was not
preserved before the PCRA court, it is waived, and we will not address it for
the first time on appeal. See Commonwealth v. Reid, 99 A.3d 470, 496
(Pa. 2014).
Order affirmed. Petition to withdraw granted.
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9 Appellant did not claim that Subchapter I was punitive or that he was subject
to a more stringent registration, notification, or verification provision. Rather,
as noted above, Appellant challenged only the length of his registration period.
We add that Appellant attempted to raise claims that his ten-year registration
period should have ended. As noted by the Commonwealth, Appellant is
serving a sentence of imprisonment in a different case, Commonwealth’s Brief
at 13, and the record shows that the trial court also previously revoked
Appellant’s probation and imposed new sentences of incarceration for his
probation violation in the instant case, most recently, a new sentence of one
to five years’ imprisonment imposed on March 3, 2015. According to the
Commonwealth, Appellant’s incarceration tolls the sex offender registration
period. See id.; see also 42 Pa.C.S. §§ 9799.54(a), 9799.56(a)(3).
However, we decline to consider that issue because it was not properly raised
in the PCRA court and because the issue appears to concern the Pennsylvania
State Police’s authority to administer SORNA II and interpret the tolling
provisions of a sex offender registration requirement when an offender is
incarcerated. See generally A.S., 143 A.3d at 898-99.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2021
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