Com. v. Kristman, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROY EDWARD KRISTMAN, :
:
Appellant : No. 1287 MDA 2018
Appeal from the PCRA Order Entered July 10, 2018
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002560-2014
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: APRIL 30, 2019
Roy Edward Kristman (“Kristman”) appeals from the Order denying his
first Petition for Relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. Counsel for Kristman has filed a Petition to
Withdraw from representation, and an appellate brief (the “No-Merit Brief”).1
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1 Counsel’s appellate brief appears to be in the nature of a brief filed pursuant
to Anders v. California, 386 U.S. 738 (1967), which applies when counsel
seeks to withdraw from representation on direct appeal. When, as in this
case, counsel seeks to withdraw from representation on collateral appeal, the
dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), are
applicable. However, because an Anders brief affords greater protection to
a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
“no-merit” letter. See Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa.
Super. 2014).
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We deny counsel’s Petition to Withdraw, reverse the Order of the PCRA court,
and remand for further proceedings.
On September 4, 2014, Kristman pled guilty to rape by forcible
compulsion, rape of a substantially impaired person, aggravated assault,
robbery and simple assault.2 On that same date, the trial court sentenced
Kristman to 6-12 years in prison, and ordered an assessment to determine
whether Kristman is a sexually violent predator (“SVP”), pursuant to the
Sexual Offender Registration and Notification Act (“SORNA”).3 Kristman
subsequently was determined to be an SVP, and therefore subject to SORNA’s
lifetime registration requirement.
On July 5, 2018, Kristman filed a pro se Motion to be Removed from
SORNA. The common pleas court denied the Motion, after which Kristman
timely filed a pro se Notice of Appeal. On August 9, 2018, this Court entered
an Order remanding the matter for a determination of whether Kristman is
entitled to court-appointed counsel, concluding that Kristman’s Motion “should
be treated as an untimely first PCRA petition, … for which Kristman is entitled
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2 See 18 Pa.C.S.A. §§ 3121(a)(1), 3121(a)(4), 2702(a)(1), 3701(a)(1),
2701(a)(1).
3 See 42 Pa.C.S.A. §§ 9799.10-9799.42.
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to counsel.”4 See Commonwealth v. Kristman, No. 1287 MDA 2018 (Pa.
Super. filed August 9, 2018) (Order) (citations omitted).
On remand, the PCRA court appointed counsel for Kristman, and entered
an Order directing Kristman to file a concise statement of matters complained
of on appeal, in accordance with Pa.R.A.P. 1925(b). Counsel thereafter
indicated her intention to file a no-merit brief. In this Court, counsel has filed
a No-Merit Brief and a Petition to Withdraw from representation.
Before addressing counsel’s Petition to Withdraw and the issue raised in
Kristman’s No-Merit Brief, we first must address the procedural posture of this
case. Kristman filed his pro se Motion to be Removed from SORNA on July 5,
2018. By his Motion, Kristman alleged that his sentence was rendered illegal
by the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017), and this Court’s decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017).5 The PCRA court denied Kristman’s
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4 We note that on October 24, 2018, the legislature amended the PCRA’s
timeliness requirement. See Act 2018, Oct. 24, P.L. 894, No. 146, §§ 2-3.
5 In Muniz, the Pennsylvania Supreme Court held that the registration
requirements under SORNA are punitive in nature, and, consequently, the
retroactive application of SORNA’s registration provisions violates the ex post
facto clause of the United States Constitution. Muniz, 164 A.3d at 1218. In
Butler, this Court applied Muniz and determined that, “as a result of Muniz,
the SVP procedure is subject to the constitutional requirement that the facts
constituting that punishment must be found by a fact-finder beyond a
reasonable doubt.” Commonwealth v. Tighe, 184 A.2d 560, 583 (Pa.
Super. 2018). This Court filed its decision in Butler on October 31, 2017.
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Motion without appointing counsel. Because this was Kristman’s first PCRA
Petition, he was entitled to the appointment of counsel. See Commonwealth
v. Smith, 818 A.2d 494, 498 (Pa. 2003) (stating that “[t]he rules of criminal
procedure require the appointment of counsel in PCRA proceedings.”);
Commonwealth v. Kutnyak, 781 A.2d 1259, 1262 (Pa. Super. 2001)
(holding that an appellant is entitled to representation of counsel for a first
PCRA petition, “despite any apparent untimeliness of the petition or the
apparent non-cognizability of the claims presented”). “The denial of PCRA
relief cannot stand unless the petitioner was afforded the assistance of
counsel.”6 Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1999).
Consequently, we are required to deny counsel’s pending Petition to
Withdraw, reverse the Order of the PCRA court, and remand the matter for
further proceedings. On remand, counsel may file an amended PCRA petition,
if necessary.
Petition to Withdraw denied. Order reversed. Case remanded for
further proceedings consistent with this Memorandum. Superior Court
jurisdiction relinquished.
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6 Additionally, the PCRA court failed to issue the required notice of its intention
to dismiss Kristman’s Petition without a hearing. See Pa.R.A.P. 907(1)
(requiring that a PCRA court “give notice to the parties of the intention to
dismiss the petition and … state in the notice the reasons for the dismissal.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2019
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