Com. v. Prinkey, M.

J-A18035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK ALLEN PRINKEY :
:
Appellant : No. 1380 WDA 2018
Appeal from the PCRA Order Entered August 28, 2018
in the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000242-2007
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 25, 2020
Mark Allen Prinkey (“Prinkey”) appeals from the Order denying his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
In a prior appeal, this Court summarized the history underlying the
instant appeal as follows:
[Prinkey] took a seven-year[-]old female child into a barn to
feed calves, despite the victim first telling him that she did
not want to go. While in the barn area, after [Prinkey had]
fed the calves, he asked the young child if she had a boyfriend
or if she had ever kissed a boy. The victim answered no.
[Prinkey] then went down on his knees and placed his hands
on her shoulders. The victim then fled the barn and told her
teenage half-sister[FN1] and another friend about these
actions[,] and that [Prinkey had] attempted to kiss her.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-A18035-19
[FN1] The sister is [Prinkey’s] daughter.
When the victim’s mother arrived, the victim relayed the same
information to her mother, stating that she thought [Prinkey] was
going to try to kiss her.[FN2] In an interview with police, [Prinkey]
stated that he guessed his intent was pleasure and that if he did
kiss the victim that the incident could have possibly escalated to
additional sexual acts, including the victim potentially performing
oral sex. He did not indicate that he intended for the victim to
perform oral sex, although he did admit that he intended to kiss
the girl.
[FN2]At trial, the victim did not testify that [Prinkey] tried to kiss
her, only that he touched her shoulder after kneeling down. She
also testified that he did not pull her face to kiss her. The
statement to her mother was admitted under 42 Pa.C.S.[A.]
§ 5985.1, the tender years hearsay exception.
* * *
[A jury found Prinkey guilty of attempted involuntary
deviate sexual intercourse (“IDSI”) with a child, attempted
indecent assault with a person less than 13 years of age, and
corruption of the morals of a minor.]
… The court found [Prinkey] to be a sexually
violent predator (“SVP”), and imposed an aggregate sentence of
ten to twenty-five years [of] incarceration. [Prinkey] filed a timely
post-sentence [M]otion, which the trial court denied. A timely
direct appeal ensued …. On appeal, [Prinkey] challenge[d] the
sufficiency of the evidence, the weight of the evidence, and his
classification as an SVP….
A panel of this Court found that [Prinkey’s] sufficiency of the
evidence claims were waived because his position was “woefully
undeveloped[.]” Commonwealth v. Prinkey, 15 A.3d 529 (Pa.
Super. 2010) (unpublished memorandum, at 5). Similarly, it held
-2-
J-A18035-19
that [Prinkey’s] weight of the evidence arguments were too
undeveloped to be reached. … [T]he panel found all of [Prinkey’s]
arguments waived due to inadequate briefing, except for his
challenge to his classification as [an SVP].
Commonwealth v. Prinkey, 83 A.3d 1080 (Pa. Super. 2013) (unpublished
memorandum at 1-5) (some footnotes omitted). This Court affirmed Prinkey’s
designation as an SVP. Prinkey, 15 A.3d 529 (Pa. Super. 2010) (unpublished
memorandum at 11).
Prinkey filed a timely first PCRA Petition, which the PCRA court denied.
On appeal, this Court concluded that Prinkey’s direct appeal counsel rendered
ineffective assistance by failing to challenge properly the sufficiency of the
evidence underlying his conviction of attempted IDSI. Prinkey, 83 A.3d 1080(Pa. Super. 2013) (unpublished memorandum at 17). Consequently, this
Court reversed Prinkey’s conviction for attempted IDSI, vacated his judgment
of sentence and remanded for resentencing, because our determination upset
the trial court’s sentencing scheme. Id.On remand,
the Commonwealth served [N]otice of its intent to seek a
mandatory sentence pursuant to 42 Pa.C.S.[A.] § 9718.2, which
mandates a minimum sentence of not less than twenty-five years
for the conviction of attempted indecent assault. [Prinkey] then
filed a [M]otion to [D]ismiss the Commonwealth’s [N]otice. The
trial court received briefs from the parties, and[,] on February 19,
2014, immediately prior to resentencing, heard oral arguments
and denied [Prinkey’s] [M]otion to [D]ismiss. Thereafter, the trial
court sentenced [Prinkey] to serve a term of incarceration of
twenty-five to fifty years for the conviction of attempted indecent
assault, and a consecutive term of incarceration of eighteen to
thirty-six months for the conviction of corruption of minors.
-3-
J-A18035-19
[Prinkey] filed a timely post-sentence [M]otion, which the trial
court denied on May 8, 2014….
Commonwealth v. Prinkey, 125 A.3d 463 (Pa. Super. 2015) (unpublished
memorandum at 5).
On appeal, this Court affirmed Prinkey’s judgment of sentence. See id.(unpublished memorandum at 16). This Court concluded, inter alia, that the
imposition of a mandatory minimum sentence on remand, following a
successful appeal, did not violate Prinkey’s constitutional protection against
double jeopardy. Id. (unpublished memorandum at 11). This Court further
determined that, even though the Commonwealth had not filed notice of its
intent to seek a mandatory sentence prior to Prinkey’s original sentencing
hearing, it was not barred from seeking the mandatory minimum sentence at
resentencing on remand. Id. (unpublished memorandum at 12-13). This
Court explained that a defendant has “no legitimate expectation of finality in
his sentence[,] after he has filed an appeal therefrom.” Id. (unpublished
memorandum at 13) (quoting Commonwealth v. Wilson, 934 A.2d 1191,
1195 (Pa. 2007)).
On May 16, 2016, Prinkey timely filed the PCRA Petition underlying the
instant appeal. After a hearing, the PCRA court denied Prinkey relief. PCRA
Court Order, 8/28/18. Prinkey subsequently filed the instant timely appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Prinkey presents the following claims for our review:
-4-
J-A18035-19
I. Whether or not the application of a mandatory sentence[,]
after a successful appeal that disrupts the overall sentencing
scheme[,] should be per se vindictive and[,] therefore[,]
impermissible under both the Federal and Pennsylvania
Constitutions?
II. Whether or not the failure of prior PCRA counsel to advise
[Prinkey] that he may face a mandatory sentence of twenty-
five (25) years if resentenced was ineffective assistance of
counsel?
III. Whether or not it is a violation of the Double Jeopardy
provision[] of the Pennsylvania Constitution for the
Commonwealth to impose a mandatory sentence[,] when a
matter is remanded for resentencing after a partially
successful appeal?
IV. Whether or not [Prinkey’s] registration requirements under
Megan’s Law must revert to the requirements of Megan’s
Law II, which was in effect when he was originally sentenced
and convicted[,] under Commonwealth v. Muniz[, 164
A.3d 1189 (Pa. 2017),] and Commonwealth v. Butler[,
173 A.3d 1212 (Pa. Super. 2017) [(“Butler I”)], appeal
granted, 190 A.3d 581 (Pa. 2018)]?
Brief for Appellant at 5.2
To obtain relief under the PCRA, a petitioner must plead and prove, by
a preponderance of the evidence, that the conviction resulted from “[a]
violation of the Constitution of this Commonwealth or the Constitution or laws
of the United States which, in the circumstances of the particular case, so
____________________________________________
2 We note that in the Argument section of his brief, Prinkey addresses his
claims in an order different from that set forth in the Statement of Questions
Presented. We will address the issues in the order set forth in his Statement
of Questions Presented.
-5-
J-A18035-19
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i).
Prinkey first claims that the application of a mandatory minimum
sentence, after a successful appeal that overturns the most severe count,
should be considered per se vindictive. Brief for Appellant at 18. Prinkey
acknowledges that there is “no absolute bar that prevents a defendant from
receiving a more severe sentence upon resentencing after a successful
appeal.” Id. at 19. However, Prinkey posits that the Due Process Clause of
the Fourteenth Amendment protects defendants “from receiving heavier
sentences on appeal[,] for the explicit purpose of punishing the defendant for
his successful appeal.” Id. (citing North Carolina v. Pearce, 395 U.S. 711(1969)). Prinkey contends that “if the first conviction has been set aside for
non-constitutional error, the imposition of a penalty upon the defendant for
having successfully pursued a statutory right of appeal or collateral remedy
would be no less a violation of due process of law.” Brief for Appellant at 20.
Prinkey argues that “the imposition of a mandatory sentence, after a
successful or partially successful appeal, should be per se unconstitutional, as
it places an unconstitutional obstruction in the exercise of a [d]efendant’s due
process rights.” Id.Prinkey also asserts that the Commonwealth failed to cite any evidence,
arising during the 7-year period between the imposition of the original
sentence and Prinkey’s resentencing, which would overcome the presumption
-6-
J-A18035-19
that an increased sentence was vindictive. Id. at 24. According to Prinkey,
“the Commonwealth’s only evidence at the resentencing hearing for imposing
the mandatory sentence was the Commonwealth’s belief that the ten (10)
year minimum sentence [for his vacated IDSI conviction] was sufficient; but
that the new seven (7) year sentence [for his conviction of indecent assault]
was not.” Id. Prinkey claims that this argument does not meet the
constitutional minimums required by the United States Supreme Court in
Pearce and Wasman v. United States, 468 U.S. 559 (1984). Brief for
Appellant at 24.
In essence, Prinkey claims that his challenge to the sentence, as being
vindictive, should be considered as a challenge to the legality of his sentence.
However, an en banc panel of this Court has held that a claim challenging a
sentence as vindictive implicates the discretionary aspects of sentencing.
Commonwealth v. Robinson, 931 A.2d 15, 20 (Pa. Super. 2007) (en banc).
A three-judge panel of this Court is not empowered to overrule another panel
of the Superior Court, let alone an en banc panel. Commonwealth v. Beck,
78 A.3d 656, 659 (Pa. Super. 2013). Only an en banc panel of the Superior
Court, or our Supreme Court, could overrule Robinson.
Consequently, Prinkey’s claim implicates the discretionary aspects of
sentencing. See Robinson, supra. Requests for relief with respect to the
discretionary aspects of sentence are not cognizable in PCRA proceedings.
Commonwealth v. Fowler, A.2d 586, 593 (Pa. Super. 2007) (stating that
-7-
J-A18035-19
“[c]hallenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.”); see also Commonwealth v. Jordan, 2001 PA Super
111, 772 A.2d 1011, 1016 (Pa. Super. 2001) (observing that “[t]his Court’s
case law has stated that a challenge to the discretionary aspects of sentencing
is a matter that must be reviewed in the context of a direct appeal and cannot
be reviewed in the context of a PCRA.”); 42 Pa.C.S.A. § 9543(a)(2). Because
Prinkey’s claim is not cognizable under the PCRA, we cannot grant him relief
on his challenge to the sentence as vindictive.3
In his second claim, Prinkey argues that his PCRA counsel rendered
ineffective assistance by failing to warn him of a possible mandatory minimum
sentence, should he successfully challenge the sufficiency of the evidence
underlying his conviction of attempted IDSI. Brief for Appellant at 13, 16.
Prinkey contends that his counsel had no reasonable basis for failing to advise
him of the potential imposition of a mandatory minimum sentence from 10
years to at least 25 years is “a significant factor that any person should be
able to weigh before taking any action during a criminal proceeding.” Id. at
17. Finally, Prinkey asserts that he suffered prejudice as a result of counsel’s
dereliction, as the consequences of counsel’s failure resulted in the application
of a mandatory minimum sentence. Id. at 17-18.
____________________________________________
3We are constrained to reach this conclusion, based upon the clear holding in
Robinson. However, we are troubled that this case appears to be a blatant
example of prosecutorial vindictiveness.
-8-
J-A18035-19
To be entitled to relief on an ineffectiveness claim, a petitioner must
prove that the underlying claim is of arguable merit; counsel’s performance
lacked a reasonable basis; and counsel’s ineffectiveness caused him prejudice.
Commonwealth v. Solano, 129 A.3d 1156, 1162 (Pa. 2015).
Prejudice in the context of ineffective assistance of counsel means
demonstrating there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would have been
different. This standard is the same in the PCRA context as when
ineffectiveness claims are raised on direct review. Failure to
establish any prong of the test will defeat an ineffectiveness claim.
Id. at 1162-63 (citations omitted).
At the evidentiary hearing, Prinkey’s prior PCRA counsel conceded that
he did not advise Prinkey of the potential for the imposition of a mandatory
minimum sentence. N.T. (PCRA Hearing), 4/21/17, at 21-22. Counsel
explained that at the time Prinkey filed his 2011 PCRA Petition, the statute
then in effect, 42 Pa.C.S.A. § 9718.2, provided that the Commonwealth must
give notice of its intent to seek the mandatory sentence before trial. See 42
Pa.C.S.A. § 9718.2(d) (2011) (stating that the notice of the application of this
section shall be provided to the defendant before trial). In 2012, Section
9718.2 was amended to provide that the Commonwealth give notice of its
intent to seek the mandatory sentence before sentencing. 42 Pa.C.S.A.
§ 97182(d) (2012). “[C]ounsel cannot be deemed ineffective for failing to
predict changes in the law.” Commonwealth v. Cousar, 154 A.3d 287, 303
(Pa. 2017) (citations omitted). Further, because counsel had a reasonable
-9-
J-A18035-19
basis for his actions, we cannot grant Prinkey relief on his ineffectiveness
claim. See Solano, 129 A.3d at 1163.
In his third claim, Prinkey claims that the imposition of a mandatory
minimum sentence, imposed on remand following a partially successful direct
appeal, violated his constitutional protection against double jeopardy. Brief
for Appellant at 26. Based on our resolution of Prinkey’s first claim, we need
not address this issue. However, we observe that on direct appeal, Prinkey
unsuccessfully challenged the imposition of the mandatory minimum sentence
as violating his constitutional protection against double jeopardy. Prinkey,
125 A.3d 463 (Pa. Super. 2015) (unpublished memorandum at 11). Because
this claim was previously litigated, it is not cognizable under the PCRA. See
42 Pa.C.S.A. § 9543(a)(3) (providing that a petitioner is not eligible for post-
conviction relief if he previously has litigated the allegation of error).
In his fourth claim, Prinkey argues that his SVP designation, under the
Sexual Offender Registration and Notification Act (“SORNA”),4 is illegal
pursuant to our Supreme Court’s decision in Muniz, and this Court’s
subsequent holding in Butler I. See Brief for Appellant at 31. Prinkey
acknowledges that he was “sentenced and classified under Megan’s Law II,
also known as Act 152 of 2004.” Id. Under Megan’s Law II, Prinkey was
required to register as a Tier I offender for 10 years; “however, because he
____________________________________________
4 See 42 Pa.C.S.A. §§ 9799.10-9799.42.
- 10 -
J-A18035-19
was determined to be a[n SVP,] he was subject to a lifetime registration
period.” Id. Prinkey recognizes that the adoption of SORNA in 2012 modified
the registration requirements to make him subject to an increased reporting
period, even without the SVP designation. Id.
Relying on Butler I, Prinkey argues that the SVP determination should
be found “beyond a reasonable doubt” by the factfinder. Id. at 32. On this
basis, Prinkey argues that his designation as an SVP is unconstitutional under
Muniz and Butler I, and must be removed. Id. Prinkey asserts that, once
this designation is removed, he is subject to a 10-year registration period. Id.
at 33. Relatedly, Prinkey relies upon this Court’s unpublished decision in
Commonwealth v. Robinson, 195 A.3d 1003 (Pa. Super. 2018)
(unpublished memorandum), for the proposition that Butler I should be
applied retroactively to his PCRA Petition. Brief for Appellant at 33-34.
Prinkey’s argument is premised on his claim that Butler I should be
applied retroactively on collateral appeal, to remove his designation as an SVP.
In Butler I, this Court deemed unconstitutional the SVP assessment provision
of SORNA, 42 Pa.C.S.A. § 9799.24, because “it increases the criminal penalty
to which a defendant is exposed without the chosen fact-finder making the
- 11 -
J-A18035-19
necessary factual findings beyond a reasonable doubt.”5 Butler, 173 A.3d at
1218. On March 26, 2020, however, the Pennsylvania Supreme Court
reversed this Court’s decision in Butler I. See Commonwealth v. Butler,
2020 Pa. LEXIS 1692 (“Butler II”).
In Butler II, our Supreme Court held that the registration, notification,
and counseling (“RNC”) requirements “applicable to SVPs do not constitute
criminal punishment.” Id. at *44. Therefore, SORNA’s procedural mechanism
for designating sex offenders as SVPs does not violate the principles set forth
in Apprendi v. New Jersey, 530 U.S. 466 (2013), or Alleyn v. United
States, 570 U.S. 99 (2013). Butler II, 2020 Pa. LEXIS 1692 at **30-
31 (relying on Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007), which
recognized that Apprendi claims cannot succeed where sanctions do not
constitute punishment). The Supreme Court explained that,
____________________________________________
5
In response to Muniz, the General Assembly passed SORNA II, which
became effective on June 12, 2018. Act of Feb. 21, 2018, P.L. 27, No. 10 (Act
10); Act of June 12, 2018, P.L. 140, No. 29 (Act 29). SORNA II is
divided into two distinct subchapters — Subchapter H, which
applies to “individuals who committed a sexually violent offense
on or after December 20, 2012, for which the individual was
convicted[,]” 42 Pa.C.S.[A.] § 9799.11(c), and Subchapter I,
which applies to individuals who committed a sexually violent
offense “on or after April 22, 1996, but before December 20,
2012,” and whose period of registration has not yet expired or
whose registration requirements under a former sexual offender
registration law have not expired. 42 Pa.C.S.[A.] § 9799.52.
Commonwealth v. Moore, 222 A.3d 16, 20 (Pa. Super. 2019).
- 12 -
J-A18035-19
[a]lthough we recognize the RNC requirements impose affirmative
disabilities or restraints upon SVPs, and those requirements have
been historically regarded as punishment, our conclusions in this
regard are not dispositive on the larger question of whether the
statutory requirements constitute criminal punishment. This is
especially so where the government in this case is concerned with
protecting the public, through counseling and public notification
rather than deterrent threats, not from those who have been
convicted of certain enumerated crimes, but instead from those
who have been found to be dangerously mentally ill. Under the
circumstances, and also because we do not find the RNC
requirements to be excessive in light of the heightened public
safety concerns attendant to SVPs, we conclude the RNC
requirements do not constitute criminal punishment.
Id., 2020 Pa. LEXIS 1692, *30 (citation omitted).
Because Butler II provides no basis upon which to vacate Prinkey’s SVP
designation, we cannot grant him relief on this claim. Accordingly, we affirm
the Order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2020
- 13 -