Com. v. Haapala, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MATTHEW WILLIAM HAAPALA
Appellant No. 258 WDA 2020
Appeal from the PCRA Order Entered February 10, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0001086-2016
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 25, 2021
Appellant, Matthew William Haapala, appeals from an order denying his
petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46. Appellant was sentenced to an aggregate term of five years’
probation and ordered to register as a sex offender following his guilty plea to
indecent assault, simple assault, criminal mischief and defiant trespass.1
Appellant argues, inter alia, that trial counsel was ineffective by failing to
ensure that Appellant’s plea was knowing, voluntary, and intelligent. We
vacate the PCRA order to the extent it denies Appellant’s challenges to the
constitutionality of Sexual Offenders Registration and Notification Act
(“SORNA”), 42 Pa.C.S.A. §§ 9799.10—9799.42, and we remand for further
proceedings on these challenges. We affirm in all other regards.
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1 18 Pa.C.S.A. §§ 3126, 2701, 3304, and 3503, respectively.
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The facts underlying Appellant’s guilty plea are as follows:
[T]he Commonwealth would have called Lynn Geramita . . . and
Dawn Lee Morrison[,] who would have testified that on or about
December 29th of 2015, [Appellant] entered the Dollar Tree Store
on McKnight Road in Allegheny County and tried to access the fire
alarm system in the back. Miss Geramita, who is an employee of
the store, approached him and thinking he was there to work on
the alarm system asked for his work ID. He said “shh” multiple
times and finally forced her to the ground with both hands by her
shoulders, jumped on top of her, grabbed her face and stuck his
tongue in her mouth. She was able to push him back and scream
for help. Bystanders pulled him off her.
She ran to the [offices], along with Dawn Morrison, in order to be
safe. When they had seen him leave, Miss Morrison went back
into the store only to see [Appellant] run back in and come
towards her. He put her in a chokehold and stuck his fingers in
her mouth. She was able to get away and was exiting the store
as police arrived. The fire alarm had been ripped off the wall and
[Appellant] was sitting at the training computer at the back of the
store when the police took him into custody.
N.T., 6/29/16, at 5-6 (prosecutor’s summary).
The Commonwealth charged Appellant with two counts of indecent
assault by forcible compulsion, two counts of simple assault, one count of
criminal mischief—tampering with property and one count of defiant trespass.
On June 29, 2016, Appellant appeared with counsel before the court to enter
a negotiated guilty plea. Appellant completed an eleven—page Guilty Plea
Explanation of Defendant’s Rights form and entered a negotiated plea of
guilty. The prosecutor stated that the parties agreed to a sentence of a
probationary period to be set by the court and no contact with the victims.
The court conducted an oral colloquy on the record, accepted the negotiated
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guilty plea, and sentenced Appellant to an aggregate of five years’ probation.
The court ordered Appellant to register for life as a sex offender based on his
convictions for indecent assault.
Appellant did not file a direct appeal. On June 27, 2017, Appellant timely
filed a pro se PCRA petition, and he later filed an amended PCRA petition
through counsel. On January 4, 2020, the court entered a notice of intent to
dismiss the petition without a hearing. On February 10, 2020, the court
entered an order dismissing the petition. Appellant filed a timely notice of
appeal. The PCRA court did not file a Pa.R.A.P. 1925 opinion or direct
Appellant to file a Pa.R.A.P. 1925(b) statement. Instead, the PCRA court
adequately explained its reasons for denying relief in its notice of intent to
dismiss the petition.
Appellant raises the following issues in this appeal:
I. Are [Appellant]'s claims for relief are properly cognizable under
the [PCRA]?
II. Did the lower court abuse its discretion in denying the PCRA
petition, as amended, without a hearing insofar as [Appellant]
established the merits of the claim that the guilty pleas to all of
the charges were not knowing, intelligent and voluntary; and trial
counsel was ineffective for allowing [Appellant] to enter
unknowing, unintelligent, and involuntary guilty pleas to the
charges; for failing to object to the invalid guilty pleas; and for
failing to move to withdraw the invalid guilty pleas?
III. Should [Appellant] not be subject to the registration
requirements and restrictions under Act 10 of 2018, insofar as the
act is punitive, unlawful and unconstitutional because it requires
a defendant to register for 25 years for a first degree
misdemeanor that carries a maximum penalty of five years’
imprisonment, it is based solely on the possibility of future
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dangerousness, and it is manifestly in excess of what is needed to
ensure compliance with the law?
Appellant’s Brief at 5.
In the first section of his brief, Appellant raises three arguments for the
proposition that trial counsel was ineffective for permitting him to enter a
guilty plea. Our standard of review for such arguments is well-settled:
We review an order granting or denying a petition for collateral
relief to determine whether the PCRA court’s decision is supported
by the evidence of record and free of legal error. We will not
disturb the findings of the PCRA court unless there is no support
for those findings in the record.
...
In reviewing ineffective assistance of counsel claims, we presume
counsel is effective. To overcome this presumption, a PCRA
petitioner must show the underlying claim has arguable merit,
counsel’s actions lacked any reasonable basis, and counsel’s
actions prejudiced the petitioner. Prejudice means that, absent
counsel’s conduct, there is a reasonable probability the outcome
of the proceedings would have been different. A claim will be
denied if the petitioner fails to meet any one of these prongs.
A criminal defendant’s right to effective counsel extends to the
plea process, as well as during trial.
Under the PCRA, allegations of ineffectiveness in connection with
the entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the petitioner to enter an involuntary or
unknowing plea. Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
To establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial. This
is not a stringent requirement. The reasonable probability test
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refers to a probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Brown, 235 A.3d 387, 391 (Pa. Super. 2020) (citations
omitted and minor stylistic revisions). In addition,
the standard for post-sentence withdrawal of guilty pleas dovetails
with the arguable merit/prejudice requirements for relief based on
a claim of ineffective assistance of plea counsel, . . . under which
the defendant must show that counsel’s deficient stewardship
resulted in a manifest injustice, for example, by facilitating entry
of an unknowing, involuntary, or unintelligent plea. This standard
is equivalent to the “manifest injustice” standard applicable to all
post-sentence motions to withdraw a guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016).
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. Id. The Pennsylvania Rules of Criminal Procedure mandate that
pleas be taken in open court and require the court to conduct an on-the-record
colloquy to ascertain whether the defendant is aware of his rights and the
consequences of his plea. Id. The court must affirmatively demonstrate the
defendant understands: (1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) his right to trial by jury; (4) the
presumption of innocence; (5) the permissible ranges of sentences and fines
possible; and (6) that the court is not bound by the terms of the agreement
unless the court accepts the agreement. Id. This Court will evaluate the
adequacy of the plea colloquy and the voluntariness of the resulting plea by
examining the totality of the circumstances surrounding the entry of that plea.
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In this context, it is important to remember that “a defendant is bound
by the statements which he makes during his plea colloquy.”
Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 2018). Therefore,
a defendant “may not assert grounds for withdrawing the plea that contradict
statements made when he pled guilty,” and he may not recant the
representations he made in court when he entered his guilty plea. Id.We turn to Appellant’s specific arguments. First, Appellant asserts that
his guilty plea was not knowing, voluntary or intelligent, because counsel
failed to explain the elements of the charges to him. According to Appellant,
counsel failed to
ensure that he understood that in order to be adjudged guilty of
the crime of indecent assault under 18 Pa.C.S.[A.] § 3126(a), he
was required to have the specific intent of arousing sexual desire
in the himself or the complainant; and to be adjudged guilty of
the crime of simple assault under 18 Pa.C.S.[A.] § 2701(a)(1), he
was required to have the specific intent to cause bodily injury; and
to be adjudged guilty of criminal mischief under 18 Pa.C.S.[A.] §
3304(a)(2), he was required to have acted intentionally or
recklessly so as to endanger persons or property; and to be
adjudged guilty of defiant trespass under 18 Pa.C.S.[A.] §
3503(b)(1)(i), he was required to know he was not licensed or
privileged to be in a place after receiving notice of trespass.
Appellant’s Brief at 14-15.
This Court has comprehensively explained that “where the totality of the
circumstances establishes that a defendant was aware of the nature of the
charges, the plea court’s failure to delineate the elements of the crimes at the
oral colloquy, standing alone, will not invalidate an otherwise knowing and
voluntary guilty plea.” Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.
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Super. 2005) (collecting cases). “Whether notice [of the nature of the
charges] has been adequately imparted may be determined from the totality
of the circumstances attendant upon the plea [.]” Id. To determine whether
the defendant has received proper notice, we should take into account any
written form in the record that the defendant reads, completes, and signs as
well as the oral colloquy during the guilty plea hearing. Id. at 108.
The record establishes that Appellant received a detailed, written guilty
plea form, reviewed the form with counsel, answered 68 questions on the
form, initialed each page and wrote his signature at the conclusion of the
questionnaire. Guilty Plea Form, 6/29/16. He initialed the first page, which
instructed that “you must fully understand that your plea must be voluntary”
and “by pleading guilty to any charge, you are admitting that you committed
that offense.” Id. Question 6 inquired, “Have you discussed with your
attorney the elements of each charged offense?” Appellant wrote, “Yes.” Id.Question 7 inquired, “Have you discussed with your attorney the factual basis
of each charged offense?” Appellant answered, “Yes.” Id. Question 8
inquired, “Have you discussed with your attorney how the facts in your case
prove the elements of each charged offense?” Appellant answered, “Yes.” Id.Furthermore, during his guilty plea hearing, the following colloquy took
place while Appellant was under oath:
THE COURT: Have you had enough time to speak with your
attorney [Mr. Dilucente] about the elements of each crime to
which you are pleading guilty, the maximum penalty allowed by
law, and your right to have a trial in this case?
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[APPELLANT]: Yes.
THE COURT: Are you satisfied with his representation?
[APPELLANT]: Yes.
THE COURT: I have in front of me a guilty plea colloquy that bears
your signature as well as the signature of your attorney. Did you
read and understand these questions, sir?
[APPELLANT]: Yes.
THE COURT: Did you answer these questions honestly?
[APPELLANT]: Yes.
THE COURT: Was your attorney available in the event you had a
question about this document or any matter related to this case?
[APPELLANT]: Yes.
THE COURT: Mr. Dilucente, based on your experience and your
contact with Mr. Haapala, do you believe he understands the
elements of the crime, the maximum penalties allowed by law,
and that he is otherwise making a knowing, intelligent, and
voluntary decision to plead guilty?
MR. DILUCENTE: Yes, I do.
Guilty Plea/Sentencing Transcript, 6/29/16, at 3-4.
In addition, on the date of the guilty plea hearing, Appellant signed an
acknowledgement in the criminal information that he was “plead[ing] guilty to
the [proffered] charges in the within information.” Information at 1. The
second and third pages of the information listed the elements of each offense.
Viewed together, Appellant’s representations on the guilty plea form and
information and his testimony at the guilty plea hearing demonstrate that he
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understood the elements of all charges to which he was pleading guilty.
Morrison, 878 A.2d at 107. His present claim that he did not understand
various elements in the charges, and that counsel failed to ensure that he
understood these elements, constitutes a disavowal of his testimony during
the oral guilty plea colloquy and his representations on the guilty plea form
and information. The law prohibits this tactic. Jabbie, 200 A.3d at 506.
Appellant’s claim that he did not receive proper notice of the elements of the
charges is devoid of merit.
Next, Appellant argues that counsel was ineffective for failing to stop
him from pleading guilty because no factual basis existed for the charges. We
disagree.
While there is a “strong preference for a dialogue in colloquies with
meaningful participation by the defendant throughout, there is no set manner,
and no fixed terms, by which factual basis [for a guilty plea] must be
adduced.” Commonwealth v. Flanagan, 854 A.2d 489, 500 (2004). Here,
the factual basis for Appellant’s plea was adduced by the prosecutor’s
summary of the facts during the guilty plea colloquy in open court. Appellant
and his attorney heard the summary and did not object to its substance. The
facts articulated by the prosecutor established Appellant’s guilt on all charges.
Appellant pleaded guilty to two counts of indecent assault. Indecent
assault occurs when a defendant “has indecent contact with the complainant
[or] causes the complainant to have indecent contact with the person for the
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purpose of arousing sexual desire in the person or the complainant and . . .
the person does so by forcible compulsion.” 18 Pa.C.S.A. § 3126. Appellant
contends that there is no factual basis that he had contact with the victims in
the store for the purpose of arousing sexual desire in himself or the two
victims. The prosecutor, however, described that Appellant (1) pushed one
victim to the floor and forced his tongue into her mouth and (2) placed his
second victim in a chokehold and inserted his fingers into her mouth. By
pleading guilty, Appellant “acknowledged the[se] facts and the necessary
intent, regardless of the Commonwealth’s ability to prove them and how it
might do so.” Commonwealth v. Watson, 835 A.2d 786, 798 (Pa. Super.
2003). These facts, admitted as true, clearly indicate that Appellant used his
tongue and fingers for the purpose of arousing sexual desire in himself. See
Commonwealth v. Capo, 727 A.2d 1126, 1128 (Pa. Super. 1999) (evidence
sufficient to support conviction for indecent assault; as minor victim was
walking away, defendant forcibly grabbed victim by upper arm, repeating that
he was not finished with her sketch, and as victim struggled to free herself
from his grip, defendant attempted to kiss victim on the mouth, reaching only
her face and neck, and after defendant freed one of victim’s arms, defendant
rubbed victim’s shoulders, back, and stomach until she was able to pull away).
Appellant also pleaded guilty to two counts of simple assault, which
occurs when, inter alia, the defendant “attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S.A. §
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2701(a)(1). Appellant’s attacks fulfilled both of these subsections. His acts
of pushing the first victim to the ground and attempting to stick his tongue in
her mouth were attempts to cause bodily injury, as were his acts of placing
the second victim in a chokehold and sticking his fingers in her mouth.
Appellant pleaded guilty to one count of criminal mischief, which occurs
when the defendant “intentionally or recklessly tampers with tangible property
of another so as to endanger person or property.” 18 Pa.C.S.A. § 3304(a)(2).
The prosecutor’s summary demonstrates that Appellant tampered with the
store’s fire alarm, going so far as to rip the fire alarm from the wall.
Finally, Appellant pleaded guilty to one count of defiant trespass, which
takes place when the defendant, “knowing that he is not licensed or privileged
to do so . . . enters or remains in any place as to which notice against trespass
is given by . . . actual communication to the actor.” 18 Pa.C.S.A. §
3503(b)(1)(i). The prosecutor’s summary establishes that Appellant remained
in the back of the store at the fire alarm after the first victim asked him for
work identification (which he did not have). He said “shh” multiple times and
attacked the first victim. These facts indicate that Appellant knew he was not
privileged to be in that area of the store yet remained there when the first
victim put him on notice of his trespass by asking him for work identification.
In short, the record establishes a factual basis for each charge to which
Appellant pleaded guilty.
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Next, Appellant argues that defense counsel was ineffective for failing
to investigate whether Appellant was legally insane at the time of the incident,
discuss the possibility of this defense with Appellant, or present expert
testimony that Appellant was insane. We disagree. The record demonstrates
that defense counsel sent Appellant to a mental health professional, Shannon
Edwards, for evaluation prior to the guilty plea hearing. N.T., 6/29/16, at 10.
Moreover, Appellant’s written guilty plea form asked the following questions:
Do you understand that by pleading guilty, you also give up the
right to present or assert any defenses on your behalf?
These defenses might include alibi, self-defense, mental infirmity,
or insanity. Have you discussed with your attorney why these
defenses are not available in your case?
Guilty Plea Form, Question 26. Appellant responded to both questions by
writing “yes” in the space provided, and initialed the page after answering.
Id. During the guilty plea hearing, the court asked whether Appellant read
and understood the questions on Guilty Plea Form and whether he answered
these questions honestly. Appellant answered “yes” to both questions. N.T.,
6/29/16, at 4. Thus, the Guilty Plea Form and the colloquy during Appellant’s
hearing belies his claim that counsel never discussed the possibility of a
mental infirmity or insanity defense. Appellant cannot disavow his
representations that he elected to forego an insanity defense after discussing
this issue with his attorney. Jabbie, 200 A.3d at 506 (defendant is bound by
statements he makes at guilty plea hearing; he may not later assert grounds
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for withdrawing plea that contradict statements made when he pled guilty or
recant representations he made in court).
In the second section of his brief, Appellant raises challenges to the
constitutionality of the order requiring him to register as a sex offender under
revised Subchapter H of the Sexual Offenders Registration and Notification Act
(“SORNA”), 42 Pa.C.S.A. §§ 9799.10—9799.42,2 as a Tier I offender.
Appellant argues that (1) SORNA, as a penal law, violates the separation of
powers doctrine because it usurps the judiciary’s function to impose sentence,
(2) SORNA is unconstitutional on its face because it creates an irrebuttable
presumption that all sexual offenders are dangerous and pose a high risk of
recidivation, and (3) SORNA is unconstitutional because it constitutes cruel
and unusual punishment.
At the outset, we observe that it is permissible for Appellant to challenge
SORNA in a PCRA petition, although the PCRA is not the exclusive method for
challenging sexual offender registration statutes. Commonwealth v.
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2 SORNA was enacted in 2011 and became effective on December 20, 2012.
Through Acts 10 and 29 of 2018, the General Assembly split Subchapter H of
SORNA into a Revised Subchapter H and Subchapter I. Subchapter I
addresses sexual offenders who committed an offense on or after April 22,
1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75.
Revised Subchapter H, which applies to offenders such as Appellant who
committed an offense on or after December 20, 2012, contains stricter
requirements than Subchapter I. See 42 Pa.C.S.A. §§ 9799.10-9799.42. All
references to “SORNA” in this opinion are to Revised Subchapter H. For an
exhaustive summary of SORNA’s legislative history, see Commonwealth v.
Mickley, 240 A.3d 957, 958 n.3 (Pa. Super. 2020).
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Lacombe, 234 A.3d 602, 617-18 (Pa. 2020) (rejecting Commonwealth’s
argument that PCRA is the sole procedural mechanism available for
challenging SORNA; noting that courts have entertained challenges to SORNA
on direct appeal, in PCRA petitions, or in other types of petitions).
Mickley teaches that the proper remedy is to remand for an evidentiary
hearing on Appellant’s challenges to SORNA. In Mickley, this Court observed
that the defendant’s constitutional challenges to revised subchapter H of
SORNA were identical to arguments raised by the Commonwealth in
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). The Torsilieri court
did not reach the merits of any of the constitutional claims at issue,
determining instead that the factual record was not sufficiently developed in
the trial court. Torsilieri concluded that a remand was appropriate “to allow
the parties to address whether a consensus has developed to call into question
the relevant legislative policy decisions impacting offenders’ constitutional
rights.” Id. at 587. Based on Torsilieri, Mickley held:
Here, despite defense counsel’s attempt, no evidence was
presented at the hearing on Mickley’s post-sentence motion.
Thus, in accordance with Torsilieri, we vacate the order denying
Mickley’s post-sentence motion and remand for a hearing at which
the parties can present evidence for and against the relevant
legislation determinations discussed above.
Id., 240 A.3d at 963; see also Commonwealth v. Asher, —A.3d—, 2020
WL 7487519, *4 (Pa. Super., Dec. 21, 2020) (citing Torsilieri and Mickley)
(where defendant preserved his constitutional challenges to SORNA at
sentencing and in post-sentence motions, but trial court denied relief without
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developing any factual record, remand was proper for hearing at which parties
could present evidence for and against relevant legislative determinations).
The same remedy is appropriate here. The SORNA issues raised by
Appellant in his PCRA petition are the same as those raised in Torsilieri,
Mickley and Asher. The PCRA court denied Appellant’s petition without
holding a hearing. The proper solution under these circumstances is to
remand for a hearing in which the parties can present evidence relating to
Appellant’s SORNA arguments.3
For the foregoing reasons, we affirm the portion of the PCRA order
denying Appellant’s claims of ineffective assistance of counsel. We vacate
and remand for further proceedings on Appellant’s challenges to SORNA’s
constitutionality.
Order affirmed in part and vacated in part. Case remanded for further
proceedings in accordance with this memorandum. Jurisdiction relinquished.
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3 We note that in Commonwealth v. Muhammad, 241 A.3d 1149 (Pa.
Super. 2020), this Court held that SORNA created an unconstitutional
irrebuttable presumption as applied to the appellant in that appeal. Id. at
1157-60. Herein, Appellant has not raised an “as applied” challenge to
SORNA’s presumption, i.e., an argument that SORNA’s presumption is
unconstitutional under the unique circumstances of his case. Instead, he
makes the same broad facial challenge to SORNA as the defendants in
Torsilieri and Mickley, that is, an argument that SORNA’s presumption is
unconstitutional on its face as to all defendants. Accordingly, our decision in
Muhammad does not govern this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2021
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