Opinion
J-S83033-17 No. 1036 EDA 2017
03-06-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. CALVIN GADSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 21, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001989-2010 BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Calvin Gadson, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his first petition filed under the Post Conviction Relief Act ("PCRA"). We affirm the order denying PCRA relief on the grounds asserted but vacate and remand regarding Appellant's designation as a sexually violent predator ("SVP").
42 Pa.C.S.A. §§ 9541-9546.
The PCRA court opinion accurately set forth the relevant facts and procedural history of this case. Thus, we have no reason to restate them.
We add that our Supreme Court denied Appellant's petition for allowance of appeal on July 7, 2016. See Commonwealth v. Gadson , 141 A.3d 588 (Pa.Super. 2016), appeal denied, 636 Pa. 646, 141 A.3d 478 (2016).
Appellant raises the following issues for our review:
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S PCRA PETITION WHERE APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO COMPEL THE COURT AND COURT REPORTER TO COMPLY WITH THE RULES OF APPELLATE PROCEDURE IN PROVIDING THE TRANSCRIPTS OF THE CASE, AND BY FAILING TO MOVE FOR SUPPRESSION OF ALL TRANSCRIPTS IN THIS CASE WHERE THESE TRANSCRIPTS WERE DEFECTIVELY PRODUCED AND FRAUDULENTLY CERTIFIED RESULTING IN TRANSCRIPTS TO WHICH NO VERITY CAN BE CLAIMED WHICH PRECLUDED ANY TYPE OF MEANINGFUL REVIEW OR BASIS FOR APPEAL VIOLATING APPELLANT'S RIGHTS TO EQUAL PROTECTION, AND DUE PROCESS [PURSUANT] TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSITUTION?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S PCRA PETITION WHERE [APPELLATE] COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CHALLENGE THE SUFFICIENCY OF THE EVIDENCE...TO SUSTAIN THE CONVICTIONS?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S PCRA PETITION, WHERE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY STIPULATING TO FACTS PRIOR TO TRIAL WITHOUT APPELLANT'S CONSENT, AND IN DOING SO, DEPRIVED HIM OF HIS RIGHT TO CONFRONTATION PURSUANT TO THE SIXTH AMENDMENT AND ILLEGALLY AND UNCONSITUTIONALLY WAIVED APPELLANT'S GUARANTEED FUNDAMENTAL RIGHT TO CONFRONTATION?
WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S PCRA PETITION WHERE COUNSEL [RENDERED] INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO RAISE AND LITIGATE ANY ISSUE RELATED TO THE DENIAL OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION BY THE POLICE AND/OR [THE] COMMONWEALTH'S FAILURE TO PRESERVE EXCULPATORY
EVIDENCE FAVORABLE TO THE DEFENSE?(Appellant's Brief at 4-5).
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford , 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Hardcastle , 549 Pa. 450, 701 A.2d 541 (1997).
The law presumes counsel has rendered effective assistance. Commonwealth v. Gonzalez , 858 A.2d 1219, 1222 (Pa.Super. 2004), appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Turetsky , 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable strategic basis for his action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. at 880. "The petitioner bears the burden of proving all three prongs of the test." Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Giovanni O. Campbell, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed May 9, 2017, at 4-10) (finding: (1) appellate counsel ordered notes of testimony and each volume was lodged with court electronically using court reporting system; court reporter certified accuracy and completeness of each volume of testimony; Appellant points to no inaccuracy in transcripts and fails to identify any prejudice he suffered from alleged technical defects in filing of transcripts; counsel is not ineffective for failing to raise meritless claim; (2) Appellant alleges that due to defective transcripts, Superior Court erred by deciding on direct appeal that Commonwealth presented sufficient evidence to sustain Appellant's convictions; because underlying premise regarding defect of transcripts lacks merit, related sufficiency claim fails; (3) defense theory at trial was that Victim consented to sex acts; court charged jury on consent defense; at no time during trial did Appellant ever contest fact that his DNA matched semen sample recovered from Victim; under these circumstances, it was reasonable and appropriate for defense counsel to stipulate to evidence regarding DNA collection and sample; trial counsel did not need Appellant's express approval to enter stipulations; moreover, collective testimony from Victim, various officers, and forensic scientist was duplicative of information contained in stipulations; Appellant cannot demonstrate prejudice based on counsel's stipulations; (4) Appellant complains counsel was ineffective for failing to challenge absence of Victim's rape examination medical records; incident occurred on January 31, 1998; DNA match to Appellant did not occur until 2010; fact that medical records no longer existed was not discovered until May of 2012; there is no evidence Commonwealth ever possessed Victim's medical records or willfully caused records to be unavailable; there is no evidence or allegation that Victim's medical evaluation contained materially exculpatory evidence; mere fact that those records no longer exist does not warrant relief under these circumstances). Thus, we affirm as to Appellant's issues on the basis of the PCRA court's opinion.
Relevant to this issue, the parties entered into three stipulations of fact regarding: (1) the rape kit procedure performed on Victim; (2) the analysis of the swabs collected from Victim's rape kit; and (3) DNA testing of the swabs from Victim's rape kit, the results of which were entered into a national database and matched Appellant's DNA.
We depart only from the PCRA court's suggestion that Appellant waived this issue for failing to object to the stipulations when they were entered on the record at trial. Appellant could not have objected to trial counsel's performance during trial. See generally Commonwealth v. Mason , 634 Pa. 359, 473-74, 130 A.3d 601, 671 (2015) (stating: "What our jurisprudence has consistently prohibited at both trial and appellate levels when strategic disagreements arise between defendant and counsel is the option of hybrid representation, where an otherwise represented defendant acts as de facto co-counsel exercising control over parts of the defense"; purpose behind rule prohibiting hybrid representation is to promote judicial efficiency in representation and to avoid conflicting strategies in defense).
Nevertheless, we are mindful of recent case law calling into question the validity of Appellant's SVP status. Consequently, we elect to review the legality of Appellant's sentence sua sponte. See Commonwealth v . Randal , 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges to illegal sentence cannot be waived and may be raised by this Court sua sponte, assuming jurisdiction is proper; illegal sentence must be vacated); Commonwealth v. Butler , 173 A.3d 1212 (Pa.Super. 2017) (addressing legality of appellant's SVP status sua sponte).
Recently, the Pennsylvania Supreme Court held that the registration requirements under the Sexual Offender Registration and Notification Act ("SORNA") constitute criminal punishment. Commonwealth v. Muniz , ___ Pa. ___, 164 A.3d 1189 (2017). In light of Muniz , this Court held: "[U]nder Apprendi and Alleyne , a factual finding, such as whether a defendant has a mental abnormality or personality disorder that makes him...likely to engage in predatory sexually violent offenses, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder." Butler , supra at 1217 (internal quotations and citations omitted). This Court further held: "Section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt." Id. at 1218. The Butler Court concluded that trial courts can no longer designate convicted defendants as SVPs or hold SVP hearings, "until [the] General Assembly enacts a constitutional designation mechanism." Id. (vacating appellant's SVP status and remanding to trial court for sole purpose of issuing appropriate notice under 42 Pa.C.S.A. § 9799.23, governing reporting requirements for sex offenders, as to appellant's registration obligation).
Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: "At the hearing prior to sentencing, the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator"). --------
Here, following an assessment by the Sexual Offender Assessment Board, the court imposed SVP status on Appellant on August 15, 2014. Appellant's SVP status carried a lifetime registration requirement. See 42 Pa.C.S.A. § 9799.15(a)(6). This Court affirmed Appellant's judgment of sentence on February 8, 2016, and our Supreme Court denied allowance of appeal on July 7, 2016. Before Appellant's judgment of sentence became final, the United States Supreme Court had decided Alleyne on June 17, 2013. Relying on Alleyne , this Court decided Butler on October 31, 2017, which deemed unconstitutional the current mechanism for imposition of SVP status used in the present case and stated trial courts cannot impose SVP status in that manner. See Butler , supra. In light of Muniz and Butler , Appellant's SVP status constitutes an illegal sentence. Because Appellant's judgment of sentence was still pending at the time of Alleyne , Appellant is entitled to correction of his illegal sentence. See Commonwealth v. DiMatteo , 2018 WL 459340 (Pa. Jan. 18, 2018) (holding appellant was entitled to sentencing relief under Alleyne on collateral review of his first timely PCRA petition where appellant's judgment of sentence was not yet final when Supreme Court decided Alleyne ). Accordingly, we affirm the order denying PCRA relief as to Appellant's claims presented, based on the PCRA court opinion; but we vacate Appellant's SVP status and remand to the trial court to issue a revised notice to Appellant pursuant to 42 Pa.C.S.A. § 9799.23. See Butler , supra.
Order affirmed; SVP status vacated; case remanded with instructions. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/6/18
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