J-S51041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DOUGLAS DEAN WELSH,                       :
                                           :
                     Appellant             :   No. 1850 MDA 2018

           Appeal from the PCRA Order Entered February 21, 2017
             in the Court of Common Pleas of Columbia County
            Criminal Division at No(s): CP-19-CR-0000829-2007

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                FILED: NOVEMBER 21, 2019

      Douglas Dean Welsh (“Welsh”), pro se, appeals from the Order denying

his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See

42 Pa.C.S.A. §§ 9541-9546.        We affirm in part, vacate the underlying

judgment of sentence to the extent that it designates Welsh as a sexually

violent predator (“SVP”) under Pennsylvania’s Sex Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41, and remand

with instructions.

      In September 2010, a jury convicted Welsh of aggravated indecent

assault, corruption of minors, indecent assault and criminal conspiracy, arising

out of his myriad sexual offenses committed against a minor female and her

younger brother, over several years. Prior to sentencing, the Commonwealth

provided Welsh Notice of its intent to seek imposition of a mandatory minimum
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sentence of life in prison, pursuant to 42 Pa.C.S.A. § 9718.2(a)(2).1 Moreover,

due to the nature of the charges, the trial court ordered Welsh to undergo an

assessment by the Sexual Offenders Assessment Board to determine whether

he should be classified as an SVP under the version of Megan’s Law then in

effect, Megan’s Law III, 42 Pa.C.S.A. § 9795.1 et seq. (expired).       At the

conclusion of the February 22, 2011 sentencing/SVP hearing, the trial court

imposed an aggregate sentence of life in prison.2      Additionally, the court

determined that Welsh met the definition of an SVP, and informed him that

he was required to register and report as a Tier III sexual offender for his

lifetime.

       On direct appeal, this Court affirmed Welsh’s judgment of sentence,

after which our Supreme Court denied allowance of appeal.                 See

Commonwealth v. Welsh, 60 A.3d 562 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 76 A.3d 540 (Pa. 2013).



____________________________________________


1 Because Welsh was a “third strike” sexual offender due to his prior criminal
record, a mandatory minimum sentencing statute applied: 42 Pa.C.S.A.
§ 9718.2(a)(2) (providing that “[w]here the person had[,] at the time of the
commission of the current offense[,] previously been convicted of two or more
offenses arising from separate criminal transactions set forth in section
9799.14 [(governing sexual offenses and tier system),] or equivalent crimes
under the laws of this Commonwealth in effect at the time of the commission
of the offense …, the person shall be sentenced to a term of life
imprisonment….”).

2 The court imposed two separate terms of life in prison, one as to each of the
victims.


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       On August 15, 2014, Welsh filed the instant, timely, pro se PCRA

Petition, his first. In response, the PCRA court appointed Welsh counsel, who

filed a Supplement to the PCRA Petition. Following a procedural history not

relevant to this appeal, the PCRA court conducted a hearing on December 9,

2016. By an Opinion and Order entered on February 21, 2017, the PCRA court

denied Welsh’s PCRA Petition.

       Welsh timely filed a pro se Notice of Appeal, nunc pro tunc.3 The PCRA

court ordered Welsh to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and Welsh timely complied.

       On appeal, Welsh raises the following questions for our review:

       I.    Whether the PCRA court erred and abused it[]s discretion in
             illegally sentencing [Welsh] to two life sentences pursuant to
             42 Pa.C.S.A. § 9718, and/or failing to correct [Welsh’s] two
             illegal life sentences pursuant to [section] 9718, when raised
             in a timely PCRA Petition?

       II.   Whether the PCRA court erred and abused it[]s discretion in
             dismissing [Welsh’s] PCRA Petition[,] where all prior
             counsel(s) rendered ineffective assistance of counsel[,] in
             violation of the Sixth Amendment of the United States
             Constitution?

       III. Whether the retroactive application of [SORNA] to [Welsh] is
            illegal and violates both the state and federal Constitutions[’]
            ex post facto clauses and/or[,] in the alternative[,] whether
____________________________________________


3 In response to a per curiam Order that this Court issued to the PCRA court,
the court explained that Welsh had requested to represent himself. The court
further stated that it had conducted a hearing pursuant to Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1998), and determined that Welsh was waiving
his right to counsel knowingly, intelligently, and voluntarily.            Cf.
Commonwealth v. Padden, 783 A.2d 299, 308 (Pa. Super. 2001) (stating
that, absent a waiver pursuant to Grazier, a first-time pro se PCRA petitioner
is entitled to the benefit of the assistance of counsel on appeal).
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             the SORNA statute’s requirement that [Welsh] register under
             a formal sexual offender registration law of this
             Commonwealth (Megan’s Law III) violates [Welsh’s] right to
             due process and constitutes an illegal sentence?

Brief for Appellant at 3 (issues renumbered, some capitalization omitted).

       In reviewing an order denying a PCRA petition, this Court’s standard of

review is limited to “whether the [PCRA] court’s legal conclusions are correct

and whether its factual findings are clearly erroneous.” Commonwealth v.

Edwards, 177 A.3d 963, 971 (Pa. Super. 2018).

       In his first issue, Welsh argues that the trial court’s imposition of a

mandatory minimum sentence of life in prison, pursuant to 42 Pa.C.S.A.

§ 9718.2(a)(2),4 was unconstitutional pursuant to Alleyne v. United States,

570 U.S. 99 (2013), and the Pennsylvania Supreme Court’s subsequent

decision in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). See Brief

for Appellant at 14-18. We disagree.

       This Court has explained the holding in Alleyne as follows:

       According to the Alleyne Court, a fact that increases the
       sentencing floor is an element of the crime. Thus, it ruled that
       facts that mandatorily increase the range of penalties for a
       defendant must be submitted to a fact-finder and proven beyond
       a reasonable doubt. The Alleyne decision, therefore, renders
       those Pennsylvania mandatory minimum sentencing statutes that
       do not pertain to prior convictions constitutionally infirm
       insofar as they permit a judge to automatically increase a
       defendant’s sentence based on a preponderance of the evidence
       standard.


____________________________________________


4 Welsh does not dispute that he was previously convicted of qualifying
offenses under subsection 9718.2(a)(2), including involuntary deviate sexual
intercourse and indecent assault.
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Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc)

(emphasis added; footnotes omitted); see also Alleyne, 570 U.S. at 111 n.1

(upholding the Supreme Court’s prior holding in Almendarez-Torres v. U.S.,

523 U.S. 224 (1998), that the fact of a prior conviction does not need to be

submitted to the jury and found beyond a reasonable doubt); see

also Commonwealth v. Golson, 189 A.3d 994, 1001-02 (Pa. Super. 2018)

(upholding imposition of a 25-year mandatory minimum sentence pursuant

to 42 Pa.C.S.A. § 9718.2, based upon a prior conviction).

       In the instant case, the sentencing court applied mandatory minimum

sentences     under    subsection     9718.2(a)(2),   based   upon   Welsh’s   prior

convictions of qualifying offenses under that statute.         Therefore, Welsh’s

sentence is not illegal and does not run afoul of Alleyne.5          See Watley,

supra. Moreover, the Pennsylvania Supreme Court has held that Alleyne is

not applicable retroactively to cases on PCRA review.         Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016). Accordingly, Welsh’s first issue

entitles him to no relief.

       In his second issue, Welsh avers that all prior counsel rendered

ineffective assistance, in numerous respects, as follows:

          Trial counsel was ineffective for failing to amend the Petition
           for Allowance of Appeal Welsh filed in the Pennsylvania
           Supreme Court in 2012, to include a challenge to the legality
____________________________________________


5 Further, Welsh’s reliance on Wolfe, supra, is misplaced because that case
did not involve the imposition of a mandatory minimum based on a prior
conviction, but rather, the age of the victim.

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         of Welsh’s life sentence pursuant to Alleyne and its progeny.
         See Brief for Appellant at 24-30; see also id. at 30 (wherein
         Welsh raises a “layered” ineffectiveness claim against PCRA
         counsel for failing to assert trial counsel’s ineffectiveness in this
         regard before the PCRA court).

        Trial counsel was ineffective for failing to request dismissal of
         all of the charges against Welsh. See id. at 31-37 (hereinafter
         referred to as the “warrant ineffectiveness claim”).
         Specifically, the allegations contained in the search warrant
         concerning Welsh’s residence were stale, as being asserted
         over three years after the last alleged criminal conduct in 2007,
         and thus, the warrant was not supported by probable cause.
         See id. at 32. Moreover, the Commonwealth purportedly did
         not allege a continuing course of criminal conduct, and this
         case did not involve the possession of child pornography. See
         id. at 33.

        Trial counsel was ineffective for failing to move for severance
         of Welsh’s jury trial from that of his codefendant, where Welsh
         was ready to proceed to trial, but his codefendant’s case was
         “stalled” due to a pre-trial appeal, which resulted in a violation
         of Welsh’s right to a speedy trial. See id. at 38-41 (hereinafter
         referred to as the “severance ineffectiveness claim”).

        PCRA counsel was ineffective for failing to conduct an
         investigation into purported new evidence that the prosecuting
         attorney had engaged in misconduct by coaching and
         permitting the female victim to lie in her testimony, and by
         failing to request a court-appointed private investigator to
         locate and interview this victim’s foster father, who also
         sexually abused the victim. See id. at 41-47 (hereinafter
         referred to as the “prosecutorial misconduct ineffectiveness
         claim”).

        Trial counsel was ineffective for failing to object to the
         admission of prior bad act evidence that Welsh had
         inappropriately touched the female victim during a trip to
         Florida, where the victim’s trial testimony belied this evidence.
         See id. at 47-51 (hereinafter referred to as the “prior bad act
         ineffectiveness claim”).

        Trial counsel was ineffective for failing to request a jury
         instruction pursuant to 18 Pa.C.S.A. § 301 (requirement of
         voluntary act), and argue to the jury that Welsh’s act at the

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         time that he touched the female victim’s genitals was not a
         voluntary act, where the victim’s testimony purportedly
         established that this touching had occurred while Welsh was
         sleeping. See id. at 51-56 (hereinafter referred to as the
         “involuntary act ineffectiveness claim”).

      To be entitled to relief for ineffective assistance of counsel, a PCRA

petitioner must establish that (1) the underlying claim is of arguable merit;

(2) there was no reasonable basis for counsel’s action or failure to act; and

(3) but for counsel’s error, there is a “reasonable probability the result of the

proceeding would have been different.”      Commonwealth v. Treiber, 121

A.3d 435, 444 (Pa. 2015); see also id. at 445 (stating that “counsel cannot

be deemed ineffective for failing to raise a meritless claim.” (citation

omitted)). Failure to satisfy any of the three prongs is fatal to a claim of

ineffective assistance of counsel. Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa. 2014). Counsel is presumed to provide effective assistance, and it

is solely the petitioner’s burden to prove ineffectiveness. See id.

      Initially, concerning Welsh’s claim that trial counsel was ineffective for

failing to amend Welsh’s Petition for Allowance of Appeal to include an Alleyne

sentencing challenge, the underlying claim lacks merit for the reasons we

discussed above, in connection with Welsh’s first issue. Thus, trial counsel

cannot be deemed ineffective for failing to raise this claim.     See Treiber,

supra.

      Next, concerning the warrant ineffectiveness claim, in its Opinion and

Order, the PCRA court addressed this claim, and set forth the applicable law,

as follows:

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            “Settled Pennsylvania law establishes that stale information
     cannot provide probable cause in support of a warrant.”
     Commonwealth v. Janda, 14 A.3d 147, 158 (Pa. Super. 2011)
     (citation omitted). In particular:

         [A]ge of the information supporting a warrant application
         is a factor in determining probable cause. If too old, the
         information is stale, [] and probable [cause] may no
         longer exist. Age alone, however, does not determine
         staleness. The determination of probable cause is not
         merely an exercise in counting the days or even months
         between the facts relied on and the issuance of the
         warrant. Rather, we must also examine the nature of the
         crime and the type of evidence.

     Id. at 158-[]59 [(citation omitted)]. Corroborative information
     need not be current for it to be properly considered by the
     magistrate[,] so long as it relates to prior conduct sufficiently
     similar to the acts in question.           Commonwealth v.
     Weidenmoyer, 539 A.2d 1291, 1295 (Pa. Super. 1988).
     Additionally, “a showing that criminal activity is likely to have
     continued up to the time of the issuance of a warrant renders
     otherwise stale information viable.” Commonwealth v. Jones,
     668 A.2d 114, 118 (Pa. 1995).

            In the case at bar, the victims reported the alleged abuse to
     authorities on June 11, 2007. Both victims alleged the abuse
     occurred over a course of years, and the August 29, 2007 search
     warrant application and affidavit of probable cause reflect this
     allegation. One of the victims alleged [that] the abuse would
     occur when she stayed over at [Welsh’s] house, which was at least
     once a week. The description of the alleged abuse[,] within the
     search warrant application and affidavit of probable cause[,]
     sufficiently establishes an alleged course of criminal conduct by
     [Welsh]. The fact that some of the alleged abuse occurred years
     before the search warrant was issued is of no moment due to the
     establishment of an alleged course of criminal conduct. After
     receiving the allegations of abuse from the victims, the authorities
     moved expeditiously to secure a search warrant. The [c]ourt finds
     [that] the information underlying the issuance of the search
     warrant was not stale, and thus[,] the issue is not of arguable
     merit. Therefore, [Welsh’s] trial counsel was not ineffective for
     failing to f[u]rther develop the staleness issue during [Welsh’s]
     case.


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PCRA Court Opinion and Order, 2/21/17, at 3-4; see also id. at 1 (finding

that “trial counsel raised the search warrant staleness issue several times

during Welsh’s case.”).         As the PCRA court’s cogent rationale is amply

supported by the law and record, we affirm on this basis in rejecting Welsh’s

instant ineffectiveness claim. See id. at 3-4.

       Concerning Welsh’s remaining claims of ineffectiveness of counsel (i.e.,

the severance ineffectiveness claim, prosecutorial misconduct ineffectiveness

claim, prior bad act ineffectiveness claim, and involuntary act ineffectiveness

claim), Welsh waived these claims for his failure to raise them in his pro se

PCRA Petition, or in PCRA counsel’s Supplement to the Petition.             See

Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) (stating that

“[a]ny claim not raised in the PCRA petition is waived and not cognizable on

appeal.” (citing Pa.R.A.P. 302(a) (providing that “issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”)).6

Nevertheless, even if these claims were not waived, our review discloses that

they would not entitle Welsh to relief, as they lack arguable merit. See Spotz,

supra.




____________________________________________


6 Furthermore, the fact that Welsh raised these claims in his Rule 1925(b)
Concise Statement does not preserve them on appeal. See Commonwealth
v. Melendez-Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc)
(holding that “[a] party cannot rectify the failure to preserve an issue by
proffering it in response to a Rule 1925(b) order.”) (citation omitted).


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       In his third and final issue, Welsh contends that his SVP designation is

unlawful and in violation of our State and Federal Constitutions’ ex post facto

clauses. See Brief for Appellant at 19-23.7 We agree, in accordance with this

Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017), which in turn applied Alleyne and our Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

       The Muniz Court held that the registration requirements under SORNA

constitute criminal punishment, as opposed to a civil penalty; therefore, their

retroactive application violates the ex post facto clauses of the United States

and Pennsylvania Constitutions. Muniz, 164 A.3d at 1193. Subsequently,

this Court in Butler held that “section 9799.24(e)(3) of SORNA [(regarding

SVP designation)8] 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.” Butler, 173 A.3d at 1218 (footnote added).



____________________________________________


7  Though Welsh raised this challenge to the legality of his sentence for the
first time in his Rule 1925(b) Concise Statement, we may nevertheless review
it. See Commonwealth v. Adams-Smith, 209 A.3d 1011, 1022 (Pa. Super.
2019) (reiterating the general rule that the legality of sentence can be raised
by this Court sua sponte, in the context of a timely PCRA petition).

8 Specifically, 42 Pa.C.S.A. § 9799.24(e)(3) provides that “[a]t the hearing
prior to sentencing, the court shall determine whether the Commonwealth has
proved by clear and convincing evidence that the individual is a [SVP].”
(emphasis added).


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       Here, the trial court conducted an SVP hearing and found Welsh to be

an SVP under the now-unconstitutional SVP mechanism.          Accordingly, we

conclude that the trial court’s Order deeming Welsh to be an SVP is

unconstitutional, which renders the sentence illegal.    See Muniz, supra;

Butler, supra.9 We thus affirm in part, vacate the judgment of sentence (to

the extent that it requires registration and reporting requirements under

SORNA), vacate Welsh’s SVP designation, and remand this matter for the sole

purpose of having the trial court issue Welsh appropriate notice of his

registration obligations. See Butler, 173 A.3d at 1218; Adams-Smith, 209

A.3d at 1024.




____________________________________________


9  We acknowledge the Commonwealth’s argument that, prior to Welsh’s
instant convictions (for which he will be incarcerated for his lifetime), Welsh
was already reporting as a sexual offender for his lifetime under Megan’s Law
III. Panel decisions of this Court appear to be split on this issue. Compare
Commonwealth v. Haughwout, 198 A.3d 403, 405 (Pa. Super. 2018)
(holding that there was no Muniz violation where the defendant was already
subject to lifetime registration under Megan’s Law I), appeal denied, 207 A.3d
905 (Pa. 2019), with Commonwealth v. Horning, 193 A.3d 411, 416-17
(Pa. Super. 2018) (holding that SVP registration under SORNA violated Muniz
even though the defendant would have been required to register for his
lifetime under Megan’s Law II.          Specifically, though the defendant’s
registration period remained the same, SORNA “augment[ed] the registration
requirements …, which included quarterly in-person reporting and the posting
of [] personal information on the Pennsylvania State Police website.”), appeal
denied, 204 A.3d 370 (Pa. 2019), and Adams-Smith, 209 A.3d at 1022-23
(holding that although the defendant’s sexual assault convictions carried
lifetime registration under both Megan’s Law III and SORNA, the imposition of
SORNA violated the ex post facto clause because of increased reporting
requirements).
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      Order affirmed in part; SORNA requirements and SVP status vacated;

judgment of sentence affirmed in all other respects; case remanded with

instructions; jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2019




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