J-S54027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AMILCAR ZAPATA                             :
                                               :
                       Appellant               :   No. 717 MDA 2018

                 Appeal from the PCRA Order March 28, 2018
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0003546-2013


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                            FILED OCTOBER 24, 2019

       Amilcar Zapata appeals from the order, entered in the Court of Common

Pleas of Berks County, dismissing his petition filed pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel has filed

an Anders1 brief and a petition to withdraw. Pursuant to Commonwealth
____________________________________________


1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). The proper mechanism for withdrawal
on appeal from the denial of a PCRA petition is a Turner/Finley no-merit
letter.   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
However, because an Anders brief provides greater protection to a criminal
appellant, we may accept an Anders brief in lieu of a Turner/Finley no-merit
letter. See Commonwealth v. Widgens, 29 A.3d 816, 817 n.2 (Pa. Super.
2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004). Counsel explained that she opted to file an Anders brief because this
appeal “presents issues arising from both the denial of [Zapata’s] PCRA and
his sentence.” Anders Brief, at 13. Counsel’s Anders brief satisfies the
requirements of Turner/Finley. Counsel has detailed the nature and extent
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v. Torres, 630 A.2d 1250 (Pa. Super. 1993) (en banc), this Court has

conducted an independent review of the record. We conclude that this case

is controlled by our recent decisions in Commonwealth v. Wood, 208 A.3d

131 (Pa. Super. 2019) (en banc), and Commonwealth v. Lippincott, 208

A.3d 143 (Pa. Super. 2019) (en banc).               Accordingly, we deny counsel’s

application to withdraw, vacate the order denying the PCRA petition, and

remand with instructions.

        In 2013, Zapata was charged with rape and related offenses arising out

of incidents involving a ten-to-eleven year-old female that occurred between

July 1, 2005 and June 30, 2007.                On June 7, 2016, Zapata entered a

negotiated guilty plea to aggravated indecent assault,2 endangering the

welfare of children3 and corruption of minors.4 The court sentenced Zapata to

three to ten years’ imprisonment followed by twelve years’ probation. The
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of review; has listed the issues Zapata wishes to have reviewed; and explains
why the those issues lack merit. Commonwealth v. Pitts, 981 A.2d 875, 876
n.1 (Pa. 2009). This Court will independently review the record to determine
whether the petition indeed lacks merit. Id. Counsel has also filed a motion
to withdraw and a no-merit letter, which was sent to Zapata. In that letter,
counsel advised Zapata his right to retain new counsel, proceed pro se, or
raise any additional points he deemed worthy of the Court’s attention. See
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007). See
also Commonwealth v. Wrecks, 934 A.2d 1287 (Pa. Super. 2007).

2   18 Pa.C.S.A. §§ 3125(a)(1), (7).

3   18 Pa.C.S.A. § 4304(a)(1).

4   18 Pa.C.S.A. § 6301(a)(1).




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court ordered Zapata, who was found to be a sexually violent predator (SVP),

to comply with Pennsylvania’s Sex Offender Registration and Notification Act

(SORNA), 42 Pa.C.S.A. § 9799.10 et seq.,5 and register with the Pennsylvania

State Police for the remainder of his lifetime.

        On March 23, 2017, Zapata filed a pro se PCRA petition. The procedural

history that followed, though not relevant to the legality of sentencing issue

before us, concluded with this Court issuing an order remanding to allow

Zapata’s counsel to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal and the PCRA court to file a supplemental Rule

1925(a) opinion. On December 19, 2018, Zapata, through counsel, filed a

Rule 1925(b) statement claiming the PCRA court erred in denying Zapata’s

petition and denying him relief from SORNA’s registration requirements. The

PCRA court filed its opinion on January 18, 2019. On appeal, Zapata raises

the following claims:

          1. Whether the [PCRA] court erred by denying [Zapata] relief
             pursuant to the PCRA?

          2. Whether the [PCRA] court erred by denying relief from
             SORNA in light of the decision in Commonwealth v.
             Muniz, [164 A.3d 1189 (Pa. 2017)] and the subsequent
             enactment of Act 10 of 2018?

Anders Brief, at 5.

        Zapata first claims the PCRA court erred in denying relief.      In his

petition, Zapata claimed trial counsel was ineffective in “forcing” him to enter

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5   Effective December 20, 2012.

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a guilty plea and in failing to file a suppression motion.     These claims are

meritless.

      A defendant is entitled to “effective assistance of counsel at all stages

of a criminal proceeding, including during the plea process.” Commonwealth

v. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003) (citation omitted). A claim of

ineffective assistance of counsel in connection with the decision to plead guilty

is cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).

Commonwealth v. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013) (citation

omitted). “If the ineffective assistance of counsel caused the defendant to

enter an involuntary or unknowing plea, the PCRA will afford the defendant

relief.” Lynch, 820 A.2d at 732 (citation omitted). “[T]he voluntariness of

[the] plea depends on whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases.” Id. at 733.

      To establish a claim of ineffective assistance of counsel, a defendant

“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, 880

(Pa. Super. 2007) (citation omitted). The burden is on the defendant to prove

all three of the following prongs: “(1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her 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

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different.” Id. See also Commonwealth v. Daniels, 963 A.2d 409, 419

(Pa. 2009) (“A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.”). Further, “[c]ounsel is presumed

to have been effective and the burden of rebutting that presumption rests with

the petitioner.” Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa. 2009).

      Zapata’s claim that counsel forced his plea is belied by the record. At

the plea colloquy, Zapata acknowledged that he understood he had the right

to trial by jury and the right to file various pretrial motions, including a motion

to suppress evidence, and that he understood that if he plead guilty he would

give up those pretrial and trial rights. See N.T. Guilty Plea Colloquy, 6/7/16,

at 2-3. Zapata also acknowledged that his responses on the written colloquy

form were truthful. Id. at 3. Additionally, the following relevant exchanges

occurred at the colloquy:

      ASSISTANT DISTRICT ATTORNEY: Are you satisfied with the
      services of your attorney?

      DEFENDANT: Yes.

                                      ***

      THE COURT: Is anyone forcing you to plead guilty today?

      DEFENDANT: No.

                                      ***

      COUNSEL:      Your Honor, I’d ask that you follow the plea
      agreement. This has been negotiated. Mr. Zapata, since I’ve
      been assigned to the case, has never indicated that he wanted to
      force this to trial or make the victim testify. It’s just been a
      question of negotiating a reasonable plea offer. Considering his


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      age, we feel that this is appropriate. Also, he’s never had sex
      offender counseling before, and we believe that he will benefit
      from that greatly because of what has happened throughout the
      duration of his lifetime.

      The COURT: All right. Mr. Zapata, is there anything you’d like to
      say?

      DEFENDANT: Yes. I take full responsibility for my crime and I
      apologize for my actions.

Id. at 4, 7, 9.

      “Our law presumes that a defendant who enters a guilty plea was aware

of what he was doing. He bears the burden of proving otherwise.”

Commonwealth v. Pollard, 832 A.2d 517, 522–23 (Pa. Super. 2003). The

record clearly demonstrates that Zapata was not coerced into a plea, that he

understood the nature of the charges and that he was satisfied with counsel’s

representation. “A person who elects to plead guilty is bound by the

statements he makes in open court while under oath and may not later assert

grounds for withdrawing the plea which contradict the statements he made at

his plea colloquy.”   Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.

Super. 2011).

      Next, Zapata challenges his sentence in light of Muniz. Recent case law

has called into question the legality of retroactive application of sex offender

registration under SORNA to offenses committed before the effective date of

SORNA. Given the timeliness of Zapata’s PCRA petition, we elect to review

the legality of Zapata’s sentence       on this basis sua sponte.          See

Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018) (reiterating general



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rule that legality of sentence can be reviewed in context of timely PCRA

petition); 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).

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

sub nom., Pennsylvania v. Muniz, ––– U.S. ––––, 138 S.Ct. 925, 200

L.Ed.2d 213 (2018), our Supreme Court declared SORNA unconstitutional,

concluding that SORNA violated ex post facto prohibitions under both the

United States and Pennsylvania Constitutions. Id. at 1223. The Muniz court

determined SORNA’s purpose was punitive in effect, despite the General

Assembly’s stated civil remedial purpose. Id. at 1218. Thus, application of

the statute would inflict greater punishment than the law in effect at the time

the defendant committed his crimes. Id. at 1196, 1218. Accordingly, the

Supreme Court vacated the portion of the judgment of sentence that required

the appellant to comply with SORNA.

      The General Assembly explicitly stated that SORNA became effective on

December 20, 2012. See Commonwealth v. Martinez, 147 A.3d 517, 522

(Pa. 2016) (reiterating that “SORNA provided for the expiration of Megan’s

Law as of December 20, 2012, and for the effectiveness of SORNA on the

same date.”). The effective date of SORNA, December 20, 2012, controls for

purposes of an ex post facto analysis. See Commonwealth v. Horning, 193

A.3d 411, 417 (Pa. Super. 2018) (critical inquiry for determining whether

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application of SORNA to convicted sex offender violates ex post facto

prohibitions is date of offense).

       As we explained in Lippincott and Wood, to apply SORNA to offenders

whose crimes were committed before SORNA’s effective date would increase

punishment for sexual offenses from the punishment that existed at the time

of the offense.      Therefore, application of SORNA to sexual offenders for

offenses committed before its effective date violates the ex post facto clauses

of the United States Constitution and the Pennsylvania Constitution.

       Here, Zapata’s crimes were committed between 2005 and 2007, several

years before SORNA’s effective date.             Given the foregoing case law,

retroactive application of SORNA’s registration and reporting requirements to

Zapata violated the ex post facto clauses of the United States and

Pennsylvania Constitutions.        Muniz, supra.    We conclude, therefore, that

Zapata is not required to register as a sex offender under SORNA.

Accordingly, we vacate the order denying PCRA relief, vacate that portion of

the judgment of sentence regarding Zapata’s SORNA reporting requirements

and SVP status,6 and we remand the case to the trial court to determine the

appropriate registration and reporting requirements.
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6   In Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
granted, 190 A.3d 581 (Pa. 2018), this Court concluded that, in light of our
Supreme Court’s decision in Muniz, the subsection relating to SVP designation
under 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.”



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       Order vacated and case remanded with instructions. Motion to withdraw

denied. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2019




____________________________________________


Butler, 173 A.3d at 1218. Thus, Butler found that SVP hearings and
designations made under SORNA were unconstitutional. Id.           Following
Muniz and Butler, the Pennsylvania General Assembly enacted legislation to
amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”). Act 10
amended several provisions of SORNA, and added several new sections found
at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In addition, the Governor of
Pennsylvania signed new legislation striking the Act 10 amendments and
reenacting several SORNA provisions, effective June 12, 2018. See Act of
June 12, 2018, P.L. 1952, No. 29 (“Act 29”). Through Act 10, as amended in
Act 29, the General Assembly created Subchapter I, which 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. Subchapter I
contains less stringent reporting requirements than Subchapter H, which
applies to offenders who committed an offense on or after December 20, 2012.
See 42 Pa.C.S.A. §§ 9799.13, 9799.54. Our Supreme Court has granted
review to determine whether Acts 10 and 29 are constitutional. See
Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

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