J-S10003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    ELISEO ORTIZ                                  :
                                                  :
                       Appellant                  :   No. 327 EDA 2018

           Appeal from the Judgment of Sentence December 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006597-2015


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                    FILED APRIL 23, 2019

        Appellant, Eliseo Ortiz, appeals from the aggregate judgment of

sentence of two to four years of confinement followed by ten years of

probation, which was imposed after he pleaded nolo contendere to involuntary

deviate sexual intercourse (IDSI) with a person less than 16 years of age and

unlawful contact with a minor.1                With this appeal, Appellant’s counsel

(Counsel) has filed a petition to withdraw and an Anders2 brief, stating that

the appeal is wholly frivolous.        After careful review, we affirm Appellant’s

convictions. Otherwise, because we conclude that an issue of arguable merit

as to the legality of Appellant’s sentence is present in this appeal, we deny

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1   18 Pa.C.S. §§ 3123(a)(7) and 6318(a)(1), respectively.
2   Anders v. California, 386 U.S. 738 (1967).




*    Retired Senior Judge assigned to the Superior Court.
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Counsel’s petition to withdraw and order Counsel to file an advocate’s brief or

a new Anders brief within thirty days of the date of this memorandum. The

Commonwealth may file a brief within thirty days after service of the brief

from Appellant’s counsel.3

       On May 14, 2015, Appellant was charged with rape, IDSI, unlawful

contact with a minor and various other charges related to allegations

concerning the sexual abuse of a minor female.          On September 22, 2017,

Appellant entered into a negotiated plea agreement and pleaded nolo

contendere with respect to the IDSI and unlawful contact with a minor

charges.     Plea Agreement, 9/22/17.            Pursuant to the agreement, the

Commonwealth agreed to nolle pros the remaining charges and to recommend

a sentence of two to four years of confinement followed by ten years of state-

supervised sex offender probation. Id.

       At the September 22, 2017 hearing, Appellant stipulated to “the affidavit

of probable cause, investigation paperwork and any other police paperwork

along with any other records in the discovery packet as the basis for the

plea….” N.T., 9/22/17, at 12. According to the affidavit of probable cause

accompanying Appellant’s arrest warrant, the complaining witness, a

fourteen-year-old girl, stated that



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3 If the Commonwealth does not intend to file a brief in response, we request
that the Commonwealth send a letter to this Court’s Prothonotary informing
this Court of that decision as soon as possible.


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       when she was in second grade (approx. 2005) she was sleeping
       with her sister and woke to [Appellant] touching her vagina. The
       [complaining witness] further stated that [Appellant] carried [the
       complaining witness] to his room and while there put his mouth
       on and in the [complaining witness’s] vagina. The [complaining
       witness] stated that during another incident… [she] again awoke
       to [Appellant] sticking his finger in the [complaining witness’s]
       vagina, moving [his] finger in and out of her vagina. The
       [complaining witness] stated that [Appellant] exposed his penis
       to [her] and that [the] incidents stopped when the [complaining
       witness] was in the second grade (approx. 2007).[4]

Affidavit of Probable Cause, 5/14/15.

       On December 22, 2017, the trial court sentenced Appellant to the terms

of confinement and probation as set forth in the plea agreement. Sentencing

Order, 12/22/17. At the sentencing hearing, Appellant was advised that he

would be permitted to file a post-sentence motion to withdraw his guilty plea

within ten days of the sentence. N.T., 12/22/17, at 9. Appellant did not file

a post-sentence motion within ten days of the date of sentencing. On January

18, 2018, Appellant filed this timely direct appeal from the judgment of

sentence.5

       On July 18, 2018, Counsel sent a letter to Appellant, informing him that

he was contemporaneously filing a petition to withdraw along with an Anders

brief. In the letter, Counsel stated that Appellant may retain new counsel or
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4There appears to be a typographical error in the affidavit of probable cause
with respect to either the complaining witness’s grade level or the year for
when the abuse began or ended.
5Appellant filed his statement of errors complained of on appeal on April 27,
2018. The trial court entered its opinion on May 1, 2018.



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proceed pro se on the appeal and that he may raise any points he deems

worthy of the court’s attention in addition to those in the Anders brief.

Counsel also enclosed a copy of the petition to withdraw and Anders brief

with the July 18, 2018 letter. On July 19, 2018, Counsel filed the petition to

withdraw and the Anders brief.6 In his Anders brief, Counsel presents the

issue of whether Appellant should be permitted to withdraw his nolo

contendere plea. Anders Brief at 6-7. Appellant has not filed a pro se brief

in response to the petition to withdraw.         On February 15, 2019, the

Commonwealth filed its appellate brief.

       Before this Court can consider the merits of this appeal, we must first

determine whether Counsel has satisfied all of the requirements that court-

appointed counsel must meet before leave to withdraw may be granted.

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 2018) (en

banc); Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2018). To

withdraw from representing a convicted defendant on direct appeal on the

basis that the appeal is frivolous, counsel must (1) petition the court for leave

to withdraw stating that he has made a conscientious examination of the
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6These filings were both initially rejected by this Court, because Appellant had
not filed his brief within the timeframe established in the briefing schedule or
requested an extension. On July 19, 2018, Appellant filed an application
requesting that this Court reinstate his appeal and allow Appellant to file the
brief attached to the application. On July 24, 2018, this Court entered an
order reinstating the appeal and directing the Prothonotary to accept the brief
attached to the application as Appellant’s brief and docket it as filed late on
July 19, 2018. Counsel ultimately re-filed his petition to withdraw on February
20, 2019.


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record and has determined that the appeal would be frivolous; (2) provide a

copy of the Anders brief to the defendant; and (3) advise the defendant of

his right to retain new counsel or proceed pro se and to raise any additional

points that he deems worthy of the court’s attention. Yorgey, 188 A.3d at

1195-96; Commonwealth v. Zeigler, 112 A.3d 656, 659 (Pa. Super. 2015).

An Anders brief must comply with the all of the following requirements:

      [T]he Anders brief…must (1) provide a summary of the
      procedural history and facts, with citations to the record; (2) refer
      to anything in the record that counsel believes arguably supports
      the appeal; (3) set forth counsel’s conclusion that the appeal is
      frivolous; and (4) state counsel’s reasons for concluding that the
      appeal is frivolous. Counsel should articulate the relevant facts of
      record, controlling case law, and/or statutes on point that have
      led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also

Yorgey, 188 A.3d at 1196.

      If counsel has satisfied the above requirements, it is then this Court’s

duty to conduct its own review of proceedings before the trial court and render

an independent judgment as to whether the appeal is wholly frivolous.

Yorgey, 188 A.3d at 1196; Zeigler, 112 A.3d at 660.             This Court first

considers the issues raised by counsel in the Anders brief and then conducts

an examination of the record to discern if there are any other issues of

arguable merit overlooked by counsel. Commonwealth v. Prieto, ___ A.3d

___, 2019 PA Super 79, *6 (filed March 18, 2019); Yorgey, 188 A.3d at 1196-

97.




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      In this appeal, we observe that Counsel’s July 18, 2018 correspondence

to Appellant provided a copy of the Anders brief to Appellant and advised

Appellant of his right either to retain new counsel or to proceed pro se on

appeal and raise any points he deems worthy of the court’s attention. Further,

Counsel’s Anders brief provides a procedural and factual summary of the case

with references to the record.     Anders Brief at 1-5.     Counsel additionally

submits that nothing else appears in the record that arguably supports

Appellant’s appeal.    Id. at 7.   Ultimately, Counsel cites his reasons and

conclusion that Appellant’s case presents no non-frivolous issues for review.

Id. at 5-7.   Counsel’s Anders brief and procedures thus comply with the

requirements set forth by our Supreme Court in Santiago.           We therefore

proceed to conduct an independent review to ascertain whether the appeal is

indeed wholly frivolous.

      In Appellant’s pro se appeal of the judgment of sentence, Appellant

stated his grounds for appeal as follows:

      I took the deal under false pretence [sic]. I was unaware I was
      unable to live with my children. I was told that I would be able to
      still live with my kids.

Letter to Trial Court, 1/18/18. In the statement of errors complained of on

appeal, Counsel restated Appellant’s basis for appeal as an argument that his

waiver of his right to trial was not voluntary, knowing, or intelligent. Pa.R.A.P.

1925(b) Statement, 4/27/18 ¶4. Counsel explained in his Anders brief that

Appellant never communicated that he wished to file a post-sentence motion



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or withdraw his guilty plea until Appellant notified the trial court directly by

letter on January 18, 2018 that he wished to appeal. Anders Brief at 5-6.

       Upon review, we agree with Counsel that the issue raised by Appellant

lacks merit. “Pennsylvania law makes clear that by entering a plea of guilty

[or nolo contendere], a defendant waives his right to challenge on direct

appeal all non[-]jurisdictional defects except the legality of the sentence and

the validity of the plea.” Commonwealth v. Monjaras-Amaya, 163 A.3d

466, 468 (Pa. Super. 2017).7 In order to preserve an issue related to the

plea, including a challenge to the voluntariness of a plea, the defendant must

object at the sentencing hearing or file a post-sentence motion seeking to

withdraw the plea within ten days of sentencing.       Monjaras-Amaya, 163

A.3d at 468-69; Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.

Super. 2013); see also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i) (stating that

defendant may challenge validity of a guilty or nolo contendere plea through

post-sentence motion and such motion must be filed within 10 days of

sentencing).

       Failure to object at the sentencing hearing or file a timely post-sentence

motion results in waiver of any issue that the defendant seeks to raise.

Monjaras-Amaya, 163 A.3d at 469; Lincoln, 72 A.3d at 610. The historical


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7 Though we addressed the effect of a guilty plea in Monjaras-Amaya, “in
terms of its effect upon a case, a plea of nolo contendere is treated the same
as a guilty plea.” Prieto, 2019 PA Super 79, *6 (quoting Commonwealth v.
V.G., 9 A.3d 222, 226 (Pa. Super. 2010)).


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basis for this rule of waiver is that “[i]t is for the court which accepted the

plea to consider and correct, in the first instance, any error which may have

been committed.”     Lincoln, 72 A.3d at 610 (quoting Commonwealth v.

Roberts, 352 A.2d 140, 141 (Pa. Super. 1975)); see also Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”). A defendant may not rectify the failure to preserve an

issue by objecting within the prescribed time-frame by proffering the issue in

a Pa.R.A.P. 1925(b) statement. Monjaras-Amaya, 163 A.3d at 469.

      The record reflects that Appellant freely entered into his negotiated nolo

contendere plea after colloquy by the trial court and according to the terms

set forth in written plea agreement. Appellant did not object to the validity of

his plea at the sentencing hearing or raise any issue related to whether his

plea was knowing, voluntary, or intelligent at that hearing.       Furthermore,

although he was advised that he would only be able to withdraw his guilty plea

through a post-sentence motion filed within ten days of the imposition of his

sentence, Appellant failed to file such a motion or direct Counsel to do so.

While Appellant filed a timely notice of appeal, that does not excuse his failure

to object to the plea at the sentencing hearing or file a timely post-sentence

motion.    Accordingly, Appellant’s challenge to the validity of his nolo

contendere plea is waived. Monjaras-Amaya, 163 A.3d at 469; Lincoln, 72

A.3d at 610.

      Additionally, even if Appellant had not waived this issue, we would

conclude that his argument is non-meritorious. To be valid, a guilty or nolo

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contendere plea must be entered into knowingly, voluntarily, and intelligently.

Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super. 2016). At the

hearing, the trial court is required to inquire (1) whether the defendant

understands the nature of the charges; (2) what the factual basis is for the

plea; (3) whether the defendant understands that he has a right to a trial by

jury; (4) whether the defendant understands that he is presumed innocent

until found guilty; (5) whether the defendant is aware of the permissible range

of sentences or fines for the offenses; and (6) whether the defendant knows

that the trial judge is not bound by the terms of the plea agreement unless

she accepts the plea. Pa.R.Crim.P. 590 (comment); Kpou, 153 A.3d at 1023.

“[A] written plea colloquy that is read, completed and signed by the defendant

and made part of the record may serve as the defendant’s plea colloquy when

supplemented by an oral, on-the-record examination.” Commonwealth v.

Reid, 117 A.3d 777, 782 (Pa. Super. 2015); see also Pa.R.Crim.P. 590,

Comment. The determination of whether a plea is valid must be made by

examining the totality of the circumstances. Kpou, 153 A.3d at 1023-24. The

defendant bears the burden of proving that he was not aware of what he was

doing when entering a plea. Id. at 1024.

      The record reflects that, through the on-the-record colloquy at the plea

hearing as supplemented by the written plea colloquy, Appellant understood

the nature of the charges against him, potential maximum sentence and fine,

his right to trial by jury, the presumption of innocence, and the fact that the

trial court was not bound by terms of the plea agreement. N.T., 9/22/17, at

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5-11; Plea Colloquy Form, 9/22/17. In addition, the trial court found through

the stipulated affidavit of probable cause that there was a factual basis for the

plea and that the Commonwealth would have proved beyond a reasonable

doubt that Appellant was guilty of IDSI and unlawful contact with a minor.

N.T., 9/22/17, at 12-13.

        While we agree with Counsel that the issue he raised concerning the

voluntariness of Appellant’s nolo contendere plea lacks merit, our independent

review of the record reveals an additional issue of arguable merit in this appeal

related to the apparent retrospective application of the registration and

reporting obligations of the Sex Offender Registration and Notification Act

(SORNA)8 as a part of Appellant’s sentence.9       SORNA went into effect on

December 20, 2012, replacing the existing sexual offender registration

statute, which was commonly known as Megan’s Law III.10 See 42 Pa.C.S. §

9799.41; Commonwealth v. Muniz, 164 A.3d 1189, 1204 (Pa. 2017).

Among the relevant changes of SORNA was that the statute classified

offenders into three tiers based on the severity of the offense committed with

different registration periods and in-person reporting requirements for each

tier. See 42 Pa.C.S. § 9799.15; Muniz, 164 A.3d at 1203, 1206-07. Under
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8   42 Pa.C.S. §§ 9799.10-9799.42.
9 “A challenge to the legality of a particular sentence may be reviewed by any
court on direct appeal; it need not be preserved in the lower courts to be
reviewable and may even be raised by an appellate court sua sponte.”
Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017).
10   42 Pa.C.S. §§ 9791-9799.9 (expired).


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either SORNA or Megan’s Law III, an offender such as Appellant who is

convicted of IDSI would be subject to lifetime registration.   Compare 42

Pa.C.S. § 9795.1(b)(2) (expired) with 42 Pa.C.S. §§ 9799.14(d)(4),

9799.15(a)(3).   However, lifetime registration under Tier III of SORNA

imposes increased registration and reporting requirements compared to

Megan’s Law III, including the addition of quarterly in-person reporting

regardless of whether the offender changes his address or employment.

Compare 42 Pa.C.S. §§ 9799.15, 9799.16 with 42 Pa.C.S. § 9795.2

(expired); see also Muniz, 164 A.3d at 1207-08.

     In Muniz, our Supreme Court addressed the issue of whether the

application of SORNA to an individual who committed crimes prior to the

enactment of that statute violates the ex post facto clauses of the United

States and Pennsylvania constitutions. The Court concluded that SORNA was

punitive in effect despite its expressed civil intent. 164 A.3d at 1218.   In

analyzing the registration requirements of SORNA as compared to its

predecessor statute, the Court held that the additional registration and

reporting requirements of SORNA, including the quarterly in-person reporting

requirements for Tier III offenders, constituted a greater punishment than

would have been imposed prior to the enactment of that statute. Id. at 1210-

11. The Court therefore determined that the retroactive application of SORNA

to crimes committed prior to the enactment of the statute constitutes greater

punishment than would have applied under the prior sex-offender registration

law at the time the offenses were committed, therefore violating the ex post

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facto clauses of both the United States and Pennsylvania constitutions. Id. at

1218, 1223.11

       According to the affidavit of probable cause, which Appellant stipulated

to as the factual predicate for his appeal, Appellant committed his crimes

between 2005 and 2007, prior to the December 20, 2012 effective date of

SORNA. See Commonwealth v. Horning, 193 A.3d 411, 417 (Pa. Super.

2018) (holding that the relevant date for determining whether the application

of SORNA violates the ex post facto clauses under Muniz is the date of the

commission of the offense). At the plea hearing, the prosecutor recognized

that SORNA was not applicable to Appellant based on the Muniz decision.

N.T., 9/22/17, at 12-13. However, at the sentencing hearing, Appellant was

notified orally and in writing that that he was required to register as a Tier III

offender and would have to comply with the SORNA reporting requirements

applicable to Tier III offenders, including in-person quarterly reporting to the

Pennsylvania State Police.           Notice of Registration Requirements Form,

12/22/17; N.T., 12/22/17, at 7-8. In addition, the sentencing order stated

that Appellant would be required to “register with the State Police [as a

lifetime registrant] and comply with all Tier III requirements.” Sentencing

Order, 12/22/17.        By requiring that Appellant comply with the Tier III
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11Though Justice Dougherty’s lead opinion in Muniz was only joined in full by
two other justices, Justice Wecht in his concurrence, joined by Justice Todd,
agreed with the holding of the lead opinion that retrospective application of
SORNA violates the ex post facto clauses. 164 A.3d at 1232-33 (Wecht, J.,
concurring).


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reporting obligations of SORNA, it appears that the trial court imposed a

greater punishment on Appellant than the statute in effect at the time he

committed his offense, violating the ex post facto clauses of the United States

and Pennsylvania constitutions. See Muniz, 164 A.3d at 1218, 1223.

      In light of this potentially meritorious issue, we deny Counsel’s petition

to withdraw and order Counsel to submit either an advocate’s brief or a new

Anders brief within thirty days of the date of this memorandum. Counsel

may raise any other non-frivolous issues he has identified concerning

Appellant’s sentence. The Commonwealth may file a brief within thirty days

of service of the brief from Appellant’s counsel.

      Petition to withdraw denied.     Appellant’s counsel ordered to file an

advocate’s brief or a new Anders brief within thirty days of the date of this

memorandum.      The Commonwealth may file a brief within thirty days of

Appellant’s counsel’s brief. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




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