J-S15020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DORRELL SHAW,

                        Appellant                    No. 328 EDA 2015


            Appeal from the PCRA Order of December 22, 2014
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at No(s): CP-51-CR-0014424-2008, CP-51-CR-0014425-
                     2008 and CP-51-CR-0014427-2008


BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 19, 2016

      Appellant, Dorrell Shaw, appeals from the order entered on December

22, 2014, dismissing his first petition pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows. On July 20, 2009, Appellant pled guilty to 27 crimes in conjunction

with separate gunpoint robberies and sexual assaults of three female

victims, one of which was a minor, over the course of a week in 2008. On

October 23, 2009, the trial court imposed an aggregate sentence of 40 to 80

years of imprisonment.    On April 30, 2010, following a hearing, the trial

court determined Appellant to be a Sexually Violent Predator (SVP).

Appellant filed a direct appeal with this Court claiming his guilty pleas were

not knowing, intelligent, or voluntary. We affirmed Appellant’s judgment of


*Retired Senior Judge Assigned to the Superior Court.
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sentence      in    an    unpublished    memorandum    on   October   24,   2011.

Commonwealth v. Shaw, 37 A.3d 1241 (Pa. Super. 2011) (unpublished

memorandum).             The Pennsylvania Supreme Court denied further review.

Commonwealth v. Shaw, 37 A.3d 1195 (Pa. 2012). On August 3, 2012,

Appellant filed a pro se PCRA petition. The PCRA court appointed counsel,

who filed an amended PCRA petition on July 16, 2014, alleging trial counsel

was ineffective for advising Appellant not to cooperate with the SVP

assessment and failing to challenge the SVP determination.         On November

21, 2014, the PCRA court entered notice of its intent to dismiss the petition

without an evidentiary hearing pursuant to Pa.R.Crim.P. 907. On December

22, 2014, the PCRA court entered an order dismissing Appellant’s PCRA

petition. This timely, counseled appeal resulted.1

       On appeal, Appellant presents the following issue for our review:

         I.        Did the PCRA court err when it dismissed [Appellant’s]
                   amended PCRA petition, without holding an
                   evidentiary hearing, where [Appellant] had properly
                   pled, and would have been able to prove, that he was

____________________________________________


1
  Appellant filed a notice of appeal on January 21, 2015. On January 22,
2015, the PCRA court issued an order, pursuant to Pa.R.A.P. 1925(b),
directing Appellant to file a concise statement of errors complained of on
appeal. Appellant complied timely on February 8, 2015, alleging that the
PCRA court erred in denying Appellant a new SVP hearing and in not holding
a hearing on his claim that trial counsel was ineffective by giving erroneous
advice not to cooperate with the SVP assessment and in failing to challenge
the SVP determination.      The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on April 2, 2015, finding Appellant’s claims are not
cognizable under the PCRA.



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                entitled to relief in challenging the finding of his
                [status as] a[n] [SVP]?

 Appellant’s Brief at 3 (superfluous capitalization omitted).

     Appellant contends trial counsel was ineffective for failing to challenge

his SVP designation. In sum, Appellant argues as follows:

        It is [Appellant’s] averment that he only failed to cooperate
        with the [SVP] investigation because he was told to do so
        by [trial counsel]. Clearly, this did not assist [Appellant].
        [Appellant] had absolutely no chance to make any cogent
        argument to the [c]ourt through his attorney and he should
        not be labeled as a[n] [SVP]. It is [Appellant’s] position
        that if he had a chance to cooperate with the investigation,
        that his explanation would have carried the day and he
        would not have been deemed a[n] [SVP].

                            *        *            *

        […T]he issue truly cannot be advanced, or perhaps even
        ruled upon, until such time that [Appellant] is further
        evaluated with the opportunity to cooperate with the
        evaluation and the [c]ourt could then determine whether or
        not an evidentiary hearing was necessary.

Id. at 10-11.

     In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.

Commonwealth v. Tharp, 101 A.3d 736, 746 (Pa. 2014). Here, the PCRA

court found that Appellant's claim was not cognizable under the PCRA

pursuant to this Court’s en banc decision in Commonwealth v. Masker, 34

A.3d 841 (Pa. Super. 2011) (en banc), allocotur denied, Commonwealth v.

Masker, 47 A.3d 846 (Pa. 2012). Upon review, we agree.




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     In Masker, Lester Masker pled guilty to various crimes of sexual

misconduct wherein he “admitted to multiple instances of sexual, manual,

and oral intercourse with his adopted daughter[.]” Masker, 34 A.3d at 842.

This Court affirmed his judgment of sentence. Id. Thereafter, Masker filed

a counseled PCRA petition in which he alleged that trial counsel was

ineffective for failing to advise him properly of his right to remain silent

during his SVP assessment or to counter the SVP assessment with expert

witness testimony.

     The Masker Court first looked at the language of the PCRA which

“provides for an action by which persons convicted of crimes they did not

commit and persons serving illegal sentences may obtain collateral relief[,]”

but is “not intended … to provide relief from collateral consequences of a

criminal conviction.” Masker, 34 A.3d at 843, citing 42 Pa.C.S.A. § 9542.

The Masker Court noted that “[i]n construing this language, Pennsylvania

Courts have repeatedly held that the PCRA contemplates only challenges to

the propriety of a conviction or a sentence.”     Id.   We observed that a

challenge to the collateral consequences of a criminal conviction, such as

SVP designation, is not cognizable under the PCRA:

        [A] challenge to the classification of the defendant as a SVP
        is not a challenge to the conviction or sentence, and
        therefore is not cognizable under the PCRA. See
        [Commonwealth v. Price,] 876 A.2d 988, 995 [(Pa.
        Super. 2005)]. In the present appeal, Masker does not
        challenge the propriety of his conviction or sentence.
        Rather, in an attempt to avoid the dictates of Price, Masker
        seeks to challenge the method by which he was determined

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        to be a SVP. We conclude that under the PCRA there is no
        meaningful difference between a challenge to the
        determination itself and a challenge to the process by which
        it was reached.

Masker, 34 A.3d at 843–844 (record citations omitted). The Masker Court

concluded that because an SVP determination is independent of a challenge

to a conviction or a sentence, it is not cognizable as an ineffective assistance

of counsel claim under the PCRA. Masker, 34 A.3d at 843, citing Price, 876

A.2d at 995. Thus, Masker stands for the proposition that a challenge to

counsel’s stewardship in relation to one's designation as an SVP, or in a

challenge to the process resulting in an SVP designation, is not cognizable

under the PCRA. Masker, 34 A.3d at 842.

      In this case, Appellant challenged his underlying criminal convictions

on direct appeal, arguing that he did not tender his guilty pleas knowingly,

intelligently, or voluntarily.   Currently, Appellant is not alleging that trial

counsel rendered ineffective assistance in this regard. Instead, Appellant is

directly challenging his SVP designation, and the process involved in

determining his SVP status, and claiming counsel gave him constitutionally

deficient advice not to participate in that assessment. While Masker claimed

counsel was ineffective for failing to advise him that he could remain silent

at his SVP assessment and Appellant claims the inverse, that counsel was

ineffective for advising Appellant not to participate in the SVP process, we

find such a distinction without a difference.      As our decision in Masker

makes clear, challenges to SVP designation, or the process of the SVP

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assessment, are simply not cognizable ineffective assistance of counsel

claims under the PCRA.     Accordingly, we affirm the PCRA court’s order

dismissing Appellant’s PCRA petition.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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