J-S38008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
STEPHEN BLAKESLEE,                       :
                                         :
                        Appellant        :     No. 938 EDA 2013


           Appeal from the PCRA Order Entered March 6, 2013,
            In the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s). CP-23-CR-0002677-2003.


BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 01, 2015

      Appellant, Stephen Blakeslee, appeals from the order denying his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      On January 20, 2004, Appellant pleaded guilty to two counts of

involuntary deviate sexual intercourse and two counts of indecent assault in

connection with his molestation of three children between 2002 and 2004.

On September 13, 2004, Appellant was found to be a sexually violent

predator (“SVP”) and was sentenced to a term of ten to twenty years of

imprisonment plus a consecutive five-year term of probation. Following the

denial of his post-sentence motion, Appellant filed a timely notice of appeal

and was directed by the trial court to file a concise statement of matters
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 31, 2005,

counsel filed a timely concise statement. On June 8, 2005, counsel filed an

untimely supplemental concise statement in which he argued that the

evidence at the SVP hearing was insufficient to declare Appellant an SVP.

        On September 12, 2006, this court affirmed the judgment of sentence.

Commonwealth v. Blakeslee, 664 EDA 2005, 911 A.2d 177 (Pa. Super.

filed   September    12,   2006)   (unpublished    memorandum).         Citing

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and Commonwealth

v. Jackson, 900 A.2d 936 (Pa. Super. 2006), we held that Appellant’s issue

challenging the sufficiency of the evidence at the SVP hearing was waived as

having been raised in an untimely Pa.R.A.P. 1925(b) statement.

        On November 14, 2007, Appellant timely filed the PCRA petition

underlying the instant appeal.1    Although counsel was appointed, counsel

subsequently filed a motion to withdraw and a “no-merit” letter pursuant to




1
   Appellant had until October 12, 2007, to timely file his petition. Although
not docketed until November 14, 2007, there is evidence of record that
Appellant delivered his petition to prison authorities on October 12, 2007,
and that it was received by the court on October 18, 2007. Pursuant to the
“prisoner mailbox rule,” a PCRA petition is deemed filed when it is placed in
the hands of prison authorities for mailing. Commonwealth v. Castro, 766
A.2d 1283, 1287 (Pa. Super. 2001). Thus, we deem Appellant’s petition
timely.



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Turner-Finley.2 On April 2, 2012, the PCRA court issued notice of its intent

to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On

June 1, 2012, Appellant filed a response, and on March 6, 2013, the PCRA

court dismissed Appellant’s petition and permitted counsel to withdraw. This

timely appeal followed.

      On appeal, Appellant raises a single issue:

      Did the lower court err when it determined that Appellant’s direct
      appeal counsel was not ineffective when he waived Appellant’s
      right to appeal his SVP determination, by not filing a timely
      1925(b) statement regarding this issue?

Appellant’s Brief at 2 (full capitalization omitted).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).        The PCRA court’s findings will not be

disturbed unless there is no support for them in the certified record.     Id.

(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

      When considering an allegation of ineffective assistance of counsel,

counsel is presumed to have provided effective representation unless the

PCRA petitioner pleads and proves that:         (1) the underlying claim is of


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (setting forth the
procedure for counsel to withdraw in PCRA matters).

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arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and   (3)   Appellant   was   prejudiced   by   counsel’s   action   or   omission.

Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

A claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs.       Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004).      “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      The PCRA court found that Appellant’s ineffectiveness claim was not

cognizable under the PCRA pursuant to Commonwealth v. Masker, 34

A.3d 841 (Pa. Super. 2011) (en banc). The Commonwealth reiterates this

argument on appeal. Commonwealth’s Brief at 8.

      In Masker, the appellant raised three claims of ineffective counsel in

his PCRA petition:

             a.   Trial counsel failed to properly advise the
                  Defendant of his right to remain silent during
                  his sexual offender evaluation;

             b.   Trial counsel failed to provide an expert
                  witness to counter the sexually violent
                  predator determination made by the Sexual
                  Offender Assessment Board;


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            c.    Trial counsel failed to raise the issue of
                  whether or not use of the Sexual Offender
                  Assessment    Board     (SOAB)     assessment
                  admissions violated the Defendant’s Fifth
                  Amendment right to remain silent, during
                  post-sentence motions, or on direct appeal.

Masker, 34 A.3d at 842.

      After the denial of Masker’s petition, an appeal was filed in this Court

raising the following three issues:

            a)    Whether the trial court erred in determining
                  that consequences of a sexual offenders[’]
                  evaluation were collateral consequences and
                  were not cognizable claims under the Post
                  Conviction Collateral Relief Act?

            b)    Whether the trial court erred in determining
                  that trial counsel rendered effective assistance
                  of counsel at the sentencing phase?

            c)    Whether the trial court erred in determining
                  that the Defendant’s Amended PCRA did not
                  have merit?

Masker, 34 A.3d at 843.

      The Masker Court began its analysis by noting the holding in

Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005), which

concluded that because the determination of an SVP hearing is independent

of a challenge to a conviction or a sentence, it is not cognizable under the

PCRA. The Masker Court also observed that the collateral consequences of

a criminal conviction also are not cognizable under the PCRA. Ultimately, in




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holding that all of the appellant’s issues on appeal were not cognizable,

including the issue framed as ineffective assistance of counsel, the Masker

Court stated as follows:

            As noted above, 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
      Price, 876 A.2d at 995. In the present appeal, Masker does not
      challenge the propriety of his conviction or sentence.      See
      Amended PCRA petition, 1/15/2009. Rather, in an attempt to
      avoid the dictates of Price, Masker seeks to challenge the
      method by which he was determined to be a SVP. See id. 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.

      Thus, Masker stands for the proposition that a challenge to one’s

designation as an SVP or a challenge to the process resulting in an SVP

designation is not cognizable under the PCRA.      Masker, 34 A.3d at 842.

Here, however, Appellant is neither challenging his designation as an SVP

nor the process by which he was designated an SVP. Therefore, Masker is

inapplicable.

      In this case, Appellant is claiming only that his direct appeal counsel

was ineffective in failing to preserve a sufficiency of the evidence challenge

to his SVP designation. Appellant’s Brief at 6. Because the sufficiency of the

evidence supporting an SVP designation may be challenged on direct




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appeal,3 counsel’s failure to preserve the issue for direct appeal is cognizable

as an ineffectiveness claim.

      Nevertheless, even though the PCRA court erred in holding that

Appellant failed to present a cognizable claim, we conclude that Appellant is

entitled to no relief.4   At the time of his conviction, the applicable statute

defined an SVP as follows:

      A person who has been convicted of a sexually violent
      offense...and who is determined to be a sexually violent
      predator...due to a mental abnormality or personality disorder
      that makes the person likely to engage in predatory sexually
      violent offenses.

42 Pa.C.S. § 9792 (expired December 20, 2012, pursuant to 42 Pa.C.S.

§ 9799.41).

      The appropriate standard of review regarding the sufficiency of
      the evidence is whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the Commonwealth as the verdict winner, is
      sufficient to support all the elements of the offenses. As a
      reviewing court, we may not weigh the evidence and substitute
      our judgment for that of the fact-finder. Furthermore, a fact-
      finder is free to believe all, part or none of the evidence
      presented.

      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.


3
  See generally Commonwealth v. Stephens, 74 A.3d 1034 (Pa. Super.
2013).
4
   This Court may affirm the lower court’s decision if it is correct on any
ground. Commonwealth v. Turner, 73 A.3d 1283, 1286 n.5 (Pa. Super.
2013), appeal denied, 91 A.3d 162 (Pa. 2014) (citation omitted).

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     Accordingly, in reviewing the sufficiency of the evidence
     regarding the determination of SVP status, we will reverse the
     trial court only if the Commonwealth has not presented clear and
     convincing evidence sufficient to enable the trial court to
     determine that each element required by the statute has been
     satisfied. In most cases, we will determine whether the record
     supports the findings of fact made by the trial court and then
     review the legal conclusions made from them. However, in
     cases...where the trial court has stated its legal conclusions but
     has not provided specific findings of fact, we will review the
     entire record of the post-conviction SVP hearing as our scope of
     review is plenary. Therefore, if it appears based on all of the
     evidence viewed in a light most favorable to the Commonwealth
     that an SVP classification can not be made out in a clear and
     convincing manner, then we will be obligated to reverse the SVP
     designation.

Commonwealth v. Moody, 843 A.2d 402, 408 (Pa. Super. 2004) (citation

and quotation marks omitted). Clear and convincing evidence means that:

     witnesses must be found to be credible, that the facts to which
     they testify are distinctly remembered and the details thereof
     narrated exactly and in due order, and that their testimony is so
     clear, direct, weighty, and convincing as to enable the [finder of
     fact] to come to a clear conviction, without hesitancy, of the
     truth of the precise facts in issue.

Id. (citation and quotations marks omitted).

     Here, it is undisputed that the crimes to which Appellant pled guilty,

involuntary deviate sexual intercourse and indecent assault, qualified as

sexually violent offenses under the law as it existed.         Moreover, at

Appellant’s SVP hearing, both the Commonwealth’s and Appellant’s expert

testified that Appellant suffers from the mental abnormality or personality

disorder of Pedophilia. N.T., SVP Hearing, 8/17/04, at 13, 45. Dr. Thomas




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F. Haworth, the Commonwealth’s expert, testified to a reasonable degree of

psychological certainty that Appellant’s dedication of time and his pattern of

grooming multiple victims made it likely that he would engage in sexually

violent offenses.   Id. at 13-16.   Additionally, at his guilty plea colloquy,

Appellant stipulated to the facts as set forth in the affidavit of probable

cause. N.T., Guilty Plea, 1/20/04, at 16. The affidavit reveals that Appellant

engaged in separate but similar courses of conduct with three males when

they were approximately seven to eight years old.5 The assaults occurred

over a period of time at Appellant’s residence. Affidavit of Probable Cause,

4/28/03, at 1. Appellant would rub the boys’ bodies and eventually began

placing his hands inside the boys’ pants. Id. Two of the boys stated that

Appellant would remove their clothing and then his own and rub his penis

between their legs.   Id.   Appellant also applied a lubricant and attempted

anal penetration and engaged in oral intercourse with one of the victims.

Id. Appellant admitted that he had fondled two of the boys and rubbed his

penis between their legs, and he further admitted sexually assaulting the

third child including engaging in oral intercourse.   Id. at 2.   Because the

record reveals that there was clear and convincing evidence 6 to support


5
  One of the victims could not recall exactly how old he was when the sexual
abuse began. Affidavit of Probable Cause, 4/28/03, at 1.
6
   At an SVP hearing, the Commonwealth bears the burden of proving by
clear and convincing evidence that the defendant meets the criteria to be
designated an SVP. Stephens, 74 A.3d at 1039.

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Appellant’s designation as an SVP, he has failed to prove that, but for

counsel’s failure to preserve said challenge, there is a reasonable probability

that the result of the proceeding would have been different. Reed, 42 A.3d

at 319.

      Therefore, while Appellant has presented a challenge that is cognizable

under the PCRA, we conclude that Appellant suffered no prejudice and,

therefore, is entitled to no relief. Accordingly, we affirm the order.

      Order affirmed.

      Judge Bowes joins the Memorandum.

      P.J.E. Ford Elliott Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/1/2015




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