J-A16039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                     Appellant              :
                                            :
                v.                          :
                                            :
LARRY TUCKER,                               :
                                            :
                     Appellee               :   No. 1308 WDA 2015

                     Appeal from the Order August 4, 2015
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, at No(s): CP-02-CR-0001897-2013

BEFORE:       SHOGAN, OLSON, and STRASSBURGER, JJ.

MEMORANDUM BY STRASSBURGER, J.:             FILED DECEMBER 19, 2017

        The Commonwealth appeals from the August 4, 2015 order that

granted Appellee Larry Tucker relief pursuant to the Post Conviction Relief

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

        The facts relevant to this appeal are not in dispute. In 1992, at docket

number CP-02-CR-0014918-1991, Tucker pled nolo contendere to, inter alia,

rape by forcible compulsion and involuntary deviate sexual intercourse

(IDSI) by forcible compulsion under 18 Pa.C.S. §§ 3121 and 3123(a),

respectively.    Tucker was sentenced to 364 to 728 days of incarceration

followed by five years of probation. Tucker’s probation was revoked in 1997,

resulting in a sentence of five to ten years of incarceration at CP-02-CR-



   Retired Senior Judge assigned to the Superior Court.
J-A16039-16


0014918-1991, to run consecutive to another sentence he was serving at

another docket number.

      No law imposing registration requirements for sex offenders had been

enacted at the time Tucker committed the sex crimes that led to his 1992

sentence.     However, various versions of the law were implemented

subsequently,   both   while   he    was   on   probation    and   while   he   was

incarcerated. Specifically, the first Megan’s Law became effective in 1996,

requiring those convicted of rape and IDSI to register as a sex offender for a

period of ten years, beginning within 30 days of the law’s effective date for

individuals under supervision (either probation or parole).            42 Pa.C.S.

§ 9793 (effective April 1996 to July 2000).       Megan’s Law II took effect in

2000, increasing the registration period from ten years to lifetime for, inter

alia, rape and IDSI. 42 Pa.C.S § 9795.1(b)(2) (effective July 2000).

      Upon release from state prison in 2011, Tucker registered as a sex

offender for the first time.1       Although Megan’s Law II required regular

registration, Tucker did not register after that initial time.     As a result, in

2013, Tucker was charged in the instant case with failure to register under

Megan’s Law II in violation of 18 Pa.C.S. § 4915.2          Tucker pled guilty and


1 According to Tucker, the prison authorities informed him that he would not
be released at the conclusion of his sentence unless he completed the sex
offender registration documents. N.T., 7/10/2015, at 24.
2 The Sex Offender Registration and Notification Act (SORNA) replaced
Megan’s Law in December 2012, providing new, more onerous registration
                                                     (Footnote Continued Next Page)

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was sentenced to five years of probation.              Tucker thereafter was charged

two additional times for failing to register, but was acquitted based upon the

trial court’s conclusion that Tucker was not required to register.

      Tucker thereafter timely filed a PCRA petition in the instant case

claiming that plea counsel’s ineffectiveness in failing to research whether

Tucker had a duty to register under Megan’s Law II caused him to enter an

unknowing, involuntary guilty plea in 2013. After a hearing, the PCRA court

concluded that Tucker had established a right to relief in the form of

withdrawal of his plea and the award of a new trial.             The Commonwealth

timely filed a notice of appeal, and both the Commonwealth and the PCRA

court complied with Pa.R.A.P. 1925.

      The Commonwealth presents the following question on appeal:

      Whether the [PCRA] court erred in granting a new trial based on
      its conclusion that counsel rendered ineffective assistance in
      connection with Tucker’s guilty plea to a charge of failure to
      register as a sexual offender where the record demonstrates

(Footnote Continued)   _______________________



requirements for, inter alia, those who were subject to registration
requirements under the prior law. 42 Pa.C.S. § 9799.13(3). Our Supreme
Court invalidated retroactive application of SORNA in Commonwealth v.
Muniz, 164 A.3d 1189, 1218 (Pa. 2017) (holding SORNA’s “significant
differences” from the earlier Megan’s Law registration requirements rose to
the level of criminal punishment). The Muniz decision does not impact this
case, as Tucker was charged with and convicted of failing to register under
the earlier statutes, retroactive application of which was upheld in, inter alia,
Commonwealth v. Williams, 832 A.2d 962, 986 (Pa. 2003) (“Megan’s
Law’s registration, notification, and counseling provisions constitute non-
punitive, regulatory measures supporting a legitimate governmental
purpose.”).

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      that, contrary to Tucker’s contention, Tucker was, in fact, an
      individual required to register who had failed to do so?

Commonwealth’s Brief at 4.

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013)

(citation and quotation marks omitted).        “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court’s legal

conclusions.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

      The Commonwealth challenges the PCRA court’s determination that

Tucker’s plea counsel rendered ineffective assistance. On review, we bear in

mind that counsel is presumed to be effective.           Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017).            To overcome that

presumption, Tucker had to plead and prove all of the following: “(1) the

underlying legal claim is of arguable merit; (2) counsel’s action or inaction

lacked any objectively reasonable basis designed to effectuate his client’s

interest; and (3) prejudice, to the effect that there was a reasonable

probability of a different outcome if not for counsel’s error.”   Id. (internal

quotation marks and citation omitted).

            Ineffective assistance of counsel claims arising from the
      plea-bargaining process are eligible for PCRA review. Allegations

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      of ineffectiveness in connection with the entry of a guilty plea
      will serve as a basis for relief only if the ineffectiveness caused
      the defendant to enter an involuntary or unknowing plea. Where
      the defendant enters his plea on the advice of counsel, the
      voluntariness of the plea depends on whether counsel’s advice
      was within the range of competence demanded of attorneys in
      criminal cases.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations and quotation marks omitted).

      The PCRA court determined that Tucker, by proving all three prongs of

the test for ineffective assistance of counsel, established that his 2013 guilty

plea had been entered involuntarily. Specifically, the PCRA court found that

(1) Tucker’s claim that trial counsel failed to review the discovery or “do any

legal research regarding [Tucker’s] legal obligation to register under Megan’s

Law” was of arguable merit; (2) counsel had no reasonable basis for failing

to do so as “[t]he legal research necessary here was readily apparent from

the face of the criminal information filed against [Tucker] insofar as

[Tucker’s rape and IDSI] conviction date was prior to the enactment of

Megan’s Law I;” and (3) if counsel had offered effective representation,

Tucker would not have pled guilty. PCRA Court Opinion, 1/19/2016, at 4-5.

      If counsel had researched the issue, she would have been able to rely

upon this Court’s decision in Commonwealth v. Rivera, 10 A.3d 1276 (Pa.

Super. 2010),3 a case decided more than two years before Tucker pled


3The delay in our decision stems from our holding this case pending this
Court’s en banc consideration of Rivera’s holding in Commonwealth v.
                                                    (Footnote Continued Next Page)

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guilty.   In Rivera, this Court held that Megan’s Law II’s applicability to

“individuals incarcerated or convicted on or after the effective date of this

act,” was “intended by the legislature to refer only to the original period of

incarceration imposed on a sex offense,” and not “to a period of

incarceration imposed to a probation violation on that sex offense.” Rivera,

10 A.3d at 1284. In this appeal, the Commonwealth argues that the PCRA

court erred in determining that the Rivera holding did not impact Tucker’s

registration duty.        Commonwealth’s Brief at 24-30.          However, we are

unpersuaded by the Commonwealth’s attempts to distinguish Rivera.

      Both Rivera and Tucker were convicted of sex crimes before any sex

offender registration law was in effect. Both were on probation at the time

Megan’s Law I became effective, rendering them subject to a ten-year

registration requirement.4,5           When Megan’s Law II took effect, Rivera was

(Footnote Continued)   _______________________



McCullough, --- A.3d ---, 2017 WL 5184490 (Pa. Super. 2017) (en banc).
However, because McCullough was convicted for failure to register under
SORNA rather than under the previous Megan’s Law II statute, the issue
became moot when our Supreme Court held in Muniz that retroactive
application of SORNA is unconstitutional. Hence, we now proceed to decide
the issue without the benefit of en banc examination of Rivera.

4 The Commonwealth contends that Rivera was not required to register at all
under Megan’s Law I “because his offense - misdemeanor 2 [i]ndecent
[a]ssault - did not become registerable until Megan’s Law II was enacted.”
Commonwealth’s Brief at 27. However, Rivera was convicted of a first-
degree misdemeanor offense of indecent assault of a person less than
thirteen years of age. Rivera, 10 A.3d at 1278 n.1. Under 42 Pa.C.S.
§ 9793(b)(3), which was in effect from April 1996 to July 2000, a ten-year
registration period was required for “[p]ersons convicted of 18 Pa.C.S.
                                                         (Footnote Continued Next Page)

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sentenced and incarcerated for violating the probation imposed following his

indecent assault conviction, and was not still imprisoned on the initial sex

offense sentence; Tucker was incarcerated in the rape/IDSI case on a

probation violation, rather than the original sentence, at the time Megan’s

Law II became effective.             Hence, because neither Rivera nor Tucker was

convicted of a sex offense, or imprisoned on the original period of

incarceration for a sex offense, on or after the effective date of Megan’s Law

II, neither had a duty to register under Megan’s Law II.

      Having determined that the Rivera decision did indeed provide Tucker

with a defense to the charges he faced, we consider whether the PCRA

court’s determination that Tucker proved all three prongs of his claim of

ineffective assistance of counsel is free of legal error and supported by the

record.

      Our review of the transcript of the PCRA hearing supports the finding

that, prior to advising him about whether to plead guilty, counsel obtained

(Footnote Continued)   _______________________



§ 3126 (relating to indecent assault) when the offense is a misdemeanor of
the first degree.”

5
  Megan’s Law I did not indicate initially a commencement date for the
registration of persons on probation or parole on its effective date. It was
amended on May 22, 1996, to require such offenders to register within 30
days. Hence Tucker and Rivera each should have registered by mid-June
1996. Tucker did not register, but he was arrested and incarcerated for
aggravated assault on June 12, 1996, a mere few weeks after his
registration period should have begun. There is no indication in the Rivera
opinion that Rivera ever registered under any version of the law.

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neither the facts applicable to the issue of whether Tucker had a duty to

register nor relevant case law that provided a complete defense to the

charges Tucker faced.     N.T., 7/10/2015, at 16-17 (reporting that plea

counsel testified that she did not have the Megan’s Law discovery packet at

the time of the plea, and did no legal research regarding Tucker’s culpability

given that his conviction predated the enactment of Megan’s Law). Because

counsel did not discover or discuss any available defenses with Tucker, the

PCRA court properly held that Tucker’s claim had arguable merit. See, e.g.,

Commonwealth v. Lassiter, 722 A.2d 657, 662 (Pa. 1998) (Opinion

Announcing the Judgment of the Court) (holding, in case in which Lassiter

challenged the voluntariness of a guilty plea entered in exchange for the

Commonwealth’s promise not to seek the death penalty, that the claim had

arguable merit because the death penalty did not apply to an accomplice

who did not “commit” the murder).

      The PCRA court also held that counsel lacked a reasonable basis for

failing to investigate whether Tucker had a duty to register as a sex

offender. Such a decision was obviously of “questionable legal soundness,”

Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002), and

the record reveals that counsel offered no explanation why proceeding

blindly into a guilty plea rather than obtaining relevant information was

reasonably designed to effectuate Tucker’s interests.   See, e.g., Lassiter,

722 A.2d at 662 (holding counsel had no reasonable basis for failing to

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discuss with Lassiter an argument that the death penalty did not apply in his

case because “[n]o strategic goals were furthered by trial counsel’s failing to

fully inform his client of the true nature of the illusory promise with which

the Commonwealth sought to bargain away [Lassiter’s] right to a jury trial”).

       Finally, the PCRA court’s factual finding that there is a reasonable

probability that Tucker would have chosen to go to trial had counsel advised

him that he had a basis to defend himself against the charges is supported

by the record. See N.T., 7/10/2015, at 21 (“[Counsel] was telling me that

she couldn’t fight it, she didn’t know how to fight it, so I felt like I had no

choice but to plead guilty to it, although I knew I wasn’t guilty to it.”); id. at

25-26 (indicating Tucker was subsequently charged two more times with

failing to comply with sex-offender registration; counsel in those cases

informed Tucker of his ability to challenge the statute’s applicability to him,

and Tucker opted to proceed to trial). We will not disturb factual findings of

the PCRA court that are supported by the record. Commonwealth v. Ford,

44 A.3d 1190, 1194 (Pa. Super. 2012).

      Thus, Tucker produced evidence that his plea counsel failed to inform

him that he had no duty to register under Megan’s Law, that she had no

reasonable basis for failing to research and apprise her client of that

potential for defeating the charges, and that, had he known that he had a

defense to raise, he would not have pled guilty. Accordingly, the PCRA court

did not err in allowing Tucker to withdraw his involuntary guilty plea.

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     Order affirmed.

     Judge Shogan joins.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




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