J-A18035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK ALLEN PRINKEY                         :
                                               :
                       Appellant               :      No. 1380 WDA 2018

             Appeal from the PCRA Order Entered August 28, 2018
               in the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000242-2007

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 25, 2020

        Mark Allen Prinkey (“Prinkey”) appeals from the Order denying his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        In a prior appeal, this Court summarized the history underlying the

instant appeal as follows:

          [Prinkey] took a seven-year[-]old female child into a barn to
          feed calves, despite the victim first telling him that she did
          not want to go. While in the barn area, after [Prinkey had]
          fed the calves, he asked the young child if she had a boyfriend
          or if she had ever kissed a boy. The victim answered no.
          [Prinkey] then went down on his knees and placed his hands
          on her shoulders. The victim then fled the barn and told her
          teenage half-sister[FN1] and another friend about these
          actions[,] and that [Prinkey had] attempted to kiss her.



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1   42 Pa.C.S.A. §§ 9541-9546.
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     [FN1]   The sister is [Prinkey’s] daughter.


     When the victim’s mother arrived, the victim relayed the same
     information to her mother, stating that she thought [Prinkey] was
     going to try to kiss her.[FN2] In an interview with police, [Prinkey]
     stated that he guessed his intent was pleasure and that if he did
     kiss the victim that the incident could have possibly escalated to
     additional sexual acts, including the victim potentially performing
     oral sex. He did not indicate that he intended for the victim to
     perform oral sex, although he did admit that he intended to kiss
     the girl.


     [FN2]At trial, the victim did not testify that [Prinkey] tried to kiss
     her, only that he touched her shoulder after kneeling down. She
     also testified that he did not pull her face to kiss her. The
     statement to her mother was admitted under 42 Pa.C.S.[A.]
     § 5985.1, the tender years hearsay exception.




                                  *      *         *

           [A jury found Prinkey guilty of attempted involuntary
     deviate sexual intercourse (“IDSI”) with a child, attempted
     indecent assault with a person less than 13 years of age, and
     corruption of the morals of a minor.]

            … The court found [Prinkey] to be a sexually
     violent predator (“SVP”), and imposed an aggregate sentence of
     ten to twenty-five years [of] incarceration. [Prinkey] filed a timely
     post-sentence [M]otion, which the trial court denied. A timely
     direct appeal ensued …. On appeal, [Prinkey] challenge[d] the
     sufficiency of the evidence, the weight of the evidence, and his
     classification as an SVP….

           A panel of this Court found that [Prinkey’s] sufficiency of the
     evidence claims were waived because his position was “woefully
     undeveloped[.]” Commonwealth v. Prinkey, 15 A.3d 529 (Pa.
     Super. 2010) (unpublished memorandum, at 5). Similarly, it held


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      that [Prinkey’s] weight of the evidence arguments were too
      undeveloped to be reached. … [T]he panel found all of [Prinkey’s]
      arguments waived due to inadequate briefing, except for his
      challenge to his classification as [an SVP].

Commonwealth v. Prinkey, 83 A.3d 1080 (Pa. Super. 2013) (unpublished

memorandum at 1-5) (some footnotes omitted). This Court affirmed Prinkey’s

designation as an SVP. Prinkey, 15 A.3d 529 (Pa. Super. 2010) (unpublished

memorandum at 11).

      Prinkey filed a timely first PCRA Petition, which the PCRA court denied.

On appeal, this Court concluded that Prinkey’s direct appeal counsel rendered

ineffective assistance by failing to challenge properly the sufficiency of the

evidence underlying his conviction of attempted IDSI. Prinkey, 83 A.3d 1080

(Pa. Super. 2013) (unpublished memorandum at 17).           Consequently, this

Court reversed Prinkey’s conviction for attempted IDSI, vacated his judgment

of sentence and remanded for resentencing, because our determination upset

the trial court’s sentencing scheme. Id.

      On remand,

      the Commonwealth served [N]otice of its intent to seek a
      mandatory sentence pursuant to 42 Pa.C.S.[A.] § 9718.2, which
      mandates a minimum sentence of not less than twenty-five years
      for the conviction of attempted indecent assault. [Prinkey] then
      filed a [M]otion to [D]ismiss the Commonwealth’s [N]otice. The
      trial court received briefs from the parties, and[,] on February 19,
      2014, immediately prior to resentencing, heard oral arguments
      and denied [Prinkey’s] [M]otion to [D]ismiss. Thereafter, the trial
      court sentenced [Prinkey] to serve a term of incarceration of
      twenty-five to fifty years for the conviction of attempted indecent
      assault, and a consecutive term of incarceration of eighteen to
      thirty-six months for the conviction of corruption of minors.


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      [Prinkey] filed a timely post-sentence [M]otion, which the trial
      court denied on May 8, 2014….

Commonwealth v. Prinkey, 125 A.3d 463 (Pa. Super. 2015) (unpublished

memorandum at 5).

      On appeal, this Court affirmed Prinkey’s judgment of sentence. See id.

(unpublished memorandum at 16). This Court concluded, inter alia, that the

imposition of a mandatory minimum sentence on remand, following a

successful appeal, did not violate Prinkey’s constitutional protection against

double jeopardy. Id. (unpublished memorandum at 11). This Court further

determined that, even though the Commonwealth had not filed notice of its

intent to seek a mandatory sentence prior to Prinkey’s original sentencing

hearing, it was not barred from seeking the mandatory minimum sentence at

resentencing on remand.    Id. (unpublished memorandum at 12-13).         This

Court explained that a defendant has “no legitimate expectation of finality in

his sentence[,] after he has filed an appeal therefrom.”      Id. (unpublished

memorandum at 13) (quoting Commonwealth v. Wilson, 934 A.2d 1191,

1195 (Pa. 2007)).

      On May 16, 2016, Prinkey timely filed the PCRA Petition underlying the

instant appeal. After a hearing, the PCRA court denied Prinkey relief. PCRA

Court Order, 8/28/18. Prinkey subsequently filed the instant timely appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      Prinkey presents the following claims for our review:

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       I.     Whether or not the application of a mandatory sentence[,]
              after a successful appeal that disrupts the overall sentencing
              scheme[,] should be per se vindictive and[,] therefore[,]
              impermissible under both the Federal and Pennsylvania
              Constitutions?

       II.    Whether or not the failure of prior PCRA counsel to advise
              [Prinkey] that he may face a mandatory sentence of twenty-
              five (25) years if resentenced was ineffective assistance of
              counsel?

       III.   Whether or not it is a violation of the Double Jeopardy
              provision[] of the Pennsylvania Constitution for the
              Commonwealth to impose a mandatory sentence[,] when a
              matter is remanded for resentencing after a partially
              successful appeal?

       IV.    Whether or not [Prinkey’s] registration requirements under
              Megan’s Law must revert to the requirements of Megan’s
              Law II, which was in effect when he was originally sentenced
              and convicted[,] under Commonwealth v. Muniz[, 164
              A.3d 1189 (Pa. 2017),] and Commonwealth v. Butler[,
              173 A.3d 1212 (Pa. Super. 2017) [(“Butler I”)], appeal
              granted, 190 A.3d 581 (Pa. 2018)]?

Brief for Appellant at 5.2

       To obtain relief under the PCRA, a petitioner must plead and prove, by

a preponderance of the evidence, that the conviction resulted from “[a]

violation of the Constitution of this Commonwealth or the Constitution or laws

of the United States which, in the circumstances of the particular case, so




____________________________________________


2 We note that in the Argument section of his brief, Prinkey addresses his
claims in an order different from that set forth in the Statement of Questions
Presented. We will address the issues in the order set forth in his Statement
of Questions Presented.

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undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i).

      Prinkey first claims that the application of a mandatory minimum

sentence, after a successful appeal that overturns the most severe count,

should be considered per se vindictive. Brief for Appellant at 18. Prinkey

acknowledges that there is “no absolute bar that prevents a defendant from

receiving a more severe sentence upon resentencing after a successful

appeal.” Id. at 19. However, Prinkey posits that the Due Process Clause of

the Fourteenth Amendment protects defendants “from receiving heavier

sentences on appeal[,] for the explicit purpose of punishing the defendant for

his successful appeal.” Id. (citing North Carolina v. Pearce, 395 U.S. 711

(1969)). Prinkey contends that “if the first conviction has been set aside for

non-constitutional error, the imposition of a penalty upon the defendant for

having successfully pursued a statutory right of appeal or collateral remedy

would be no less a violation of due process of law.” Brief for Appellant at 20.

Prinkey argues that “the imposition of a mandatory sentence, after a

successful or partially successful appeal, should be per se unconstitutional, as

it places an unconstitutional obstruction in the exercise of a [d]efendant’s due

process rights.” Id.

      Prinkey also asserts that the Commonwealth failed to cite any evidence,

arising during the 7-year period between the imposition of the original

sentence and Prinkey’s resentencing, which would overcome the presumption


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that an increased sentence was vindictive. Id. at 24. According to Prinkey,

“the Commonwealth’s only evidence at the resentencing hearing for imposing

the mandatory sentence was the Commonwealth’s belief that the ten (10)

year minimum sentence [for his vacated IDSI conviction] was sufficient; but

that the new seven (7) year sentence [for his conviction of indecent assault]

was not.”     Id.   Prinkey claims that this argument does not meet the

constitutional minimums required by the United States Supreme Court in

Pearce and Wasman v. United States, 468 U.S. 559 (1984).               Brief for

Appellant at 24.

      In essence, Prinkey claims that his challenge to the sentence, as being

vindictive, should be considered as a challenge to the legality of his sentence.

However, an en banc panel of this Court has held that a claim challenging a

sentence as vindictive implicates the discretionary aspects of sentencing.

Commonwealth v. Robinson, 931 A.2d 15, 20 (Pa. Super. 2007) (en banc).

A three-judge panel of this Court is not empowered to overrule another panel

of the Superior Court, let alone an en banc panel. Commonwealth v. Beck,

78 A.3d 656, 659 (Pa. Super. 2013). Only an en banc panel of the Superior

Court, or our Supreme Court, could overrule Robinson.

      Consequently, Prinkey’s claim implicates the discretionary aspects of

sentencing. See Robinson, supra. Requests for relief with respect to the

discretionary aspects of sentence are not cognizable in PCRA proceedings.

Commonwealth v. Fowler, A.2d 586, 593 (Pa. Super. 2007) (stating that


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“[c]hallenges to the discretionary aspects of sentencing are not cognizable

under the PCRA.”); see also Commonwealth v. Jordan, 2001 PA Super

111, 772 A.2d 1011, 1016 (Pa. Super. 2001) (observing that “[t]his Court’s

case law has stated that a challenge to the discretionary aspects of sentencing

is a matter that must be reviewed in the context of a direct appeal and cannot

be reviewed in the context of a PCRA.”); 42 Pa.C.S.A. § 9543(a)(2). Because

Prinkey’s claim is not cognizable under the PCRA, we cannot grant him relief

on his challenge to the sentence as vindictive.3

       In his second claim, Prinkey argues that his PCRA counsel rendered

ineffective assistance by failing to warn him of a possible mandatory minimum

sentence, should he successfully challenge the sufficiency of the evidence

underlying his conviction of attempted IDSI. Brief for Appellant at 13, 16.

Prinkey contends that his counsel had no reasonable basis for failing to advise

him of the potential imposition of a mandatory minimum sentence from 10

years to at least 25 years is “a significant factor that any person should be

able to weigh before taking any action during a criminal proceeding.” Id. at

17. Finally, Prinkey asserts that he suffered prejudice as a result of counsel’s

dereliction, as the consequences of counsel’s failure resulted in the application

of a mandatory minimum sentence. Id. at 17-18.



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3We are constrained to reach this conclusion, based upon the clear holding in
Robinson. However, we are troubled that this case appears to be a blatant
example of prosecutorial vindictiveness.

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      To be entitled to relief on an ineffectiveness claim, a petitioner must

prove that the underlying claim is of arguable merit; counsel’s performance

lacked a reasonable basis; and counsel’s ineffectiveness caused him prejudice.

Commonwealth v. Solano, 129 A.3d 1156, 1162 (Pa. 2015).

      Prejudice in the context of ineffective assistance of counsel means
      demonstrating there is a reasonable probability that, but for
      counsel’s error, the outcome of the proceeding would have been
      different. This standard is the same in the PCRA context as when
      ineffectiveness claims are raised on direct review. Failure to
      establish any prong of the test will defeat an ineffectiveness claim.

Id. at 1162-63 (citations omitted).

      At the evidentiary hearing, Prinkey’s prior PCRA counsel conceded that

he did not advise Prinkey of the potential for the imposition of a mandatory

minimum sentence.      N.T. (PCRA Hearing), 4/21/17, at 21-22.          Counsel

explained that at the time Prinkey filed his 2011 PCRA Petition, the statute

then in effect, 42 Pa.C.S.A. § 9718.2, provided that the Commonwealth must

give notice of its intent to seek the mandatory sentence before trial. See 42

Pa.C.S.A. § 9718.2(d) (2011) (stating that the notice of the application of this

section shall be provided to the defendant before trial).      In 2012, Section

9718.2 was amended to provide that the Commonwealth give notice of its

intent to seek the mandatory sentence before sentencing.           42 Pa.C.S.A.

§ 97182(d) (2012). “[C]ounsel cannot be deemed ineffective for failing to

predict changes in the law.” Commonwealth v. Cousar, 154 A.3d 287, 303

(Pa. 2017) (citations omitted). Further, because counsel had a reasonable




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basis for his actions, we cannot grant Prinkey relief on his ineffectiveness

claim. See Solano, 129 A.3d at 1163.

        In his third claim, Prinkey claims that the imposition of a mandatory

minimum sentence, imposed on remand following a partially successful direct

appeal, violated his constitutional protection against double jeopardy. Brief

for Appellant at 26. Based on our resolution of Prinkey’s first claim, we need

not address this issue. However, we observe that on direct appeal, Prinkey

unsuccessfully challenged the imposition of the mandatory minimum sentence

as violating his constitutional protection against double jeopardy. Prinkey,

125 A.3d 463 (Pa. Super. 2015) (unpublished memorandum at 11). Because

this claim was previously litigated, it is not cognizable under the PCRA. See

42 Pa.C.S.A. § 9543(a)(3) (providing that a petitioner is not eligible for post-

conviction relief if he previously has litigated the allegation of error).

        In his fourth claim, Prinkey argues that his SVP designation, under the

Sexual Offender Registration and Notification Act (“SORNA”),4 is illegal

pursuant to our Supreme Court’s decision in Muniz, and this Court’s

subsequent holding in Butler I.           See Brief for Appellant at 31.     Prinkey

acknowledges that he was “sentenced and classified under Megan’s Law II,

also known as Act 152 of 2004.” Id. Under Megan’s Law II, Prinkey was

required to register as a Tier I offender for 10 years; “however, because he



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4   See 42 Pa.C.S.A. §§ 9799.10-9799.42.

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was determined to be a[n SVP,] he was subject to a lifetime registration

period.” Id. Prinkey recognizes that the adoption of SORNA in 2012 modified

the registration requirements to make him subject to an increased reporting

period, even without the SVP designation. Id.

      Relying on Butler I, Prinkey argues that the SVP determination should

be found “beyond a reasonable doubt” by the factfinder. Id. at 32. On this

basis, Prinkey argues that his designation as an SVP is unconstitutional under

Muniz and Butler I, and must be removed. Id. Prinkey asserts that, once

this designation is removed, he is subject to a 10-year registration period. Id.

at 33.   Relatedly, Prinkey relies upon this Court’s unpublished decision in

Commonwealth        v.   Robinson,    195     A.3d   1003   (Pa.   Super.   2018)

(unpublished memorandum), for the proposition that Butler I should be

applied retroactively to his PCRA Petition. Brief for Appellant at 33-34.

      Prinkey’s argument is premised on his claim that Butler I should be

applied retroactively on collateral appeal, to remove his designation as an SVP.

In Butler I, this Court deemed unconstitutional the SVP assessment provision

of SORNA, 42 Pa.C.S.A. § 9799.24, because “it increases the criminal penalty

to which a defendant is exposed without the chosen fact-finder making the




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necessary factual findings beyond a reasonable doubt.”5 Butler, 173 A.3d at

1218.     On March 26, 2020, however, the Pennsylvania Supreme Court

reversed this Court’s decision in Butler I. See Commonwealth v. Butler,

2020 Pa. LEXIS 1692 (“Butler II”).

        In Butler II, our Supreme Court held that the registration, notification,

and counseling (“RNC”) requirements “applicable to SVPs do not constitute

criminal punishment.” Id. at *44. Therefore, SORNA’s procedural mechanism

for designating sex offenders as SVPs does not violate the principles set forth

in Apprendi v. New Jersey, 530 U.S. 466 (2013), or Alleyn v. United

States, 570 U.S. 99 (2013).           Butler II, 2020 Pa. LEXIS 1692 at **30-

31 (relying on Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007), which

recognized that Apprendi claims cannot succeed where sanctions do not

constitute punishment). The Supreme Court explained that,


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5
 In response to Muniz, the General Assembly passed SORNA II, which
became effective on June 12, 2018. Act of Feb. 21, 2018, P.L. 27, No. 10 (Act
10); Act of June 12, 2018, P.L. 140, No. 29 (Act 29). SORNA II is

        divided into two distinct subchapters — Subchapter H, which
        applies to “individuals who committed a sexually violent offense
        on or after December 20, 2012, for which the individual was
        convicted[,]” 42 Pa.C.S.[A.] § 9799.11(c), and Subchapter I,
        which applies to individuals who committed a sexually violent
        offense “on or after April 22, 1996, but before December 20,
        2012,” and whose period of registration has not yet expired or
        whose registration requirements under a former sexual offender
        registration law have not expired. 42 Pa.C.S.[A.] § 9799.52.

Commonwealth v. Moore, 222 A.3d 16, 20 (Pa. Super. 2019).


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     [a]lthough we recognize the RNC requirements impose affirmative
     disabilities or restraints upon SVPs, and those requirements have
     been historically regarded as punishment, our conclusions in this
     regard are not dispositive on the larger question of whether the
     statutory requirements constitute criminal punishment. This is
     especially so where the government in this case is concerned with
     protecting the public, through counseling and public notification
     rather than deterrent threats, not from those who have been
     convicted of certain enumerated crimes, but instead from those
     who have been found to be dangerously mentally ill. Under the
     circumstances, and also because we do not find the RNC
     requirements to be excessive in light of the heightened public
     safety concerns attendant to SVPs, we conclude the RNC
     requirements do not constitute criminal punishment.

Id., 2020 Pa. LEXIS 1692, *30 (citation omitted).

     Because Butler II provides no basis upon which to vacate Prinkey’s SVP

designation, we cannot grant him relief on this claim. Accordingly, we affirm

the Order of the PCRA court.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2020




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