J-S65040-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

CHRISTOPHER L. SWARTZFAGER

                          Appellant                       No. 929 WDA 2013


                  Appeal from the PCRA Order of May 3, 2013
               In the Court of Common Pleas of Venango County
               Criminal Division at No.: CP-61-CR-0000580-1998


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                             FILED AUGUST 25, 2014

      Christopher L. Swartzfager appeals from the May 3, 2013 order

denying his petition for relief pursuant to the Post-Conviction Relief Act

                      §§ 9541-46. We affirm.

      On June 9, 1998, Swartzfager, then nineteen years old, was walking

along railroad tracks with an eleven-year-old girl. Swartzfager threw the girl

to   the   ground   and   pulled   down   her   pants,    exposing   her genitals.

Swartzfager lifted her legs and forced his penis against her genitals.

Swartzfager ceased the assault when the girl informed him that he was

hurting her.    Thus, penetration did not occur.         On September 29, 1998,

based upon these facts, Swartzfager pleaded guilty to one count of criminal

attempt rape. See 18 Pa.C.S. §§ 901(a), 3121. On November 23, 1998,
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Swartzfager was sentenced to sixty-

incarceration.

        On October 11, 2000, in an unpublished memorandum, we rejected

                    nge to the discretionary aspects of his sentence on direct

appeal. See Commonwealth v. Swartzfager, No. 761 WDA 1999, slip op.

at 1, 3 (Pa. Super. Oct. 11, 2000). Swartzfager did not seek allowance of

appeal from the Pennsylvania Supreme Court.

        On October 19, 2001, Swartzfager filed a pro se PCRA petition.

Counsel    was   appointed   to    represent   Swartzfager   during   the   PCRA



PCRA petition was untimely.       Hence, counsel filed a no-merit letter and a

motion to withdraw as counsel. On April 2, 2003, the PCRA court granted



PCRA petition pursuant to Pa.R.Crim.P. 907. Rather than responding to the

notice, Swartzfager filed a notice of appeal. On September 22, 2003, this

                                                         See Commonwealth

v. Swartzfager, No. 830 WDA 2003 (per curiam).               No final order was

entered dismissing the petition.

        In the interim, Swartzfager was released on parole on October 6,

2009.     Upon release, Swartzfager was informed that he would have to



see generally 42 Pa.C.S. §§ 9791, et seq. Swartzfager violated his parole

and currently is incarcerated on the parole revocation.          Upon release,

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Swartzfager will be required to comply with the registration and notification

requirements   of   the   Sex   Offender    Registration   and   Notification   Act

            see generally 42 Pa.C.S. §§ 9799.10, et seq. Notably, neither

of these statutes applied to Swartzfager at the time that he was sentenced

in 1998.

     On December 29, 2011, Swartzfager filed a second pro se PCRA

petition, which the PCRA court dismissed after providing a Rule 907 notice.



petition was timely, and that no final order ever had been entered dismissing



PCRA petition should be treated as an amendment to his timely-filed, still

open 2001 PCRA petition. Commonwealth v. Swartzfager, 59 A.3d 616,

620-21 (Pa. Super. 2012). We remanded the case for the appointment of

new counsel, and for a hearing to determine whether considering the 2011

PCRA petition as an amendment to the 2001 filing would cause prejudice to

the Commonwealth. Id.

     On April 25, 2013, the PCRA court held the mandated hearing.               On

May 3, 2013, that learned court issued its Opinion and Order dismissing

                          tion. On May 28, 2013, Swartzfager filed a notice of

appeal. In response, the PCRA court directed Swartzfager to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On June 17, 2013, Swartzfager timely filed a Rule 1925(b) statement. On

June 20, 2013, the PCRA court entered a Pa.R.A.P. 1925(a) statement,

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       Counsel for Swartzfager initially filed with this Court an Anders1 brief

and a petition to withdraw as counsel.              By memorandum, we rejected

            Anders brief and his motion to withdraw as counsel.                      We

remanded this case for counsel to reconsider the matter in light of this

Cour     en banc decision in Commonwealth v. Hainesworth, 82 A.3d 444

(Pa. Super. 2013) (en banc), and because counsel failed to adequately




Swartzfager constitute unassailable collateral consequences to a plea or



We     instructed   counsel    to   evaluate     these   issues,   and,   after   careful

consideration, decide whether to file a merits brief or another no-merit brief

addressing these issues in more detail.            Counsel has filed a merits brief
____________________________________________


1
        See Anders v. California, 386 U.S. 738 (1967). Apparently, counsel
operated under the mistaken belief that an Anders brief is the proper
mechanism when seeking to withdraw on appeal from the denial of PCRA
relief.   In fact, the proper mechanism under such circumstances is a
Turner/Finley brief. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
However, because an Anders brief provides greater protection to a criminal
                                  Anders brief in lieu of a Turner/Finley
no-merit brief. Commonwealth v. Widgens, 29 A.3d 816, 817 n.2 (Pa.
Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3
(Pa. Super. 2004).




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addressing the applicability of Hainesworth to this case. However, counsel

has not addressed whether SORNA produces the same legal conclusions that
                                      2



       We now turn to the sole issue raised by counsel in his merits brief to



discretion in determining that [Swartzfager] had



       Our standard of review of an order dismissing a PCRA petition is well-

settled:

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the

       is supported by evidence of record and is free of legal error.
       This Court may affirm a PCRA co
       the record supports it. We grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. However, we afford
       no such deference to its legal conclusions. Further, where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review is plenary.



____________________________________________


2
      By filing a merits brief, counsel was entitled to select the issues that
he believed warranted review by this Court. Regardless, we note that this
Court recently has held that SORNA, as historically has been the case with
                      ot punitive, and constitutionally can be applied
retroactively. See Commonwealth v. Perez, --- A.3d ---, 2014 PA Super
142, at *10 (Pa. Super. 2014). Hence, a constitutional challenge to the
retroactive application of SORNA to Swartzfager would prove meritless
pursuant to Perez.



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Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)

(quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012);

internal citations omitted).

      Swartzfager presently argues that, pursuant to Hainesworth, the

PCRA court erred by upholding the requirement that Swartzfager must

register and comply with SORNA. Swartzfager contends that, at the time he

was sentenced in 1998, both the trial court and the assistant district

attorney discussed the fact that the offense to which Swartzfager pleaded

guilty was not subject to sexual offender reporting and registration. Brief for

Swartzfager at 8.    As such, Swartzfager maintains that such requirements

were not part of his initial plea agreement, and that Hainesworth mandates

upholding those terms, which would prohibit application of SORNA upon his

release from prison.

      Swartzfager also recognizes that, in Commonwealth v. Partee, 86

A.3d 245, 249 (Pa. Super. 2014), this Court held that, because a violation of

probation results in an entirely new sentence, the initial terms of a plea

bargain that would have been subject to Hainesworth

be honored.    However, Swartzfager notes that his current incarceration is

due to a parole violation, not a probation violation.       Because a parole

violation commits an offender to prison to continue serving his original

sentence, unlike a probation violation that results in a new sentence,

Swartzfager argues that his current violation falls outside of Partee, and the

initial plea terms should remain subject to Hainesworth.

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     We begin with Hainesworth, in which we considered the effect that

SORNA had on plea negotiations that included agreements pertaining to the

registration and notification requirements for sexual offenders. In Partee,

we set forth a comprehensive discussion of Hainesworth, which follows:

     [I]n Hainesworth, 82 A.3d 444 (Pa. Super. 2013), [] this Court
     specifically enforced a negotiated plea agreement that did not

     Law, despite subsequent amendments to the statute that would
     have subjected him to reporting requirements. Hainesworth
     entered a negotiated guilty plea to three counts each of
     statutory sexual assault and indecent assault, and one count
     each of indecent assault and criminal use of communication
     facility in February 2009. None of these convictions required
     registration under the then-
     42 Pa.C.S. § 9791. Other charges that would have imposed a
     registration requirement were withdrawn by the Commonwealth
     pursuant to the plea negotiations.

     Hainesworth filed a motion seeking to terminate supervision
     effective one week prior to the effective date of SORNA. The
     trial court denied the petition to terminate supervision, but held

     Hainesworth violated due process.

     On appeal, this Court, sitting en banc, concluded first that
     Hainesworth correctly framed the issue as one of contract law,
     and applied the standard of review applicable to whether a plea

     agreement reasonably understood to be the terms of the
                 Hainesworth, supra (quoting Commonwealth v.
     Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989)). We look to

     ambiguities in the terms of the plea agreement are construed
                                    Commonwealth v. Kroh, 654
     A.2d 1168, 1172 (Pa. Super. 1995). The dispositive question

                   Hainesworth, 82 A.3d at 448. We examined the
     record. The terms of the plea agreement were set forth and
     included a discussion of the fact that the offenses to which the
     defendant was pleading guilty did not require registration and

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      supervision   as   a   sex    offender.      We    distinguished
      Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004)
      (Benner was always subject to a reporting requirement, albeit
      ten years instead of a lifetime, and the record did not support
                                                          -registration
      as a term of his plea), and held that the plea agreement


      Hainesworth, 82 A.3d at 448.

Partee, 86 A.3d at 247-48 (citations modified).

      Hence, the operative inquiry for Hainesworth purposes is whether



SORNA were negotiated terms of the plea bargain entered into by the

parties. If such terms were a part of the bargain, then, per Hainesworth,

that agreement will be enforced as such.          If they were not, then

Hainesworth is inapplicable and the subsequent application of SORNA will

not be precluded by the plea bargain.



the terms of the plea bargain as follows:

      C.R. 580, of 1998, pursuant to a written plea agreement with the
      Commonwealth, Mr. Swartzfager will be pleading guilty to Count
      4, Criminal Attempt to Commit Rape, and it is a Felony 1. The
      offense gravity score is 11. Commonwealth agrees to nol pros
      [sic] Counts 1, 2, 3, and 5.




explained to Swartzfager the potential maximum sentence associated with



Felony 1 and carries a maximum of $25,000 in fines and 20 years in jail. So



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                                                                       Id. at 24.

Once the court explained the maximum possible sentence, the court raised

the potential applicability of M



      THE COURT:               [. . . assistant public defender] asked me
                               earlier in chambers whether I felt

                               think it does, but I have to say I spent
                               about a minute on it. Do you have a
                               position on it?

      [ADA]:                                                               I


      THE COURT:
                               If it does, we may have to go through
                               those colloquy questions again.



                               intend to do that unless         someone
                               convinces me it does apply.

      [ADA]:                   I will let you know as soon as possible.

      THE COURT:                                          ly   sure.      It



Id. at 24-25.

      The trial court then identified the written guilty plea agreement, which

Swartzfager signed.    Notably, the written agreement did not contain any

                                               to sexual offender reporting or

registration. Id. at 25-26. The trial court asked Swartzfager if there was

anything else that he believed was, or should have been, in the agreement;




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Swartzfager responded in the negative. Id. at 28. At last, the trial court

                                         Id. at 32.

      It is apparent from the guilty plea colloquy that registration and



                                                                                were not

part of the plea as explained in open court and on the written plea

agreement.       Additionally,    the   parties   did    not     even   know     whether

Swartzfager,     by   taking   the    plea   as   stated,   was    subject      to    those

requirements.     In other words, logically, such terms cannot be said to be

part of a plea agreement when the discussion on the record demonstrates

that no one even knew if they applied.                  Moreover, when given the

opportunity to express his belief that such terms, or any other terms for that

matter, should have been part of the plea agreement as codified in the

written   plea    agreement,      Swartzfager      made     no     mention      of     such



argument that such requirements were a part of his agreement, and

Hainesworth is therefore inapplicable.

                                                                                     Partee

does not control this case. We need not delve deeply into the question of

whether   Partee      should     be   extended    to    parole    violations,    because

Swartz

complicated question.      Indeed, Swartzfager argues that, because he is

currently incarcerated on a parole violation, instead of a probation violation,

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the original terms of his plea agreement should control for purposes of



requirements. However, as we determined above, the original terms of his

plea agreement do not contemplate such requirements, and it is quite clear

that his plea was not conditioned upon the applicability, or, perhaps more

importantly, the inapplicability of such requirements.   Thus, regardless of

whether Partee applies or not, Swartzfager is not entitled to relief, and the

application of SORNA to him upon his release is not unlawful.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




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