J-S02003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PAUL MATTEW

                            Appellant                No. 1341 EDA 2013


                    Appeal from the PCRA Order April 5, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007066-2010


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                        FILED FEBRUARY 06, 2015

        Appellant, Paul Mattew, appeals from the April 5, 2013 order

dismissing, without a hearing, his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        After careful

review, we vacate and remand for further proceedings.

        We summarize the relevant factual and procedural history of this case

as follows.    On February 9, 2011, Appellant pled nolo contendere to one

count each of indecent assault and simple assault.1 That same day, the trial

court imposed an aggregate sentence of four years’ probation. Appellant did

not file a direct appeal with this Court.



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1
    18 Pa.C.S.A. §§ 3126(a)(1) and 2701(a)(1), respectively.
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        On January 27, 2012, Appellant filed a timely counseled PCRA petition.

On February 15, 2013, the Commonwealth filed its motion to dismiss

Appellant’s PCRA petition.         On April 5, 2013, the PCRA court dismissed

Appellant’s PCRA petition without an evidentiary hearing.2 On May 3, 2013,

Appellant filed a timely notice of appeal.3

        On appeal, Appellant raises the following three issues for our review.

              (1)    Did the [PCRA] court [] commit error by failing
                     to order and hold an evidentiary hearing to
                     determine if trial counsel’s representation
                     amounted to a violation of his right to counsel
                     under the U.S. (amends. VI & XIV) and
                     Pennsylvania (art. 1, § 9) Constitutions by
                     failing to advise Appellant that he may be
                     subject to state mandatory reporting laws of a
                     foreign jurisdiction under Megan’s Law where
                     counsel knew that Appellant would reside in
                     another state?

              (2)    Whether the PCRA court erred by failing to
                     permit the withdrawal of Appellant’s no contest
                     plea where the [General Assembly] enacted
                     new legislation known as “SORNA” that
                     unconstitutionally and retroactively made the
                     reporting/registration guidelines applicable to
                     Appellant where Appellant’s no contest plea
                     was entered upon reliance that he would not
                     be subject to registration under Megan’s Law
                     and where this was a plea negotiated contract
                     between him and the Commonwealth?
____________________________________________
2
  Also on April 5, 2013, the PCRA court conducted a violation of probation
hearing, at the conclusion of which the PCRA court revoked Appellant’s
probation and sentenced him to a period of incarceration of six to 12
months’ imprisonment, to be followed by two years’ probation.
3
    Appellant and the PCRA court have complied with Pa.R.A.P. 1925.



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               (3)   Whether the PCRA court violated Appellant’s
                     constitutional rights under the U.S. (amends.
                     VIII & XIV) and Pennsylvania (art. 1, § 13)
                     Constitutions by not permitting him to
                     withdraw his no contest plea where newly
                     adopted legislation, imposed ex post facto,
                     would result in cruel and unusual punishment,
                     i.e., retroactive institution of an extended
                     mandatory         reporting/registration  for
                     misdemeanor offenses?

Appellant’s Brief at 5.

      We begin by noting our well-settled standard of review. “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. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      The Sixth Amendment to the Federal Constitution provides in relevant

part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …


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to have the Assistance of Counsel for his defence.”4 U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686; Commonwealth v. Pierce, 527 A.2d

973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.”      Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”       Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted).




____________________________________________
4
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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        We also note that a PCRA petitioner is not automatically entitled to an

evidentiary hearing.     We review the PCRA court’s decision dismissing a

petition without a hearing for an abuse of discretion.      Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).

              [T]he right to an evidentiary hearing on a post-
              conviction petition is not absolute. It is within the
              PCRA court’s discretion to decline to hold a hearing if
              the petitioner’s claim is patently frivolous and has no
              support either in the record or other evidence. It is
              the responsibility of the reviewing court on appeal to
              examine each issue raised in the PCRA petition in
              light of the record certified before it in order to
              determine if the PCRA court erred in its
              determination that there were no genuine issues of
              material fact in controversy and in denying relief
              without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted). “[A]n evidentiary hearing is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”       Roney, supra at 605 (citation

omitted).

        In his first issue, Appellant avers that plea counsel erroneously advised

him that he would not have to register in Delaware under Delaware’s version

of Megan’s Law. Appellant’s Brief at 13. The Commonwealth avers, and the

PCRA court concluded, that Appellant’s claim lacked merit based on our

Supreme Court’s decision in Commonwealth v. Abraham, 62 A.3d 343

(Pa. 2012). Commonwealth’s Brief at 6-7; PCRA Court Opinion, 12/26/13,

at 5.    The Commonwealth and the PCRA court also argue that Appellant’s

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claim is not controlled by the United States Supreme Court’s decision in

Padilla v. Kentucky, 559 U.S. 356 (2010). Id.

     In Padilla, the defendant argued that trial counsel was ineffective for

giving him misleading information about the immigration consequences of

his guilty plea.   Id. at 359.     The Supreme Court concluded that the

defendant had satisfied the first prong of Strickland v. Washington, 466

U.S. 668 (1984), “whether counsel’s representation ‘fell below an objective

standard of reasonableness.’”    Padilla, supra at 366, quoting id. at 688.

The Court summarized the scope of a defense attorney’s duty regarding the

immigration consequences of a guilty plea as follows.

                  Immigration law can be complex, and it is a
           legal specialty of its own. Some members of the bar
           who represent clients facing criminal charges, in
           either state or federal court or both, may not be well
           versed in it. There will, therefore, undoubtedly be
           numerous situations in which the deportation
           consequences of a particular plea are unclear or
           uncertain. The duty of the private practitioner in
           such cases is more limited. When the law is not
           succinct and straightforward … , a criminal defense
           attorney need do no more than advise a noncitizen
           client that pending criminal charges may carry a risk
           of adverse immigration consequences. But when the
           deportation consequence is truly clear, as it was in
           this case, the duty to give correct advice is equally
           clear.




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Id. at 369.      The Court left open the question as to whether Padilla had

shown the required prejudice under Strickland, instead remanding the case

for the Kentucky courts to consider the issue in the first instance.5 Id.

       In Abraham, our Supreme Court held that Padilla did not abrogate

this Commonwealth’s traditional “direct versus collateral consequence”

analysis. Abraham, supra at 350. Essentially, our Supreme Court carved

out immigration from all other collateral consequences.        See id. (stating,

“[a]ccordingly, we hold Padilla did not abrogate application of such analysis

in cases that do not involve deportation[]”).      Our Supreme Court further

concluded, “[Commonwealth v. Frometa, 555 A.2d 92 (Pa. 1989)]’s

general holding remains: a defendant’s lack of knowledge of collateral

consequences of the entry of a guilty plea does not undermine the validity of

the plea, and counsel is therefore not constitutionally ineffective for failure to

advise a defendant of the collateral consequences of a guilty plea.”          Id.

Therefore, the Commonwealth and the PCRA court’s recitation of Padilla

and Abraham is correct.

       However, Appellant argues that counsel affirmatively gave him

erroneous advice about his requirement to register as a sex offender in

Delaware, rather than arguing that counsel failed to outright advise him.


____________________________________________
5
  On remand, the Court of Appeals of Kentucky concluded that Padilla had
shown prejudice and his conviction was vacated.             Padilla v.
Commonwealth, 381 S.W.3d 322, 330 (Ky. Ct. App. 2012).



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Appellant’s Brief at 13.   Our recent cases have drawn a sharp distinction

between these two claims.

                  The Commonwealth is correct that our
           Supreme Court has held that sexual offender
           registration     requirements       are      collateral
           consequences to a defendant’s nolo contendere plea
           and that a defendant’s lack of knowledge of those
           consequences does not undermine the validity of the
           plea. See [Commonweath v. Leddig, 956 A.2d
           399, 406 (Pa. 2008)] (“To the extent that there was
           any confusion following those decisions that the
           registration requirements of Megan’s Law are
           collateral and not direct consequences of a plea or
           other conviction, we settle the issue here: such
           requirements are collateral consequences and, as
           such, a defendant’s lack of knowledge of these
           collateral consequences to his or her pleading guilty
           or nolo contendere fails to undermine the validity of
           the plea.”). However, this Court recently stated:

                 As clear as our case law is that counsel’s
                 omission to mention a collateral consequence
                 of a guilty plea does not constitute ineffective
                 assistance of counsel, it is equally clear that
                 counsel’s    assistance     is    constitutionally
                 ineffective when counsel misapprehends the
                 consequences of a given plea and misleads his
                 client accordingly about those consequences,
                 without regard to whether the consequences in
                 question are “direct” or “collateral.”

           [Commonwealth v. Barndt, 74 A.3d 185, 196 (Pa.
           Super. 2013)] (citations omitted).

Commonwealth v. Lippert, 85 A.3d 1095, 1100-1101 (Pa. Super. 2014).

     As noted above, Appellant’s argument is that trial counsel erroneously

advised him that he would not have to register as a sex offender in

Delaware. Appellant’s Brief at 13. This is a distinct claim from one alleging


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counsel failed to advise him of sex offender registration obligations at all.

See id.       Therefore, the PCRA court’s conclusion as to Abraham’s

applicability in this case was not correct. Consistent with Lippert, Appellant

was entitled to an evidentiary hearing to prove his allegation. 6 See id. at

1101 (stating, “[g]iven our conclusion that Appellant's claim of ineffective

assistance of counsel potentially has arguable merit, we agree with [Lippert]

that he is entitled to an evidentiary hearing in order to attempt to prove his

claim[]”).

       Based on the foregoing, we conclude that the PCRA court abused its

discretion when it dismissed Appellant’s PCRA petition without an evidentiary




____________________________________________
6
  Also as in Lippert, “[f]or the sake of clarity, [on remand] Appellant must
prove all three prongs of the ineffective assistance of counsel standard in
order to receive PCRA relief.” Lippert, supra at 1101. This includes that
his claim affirmatively does have arguable merit insofar that the State of
Delaware can or has required him to register for 15 years as a sex offender
as Appellant avers, since Appellant was not required to register under
Megan’s Law in Pennsylvania as a result of his nolo contendere plea to
indecent assault graded as a second-degree misdemeanor. Cf. Del. Code
Ann. tit. 11, § 4121(a)(4)(c) (stating the definition of sex offender as one
who is or has been, “[c]onvicted of any offense specified in the laws of
another state, commonwealth, territory, or other jurisdiction of the United
States requiring registration in that jurisdiction, or a conviction in any
foreign government, which is the same as, or equivalent to, any of the
offenses set forth in paragraph (a)(4)a., (a)(4)b. or (a)(4)d. …”) (emphasis
added); 42 Pa.C.S.A. § 9795.1(a)(1) (requiring a ten-year registration
period for those convicted under “18 Pa.C.S. § 3126 (relating to indecent
assault) where the offense is graded as a misdemeanor of the first
degree or higher[]) (emphasis added).




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hearing.7 See Roney, supra. Accordingly, the PCRA court’s April 5, 2013

order is vacated, and the case is remanded for further proceedings,

consistent with this memorandum.8

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2015


____________________________________________
7
  Because we conclude that Appellant’s first issue entitles him to relief, we
ordinarily would not need to address his remaining two issues pertaining to
SORNA. However, we note that another trial court judge granted Appellant’s
motion to enforce his plea agreement and concluded SORNA does not apply
to him. The Pennsylvania State Police filed notices of appeal in Appellant’s
case and many other cases with similar postures. This Court consolidated all
of the cases and quashed the Pennsylvania State Police’s appeals for want of
standing. See generally Commonwealth v. Cheeseboro, 91 A.3d 714
(Pa. Super. 2014) (per curiam).          Because SORNA does not apply to
Appellant, his remaining two issues on appeal regarding SORNA’s
applicability and constitutionality are moot.
8
  We decline the Commonwealth’s invitation to affirm the PCRA court’s order
on the basis that Appellant failed to attach a witness certification to his PCRA
petition as required by Section 9545(d)(1). Initially, we note that “it is
improper to affirm a PCRA court’s decision on the sole basis of inadequate
witness certifications where the PCRA court did not provide notice of the
alleged defect.” Commonwealth v. Pander, 100 A.3d 626, 642 (Pa.
Super. 2014) (en banc); accord Pa.R.Crim.P. 905(B). Additionally, as
Appellant’s claim only pertains to legal advice between him and his attorney,
it is unclear who Appellant would call as a witness other than himself.
Presumably, trial counsel would be called as the Commonwealth’s witness.



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