J-S73013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN ANDREW SHENK,

                            Appellant                 No. 664 MDA 2014


                     Appeal from the PCRA Order April 1, 2014
                In the Court of Common Pleas of Lancaster County
    Criminal Division at No(s): CP-36-CR-0005517-2011, CP-36-CR-0005519-
                                      2011


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                         FILED DECEMBER 04, 2014

        Kevin Andrew Shenk appeals from the order entered April 1, 2014,

denying his first-counseled PCRA petition. We affirm.

        The Commonwealth charged Appellant with solicitation to commit

statutory sexual assault, unlawful contact with a minor, corruption of a

minor, and terroristic threats at case number 5517-2011.1       In addition, at

case number 5519-2011, the Commonwealth alleged Appellant committed

twenty-four counts of possession of child pornography. Prior to these two

sets of charges being leveled, Appellant had entered a guilty plea to two sex

offenses that transpired on different dates.    However, the guilty plea and

____________________________________________


1
    The terroristic threats charge was dismissed at a preliminary hearing.
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sentencing for those crimes occurred on the same date.         Based on these

prior convictions, Appellant was subject to a mandatory minimum sentence

under 42 Pa.C.S. § 9718.2.2


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2
    42 Pa.C.S. § 9718.2 provides in full:

       (a) Mandatory sentence.--

       (1) Any person who is convicted in any court of this
       Commonwealth of an offense set forth in section 9799.14
       (relating to sexual offenses and tier system) shall, if at the time
       of the commission of the current offense the person had
       previously been convicted of an offense set forth in section
       9799.14 or an equivalent crime under the laws of this
       Commonwealth in effect at the time of the commission of that
       offense or an equivalent crime in another jurisdiction, be
       sentenced to a minimum sentence of at least 25 years of total
       confinement, notwithstanding any other provision of this title or
       other statute to the contrary. Upon such conviction, the court
       shall give the person oral and written notice of the penalties
       under paragraph (2) for a third conviction. Failure to provide
       such notice shall not render the offender ineligible to be
       sentenced under paragraph (2).

       (2) Where the person had at the time of the commission of the
       current offense previously been convicted of two or more
       offenses arising from separate criminal transactions set forth in
       section 9799.14 or equivalent crimes under the laws of this
       Commonwealth in effect at the time of the commission of the
       offense or equivalent crimes in another jurisdiction, the person
       shall be sentenced to a term of life imprisonment,
       notwithstanding any other provision of this title or other statute
       to the contrary. Proof that the offender received notice of or
       otherwise knew or should have known of the penalties under this
       paragraph shall not be required.

       (b) Mandatory maximum.--An offender sentenced to a
       mandatory minimum sentence under this section shall be
       sentenced to a maximum sentence equal to twice the mandatory
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

      minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
      to sentence of imprisonment for felony) or any other provision of
      this title or other statute to the contrary.

      (c) Proof of sentencing.--The provisions of this section shall
      not be an element of the crime, and notice thereof to the
      defendant shall not be required prior to conviction, but
      reasonable notice of the Commonwealth's intention to proceed
      under this section shall be provided after conviction and before
      sentencing. The applicability of this section shall be determined
      at sentencing. The sentencing court, prior to imposing sentence
      on an offender under subsection (a), shall have a complete
      record of the previous convictions of the offender, copies of
      which shall be furnished to the offender. If the offender or the
      attorney for the Commonwealth contests the accuracy of the
      record, the court shall schedule a hearing and direct the offender
      and the attorney for the Commonwealth to submit evidence
      regarding the previous convictions of the offender. The court
      shall then determine, by a preponderance of the evidence, the
      previous convictions of the offender and, if this section is
      applicable, shall impose sentence in accordance with this section.
      Should a previous conviction be vacated and an acquittal or final
      discharge entered subsequent to imposition of sentence under
      this section, the offender shall have the right to petition the
      sentencing court for reconsideration of sentence if this section
      would not have been applicable except for the conviction which
      was vacated.

      (d) Authority of court in sentencing.--There shall be no
      authority in any court to impose on an offender to which this
      section is applicable any lesser sentence than provided for in
      subsections (a) and (b) or to place the offender on probation or
      to suspend sentence. Nothing in this section shall prevent the
      sentencing court from imposing a sentence greater than that
      provided in this section. Sentencing guidelines promulgated by
      the Pennsylvania Commission on Sentencing shall not supersede
      the mandatory sentences provided in this section.

      (e) Appeal by Commonwealth.--If a sentencing court shall
      refuse to apply this section where applicable, the Commonwealth
      shall have the right to appellate review of the action of the
(Footnote Continued Next Page)


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      The Commonwealth indicated that, if Appellant proceeded to trial, it

would seek life imprisonment under its interpretation of the governing

statute. That statute authorized life imprisonment for a third-time offender.

Appellant, on the advice of counsel, entered a negotiated guilty plea.     In

exchange for Appellant’s plea, the Commonwealth agreed to a sentence of

twenty-five to fifty years incarceration to be followed by eight years

probation.    The prison sentence equaled the mandatory minimum for a

second-time offender under § 9718.2.              During the plea proceeding,

Appellant was informed that if his sentences were run consecutively, he

could be sentenced to a maximum of 1,311 years imprisonment. The court

thereafter, on July 12, 2012, accepted Appellant’s plea and sentenced

Appellant to twenty-five to fifty years incarceration and eight years

probation.3   Appellant filed a motion to withdraw, which the court denied.

Appellant did not file a direct appeal.


                       _______________________
(Footnote Continued)

      sentencing court. The appellate court shall vacate the sentence
      and remand the case to the sentencing court for the imposition
      of a sentence in accordance with this section if it finds that the
      sentence was imposed in violation of this section.
3
   The court further ordered a sexually violent predator assessment to be
conducted by the Sexual Offenders Assessment Board. This assessment was
performed after the sentencing and an SVP hearing was conducted on
April 23, 2013. The court found Appellant to be an SVP. This Court has
previously upheld the jurisdiction of a court to hold a sexually violent
predator hearing after sentencing. Commonwealth v. Whanger, 30 A.3d
1212 (Pa.Super. 2011).



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        Approximately two months after Appellant’s plea, on September 14,

2012, this Court decided Commonwealth v. Helsel, 53 A.3d 906

(Pa.Super. 2012).         The Helsel Court held that where a defendant is

sentenced at the same time for two triggering sex offenses, those crimes

count as one conviction for purposes of § 9718.2.               In reaching this

conclusion, the Helsel panel relied on our Supreme Court’s earlier decision

in Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005). Based on Helsel,

Appellant could not have been subject to a sentence of life imprisonment

pursuant to the mandatory sentencing provision.

        Appellant filed a timely pro se PCRA petition on July 1, 2013.       The

court appointed counsel, who filed an amended petition on November 1,

2013.     The court conducted a PCRA hearing on January 27, 2013, and

directed the parties to submit briefs. Counsel then filed what he incorrectly

labeled as an Anders motion to withdraw,4 asserting that Appellant’s issues

did not have arguable merit.             Thereafter, the court denied Appellant’s

petition by order and opinion, but did not permit counsel to withdraw. This

timely appeal ensued. The PCRA court directed Appellant to file and serve a

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

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4
  The proper procedure to withdraw in PCRA cases, frequently confused with
Anders, is governed by Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). Despite counsel’s attempt to withdraw below, he has not filed a
Turner/Finley no-merit brief on appeal.



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Appellant complied, and the PCRA court issued an order indicating that its

prior opinion expressed its reasons for dismissal. The case is now ready for

our review. Appellant presents two issues for this Court’s consideration.

        1. Did the PCRA court err in determining that Appellant could
           not withdraw his guilty plea?

        2. Did the PCRA court err in determining that the trial counsel
           properly advised Appellant as to the applicable mandatory
           sentence under the provisions of 42 Pa.C.S.A. § 9718.2?

Appellant’s brief at 4.

        In conducting review of a PCRA matter, we consider the record “in the

light   most   favorable    to   the   prevailing   party   at   the   PCRA   level.”

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).

Our review is limited to the evidence of record and the factual findings of the

PCRA court.       Id.   This Court will afford “great deference to the factual

findings of the PCRA court and will not disturb those findings unless they

have no support in the record.”        Id.   Thus, when a PCRA court’s ruling is

free of legal error and is supported by record evidence, we will not disturb its

decision.   Id.    Of course, if the issue pertains to a question of law, “our

standard of review is de novo and our scope of review is plenary.” Id.

        Both of Appellant’s claims relate to the effectiveness of plea counsel.

We comprehensively discussed the law regarding ineffectiveness claims in

Commonwealth v. Stewart, 84 A.3d 701 (Pa.Super. 2013) (en banc).

Therein, we opined:




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        “To plead and prove ineffective assistance of counsel a
     petitioner must establish: (1) that the underlying issue has
     arguable merit; (2) counsel's actions lacked an objective
     reasonable basis; and (3) actual prejudice resulted from
     counsel's act or failure to act.” Commonwealth v. Chmiel, 612
     Pa. 333, 30 A.3d 1111, 1127 (2011). Where the petitioner “fails
     to plead or meet any elements of the above-cited test, his claim
     must fail.” Commonwealth v. Burkett, 5 A.3d 1260, 1272
     (Pa.Super. 2010).

            A claim has arguable merit where the factual averments, if
     accurate, could establish cause for relief. See Commonwealth
     v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005) (“if a
     petitioner raises allegations, which, even if accepted as true, do
     not establish the underlying claim . . ., he or she will have failed
     to establish the arguable merit prong related to the claim”).
     Whether the “facts rise to the level of arguable merit is a legal
     determination.” Commonwealth v. Saranchak, 581 Pa. 490,
     866 A.2d 292, 304 n.14 (2005).

           The test for deciding whether counsel had a reasonable
     basis for his action or inaction is whether no competent counsel
     would have chosen that action or inaction, or, the alternative,
     not chosen, offered a significantly greater potential chance of
     success. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874
     (2010). Counsel's decisions will be considered reasonable if they
     effectuated his client's interests. Commonwealth v. Miller,
     605 Pa. 1, 987 A.2d 638 (2009). We do not employ a hindsight
     analysis in comparing trial counsel's actions with other efforts he
     may have taken. Id. at 653.

           “Prejudice is established if there is a reasonable probability
     that, but for counsel's errors, the result of the proceeding would
     have been different. Commonwealth v. Steele, 599 Pa. 341,
     961 A.2d 786, 797 (2008).          A reasonable probability ‘is a
     probability sufficient to undermine confidence in the outcome.’
     Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.
     2006).” Burkett, supra at 1272; Strickland v. Washington,
     466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Stewart, supra at 706-707.




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       Where a petitioner alleges that guilty plea counsel was ineffective, he

must demonstrate that absent counsel’s incorrect advice or failure to advise,

there is a reasonable probability he would have not pled guilty and would

have proceeded to trial, Commonwealth v. Barndt, 74 A.3d 185

(Pa.Super. 2013), or, not relevant here, accepted a plea offer. A defendant

is bound by statements he makes under oath and ordinarily cannot

challenge his plea by claiming that he lied under oath. Commonwealth v.

Pollard, 832 A.2d 517 (Pa.Super. 2003).

       Insofar as Appellant’s first and second issues regarding counsel’s

advice relative to the applicable mandatory sentencing provision overlap, we

will address that argument in discussing his second claim. Appellant in his

first argument also sets forth that counsel was ineffective in failing to review

discovery materials with Appellant. This specific issue was not included in

Appellant’s amended PCRA petition, nor was it set forth in his pro se

petition. Hence, this aspect of Appellant’s argument is waived. 42 Pa.C.S.

§ 9544(b); Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002).5 Similarly,

Appellant’s allegation that counsel did not adequately meet with and discuss

his case was not raised or developed in his pro se or amended petition.

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5
  We note that the PCRA court did not address this argument in its opinion
and Appellant’s Pa.R.A.P. 1925(b) statement does not specify this position.
Thus, his claim relative to discovery is waived for this additional reason.
See Commonwealth v. Butler, 756 A.2d 55 (Pa.Super. 2000), affirmed,
812 A.2d 631 (Pa. 2002).



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Thus, this portion of Appellant’s argument is also waived. Id. Further, plea

counsel testified that he met with Appellant on five to ten occasions to

discuss Appellant’s charges, and Appellant himself acknowledges that he met

with counsel three times while incarcerated.

        Appellant’s second issue on appeal is that counsel incorrectly informed

him that he would be subject to life imprisonment as a third strike sex

offender pursuant to 42 Pa.C.S. § 9718.2. Appellant submits that prior to

his plea, plea counsel instructed him that the Commonwealth was seeking a

mandatory life sentence if he went to trial.     He adds that the prosecuting

attorney in the underlying matter confirmed that she would have pursued a

life sentence.     Appellant argued at his evidentiary hearing that counsel

should have been aware of Shiffler, supra, which the Helsel Court relied

upon.    Under the Shiffler rationale,6 adopted by the Helsel panel in the

context of the sex offender mandatory statute, a person sentenced at the

same time for two qualifying offenses was considered as having one rather

than two convictions.        Therefore, he was only subject to the sentencing

provision as a second-time offender, which provided for a minimum sentence

of twenty-five years. In his view, counsel’s failure to alert him that he would

not be subject to a mandatory life sentence under 42 Pa.C.S. § 9718.2,

coerced him into pleading guilty.
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6
  Shiffler involved 42 Pa.C.S. § 9714, a three strikes statute for those who
committed crimes of violence.



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      On appeal, Appellant asserts that plea counsel should have somehow

combed this Court’s records to learn of the undecided pending Helsel case.

He maintains that counsel’s failure to locate the pending decision in Helsel,

had no reasonable basis and could “have been discovered through basic

legal research.”     Appellant’s brief at 15.   Appellant continues that had

counsel discovered that the issue was pending before this Court, Appellant

could have delayed his plea.

      We find Appellant’s arguments on appeal to be without merit. Basic

legal research could not uncover every issue pending before this Court. This

Court routinely handles in excess of 7,500 appeals in a calendar year. The

vast majority of decisions by this Court result in unpublished memorandum

decisions.    Unlike   the Supreme Court, whose caseload is primarily

discretionary, we do not issue orders of public record indicating what issues

are pending before this Court. To place the burden on defense counsel of

uncovering pending issues before this Court in advising a client is untenable.

      However, we do not discount that there are situations where counsel

may be held ineffective even where caselaw has not been decided on the

question at issue.     This does not contradict the well-established principle

that counsel cannot be ineffective for failing to anticipate a change in the

law. Commonwealth v. Rollins, 738 A.2d 435, 451 (Pa. 1999). A case

involving statutory interpretation that is the first time the statute has been

interpreted is not a new rule of law nor is it a change in the law. Fiore v.


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White, 757 A.2d 842 (Pa. 2000). Thus, in situations where the statutory

interpretation of the statute in question is relatively clear on its face, counsel

could be ineffective.      See Commonwealth v. Jones, 416 A.2d 539

(Pa.Super. 1979). This case, however, does not present such a situation.

      The Helsel Court’s interpretation involved a nuanced application of the

mandatory statute. While counsel certainly could have instructed his client

that based on Shiffler, it was possible that this Court would preclude a life

sentence under a recidivist rationale, it was not ineffective assistance to

advise him of the possibility of another potential outcome.      Furthermore, we

cannot agree       with Appellant   that   counsel’s   informing him      that the

Commonwealth would seek imposition of life imprisonment caused an

unknowing plea, where even absent the mandatory statute, Appellant faced

the equivalent of a life sentence if convicted of the numerous charges

against him.      Instantly, had counsel anticipated Helsel and told Appellant

that based on Shiffler, a life sentence under the mandatory would be

improper, he still faced the possibility of serving the rest of his life in prison.

Indeed, the Court advised Appellant at the plea hearing that he faced a

possible maximum sentence of 1,311 years.

      Here, the guilty plea colloquy demonstrates that Appellant knew the

nature of the charges against him as well as the possibility of minimum

sentences    of     311   years   incarceration,   absent   application    of   the




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mandatories.7      Thus, the voluntariness of Appellant’s plea is established.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). Appellant

is entitled to no relief.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




____________________________________________


7
   We note that the sentencing court and plea counsel at the guilty plea
hearing correctly treated Appellant as a second-time offender under 42
Pa.C.S. § 9718.2.



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