J-S23039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TYLER ALLAN OBERT                          :
                                               :
                      Appellant                :   No. 1627 WDA 2018

            Appeal from the PCRA Order Entered November 1, 2018
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000737-2013


BEFORE:      BENDER, P.J.E., NICHOLS, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                   FILED JUNE 04, 2019

        Appellant,   Tyler   Allan    Obert,   appeals   from   the   order   entered

November 1, 2018, that dismissed his first petition filed under the Post

Conviction Relief Act (“PCRA”)1 without an evidentiary hearing. After careful

review, we are constrained to affirm.

        On March 7, 2014, Appellant pleaded guilty to one count each of

statutory sexual assault and corruption of minors.2             The Commonwealth

nolle prossed six additional counts of statutory sexual assault, one count of




____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. §§ 3122.1(a)(1) and 6301(a)(1)(i), respectively.



*     Retired Senior Judge assigned to the Superior Court.
J-S23039-19


unlawful contact with minor, one additional count of corruption of minors,

and seven counts of indecent assault.3

       On April 23, 2014, Appellant was sentenced to time served (272 days)

to 23 months and 29 days of confinement with a concurrent four years of

probation.      Appellant     was    immediately     paroled,   subject   to   multiple

conditions, including:

       During [Appellant]’s supervision on [both counts], he shall have
       no internet access at all through any computer[,] electronic
       device, smart phone or any other means, whether he owns it or
       otherwise. It is the [trial c]ourt’s intention that he have no
       internet access through anybody’s device and it would be a
       violation if he uses someone else’s device to do so.

Sentence Order, 4/23/2014, at ¶ 7.4              Hereinafter, we shall refer to this

condition of Appellant’s supervision as the “Internet Ban.” Appellant did not

file a post-sentence motion or a direct appeal.


____________________________________________


3 18 Pa.C.S. §§ 3122.1(a)(1), 6318(a)(1), 6301(a)(1)(ii), and 3126(a)(8),
respectively.
4 The notes of testimony from Appellant’s April 2014 sentencing hearing
were not transcribed. Accordingly, we do not know the underlying facts of
this case, and we cannot determine what Appellant was told by his counsel,
the Commonwealth, or the trial court on the record during this hearing,
whether Appellant acknowledged that he understood the terms of his
probation, or whether he objected to any of the conditions. Consequently,
we must rely entirely upon the written sentencing order.

This   omission    “encumbered     our    consideration   of   this   appeal.”
Commonwealth v. Medina, 2019 PA Super 119, *2 n.3 (filed April 17,
2019) (quoting Erie Insurance Exchange v. Moore, 175 A.3d 999, 1005-
06 (Pa. Super. 2017)). “Ultimate responsibility for a complete record rests
with the party raising an issue that requires appellate court access to record
(Footnote Continued Next Page)


                                           -2-
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      On April 20, 2017, a notice of alleged violations of probation (“NOAV”)

was filed by the Adult Probation, Parole, and Intermediate Punishment

Department of Crawford County, claiming that Appellant “admitted to” his

probation officer “that he had used the internet multiple times recently.”

NOAV, 4/20/2017, at 1.

      On May 24, 2017, the trial court held a violation of probation (“VOP”)

hearing.   During the hearing, Appellant’s probation officer testified that he

reviewed Appellant’s Xfinity WiFi log-in history, from April 1 to April 18,

2017, which showed that Appellant had accessed online video games during

that period.     N.T., 5/24/2017, at 11, 21.    The probation officer further

testified that, when he and his supervisor asked Appellant about his WiFi

log-in history, Appellant admitted that he had used the Internet to play

video games or to order video game equipment. Id. at 16.

      The probation officer acknowledged that he and his supervisor had

given Appellant permission to upload his electronic time sheets online, where

Appellant’s employer provided no other means of submitting them.       Id. at

14.    However, the probation officer asserted that he made it clear to

Appellant that he could only use one of his employer’s secure terminals while


(Footnote Continued) _______________________

materials[,]” Note to Pa.R.A.P. 1921 – i.e., Appellant had the responsibility
to verify that all materials necessary for appellate review were made part of
the certified record, including the notes of testimony from his 2014
sentencing.



                                          -3-
J-S23039-19


being observed by his manager at work and that Appellant could not access

the Internet in any other form. Id. at 14-15.5

       Also during the hearing, both the probation officer and Appellant’s VOP

counsel     acknowledged        that    Appellant’s   mental   health   counselor,

Martin Richards, was present in the courtroom. Id. at 13-14, 24, 32. VOP

counsel presented a report written by Richards. Id. at 24. The report does

not appear in the certified record nor is it listed on the exhibit sheet. 6

Nevertheless, according to the trial court, Richards’s report was dated the

same day as the VOP hearing, May 24, 2017, and stated that Appellant felt

“frustration with the [I]nternet [B]an” and asserted that, “[w]ith no access

[to the Internet,] it is very difficult to function in this day and age[.]”

Memorandum and Order, 10/4/2018, at 5. The portion of Richards’s report

quoted by the trial court did not state nor did VOP counsel represent that

Richards would testify that Appellant never used the Internet while on




____________________________________________


5  The probation officer additionally testified that, when Appellant began his
parole, he had reviewed the terms and conditions of Appellant’s supervision
with Appellant, and Appellant had signed a form stating that he received the
list of conditions. N.T., 5/24/2017, at 6-7. The form was admitted as
Commonwealth’s Exhibit 1.
6 Again, “the state of the record . . . has encumbered our consideration of
this appeal. . . . Omissions like these significantly impair our ability to
consider an appeal.” Medina, 2019 PA Super 119, *2 n.3 (quoting Erie,
175 A.3d at 1005-06).




                                           -4-
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probation or only used it at work while under his manager’s supervision.

See id.; see generally N.T., 5/24/2017.7

       At the conclusion of the VOP hearing, the trial court found Appellant

violated the terms of his probation due to his Internet usage – specifically,

his use of the Internet to play video games online. Order, 5/24/2017, at 1.8

Appellant was re-sentenced to five years of probation, and all prior

conditions of his probation, including the Internet Ban, were re-imposed.

N.T., 5/24/2017, at 35; Order, 5/24/2017, at 1. Appellant did not challenge

the reinstatement of the Internet Ban as a condition of his VOP sentence

before the end of his VOP hearing, and he did not file post-sentence motions

or a direct appeal.

       On May 11, 2018, Appellant filed his first, pro se PCRA petition,

arguing that his probation officer told him that he could use the Internet

with supervision and that the Internet Ban is a violation of his constitutional

right to freedom of speech. PCRA Petition, 5/11/2018, at 3. He requested

an evidentiary hearing and stated that he would call Richards to testify that

“[h]e talked to my PO to make sure he said it was OK to use the internet.”




____________________________________________


7In fact, during closing arguments, VOP counsel admitted that Appellant had
used “internet access only recently for games.” N.T., 5/24/2017, at 32.
8 The order was dictated by the trial court at the end of the VOP hearing.
Id. at 34-35.



                                           -5-
J-S23039-19


Id. at 6.   Additionally, the petition pleaded that Appellant had asked VOP

counsel to file a direct appeal, which counsel did not do. Id. at 3.

      On May 18, 2018, the PCRA court appointed counsel to represent

Appellant and ordered PCRA counsel to file an amended petition within 45 of

days of the date of the order. On July 17, 2018, the PCRA court scheduled

“a PCRA argument” – not an evidentiary hearing -- for September 24, 2018.

      After being granted an extension of time, on August 29, 2018, PCRA

counsel filed an amended PCRA petition, which pleaded, in pertinent part:

      12. An evidentiary hearing is necessary to elicit sworn
      testimony from [VOP counsel] regarding his decision to not call
      Martin Richards as a witness during the aforementioned
      proceeding. . . .

      14. Richards would testify that he spoke directly to
      [Appellant’s probation officer], and [the probation officer]
      confirmed that [Appellant] was permitted to use the internet
      under supervision. . . .

      16. [Appellant]’s position is that he is eligible for relief under
      the [PCRA] because his PCRA Petition was filed timely as
      required by 42 Pa.C.S.A. § 9545(b)(1)(ii), and the decision of
      Com[monwealth] v. Cappello, 823 A.2d 936 (Pa.Super.
      2003), and he suffered from the ineffectiveness of counsel by
      [VOP counsel], in that:

         a. [VOP counsel] refused to call a witness[, Richards,] who
         was present and willing to testify.

            i.    Said witness’s testimony would contradict and
            diminish the credibility of the Commonwealth’s
            witness.

            ii.    Said witness’s testimony would also bolster the
            [Appellant]’s position with respect to the alleged
            violations.

         b. [VOP counsel] was ineffective in refusing to file an
         appeal on behalf of [Appellant]. The substance of which is

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J-S23039-19


        memorialized within a letter written by [VOP counsel] to
        [Appellant], which letter is attached hereto, marked
        Exhibit “A” and incorporated herein as though fully set
        forth at length.

     17. If [Appellant] is granted a new hearing and/or his
     appellate rights, [Appellant] will also be raising issues with
     respect to the constitutionality of the condition of [Appellant]’s
     probation that he refrain from using the internet, generally. See
     Packingham v. North Carolina, 137 S. Ct. 1730 (2017); see
     also Mutter v. Ross, 811 S.E. 2d 866 (W. Va. 2018); but see
     Com[monwealth] v. Hartman, 908 A.2d 316, 321 (Pa.Super.
     2006).

Amended PCRA Petition, 8/29/2018, at ¶¶ 12, 14, 16-17.

     PCRA counsel attached to the amended PCRA petition the above-

referenced letter from VOP counsel to Appellant discussing his reasons for

not filing an appeal.   Id., Ex. “A”.    The letter makes no reference to the

Internet Ban being a violation of Appellant’s constitutional rights or

otherwise improper, including no suggestion that such a claim could have

been raised on direct appeal. See generally id.

     Additionally, Appellant’s amended PCRA petition did not assert that, if

called to testify, Richards would aver that Appellant never used the Internet

or did not use the Internet at the times alleged by his probation officer. See

generally Amended PCRA Petition, 8/29/2018.




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       On September 24, 2018, the PCRA court held a hearing, during which

the parties presented argument but no evidence.9 On October 4, 2018, the

PCRA court entered a notice of intent to dismiss all claims without an

evidentiary hearing pursuant to Pa.R.Crim.P. 907 and an accompanying

memorandum explaining its reasoning. Memorandum and Order, 10/4/2018

[hereinafter “Rule 907 Notice”].          On November 1, 2018, the PCRA court

dismissed Appellant’s petition. On November 13, 2018, Appellant filed this

timely appeal.10

       Appellant presents the following issue for our review:

       Whether the [t]rial [c]ourt erred in denying [Appellant]’s . . .
       Amended Petition for Post-Conviction Relief . . . without the
       benefit of an evidentiary hearing?

Appellant’s Brief at 4.11


____________________________________________


9 During argument, Appellant withdrew any “request to have his direct
appeal rights reinstated.” N.T., 9/24/2018, at 7.
10 Appellant filed his statement of errors complained of on appeal on
December 6, 2018. On December 11, 2018, the PCRA court entered an
order that its Rule 907 Notice would serve as its opinion pursuant to
Pa.R.A.P. 1925(a).

11 Despite only listing one issue in his statement of questions involved
pursuant to Pa.R.A.P. 2116, Appellant divides the “Argument” section of his
brief to this Court into four subsections, each with a separate heading, hence
violating Pa.R.A.P. 2119(a), which mandates that “argument shall be divided
into as many parts as there are questions to be argued.”

       The briefing requirements scrupulously delineated in our
       appellate rules are not mere trifling matters of stylistic
       preference; rather, they represent a studied determination by
(Footnote Continued Next Page)


                                           -8-
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      “We review the denial of PCRA relief to decide whether the PCRA

court’s factual determinations are supported by the record and are free of

legal error.”    Commonwealth v. Medina, 2019 PA Super 119, *8 (filed

April 17, 2019) (quoting Commonwealth v. Brown, 196 A.3d 130, 150

(Pa. 2018)).

      Appellant now contends that the PCRA court erred in dismissing his

amended PCRA petition without an evidentiary hearing, because his VOP

counsel12 was ineffective for failing: (1) to call Richards as a witness; and

(2) to “argue that the general [I]nternet [B]an” was improper. Appellant’s

Brief at 14-16, 19-21.




(Footnote Continued) _______________________

      our Court and its rules committee of the most efficacious manner
      by which appellate review may be conducted so that a litigant’s
      right to judicial review as guaranteed by Article V, Section 9 of
      our Commonwealth’s Constitution may be properly exercised.

Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011).

12  We assume that all references to “counsel” throughout Appellant’s brief
refer to VOP counsel, although the brief never clarifies whether it is referring
to VOP counsel or to Appellant’s original guilty plea counsel. In the context
of whether “counsel” should have called Richards as a witness, the only
counsel for which such a claim makes sense is VOP counsel. Ergo, we read
all references to “counsel” in Appellant’s brief to mean VOP counsel.




                                          -9-
J-S23039-19


     Ineffective Assistance for Failure to Call Richards as a Witness

       Appellant first urges this Court to conclude that his VOP counsel was

ineffective for failing to call Richards as a witness.13

       In establishing whether defense counsel was ineffective for
       failing to call witnesses, [A]ppellant must [still] prove (1) the
       witness existed; (2) the witness was available to testify for the
       defense; (3) counsel knew of, or should have known of, the
       existence of the witness; (4) the witness was willing to testify for
       the defense; and (5) the absence of the testimony of the witness
       was so prejudicial as to have denied the defendant a fair
       trial.[14]

Medina, 2019 PA Super 119, *11 (quoting Commonwealth v. Treiber,

121 A.3d 435, 463–64 (Pa. 2015) (citations omitted)).

       At the VOP hearing, both Appellant’s probation officer and VOP counsel

acknowledged that Richards was present in the courtroom. N.T., 5/24/2017,

at 14, 24, 32. Consequently, Richards existed and was available to testify,

and VOP counsel knew of Richards’s existence. See Medina, 2019 PA Super

119, *11.

       Nevertheless, Appellant did not assert that Richards was willing to

testify “for the defense[.]”        Id.   To the extent that the amended PCRA

petition was implying that Richards’s testimony would be “for the defense[,]”
____________________________________________


13Appellant preserved this issue in his amended PCRA petition.         Amended
PCRA Petition, 8/29/2018, at ¶ 16.
14The PCRA court only analyzed this issue pursuant to the prejudice prong.
Rule 907 Notice, 10/4/2018, at 5. Yet, “this Court may affirm a PCRA
court’s decision on any grounds if the record supports it.” Medina, 2019 PA
Super 119, *11 n.8 (citation and internal brackets omitted).



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Appellant still had to “prove” this prong. Id. The amended PCRA petition

did not include an affidavit or any sworn statement from Richards that he

would testify for the defense – Appellant only baldly pleaded it in the

amended petition.       Appellant likewise did not provide any evidence to

“prove” that Richards “was willing to testify for the defense[.]”         Id.

Nonetheless, we will accept the assessment of the trial court: “While it is

not clear that the witness was willing to testify for the defense, since he

issued a report and was present we believe we can conclude that he was.”

Rule 907 Notice at 5.

      Assuming we accept that Appellant has fulfilled the first four prongs of

the test to determine if defense counsel was ineffective for failing to call a

witness, Appellant still failed to satisfy the final prong, prejudice. Medina,

2019 PA Super 119, *11. Richards’s report contradicts Appellant’s averment

that Richard would have testified that he heard Appellant’s probation officer

tell Appellant that Appellant was allowed to use the Internet, because the

report explicitly refers to the “internet ban” and states that Appellant had

“no access[.]”

      More importantly, Appellant never argues that, if called as a witness,

Richards would have testified that Appellant never used the Internet

following his release from incarceration, that Appellant did not use the

Internet at the times alleged, or that Richards saw someone else using

Appellant’s gaming or other electronic devices.    See generally Amended


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J-S23039-19


PCRA Petition, 8/29/2018; Appellant’s Brief.        The sentencing order was

unambiguous that Appellant was not permitted to use the Internet for any

reason and that doing so was a violation of his probation:

      During [Appellant]’s supervision on [both counts], he shall have
      no internet access at all through any computer[,] electronic
      device, smart phone or any other means, whether he owns it or
      otherwise. It is the [trial c]ourt’s intention that he have no
      internet access through anybody’s device and it would be a
      violation if he uses someone else’s device to do so.

Sentence Order, 4/23/2014, at ¶ 8 (emphasis added).               None of the

testimony that Appellant alleges that Richards would have given establishes

that Appellant did not access the Internet and, ergo, did not violate this term

of his probation.   Hence, the absence of Richards’s testimony was not so

prejudicial as to deny Appellant a fair hearing. See Medina, 2019 PA Super

119, *11. As in Medina, Appellant has thereby “failed to fulfill one of the

prongs of the test to establish that defense counsel was ineffective for failing

to call a witness, and his entire ineffectiveness claim based on . . . counsel’s

failure to call [a] witness[] collapses.” Id. at *12.

      As Appellant is not entitled to PCRA relief on his first challenge, he is

likewise not entitled to an evidentiary hearing on that claim. Id. at *14-*15

(citing Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa. Super. 2018)

(en banc) (“A petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine

issue concerning any material fact, the petitioner is not entitled to PCRA

relief, and no purpose would be served by any further proceedings.”)).


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                                Internet Ban

      Preliminarily, we observe that Appellant’s amended PCRA petition,

concise statement, and brief to this Court are all inartfully worded.      We

therefore have difficulty discerning the exact nature of Appellant’s second

claim.   Frankly, we can read four different potential challenges into

Appellant’s pleadings: (1) a challenge to the Internet Ban as a condition of

his 2014 sentence; (2) a challenge to the Internet Ban as a condition of his

2017 sentence; (3) a claim that his VOP counsel was ineffective for failing to

challenge the Internet Ban as a condition of his 2014 sentence; and (4) a

claim that his VOP counsel was ineffective for failing to challenge the

Internet Ban as a condition of his 2017 sentence. We will address each of

these challenges in turn.

     Challenge to the Internet Ban as a Condition of the 2014 Sentence

      In its brief to this Court, the Commonwealth assumes that Appellant is

challenging the Internet Ban as a condition of his 2014 sentence.

Commonwealth’s Brief at 7-8.      The Commonwealth therefore asserts that

this issue is untimely. Id.

      Generally, a petition for relief under the PCRA must be filed within one

year of the date the judgment of sentence is final, unless the petition alleges

and the petitioner proves one of the three exceptions to the time limitations




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for filing the petition set forth in section 9545(b) of the statute.       See 42

Pa.C.S. § 9545(b)(1).15

       As noted above, Appellant did not challenge the validity of the Internet

Ban as a condition of his 2014 probationary sentence through a post-

sentence motion or on direct appeal.16              Accordingly, Appellant’s 2014

judgment of sentence became final 30 days after his sentencing -- May 23,

2014. Pa.R.A.P. 903(a). Appellant had one year thereafter to file a PCRA

petition – i.e., until May 26, 2015.17         42 Pa.C.S. § 9545(b)(1).   Appellant

____________________________________________


15   The three exceptions to the timeliness requirement are:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this
       Commonwealth or the Constitution or laws of the United States;

       (ii) the facts upon which the claim is predicated were unknown
       to the petitioner and could not have been ascertained by the
       exercise of due diligence; or

       (iii) the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or the
       Supreme Court of Pennsylvania after the time period provided in
       this section and has been held by that court to apply
       retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).
16 Additionally, Appellant did not file a PCRA petition from his 2014 sentence
prior to his 2017 VOP sentencing.
17One year after May 23, 2014, was Saturday, May 23, 2015; the following
Monday, May 25, 2015, was Memorial Day, a legal holiday. See 1 Pa.C.S.
§ 1908 (“Whenever the last day of any such period shall fall on Saturday or
Sunday, or on any day made a legal holiday by the laws of this
(Footnote Continued Next Page)


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filed the current petition on May 11, 2018, more than two years late.

Therefore, to the extent that Appellant’s petition challenges the conditions of

his 2014 sentence, it was patently untimely, and Appellant’s amended PCRA

petition does not plead a timeliness exception to the requirements of the

PCRA.

      Assuming       the    amended       PCRA    petition’s   challenge   to   the

appropriateness of the conditions of his 2014 sentence were timely, this

issue would be waived, because Appellant could have challenged it as part of

a direct appeal following his 2014 sentencing, but he failed to do so. See 42

Pa.C.S. § 9544(b) (“for purposes of [the PCRA], an issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state postconviction proceeding.”).

      Thus, the Commonwealth is correct that the PCRA court was without

jurisdiction to review the merits of any challenge to the conditions of the

2014 sentence. Assuming arguendo that this issue were timely pleaded in a

PCRA petition, it is waived and merits no relief.

      Challenge to the Internet Ban as a Condition of the 2017 Sentence

      The VOP court reinstated the Internet Ban when it sentenced Appellant

in 2017. N.T., 5/24/2017, at 35; Order, 5/24/2017, at 1. Consequently, to

(Footnote Continued) _______________________

Commonwealth or of the United States, such day shall be omitted from the
computation.”). Consequently, the next business day was Tuesday, May 26,
2015.



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J-S23039-19


the extent that the amended PCRA petition challenges the propriety of the

reinstatement of the Internet Ban as a condition of the 2017 sentence, we

must consider whether this PCRA claim was timely.

       If Appellant is challenging the Internet Ban as a condition of the 2017

sentence, then, as with any case “where a new sentence is imposed at an

intermediate punishment revocation hearing,” the VOP hearing date “must

be employed when assessing finality . . . to any issues . . . appealable from

that hearing.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.

2007) (citations and internal brackets omitted).

       [A] probation revocation and resentencing “reset the clock” for
       purposes of determining the timeliness of a PCRA petition.

       That is, where the issues presented in the PCRA petition relate to
       the validity of the probation revocation hearing or the legality of
       the new sentence, then the timeliness of the PCRA petition is
       calculated using the date when the probation revocation
       sentence was imposed.

Commonwealth v. Garcia, 23 A.3d 1059, 1062 n.3 (Pa. Super. 2011)

(citations omitted); see also Fowler, 930 A.2d at 592.

       Appellant’s 2017 judgment of sentence became final 30 days after his

sentencing – June 23, 2017.           Pa.R.A.P. 903(a).   Appellant had one year

thereafter to file a PCRA petition – i.e., until June 25, 2018.       42 Pa.C.S.

§ 9545(b)(1).18 Appellant’s pro se PCRA petition was filed on May 11, 2018.


____________________________________________


18June 23, 2018, was a Saturday; the next business day thereafter was
Monday, June 25, 2018. See id.



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Thus, assuming Appellant is challenging the Internet Ban as a condition of

his 2017 sentence, his PCRA petition was timely filed.

      Nevertheless, Appellant could have challenged it as part of a direct

appeal following his 2017 sentencing, but he failed to do so. Thus, this issue

is waived. See 42 Pa.C.S. § 9544(b) (“for purposes of [the PCRA], an issue

is waived if the petitioner could have raised it but failed to do so before trial,

at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.”).

Claim that VOP Counsel was Ineffective for Failing to Challenge the Internet
                Ban as a Condition of the 2014 Sentence

      Any challenge to the effectiveness of VOP counsel inherently arises

from the VOP hearing and thus is timely. As “claims of ineffective assistance

of   counsel   generally   should   be   deferred   until   collateral   review[,]”

Commonwealth v. Rivera, 199 A.3d 365, 372 n.3 (Pa. 2018), Appellant

did not have an opportunity to raise an ineffectiveness claim against VOP

counsel prior to this first PCRA petition following his 2017 VOP sentence.

Thus, this issue is not waived pursuant to 42 Pa.C.S. § 9544(b).

      We must then consider whether this issue was included in Appellant’s

PCRA petition.    In his amended PCRA petition, Appellant alleged:              “If

[Appellant] is granted a new hearing and/or his appellate rights,

[Appellant] will also be raising issues with respect to the constitutionality of

the condition of [Appellant]’s probation that he refrain from using the

internet, generally.” Amended PCRA Petition, 8/29/2018, at ¶ 17 (emphasis

                                      - 17 -
J-S23039-19


added) (citations omitted). The amended PCRA petition does not allege that

VOP counsel was ineffective for failing to argue against or to object to the

Internet Ban as a condition of the 2014 sentence – only that Appellant would

challenge the Internet Ban if he were given another VOP hearing or if his

appellate rights were reinstated.19            Accordingly, this claim is waived,

because Appellant failed to include it in his PCRA petition:

       Regardless of the reasons for [an a]ppellant’s belated raising of
       [an] issue, it is indisputably waived. We have stressed that a
       claim not raised in a PCRA petition cannot be raised for the first
       time on appeal. We have reasoned that permitting a PCRA
       petitioner to append new claims to the appeal already on review
       would wrongly subvert the time limitation and serial petition
       restrictions of the PCRA. The proper vehicle for raising this claim
       is thus not the instant appeal, but rather is a subsequent PCRA
       petition.

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (internal

brackets, citations, and quotation marks omitted); accord Commonwealth

v. Reid, 99 A.3d 470, 494 (Pa. 2014).

Claim that VOP Counsel was Ineffective for Failing to Challenge the Internet
                Ban as a Condition of the 2017 Sentence

       Any claim that VOP counsel was ineffective for failing to challenge the

Internet Ban as a condition of the 2017 sentence is waived for the same

reasons that the ineffectiveness claim for failing to challenge this condition

of the 2014 ban was found to be waived, above.
____________________________________________


19Appellant later withdrew his request to have his appellate rights reinstated
nunc pro tunc. N.T., 9/24/2018, at 7.




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                                 *     *      *

      At the beginning of this decision, we stated that we were “constrained

to affirm.” We are deeply troubled by the result of this case, because we

agree with Appellant that the trial court and the VOP court should not have

ordered an Internet Ban as a probationary condition without additional

findings of fact.

      In considering the validity of the Internet Ban, the trial court relies

solely upon Commonwealth v. Hartman, 908 A.2d 316 (Pa. Super. 2006),

stating:   “In that case the Court held that a condition of supervision

forbidding a defendant to access the internet was appropriate.      Therefore,

we do not find there is merit to that issue.”     Rule 907 Notice at 4.    The

appellant in Hartman was convicted of possession of child pornography that

was discovered on his computer. 908 A.2d at 318.

      However, the trial court wholly disregards this Court’s more recent

decision, Commonwealth v. Houtz, 982 A.2d 537 (Pa. Super. 2009). In

that case, as in the current action, “the trial court placed upon [the

a]ppellant’s probation a condition that [the appellant] not possess or have

access to a computer, or otherwise access the Internet, which [the

a]ppellant claim[ed] is unduly restrictive[.]” Id. at 540. In that appeal, we

agreed with the appellant that “the trial court’s computer/Internet restriction

as a condition of Appellant’s probation” was “not tailored to the offense

committed . . . when there is no nexus between the offense charged and


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access to a computer/Internet[,]” where the appellant had been convicted of

corruption of a minor and indecent assault.        Id. at 537, 541.   This Court

continued:

       The trial court’s reliance upon Commonwealth v. Hartman,
       908 A.2d 316 (Pa.Super.2006), to buttress its prohibition of
       Appellant’s use of a computer/Internet misses the mark because
       Hartman’s crime involved having child pornography on the hard
       drive of his computer.      Herein, there is no evidence that
       Appellant’s sexual offense involving a minor child was facilitated
       by or incorporated the use of a computer/Internet. . . .

       Moreover, this Court’s attention . . . centers upon the absence of
       any facts recited by the Commonwealth or the trial court which
       would allow this Court to conclude that such a restriction is
       reasonably related to Appellant’s rehabilitation.         See 42
       Pa.C.S.A. § 9754. Stated otherwise, there is no evidence that
       Appellant used the computer/Internet for sexually explicit
       material    involving   minors     or    that    she   used    the
       computer/Internet as a source to establish and cultivate
       inappropriate relationships.

       For all of the reasons set forth above, we hold that the trial
       court’s denial of Appellant’s petition to strike the condition of
       probation prohibiting her use of a computer and/or access to the
       Internet is unreasonable and inappropriate.            Contrast
       Hartman, 908 A.2d at 321 (“[A] defendant who uses his
       computer and other Internet capable equipment to access
       pornographic photographs of young girls [may] be prohibited
       from using a computer or other Internet capable equipment
       while on probation.”). Accordingly, we reverse the judgment of
       sentence and remand to remedy the probation portion of
       Appellant’s sentence.

Id. at 540-41.20

____________________________________________


20 Although Houtz is almost a decade old, its conclusion that an Internet ban
for offenders serving probation or parole is only appropriate where the
underlying crime involved use of the Internet aligns with current
jurisprudence across the majority of jurisdictions. See, e.g., United States
(Footnote Continued Next Page)


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J-S23039-19



(Footnote Continued) _______________________

v. Eaglin, 913 F.3d 88 (2nd Cir. 2019) (rejected internet bans for
defendants on parole/probation where the underlying crime did not involve
use of the Internet); United States v. Halverson, 897 F.3d 645 (5th Cir.
2018) (Internet restrictions during parole or probation only permitted when
the underlying crime involved use of the Internet and probation/parole
officer could approve an exception allowing Internet access, provided such
approval is in advance and in writing); United States v. Rock, 863 F.3d
827 (D.C. Cir. 2017) (internet restrictions during parole or probation only
permitted when the underlying crime involved use of the Internet); K.G. v.
New Jersey State Parole Board, 202 A.3d 636, 657 (N.J. Super. App. Div.
2019) (striking down parole board – not court -- creating Internet ban as
condition of parole, where appellant did not use the Internet to commit
offense; even though Board granted appellant numerous exceptions, they
could not cure the overbroad condition); see also United States v.
Holena, 906 F.3d 288, 290-91, 293 (3rd Cir. 2018) (“To protect the public,
a sentencing judge may restrict a convicted defendant’s use of computers
and the internet. But to respect the defendant’s constitutional liberties, the
judge must tailor those restrictions to the danger posed by the defendant. A
complete ban on computer and internet use” as a “condition[] of supervised
release” “will rarely be sufficiently tailored[,]” even when the underlying
crime involved use of the Internet, such as when appellant “used
the internet to solicit sex from a minor”; nevertheless, “It is almost certainly
appropriate to prevent [the appellant] from using social media, chat rooms,
peer-to-peer file-sharing services, and any site where he could interact with
a child.”); Jennings v. Commonwealth, ___ S.W.3d ___, No. 2018-CA-
000061-MR, 2019 WL 1575570, at *5 (Ky. Ct. App. filed April 12, 2019)
(probation condition of “[n]o access to internet” failed as impermissibly
vague and not narrowly tailored, but the court “decline[d] to establish a
bright-line rule,” noting that “this holding should not be construed to mean
that an internet ban for a defendant on probation would never be
‘reasonably necessary’” (emphasis in original)).

Some courts that have considered this issue recently and do not harmonize
with Houtz actually find that any Internet ban is overly restrictive, not that
such a condition is always lawful. See, e.g., Mutter v. Ross, 811 S.E.2d
866, 870, 872 (W. Va. 2018) (parole condition imposing complete ban on
parolee’s use of the Internet impermissibly restricted lawful speech in
violation of the First Amendment).

The only exceptions that we could find amongst recent cases was
unpublished, United States v. Washington, No. 18-11021, 2019 WL
(Footnote Continued Next Page)


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      In the current appeal, there is no evidence in the certified record that

Appellant’s crimes involved his use of the Internet -- neither the crimes to

which he pleaded guilty nor the charges that were nolle prossed, unlike in

Hartman, where the appellant was convicted of possession of child

pornography located on his computer.              908 A.2d at 318.   In the current

action, the trial court made no findings of fact as to whether any nexus

existed between Appellant’s crimes and his access to the Internet or whether

such a restriction is reasonably related to Appellant’s rehabilitation.        See

Houtz, 982 A.2d at 540-41. If such a nexus and relationship exist, then the

Internet Ban as a condition of Appellant’s probation was proper, and the

finding of a violation of probation was proper.           However, if no nexus or

reasonable relationship existed, then the Internet Ban as a condition of

probation was always improper, and the sentence imposed for violation of


(Footnote Continued) _______________________

1110834, at *2 (11th Cir. March 11, 2019) (per curiam) (unpublished)
(upholding constitutionality of ban on owning or possessing computer with
modem as condition of supervised release), or relied upon a state statute
specifically banning sex offenders from Internet access and was currently on
appeal to the state supreme court, People v. Morger, 103 N.E.3d 602 (Ill.
App. Ct.) (upheld social media ban even when the underlying offense did not
involve use of the internet), appeal allowed, 108 N.E.3d 817 (Ill. 2018).

Nevertheless, we find Appellant’s reliance on Packingham v. North
Carolina, 137 S.Ct. 1730 (2017), to be misplaced, because Packingham
concerned Internet access for defendants who had completed serving their
sentences and were no longer subject to supervision, not when such
prohibition on Internet access was a condition of parole or probation. See
Appellant’s Brief at 16, 21-22.




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J-S23039-19


that improper condition would likewise be improper and should be vacated.

See Commonwealth v. Milhomme, 35 A.3d 1219, 1222 (Pa. Super.

2011).

      Accordingly, an ineffective assistance of counsel claim against VOP

counsel may have succeeded had it been included in the actual amended

PCRA petition, or, at least, we would have required remand for an

evidentiary hearing to determine whether VOP counsel had an objectively

reasonable basis for not having objected to the validity of the Internet Ban.

As this Court has explained:

      [C]ounsel is presumed to be effective.

      To overcome this presumption, a PCRA petitioner must plead and
      prove that: (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.

      A failure to satisfy any of the three prongs of this test requires
      rejection of a claim of ineffective assistance.

Medina, 2019 PA Super 119, *15 (internal brackets, citations, and

quotation marks omitted). For the reasons given above, an objection to the

Internet Ban would have arguable merit.        Id.    Additionally, there is a

reasonable probability that the outcome of Appellant’s VOP hearing would

have been different had VOP counsel raised this claim. Id.

      Finally, we see no objectively reasonable basis for VOP counsel’s

failure to raise this issue.   Id.   Also, VOP counsel’s letter to Appellant

articulating his reasons for not pursuing an appeal does not analyze the

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J-S23039-19


issue of whether the Internet Ban was appropriate in the first place.

Nonetheless, we would have given VOP counsel the opportunity to explain

whether he had a reasonable basis for failing to raise this challenge that this

Court could not determine from the existing record. Ergo, we would have

vacated the PCRA order and remanded for an evidentiary hearing so that

Appellant could call VOP counsel as a witness to allow him to explain his

basis for not pursuing this claim, had the ineffectiveness claim been properly

preserved in the amended PCRA petition.

      Furthermore, we have considered whether any challenge to the

Internet Ban is a challenge to the legality of Appellant’s sentence and

consequently cannot be waived. See Commonwealth v. Vargas, 108 A.3d

858, 876–77 n.13 (Pa. Super. 2014) (en banc) (“[l]egality of sentence

questions are not waivable and may be raised sua sponte by this Court”);

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc)

(same).   However, this Court has held that a challenge to “a condition of

probation that prohibits . . . access to the internet . . . is a challenge to the

discretionary   aspects   of   Appellant’s    sentence—not   to   the   legality.”

Commonwealth v. Yockey, 158 A.3d 1246, 1259 (Pa. Super. 2017)

(internal brackets and quotation marks omitted) (citing Hartman, 908 A.2d

at 319 (appellant’s challenge to condition of probation that prohibited him

from using computer or accessing Internet was a challenge to the

discretionary aspects of his sentence); Houtz, 982 A.2d at 539–40 (claim


                                     - 24 -
J-S23039-19


that trial court erred in prohibiting use of computer and access to Internet

during prohibition was a “challenge [to] the discretionary aspects of

sentencing, not the legality of the sentence imposed”)) (direct appeal from

judgment of sentence challenging probationary condition not preserved

where not raised at sentencing or in a post-sentence motion).21        Unlike

challenges to the legality of a sentence, challenges to the discretionary

aspects of sentencing cannot be raised sua sponte by this Court and are not

cognizable under the PCRA.           See Commonwealth v. Sarvey, 199 A.3d

436, 447–48 (Pa. Super. 2018) (“Unlike the discretionary aspects of

sentencing, a challenge to the legality of sentence is not subject to waiver

and may be raised at any time.”); Commonwealth v. Wrecks, 934 A.2d

1287, 1289 (Pa. Super. 2007) (“Requests for relief with respect to the

discretionary aspects of sentence are not cognizable in PCRA proceedings.”).

                                       *       *    *

       We recognize that Appellant may find it fundamentally unfair that he

was resentenced for violating a condition that may not have been warranted



____________________________________________


21 Nevertheless, the Supreme Court of Pennsylvania has found other
challenges to probationary conditions to be challenges to the legality of the
sentence. See, e.g., Commonwealth v. Wilson, 67 A.3d 736, 737, 739,
741 (Pa. 2013) (claim that the trial court did not have statutory authority to
impose a particular condition of probation is a challenge to the legality of a
sentence; the appellant also challenged the probationary condition on
constitutional grounds, but the Supreme Court did not reach that issue).



                                           - 25 -
J-S23039-19


in the first place. However, we cannot overcome the numerous procedural

hurdles in order to reverse.

      For the reasons given above, we are compelled to conclude that

Appellant’s issues raised on appeal are meritless or waived.     Having

discerned no error of law, we are constrained to affirm the order below.

      Order affirmed.

      President Judge Emeritus Bender joins the memorandum.

      Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2019




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