J-S58017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 VICTORIA MARIE POLING                    :
                                          :
                    Appellant             :   No. 361 WDA 2019

          Appeal from the PCRA Order Entered February 20, 2019
    In the Court of Common Pleas of Mercer County Criminal Division at
                      No(s): CP-43-CR-0001081-2016


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED JANUARY 7, 2020

      Appellant, Victoria Marie Poling, appeals from the post-conviction court’s

February 20, 2019 order, denying her timely petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. While we agree

with the court’s disposition with respect to Appellant’s petition, we are

compelled to vacate its order, reverse in part her judgment of sentence, and

remand due to Appellant’s now illegal designation as a Sexually Violent

Predator (SVP) under the Sex Offender Registration and Notification Act

(SORNA), 42 Pa.C.S. §§ 9799.10-9799.41.

      We need not reiterate the procedural history and factual background of

this case, as the PCRA court set forth a comprehensive summary of both in its

May 9, 2019 opinion pursuant to Pa.R.A.P. 1925(a). See PCRA Court Opinion

(PCO), 5/9/2019, at 1-3.     Presently, Appellant raises three issues for our

review:
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      1. Whether the PCRA court erred as a matter of law or abused its
      discretion[] when finding that counsel was not ineffective when
      trial counsel did not explain the requirements of SORNA[,]thus
      [Appellant] did not enter the plea knowingly or intelligently.

      2. Whether the PCRA court erred as a matter of law or abused its
      discretion[] when finding that counsel was not ineffective when
      trial counsel failed to disclose discovery to [Appellant].

      3. Whether the PCRA court erred as a matter of law or abused its
      discretion[] when finding that counsel was not ineffective when
      trial counsel failed to prepare [Appellant] for sentencing and [did
      not] advis[e] her that she could submit letters on her behalf to
      the sentencing court.

Appellant’s Brief at 5.

      We have reviewed the thorough and well-reasoned opinion issued by

the Honorable Robert G. Yeatts, President Judge of the Court of Common Pleas

of Mercer County. We conclude that Judge Yeatts’s opinion accurately and

thoroughly disposes of the issues raised by Appellant. Accordingly, we adopt

his opinion as our own with respect to the issues Appellant raises on appeal.

      However, we must sua sponte reverse Appellant’s designation as an SVP

under SORNA. In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our

Supreme Court held that the registration requirements under SORNA are

punitive, thus overturning prior decisions deeming those registration

requirements civil in nature. Id. at 1218. Subsequently, this Court ruled that,
      since our Supreme Court has held [in Muniz] that SORNA
      registration requirements are punitive or a criminal penalty to
      which individuals are exposed, then under Apprendi [v. New
      Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
      133 S.Ct. 2151, 2163 (2013) ], a factual finding, such as whether
      a defendant has a “mental abnormality or personality disorder that
      makes [him or her] likely to engage in predatory sexually violent
      offenses[,]” 42 Pa.C.S.[ ] § 9799.12, that increases the length of
      registration must be found beyond a reasonable doubt by the

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       chosen fact-finder. Section 9799.24(e)(3) identifies the trial court
       as the finder of fact in all instances and specifies clear and
       convincing evidence as the burden of proof required to designate
       a convicted defendant as an SVP. Such a statutory scheme in the
       criminal context cannot withstand constitutional scrutiny.

Commonwealth v. Butler, 173 A.3d 1212, 1217–18 (Pa. Super. 2017),

appeal granted, 190 A.3d 581 (Pa. 2018). Accordingly, the Butler panel held

that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at 1218.1,2

       In light of Butler, we are compelled to conclude that Appellant’s

sentence is illegal to the extent that it deems her an SVP under SORNA. See

id.   Accordingly, we vacate the PCRA court’s order, reverse the portion of

Appellant’s judgment of sentence deeming her an SVP under SORNA, and

remand her case for the court to determine what, if any, registration

requirements apply to Appellant.

       Order vacated. Judgment of sentence reversed in part. Case remanded.

Jurisdiction relinquished.



____________________________________________


1 We recognize the Pennsylvania Supreme Court has granted allowance of
appeal in Butler. However, until the Supreme Court reaches a decision,
Butler remains binding authority.

2 Following Muniz and Butler, the Pennsylvania General Assembly enacted
legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act
10”). Act 10 amended several provisions of SORNA, and also added several
new sections found at 42 Pa.C.S. §§ 9799.42, 9799.51-9799.75. In addition,
the Governor of Pennsylvania subsequently signed new legislation striking the
Act 10 amendments and reenacting several SORNA provisions, effective June
12, 2018. See Act of June 12, 2018, P.L. 1952, No. 29. These modifications
do not apply to Appellant’s SVP designation, however, which the trial court
imposed in 2017.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2020




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             IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA                                    I
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                                   CRIMINAL DIVISION                                                        I

                                                                                                            I
             COMMONWEALTH OF
             PENNSYLVANIA                                                                                   I
                                                                 1081 CRIMINAL 2016                             I
                                                                                                                I
                     v.

             VICTORIA MARIE POLING,
                                                                                                                I
                  Defendant.


                                                      1925(a) OPINION

         YEATTS, J.


                    Defendant Victoria Marie Poling ("Defendant") has appealed to the Superior Courtj

         of Pennsylvania this Court's February 19th, 2019, Order denying Defendant's Petition for

         Post-Conviction Collateral Relief. This Court here by enters the following opinion in

         accordance with Pa.R.A.P. 1925(a).

                          FACTUAL BACKGORUND AND PROCEDURAL HISTORY

                    In 2016, Defendant was charged with various sexual assaults, including multiple

         counts of Rape, Involuntary Deviate Sexual Intercourse ("IDSI"), Criminal Conspiracy -

         Rape, Criminal Conspiracy - IDS!, Sexual Assault, Aggravated Indecent Assault, and

         Indecent Assault. On or about January 9th, 20 l 7, Defendant entered a plea of guilty to one

         count of IDSI regarding a victim less than thirteen ( 13) years of age 1, one count of Criminal




         1
             In violation of 18 Pa.C.S.A. §3 l23(b)
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                                                                                                                      I
                                                                                                            age2
         Conspiracy to commit IDSI regarding a victim less than thirteen (13) years of                              .!I
         Defendant also entered a plea of No Contest to one count of IDSI regarding a victim less]
                                                                                                                      I
         than thirteen (13) years of age3, and one count of Criminal Conspiracy to Commit IDSI1
                                                                                            werel
         regarding a victim less than thirteen (13) years of age4• The victims in this case
                                                                                                 II
         Defendant's daughters. Pursuant to Defendant's plea agreement and upon motion of the'

         Commonwealth, the balance of the charges were no/ prossed.5 Defendant waived her

         speedy sentencing rights and agreed to cooperate with the Commonwealth regarding the

         Co-Defendant in this matter.

                 On May 15th, 2017, Defendant had a sexually violent predator hearing, followed

         by a SORNA hearing, followed by sentencing. Defendant was found to be a sexually

         violent predator and the court conducted the SORNA colloquy with the Defendant on the

         record. Defendant was then sentenced to a total of thirty-five (35) to seventy (70) years in.

         a state correctional facility consecutive to any outstanding sentence with 340 days credit.

         Defendant filed a motion to reconsider or modify sentence on May 24th, 20 I 7 and after a

         hearing on September 8th, 2017, this Court denied Defendant's motion.

I                On June, 20th, 2018, Defendant timely filed a prose Motion for Post-Conviction

         Collateral Relief. On October 29th, 20 I 8, through Court appointed counsel, Defendant



         2
           In violation of 18 Pa.C.S.A. §903 to commit §3123(b)
         3
           In violation of 18 Pa.C.S.A. §3 i 23(b)
         4
           In violation of 18 Pa.C.S.A. §903 to commit §3123(b)
         5
           As a part of the plea agreement, the Commonwealth recommended a minimum sentence between twenty-
         two (22) and thirty-seven and a half(37.5) years, leaving the exact amount to be determined by the Court
         based on the Defendant's cooperation with the Commonwealth.

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filed an amended post-conviction relief act petition requesting an evidentiary hearing. A,      I
                                                                                                I

hearing was held on February 19th, 2019, and after the taking of testimony and hearing the!

parties' arguments, this Court made findings of fact on the record and denied Defendant'    si
Petition for Post-Conviction relief Defendant timely filed a Notice of Appeal on March

t st, 2019 and a Concise Statement of Matters Complained of on Appeal on March 22nd,\
                                                                                                I
2019.                                                                                           I

                                     DISCUSSION

        The Defendant raises the following issues on appeal:

               l. Whether the PCRA court erred as a matter of law or
                  abused its discretion, when finding that counsel was not
                  ineffective when trial counsel did not explain the
                  requirments [sic] of SORNA thus the petitioner did not
                  enter the plea knowingly or intelligently.
               2. Whether the PCRA court erred as a matter of law or
                  abused its discretion, when finding that counsel was not
                  ineffective when trial counsel failed to disclose
                  discovery to the petitioner.
               3. Whether the PCRA court erred as a matter of law or
                  abused its discretion, when finding that counsel was not
                  ineffective when trial counsel failed to prepare the
                  petitioner for sentencing and advising her she could
                  submit letters on her behalf to the sentencing court.
               Defendant's Concise Statement of Matters complained of on Appeal.     1   1-3.

        Appellate review of a PCRA court's decision is limited to examining whether the

court's findings of fact are supported by the record and whether its conclusions of law are

free from legal error. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) citing

Commonwealth v. Colavito, 993 A.2d 874, 886 (Pa. 2010). Further, the scope of review is

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limited to the findings of the PCRA court and the evidence of record. Evidence is viewed·

in the light most favorable to the prevailing party at the PCRA court level Id. To prevail!
                                                                                    arguable!
on an ineffectiveness claim, the party must establish that the underlying claim has

merit, that no reaso nab I e basis existed for counse I's actions or fai I ure to act, and that the   I
party suffered prejudice as a result of counsel's error such that there is a reasonable

probability that the result of the proceeding would have been different. Commonwealth v.

Fears, 86 A.3d 795, 804 (Pa. 2014 ).

A. The Court did not err in finding that counsel was not ineffective for failing to
   explain the requirements of SORNA because both counsel and the Court had
   explained the requirements to the Defendant prior to sentencing.

        The Sentencing Hearing transcript fully details that the Court conducted a SORN A

colloquy with the Defendant prior to sentencing. Defendant at the time indicated that she j

understood all that was required of her under SORN A. The Defendant testified at the PCRA

hearing that she remembers the court conducting the SORNA colloquy. PCRA Hearing

Transcript 50-51. Additionally, trial counsel testified that he had discussed the SORNA

requirements with the Defendant prior to entering the plea. P.H.T. 32-33. The Court found

trial counsel's testimony to be credible. The Court also notes that while the SORNA

colloquy was conducted after the guilty plea was entered, at no point during the colloquy

or during sentencing did the Defendant indicate that she had issues with the requirements

of SORNA. P.H.T. 65:4-11. There are numerous instances in the record that clearly show

that the Defendant fully understood what she was pleading to and what complying with

SORNA would entail. For this reason, the PCRA claim was without merit and this Court

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found that counsel was not ineffective. Moreover, had counsel failed to explain SORNAj
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the Court still explained the requirements at the SORNA hearing and confirmed that shej

understood. Defendant would not have suffered prejudice by counsel's action.I

Accordingly, Defendant was informed at least twice of the SORNA requirements and\

Defendant's first issue is without merit.                                                       I
                                                                                    disclosing!
8. The Court did not err in finding that counsel was not ineffective for not
   discovery because though counsel did not physically give Defendant a copy of
   discovery, he did share the contents with Defendant during their meetings.

        At the PCRA hearing, trial counsel testified that Defendant had an ample amountJ
                                                                                              tol
of time to review discovery. Counsel testified that he visited the Defendant at least three

four times in jail and shared with her all thediscovery information that he had that wasl
                                                                                           thatl
relevant to the case moving forward. P.H. T. 12- 13. Addi ti on ally, Defendant testi fled

trial counsel visited about seven times and brought over discovery for some of those visits.

P.H.T. 38:11-15. Trial counsel took notes of the videos that were a part of the case and

reviewed them with the Defendant and also physically showed her some of the discovery.

At no point did Defendant request physical copies of the discovery from trial counsel.

P.H.T. 35-36. As trial counsel reviewed and shared discovery with the Defendant during

his multiple visits to the jail, this PCRA claim was without merit. Moreover, Defendant did

not suffer any prejudice by not receiving physical copies of Discovery as she had the

opportunity to review and discuss it with her counsel. Accordingly, this issue is without

merit and this Court's ruling should be upheld.




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C. The Court did not err in finding that counsel was not ineffective for failing tol
   prepare the Defendant for sentencing because counsel's testimony indicated that!
   he had adequately prepared the Defendant.                                       j


       At the PCRA hearing, trial counsel testified that he had met with the Defendant!

prior to sentencing to discuss that sentencing was in the judge's discretion and that thej

Defendant could have witnesses testify on her behalf at the hearing. P.H.T. 21 :4-25. Triaf]
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counsel also discussed with the Defendant the possibility of individuals submitting letters!

on the Defendant's behalf. P.H.T 22:3-12. Defendant did not indicate to trial counsel that!
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there was anyone who could have written on her behalf. Id. Furthermore, the Defendant]
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testified at the PCRA hearing that she did not mention to trial counsel that she had letters,

and only inquired to the possibility of letters. P.H.T. 43:17-21. Though Defendant did

testify that she may have had people who could have written letters prior to sentencing,

trial counsel could not be expected to reach out to them without ever knowing who they

were. Defendant was also given an opportunity to speak on her behalf at sentencing. At

that time she apologized for her actions and thanked various family members for supporting

her family, but did not mention that anyone else could have or should have provided

testimony prior to sentencing. Sentencing Transcript 35-36. Trial counsel's testimony

indicates that Defendant was fully informed that she could invite individuals to testify or

write letters prior to testimony and Defendant stated she did not indicate to her attorney

that she intended to do so. Therefore the PCRA claim was without merit and this Court

could not find counsel ineffective. For this reason this issue is without merit and this

Court's ruling should be upheld.

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       For the above reasons, this Court did not err or abuse its discretion in finding that!
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Defendant's trial counsel was not ineffective for failing to inform the Defendant of SORN A!
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requirements, failing to share discover with the Defendant or failing to prepare Defendant!
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for sentencing. Accordingly, the Superior Court should uphold this court's decision!
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denying Defendant's petition for PCRA relief.
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                                              BY THE COURT:




                                              Robert G. Yeatts, President Judge




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