Commonwealth v. Blakeslee

COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEPHEN BLAKESLEE, Appellant

J-S38008-14

No. 938 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

APRIL 1, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered March 6, 2013, In the Court of Common Pleas of Delaware County, Criminal Division, at No(s). CP-23-CR-0002677-2003.

BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:

Appellant, Stephen Blakeslee, appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.

On January 20, 2004, Appellant pleaded guilty to two counts of involuntary deviate sexual intercourse and two counts of indecent assault in connection with his molestation of three children between 2002 and 2004. On September 13, 2004, Appellant was found to be a sexually violent predator ("SVP") and was sentenced to a term of ten to twenty years of imprisonment plus a consecutive five-year term of probation. Following the denial of his post-sentence motion, Appellant filed a timely notice of appeal and was directed by the trial court to file a concise statement of matterscomplained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 31, 2005, counsel filed a timely concise statement. On June 8, 2005, counsel filed an untimely supplemental concise statement in which he argued that the evidence at the SVP hearing was insufficient to declare Appellant an SVP.

On September 12, 2006, this court affirmed the judgment of sentence. Commonwealth v. Blakeslee, 664 EDA 2005, 911 A.2d 177 (Pa. Super. filed September 12, 2006) (unpublished memorandum). Citing Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and Commonwealth v. Jackson, 900 A.2d 936 (Pa. Super. 2006), we held that Appellant's issue challenging the sufficiency of the evidence at the SVP hearing was waived as having been raised in an untimely Pa.R.A.P. 1925(b) statement.

On November 14, 2007, Appellant timely filed the PCRA petition underlying the instant appeal.¹ Although counsel was appointed, counsel subsequently filed a motion to withdraw and a "no-merit" letter pursuant toTurner-Finley.² On April 2, 2012, the PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On June 1, 2012, Appellant filed a response, and on March 6, 2013, the PCRA court dismissed Appellant's petition and permitted counsel to withdraw. This timely appeal followed.

On appeal, Appellant raises a single issue:

Did the lower court err when it determined that Appellant's direct appeal counsel was not ineffective when he waived Appellant's right to appeal his SVP determination, by not filing a timely 1925(b) statement regarding this issue?

Appellant's Brief at 2 (full capitalization omitted).

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

When considering an allegation of ineffective assistance of counsel, counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is ofarguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) Appellant was prejudiced by counsel's action or omission. Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). "In order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a 'reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs. Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 2004). "The burden of proving ineffectiveness rests with Appellant." Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

The PCRA court found that Appellant's ineffectiveness claim was not cognizable under the PCRA pursuant to Commonwealth v. Masker, 34 A.3d 841 (Pa. Super. 2011) (en banc). The Commonwealth reiterates this argument on appeal. Commonwealth's Brief at 8.

In Masker, the appellant raised three claims of ineffective counsel in his PCRA petition:

a. Trial counsel failed to properly advise the Defendant of his right to remain silent during his sexual offender evaluation;

b. Trial counsel failed to provide an expert witness to counter the sexually violent predator determination made by the Sexual Offender Assessment Board;c. Trial counsel failed to raise the issue of whether or not use of the Sexual Offender Assessment Board (SOAB) assessment admissions violated the Defendant's Fifth Amendment right to remain silent, during post-sentence motions, or on direct appeal.

Masker, 34 A.3d at 842.

After the denial of Masker's petition, an appeal was filed in this Court raising the following three issues:

a) Whether the trial court erred in determining that consequences of a sexual offenders['] evaluation were collateral consequences and were not cognizable claims under the Post Conviction Collateral Relief Act?

b) Whether the trial court erred in determining that trial counsel rendered effective assistance of counsel at the sentencing phase?

c) Whether the trial court erred in determining that the Defendant's Amended PCRA did not have merit?

Masker, 34 A.3d at 843.

The Masker Court began its analysis by noting the holding in Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005), which concluded that because the determination of an SVP hearing is independent of a challenge to a conviction or a sentence, it is not cognizable under the PCRA. The Masker Court also observed that the collateral consequences of a criminal conviction also are not cognizable under the PCRA. Ultimately, inholding that all of the appellant's issues on appeal were not cognizable, including the issue framed as ineffective assistance of counsel, the Masker Court stated as follows:

As noted above, a challenge to the classification of the defendant as a SVP is not a challenge to the conviction or sentence, and therefore is not cognizable under the PCRA. See Price, 876 A.2d at 995. In the present appeal, Masker does not challenge the propriety of his conviction or sentence. See Amended PCRA petition, 1/15/2009. Rather, in an attempt to avoid the dictates of Price, Masker seeks to challenge the method by which he was determined to be a SVP. See id. We conclude that under the PCRA there is no meaningful difference between a challenge to the determination itself and a challenge to the process by which it was reached.

Masker, 34 A.3d at 843-844.

Thus, Masker stands for the proposition that a challenge to one's designation as an SVP or a challenge to the process resulting in an SVP designation is not cognizable under the PCRA. Masker, 34 A.3d at 842. Here, however, Appellant is neither challenging his designation as an SVP nor the process by which he was designated an SVP. Therefore, Masker is inapplicable.

In this case, Appellant is claiming only that his direct appeal counsel was ineffective in failing to preserve a sufficiency of the evidence challenge to his SVP designation. Appellant's Brief at 6. Because the sufficiency of the evidence supporting an SVP designation may be challenged on directappeal,³ counsel's failure to preserve the issue for direct appeal is cognizable as an ineffectiveness claim.

Nevertheless, even though the PCRA court erred in holding that Appellant failed to present a cognizable claim, we conclude that Appellant is entitled to no relief.⁴ At the time of his conviction, the applicable statute defined an SVP as follows:

A person who has been convicted of a sexually violent offense...and who is determined to be a sexually violent predator...due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

42 Pa.C.S. § 9792 (expired December 20, 2012, pursuant to 42 Pa.C.S. § 9799.41).

The appropriate standard of review regarding the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses. As a reviewing court, we may not weigh the evidence and substitute our judgment for that of the fact-finder. Furthermore, a fact-finder is free to believe all, part or none of the evidence presented.

At the hearing prior to sentencing the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator.

Accordingly, in reviewing the sufficiency of the evidence regarding the determination of SVP status, we will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied. In most cases, we will determine whether the record supports the findings of fact made by the trial court and then review the legal conclusions made from them. However, in cases...where the trial court has stated its legal conclusions but has not provided specific findings of fact, we will review the entire record of the post-conviction SVP hearing as our scope of review is plenary. Therefore, if it appears based on all of the evidence viewed in a light most favorable to the Commonwealth that an SVP classification can not be made out in a clear and convincing manner, then we will be

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