Commonwealth v. Prieto

206 A.3d 529

COMMONWEALTH of Pennsylvania

v.Juan Bermudes PRIETO, Appellant

No. 512 MDA 2018

Superior Court of Pennsylvania.

Submitted January 22, 2019

Filed March 18, 2019

Juan B. Prieto, appellant, pro se.

Stefanie J. Salavantis, District Attorney, and James L. McMonagle, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

BEFORE: SHOGAN, J., OTT, J., and STEVENS,^* P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant, Juan Bermudes Prieto, appeals from the judgment of sentence entered in the Court of Common Pleas of Luzerne County following his plea of nolo contendere to three counts of possession of child pornography, 18 Pa.C.S.A. § 6312(d). Additionally, Appellant's counsel has filed a petition seeking to withdraw his representation, as well as a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter " Anders brief"). After a careful review, we grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.

The relevant facts and procedural history are as follows: On February 18, 2017, following an incident at Luigi's Pizza in Mountain Top, Pennsylvania, the police discovered Appellant in possession of "[t]hree digital images or videos of a child or children under the age of 18 years old engaging in sexual activities or a simulation of sexual activities." N.T., 10/11/17, at 5. Accordingly, Appellant was arrested, and the Commonwealth filed a twenty-two count criminal complaint against Appellant.

On October 11, 2017, Appellant, who was represented by counsel, proceeded to a hearing before the Honorable David W. Lupas, and he entered a negotiated plea of nolo contendere to the charges indicated supra . With regard to the plea agreement, the Commonwealth informed the trial court:

Unless otherwise stated, the parties have not made any agreement as to sentencing. [Appellant] must pay costs and the Commonwealth moves to withdraw the remaining charges.

The Commonwealth agrees to a sentence of two to four years. [Appellant] waives the 90 days for the Sexual Offender's Assessment Board [ ("SOAB") ] evaluation. [Appellant] must register pursuant to the Adam Walsh Act [ (SORNA)¹ ]. [Appellant] is to have no contact with the following parties: victims, minors, schools, school zones, school activities, public parks, pools or playgrounds. And it should be noted that as indicated on the plea [agreement] [Appellant] is not a United States Citizen.

Id. at 3 (footnote added).

Defense counsel informed the trial court that Appellant is a citizen of Mexico² and "there is an ICE^{[3 ]} detainer on [Appellant]. [T]he agreed-upon sentence would be within the standard range of the guidelines." Id. (footnote added). The trial court accepted the plea, informed Appellant that he would face immigration consequences, including deportation, in connection with his plea, and scheduled sentencing for a separate date. Id. at 3-4. The trial court ordered a presentence investigation report ("PSI") and directed Appellant to undergo a SOAB evaluation. Id. at 8.

On January 8, 2018, Appellant, represented by counsel, appeared for a sentencing hearing at which the trial court indicated "[Appellant] was evaluated by [SOAB]. The court is in receipt of their report, which indicates he is not deemed a sexually violent predator. And there was a PSI completed." N.T., 1/8/18, at 2. The trial court then imposed sentence in accordance with the parties' plea agreement, thus sentencing Appellant to an aggregate of two years to four years in prison. Id. at 4-5. The trial court gave Appellant credit for time served and directed Appellant to register pursuant to SORNA for fifteen years. Id. at 5. The Commonwealth advised Appellant that his conviction was a Tier I offense under SORNA and provided Appellant with a detailed description of his SORNA reporting requirements. Id. at 5-8.

On January 11, 2018, Appellant filed a timely, counseled post-sentence motion, which the trial court denied. This timely, counseled appeal followed, and all Pa.R.A.P. 1925 requirements have been met. On December 10, 2018, counsel filed in this Court a petition seeking to withdraw his representation, as well as an Anders brief. Appellant filed no further submissions either pro se or through privately-retained counsel.

Prior to addressing any issue raised on appeal, we must first resolve counsel's petition to withdraw. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa.Super. 2007) (en banc ). There are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on appeal pursuant to which counsel must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.

Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc ) (citation omitted). In addition, our Supreme Court in Santiago stated that an Anders brief must:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago , 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide the appellant with a copy of the Anders brief, together with a letter that advises the appellant of his or her right to "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court's attention in addition to the points raised by counsel in the Anders brief." Commonwealth v. Nischan , 928 A.2d 349, 353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super. 2007).

Herein, counsel contemporaneously filed his petition to withdraw as counsel and Anders brief. In his petition, counsel states that after a thorough and conscientious examination of the record he has determined that an appeal herein is wholly frivolous. Additionally, in accordance with Nischan , counsel has mailed Appellant a copy of the Anders brief and a letter informing him that: (1) he has the right to retain new counsel; (2) he may proceed further with his case pro se; and (3) he may raise any points that he deems worthy of the this Court's attention. Counsel attached his conforming correspondence to his petition to withdraw. See Commonwealth v. Millisock , 873 A.2d 748 (Pa.Super. 2005).

In the Anders brief, counsel provides a summary of the facts and procedural history of the case, refers to evidence of record that might arguably support the issues raised on appeal, provides citations to relevant case law, and states his reasoning and conclusion that the appeal is wholly frivolous. Accordingly, counsel has substantially complied with all of the technical requirements of Anders and Santiago . Therefore, we proceed to examine the issues counsel identified in the Anders brief and then conduct "a full examination of all the proceedings, to decide whether the case is wholly frivolous." Commonwealth v. Yorgey , 188 A.3d 1190, 1195 (Pa.Super. 2018) (en banc ) (quotation omitted).

In the Anders brief, counsel raises the following issues (verbatim):

I. Whether SORNA is unconstitutional.

II. Whether SORNA violates the Separation of Powers clause.

III. Do the requirements under SORNA violate the Eighth Amendment[?]

IV. Do the registration requirements under SORNA constitute an illegal sentence[?]

Anders Brief at 1.

At the outset, we note that "in terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea." Commonwealth v. V.G. , 9 A.3d 222, 226 (Pa.Super. 2010) (citation omitted). Generally, "upon entry of a guilty plea, a defendant waives all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the ‘legality’ of the sentence imposed[.]" Commonwealth v. Eisenberg , 626 Pa. 512, 98 A.3d 1268, 1275 (2014) (citation omitted).

In the case sub judice , Appellant's claims present a challenge to the legality of his sentence. See Commonwealth v. Dixon , 161 A.3d 949, 951 (Pa.Super. 2017) ("If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.") (citation omitted) ). "Issues relating to the legality of a sentence are questions of law. Our standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Cardwell , 105 A.3d 748, 750 (Pa.Super. 2014) (brackets and ellipses omitted).

In his first issue, Appellant contends SORNA is unconstitutional as applied to him pursuant to Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Specifically, he asserts that, in determining his sexually violent predator ("SVP") status under SORNA, necessary fact-based determinations were made by the trial judge rather than a jury without the necessity of requiring proof beyond a reasonable doubt.

On July 17, 2017, the Pennsylvania Supreme Court held in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), that SORNA's registration provisions constitute punishment, and, therefore, the retroactive application of those provisions violates the ex post facto clauses of the federal and Pennsylvania constitutions.⁴...