Com. v. Rivera

• Decision Date: 17 December 2010
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Felix David RIVERA, Appellant.
• Court: Pennsylvania Superior Court

10 A.3d 1276 COMMONWEALTH of Pennsylvania, Appellee v. Felix David RIVERA, Appellant. Superior Court of Pennsylvania. Submitted Aug. 9, 2010. Filed Dec. 17, 2010.

Vincent J. Quinn, Lancaster, for appellant.

Todd P. Kriner, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: MUSMANNO, BENDER, and LAZARUS, JJ.

OPINION BY LAZARUS, J.:

Felix David Rivera appeals from the order dismissing his amended petition under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541, et seq. After careful consideration, we reverse.

On December 8, 1995, Rivera was convicted of indecent assault of a person less than thirteen years of age ¹ and was sentenced to five years' probation. On May 15, 2000, a capias was issued for a probation violation and Rivera was committed to Lancaster County Prison.² On July 9, 2000, Megan's Law II went into effect. On August 31, 2000, a probation violation hearing was held. At some point in 2006, Rivera was released from incarceration and failed to register his address with the Pennsylvania State Police. Commonwealth v. Rivera, 1015 MDA 2008, at 2 (filed April 20, 2009). He was thereafter charged with failure to comply with registration of sexual offenders pursuant to 18 Pa.C.S.A. § 4915(a). The remaining factual and procedural background has been provided by the PCRA court in its opinion dated February 17, 2010:

On May 5, 2008 [Rivera] appeared before the [t]rial [c]ourt for a stipulated bench trial. [Rivera] was found guilty of Failure to Comply with Registration of Sexual Offender Requirements. Immediately following trial, [Rivera] was sentenced to five to ten years' incarceration.

On June 3, 2008, [Rivera] filed a timely direct appeal to the Superior Court of Pennsylvania. The Superior Court affirmed the judgment of sentence.... On May 28, 2009, [Rivera] filed a Post-Conviction Collateral Relief Act Motion. Counsel was appointed to represent him, and PCRA counsel filed an Amended Petition for Post-Conviction Collateral Relief on July 14, 2009.

The [c]ourt held an evidentiary hearing on December 11, [2]009, at which time the [c]ourt ordered both parties to file briefs. Both parties submitted briefs, and [Rivera's request for relief was denied].

PCRA Court Opinion, 2/17/10, at 1-2 (citation omitted).

On appeal, Rivera raises the following issue:

WHETHER APPELLATE COUNSEL WAS INEFFECTIVE WHEN SHE

WAIVED THE MERITORIOUS ISSUE THAT THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT VIOLATED 18 PA.C.S.A. § 4915 WHEN HE WAS NOT SUBJECT TO REGISTRATION UNDER 42 PA.C.S.A. § 9795.1 SINCE HE WAS NOT SERVING AN ORIGINAL SENTENCE OF INCARCERATION AT THE TIME MEGAN'S LAW [II] WENT INTO EFFECT?

Brief for Appellant, at 4.

This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by evidence of record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.2010) (citations omitted). In evaluating a PCRA court's decision, our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. Id. at 1267. We may affirm a PCRA court's decision on any grounds if it is supported by the record. Id.

Our standard of review when faced with a claim of ineffective assistance of counsel is well settled. First, we note that counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. Commonwealth v. Thomas, 783 A.2d 328, 332 (Pa.Super.2001) (citation omitted). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.Super.2007). A petitioner must show (1) that the underlying claim has merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors or omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. (citation omitted). The failure to prove any one of the three prongs results in the failure of petitioner's claim.

Presently, Rivera was convicted under 18 Pa.C.S.A. § 4915(a)(1) ³ for failing to register as required under 42 Pa.C.S.A. § 9795.1, which provides as follows:

§ 9795.1. Registration

(a) TEN-YEAR REGISTRATION.—The following individuals shall be required to register with the Pennsylvania State Police for a period of ten years:

(1) Individuals convicted of any of the following offenses:

...

18 Pa.C.S. § 3126 (relating to indecent assault) where the offense is graded as a misdemeanor of the first degree or higher.

...

42 Pa.C.S.A. § 9795.1. Additionally, 42 Pa.C.S.A. § 9795.2 provides, in relevant part, as follows:

§ 9795.2. Registration procedures and applicability

(a) REGISTRATION.—

(1) Offenders ... shall be required to register with the Pennsylvania State Police upon release from incarceration, upon parole from a State or county correctional institution or upon the commencement of a sentence of intermediate punishment or probation....

...

42 Pa.C.S.A. § 9795.2 (emphasis added).

On appeal of the dismissal of his PCRA petition, Rivera claims that direct appellate counsel was ineffective for failing to raise a sufficiency claim. Specifically, Rivera claims that the registration provisions of Megan's Law II only apply to those convicted on or after the effective date of Megan's Law II or who were incarcerated on a Megan's Law offense on or after the law's effective date. Rivera was convicted of his Megan's Law offense on December 8, 1995 and sentenced to five years' probation. Megan's Law II became effective on July 10, 2000. Rivera was subsequently convicted of probation or parole violations in August 2000, April 2001, November 2001 and January 2003, and was finally released from custody in 2006. As Rivera was only on probation for his sex offense on the effective date of Megan's Law II, he asserts that he was not subject to registration under Megan's Law II and, as a result, could not be guilty of failing to register pursuant to 18 Pa.C.S.A. § 4915. Specifically, Rivera relies upon Section 5 of the enabling legislation for Megan's Law II, which provides as follows:

Section 5. This act shall apply as follows:

(1) To proceedings initiated on or after the effective date of this act.

(2) The reenactment and amendment of 42 Pa.C.S. Ch. 97 Subch. H shall apply to individuals incarcerated or convicted on or after the effective date of this act.

(3) This act shall not affect the requirements for individuals registered pursuant to 42 Pa.C.S. Ch. 97 Subch. H prior to the effective date of this act.

Act No. 2000-18, Section 5, enacted May 10, 2000 (emphasis added).

Rivera also asserts that, even though he was incarcerated subsequent to the effective date of Megan's Law II, that specific period of incarceration was not imposed for his sex crime, but rather for parole and/or probation violations on unrelated charges. Rivera argues that the term "incarcerated" as used in Megan's Law II refers to the original period of incarceration for a sex offense, not a subsequent period of incarceration resulting from a probation/parole violation and/or another crime. He claims appellate counsel's failure to raise this claim on direct appeal amounted to ineffective assistance.

The Commonwealth asserts that Rivera became subject to the provisions of Megan's Law II upon its enactment because he was still serving his sex offense sentence at the time and it is irrelevant that his sentence was probationary and not custodial.

A review of the record in this matter reveals that direct appellate counsel raised the identical argument on direct appeal that PCRA counsel raises instantly. Specifically, the Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal filed by direct appellate counsel raises the following issue for review:

1. The evidence was insufficient to prove beyond a reasonable doubt that Mr. Rivera violated 18 Pa.C.S. 4915. Mr. Rivera was not subject to registration under 42 Pa.C.S. 9795.1. 42 Pa.C.S. 9795.1, which is set forth in 42 Pa.C.S. Chapter 97, Subchapter H, was enacted as part of Act 2000-18, on May 10, 2005 [sic], and became effective sixty days later, on July 9, 2005 [sic]. According tothe provisions of Act 2000-18, "[t]he reenactment and amendment of 42 Pa.C.S. Ch. 97 Subch. H shall apply to individuals incarcerated or convicted on or after the effective date of this act." Act 2000-18, Section 5(2). The Commonwealth did not establish that Mr. Rivera was incarcerated or convicted on or after the effective date of Act 2000-18; therefore, it did not establish that Mr. Rivera was subject to registration under 42 Pa.C.S. 9795.1. Furthermore, even if the Commonwealth did establish that Mr. Rivera was incarcerated on or after the effective date of Act 2000-18 pursuant to a capias and bench warrant which had been issued, alleging that Mr. Rivera had committed a probation violation related to his 1995 conviction for indecent assault, Section 5(2) of Act 2000-18 refers only to persons who were still serving their original sentences of incarceration on the effective date of the act or who were convicted on or after the effective date of the act. Act 2000-18 does not apply to persons who were incarcerated for a probation or parole violation on or after the effective date of the act. Therefore, the Commonwealth did not establish that Mr. Rivera was subject to registration under 42 Pa.C.S. 9795.1, an element of the offense with which he was charged.

Statement of Errors Complained of on Appeal, filed 6/26/08, at 1-2.

Furthermore, the Statement of Question Presented contained in the Brief filed on Rivera's...