Commonwealth v. Getchius, 060220 PASUP, 71 MDA 2019

Docket Nº:71 MDA 2019
Opinion Judge:PANELLA, P.J.
Party Name:COMMONWEALTH OF PENNSYLVANIA v. KEVIN J. GETCHIUS Appellant
Judge Panel:BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.
Case Date:June 02, 2020
Court:Superior Court of Pennsylvania
 
FREE EXCERPT

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN J. GETCHIUS Appellant

No. 71 MDA 2019

Superior Court of Pennsylvania

June 2, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered December 21, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002492-2013

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J. [*]

MEMORANDUM

PANELLA, P.J.

Appellant, Kevin J. Getchius, appeals from the order entered in the Lancaster County Court of Common Pleas denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. In his petition, Appellant alleges trial counsel's ineffectiveness. On appeal, Appellant also challenges the PCRA court's assessment that he is subject to lifetime registration requirements under Megan's Law II, 42 Pa.C.S.A. §§ 9791-9799.7. We affirm in part and, based on our Supreme Court's recent decision in Commonwealth v. Butler ("Butler II"), 25 WAP 2018, ___A.3d___, 2020 WL 1466299 (Pa., filed March 26, 2020), reverse in part.

Appellant was arrested after his ex-girlfriend's daughter, K.H., revealed to her grandmother that Appellant had sexually abused her a few years earlier. K.H. was four or five years old at the time of the abuse, which she alleged occurred during times Appellant babysat her while her mother was at work.

A jury convicted Appellant of one count each of rape of a child, involuntary deviate sexual intercourse with a child, unlawful contact with a minor, dissemination of explicit sexual materials, and corruption of a minor, and two counts of indecent assault of a child. The trial court sentenced Appellant to an aggregate 23-46 years' incarceration on August 6, 2014. Following a hearing on that same date, the court determined Appellant to be a sexually violent predator ("SVP") and therefore subject to lifetime registration requirements under then-effective Megan's Law III, 42 Pa. C.S.A. §§ 9791-9799.9.

Appellant timely appealed to this Court, which vacated his judgment of sentence and remanded for a new sentencing hearing due to the court's imposition of a mandatory minimum sentence in violation of Alleyne v. United States, 570 U.S. 99 (2013). The sentencing court again imposed an aggregate 23-46 years' incarceration on Appellant and also required him to register for life as an SVP under the registration legislation in effect at that time, the Sexual Offenders Registration and Notification Act ("SORNA I"), 42 Pa.C.S.A. §§ 9799.10-9799.41.[1] Appellant did not appeal from that judgment of sentence.

Appellant thereafter filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition alleging trial counsel's ineffectiveness and arguing Appellant should not be subject to an SVP designation or SORNA I registration requirements. The court denied Appellant's ineffectiveness claims, but agreed with Appellant that his classification as an SVP was invalid following this Court's decision in Commonwealth v. Butler ("Butler I"), 173 A.3d 1212 (Pa. Super. 2017), and that the lifetime registration requirements that had been imposed on him under SORNA I were unconstitutional following Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

The court, however, disagreed with the Commonwealth that Appellant was therefore subject to the registration requirements of "Act 10" and "Act 29" of 2018 (collectively "SORNA II"), 42 Pa. C.S.A. §§ 9799.10-9799.75.2Instead, the court determined that Appellant was subject to lifetime registration requirements under Megan's Law II. Appellant timely filed a notice of appeal, and complied with the dictates of Pa.R.A.P. 1925(b). This matter is now properly before us.

Before we are able to address the merits of Appellant's issues, we must determine whether his petition was timely filed.

A PCRA petition is timely if it is filed within one year of the date the petitioner's judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). "A judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super. 2014) (citation omitted).

Here, a previous panel of this Court vacated Appellant's judgment of sentence and remanded for a new sentencing hearing. Following that remand, the sentencing court imposed a term of 23-46 years' incarceration. Appellant did not appeal following the imposition of the new sentence. As a result, his judgment of sentence became final on November 22, 2015, thirty days after the court imposed Appellant's new sentence, when his time for filing a notice of appeal to this Court expired. See Pa.R.A.P. 903(a). Appellant's PCRA petition, filed on November 4, 2016, is therefore timely.

We proceed to the merits of Appellant's petition. "Our standard of review for issues arising from the denial of PCRA relief is well-settled. We must determine whether the PCRA court's ruling is supported by the record and free of legal error." Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In doing so, we read the record in the light most favorable to the prevailing party. See Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). If this review reveals support for the PCRA court's credibility determinations and other factual findings, we may not disturb them. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014). We, however, afford no deference to the PCRA court's legal conclusions. See id.

In his first two issues, Appellant argues trial counsel rendered ineffective assistance. We presume counsel's effectiveness and Appellant bears the burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super. 2017). "In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, ineffective assistance of counsel which so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Presley, 193 A.3d at 442 (citation omitted).

To establish ineffectiveness of counsel, he must plead and prove: his underlying legal claim has arguable merit; counsel's actions lacked any reasonable basis; and counsel's actions prejudiced him. See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to satisfy any prong of the ineffectiveness test requires dismissal of the claim. See Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa. Super. 2004). "Arguable merit exists when the factual statements are accurate and could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination." Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (citations and internal quotation marks omitted). Appellant...

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