Commonwealth v. Ispache

• Decision Date: 15 December 2021
• Docket Number: 1009 EDA 2021
• Parties: COMMONWEALTH of Pennsylvania v. Eswin Rolando Garcia ISPACHE, Appellant
• Court: Pennsylvania Superior Court

270 A.3d 1142 (Table)

COMMONWEALTH of Pennsylvania

v.Eswin Rolando Garcia ISPACHE, Appellant

No. 1009 EDA 2021

Superior Court of Pennsylvania.

Filed December 15, 2021

MEMORANDUM BY BOWES, J.:

Eswin Rolando Garcia Ispache appeals from the denial of his Post Conviction Relief Act ("PCRA") petition. We affirm in part, vacate in part, and remand with instructions.

The Commonwealth provided the following summary of the facts underlying Appellant's convictions at the nolo contendere plea hearing:

On May 4^th of 2019, the Bensalem Police responded to Cloverdale Avenue in Bensalem, Bucks County, for the report of a [sixteen]-year-old female reporting that her uncle, [Appellant], had been sexually abusing her for a number of years.

When interviewed, the juvenile female reported that beginning when she was under thirteen and continuing until the present, [Appellant] had touched her breasts and vagina and had penetrated her vagina digitally without her consent and when she was under the age of thirteen. This would happen at the residence in Bensalem, Bucks County.

Police subsequently spoke with [Appellant]. He admitted that what he had done was wrong and that he was drinking at the time and would lose control.

Plea and Sentencing Hearing, 12/5/19, at 10-11.

The Commonwealth arrested and charged Appellant by criminal information for the years of sexual abuse perpetrated against victim, which it alleged was committed between January 1, 2011, and March 31, 2019.¹ See Criminal Information, 7/11/19. On December 5, 2019, Appellant entered a negotiated nolo contendere plea to aggravated indecent assault of a child less than thirteen years of age, corruption of minors, unlawful contact with a minor, and indecent assault of a person less than sixteen years of age. In exchange for his plea, the Commonwealth nolle prossed a statutory sexual assault charge. The trial court accepted Appellant's plea and issued the agreed-upon sentence of seven to twenty years of incarceration. The court also designated Appellant as a Tier III lifetime registrant pursuant to the Sexual Offender Registration Notification Act ("SORNA"). Appellant was not adjudged to be a sexually violent predator ("SVP").

Appellant did not file a post-sentence motion or a direct appeal. On July 6, 2020, Appellant filed a pro se petition averring that he was not awarded credit for time served between his initial date of incarceration and the date of sentencing. See Petition for Time Credit, 7/6/20, at 1-2. The court construed the filing as a PCRA petition and appointed counsel to represent Appellant. See Order, 8/17/20. Appointed counsel filed an amended PCRA petition raising the time-credit claim and challenging trial counsel's failure to advise Appellant to file an appeal challenging his SORNA registration requirements. See Amended PCRA Petition, 10/28/20, at 2. The Commonwealth responded, agreeing that Appellant was entitled to time credit but opposing Appellant's SORNA registration claim. See Answer, 11/16/20, at 3. Thereafter, the PCRA court scheduled an evidentiary hearing. See Order, 12/30/20.

At that hearing on March 15, 2021, the Commonwealth stipulated that Appellant was entitled to time credit. See N.T. PCRA Hearing, 3/15/21, at 4. Thereafter, Appellant testified that while he never asked counsel to file a direct appeal, he would have pursued an appeal if counsel had informed him about Commonwealth v. Torsilieri , 232 A.3d 567 (Pa. 2020) (discussing the constitutionality of Subchapter H of SORNA with respect to non-SVP registrants).² Trial counsel testified that he was aware of Torsilieri and that he went over Appellant's registration requirements with him multiple times pre-plea. See N.T. PCRA Hearing, 3/15/21, at 34-35. However, since Appellant was set to be deported immediately following incarceration, trial counsel testified that Appellant was unconcerned about the registration requirements. Trial counsel also stated that he did not think that a direct appeal was merited. At the conclusion of the hearing, the court granted Appellant's request for time credit, but took the SORNA matter under further advisement.

Both sides submitted post-hearing briefs. In his brief, Appellant summarized the procedural history of Torsilieri , reiterating his earlier arguments about counsel's ineffectiveness for failing to challenge the constitutionality of SORNA and for failing to consult with Appellant about the same. See Brief in Support of PCRA Petition, 3/29/21, at 3-6, 8. The Commonwealth disagreed with Appellant's allegation that SORNA was unconstitutional and that an appeal challenging Appellant's registration on this ground would have been unsuccessful. See Commonwealth's Answer Brief, 4/5/21, at 5-9. After receiving and reviewing post-hearing briefs, the PCRA court entered an order granting Appellant's request for time credit but denying the rest of his petition. The instant timely appeal followed. Both Appellant and the PCRA court have complied with the mandates of Pa.R.A.P. 1925.

Appellant raises the following issue for our review: "Did the [PCRA] court err in denying Appellant's [PCRA] petition where counsel was ineffective for failing to discuss with Appellant and raise constitutional challenges to SORNA and Appellant's designation as a tier III offender?" Appellant's Brief at 7.

We begin with a discussion of the pertinent legal principles. Our "review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015) (quoting Commonwealth v. Hanible , 30 A.3d 426, 438 (Pa. 2011) ). This Court must "grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions." Commonwealth v. Dozier , 208 A.3d 1101, 1103 (Pa.Super. 2019) (quoting Commonwealth v. Brenner , 147 A.3d 915, 919 (Pa.Super. 2016) ). "[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Pew , 189 A.3d 486, 488 (Pa.Super. 2018) (citation omitted). Finally, we "may affirm a PCRA court's decision on any grounds if the record supports it." Commonwealth v. Smith , 194 A.3d 126, 132 (Pa.Super. 2018) (citation omitted).

In reviewing claims of ineffectiveness, counsel is presumed to be effective, and a PCRA petitioner bears the burden of proving otherwise. Commonwealth v. Becker , 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal claim underlying his ineffectiveness claim has arguable merit; (2) counsel's decision to act (or not) lacked a reasonable basis designed to effectuate the petitioner's interests; and (3) prejudice resulted. Id . The failure to establish any one of these prongs is fatal to a petitioner's claim. Id . at 113.

Appellant avers that counsel was ineffective when he failed to consult with him regarding whether he desired to challenge on direct appeal the trial court's order that he register under Subchapter H of SORNA. By way of background, the iteration of SORNA that Appellant was subjected to, known as "SORNA II," was passed in response to Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017) (holding that the registration provisions of the prior version of SORNA were punitive in nature), and Commonwealth v. Butler , 173 A.3d 1212 (Pa.Super. 2017) ("Butler I ") (extending Muniz and invalidating SORNA's provisions governing SVP determinations). SORNA II divided sex offender registration into two categories, depending on the date that the underlying offense occurred.

Subchapter I applies to sexual offenders who committed an offense on or after April 22, 1996, but before December 20, 2012. See 42 Pa.C.S. §§ 9799.51 – 9799.75. Subchapter I contains less stringent reporting requirements and was recently held to be non-punitive. See Commonwealth v. Lacombe , 234 A.3d 602, 626-627 (Pa. 2020) (finding Subchapter I of SORNA II was non-punitive and did not violate the constitutional prohibition against ex post facto laws). By contrast, Subchapter H applies to offenders who committed an offense on or after December 20, 2012. See 42 Pa.C.S. §§ 9799.10 – 9799.42. While our Supreme Court has held Subchapter H was non-punitive as applied to SVPs, it has not yet issued a definitive ruling regarding the constitutionality of the registration requirements as applied to non-SVPs. See Commonwealth v. Butler , 226 A.3d at 987 ("Butler II ") (finding the registration provisions of revised Subchapter H applicable to SVPs constitutional); see also Torsilieri , supra at 572 (declining to reach the merits of a constitutional challenge to the registration requirements of subchapter H and remanding for further factual development of the record).³

Though not raised by Appellant, the question of whether Subchapter H or Subchapter I of SORNA applies to him is a crucial starting point that must be established before we can determine the merits of his claim. This Court has treated an argument that the trial court erred in requiring a defendant to register under current Subchapter H, rather than Subchapter I, as a challenge to the legality of the sentence. See Commonwealth v. Alston , 212 A.3d 526, 528 (Pa.Super. 2019). Importantly, a challenge to the legality of sentence can never be waived and may be raised by the Superior Court sua sponte . See Commonwealth v. Muhammed , 219 A.3d 1207, 1211 (Pa.Super. 2019).

We have previously held that "when an appellant's offenses straddle the effective dates of Subchapters H and I of SORNA" and "the jury did not specifically find the date of the offenses," the application of Subchapter H is unconstitutional, as it "mirrors the version of SORNA found unconstitutional in" Muniz . See Commonwealth v. Alston , 212 A.3d 526, 530 (Pa.Super. 2019). In these...