Lead Opinion
OPINION BY
Appellant, Lester Masker, appeals from the order entered on September 18, 2009, by the Honorable Joseph F. Kameen,
In Commonwealth v. Price,
The facts and procedural history are as follows. On April 19, 2007, Masker pled guilty to involuntary deviant sexual intercourse graded as a first degree felony,
Thereafter, Masker filed a motion for reconsideration which the trial court denied. Masker appealed his sentence to this court, and we affirmed. Masker subsequently filed a pro se petition for PCRA relief. The PCRA court appointed counsel to represent Masker, and appointed counsel filed an amended PCRA petition. The amended petition raised three challenges to the effectiveness of trial counsel:
a. [Trial counsel flailed to properly advise the Defendant of his right to remain silent during his sexual offender evaluation;
b. [Trial counsel flailed to provide an expert witness to counter the sexually violent predator determination made by the Sexual Offender Assessment Board;
c. [Trial counsel flailed 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.
Amended PCRA petition, 1/15/2009, at ¶ 6.
The PCRA court granted Masker’s request for an evidentiary hearing. At the hearing, Masker’s trial counsel, Matthew Galasso, Esquire, testified that he did not recall whether he had informed Masker of his right to an independent expert evalua
On appeal, Masker raises the following issues:
a) Whether the [tjrial [c]ourt 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 [t]rial [cjourt erred in determining that trial counsel rendered effective assistance of counsel at the sentencing phase[?]
c) Whether the [t]rial [c]ourt erred in determining that the Defendant’s Amended PCRA did not have merit[?]
Appellant’s Brief, at 4.
Our standard of review of a PCRA court’s denial of a petition for post-conviction relief is well-settled. We must examine whether the record supports the PCRA court’s determination and whether the PCRA court’s determination is free of legal error. See Commonwealth v. Hall,
Furthermore, Masker’s appeal, at its most basic level, requires us to construe the jurisdictional provisions of the PCRA. The interpretation of a statute is a question of law; accordingly, our review is plenary. See Commonwealth v. Gilmour Mfg. Co.,
The PCRA sets forth its scope as follows:
This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction.
42 Pa.Cons.Stat.Ann. § 9542 (emphasis supplied). In construing this language, Pennsylvania Courts have repeatedly held that the PCRA contemplates only challenges to the propriety of a conviction or a sentence. See, e.g., Price,
As noted above, a challenge to the classification of the defendant as a SVP is not a
In his brief, Masker cites to Commonwealth v. Curnutte,
The PCRA contains specific jurisdictional limitations that do not apply to direct appeals. These jurisdictional limitations have been held to be constitutionally appropriate by the Supreme Court of Pennsylvania. See Commonwealth v. Peterkin,
Nor does Padilla v. Kentucky, - U.S. -,
Furthermore, the Court in Padilla found that “deportation is a particularly severe ‘penalty[.]’ ” Id., at 1481. As a result, the Court opined that the classifications of direct and collateral consequences of a conviction were ill suited to dealing with the specific risks involved in deportation. See id., at 1482. In contrast, numerous federal courts, including Pennsylvania district courts, have held that registration requirements, such as those under Megan’s Law, are clearly collateral consequences. See, e.g., Bankoff v. Pennsylvania,
To the extent that there was any confusion ... that the registration requirements of Megan’s Law are collateral and not direct consequences of a plea or other conviction, we settle the issue here: such requirements are collateral consequences....
Commonwealth v. Leidig,
As a result, we conclude that Masker has not raised a claim that is cognizable
Order affirmed. Jurisdiction relinquished.
Notes
. 42 Pa.Cons.Stat.Ann. §§ 9541-9546.
. 18 Pa.Cons.Stat.Ann. § 3123(7).
. 18 Pa.Cons.Stat.Ann. § 4302.
. 18 Pa.Cons Stat.Ann. § 3126.
. 18 Pa.Cons.StatAnn. § 6301(a).
. As stated above, Masker does not raise any challenge to his guilty plea or sentence, and requests no relief from his guilty plea and sentence in his brief. See Appellant’s Brief, at 20.
Concurrence in Part
CONCURRING AND DISSENTING OPINION BY
Insofar as the majority concludes that issues of ineffective assistance of counsel during a Sexually Violent Predator (“SVP”) hearing are not cognizable under the PCRA statute,
The critical issue presented in this appeal is whether counsel’s ineffectiveness in connection with the litigation of Appellant’s SVP status is cognizable under the PCRA. Discerning the answer to this question requires an examination of 42 Pa.C.S. § 9543,
It is beyond peradventure that defendants enjoy a statutory right to counsel at an SVP hearing. See 42 Pa.C.S. § 9795.4(e)(2) (“the individual shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one.”). Thus, much like in the civil and collateral PCRA process itself, see Commonwealth v. Haag,
Moreover, defendants are constitutionally entitled to counsel at all critical stages of criminal proceedings. Commonwealth v. D’Amato,
For example, in Commonwealth v. Leidig,
Though SVP hearings relate to non-punitive matters and are civil in nature, they have a direct impact on a defendant during the sentencing phase of his criminal proceeding, Commonwealth v. Shugars,
Both the United States Supreme Court and our Supreme Court have held, “Proceedings relating to the imposition of a criminal sentence constitute a critical stage, at least to the extent that the events occurring during those proceedings may affect the sentence imposed or the legal rights of the defendant, including the right to appeal. See Mempa v. Rhay,
Moreover, although Dad,año confined its holding to proceedings where the Sixth Amendment and Article I, § 9 right to counsel were implicated, our Supreme Court has recognized that PCRA counsel can be held ineffective despite the fact that the PCRA proceedings are civil and collateral. Pursell, supra; Albrecht, supra; Priovolos, supra.
Certainly, individuals can raise ineffectiveness claims related to direct appeal counsel in the PCRA context despite the constitutional right to counsel not being grounded in the Sixth Amendment. Phrased simply, where a challenge relates directly to an ineffective assistance of counsel claim, the issue ordinarily falls within the ambit of the PCRA statute. Pointedly, in Commonwealth v. Walls,
Furthermore, I disagree with the majority’s reliance on Commonwealth v. Price,
The second interrelated question herein, whether the scope of the PCRA precludes relief, is more complicated. Section 9542 states that the PCRA is intended to provide collateral relief for “persons convicted of crimes they did not commit and persons serving illegal sentences [.]” 42 Pa.C.S. § 9542. It is not intended to provide relief from the “collateral consequences of a criminal conviction.” Id. In my view, this Court must construe 42 Pa.C.S. § 9542 in such a manner as to render the PCRA statute and Grant, supra, constitutional. There are three critical reasons why we must construe § 9542 as permitting relief: 1) the fact that habeas corpus relief is not available in this context; 2) the impact of Grant upon a defendant’s federal and Pennsylvania constitutional right to counsel and the Pennsylvania constitutional right to an appeal; and 3) the application of Padilla v. Kentucky, - U.S. -,
As noted, our Supreme Court in Dadar-io held that ineffective assistance of counsel claims could be raised under the PCRA, regardless of whether the claim is directly related to the guilt or innocence of the petitioner. Claims pertaining to the sentencing phase of a case are cognizable when set forth under the ineffective assistance of counsel rubric. Commonwealth v. Chester,
Moreover, our Supreme Court recently broadly interpreted 42 Pa.C.S. § 9542, the scope provision of the PCRA statute. In Commonwealth v. Haun, - Pa. -,
Admittedly, “the Pennsylvania Supreme Court also has recognized that certain unique claims do not give rise to a cognizable claim under the PCRA statute.” Burkett, supra, at 1274. In those limited circumstances, the Court has determined that a particular issue, which is not cognizable under the PCRA, may be raised through a writ of habeas corpus. See Commonwealth v. West,
Although claims that fall outside the eligibility parameters of the PCRA may be raised through a writ of habeas corpus, that writ does not apply herein because Appellant is not inquiring into the cause of his detention. See 42 Pa.C.S. § 6503.
Furthermore, Appellant was not permitted to pose the present claims during litigation of his direct appeal because Grant funnels all claims of ineffective assistance of counsel into the PCRA. In other words, Grant prohibits us from deciding SVP counsel’s ineffectiveness during a direct appeal.
In Padilla, the United States Supreme Court opined that whether a collateral consequence is at issue is not critical to determining an assertion of ineffective assistance of counsel. At issue in Padilla was whether plea counsel was ineffective for failing to inform the defendant that he would be deported if he pleaded guilty to the crime in question. The Court found the “collateral consequence” construct unhelpful in resolving the question. Instead, the Padilla Court reasoned that the crucial inquiry was whether the issue was intimately related to the criminal process. The majority opined that courts had long acknowledged deportation as a penalty and perhaps the most vital consequence of a conviction. It concluded that the issue should be framed as whether constitutionally-effective counsel would recognize that the particular issue would be sufficiently important to a defendant in connection
Certainly, Padilla focused exclusively on the issue of representation prior to and during a guilty plea and advice concerning deportation and declined to do away entirely with the distinction of direct and collateral consequences. This Court recognized such in Commonwealth v. Abraham,
Although the majority attempts to distinguish Padilla on the grounds that Appellant is not challenging his guilty plea, it fails to appreciate that Padilla and Appellant herein were asserting ineffective assistance of counsel claims. The majority also misperceives the relevance of Padilla by setting forth that an SVP hearing relates to collateral consequences of a conviction. That an SVP hearing and subsequent SVP determination is collateral to a conviction is not in dispute. To be sure, this Court has defined direct and collateral consequences as follows:
A collateral consequence has been defined as “one that is not related to the length or nature of the sentence imposed on the basis of the plea.” United States v. Romero-Vilca,850 F.2d 177 , 179 (3d Cir.1988). A sampling of collateral consequences for pleading guilty includes: sexual offender registration requirement, 42 Pa.C.S.A. §§ 9791-9799.7; loss of the right to vote, U.S. Const. Amend. XIV, § 2; loss of right to enlist in the armed services, 10 U.S.C.A. § 504; loss of right to own a firearm, 18 Pa.C.S.A. § 6105, or fishing license, 30 Pa.C.S.A. § 928; loss of right to inherit property, 20 Pa.C.S.A. §§ 8802-11, and loss of right to practice a particular profession, e.g., 63 Pa.S.A. § 479.11(a)(fu-neral director) and 63 Pa.S.A. § 34.19(a)(8)(architect). See Commonwealth v. Frometa,520 Pa. 552 , 556 n. 1,555 A.2d 92 , 93 n. 1 (1989) (finding deportation is a collateral consequence of pleading guilty) [abrogated by Padilla, supra]. Additionally, driver’s license suspensions are collateral civil consequences rather than criminal penalties. Commonwealth v. Duffey,536 Pa. 436 ,639 A.2d 1174 (1994).
In contrast, a direct consequence “is one that has a ‘definite, immediate, and largely automatic’ effect on the range of the defendant’s punishment.” Parry v. Rosemeyer,64 F.3d 110 , 114 (3d Cir.1995), superseded by statute as stated in Dickerson v. Vaughn,90 F.3d 87 (3d Cir.1996). Indeed, the United States Court of Appeals for the Third Circuit has held that “the only consequences considered direct are the maximum prison term and fine for the offense charged.” Parry,64 F.3d at 114 (quoting United States v. Salmon,944 F.2d 1106 , 1130 (3d Cir.1991)).
Commonwealth v. Wall,
The importance of Padilla to the present case is that it directly contradicts the plain language of 42 Pa.C.S. § 9542, which states that the PCRA does not “provide relief from collateral consequences of a criminal conviction.” This aspect of the statute is no longer constitutionally sound in all eases where Padilla and Grant are conjoined. Otherwise, as discussed previously, ineffective assistance of counsel claims relating to collateral consequences could not be raised during direct appeal or PCRA review. Simply put, Padilla provides that, in at least one instance, relief may be had on an ineffective assistance of counsel claim based on a collateral consequence.
In sum, because Grant directs all claims of ineffective assistance of counsel into the PCRA statute, and since defendants have at least a statutory right to counsel at an SVP hearing, and a corresponding right to effective counsel, I would hold that the PCRA is the proper means of raising Appellant’s ineffectiveness claims. In addition, the provision of the PCRA statute that bars relief for claims that pertain to the collateral consequences of a conviction is rendered suspect when considered in light of both Padilla and Grant.' If defendants cannot raise the type of claim leveled herein pursuant to the PCRA statute, then the right to effective assistance of counsel may be denied in a situation where a defendant has the constitutional right to such assistance.
Having set forth the reasons why Appellant properly raised his claims in his PCRA petition, my analysis turns to the merits of Appellant’s underlying ineffectiveness claims. The crux of Appellant’s underlying issues are that his counsel was ineffective in failing to call an expert witness to rebut the Commonwealth’s expert and in neglecting to instruct him that he had the right to remain silent during the SOAB assessment. In support of his expert witness position, Appellant references a decision by this Court on direct appeal discussing a defendant’s right to call an expert witness at an SVP hearing. See Commonwealth v. Curnutte,
More importantly, Appellant cannot establish actual prejudice, ie., that the court’s SVP determination would likely have been altered had Appellant called an expert. Prejudice can only exist if Appellant can establish that an actual expert witness would be able to testify on his behalf in a manner that could give rise to a reasonable probability that the outcome of the SVP hearing would have changed. Appellant has not identified an expert witness who could have testified on his behalf, a necessary element when alleging that counsel was ineffective for failing to call a witness. Commonwealth v. Wright,
With respect to his additional contention, in Commonwealth v. Kopicz,
For all of the foregoing reasons, I respectfully but firmly dissent from the majority’s conclusion that Appellant’s issues are not cognizable under the PCRA, but having found that Appellant has failed to establish actual prejudice, I concur in the result.
. 42 Pa.C.S. §§ 9541-9546.
. Section 9543, entitled "Eligibility for Relief,” provides in pertinent part:
(a) General rule. — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one or more of the following:
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(ii) 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.
42 Pa.C.S. § 9543(a)(2)(ii).
. § 9542. Scope of subchapter
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.
42 Pa.C.S. § 9542.
. There has been no case in Pennsylvania finding a Pennsylvania constitutional right to counsel on a first-time PCRA. See Commonwealth v. Priovolos,
. The Sixth Amendment provides in relevant part, “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In addition, Article I, § 9 states in pertinent part, "In all criminal prosecutions the accused hath a right to be heard by himself and his counsel[.]” Pa. Const. Art. 1, § 9.
. It appears that an enforcement mechanism for protecting the right to’effective assistance of PCRA counsel is largely lacking since claims of PCRA counsel’s effectiveness can no longer be raised for the first time on appeal. Commonwealth v. Jette, - Pa. -,
. The Commonwealth also cites Commonwealth v. Williams,
. § 6503. Right to apply for writ
(a) General rule. — Except as provided in subsection (b), an application for habeas corpus to inquire into the cause of detention may be brought by or on behalf of any person restrained of his liberty within this Commonwealth under any pretense whatsoever.
(b) Exception. — Where a person is restrained by virtue of sentence after conviction for a criminal offense, the writ of habe-as corpus shall not be available if a remedy may be had by post-conviction hearing proceedings authorized by law.
42 Pa.C.S. § 6503. For a quality discussion of the historical usage of state habeas corpus see Winklespecht v. Pennsylvania Bd. of Probation and Parole,
. Interestingly, the legislature in crafting the PCRA statute expressly stated that the statute was “not intended to limit the availability of
. As mentioned in footnote four, the Pennsylvania Constitution explicitly guarantees the right to a direct appeal. Pa. Const. Article V, § 9. That right was delineated in the 1968 Pennsylvania Constitution when defendants could raise ineffectiveness issues on direct appeal. See Commonwealth v. Hart,
. The majority states that it does "not opine as to the appropriate method to raise the challenges set forth by Masker in this appeal!,]” Majority Opinion, at 844. The reason for this, I believe, is simple: there is no other method. Assuming arguendo that there is another means of raising the claims, the majority’s holding would allow SVPs to challenge counsel’s effectiveness outside of the one-year time bar of the PCRA statute, since the PCRA statute would not govern the ineffectiveness claim. Such a result is not to be preferred.
Even if there existed another means of raising the issue, such as the writ of coram nobis, see Commonwealth v. Fiore,
. Admittedly, there are undoubtedly collateral consequences to a conviction that are outside the sphere of a criminal attorney’s reasonable expertise. In these contexts, I agree that the collateral consequence construct has a proper place. Nevertheless, I believe that knowledge of Megan's Law and representation at an SVP hearing are far less complex and onerous than immigration law and deportation issues. Indeed, unlike certain aspects of immigration law and its vast complexities, SVP matters should be well within the scope of knowledge of a criminal defense attorney.
Concurrence in Part
CONCURRING AND DISSENTING STATEMENT BY
I agree with the concurring and dissenting opinion that the PCRA statute, 42 Pa.C.S.A. §§ 9541-9546, provides a procedure for reviewing Appellant’s claim of ineffective assistance of counsel. I also agree with the merits analysis of Appellant’s underlying ineffectiveness claims. However, I would defer determination of whether habeas corpus is available to address Appellant’s claims until a case is before the Court wherein the parties have briefed and argued whether one required to register and report pursuant to 42 Pa.C.S.A. § 9791 et seq. is “restrained of his liberty” so as to be eligible for habeas corpus relief. See Commonwealth v.