Com. v. Ispache, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ESWIN ROLANDO GARCIA ISPACHE :
:
Appellant : No. 1009 EDA 2021
Appeal from the PCRA Order Entered April 15, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003304-2019
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 15, 2021
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 4th 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.
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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
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1 The information did not allege a specific date of commission, but rather
averred the underlying conduct was committed within this range as to each
charge individually. See Criminal Information, 7/11/19.
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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
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2 In Torsilieri, the defendant challenged the constitutionality of the
registration requirements under Subchapter H, arguing through the
introduction of expert reports that sexual offenders generally have low
recidivism rates. After reviewing the defendant’s evidence, the trial court
found Subchapter H to be unconstitutional on several theories, including that
it violated a defendant’s right to due process by impairing his right to
reputation. The Commonwealth appealed directly to our Supreme Court.
While that appeal was pending, Appellant herein pled nolo contendere and was
required to register for life under Subchapter H. Ultimately, the Torsilieri
(Footnote Continued Next Page)
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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.
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Court vacated the trial court’s order finding Subchapter H unconstitutional and
remanded for further development of the record.
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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.
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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
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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
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3 Butler II only concerned the registration provisions of revised Subchapter
H applicable to SVPs. Therefore, it did not speak to the constitutionality of
the tiered registration provisions Appellant was ostensibly subject to under
Subchapter H. See Commonwealth v. Torsilieri, 232 A.3d 567, 572 n.2
(Pa. 2020) (“Butler II” involves provisions related to the SVP designation
process, it is not relevant to Appellee, who was not designated an SVP.”).
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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 circumstances, we found that the court should apply
Subchapter I. Id. Although this Court has not issued a published opinion
applying Alston to a plea involving a range of offenses that straddle the
Subchapter H and I divide, this Court has supplied persuasive authority for
the proposition that Alston applies in such circumstances with equal force.
See Commonwealth v. Hoffman, 249 A.3d 1180 (Pa.Super. 2021) (non-
precedential decision) (applying Alston to a nolo contendere plea after the
criminal information and oral factual summary at the plea hearing averred
that appellant committed indecent assault between 2006 and 2013);
Commonwealth v. Gonzalez, 221 A.3d 1229 (Pa.Super. 2019) (non-
precedential decision) (indicating Alston applied to a guilty plea because
docket and plea transcript indicated that the offenses occurred between 2001
and 2019).
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Our review of the certified record makes clear that all parties proceeded
from the assumption that Appellant was subject to registration under
Subchapter H. Indeed, all of Appellant’s post-conviction constitutional
challenges have centered on Subchapter H. However, the criminal information
and the Commonwealth’s factual summary stated that Appellant committed
his crimes between 2011 and 2019. See Criminal Information, 7/11/19; see
also Plea and Sentencing Hearing, 12/5/19, at 10 (the Commonwealth
reciting the offense dates as “a number of years” during its factual summary).
Thus, like in Alston, Appellant’s offense dates “straddle the effective dates of
Subchapters H and I of SORNA, [and] he is entitled to the lower reporting
requirements of Subchapter I.” See Alston, supra at 530. Accordingly,
Appellant should have been subjected to registration under Subchapter I and
not Subchapter H. Mindful of this fact, we now proceed to consider the merits
of his substantive claim.
Appellant does not dispute the voluntariness of his plea or that he
received the sentence he negotiated with the Commonwealth. Instead,
Appellant claims that his trial counsel was ineffective for failing to consult with
him regarding the filing of a post-sentence motion or direct appeal concerning
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his registration requirements.4 See Appellant’s brief at 19. The United States
Supreme Court has explained that
counsel has a constitutionally imposed duty to consult with the
defendant about an appeal when there is reason to think either
(1) that a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2) that
this particular defendant reasonably demonstrated to counsel that
he was interested in appealing. In making this determination,
courts must take into account all information counsel knew or
should have known. Although not determinative, a highly relevant
factor in this inquiry will be whether the conviction follows a trial
or a guilty plea, both because a guilty plea reduces the scope of
potentially appealable issue and because such a plea may indicate
that the defendant seeks an end to judicial proceedings. Even in
cases when the defendant pleads guilty, the court must consider
such factors as whether the defendant received the sentence
bargained for as part of the plea and whether the plea expressly
reserved or waived some or all appeal rights. Only by considering
all relevant factors in a given case can a court properly determine
whether a rational defendant sufficiently demonstrated to counsel
an interest in an appeal.
Roe v. Flores–Ortega, 528 U.S. 470, 480 (2000). We have defined an
attorney’s duty to consult as “advising the defendant about the advantages
and disadvantages of taking an appeal, and making a reasonable effort to
discover the defendant’s wishes.” Commonwealth v. Donaghy, 33 A.3d 12,
15 (Pa.Super. 2011). Furthermore:
A deficient failure on the part of counsel to consult with the
defendant does not automatically entitle the defendant to
reinstatement of his or her appellate rights; the defendant must
. . . demonstrate that there is a reasonable probability that, but
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4It is undisputed that Appellant never asked counsel to file an appeal. See
Appellant’s brief at 19. At the PCRA hearing, Appellant conceded that he never
asked counsel to file a post-sentence motion or direct appeal. See N.T. PCRA
Hearing, 3/15/21, at 23.
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for counsel’s deficient failure to consult with him about an appeal,
he would have timely appealed.
Commonwealth v. Carter, 21 A.3d 680, 683 (Pa.Super. 2011) (internal
quotation marks and citation omitted).
Appellant alleges that trial counsel never consulted with him about filing
a direct appeal and that he should have done so because a rational defendant
in Appellant’s position would have wanted to challenge the registration
requirements.5 See Appellant’s brief at 20-21. Specifically, Appellant argues
that counsel failed to inform him about Torsilieri and avers that a rational
defendant similarly situated to himself would have wanted to file an appeal
raising the issues that were being litigated in Torsilieri at the time of his nolo
contendere plea.
The PCRA court agreed with the Commonwealth that Appellant’s duty to
consult claim lacked merit. The PCRA court found Appellant’s testimony that
he was unaware of what a nolo contendere plea was or what SORNA meant
incredible. See PCRA Opinion, at 10. Instead, the court was persuaded by
counsel’s testimony that he had multiple conversations with Appellant about
his lifetime registration as a Tier III offender. Id. at 12. Appellant received
the exact sentence he bargained for and “even acknowledged that his
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5Appellant does not contend that he reasonably demonstrated to counsel that
he was interested in appealing. Accordingly, we do not discuss the alternative
avenue to relief on a duty to consult claim outlined in Roe v. Flores–Ortega,
528 U.S. 470, 480 (2000).
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registration requirements were a smaller concern [at the time of his plea and
sentencing] as opposed to his sentence of incarceration.” Id. (citing N.T.
PCRA Hearing, 3/15/21, at 38-39). Further, the PCRA court maintains that
Appellant’s Tier III designation as a SORNA registrant was then, and remains
today, a constitutional and lawful sentence. Id. at 12. Thus, the court found
that a challenge to Appellant’s registration at the time of his plea was meritless
and would have constituted a frivolous appeal. Id. at 11. We find record
support for the PCRA court’s conclusions.
First, this was not a case where a defendant stood before the court with
little understanding of what might happen next. See Commonwealth v.
Rivera, 154 A.3d 377, 378 (Pa.Super. 2017) (finding whether an appellant
received the sentence he bargained for was a highly relevant factor in the
Flores-Ortega inquiry). Instead, the PCRA court credited trial counsel’s
testimony that he had three discussions with Appellant, in which he detailed
every aspect of Appellant’s eventual nolo contendere plea, including his
SORNA registration requirements, and answered all of Appellant’s questions.
See PCRA Hearing, 3/15/21, at 32-35. Ultimately, Appellant received the
sentence he bargained for as a part of the plea. See Commonwealth v.
Montalvo, 205 A.3d 274, 290 (Pa. 2019) (reiterating the established principle
that we are bound by the PCRA court’s credibility findings where, as here, they
are supported by the record).
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Additionally, our Supreme Court has instructed us to consider “all
information counsel knew or should have known” when determining whether
a rational defendant would have wanted to appeal. See Flores-Ortega,
supra. In Commonwealth v. McDermitt, 66 A.3d 810 (Pa.Super. 2013),
we found no duty existed to consult about a direct appeal, where the
defendant pled no contest, received a lenient sentence, and was voluntarily
proceeding with deportation. Like in McDermitt, Appellant was going to be
deported upon his release from prison.6 Accordingly, given how unlikely it
was that Appellant would ever register as a sexual offender, Appellant and
counsel were more concerned about deportation and the length of Appellant’s
incarceration. Appellant did not indicate any confusion or surprise during the
plea or sentencing portion of the sentence. Nor did Appellant attempt to
contact counsel after sentencing.
Finally, Appellant has not presented a “nonfrivolous ground for appeal.”
See Flores-Ortega, supra at 480. Appellant allegedly wished to challenge
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6 Appellant’s deportation status is not discussed in detail by either party or the
court. At the plea hearing, trial counsel presented the fact of Appellant’s
deportation as a forgone conclusion. See N.T. Plea and Sentencing Hearing,
12/5/19, at 10. The record does not reveal where Appellant is in the
deportation process. However, Appellant’s aggravated assault against a minor
conviction likely amounts to an “aggravated felony” under federal law, which
would result in automatic deportation upon his release from prison. See 8
U.S.C. § 1101(a)(43)(a); 1227(a)(2), 1228(A)(3)(a) (defining aggravated
felony and providing for deportation of an alien convicted of an aggravated
felony, an offense carrying a presumption of deportability on an expedited
basis).
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the constitutionality of SORNA based on the Torsilieri case. However,
Torsilieri only applies to offenders required to register under Subchapter H.
See Torsilieri, supra at 581 n.16 (“In Lacombe, we are reviewing a trial
court’s declaration of Subchapter I’s provisions as punitive and thus, as an
unconstitutional violation of the ex post facto clause, whereas, in the case at
bar, we consider only Revised Subchapter H.”) (emphasis added). As
explained above, Appellant is entitled to the lower reporting requirements of
Subchapter I.
Further, even if we were to apply Appellant’s same arguments to a
constitutionality challenge of Subchapter I, no nonfrivilous grounds exist that
would have required counsel to consult Appellant about a direct appeal. As
mentioned above, in Lacombe, supra at 606, our Supreme Court found:
Subchapter I does not constitute criminal punishment, and the ex
post facto claims forwarded by [the defendants] necessarily fail.
See Muniz, 164 A.3d at 1208 (“Our decision regarding violation
of [the ex post facto] clause depends on a determination of
whether SORNA’s retroactive application to [Muniz] constitutes
punishment.”).
Lacombe, supra at 626-27. Thus, a challenge to the constitutionality of
Subchapter I would have been frivolous.
Given Appellant’s belief he was likely to be deported and the state of the
law, Appellant has failed to persuade us “that a rational defendant would
[have] want[ed] to appeal” his SORNA registration in these circumstances.
See Flores-Ortega, supra at 480. However, in light of the foregoing
discussion, we must vacate the portion of Appellant’s judgment of sentence
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regarding his reporting requirements and remand to the PCRA court so that it
can instruct Appellant on his proper registration and reporting requirements.
We affirm the PCRA court’s denial of the PCRA petition in all other respects. 7
Order affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2021
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7 To the extent that Appellant still wants to challenge his registration
requirements, he may be able to do so outside the confines of the PCRA. See
Commonwealth v. Lacombe, 234 A.3d 602, 617 (Pa. 2020) (expressly
declining “to find the PCRA, or any other procedural mechanism . . . the
exclusive method for challenging sexual offender registration statutes.”). see
also Commonwealth v. Moose, 245 A.3d 1121, 1128-29 (Pa.Super. 2021)
(applying Lacombe and concluding that an appellant was not required to
challenge his registration requirements under the PCRA).
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