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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN ANDREW SHENK,
Appellant No. 664 MDA 2014
Appeal from the PCRA Order April 1, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005517-2011, CP-36-CR-0005519-
2011
BEFORE: BOWES, WECHT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 04, 2014
Kevin Andrew Shenk appeals from the order entered April 1, 2014,
denying his first-counseled PCRA petition. We affirm.
The Commonwealth charged Appellant with solicitation to commit
statutory sexual assault, unlawful contact with a minor, corruption of a
minor, and terroristic threats at case number 5517-2011.1 In addition, at
case number 5519-2011, the Commonwealth alleged Appellant committed
twenty-four counts of possession of child pornography. Prior to these two
sets of charges being leveled, Appellant had entered a guilty plea to two sex
offenses that transpired on different dates. However, the guilty plea and
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1
The terroristic threats charge was dismissed at a preliminary hearing.
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sentencing for those crimes occurred on the same date. Based on these
prior convictions, Appellant was subject to a mandatory minimum sentence
under 42 Pa.C.S. § 9718.2.2
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2
42 Pa.C.S. § 9718.2 provides in full:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9799.14
(relating to sexual offenses and tier system) shall, if at the time
of the commission of the current offense the person had
previously been convicted of an offense set forth in section
9799.14 or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission of that
offense or an equivalent crime in another jurisdiction, be
sentenced to a minimum sentence of at least 25 years of total
confinement, notwithstanding any other provision of this title or
other statute to the contrary. Upon such conviction, the court
shall give the person oral and written notice of the penalties
under paragraph (2) for a third conviction. Failure to provide
such notice shall not render the offender ineligible to be
sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the
current offense previously been convicted of two or more
offenses arising from separate criminal transactions set forth in
section 9799.14 or equivalent crimes under the laws of this
Commonwealth in effect at the time of the commission of the
offense or equivalent crimes in another jurisdiction, the person
shall be sentenced to a term of life imprisonment,
notwithstanding any other provision of this title or other statute
to the contrary. Proof that the offender received notice of or
otherwise knew or should have known of the penalties under this
paragraph shall not be required.
(b) Mandatory maximum.--An offender sentenced to a
mandatory minimum sentence under this section shall be
sentenced to a maximum sentence equal to twice the mandatory
(Footnote Continued Next Page)
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(Footnote Continued)
minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
to sentence of imprisonment for felony) or any other provision of
this title or other statute to the contrary.
(c) Proof of sentencing.--The provisions of this section shall
not be an element of the crime, and notice thereof to the
defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth's intention to proceed
under this section shall be provided after conviction and before
sentencing. The applicability of this section shall be determined
at sentencing. The sentencing court, prior to imposing sentence
on an offender under subsection (a), shall have a complete
record of the previous convictions of the offender, copies of
which shall be furnished to the offender. If the offender or the
attorney for the Commonwealth contests the accuracy of the
record, the court shall schedule a hearing and direct the offender
and the attorney for the Commonwealth to submit evidence
regarding the previous convictions of the offender. The court
shall then determine, by a preponderance of the evidence, the
previous convictions of the offender and, if this section is
applicable, shall impose sentence in accordance with this section.
Should a previous conviction be vacated and an acquittal or final
discharge entered subsequent to imposition of sentence under
this section, the offender shall have the right to petition the
sentencing court for reconsideration of sentence if this section
would not have been applicable except for the conviction which
was vacated.
(d) Authority of court in sentencing.--There shall be no
authority in any court to impose on an offender to which this
section is applicable any lesser sentence than provided for in
subsections (a) and (b) or to place the offender on probation or
to suspend sentence. Nothing in this section shall prevent the
sentencing court from imposing a sentence greater than that
provided in this section. Sentencing guidelines promulgated by
the Pennsylvania Commission on Sentencing shall not supersede
the mandatory sentences provided in this section.
(e) Appeal by Commonwealth.--If a sentencing court shall
refuse to apply this section where applicable, the Commonwealth
shall have the right to appellate review of the action of the
(Footnote Continued Next Page)
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The Commonwealth indicated that, if Appellant proceeded to trial, it
would seek life imprisonment under its interpretation of the governing
statute. That statute authorized life imprisonment for a third-time offender.
Appellant, on the advice of counsel, entered a negotiated guilty plea. In
exchange for Appellant’s plea, the Commonwealth agreed to a sentence of
twenty-five to fifty years incarceration to be followed by eight years
probation. The prison sentence equaled the mandatory minimum for a
second-time offender under § 9718.2. During the plea proceeding,
Appellant was informed that if his sentences were run consecutively, he
could be sentenced to a maximum of 1,311 years imprisonment. The court
thereafter, on July 12, 2012, accepted Appellant’s plea and sentenced
Appellant to twenty-five to fifty years incarceration and eight years
probation.3 Appellant filed a motion to withdraw, which the court denied.
Appellant did not file a direct appeal.
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(Footnote Continued)
sentencing court. The appellate court shall vacate the sentence
and remand the case to the sentencing court for the imposition
of a sentence in accordance with this section if it finds that the
sentence was imposed in violation of this section.
3
The court further ordered a sexually violent predator assessment to be
conducted by the Sexual Offenders Assessment Board. This assessment was
performed after the sentencing and an SVP hearing was conducted on
April 23, 2013. The court found Appellant to be an SVP. This Court has
previously upheld the jurisdiction of a court to hold a sexually violent
predator hearing after sentencing. Commonwealth v. Whanger, 30 A.3d
1212 (Pa.Super. 2011).
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Approximately two months after Appellant’s plea, on September 14,
2012, this Court decided Commonwealth v. Helsel, 53 A.3d 906
(Pa.Super. 2012). The Helsel Court held that where a defendant is
sentenced at the same time for two triggering sex offenses, those crimes
count as one conviction for purposes of § 9718.2. In reaching this
conclusion, the Helsel panel relied on our Supreme Court’s earlier decision
in Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005). Based on Helsel,
Appellant could not have been subject to a sentence of life imprisonment
pursuant to the mandatory sentencing provision.
Appellant filed a timely pro se PCRA petition on July 1, 2013. The
court appointed counsel, who filed an amended petition on November 1,
2013. The court conducted a PCRA hearing on January 27, 2013, and
directed the parties to submit briefs. Counsel then filed what he incorrectly
labeled as an Anders motion to withdraw,4 asserting that Appellant’s issues
did not have arguable merit. Thereafter, the court denied Appellant’s
petition by order and opinion, but did not permit counsel to withdraw. This
timely appeal ensued. The PCRA court directed Appellant to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
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4
The proper procedure to withdraw in PCRA cases, frequently confused with
Anders, is governed by Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). Despite counsel’s attempt to withdraw below, he has not filed a
Turner/Finley no-merit brief on appeal.
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Appellant complied, and the PCRA court issued an order indicating that its
prior opinion expressed its reasons for dismissal. The case is now ready for
our review. Appellant presents two issues for this Court’s consideration.
1. Did the PCRA court err in determining that Appellant could
not withdraw his guilty plea?
2. Did the PCRA court err in determining that the trial counsel
properly advised Appellant as to the applicable mandatory
sentence under the provisions of 42 Pa.C.S.A. § 9718.2?
Appellant’s brief at 4.
In conducting review of a PCRA matter, we consider the record “in the
light most favorable to the prevailing party at the PCRA level.”
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).
Our review is limited to the evidence of record and the factual findings of the
PCRA court. Id. This Court will afford “great deference to the factual
findings of the PCRA court and will not disturb those findings unless they
have no support in the record.” Id. Thus, when a PCRA court’s ruling is
free of legal error and is supported by record evidence, we will not disturb its
decision. Id. Of course, if the issue pertains to a question of law, “our
standard of review is de novo and our scope of review is plenary.” Id.
Both of Appellant’s claims relate to the effectiveness of plea counsel.
We comprehensively discussed the law regarding ineffectiveness claims in
Commonwealth v. Stewart, 84 A.3d 701 (Pa.Super. 2013) (en banc).
Therein, we opined:
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“To plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act.” Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111, 1127 (2011). Where the petitioner “fails
to plead or meet any elements of the above-cited test, his claim
must fail.” Commonwealth v. Burkett, 5 A.3d 1260, 1272
(Pa.Super. 2010).
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See Commonwealth
v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005) (“if a
petitioner raises allegations, which, even if accepted as true, do
not establish the underlying claim . . ., he or she will have failed
to establish the arguable merit prong related to the claim”).
Whether the “facts rise to the level of arguable merit is a legal
determination.” Commonwealth v. Saranchak, 581 Pa. 490,
866 A.2d 292, 304 n.14 (2005).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874
(2010). Counsel's decisions will be considered reasonable if they
effectuated his client's interests. Commonwealth v. Miller,
605 Pa. 1, 987 A.2d 638 (2009). We do not employ a hindsight
analysis in comparing trial counsel's actions with other efforts he
may have taken. Id. at 653.
“Prejudice is established if there is a reasonable probability
that, but for counsel's errors, the result of the proceeding would
have been different. Commonwealth v. Steele, 599 Pa. 341,
961 A.2d 786, 797 (2008). A reasonable probability ‘is a
probability sufficient to undermine confidence in the outcome.’
Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.
2006).” Burkett, supra at 1272; Strickland v. Washington,
466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Stewart, supra at 706-707.
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Where a petitioner alleges that guilty plea counsel was ineffective, he
must demonstrate that absent counsel’s incorrect advice or failure to advise,
there is a reasonable probability he would have not pled guilty and would
have proceeded to trial, Commonwealth v. Barndt, 74 A.3d 185
(Pa.Super. 2013), or, not relevant here, accepted a plea offer. A defendant
is bound by statements he makes under oath and ordinarily cannot
challenge his plea by claiming that he lied under oath. Commonwealth v.
Pollard, 832 A.2d 517 (Pa.Super. 2003).
Insofar as Appellant’s first and second issues regarding counsel’s
advice relative to the applicable mandatory sentencing provision overlap, we
will address that argument in discussing his second claim. Appellant in his
first argument also sets forth that counsel was ineffective in failing to review
discovery materials with Appellant. This specific issue was not included in
Appellant’s amended PCRA petition, nor was it set forth in his pro se
petition. Hence, this aspect of Appellant’s argument is waived. 42 Pa.C.S.
§ 9544(b); Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002).5 Similarly,
Appellant’s allegation that counsel did not adequately meet with and discuss
his case was not raised or developed in his pro se or amended petition.
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5
We note that the PCRA court did not address this argument in its opinion
and Appellant’s Pa.R.A.P. 1925(b) statement does not specify this position.
Thus, his claim relative to discovery is waived for this additional reason.
See Commonwealth v. Butler, 756 A.2d 55 (Pa.Super. 2000), affirmed,
812 A.2d 631 (Pa. 2002).
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Thus, this portion of Appellant’s argument is also waived. Id. Further, plea
counsel testified that he met with Appellant on five to ten occasions to
discuss Appellant’s charges, and Appellant himself acknowledges that he met
with counsel three times while incarcerated.
Appellant’s second issue on appeal is that counsel incorrectly informed
him that he would be subject to life imprisonment as a third strike sex
offender pursuant to 42 Pa.C.S. § 9718.2. Appellant submits that prior to
his plea, plea counsel instructed him that the Commonwealth was seeking a
mandatory life sentence if he went to trial. He adds that the prosecuting
attorney in the underlying matter confirmed that she would have pursued a
life sentence. Appellant argued at his evidentiary hearing that counsel
should have been aware of Shiffler, supra, which the Helsel Court relied
upon. Under the Shiffler rationale,6 adopted by the Helsel panel in the
context of the sex offender mandatory statute, a person sentenced at the
same time for two qualifying offenses was considered as having one rather
than two convictions. Therefore, he was only subject to the sentencing
provision as a second-time offender, which provided for a minimum sentence
of twenty-five years. In his view, counsel’s failure to alert him that he would
not be subject to a mandatory life sentence under 42 Pa.C.S. § 9718.2,
coerced him into pleading guilty.
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6
Shiffler involved 42 Pa.C.S. § 9714, a three strikes statute for those who
committed crimes of violence.
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On appeal, Appellant asserts that plea counsel should have somehow
combed this Court’s records to learn of the undecided pending Helsel case.
He maintains that counsel’s failure to locate the pending decision in Helsel,
had no reasonable basis and could “have been discovered through basic
legal research.” Appellant’s brief at 15. Appellant continues that had
counsel discovered that the issue was pending before this Court, Appellant
could have delayed his plea.
We find Appellant’s arguments on appeal to be without merit. Basic
legal research could not uncover every issue pending before this Court. This
Court routinely handles in excess of 7,500 appeals in a calendar year. The
vast majority of decisions by this Court result in unpublished memorandum
decisions. Unlike the Supreme Court, whose caseload is primarily
discretionary, we do not issue orders of public record indicating what issues
are pending before this Court. To place the burden on defense counsel of
uncovering pending issues before this Court in advising a client is untenable.
However, we do not discount that there are situations where counsel
may be held ineffective even where caselaw has not been decided on the
question at issue. This does not contradict the well-established principle
that counsel cannot be ineffective for failing to anticipate a change in the
law. Commonwealth v. Rollins, 738 A.2d 435, 451 (Pa. 1999). A case
involving statutory interpretation that is the first time the statute has been
interpreted is not a new rule of law nor is it a change in the law. Fiore v.
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White, 757 A.2d 842 (Pa. 2000). Thus, in situations where the statutory
interpretation of the statute in question is relatively clear on its face, counsel
could be ineffective. See Commonwealth v. Jones, 416 A.2d 539
(Pa.Super. 1979). This case, however, does not present such a situation.
The Helsel Court’s interpretation involved a nuanced application of the
mandatory statute. While counsel certainly could have instructed his client
that based on Shiffler, it was possible that this Court would preclude a life
sentence under a recidivist rationale, it was not ineffective assistance to
advise him of the possibility of another potential outcome. Furthermore, we
cannot agree with Appellant that counsel’s informing him that the
Commonwealth would seek imposition of life imprisonment caused an
unknowing plea, where even absent the mandatory statute, Appellant faced
the equivalent of a life sentence if convicted of the numerous charges
against him. Instantly, had counsel anticipated Helsel and told Appellant
that based on Shiffler, a life sentence under the mandatory would be
improper, he still faced the possibility of serving the rest of his life in prison.
Indeed, the Court advised Appellant at the plea hearing that he faced a
possible maximum sentence of 1,311 years.
Here, the guilty plea colloquy demonstrates that Appellant knew the
nature of the charges against him as well as the possibility of minimum
sentences of 311 years incarceration, absent application of the
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mandatories.7 Thus, the voluntariness of Appellant’s plea is established.
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). Appellant
is entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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7
We note that the sentencing court and plea counsel at the guilty plea
hearing correctly treated Appellant as a second-time offender under 42
Pa.C.S. § 9718.2.
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