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Commonwealth of Pennsylvania v. Lester Masker

December 15, 2011

COMMONWEALTH OF PENNSYLVANIA,
APPELLEE
v.
LESTER MASKER, APPELLANT



Appeal from the PCRA Order September 18, 2009 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000026-2007

The opinion of the court was delivered by: Opinion BY Panella, J.

BEFORE: STEVENS, P.J., BENDER, BOWES, PANELLA, DONOHUE, SHOGAN, MUNDY, OTT and FREEDBERG, JJ.

Appellant, Lester Masker, appeals from the order entered on September 18, 2009, by the Honorable Joseph F. Kameen, Court of Common Pleas of Pike County, that denied him relief under the Post-Conviction Relief Act.*fn1 After careful review, we affirm.

In Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005), a panel of this court held that classification as a sexually violent predator ("SVP") under 42 PA.CONS.STAT.ANN. § 9792, independent of a challenge to a conviction or sentence, is not a cognizable claim under the PCRA. In contrast, we consider in this appeal whether a challenge to the process by which such classification is imposed is cognizable under the PCRA. We are not presented with, and therefore do not reach the issue of whether such a challenge paired with a challenge to the validity of a guilty plea is cognizable under the PCRA pursuant to U.S. v. Padilla, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We hereby formally adopt the reasoning of Price and conclude that the explicit language of the PCRA places an independent challenge to classification as a SVP outside the ambit of the PCRA. Furthermore, we find that there is no meaningful distinction between a challenge to designation as a SVP and a challenge to the process by which SVP designation is arrived.

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,*fn2 incest graded as a second degree felony,*fn3 two counts of indecent assault, one graded as a first degree misdemeanor and one graded as second degree misdemeanor,*fn4 and corruption of minors graded as a misdemeanor of the first degree.*fn5 Pursuant to the plea agreement, Masker admitted to engaging in multiple instances of sexual, manual, and oral intercourse with his adopted daughter, as well as masturbating in front of her. On August 24, 2007, the sentencing court imposed a sentence of imprisonment of 7 to 20 years. Masker was subsequently classified as a SVP.

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 f]ailed to properly advise the Defendant of his right to remain silent during his sexual offender evaluation;

b. [Trial counsel f]ailed to provide an expert wtiness to counter the sexually violent predator determination made by the Sexual Offender Assessment Board;

c. [Trial counsel f]ailed 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 evaluation to counter the Board's expert evaluators. See N.T., PCRA Hearing, 6/25/2009, at 5. Furthermore, Attorney Galasso testified that he was not aware that defendants have the right to petition the court to appoint an independent expert. See id. Thereafter, the PCRA court denied Masker's petition. This appeal followed.

On appeal, Masker raises the following issues:

a) Whether the [t]rial [c]court 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 [c]court erred in determining that trial counsel rendered effective assistance of counsel at the sentencing phase[?]

c) Whether the [t]rial [c]court 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, 867 A.2d 619, 628 (Pa. Super. 2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our scope of review is limited by the parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

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., 573 Pa. 143, 148, 822 A.2d 676, 679 (2003). A court must construe the words of a statute in accordance with their plain meaning. See 1 PA.CONS.STAT.ANN. § 1903(a). "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1

PA.CONS.STAT.ANN. § 1921(b).

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, 876 A.2d 988 (Pa. Super. 2005) (challenge to SVP status determination not cognizable under the PCRA); Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (petition seeking modification of sentence for medical reasons did not fall within the ambit of the PCRA); Commonwealth v. Vega, 754 A.2d 714 (Pa. Super. 2000) ("The PCRA is not the proper vehicle to seek review of the Board [of Probation and

Parole]'s administrative decisions."); Commonwealth v. Comly, 779 A.2d 618 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 620, 792 A.2d 1255 (2001) (refusing to entertain a challenge to a hunting license suspension under the PCRA).

As noted above, a challenge to the classification of the defendant as a SVP is not a challenge to the conviction or sentence, and therefore is not cognizable under the PCRA. See Price, 876 A.2d at 995. In the present appeal, Masker does not challenge the propriety of his conviction or sentence. See Amended PCRA petition, 1/15/2009. Rather, in an attempt to avoid the dictates of Price, Masker seeks to challenge the method by which he was determined to be a SVP. See id. We conclude that under the PCRA there ...


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