from the PCRA Order Entered November 15, 2018 In the Court of
Common Pleas of McKean County Criminal Division at No(s):
BEFORE: OLSON, J., OTT, J., and COLINS [*] , J.
Gerald W. Pope, appeals from the order that denied his first
petition filed under the Post Conviction Relief Act
(PCRA). Upon review, we conclude that the trial
court imposed an illegal sentence as to the unlawful contact
with a minor offense. We therefore reverse the PCRA court's
order, vacate Appellant's judgment of sentence, and
remand for resentencing.
Court previously summarized the factual and procedural
history of this appeal as follows:
K.H., who was born in December 1999, lived with her
biological mother and her mother's boyfriend, Appellant,
from the time she was three years old until she turned
thirteen. N.T., 3/24/14, at 23. In January 2013, K.H. began
dating B.V. Id. at 23-24. Appellant did not approve
of the relationship. Id. at 26.
K.H. eventually confided in a friend that Appellant told K.H.
that she would have to perform various sexual acts for
Appellant in order to obtain permission to see her boyfriend.
N.T., 3/24/14, at 24-25, 26, 41. At trial, K.H. testified
that Appellant advised her of the following options if she
wanted to see her boyfriend or friends, and the time that
would accordingly be allotted: "He said one [hand job]
would be for two hours, two would be four and a blow job
would be the whole day." Id. at 26. K.H.
testified that she gave Appellant a "hand job" in
January 2013, in order to see her boyfriend. Id. at
29. She testified that this occurred after school and that
she and Appellant were the only two people at home at the
time. Id. at 29-30. She also testified that after
performing this act, she was permitted to see her boyfriend,
but that after two hours with her boyfriend elapsed,
Appellant proceeded to the boyfriend's house and,
standing outside, texted K.H., advising her that it was time
to leave. Id. at 35-36.
K.H. further testified that she subsequently gave Appellant
"hand jobs" on multiple occasions in order to see
her boyfriend. N .T., 3/24/14, at 37. K.H. stated that no one
else was in the home during these occasions that occurred
after school. Id. at 37. K.H. also testified that on
one occasion, Appellant "tried sticking [his penis] up
my butt." Id. at 37.
K.H. testified that the first person she told about these
incidents, approximately six months after they began, was her
friend, E.K. N.T., 3/24/14, at 41. Although K.H. did not tell
her father about these incidents, he indirectly found out
after E.K. confided in another friend. Id. at 41-42.
Upon learning of these assertions, K.H.'s father took her
to the police station in order to report the incidents.
Id. at 41-42.
Appellant was charged with one count of criminal attempt of
involuntary deviate sexual intercourse [(IDSI)]; one count of
aggravated [indecent] assault; one count of indecent assault;
one count of unlawful contact with a minor and one count of
corruption of minors. Amended Information, 3/21/14, at 1-2.
Following a jury trial, Appellant was convicted of unlawful
contact with a minor and corruption of minors. He was found
not guilty of the other charges.
Appellant was sentenced on August 7, 2014, to a period of
incarceration of 62-124 months. He timely appealed on
September 2, 2014.
Commonwealth v. Pope, No. 1486 WDA 2014, unpublished
memorandum at 1-3 (Pa. Super. filed June 1, 2015). This Court
affirmed Appellant's conviction in a June 1, 2015
decision. Id. at 7-10. Appellant did not seek our
Supreme Court's review of this Court's decision.
January 13, 2016, Appellant filed his first, timely, pro
se PCRA petition. On August 25, 2016, the PCRA court
appointed counsel for Appellant in the PCRA proceedings.
Appellant's first and second appointed counsel both
withdrew from representation of Appellant, and, on April 26,
2017, the PCRA court appointed Appellant's current PCRA
counsel, John Thomas, Esq. and granted him leave to file an
amended PCRA petition. On August 15, 2017, Appellant, through
his counsel, filed an amended petition alleging that he was
denied effective assistance of counsel by his trial counsel
based on his failure to file a request for a bill of
particulars that would have cured deficiencies in the
criminal information. The Commonwealth answered the amended
PCRA petition, and Appellant then filed a motion for leave to
amend the PCRA petition on November 28, 2017 to include an
argument that, in the sentencing order, the trial court
erroneously required Appellant to register for life under the
Sex Offender Registration and Notification Act
(SORNA) when in fact he should only have been
required to register for 25 years as a Tier II offender. The
PCRA court granted Appellant leave to amend his PCRA petition
on June 20, 2018, and directed the parties file briefs on
this additional issue. On July 18, 2018, Appellant filed a
second motion for leave to amend the PCRA petition to include
the argument that the trial court incorrectly graded the
unlawful contact with a minor charge as a felony of the first
degree. In a July 24, 2018 order, the PCRA court granted
Appellant leave to amend and directed further briefs to be
filed on this issue.
November 15, 2018, the PCRA court entered an opinion and
order granting in part and denying in part the PCRA petition.
The PCRA court rejected Appellant's argument concerning
the grading of the unlawful contact with a minor charge,
concluding that Appellant's trial counsel was not
ineffective for not objecting to the grading of the unlawful
contact charge because he had an objectively reasonable basis
for not challenging the grading on the unlawful contact
count. PCRA Court Opinion at 4-7. In addition, the PCRA court
concluded that Appellant's trial counsel was not
ineffective for not filing a request for a bill of
particulars but that Appellant's SORNA lifetime
registration based on two convictions arising out of the same
course of conduct was inappropriate under Commonwealth v.
Lutz-Morrison, 143 A.3d 891 (Pa. 2016), and therefore
Appellant could only be subjected to a 25-year registration
period. PCRA Court Opinion at 1-4, 7-8. Appellant filed a
timely appeal of the PCRA court's order. In his Pa.R.A.P.
1925(b) statement of errors complained of on appeal,
Appellant solely objected to the PCRA court's ruling
concerning the grading of the unlawful contact with a minor
presents the following issues for our review:
I. Whether [Appellant's] trial counsel, Attorney
Hackwelder, was ineffective for failing to correct the
grading and offense gravity score attributed to the offense
of Unlawful Contact with Minor, 18 ...