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HomeMy WebLinkAboutCP-21-CR-1627-2002COMMONWEALTH VS. KENNETH CURNUTTE, JR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-1627 CRIMINAL CHARGE: (2) SEXUAL ABUSE OF CHILDREN AFFIANT: DET. KRISTIN MERTZ OTN: H460233-4 02-2035 CRIMINAL CHARGE: (2) CORRUPTION OF MINORS AFFIANT: DET. KRISTIN MERTZ OTN: H460242-6 03-0023 CRIMINAL CHARGE: (3) CORRUPTION OF MINORS AFFIANT: DET. KRISTIN MERTZ OTN: H460319-6 POST-SENTENCE MOTIONS BEFORE HESS. J. OPINION AND ORDER Before the court is the post-sentence motion of the defendant, Kenneth Curnutte, Jr., requesting this court to vacate its October 28, 2003, finding that the defendant is a sexually violent predator and, therefore, subject to lifetime registration pursuant to 42 Pa.C.S.A. 9795. l(b). In the alternative, defendant alleges that counsel was ineffective in accepting a "Megan's Law" case without insuring that enough money would be available to secure an expert to testify at the time of sentencing on defendant's behalf. The defendant also alleges that prior counsel was ineffective for failing to challenge the constitutionality of the "Megan's Law" statute after an assessment was ordered. In support of his request to vacate the finding that he is a sexually violent predator, the defendant alleges that the finding was made in violation of due process. He argues that he not only had a right to have an expert testify on his behalf but also that the court had a duty to CP-21-CR- 1627-2002, CP-21-CR-2035-2002, CP-21-CR-0023-2003 appoint an expert to testify on his behalf because the defendant was financially unable to procure the services of an expert on his own. 42 Pa.C.S.A. 9795(1)(e)(2) states: The individual and district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the individual shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one. If the individual requests another expert assessment, the individual shall provide a copy of the expert assessment to the district attorney prior to the hearing. The plain language of the statute indicates that while there is a right to have an expert testify, there is no concomitant right to have an expert appointed by the court if the defendant is unable to secure his own expert. This position is supported by the well-established maxim of statutory construction, "expressio unius est exclusio alterius," meaning that the mention of one thing implies the exclusion of others not expressed. See Aronson v. Bright-Teeth Now, LLC., 2003 Pa. Super. Ct. 187, 824 A.2d 320 (2003). While the statute specifies that the defendant has the right to have a lawyer appointed to represent him if he cannot afford one, there is no right in the statute to have an expert appointed if he is unable to afford one. The legal question of whether a court must pay for the services of an expert when a defendant is unable to procure one on his own, in the context of a sexually violent predator hearing, appears to be one of first impression in the Commonwealth. Defendant cites no direct support for his proposition. Instead, he cites exclusively to Ake v. Oklahoma, 470 U.S. 68 (1985), in which the court discussed the factors for determining when an indigent defendant is entitled to assistance from an expert at trial. Defendant submits that the analysis used in Ake is 2 CP-21-CR- 1627-2002, CP-21-CR-2035-2002, CP-21-CR-0023-2003 applicable to the case sub judice, and therefore, argues that this court was in error when it failed to appoint defendant an expert. Ake, however, is readily distinguishable, because that case dealt with the guilt determining phase of a trial. Furthermore, Ake was a homicide case where the sanity and the potential mental culpability of the defendant were at issue. The principles pronounced in Ake have not been extended to the context of a sexually violent predator hearing, and any such extension will not begin with us. Defendant alleges, in the alternative, that prior counsel was ineffective for (1) accepting a "Megan's Law" case without insuring that enough money was available for the purpose of obtaining an expert; and (2) that prior counsel was ineffective for failing to challenge the constitutionality of the "Megan's Law" statute. Both of these claims must also fail. The basis for an ineffective assistance of counsel claim is that there has been a constitutional violation that so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place. See Commonwealth v. Jackson, 496 Pa. 111,436 A.2d 178 (1981). The matter of the defendant's guilt or innocence was resolved when he entered his guilty pleas. Moreover, we do not understand how counsel could be ineffective for a failure to assure that his client had adequate funds to proceed. Representation of counsel does not carry with it either the duty or ability to guarantee solvency. The defendant's final claim regarding a failure to assert the unconstitutionality of "Megan's Law" must also fail. In fact, our Supreme Court has recently upheld the constitutionality of"Megan's Law." Com. v. Williams, 832 A.2d 962 (Pa. 2003). Counsel fails to identify any issues in this case which were not disposed of in Williams. 3 CP-21-CR- 1627-2002, CP-21-CR-2035-2002, CP-21-CR-0023-2003 ORDER AND NOW, this day of March, 2004, the post-sentence motions of the defendant are DENIED. BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney Kevin A. Hess, J. Linda Hollinger, Esquire Assistam Public Defendam :rlm 4 COMMONWEALTH VS. KENNETH CURNUTTE, JR. INRE: AND NOW, this defendam are DENIED. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-1627 CRIMINAL CHARGE: (2) SEXUAL ABUSE OF CHILDREN AFFIANT: DET. KRISTIN MERTZ OTN: H460233-4 02-2035 CRIMINAL CHARGE: (2) CORRUPTION OF MINORS AFFIANT: DET. KRISTIN MERTZ OTN: H460242-6 03-0023 CRIMINAL CHARGE: (3) CORRUPTION OF MINORS AFFIANT: DET. KRISTIN MERTZ OTN: H460319-6 POST-SENTENCE MOTIONS BEFORE HESS. J. ORDER day of March, 2004, the post-sentence motions of the BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney Linda Hollinger, Esquire Assistant Public Defendant Kevin A. Hess, J.