Summary
holding possible retroactive application of legislature's new amendments to SORNA was not properly before this Court where there was no indication the appellants were classified thereunder
Summary of this case from Commonwealth v. PrietoOpinion
No. 1888 EDA 2015 No. 1900 EDA 2015 No. 1904 EDA 2015 No. 1907 EDA 2015 No. 1909 EDA 2015 No. 1913 EDA 2015 No. 1917 EDA 2015 No. 1918 EDA 2015 No. 1936 EDA 2015 No. 1939 EDA 2015 No. 1940 EDA 2015 No. 1941 EDA 2015 No. 1943 EDA 2015 No. 1944 EDA 2015 No. 1945 EDA 2015 No. 1946 EDA 2015 No. 1947 EDA 2015 No. 1948 EDA 2015 No. 2039 EDA 2015
09-05-2018
COMMONWEALTH of Pennsylvania v. Carlos FERNANDEZ, Appellant Commonwealth of Pennsylvania v. Deborah Jedrzej, Appellant Commonwealth of Pennsylvania v. Joseph Lewis, Appellant Commonwealth of Pennsylvania v. A.M., Appellant Commonwealth of Pennsylvania v. Carl C. Corbin, Appellant Commonwealth of Pennsylvania v. Willie Colbert, Appellant Commonwealth of Pennsylvania v. Albert Donnelly, Appellant Commonwealth of Pennsylvania v. Victor Deflice, Appellant Commonwealth of Pennsylvania v. April Greghini, Appellant Commonwealth of Pennsylvania v. Tracy L. McKinney, Appellant Commonwealth of Pennsylvania v. Jose Melendez, Appellant Commonwealth of Pennsylvania v. Mariano Ortiz, Appellant Commonwealth of Pennsylvania v. Robert Ned, Appellant Commonwealth of Pennsylvania v. Michael Stanger, Appellant Commonwealth of Pennsylvania v. Albert Wilson, Appellant Commonwealth of Pennsylvania v. Tyrek White, Appellant Commonwealth of Pennsylvania v. Albert Tilson, Appellant Commonwealth of Pennsylvania v. Frank Garcia, Appellant Commonwealth of Pennsylvania v. Michael T. Lovelace, Appellant
Aaron J. Marcus, Public Defender, Philadelphia, for appellants. Peter Carr, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Aaron J. Marcus, Public Defender, Philadelphia, for appellants.
Peter Carr, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., DUBOW, J., MOULTON, J., and SOLANO, J.
OPINION BY PANELLA, J.These consolidated appeals follow our Supreme Court's abrogation of the retroactive provisions from the Sexual Offender Registration and Notification Act (SORNA) in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018). After Appellants were found to have violated the terms of their respective probationary sentences, the trial court, following the mandates of Commonwealth v. Partee , 86 A.3d 245 (Pa. Super. 2014), ordered Appellants to comply with the new registration conditions and terms assigned to their crimes under SORNA. Appellants request that we reverse the decisions of the trial court, and enforce the terms of the original registration requirements from the time of their initial pleas and sentencing hearings.
SORNA is codified at 42 Pa.C.S.A. §§ 9799.14, 9799.15.
We are constrained to order that under Muniz , the trial court may not increase their registration requirements under SORNA. Consequently, we find that Muniz abrogates Partee , and agree with Appellants that the original periods of sexual offender registration and conditions imposed in each case be reinstated.
The relevant facts and procedural history of these consolidated appeals are as follows. Each of the nineteen Appellants accepted plea agreements to various sexual offenses prior to SORNA's effective date, which was December 20, 2012. Under the law regarding sexual offender registration effective at the time of their plea agreements, two Appellants did not have to register as sexual offenders, and the remaining Appellants had to register for a period of ten years.
To assist in our review, the parties have reached stipulations regarding the procedural history of each case.
While Appellants' cases are not identical, each is similarly situated. Two Appellants, Wilson and Colbert, pled guilty to crimes that, at the time, did not require any period of registration as sexual offenders. The remaining seventeen Appellants accepted plea deals to crimes that included ten years of registration as sexual offenders under then-existing versions of Megan's Law, 42 PA.C.S.A. §§ 9791 - 9799.7 (expired December 20, 2012). In exchange for Appellants' guilty or no-contest pleas, the Commonwealth withdrew several other charged offenses in each case. Had Appellants been convicted of these withdrawn offenses, each would have been subjected to longer periods of registration as sexual offenders. All of these dispositions occurred prior to the effective date of SORNA.
At sentencing in each case, Appellants were informed of whether they were required to register, and if so for how long. All nineteen Appellants later violated their respective probationary terms. Appellants were each resentenced, to either incarceration or additional periods of probation.
On December 20, 2011, the Legislature enacted SORNA, which, as aforesaid, became effective on December 20, 2012. Appellants were informed that they were subject to its new registration requirements. The new requirements increased each Appellant's registration term from its original length imposed at sentencing. Nearly all Appellants' registration terms increased to lifetime reporting requirements.
Appellants Lewis, McKinney, Ned, White, Garcia, Lovelace, and Tilson were resentenced for their probation violations after SORNA's effective date. The remaining Appellants were resentenced before SORNA became effective. Notwithstanding the timing of resentencing, each Appellant was informed that his or her failure to comply with terms of supervision resulted in the rejection of the sexual offender registration period agreed to at original sentencing and that they would be reclassified under SORNA.
Appellant Stanger's registration term increased to 15 years under SORNA. The registration terms for Appellants Lewis, Lovelace, and Greghini each increased to 25 years.
Each Appellant filed a "Petition to Enforce Plea Agreement or for a Writ of Habeas Corpus." Appellants challenged the retroactivity of SORNA to their cases, and argued that it violated the plea deals each had made with the Commonwealth. The trial court denied Appellants' petitions, holding that Appellants were not entitled to specific performance of the negotiated plea bargain because Appellants had violated the terms of their plea agreements. In each case, the trial court relied upon Partee . This Court ultimately granted en banc review, and these consolidated appeals are now before us.
A more detailed recitation of the facts relating to each Appellant follows:
Carlos Fernandez: On September 20, 2006, Fernandez entered into a negotiated plea agreement with the Commonwealth and pled guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i). On December 20, 2006, he was sentenced to a period of confinement followed by a term of probation. Under the applicable version of Megan's Law at the time, 42 PA.C.S.A. § 9795.1(a), Fernandez was required to register as a sex offender for a period of ten years. Thereafter, Fernandez violated the terms of his supervision and was resentenced. After SORNA became effective, he was reclassified as a Tier III offender, and retroactively subjected to lifetime registration.
Indecent assault is codified as follows: "A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and: ... (7) the complainant is less than 13 years of age ...." 18 Pa.C.S.A. § 3126(a)(7).
Corruption of Minors is defined as:
(a) Offense defined.--
(1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.
18 Pa.C.S.A. § 6301(a)(1)(i).
Deborah Jedrzej: On January 10, 2006, Jedrzej entered into a negotiated plea with the Commonwealth and pled nolo contendere to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i), and Endangering the Welfare of Children, 18 PA.C.S.A. § 4304(a)(1). Sentencing occurred on February 22, 2006, and she received a sentence of confinement followed by five years of probation. Under the applicable version of Megan's Law, 42 PA.C.S.A. § 9795.1(a), Jedrzej was required to register as a sex offender for a period of ten years for the Indecent Assault conviction. Following a violation of her probation, she was resentenced. Under SORNA, Jedrzej was reclassified requiring lifetime registration.
Endangering the Welfare of Children (EWOC) is defined as: "A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support." 18 Pa.C.S.A. § 4304(a)(1).
Joseph Lewis: Lewis entered into a negotiated plea of guilty to one count each of Unlawful Contact with a Minor, 18 PA.C.S.A. § 6318(a)(1), Statutory Sexual Assault, 18 PA.C.S.A. § 3122.1 , and Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i), on April 21, 2010. Under the applicable version of Megan's Law, the Unlawful Contact with a Minor charge required him to register as a sex offender for ten years unless he was adjudged a sexually violent predator. After receipt of the report from the Sexual Offender Assessment Board ("SOAB"), the Commonwealth elected not to request a sexually violent predator hearing. He received a sentence of incarceration followed by five years of probation. He later violated the terms of his probation and was resentenced. After the effective date of SORNA, he was reclassified to twenty-five years of registration.
Unlawful contact with a minor is defined as follows: "A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth: (1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses)." 18 Pa.C.S.A. § 6318(a)(1).
Statutory Sexual Assault is defined as:
(a) Felony of the second degree.-- Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either:
(1) four years older but less than eight years older than the complainant; or
(2) eight years older but less than 11 years older than the complainant.
(b) Felony of the first degree.-- A person commits a felony of the first degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is 11 or more years older than the complainant and the complainant and the person are not married to each other.
18 Pa.C.S.A. § 3122.1.
Anthony Marano: Referred to as A.M. in the Superior Court docket, Marano entered into a negotiated plea agreement on September 21, 2010, and pleaded nolo contendere to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i). He was sentenced the same day to confinement followed by nine years of probation. Marano was required to register as a sex offender for a period of ten years for the Indecent Assault conviction under the then-current version of Megan's Law. After receipt of the report from the SOAB, the Commonwealth elected not to request a sexually violent predator hearing. Thereafter, Marano violated the terms of his supervision and, on December 28, 2011, his probation was revoked and he was sentenced to additional periods of incarceration. Under SORNA, Marano was reclassified for lifetime registration.
On page eighteen of its substituted en banc appellate brief, the Commonwealth avers "A.M." is inappropriately listed in this appeal using his initials, and his full name, Anthony Marano, should be reflected on the docket. We too question the wisdom of shielding the name of a registered sexual offender during the appellate process, particularly since A.M. was an adult at the time of his crimes and his full name is listed on the trial court docket, sentencing order, and even his own Petition to Enforce Plea Agreement. However, when this issue was raised before the trial court, the Commonwealth stated it had no objection to the use of initials on the caption, and the trial court filed its decision of November 10, 2015, utilizing only the initials. The Commonwealth's concession before the trial court is not binding on the Superior Court, and we will refer to the Appellant as his name appears on the trial court docket.
Carl Corbin: On February 7, 2011, Corbin pled guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i). Corbin was sentenced on May 9, 2011, to five years of probation. After receipt of the report from the SOAB, the Commonwealth elected not to request a sexually violent predator hearing. Therefore, Corbin was required under Megan's Law to register for a period of ten years, 42 PA.C.S.A. § 9795.1(a). Corbin violated the terms of his probation and was later resentenced to incarceration. Pursuant to the requirements of SORNA, Corbin was notified that he was reclassified for lifetime registration.
Willie Colbert: On April 9, 1997, Colbert entered into a negotiated guilty plea to one count of attempted rape, 18 PA.C.S.A. §§ 901 & 3121. He was sentenced the same day to eleven and one-half to twenty-three months' confinement, followed by six years of probation. At the time of his guilty plea, Megan's Law did not apply to inchoate offenses, so Colbert was not directed to register as a sex offender. Eventually, Colbert violated the terms of his supervision, and was resentenced to further incarceration with an additional period of probation. After the effective date of SORNA, he was notified that he was reclassified to lifetime registration.Albert Donnelly: Donnelly entered a negotiated guilty plea to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Endangering the Welfare of Children, 18 PA.C.S.A. § 4304(a)(1). At the time of the plea, Donnelly was required to register as a sex offender for a period of ten years due to the conviction of Indecent Assault, pursuant to the then-current version of Megan's Law, 42 PA.C.S.A. § 9795.1(a). After receipt of the report from the SOAB, the Commonwealth elected not to request a hearing to determine if Donnelly should have been classified as a sexually violent predator. Donnelly was initially sentenced to probation on the charges. After he violated the terms of his supervision, he was resentenced to incarceration. Following the effective date of SORNA, he was notified that he was reclassified to lifetime registration.Victor DeFelice: In May 2005, DeFelice entered into a negotiated plea agreement with the Commonwealth and pled guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i). The Commonwealth nolle prossed the remaining charges, as it did in almost every one of these cases. After a hearing, the trial court ruled that the evidence did not support a finding that DeFelice be classified as a sexually violent predator; therefore, as a result of his conviction of Indecent Assault, he was required to register as a sex offender under Megan's Law for ten years. He received an initial sentence of confinement followed by five years of probation. After he violated the terms of his supervision, he was sentence to an additional period of probation. Under SORNA, he was classified as a lifetime registrant.
Pursuant to 18 Pa.C.S.A. § 901, a person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. Rape is defined as, inter alia: "[W]hen the person engages in sexual intercourse with a complainant: (1) By forcible compulsion ... (5) Who suffers from a mental disability which renders the complainant incapable of consent. 18 Pa.C.S.A. § 3121(a).
April Greghini: On April 13, 2006, Greghini pled guilty to one count each of Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i), Endangering the Welfare of Children, 18 PA.C.S.A. § 4304(a)(1), and Sexual Exploitation of Children, 18 PA.C.S.A. § 6320(a). Her sentence included incarceration followed by six years of consecutive probation. After receipt of the report from the SOAB, the Commonwealth elected not to request a hearing to determine if Greghini should have been classified as a sexually violent predator. Under the applicable version of Megan's Law, the conviction of Sexual Exploitation of Children required her to register as a sex offender for ten years. She subsequently violated the terms of her probation, and received a new sentence. Under SORNA, she was reclassified to twenty-five years of registration under 42 PA.C.S.A. § 9799.15 as a Tier II offender.
Sexual exploitation of children is defined as follows: "A person commits the offense of sexual exploitation of children if he procures for another person a child under 18 years of age for the purpose of sexual exploitation." 18 Pa.C.S.A. § 6320(a).
Tracey McKinney: On May 24, 2010, McKinney entered into a negotiated plea agreement with the Commonwealth whereby he pled nolo contendere to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7). His initial sentence was for incarceration followed by three years of consecutive probation. At that time, he was required to register as a sex offender under Megan's Law for ten years. After receipt of the report from the SOAB, the Commonwealth elected not to request a sexually violent predator hearing. He later violated the terms of his probation and was resentenced. After the effective date of SORNA, he was reclassified for lifetime registration.
Jose Melendez: Melendez pleaded guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), which required him to register as a sex offender for ten years under Megan's Law, 42 PA.C.S.A. § 9795.1(a). His initial sentence was for probation, but he was found to have violated his supervision and was resentenced to confinement followed by a consecutive term of probation. Under SORNA, he was required to be a lifetime registrant.
Mariano Ortiz: On November 13, 2006, Ortiz entered a guilty plea to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7). Under the applicable version of Megan's Law, the Indecent Assault charge required him to register as a sex offender for ten years unless he was adjudged a sexually violent predator. After receipt of the report from the SOAB, the Commonwealth elected not to request a sexually violent predator hearing. He received a sentence of five years probation. He later violated the terms of his supervision and was resentenced to an additional period of probation. After the effective date of SORNA, he was reclassified as a lifetime registrant.
Robert Ned: Ned pleaded guilty on December 10, 2008, to one count of Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Unlawful Restraint, 18 PA.C.S.A. § 2902(b). Under the applicable version of Megan's Law, the Indecent Assault charge required him to register as a sex offender for ten years unless he was adjudged a sexually violent predator. After receipt of the report from the SOAB, the Commonwealth elected not to request a sexually violent predator hearing. He received a sentence of incarceration followed by ten years of probation. He later violated the terms of his probation and was resentenced to additional periods of imprisonment and probation. After the effective date of SORNA, he was notified that he was now subject to lifetime registration.
Unlawful restraint is codified as follows: "Unlawful restraint of a minor where offender is not victim's parent -If the victim is a person under 18 years of age, a person who is not the victim's parent commits a felony of the second degree if he knowingly: (1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or (2) holds another in a condition of involuntary servitude." 18 Pa.C.S.A. § 2902(b).
Michael Stanger: On December 14, 2010, Stanger pled guilty to Sexual Abuse of Children (child pornography), 18 PA.C.S.A. § 6312(d). This crime, as a first offense, is graded as a felony of the third degree. 18 PA.C.S.A. § 6312(d.1). On March 22, 2011, he was sentenced to seven years of probation. At the time of the plea, Stanger was required to register as a sex offender for a period of ten years due to this conviction, pursuant to the then-current version of Megan's Law, 42 PA.C.S.A. § 9795.1(a). After receipt of the report from the SOAB, the Commonwealth elected not to request a hearing to determine if Stanger should have been classified as a sexually violent predator. He later violated the terms of his probation and was resentenced to imprisonment followed by five years of probation. After the effective date of SORNA, he was notified that he was reclassified to fifteen years of registration.
Sexual abuse of children, as it relates to child pornography, is codified as follows: "Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense." 18 Pa.C.S.A. § 6312(d).
Albert Wilson: On February 17, 2011, Wilson entered a plea of nolo contendere to Statutory Sexual Assault, 18 PA.C.S.A. § 3122.1. He was sentenced to a negotiated term of eleven and a half to twenty-three months' confinement followed by eight years of probation. At that time, he was not required to register as a sex offender under the applicable version of Megan's Law. Thereafter, Wilson violated the terms of his supervision and was resentenced to two to four years' incarceration followed by four years of probation. Under SORNA, he has been classified as a lifetime registrant.
Tyrek White: White entered a negotiated guilty plea to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i), and Endangering the Welfare of Children, 18 PA.C.S.A. § 4304(a)(1). He was sentenced to probation, however, after he was found to have repeatedly violated the terms of his supervision, he was eventually resentenced to confinement followed by additional years of probation. Initially, the applicable version of Megan's Law, 42 PA.C.S.A. § 9795.1(a), required White to register as a sex offender for a period of ten years for the Indecent Assault conviction. Following the violation of his original term of probation, he was reclassified under SORNA as lifetime registration.Albert Tilson: On June 27, 2011, Tilson entered a guilty plea to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and was subsequently sentenced to incarceration and three years of consecutive probation. The applicable version of Megan's Law, 42 PA.C.S.A. § 9795.1(a), required Tilson to register as a sex offender for a period of ten years. The Commonwealth waived the sexually violent predator assessment hearing after receiving the report from the SOAB. Tilson violated the terms of his supervision and was eventually resentenced to additional periods of incarceration and probation. When SORNA took effect, he was reclassified as a Tier III lifetime registrant.
Frank Garcia: Garcia pleaded guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Endangering the Welfare of Children, 18 PA.C.S.A. § 4304(a)(1), on July 26, 2011. The applicable version of Megan's Law, 42 PA.C.S.A. § 9795.1(a), required Garcia to register as a sex offender for a period of ten years for the Indecent Assault conviction. After receipt of the report from the SOAB, the Commonwealth elected not to request a hearing to determine if Garcia should have been classified as a sexually violent predator. He was sentenced to incarceration on the Indecent Assault charge followed by a period of six years of probation on the EWOC charge. He later violated the terms of his supervision and was resentenced. After the effective date of SORNA, he was reclassified as a Tier III offender which includes lifetime registration.
Michael Lovelace: Lovelace entered into a negotiated plea agreement whereby he pled guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Indecent Exposure, 18 PA.C.S.A. § 3127(a). He was sentenced to a period of confinement and a concurrent term of probation. The Commonwealth waived the sexually violent predator assessment hearing after receiving the report from the SOAB. Lovelace violated the terms of his supervision and was eventually resentenced to an additional period of probation. When SORNA took effect, he was reclassified as a Tier II registrant which requires registration for twenty-five years.
Indecent exposure is defined as: "A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm." 18 Pa.C.S.A. § 3127(a).
Appellants present a single question for our review: "Whether Appellants' plea agreements should be enforced with respect to the length or fact of sexual offender registration where they violate a condition of probation?" Appellants' Brief, at 2.
Briefly, we address our jurisdiction over this appeal. "[A]n appeal may be taken as of right from any final order ... of a trial court." Pa.R.A.P. 341(a). We have traditionally recognized the trial court's jurisdiction over petitions to enforce plea agreements with respect to the terms of sexual offender registration requirements, and by extension, this Court's ability to review the court's resulting orders. See Commonwealth v. Martinez , 637 Pa. 208, 147 A.3d 517 (2016) ; Commonwealth v. Hainesworth , 82 A.3d 444 (Pa. Super. 2013) (en banc ); Commonwealth v. Nase , 104 A.3d 528 (Pa. Super. 2014). Appellants filed petitions to enforce their plea agreements, and the trial court denied these in subsequent orders. We see no reason to conclude Muniz overruled our jurisdiction to review the decisions of trial courts to enforce plea agreements, especially given Martinez . Moreover, we may correct an illegal sentence sua sponte so long as we maintain jurisdiction over the case. See Commonwealth v. Butler , 173 A.3d 1212, 1214 (Pa. Super. 2017). Thus, we find the case is properly before us.
To the extent Appellants also challenge the application of Commonwealth v. Demora , 149 A.3d 330 (Pa. Super. 2016), this Court's decision in Commonwealth v. McCullough , 174 A.3d 1094 (Pa. Super. 2017) (en banc ), explicitly recognized Muniz overruled Demora . See id. , at 1096. Thus, we need not address that argument here.
The law on the enforcement of plea agreements is well established. "Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards." Commonwealth v. Farabaugh , 136 A.3d 995, 1001 (Pa. Super. 2016) (citation omitted). "In determining whether a particular plea agreement has been breached, we look to what the parties to this plea agreement reasonably understood to be the terms of the agreement." Hainesworth , 82 A.3d at 447 (citation and internal quotation marks omitted). When the Commonwealth's promise or agreement provides consideration for the defendant's acceptance of the plea, the Commonwealth must fulfill that promise. See Martinez , 147 A.3d at 532.
Appellants challenge this Court's holding in Partee . Appellants assert that all parties to each plea agreement understood resentencing would be the consequence for a probation violation. Appellants indicate the stipulated facts show the Commonwealth withdrew charges requiring lengthier registration terms. Appellants argue Partee unjustly expands the holding in Hainesworth by releasing the Commonwealth from its agreement to collateral terms unaffected by resentencing. They conclude we must overrule Partee .
In its Rule 1925(a) opinion, the trial court explained that it relied solely on this Court's decision in Partee when it denied Appellants' petitions to enforce their plea agreements based on their violations of the terms of probation. Partee , in turn, is premised on an extension of the logic in Hainesworth . Therefore, we must examine how the Muniz decision affects these and related precedents.
In 2009, Hainesworth pled guilty to three counts of statutory sexual assault, three counts of indecent assault, and one count of criminal use of a communications facility. At the time he pled guilty, none of the above-listed crimes carried a sexual offender registration requirement. Thus, Hainesworth did not register as a sexual offender.
Thereafter, SORNA became effective in 2012. SORNA required sexual offender registration for additional crimes, including those for which Hainesworth remained on probation.
Hainesworth filed a motion seeking to preempt registration pursuant to SORNA, and the trial court entered an order stating Hainesworth was not subject to reporting requirements, due to the contractual nature of his plea bargain. On appeal, an en banc panel of this Court affirmed the trial court's order, holding that non-registration was an express term of Hainesworth's plea bargain. The panel reasoned that Hainesworth relinquished meaningful rights in exchange for the Commonwealth's proposed terms, and fundamental fairness bound the Commonwealth to those terms.
In Partee , the appellant, in 2007, entered a no-contest plea to indecent assault of a person under the age of thirteen, corruption of minors, and endangering the welfare of children. At that time, Partee was subject to a ten-year sexual offender reporting requirement for those crimes under Megan's Law II. In 2010, the court found Partee in violation of his probation, and resentenced him.
SORNA became effective in 2012; SORNA increased the term for Partee's registration to twenty-five years. Partee sought enforcement of the ten-year reporting term from his initial plea bargain, arguing that it was an essential term of his plea bargain under the contract interpretation theory from Hainesworth .
A three-judge panel of this Court agreed that Partee's plea bargain was structured to avoid a lifetime reporting requirement. Nevertheless, the panel found that the reasoning used in Hainesworth was inapposite, as Partee had violated the terms of his probation. Instead, the panel ruled that Partee could not seek specific performance where he effectively rescinded the plea bargain by violating his probation.
Without mention of Partee , our Supreme Court, in 2016, adopted the Hainesworth Court's approach in Martinez . The Martinez Court agreed that plea agreements are contractual in nature, and that convicted offenders are entitled to specific performance of the registration terms in their plea agreements. Consequently, the Court rejected retroactive imposition of SORNA's sexual offender registration requirements on parties who accept and comply with a plea bargain.
Hainesworth , Partee , and Martinez preceded Muniz . In 2007, Muniz was convicted of two counts of indecent assault of a person under thirteen years of age. At that time, Muniz would have been required to register as a sexual offender for ten years. However, Muniz absconded before sentencing, and was not apprehended and sentenced until 2014. At sentencing, the court ordered Muniz to comply with lifetime sexual offender registration requirements under SORNA. This Court affirmed Muniz's judgment of sentence. Muniz sought allowance of appeal in our Supreme Court.
The Supreme Court granted allowance of appeal and examined the factors weighing in favor of finding SORNA punitive. Ultimately, the Muniz Court found the registration conditions of SORNA to be punitive. The Court held that retroactive application of SORNA's registration requirements constituted a violation of both the United States and Pennsylvania's constitutional provisions against ex post facto laws. Consequently, the Court deemed such retroactive applications unconstitutional and therefore invalid.
Finally, following the Muniz decision, the Supreme Court issued a per curiam order in Commonwealth v. Reed , 614 Pa. 342, 168 A.3d 132 (2017). Reed contested the increase of his registration time under his plea bargain. The increase was due to retroactive application of SORNA requirements. A panel of this Court, pre- Martinez and Muniz , determined that Reed was not entitled to relief. This Court found that unlike the appellant in Hainesworth , Reed entered his guilty plea knowing that he could later be required to register as a sexual offender for life, depending on the finding of the Sexual Offender Assessment Board. Thus, our Court held the registration term was not a negotiated part of his plea bargain. The Supreme Court issued a per curiam order reversing that decision, based squarely on Muniz .
We find the facts of this case nearly identical to those in Partee . Appellants failed to comply with the sentencing requirements of their plea bargains, but still attempt to enforce the terms of these agreements. However, in Muniz , our Supreme Court held that the enhanced registration provisions of SORNA constitute punishment, and may not be applied retroactively. Therefore, the reclassifications of the Appellants after the effective date of SORNA cannot stand.
To the extent the Commonwealth claims Appellants failed to demonstrate their plea agreements precluded lifetime registration, Muniz renders such a demonstration unnecessary. Following Muniz , SORNA's sexual offender requirements may not be imposed retroactively on any defendant, regardless of whether the defendant accepted a plea bargain or was convicted at trial. Even offenders who, like Appellants, were sentenced before SORNA became law, have since violated the terms of their probation, and have been resentenced, are not subject to retroactive application of SORNA's requirements.
The Pennsylvania Legislature has endeavored to solve the issue of how to treat these offenders by passing a law to replace the invalidated portions of SORNA. See 2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June 12, 2018) ("Act 29"), amending Title 42 (Judicial Procedure) of the Pennsylvania Consolidated Statutes. Though Act 29 was enacted during the pendency of this appeal, it became effective immediately. In relevant part, its purpose is to eradicate the unlawful retroactive portions of SORNA proscribed in Muniz and instead impose lower periods of registration for offenders who committed applicable crimes between April 22, 1996, and December 20, 2012. See 42 PA.C.S.A. § 9799.52. Rather than increasing Appellants' registration terms, the new law effectively places many of the listed crimes back in a ten-year registration category. See 42 PA.C.S.A. § 9799.55.
"It is hereby declared to be the intention of the General Assembly to ... (4) Address the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz..., and the Pennsylvania Superior Court's decision in Commonwealth v. Butler...." 42 Pa.C.S.A. § 9799.51.
Nevertheless, this Court rightly noted in Commonwealth v. Horning , 193 A.3d 411, 2018 WL 3372367 (Pa. Super., filed July 11, 2018), that SORNA also enhanced registration conditions by adding requirements such as frequent in-person reporting and the publication of an offender's personal information online. The Horning panel aptly identified these additional obligations as noncompliant with Muniz . Problematically, though it reduces the term of years for which these offenders must register, the new Act does not address these additional, more stringent conditions required under SORNA from those imposed under the earlier versions of Megan's Law.
To the extent the Horning Court remanded that case for further proceedings, we note that Horning committed his crimes when Megan's Law II was in effect, but was nevertheless informed he was subject to SORNA. As the Horning Court notes, Muniz 's invalidation of SORNA does not preclude Appellant from registration under Megan's Law on remand, though Megan's Law requirements were not initially imposed.
However, the issue of the possible retroactive application of the legislature's new amendments to Appellants is not before us. The only issue raised by Appellants, and argued to the Court, was whether the reclassification under the then-existing version of SORNA, as applied to each Appellant, was lawful. Under Muniz , we hold that the more onerous registration requirements under these reclassifications are barred. Unless and until the Pennsylvania State Police attempt to again reclassify Appellants, this time under Act 29, and this new reclassification is challenged, this issue is not before the Court. Consequently, we find Muniz abrogates Partee , and hold Appellants are not subject to SORNA's retroactive registration increases. Insofar as the trial court's order relies on Partee , we reverse. Appellants are instead subject to the original periods of sexual offender registration and conditions imposed at the time of their plea bargains, if applicable.
The Pennsylvania State Police has substantive obligations under SORNA, including the enforcement and maintenance of the sexual offender registry. "[The] PSP has enforcement authority with regard to the requirements of SORNA ...." Konyk v. Pennsylvania State Police of Commonwealth of Pennsylvania , ––– Pa. ––––, 183 A.3d 981, 987 (2018).
To the extent Appellants' reporting requirements increased after their plea bargains under later versions of Megan's Law, prior to the imposition of SORNA, that issue has not been raised or briefed, and is consequently not before us.
Orders reversed. Jurisdiction relinquished.
President Judge Emeritus Bender, Judge Shogan, Judge Lazarus, Judge Olson, and Judge Dubow join the opinion.
Judge Bowes files a dissenting opinion.
Judge Moulton and Judge Solano did not participate in the consideration or decision of this case.
In these consolidated appeals, Appellants were convicted of varying offenses that were subject to sexual offender registration obligations pursuant to the body of laws generically referred to as "Megan's Law." Later, each violated probation and was resentenced. In the intervening years, Megan's Law was replaced by SORNA, which imposed more onerous obligations than which existed at the time of Appellants' pleas. Appellants sought to avoid the more stringent requirements by filing motions seeking enforcement of the sexual offender registration obligations in effect at the time of their guilty pleas, based upon Commonwealth v. Hainesworth , 82 A.3d 444 (Pa.Super. 2013) (en banc ) (affirming order of trial court that stated appellee was not required to register as a sex offender as result of plea bargain). See Commonwealth v. Martinez , 637 Pa. 208, 147 A.3d 517 (2016) (approving Hainesworth ).
The trial court denied each petition, relying on Commonwealth v. Partee , 86 A.3d 245 (Pa.Super. 2014), which held that a probation violation constituted a failure to abide by the terms of the plea agreement, thereby voiding that agreement. This en banc panel was set to address whether Partee should be overruled. Rather than decide that issue, the learned Majority chooses to answer a wholly different question, namely, whether Appellants are now serving an illegal sentence due to the subsequent holding in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (OAJC), which declared SORNA to constitute punishment. The Majority does not address the fundamental restriction in our plea enforcement line of cases, which is that we could not reach issues pertaining to the legality of the sentences. We therefore lack jurisdiction to apply Muniz retroactively, as the Majority has done. Moreover, the sua sponte decision to address Appellants' sentences is unnecessary, as the Legislature has amended SORNA and applied Muniz retroactively. Finally, the Legislature enacted Act 10 to fill in the gap caused by the retroactive application of Muniz . Accordingly, I dissent.
Preliminarily, I disagree with the Majority's framing of what is at issue in these appeals. The Majority states that the trial court "ordered Appellants to comply with the new registration conditions and terms assigned to their crimes under SORNA," and then elects to apply Muniz to these cases. "We are constrained to order that under Muniz , the trial court may not increase their registration requirements under SORNA." Majority Opinion at 301–02. This characterization is incorrect. Appellants' SORNA obligations were imposed by the Legislature and the Pennsylvania State Police, not the trial court. The trial court simply denied motions seeking restoration of non-SORNA obligations as contained within their plea agreements.
Muniz has nothing to do with whether Appellants are entitled to restoration of their prior plea bargains. The specific question presented on appeal was: "Whether Appellants' plea agreements should be enforced with respect to the length or fact of sexual offender registration where they violate a condition of probation?" Appellants' brief at 2. Muniz did not abrogate Partee 's holding that criminal defendants who breach their plea agreements by violating the terms of probation are not entitled to enforcement of their bargains. I would apply Partee , which I believe was correctly decided, and hold that Appellants' breach of their agreement precludes enforcement of the earlier bargain. I would therefore affirm the orders.
This resolution would theoretically leave the SORNA portions of Appellants' sentences intact, but for the subsequent legislative action, discussed infra . The Majority endeavors to address that point, by avoiding the question presented on appeal and answering whether this Court should address the legality of Appellants' sentences by retroactively applying the holding in Muniz . We do not have jurisdiction to do so.
These cases are appeals from orders denying motions to enforce plea agreements, and a critical point in Hainesworth and its progeny was whether such motions were subject to the PCRA, since, if so, such motions would have to comply with the PCRA's one-year time bar. The Majority declines to discuss how we may address the legality of Appellants' sentences in a non-PCRA setting by observing that there is "no reason to conclude Muniz overruled our jurisdiction to review the decisions of trial courts to enforce plea bargains, especially given Martinez ." Majority Opinion, at 307. Relatedly, the Majority states that "we may correct an illegal sentence sua sponte so long as we maintain jurisdiction over the case." Id. at 308. I agree that Muniz did not overrule our jurisdiction to enforce plea agreements, but that is because Muniz has nothing to do with plea agreements.
Suppose a defendant files a motion for a return of property seized during the criminal proceedings. No one would suggest that the court's jurisdiction to address that matter gives the court jurisdiction to address the legality of any sentence imposed in that case.
The Majority erroneously assumes that we may apply Muniz 's holding to these Appellants by asserting that Muniz abrogated Partee . I agree with that statement insofar as Muniz holds that requiring persons convicted of offenses without adequate notice of the SORNA obligations cannot be ordered to comply with SORNA. The problem, however, is that this conclusion does not supply an answer as to whether Muniz 's rule retroactively applies to these offenders. Our current precedents hold that Muniz does not satisfy the exception to the PCRA's one-year time bar pertaining to new constitutional rights. Commonwealth v. Murphy , 180 A.3d 402 (Pa.Super. 2018). Therefore, our Court continues to affirm judgments of sentence that are no less unconstitutional than Appellants' sentences. The existence of Murphy disproves the Majority's statement that "reclassifications of the Appellants after the effective date of SORNA cannot stand." Majority Opinion at 310. Murphy accepts that SORNA classifications may remain in place notwithstanding Muniz , and we therefore cannot simply ignore Partee despite the fact that affirming on that basis raises the possibility of affirming a sentence that Muniz says is illegal.
The Majority has overlooked the distinction between jurisdiction to address the legality of sentence, and what body of law applies to the legality of that sentence. As this Court has observed with respect to attempts to apply Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) in collateral proceedings:
Appellant conflates the concept of illegal sentences with whether Alleyne can be applied retroactively in the collateral review context. [Our Supreme Court] clearly articulated that the fact that Alleyne may raise a legality-of-sentence issue does not obviate the need for a retroactivity analysis as to whether Alleyne can be applied to a collateral attack on a judgment of sentence.
Commonwealth v. Ciccone , 152 A.3d 1004, 1007 (Pa.Super. 2016) (en banc ).
Therefore, the Majority seeks to apply Muniz retroactively, without acknowledging the fact that the continuing existence of cases like Murphy means that Muniz would henceforth apply in a disparate fashion. Fortunately, this issue is one we need not answer since the Legislature has already applied Muniz retroactively. In response to Muniz , the General Assembly amended SORNA to include the following language: "This subchapter shall apply to individuals who committed a sexually violent offense on or after December 20, 2012, for which the individual was convicted." 42 Pa.C.S. § 9799.11(d). That language has freed Appellants and all offenders who committed their crimes before SORNA was law from its punitive obligations, which is precisely what Muniz demands. Thus, the Legislature has itself applied Muniz retroactively and has abrogated Murphy . Additionally, effective February 21, 2018, the Legislature enacted Act 10, which added a new subchapter to SORNA, "Continued Registration of Sexual Offenders." 42 Pa.C.S. §§ 9799.51 - 9799.75. The stated purpose of Act 10 was, inter alia , to address Muniz , and it applies to the following individuals:
Whether that would be permissible is a difficult question. This Court has held that Muniz created a substantive rule of constitutional law that must apply retroactively in timely PCRA proceedings. Commonwealth v. Rivera–Figueroa , 174 A.3d 674, 678 (Pa.Super. 2017). Simultaneously, Muniz does not satisfy the PCRA's time-bar exception pertaining to newly-announced constitutional rights. Commonwealth v. Murphy , 180 A.3d 402 (Pa.Super. 2018). Therefore, similarly-situated offenders, i.e. persons whose criminal sentences were already final when Muniz was announced, are treated differently.
While I believe that Murphy was correctly decided as a matter of statutory interpretation, States are arguably prohibited from refusing to grant retroactive effect to new substantive rules of constitutional law. See Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (States required to give retroactive effect to such rules). Montgomery controls as to questions of federal law. "If a state collateral proceeding is open to a claim controlled by federal law , the state court has a duty to grant the relief that federal law requires. Id. at 731 (emphasis added, quotation marks and citation omitted). In turn, we have held that the binding precedent in Muniz "is confined to the determination that SORNA's registration requirement is punishment that runs afoul of the ex post facto clause of the Pennsylvania Constitution when applied retroactively." Commonwealth v. Hart , 174 A.3d 660, 667 n.9 (Pa.Super. 2017).
If Muniz simply represents the announcement of a pure state law claim, disparate retroactive application may or may not be permissible. Cf . Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1, 8 (2013) (noting that the federal retroactivity model "is not necessarily a natural model for retroactivity jurisprudence as applied at the state level."). Suffice to say, the necessity of applying Muniz in the absence of controlling legislation is a complicated question, and one we need not decide.
To the extent that the Majority disagrees with my position that the Legislature has retroactively applied Muniz , I would note that the Majority has crafted a retroactivity scheme in which only some offenders receive the benefit of Muniz . Offenders who have no plea bargain to enforce or elected to go to trial cannot take advantage of the Majority's theory, yet they too are serving unconstitutional sentences that the Majority posits "cannot stand."
Act 29 of 2018 reenacted Act 10, effective June 12, 2018.
--------
This subchapter shall apply to individuals who were:
(1) convicted of a sexually violent offense committed on or after April 22, 1996, but before December 20, 2012, whose period of registration with the Pennsylvania State Police, as described in section 9799.55 (relating to registration), has not expired; or
(2) required to register with the Pennsylvania State Police under a former sexual offender registration law of this Commonwealth on or after April 22, 1996, but before December 20, 2012, whose period of registration has not expired.
42 Pa.C.S. § 9799.52.
Additionally, I note that the Majority declares that "Appellants are instead subject to the original periods of sexual offender registration and conditions imposed at the time of their plea bargains, if applicable." Majority Opinion at 311. It is unclear what the opaque language "if applicable" means, and the Majority dispenses with the need to answer that question by claiming that the issue is not before us. The Majority has fashioned a kind of severability law by reviving the former obligations through judicial fiat.
However, the issue of the possible retroactive application of the legislature's new amendments to Appellants is not before us. The only issue raised by Appellants, and argued to the Court, was whether the reclassification under the then-existing version of SORNA, as applied to each Appellant, was lawful. Under Muniz , we hold that the more onerous registration requirements under these reclassifications are barred. Unless and until the Pennsylvania State Police attempt to again reclassify Appellants, this time under Act 29, and this new reclassification is challenged, this issue is not before the Court.
Majority Opinion at 310 (footnote omitted).
Speaking to this point, it appears to me that the enabling legislation of SORNA may have eliminated all prior versions of Megan's Law. See 42 Pa.C.S. § 9799.41 (listing provisions that shall expire on December 20, 2012); Commonwealth v. Derhammer , 173 A.3d 723 at 726 (Pa. 2017) ("As noted, Megan's Law III expired and was replaced by SORNA[.]"). There is some confusion regarding whether Megan's Law II continued to exist following the enactment of Megan's Law III. See id. at 725 n.4 ("Megan's Law III did not completely repeal and replace Megan's Law II; rather, it made significant changes to Megan's Law II."). Nevertheless, the notion that some remnants of Megan's Law II survive in vestigial form seems questionable, and I am skeptical of an analytical framework that requires Appellants to comply with statutes that may no longer exist.
Finally, the Majority emphasizes that its disposition is simply giving Appellants what they asked for: the restoration of their prior obligations. However, the Appellants are not entitled to that relief under Partee , and, in any event, that relief was sough in a pre- Muniz world. We do not know if Appellants herein would continue to ask for restoration of their prior bargains post- Muniz and the changes in law. It may be that some of these Appellants would pursue the theory outlined above, that in the absence of SORNA obligations, all prior obligations were eliminated. Or perhaps they would wish to pursue some other theory. The Majority has rendered an advisory opinion on this point, finding, without the benefit of any advocacy, that Appellants must comply with their previous obligations.
"[W]e have known that, from time to time, judicial decisions will leave a law in pieces. It is the legislators' (and not the judges') job to put those pieces back together. We interpret the law. We do not make it." Derhammer , supra at 733 (Pa. 2017) (Wecht, J., concurring). Muniz left the law in pieces, and we could not do the work of putting it back together even if the Legislature had opted to remain silent. But they have spoken, and there is no need to create a cacophony by adding our voice. I therefore respectfully dissent.