Com. v. Zeldich, L. ( 2015 )


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  • J. A15038/15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    Appellee          :
    :
    v.                      :
    :
    LEONID ZELDICH,                             :
    :
    Appellant         :     No. 2641 EDA 2014
    Appeal from the Order August 14, 2014
    In the Court of Common Pleas of Bucks County
    Criminal Division No(s).: CP-09-CR-0006495-2008
    BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 07, 2015
    Appellant, Leonid Zeldich, appeals from the order entered in the Bucks
    County Court of Common Pleas denying his petition to enforce his plea
    agreement or for a writ of habeas corpus. Appellant claims his 2009 plea
    agreement included a bargain for a ten-year period of sexual offender’s
    registration and he should not be subject to the current lifetime registration
    requirement under the Sex Offender Registration and Notification Act
    (“SORNA”).1 We affirm.
    We adopt the trial court’s summary of the facts underlying Appellant’s
    conviction for attempted aggravated indecent assault,2 as well as simple
    *
    Former Justice specially assigned to the Superior Court.
    1
    42 Pa.C.S. §§ 9799.10-9799.41 (effective Dec. 20, 2012).
    2
    18 Pa.C.S. §§ 901(a), 3125(a)(1).
    J. A15038/15
    assault and terroristic threats.3 See Trial Ct. Op., 11/25/14 at 1-2. When
    negotiating the instant plea agreement,4 the Commonwealth, in relevant
    part, offered to nol pros charges of attempted involuntary deviate sexual
    intercourse and involuntary deviate sexual intercourse.5      See N.T. Guilty
    Plea, 4/20/09, at 19.     Additionally, the Commonwealth offered to amend
    Count I of the information from a charge of attempted sexual assault 6 to
    attempted aggravated indecent assault. See id. There was no agreement
    as to sentencing.
    Appellant appeared at a plea hearing on April 20, 2009. After the trial
    court accepted Appellant’s plea, the Commonwealth stated, “Commonwealth
    is requesting sentence for Megan’s Law.”7 Id. at 19-20. The court apprised
    3
    18 Pa.C.S. §§ 2701(a)(1), 2706(a)(1). The charges of simple assault and
    terroristic threats were listed as Counts II and III on the information.
    Neither of these counts are relevant to the issue in this appeal.
    4
    Jack McMahon, Esq., represented Appellant in his plea proceedings, and
    Mary Maran, Esq., appeared as substitute counsel on Attorney McMahon’s
    behalf at sentencing.
    5
    18 Pa.C.S. §§ 901(a), 3123(a)(1)-(2). The information filed against
    Appellant listed the above referenced charges as Counts IV and V.
    Additionally, the Commonwealth agreed to nol pros Counts VI through IX
    relating to burglary, 18 Pa.C.S. § 3502(a), criminal trespass, 18 Pa.C.S. §
    3503, unlawful restraint, 18 Pa.C.S. § 2902(a), and harassment, 18 Pa.C.S.
    § 2709(a)(1).
    6
    18 Pa.C.S. §§ 901(a), 3124.1.
    7
    At the time of his plea, Appellant was subject to the reporting requirements
    in 42 Pa.C.S. §§ 9791-9792 and 42 Pa.C.S. §§ 9795.1-9799.9, commonly
    known as “Megan’s Law III.” That version of the law required a ten-year
    registration period for those convicted of a single attempt to commit a
    sexual offense. 42 Pa.C.S. § 9793(b)(2). However, an offender could be
    2
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    Appellant of the possible registration requirements of his plea. 8 Id. at 21-
    28. Appellant confirmed he understood his plea carried a possible ten-year
    registration period or lifetime registration if the court found him to be an
    SVP.   Id. at 27.    Appellant made no other statements regarding sexual
    offender’s registration at the plea hearing. See id. The record of the plea
    hearing contained no other reference to a ten-year registration period. See
    id. The court deferred sentencing and ordered an SVP assessment by the
    Sexual Offenders Assault Board (“SOAB”). Id. at 19, 26.
    On September 22, 2009, the trial court convened an SVP and
    sentencing hearing.     The court noted the SOAB examiner determined
    Appellant did not meet the criteria for SVP status.          N.T. Sentencing,
    subject to lifetime registration period if he was found to be a sexually violent
    predator (“SVP”). See 42 Pa.C.S. § 9795.1(b)(2).
    8
    Appellant also completed a written notice form that was attached as an
    addendum to his guilty plea statement. Paragraph 10 of that form stated:
    I understand that if I have two or more convictions of any
    of the offenses set forth in 42 Pa.C.S.A. Section 9795.1(a)
    or if I am convicted of [rape, involuntary deviate sexual
    intercourse, sexual assault, aggravated indecent assault,
    incest where the victim is under twelve years of age]; or if
    I am designated by the Court as a sexually violent
    predator that I will be subject to lifetime registration.
    Otherwise the period of registration shall be ten (10)
    years.
    Addendum to Guilty Plea Statement, Registration of Sexual Offenders: 42
    Pa.C.S. § 9791, et seq., 4/20/09, at ¶ 10. Appellant initialed the paragraph
    and signed the bottom of the form. The trial court, when apprising Appellant
    of the registration requirements, reread the text of the form to him.
    3
    J. A15038/15
    9/22/09, at 5.     In response, the Commonwealth stated, “[t]hat being the
    case, [Appellant] would be subject to a ten-year reporting requirement.” Id.
    The court sentenced Appellant to two-and-a-half to ten years’ imprisonment
    for attempted aggravated indecent assault.9 Id. at 34. It found Appellant
    was not an SVP and ordered him to comply with a ten-year sexual offender’s
    registration requirement.10 Id. at 36-37.
    On December 20, 2012, SORNA took effect. Appellant was serving his
    sentence on that date.11     SORNA classifies attempted aggravated indecent
    assault as a Tier III sexually violent offense, which carries a lifetime
    registration requirement.     42 Pa.C.S. §§ 9799.12, 9799.14(d)(7), (14).
    Authorities informed Appellant of this new registration requirement.        On
    9
    The court imposed no further penalties on the remaining counts.
    10
    Appellant filed, but subsequently withdrew, an appeal from the judgment
    of sentence. He then filed a timely Post Conviction Relief Act (“PCRA”), 42
    Pa.C.S. §§ 9541-9546, petition asserting counsel’s ineffectiveness during
    sentencing, which the PCRA court received on December 17, 2009. On
    March 26, 2010, the PCRA court denied relief following a hearing. Appellant
    did not appeal.
    11
    SORNA requires “[a]n individual who, on or after the effective date of this
    section, is, as a result of a sexually violent offense, an inmate in a State or
    county correctional institution of this Commonwealth . . .” to register. 42
    Pa.C.S. § 9799.13(2). SORNA abolished a distinction in Megan’s Law III
    between completed and inchoate crimes.                 Compare 42 Pa.C.S.
    § 9799.14(d)(14), with 42 Pa.C.S. § 9793(b)(2).
    4
    J. A15038/15
    November 7, 2013, Appellant, through present counsel,12 filed the instant
    petition to enforce his plea agreement or for a writ of habeas corpus.
    The trial court heard arguments on Appellant’s petition on December
    19, 2013.    N.T. Habeas Proceeding, 12/19/13, at 5.        The Commonwealth
    argued Appellant’s filing constituted an untimely PCRA petition and the court
    therefore lacked jurisdiction to consider it. Id. On December 31, 2013, the
    court dismissed Appellant’s petition without considering its merits. Appellant
    filed a timely motion for reconsideration on January 10, 2014, arguing the
    time limitations of the PCRA did not apply. On January 12, 2014, the trial
    court scheduled argument but granted the Commonwealth’s request for a
    continuance.
    During the continuance, this Court decided Commonwealth v.
    Bundy, 
    96 A.3d 390
     (Pa. Super. 2014).            In Bundy, we reiterated, “the
    statutory and rule-based requirements governing a PCRA petition do not
    apply to a challenge to the retroactive application of Megan's Law.” 
    Id. at 394
    .
    The   trial   court   heard   arguments    on   Appellant’s   motion   for
    reconsideration on August 11, 2014, concluded it had jurisdiction to consider
    Appellant’s request for relief, and permitted the parties to submit evidence.
    12
    Present counsel, Stan Shnayder, Esq., filed the instant petition on behalf
    of Appellant.
    5
    J. A15038/15
    N.T. Reconsideration, 8/11/14, at 4.       The parties thereafter entered the
    following stipulations:
    1. [I]f [Appellant] were called to testify, he would state
    that,
    a. On the day of his guilty plea, [Appellant] was told by
    his attorney at the time . . . that [the attorney] had just
    spoken to the district attorney and the district attorney
    had made an offer to withdraw all charges which were
    subject to Megan’s Law except Attempted Aggravated
    Indecent Assault. [Appellant] was told [this] would
    mean that (1) [the sentencing] guidelines would be
    reduced and (2) his period of registration would only be
    10 years rather than lifetime.
    b. He would not have pleaded guilty to charges that
    would have required lifetime registration.
    2. [I]f [the] Deputy District Attorney . . . were called to
    testify, he would state that:
    a. . . . During plea negotiations [Appellant’s counsel’s]
    concern was [Appellant’s] exposure to a lengthy prison
    sentence and therefore [Appellant’s counsel’s] focus
    was to reduce [the applicable] sentencing guidelines.
    The issue of the Megan’s Law registration period was
    not a focus of the plea negotiations and the [deputy
    district attorney] does not have a recollection of
    discussing the registration period with [Appellant’s
    counsel].    However, at the time the charges were
    reduced, the DA’s office was fully aware that
    [Appellant]’s registration period under Megan’s Law
    would only be 10 years unless he was determined to be
    a Sexually Violent Predator.
    Stipulation of Parties (“Stipulation”), 8/11/14, at ¶¶ 1(a)-(b), 2(a).
    Appellant’s present counsel argued,
    [Appellant] was looking to reduce his jail exposure.
    But . . . there was no agreement of any kind with regards
    to what the sentence would be. . . . And the only thing
    6
    J. A15038/15
    that was stated [about sexual offender’s registration] on
    the record at sentencing [was] that it is in fact a ten-year
    registration [requirement for attempted aggravated
    indecent assault].
    [N]obody stated specifically that [a ten-year registration
    requirement] is what we bargained for because nobody
    saw [the Sex Offender Registration and Notification Act,
    which became effective in 2012,] coming into effect . . . .
    Everyone was under the assumption . . . if it’s a ten-year
    registration, it’s going to be a ten-year registration.
    N.T. Reconsideration at 10-11.
    On August 14, 2014, the trial court denied Appellant’s petition,
    concluding, “a ten-year period of registration was not a material term of
    Appellant’s agreement.” Trial Ct. Op. at 12. This timely appeal followed.13
    Appellant raises one issue for our review,
    DID THE LOWER COURT ERR IN DENYING APPELLANT’S
    MOTION TO ENFORCE HIS PLEA AGREEMENT WHERE ALL
    PARTIES TO THE PLEA AGREEMENT REASONABLY
    UNDERSTOOD THAT APPELLANT WOULD ONLY HAVE TO
    REGISTER AS A SEX OFFENDER FOR TEN YEARS AND NOT
    FOR LIFE.
    Appellant’s Brief at 2.
    We summarize Appellant’s argument as follows. The trial court erred
    when it denied his motion to enforce his plea agreement. Id. at 6. Whether
    and for how long a defendant must register as a sexual offender are always
    fundamental terms of an agreement to plead guilty to sexual offenses. Id.
    All parties to the underlying plea agreement understood Appellant would
    13
    Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement to
    which the trial court issued a responsive opinion.
    7
    J. A15038/15
    register as a sexual offender for ten years, not for life.    Id.   During plea
    negotiations, Appellant believed his registration period would be ten years.
    Id. at 5. We conclude no relief is due.
    Preliminarily, we agree with the trial court that a petition to enforce an
    alleged term on the subject of sexual offender’s registration in a plea
    agreement is not subject to the PCRA. See Bundy, 
    96 A.3d at 394
    . Thus,
    the trial court had jurisdiction to consider the merits of Appellant’s petition,
    and this appeal is properly before us. See 
    id.
    Our review of a claim that a party has breached a plea agreement
    requires contract law analysis. See Commonwealth v. Hainesworth, 
    82 A.3d 444
    , 447 (Pa. Super 2013), appeal denied, 
    95 A.3d 276
     (Pa. 2014).
    Because contract interpretation is a question of law, this
    Court is not bound by the trial court’s interpretation. Our
    standard of review over questions of law is de novo and to
    the extent necessary, the scope of our review is
    plenary . . . . However, we are bound by the trial court’s
    credibility determinations.
    Gillard v. Martin, 
    13 A.3d 482
    , 487 (Pa. Super. 2010) (citations omitted).
    Parties must state the terms of a plea agreement on the record and in
    the presence of the defendant.     Pa.R.Crim.P. 590(B)(1).     “If a trial court
    accepts a plea bargain, the defendant who has given up his constitutional
    right to trial by jury must be afforded the benefit of all promises made by
    the district attorney.”   Hainesworth, 
    82 A.3d at 449
     (citation omitted).
    Therefore, when the Commonwealth promises to include a term in a plea
    agreement as inducement or consideration, enforcement of that term is a
    8
    J. A15038/15
    matter of fundamental fairness. 
    Id.
     “The terms of plea agreements are not
    limited to the withdrawal of charges, or the length of a sentence.        Parties
    may agree to—and seek enforcement of—terms that fall outside these
    areas.” 
    Id.
     (citation omitted).
    [D]isputes over any particular term of a plea agreement
    must be resolved by objective standards. A determination
    of exactly what promises constitute the plea bargain must
    be based upon the totality of the surrounding
    circumstances and involves a case-by-case adjudication.
    Any ambiguities in the terms of the plea agreement will be
    construed against the Government.
    Commonwealth v. Kroh, 
    654 A.2d 1168
    , 1172 (Pa. Super. 1995) (citations
    omitted).
    In Hainesworth, we affirmed a trial court’s order to enforce a plea
    agreement that avoided sexual offender’s registration requirements for the
    defendant. Hainesworth, 
    82 A.3d at 450
    . As part of the bargain in that
    case, the Commonwealth withdrew every charge requiring sexual offender’s
    registration. 
    Id. at 448
    . Moreover, the Commonwealth repeatedly assured
    the defendant and the trial court that it was not seeking registration:
    [COURT ASSISTANT:] Is this Megan’s Law?
    [THE COMMONWEALTH:] It is not Megan’s Law. . . .
    [THE COURT:] These are felony sexual assault and they’re
    not Megan’s Law?
    [THE COMMONWEALTH:           T]hey    are   not.     They’re
    statutory—
    [THE COURT:] Statutory sexual assault, felony two.
    9
    J. A15038/15
    [THE COMMONWEALTH:] Is not Megan’s Law.
    
    Id. at 447-48
    .       Based on such objective evidence in the record, we
    determined that the parties negotiated a plea that would not require the
    defendant to register as a sex offender.      
    Id. at 450
    .   We thus held the
    imposition of a registration requirement, based on a subsequent change in
    law, would breach the plea agreement. 
    Id.
    In Commonwealth v. Nase, 
    104 A.3d 528
     (Pa. Super. 2014), appeal
    filed, 922 MAL 2014 (Pa. Dec. 11, 2014).        This Court reversed the trial
    court’s determination that the terms of a plea agreement did not include a
    specific period of registration.      Id. at 535.   In Nase, the defendant
    bargained to plead to, inter alia, unlawful contact with a minor. Id. at 528.
    At the time, conviction for that offense carried a ten-year registration
    requirement.   Id.      When SORNA took effect, the registration period for
    unlawful contact increased from ten to twenty-five years.     Id. at 528-29.
    The defendant filed a motion for specific performance of a ten-year
    registration period.    Id. at 529.    The trial court denied the defendant’s
    petition. Id. at 528.
    On appeal, the Nase Court observed,
    At the plea hearing, counsel for [the defendant] stated,
    “he’s aware that Count VI of the Information—because
    Count I does not have it, Count VI was added, and that
    carries a 10–year reporting requirement of Megan’s Law.”
    Counsel added, “we actually discussed at length that
    statutory Count I does not carry a Megan’s Law charge
    10
    J. A15038/15
    with it. That’s why Count VI was added, and he is in full
    agreement with that.”
    Id. at 534 (citations omitted). Further, we observed the Commonwealth, at
    sentencing, notified the defendant of a ten-year registration requirement
    and the defendant’s counsel asserted, “‘[The defendant] and I several
    months ago actually went over all of the specific registration requirements of
    Megan’s Law.’” Id. (citation omitted).
    On appeal, the Commonwealth conceded it “requested [the defendant]
    to plead guilty to unlawful contact with a minor precisely so that he would be
    subject to registration.” Id. It, however, asserted that “the length of the
    registration was not a part of the agreement, only the fact of registration.”
    Id. at 532.    The Nase Court rejected the Commonwealth’s argument and
    concluded, “[T]he record in this case does establish that a ten-year period of
    registration was part of [the] plea agreement.” Id. at 534. We reasoned:
    To suggest that [the defendant] did not contemplate a ten-
    year period of registration and expressly agree to that
    term by pleading guilty to unlawful contact with a minor is
    contrary to the record. . . . To the extent that the
    Commonwealth asserts that registration was not part of
    the plea agreement, such a position is belied by the fact
    that [the defendant] expressly agreed to plead guilty to
    unlawful contact with a minor so as to be subject to the
    then-extant registration period. . . . Since the law at that
    time mandated registration for a period of ten years, that
    period of registration was contemplated as part of his plea
    agreement.
    Id. (citations omitted).   We thus held the defendant was entitled to the
    benefit of the bargain for a ten-year registration period. Id. at 534-35.
    11
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    In Commonwealth v. Giannantonio, 
    114 A.3d 429
     (Pa. Super.
    2015), we affirmed the trial court’s conclusion that a defendant was subject
    to   an increased sexual offender’s registration period      under   SORNA,
    notwithstanding a federal plea agreement. Id. at 435-36. In that case, the
    defendant’s federal “guilty plea required [him] to register and report
    pursuant to the law of the state in which he would reside following his
    release . . . .”   Id. at 435.     The defendant established residence in
    Pennsylvania upon his release from federal prison in 2007 and complied with
    the ten-year registration requirement in effect at the time. Id. at 432. In
    2012, SORNA increased the applicable registration period to fifteen years.
    Id. at 433.    He sought specific performance of a ten-year registration
    requirement in response, alleging it was a term of his federal plea
    agreement. Id. at 435. The trial court denied his petition. Id. at 432.
    On appeal to this Court, the defendant, in relevant part, asserted he
    was entitled to relief under Hainesworth. Id. at 435. The Giannantonio
    Court agreed with the trial court that the defendant “failed to demonstrate
    through credible evidence that registration for a ten-year period was a
    bargained[-]for element of his negotiated plea . . . .”      Id. at 435-36
    (quotation marks omitted).    We observed, “The record contains neither a
    colloquy from the federal guilty plea or sentencing hearings nor testimony or
    any other evidence demonstrating that counsel negotiated a specific ten-
    year registration period.” Id. at 435. We thus distinguished Hainesworth,
    12
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    noting “there [was] no evidence [that the defendant’s] guilty plea was
    negotiated or structured to insure that he would register for only a ten-year
    period[,]” and concluded the defendant was not entitled to relief. Id.
    Instantly, the record contains no repeated assurances from the
    Commonwealth like those on which the Court relied in Hainesworth. See
    Hainesworth, 
    82 A.3d at 448
    . Rather, the only references to a registration
    requirement were the Commonwealth’s statement that it intended to seek a
    “Megan’s law sentence” and the written and oral notices of the possible
    registration consequences of Appellant’s plea.   N.T. Guilty Plea at 20, 27;
    Addendum to Guilty Plea Statement at ¶ 10.       As well, the Commonwealth
    has not conceded Appellant’s registration was part of the bargain.       See
    Stipulation at ¶ 2(a); Nase, 104 A.3d at 532.
    Moreover, the circumstances and structure of the plea do not evince
    an express or implied agreement upon a registration period. Although the
    instant case is comparable to Nase, we note that in Nase, the defense
    counsel made statements indicating the defendant knew a new count had
    been added to his plea in order to subject him to ten years of registration,
    and that he was in “full agreement” with the addition. Nase, 104 A.3d at
    534. Here, no such statements exist.
    Further, the record belies Appellant’s contention that all parties
    understood his plea agreement to absolutely limit his registration period to
    ten years.   Appellant specifically acknowledged he could be subject to a
    13
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    lifetime registration requirement if the trial court found he was an SVP.
    Moreover, while both parties stipulated to the registration requirements in
    effect at the time of the plea, that stipulation did not evince bargaining with
    respect to a ten-year registration period. Lastly, the agreement to amend
    Count I from attempted sexual assault to attempted aggravated indecent
    assault supported the Commonwealth’s assertions that the parties’ intent
    was to reduce the standard range minimum sentence. See Stipulation at ¶¶
    1(a), 2(a).     Specifically, both the pre-amended and the amended charges
    were second-degree felonies and both carried a ten-year registration
    requirement. However, the agreed-upon amendment to Count I lowered the
    applicable offense gravity score from twelve to eleven, and thus resulted in a
    lower standard range suggested minimum sentence.
    Thus, the instant record distinguishes Appellant’s plea agreement from
    those discussed in Nase and Hainesworth. See Nase, 104 A.3d at 534;
    Hainesworth, 
    82 A.3d at 447-48
    . When considering the circumstances as
    a whole, we agree with the trial court that there was no objective evidence
    parties bargained for sexual offender’s registration or a specific period of
    registration.    See Nase, 104 A.3d at 532; Kroh, 
    654 A.2d at 1172
    .
    Accordingly, we discern no error in the trial court’s determination that a ten-
    year sexual offender’s registration period was not a material element of the
    14
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    plea agreement.14      We therefore affirm the order denying Appellant’s
    petition to enforce his plea agreement.
    Order affirmed.
    Judge Mundy joins the memorandum.
    Judge Bowes files a dissenting memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/7/2015
    14
    We note the Pennsylvania Supreme Court, on April 8, 2015, granted
    allowances of appeal to consider the following question:
    Whether the Superior Court’s application of its decision
    Commonwealth v. Hainesworth to the instant cases
    impermissibly expanded the contract clause to bind the
    Commonwealth to collateral consequences over which the
    Commonwealth has no control?
    Commonwealth v. Martinez, 
    112 A.3d 1207
     (Pa. 2015); see also
    Commonwealth v. Shower, 
    112 A.3d 1210
     (Pa. 2015).
    15
    

Document Info

Docket Number: 2641 EDA 2014

Filed Date: 12/7/2015

Precedential Status: Precedential

Modified Date: 12/7/2015