Com. v. Duvall, Jr., M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MERRILL MARVIN DUVALL, JR., :
:
Appellant : No. 67 MDA 2015
Appeal from the Order Entered December 22, 2014
In the Court of Common Pleas of Huntingdon County
Criminal Division No(s).: CP-31-CR-0000661-2002
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 31, 2015
Appellant, Merrill Marvin DuVall, appeals pro se from the order entered
in the Huntingdon County Court of Common Pleas, denying his “Motion to
Enforce Plea Agreement.” He argues the trial court erred by failing to honor
his plea agreement which did not require him to register pursuant to the Sex
Offender Registration and Notification Act (“SORNA”).1 Accordingly,
Appellant contends he is serving an illegal sentence. We affirm.
The trial court summarized the facts and procedural history as follows:
*
Former Justice specially assigned to the Superior Court.
1
“SORNA, codified at 42 Pa.C.S.[ ] §§ 9799.10–9799.41, became effective
on December 20, 2012. . . . Pennsylvania courts have also referred to the
current statute as ‘Megan’s Law IV,’ ‘Act 111 of 2011,’ ‘Adam Walsh Child
Protection and Safety Act,’ and the ‘Adam Walsh Act.’” Commonwealth v.
Giannantonio, 114 A.3d 429, 432 n.1 (Pa. Super. 2015).
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Appellant appeared before this [c]ourt on September 2,
2003, and entered a plea of guilty to [i]ncest. Following
the preparation of a Pre-Sentence Report, he was
sentenced on November 17, 2003, to pay the costs of
prosecution and to undergo imprisonment in a state
correctional facility for a period of not less than eighteen
(18) months or more than five (5) years with the effective
date of the sentence being October 21, 2002.[2] By order
dated December 2, 2008, we directed [Appellant] to
comply with any special conditions imposed upon him by
the Pennsylvania Board of Probation and Parole.
Appellant filed on December 10, 2014, his “Motion to
Enforce Plea Agreement”[3] in which he correctly pleaded
that he had not been sentenced by this [c]ourt to register
under the provisions of [SORNA] ([Megan’s] Law), 42
Pa.C.S. 9799.10 et seq. He also correctly pleaded that he
was not assessed as a sexually violent predator. Next, he
cited to the recent decision of the Superior Court of
Pennsylvania in Commonwealth v. Hainesworth, 8[2]
A.3d 444 ([Pa. Super.] 2013) [(en banc), appeal denied,
95 A.3d 276 (Pa. 2014)], where the court enforced a plea
agreement that specifically provided that Hainesworth
would not be subjected to the registration requirement of
2
Appellant avers “on 21 October, 2007 [he] was forced to sign “Megan’s
Law Registration” via the Pennsylvania State Police while [he] was
incarcerated at S.C.I. Cresson.” Appellant’s Brief at 5. Appellant has
appended to his brief a sentence status summary from Bedford County
indicating that he pleaded guilty to failure to comply with registration of
sexual offenders requirement. Appellant’s Brief at Ex. “H.” See Pa.R.A.P.
1921, note (noting that although appellate court may consider only facts
which have been duly certified in record, appellate court may consider
document included in reproduced record─if accuracy of document is not
disputed).
3
We “note that the statutory and rule-based requirements governing a Post
Conviction Relief Act] petition, [42 Pa.C.S. §§ 9541–9546,] do not apply to a
challenge to the retroactive application of Megan’s Law, but that this Court
has jurisdiction to review orders confirming or rejecting a retroactive
registration requirement.” Commonwealth v. Bundy, 96 A.3d 390, 394
(Pa. Super. 2014).
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[Megan’s] Law. Finally, Appellant requests an “order”
enforcing the plea agreement between the
Commonwealth and Petitioner.
Trial Ct. Op., 2/13/15, 2-3 (emphasis added).
Appellant raises the following issues for our review:
1. Did the trial court commit an err [sic] of law by failing to
honor the plea agreement, in that [A]ppellant was not
required to register pursuant to 42 Pa.C.S. §9799.10 et
seq.?
2. Did the court commit an err [sic] of law by issuing a
[sic] order (5) five years after conviction for Appellant to
comply with special conditions by the Pa. Board of
Probation and Parole?
3. Is Appellant currently illegally incarcerated for failure to
register under 42 Pa.C.S. § 9799.10 et seq.?
Appellant’s Brief at 4.
First, Appellant argues the trial court erred in failing to honor the plea
agreement that he was not required to register under Megan’s Law. Id. at
7, 9. He contends that “where a plea bargain has been entered into and is
violated by the Commonwealth, the defendant is entitled, at the least to the
benefit of the bargain.” Id. at 7.
Our review is governed by the following principle: “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 (quotation marks and citation
omitted). “Hainesworth, and [Commonwealth v.] Partee, [86 A.3d 245(Pa. Super.), appeal denied, 97 A.3d 744 (Pa. 2014)], stand for the
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proposition that this Court will specifically enforce parties’ plea bargains.”
Giannantonio, 114 A.3d at 435.
The Giannantonio Court rejected the defendant’s claim that
retroactive application of SORNA would violate his plea agreement. Id.
Unlike in Hainesworth and Partee, there is no
evidence here that Giannantonio’s guilty plea was
negotiated or structured to insure that he would register
for only a ten-year period. 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. Rather, the guilty plea
required Giannantonio to register and report pursuant to
the law of the state in which he would reside following his
release (not necessarily Pennsylvania). We agree with the
trial court’s conclusion that “because [Giannantonio] has
failed to demonstrate through credible evidence that
registration for a ten-year period was a bargained[-]for
element of his negotiated plea, the petition for relief from
SORNA’s requirements for an additional [five] years was
properly denied.”
Id. at 435-36 (citation omitted and emphases added).
Instantly, the trial court opined:
We denied relief because no facts were set forth that
entitled Appellant to relief. In this regard, Appellant did
not plead nor is there anything in the record that
indicates that there was a plea agreement in his
case in 2003 that specifically addressed non-
registration under [Megan’s] Law. . . .
Trial Ct. Op. at 3 (emphasis added). We agree no relief is due.
Appellant has not demonstrated through credible evidence that, based
upon his plea agreement, he was not required to register pursuant to
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Megan’s Law.4 See Giannantonio, 114 A.3d at 435-36. Accordingly,
Appellant’s Motion to Enforce Plea Agreement was properly denied. See id.
Order affirmed.
Judge Wecht joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2015
4
Given our resolution of Appellant’s first issue on appeal, we need not
address issue two. Appellant registered under Megan’s Law on October 21,
2007. Even assuming the Huntingdon County trial court’s December 2, 2008
order is a legal nullity, it has no effect on the Megan’s Law registration
requirement. See 42 Pa.C.S. § 9799.13. We do not address issue three,
viz., the illegal sentence claim, based upon our resolution of issue one. See
infra. Additionally, the purported illegal sentence was imposed in a different
case in Bedford County. See note 2 infra.
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