Com. v. Williams, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEXTER WILLIAMS,
Appellant No. 1995 EDA 2014
Appeal from the Order Entered June 11, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004567-2002
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 22, 2015
Appellant, Dexter Williams, appeals from the order dated June 11,
2014 denying Appellant’s petition for exemption from the registration
requirements of the Sex Offender Registration and Notification Act (SORNA),
42 Pa.C.S.A. § 9799.10, et seq. Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On May 15, 2002, police arrested Appellant and the Commonwealth
charged him with various sexual offenses including, inter alia, rape,
involuntary deviate sexual intercourse, sexual assault, indecent assault, and
corrupting the morals of a child. On December 4, 2002, Appellant entered
into a plea agreement and pled guilty to one count of sexual assault. The
Commonwealth agreed to nolle pros the remaining charges. On March 3,
2003, pursuant to the plea agreement, the trial court sentenced Appellant to
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three to six years of incarceration. The trial court further ordered that
Appellant was required to register as a sex offender for ten years following
his release from prison.
On December 20, 2012, SORNA became effective and Appellant was
notified that his sexual assault conviction was now classified as a Tier III
offense that subjected him to lifetime sex offender registration. On May 3,
2013, Appellant filed a petition to enforce the plea agreement and/or a writ
of habeas corpus, requesting exemption from the applicability of SORNA’s
lifetime registration requirements. Appellant argued that, as part of his
negotiated plea agreement, the Commonwealth agreed to a 10-year period
of registration as a sex offender. Both parties submitted legal memoranda
and the trial court held an evidentiary hearing on June 9, 2014. By order
entered on June 11, 2014, the trial court denied relief. This timely appeal
resulted.1
On appeal, Appellant presents the following issues for our review:
1. Whether the lower court erred as a matter of law by
finding the updated 2012 SORNA lifetime registration
requirements apply retroactively to Appellant in
contradiction to the registration terms in his
bargained-for plea agreement.
____________________________________________
1
On July 8, 2014, Appellant filed a notice of appeal. On July 22, 2014, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
August 11, 2014. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on December 2, 2014.
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2. Whether the lower court erred as a matter of law by
finding the retroactive application of lifetime registration
requirements did not violate the ex post facto clauses of
the United States and Pennsylvania constitutions.
Appellant’s Brief at 4 (suggested answers omitted; italics supplied).
In his first issue presented, Appellant contends that the trial court
erred as a matter of law by determining that the new SORNA registration
requirements, which retroactively required lifetime registration as a sex
offender, was not a breach of his negotiated plea agreement. Id. at 9-15.
More specifically, Appellant argues:
Appellant chose to plead guilty because his attorney crafted
a negotiated plea agreement with the district attorney that
limited his reporting requirement to ten years. Appellant
bargained for the reduced reporting requirement. He
testified that he rejected two prior plea offers without
reduced reporting. He considered the reduced reporting
requirement to be the most significant aspect of the plea
agreement. The registration period was explicitly discussed
during sentencing. Therefore, the registration period was a
term of the agreement as reasonably understood by the
parties.
Id. at 11. Appellant argues that the trial court erred in determining he was
“not entitled to relief because he was subject to lifetime reporting
requirements when he was sentenced[,]” because the trial court must
“honor the terms of the plea agreement.” Id. at 12. Appellant asserts that
the trial court mistakenly relied on our Supreme Court’s decision in
Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008), because that case
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dealt with withdrawal of a guilty plea, whereas, here, Appellant was
attempting to enforce his guilty plea agreement. Id. at 14.
We apply the following standard of review. “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.
Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010). “Where a plea
agreement has been entered of record and accepted by the trial court, the
state is required to abide by the terms of the plea agreement.”
Commonwealth v. Mebane, 58 A.3d 1243, 1246 (Pa. Super. 2012), citing
Santobello v. New York, 404 U.S. 257 (1971). We must look to “what the
parties to this plea agreement reasonably understood to be the terms of the
agreement.” Commonwealth v. Partee, 86 A.3d 245, 248 (Pa. Super.
2014) (citation omitted). “We look to the totality of the surrounding
circumstances and any ambiguities in the terms of the plea agreement are
construed against the Commonwealth.” Id. (citation, internal quotations,
and brackets omitted). “The dispositive question [is] whether registration
was a term of the bargain struck by the parties.” Id. (citation omitted).
Here, there is no written plea agreement. However, the certified
record contains the notes of testimony from Appellant’s 2002 guilty plea
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hearing.2 At the beginning of that proceeding, the Commonwealth set forth
the terms of the negotiated plea agreement as such:
Judge, the agreement that we’ve reached is that [Appellant]
will plead guilty to Information D, which is a sexual assault
felony in the second degree. He’s agreed to a three to six
year term of incarceration in a State Correctional Facility.
He must also participate in and follow all recommendations
of a sex offender’s evaluation and a second, psych-sex
evaluation. He’s also to have no contact with the victim in
this case, and no contact with any minor unless it is done
under the supervision of a person who had been approved
by the parole board and who knows of [Appellant’s]
conviction. And that’s the extent of it, Judge.
N.T., 12/4/2002, at 3-4. There was, however, no explicit mention of
registration requirements.
The trial court then directed defense counsel to review Appellant’s
rights with him. With regard to sexual offender registration, defense counsel
recited and Appellant unequivocally acknowledged:
All right. If you fail to register and verify your current or
intended residence and be photographed by the
Pennsylvania State Police for a ten-year period, [you are]
committing a felony of the third-degree. It’s a very serious
matter if you don’t register when you move.
* * *
Okay. Now do you understand you’re not being sentenced
today, you’re actually going to have a psycho-sexual
evaluation and then we’re going to come back here for
____________________________________________
2
The Commonwealth erroneously claims, “the actual transcript of the guilty
plea is not part of the court record.” Commonwealth’s Brief at 14. Upon
review of the certified record, however, those transcripts were in fact
included and we rely upon them herein.
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sentencing? And, depending on what that evaluation
reveals, there could be some very strict requirements as far
as registration. Didn’t I explain that to you?
* * *
Okay. Okay. Your Honor, may I just have one moment?
Thank you. The D.A. had just brought to my attention, I
had reviewed this with you, but I want to make it more –
make it more specific with you. Because of the nature of
the offense, this isn’t an attempt, this is an actual sexual
assault case, it indicates here that there’s actually a life-
time requirement to register. So it’s not just ten
years, it’s a life-time requirement, do you understand
that, sir?
Id. at 18-19 (emphasis added). Appellant responded on the record that he
understood all of the terms. At the end of the hearing, the trial court
accepted the plea and deferred sentencing pending a sexual offender
evaluation. Id. at 24.
In addition, Appellant initialed and signed a guilty plea statement of
rights that was incorporated into the record at the guilty plea hearing. Id.
at 18. “[A] written plea colloquy can supplement an oral colloquy in
demonstrating a voluntary plea.” Commonwealth v. Bedell, 954 A.2d
1209, 1216 (Pa. Super. 2008). In an addendum to the guilty plea
statement, Appellant acknowledged, by initialing, the following paragraphs:
1. By placing my initials on the line provided next to each
paragraph in this document, I agree that I have read,
understand and my lawyer had explained to my satisfaction
the content and meaning of each paragraph in this
document.
If I plead guilty or nolo contendere to sexual assault
[(handwritten)] a sexually violent offense(s) as stated in 42
Pa.C.S. 9795.1:
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* * *
9. I must register and verify my current residences or intended
residences with the Pennsylvania State Police for my
lifetime if:
* * *
(B) I plead guilty or nolo contendere to committing the
crime[] of [….] Sexual Assault, 18 Pa.C.S. [§] 3124.1[.]
Addendum to Guilty Plea Statement, 12/4/2002, at ¶¶ 1, 9.
It was only at sentencing that the Commonwealth and defense counsel
stated that the 10-year period of registration for sexual offenders was
applicable. At sentencing, the Commonwealth stated “he’s got to register
with [the] Pennsylvania State Police for the next 10 years based on his
conviction for sexual assault.” N.T., 3/3/2003, at 19-20. Defense counsel
agreed: “It’s not a lifetime obligation. It’s a ten-year obligation.” Id. at 20.
The trial court then stated:
If you fail to inform your residence – your verification
requirements of your residency sir. Then you must also be
photographed during the 10-year period. If you fail to
perform your obligations under this [l]aw you will be
committing a [f]elony in the third-degree.[…]
Id. at 23. However, the following line of inquiry followed:
The Court: He’s not subject to lifetime
registration?
[Defense]: No he’s not.
[Commonwealth]: Correct.
Id. at 24.
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Based upon all of the foregoing, we conclude that the exchange
between the trial court, the Commonwealth, and defense counsel regarding
the 10-year registration period was not part of the agreed upon plea
negotiations. At the plea hearing, Appellant acknowledged that he was
facing lifetime reporting as a sex offender. He acknowledged further that he
was pleading guilty to sexual assault, a conviction that required lifetime
registration. Thus, a 10-year reporting provision did not contractually bind
the Commonwealth. The trial court accepted the plea agreement and
deferred sentencing. It was only at sentencing that both parties and the
trial court interjected a 10-year requirement. Thus, we have no hesitancy in
finding that, while an error may have occurred at sentencing, the erroneous
reference to a 10-year registration was not a part of the original plea
bargain. In fact, it was the Commonwealth, not Appellant, that faced the
loss of the original bargain when the trial court erroneously sentenced
Appellant to the 10-year period of registration. Accordingly, Appellant’s first
issue lacks merit.
Moreover, we note that in structuring plea agreements, when sex
offender registration is material to negotiations, the Commonwealth will
typically nolle pros the more serious charges that compel a defendant to
register for life to accomplish the parties’ intentions:
While it was not an explicit term of the negotiated plea, it is
apparent that [Partee’s] negotiated plea agreement was
structured so that he would only be subject to a ten-year
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rather than a lifetime reporting requirement[.] The two
charges carrying a lifetime registration requirement were
withdrawn by the Commonwealth as part of the
negotiations, leaving Appellant subject to the less onerous
ten-year reporting requirement then imposed on indecent
assault. []Appellant arguably would be entitled to the
benefit of that bargain.
Partee, 86 A.3d at 249. Here, effective July 10, 2000 and controlling at the
time of Appellant’s plea, sex offender reporting requirements required
lifetime reporting. See 42 Pa.C.S.A. § 9795.1(b)(2) (July 10, 2000). In this
case, the Commonwealth charged Appellant with less serious crimes,
including inter alia indecent assault and corrupting the morals of children.
However, unlike in Partee, there is no evidence that the Commonwealth in
this case agreed to withdraw the most serious charges in negotiating a less
onerous 10-year reporting requirement. Here, the Commonwealth nolle
prossed the most serious charges including rape and involuntary deviate
sexual intercourse. However, the Commonwealth did not agree to nolle pros
the charge of sexual assault, which as explained in detail supra, carried
lifetime registration under both SORNA and the prior statutory scheme. Had
the Commonwealth intended for Appellant to be subject to a 10-year period
of registration, it could have structured the agreement differently to
accomplish that goal, but it did not. For this additional reason, we conclude
that Appellant failed to show he negotiated a plea agreement for a 10-year
period of registration.
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In his second issue presented, Appellant argues that the retroactive
application of SORNA impeded on his contract and, therefore, “is a violation
of the ex post facto laws of Pennsylvania and United States Constitutions.”
Appellant’s Brief at 16. Having already determined that registration was not
a negotiated term of the bargain, this issue is moot. Moreover, as we noted,
Appellant was subject to lifetime registration at the time he entered his plea.
See 42 Pa.C.S.A. § 9795.1(b)(2). SORNA took effect December 20, 2012
and Appellant was again subject to a period of lifetime registration as sexual
assault was classified as a Tier III offense. 42 Pa.C.S.A. § 9799.14(d)(5);
42 Pa.C.S.A. § 9799.15(a)(3). “When performing an ex post facto analysis a
court is concerned solely with whether a statute assigns more
disadvantageous criminal or penal consequences to an act than did the law
in place when the act occurred.” Commonwealth v. Rose, 81 A.3d 123,
129 (Pa. Super. 2013) (internal citation and quotations omitted). Here, the
registration period never changed. Thus, Appellant’s second issue fails.
Order affirmed.
Judge Wecht joins this memorandum.
President Judge Emeritus Ford Elliott notes dissent.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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