Com. v. Schade, B. ( 2022 )

J-A17024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERNARD KENNETH SCHADE :
:
Appellant : No. 329 EDA 2022
Appeal from the Order Entered November 24, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000681-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERNARD KENNETH SCHADE :
:
Appellant : No. 767 EDA 2022
Appeal from the Order Entered November 24, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000917-2014
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2022
Appellant Bernard Kenneth Schade appeals pro se from the order
denying his motion to amend his sex offender registration status. Appellant
argues that he is not subject to registration under the Sex Offender
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* Retired Senior Judge assigned to the Superior Court.
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Registration and Notification Act (SORNA II)1 because of the date on which
the offenses were committed. Appellant also challenges the voluntariness of
his guilty plea and the legality of his sentence. In a Memorandum filed on
September 13, 2022, this Court affirmed the order denying Appellant’s motion
to amend his sex offender registration status. Appellant filed a timely
application for reconsideration, which this Court granted. Following
reconsideration, we affirm.
A previous panel of this Court summarized the factual and procedural
history of this matter as follows:
On July 14, 2014, Appellant entered into a negotiated guilty plea
to one count of statutory sexual assault and two counts of
possessing child pornography.[fn1] The underlying facts of
Appellant’s first case[, Docket No. 681-2014,] were that, between
1995 and 1997, he had sexual relations with S.T., a person less
than sixteen years of age. In the second case, [Docket No. 917-
2014,] Appellant possessed 1,101 images of child pornography.
18 Pa.C.S. § 3122.1(a) and 18 Pa.C.S. § 6312(d),
[fn1]
respectively.
In exchange for this plea, the Commonwealth agreed to nolle pros
the remaining charges on both dockets.
Commonwealth v. Schade, 3679 EDA 2015, 2016 WL 6519102, at *1 (Pa.
Super. filed Nov. 3, 2016) (unpublished mem.) (some formatting altered).
We add that the information filed at Docket No. 917-2014 alleged that
Appellant possessed child pornography on April 1, 2014. See Criminal
Information, 917-2014, 5/15/14, at 1. During the guilty plea hearing, the
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1 42 Pa.C.S. §§ 9799.10-9799.75.
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trial court explained to Appellant that he was pleading guilty to charges at two
different informations and cited both docket numbers. N.T. Plea Hr’g,
7/14/14, at 7. The Commonwealth stated that the statutory sexual assault
occurred between 1995 and 1997 as part of its summary of the factual basis
for the plea.2 Id. at 16. However, during the hearing, the Commonwealth
did not specify the date on which Appellant possessed child pornography. Id.
The trial court asked Appellant if he understood that by pleading guilty, he
would be required to register as a sex offender and that he would be evaluated
to determine if he was a sexually violent predator (SVP). Id. at 11-12.
Appellant responded in the affirmative to both questions. Id. The
Commonwealth and Appellant’s plea counsel both stated that because
Appellant was pleading guilty to two counts of possessing child pornography,
Appellant would be required to register for life as a Tier III sex offender under
SORNA I.3 Id. at 14-15.
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2 In the information, the Commonwealth alleged that this offense occurred
between October 3, 1995 and October 3, 1997. See Criminal Information,
681-2014, 4/23/14, at 1.
3 The Commonwealth and Appellant’s plea counsel appear to have been
referencing 42 Pa.C.S. § 9799.14(d)(16), which provides that two or more
convictions for Tier I offenses (such as possessing child pornography) or Tier
II offenses constitute a Tier III offense. Our Supreme Court in
Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), considered
whether multiple convictions for Tier I or Tier II offenses under the same
criminal information triggered the application of Section 9799.14(d)(16).
Lutz-Morrison, 143 A.3d at 893-94. The Court concluded that SORNA I
“encompasses a recidivist philosophy. As such, the statute requires an act, a
conviction, and a subsequent act to trigger lifetime registration for multiple
(Footnote Continued Next Page)
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A previous panel of this Court summarized the subsequent procedural
history as follows:
On January 7, 2015, the court held a hearing pursuant to 42
Pa.C.S. § 9799.24(e) to determine if Appellant met the criteria to
be classified as a . . . SVP and immediately thereafter proceeded
to sentencing. The court found that Appellant was an SVP and
sentenced him to an aggregate of 54 to 120 months’
incarceration.[fn3]
Although Appellant filed a post-sentence motion to
[fn3]
modify his sentence, which the court denied on April 15,
2015, he did not file a direct appeal.
Schade, 2016 WL 6519102, at *1 (some formatting altered).
Appellant subsequently filed three PCRA petitions, all of which were
denied.4
On April 15, 2021, Appellant filed a motion challenging the validity of
his guilty plea, convictions, and obligation to register under SORNA II.
Specifically, Appellant argued that he had been coerced into pleading guilty
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offenses otherwise subject to a fifteen- or twenty-five-year period of
registration.” Id. at 895. Therefore, Appellant’s two convictions for
possessing child pornography at Docket No. 917-2014 did not trigger the
application of Section 9799.14(d)(16), and do not collectively constitute a Tier
III offense. See id.
4 Appellant filed an initial pro se PCRA petition prior the expiration of the time
in which he could file a direct appeal. Therefore, the trial court dismissed it
as premature. The PCRA court subsequently denied Appellant’s first timely
PCRA petition, and this Court affirmed. See Schade, 2016 WL 6519102, at
*5. Appellant then filed another PCRA petition, which the PCRA court
dismissed as untimely. On appeal, this Court quashed Appellant’s appeal
because Appellant did not comply with Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018). Commonwealth v. Schade, 2411 EDA 2018, 2019 WL
1976028, at *3 (Pa. Super. filed May 3, 2019) (unpublished mem.).
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and claimed that his convictions were illegal due to the statute of limitations
and double jeopardy. Appellant also challenged his designation as an SVP and
argued that because he pled guilty to offenses that occurred before December
20, 2012, Subchapter H5 of SORNA II did not apply to him.6
On August 2, 2021, the trial court issued an order denying Appellant’s
motion in part. Specifically, the trial court denied as untimely any claims that
Appellant could have raised in a PCRA petition. See Trial Ct. Order, 8/2/21,
at 3. However, the trial court scheduled a hearing to address Appellant’s
SORNA II claims and directed both parties to file memoranda of law.
On November 24, 2021,7 the trial court denied Appellant’s motion to
amend his sex offender registration requirements.
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5 42 Pa.C.S. §§ 9799.10-9799.41.
6 Appellant suggested, in the alternative, that his convictions for possessing
child pornography would subject him to a ten-year registration period under
Subchapter I of SORNA II, 42 Pa.C.S. §§ 9799.51-9799.75, but Appellant also
challenged those convictions on the grounds that the Commonwealth had not
established that the material he possessed constituted child pornography.
Mot. to Update/Correct Reporting Assignment to Subchapter I, 4/15/21, at 2-
4. On appeal, Appellant argues that he does not have to register under SORNA
II at all and does not concede that Subchapter I is applicable to his convictions.
7 We note that although the order denying Appellant’s motion was time-
stamped and marked on the docket on November 23, 2021, the docket entries
reflect that the trial court served Appellant on November 24, 2021. See
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (stating
that “[i]n a criminal case, the date of entry of an order is the date the clerk of
courts enters the order on the docket, furnishes a copy of the order to the
parties, and records the time and manner of notice on the docket” (citations
omitted)); see also Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1).
We have amended the caption accordingly.
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Appellant filed timely notices of appeal on December 22, 2021.8
Appellant subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement.
The trial court issued a Rule 1925(a) statement adopting the legal analysis set
forth in its November 24, 2021 order. See Trial Ct. Op., 2/7/22, at 1-2.
Appellant raises the following issues for our review, which we reorder as
follows:
1. Whether the [trial] court erred as a matter of law when
recognizing that facts of record establish that the plea entered,
in [Docket No. 681-2014], is to a crime whose statute of
limitations expired prior to charging; thereby, the exercise of
inherent jurisdiction should have been invoked to correct a
patent miscarriage of justice?
2. Whether the [trial] court erred in denying specific enforcement
of the plea agreement in the [Docket No. 917-2014] matter
where the written factual basis for the plea established dates,
accepted by the court and the Commonwealth, that preclude
sexual offender registration, in belated reliance on non-record
accusatory instruments that were not stipulated to; thereby,
violating Appellant’s right to benefit from the terms of the plea
agreement?
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8 Appellant filed a separate notice of appeal at each trial court docket pursuant
to Walker and Pa.R.A.P. 341(a). On March 25, 2022, this Court consolidated
the appeals sua sponte pursuant to Pa.R.A.P. 513. Order, 3/25/22.
Additionally, Appellant simultaneously filed a motion for reconsideration along
with his notices of appeal. The trial court did not expressly grant
reconsideration within thirty days of the entry of its order, therefore, the
motion for reconsideration does not affect our jurisdiction over this appeal.
See Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000);
Pa.R.A.P. 1701(b)(3). The trial court issued an order on January 5, 2022,
purporting to deny Appellant’s motion for reconsideration; however, that order
is a nullity because by that date the trial court no longer had jurisdiction to
rule on that motion. See Commonwealth v. Hart, 174 A.3d 660, 663 n.4
(Pa. Super. 2017).
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3. Whether the [trial] court erred in refusing to correct the State
Police’s record, as to the [Docket No. 681-2014] matter, where
no registration is required under Subchapters H or I?
4. Whether the [trial] court erred in construing that the
Legislature anticipated sex offender registration for allegations
of crimes for which no legal basis exists, and whether such
registration can be challenged outside of the Post-Conviction
Relief Act?
Appellant’s Brief at 5-6.9
PCRA Claims
In his first claim, Appellant argues that his convictions are legal nullities
and his sentences are illegal because, at the time the Commonwealth filed
these charges, they were barred by the applicable statute of limitations.
Appellant’s Brief at 25-30. Appellant further alleges that he was coerced to
plead guilty. Id. at 28, 30.
It is well settled that “[i]ssues that are cognizable under the PCRA must
be raised in a timely PCRA petition . . . .” Commonwealth v. Taylor, 65
A.3d 462, 466 (Pa. Super. 2013) (citation omitted). Generally, “all motions
filed after a judgment of sentence is final are to be construed as PCRA
petitions.” Id.; but see Commonwealth v. Moose, 245 A.3d 1121, 1128
(Pa. Super. 2021) (en banc) (explaining that in Commonwealth v.
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9 Appellant repeatedly claims that the trial court did not fully address his issues
in its Rule 1925(a) statement and requests that this Court remand this matter
to the trial court to issue a more responsive supplemental Rule 1925(a)
opinion with findings of fact and conclusions of law. Appellant’s Brief at 23-
24, 26-27, 29-30. For the reasons set forth herein, we conclude that Appellant
is not entitled to relief on his claims, therefore, Appellant’s requests for
remand are moot.
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Lacombe, 234 A.3d 602 (Pa. 2020), our Supreme Court “emphasized that
petitioners may challenge the application of a sexual offender registration
statute outside the framework of the PCRA”), appeal denied, 268 A.3d 1077(Pa. 2021). Our Supreme Court has repeatedly stated that the “legality of the
sentence is always subject to review within the PCRA where . . . the petition
is timely.” Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018)
(citations omitted). A claim that a guilty plea was unlawfully induced also falls
within the scope of the PCRA. See, e.g., Commonwealth v. Oliver, 128
A.3d 1275, 1280 (Pa. Super. 2015) (citing 42 Pa.C.S. § 9543(a)(2)(iii)).
A PCRA petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless the
petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S. §
9545(b)(1). A judgment of sentence becomes final for PCRA purposes “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). “The
PCRA’s time restrictions are jurisdictional in nature.” Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Therefore, the
courts of this Commonwealth do not have jurisdiction over an untimely PCRA
petition. Id. (citation omitted); see also Commonwealth v. Jackson, 30
A.3d 516, 521 (Pa. Super. 2011) (stating that in the absence of a timely filed
PCRA petition, “even if there was an obvious illegality in [the] sentence, the
PCRA court would not have had jurisdiction to consider [the] claim.”).
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Further, it is the PCRA petitioner’s “burden to allege and prove that one
of the timeliness exceptions applies.” Albrecht, 994 A.2d at 1094 (citation
omitted and some formatting altered); see also 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). Additionally, Section 9545(b)(2) requires that any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here the trial court explained:
On April 15, 2021, [Appellant] filed a pro se “motion to
update/correct reporting assignment to Subchapter I,” properly
characterized as [Appellant’s] fourth petition for post-conviction
collateral relief (“petition”) . . . .
On April 20, 2021, this court filed a notice of disposition without a
hearing (“notice”) pursuant to Pennsylvania Rule of Criminal
Procedure 907 in which [Appellant] was advised that: (1) his PCRA
petition was untimely; and (2) he did not satisfy his burden for an
exception to the timeliness requirement under 42 Pa.C.S.[] §
9545(b)(1). [Appellant] was afforded twenty (20) days from the
date of the notice to file a response to the proposed dismissal.
On May 10, 2021, [Appellant] timely filed an “objection to this
court’s misconstruction of his motion as an untimely PCRA,”
(“objection”) arguing . . . [that] he was not raising any claims
under the PCRA, but rather challenging the collateral
consequences of his criminal conviction.
* * *
On August 2, 2021, this court filed a notice of disposition without
hearing and order scheduling hearing on [Appellant’s] challenge
to collateral consequences of his criminal conviction in which
[Appellant] was advised that: . . . in accordance with our April 20,
2021 notice, [Appellant’s] pro se fourth PCRA, and all claims
cognizable under the PCRA, were denied as untimely . . . .
Trial Ct. Order, 11/24/21, at 3-5 (citations omitted and formatting altered).
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Insofar as Appellant challenges the legality of the sentence and
voluntariness of the plea, those claims are cognizable under the PCRA. See
DiMatteo, 177 A.3d at 192; Oliver, 128 A.3d at 1280. Therefore, these
claims must be brought in a timely PCRA petition. See Taylor, 65 A.3d at
466. Here, the record reflects that Appellant’s judgment of sentence became
final on May 15, 2015. See 42 Pa.C.S. § 9545(b)(3). Therefore, Appellant’s
instant motion, filed on April 15, 2021, was facially untimely under the PCRA.
Further, Appellant has failed to allege any exception to the PCRA’s one year
time-bar. Therefore, we agree with the trial court that Appellant’s PCRA claims
are untimely. See Albrecht, 994 A.2d at 1093-94; Jackson, 30 A.3d at 521.
Accordingly, Appellant is not entitled to relief on his PCRA claims.
SORNA II Registration
In his remaining claims, Appellant challenges his obligation to register
under SORNA II.10 Appellant’s Brief at 14-21. First, Appellant contends that
the record from the plea hearing established that Appellant’s offenses of
statutory sexual statutory sexual assault at Docket No. 681-2014 and
possessing child pornography at Docket No. 917-2014 occurred between 1995
and 1997. Id. at 14-16, 20, 22. Therefore, Appellant argues that the trial
court erred in ordering him to register under Subchapter H of SORNA II, which
applies to offenses that occurred after December 20, 2012. Id. at 14-16, 23.
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10 To the extent Appellant argues that he cannot be required to register
because his convictions are nullities, he is not entitled to relief on that claim
for the reasons set forth above concluding that Appellant’s PCRA claims are
time-barred.
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Appellant also claims that he is entitled to specific enforcement of his plea
agreement, and he argues that the agreement included a term stating that he
did not have to register under SORNA II. Id. at 17-20.
Second, Appellant claims that he is not subject to registration under
Subchapter I because statutory sexual assault is not an enumerated offense.
Id. at 22-23. Therefore, Appellant concludes that the trial court erred in
denying his request to modify his sex offender registration requirements.11,12
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11 Appellant also claims that the trial court erroneously classified him as an
SVP and that designation violates his constitutional right to reputation.
Appellant’s Brief at 23. Appellant did not include these issues in his Rule
1925(b) statement or in the statement of the questions involved in his brief.
Therefore, these claims are waived. See Pa.R.A.P. 1925(b)(4)(vii) (stating
that “[i]ssues not included in the Statement and/or not raised in accordance
with the provisions of this paragraph (b)(4) are waived”), 2116(a) (stating
that “[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”).
12 In the statement of the case portion of his brief, Appellant includes
additional argument attacking the factual basis of his plea to possessing child
pornography, alleging prosecutorial misconduct, asserting ineffective
assistance of PCRA counsel, claiming that the application of SORNA II to him
is unconstitutional, and contending that the trial court erred in denying his
motion to amend his sex offender registration requirements. Appellant’s Brief
at 7-10. Our Rules of Appellate Procedure strictly prohibit argument in a
statement of the case. See Pa.R.A.P. 2117(b) (stating “[t]he statement of
the case shall not contain any argument”). Therefore, we will not consider
any claims not presented in the argument section of Appellant’s brief. As
stated above, Appellant impugns the integrity of the prosecutor in his
statement of the case. Our Rules require that the statement of the case must
present a balanced and therefore neutral statement of the facts and
procedural history. See id. (stating “[i]t is the responsibility of appellant to
present in the statement of the case a balanced presentation of the
history of the proceedings and the respective contentions of the parties”
(emphasis added)).
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Initially, as we have discussed, our Supreme Court has held that
petitioners may challenge the application of a sexual offender registration
statute outside the time bar restrictions of the PCRA. See Lacombe, 234
A.3d at 618 (stating that “we decline to find the PCRA, or any other procedural
mechanism, is the exclusive method for challenging sexual offender
registration statutes and we thus conclude the trial court had jurisdiction to
consider” the defendant’s petition challenging his registration requirements);
see also Moose, 245 A.3d at 1128. Therefore, to the extent Appellant raises
claims concerning his SORNA II registration requirements, we may review
these issues because they are not subject to the PCRA’s timeliness
requirements. See Lacombe, 234 A.3d at 617-18; cf. 42 Pa.C.S. § 9545(b).
Appellant’s SORNA II claims concern a review of the relevant statutes,
which raise a question of law. Therefore, our standard of review is de novo,
and our scope of review is plenary. Lutz-Morrison, 143 A.3d at 894.
By way of background, we note that in 2011, the Pennsylvania General
Assembly passed former Subchapter H, also referred to as “SORNA I,” to
govern the registration of individuals convicted of certain sexual offenses with
the Pennsylvania State Police. See Act of Dec. 20, 2011, P.L. 446, No. 111 §
12; see also Commonwealth v. Lippincott, 208 A.3d 143, 146 (Pa. Super.
2019) (en banc). SORNA I took effect on December 20, 2012.
In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality),
our Supreme Court declared SORNA I unconstitutional because its registration
provisions were punitive and therefore violated the ex post facto clauses of
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both the United States and Pennsylvania Constitutions. Commonwealth v.
Butler, 226 A.3d 972, 980-81 (Pa. 2020). In Lippincott, this Court
concluded that the effective date of a statute was determinative for
considering whether SORNA I applied to a defendant. Lippincott, 208 A.3d
at 149.
In response to Muniz, the General Assembly enacted legislation to
amend SORNA I. See Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10) and Act
of June 12, 2018, P.L. 1952, No. 29 (Act 29) (collectively, SORNA II). Act 10
amended several provisions of Subchapter H and added Subchapter I. Both
current Subchapter H and Subchapter I require an individual who has been
designated as an SVP to register for life. See 42 Pa.C.S. §§ 9799.15(a)(6),
(d), 9799.55(b)(3). However, the current version of Subchapter H states that
it applies to defendants who commit sexually violent offenses on or after
December 20, 2012. See 42 Pa.C.S. § 9799.12 (defining “sexually violent
offense” for the purposes of Subchapter H) (emphasis added). Under
Subchapter H, an individual’s period of registration begins upon release from
incarceration, and an individual may not be released on parole until the State
Police has received the information required for his initial registration. See
42 Pa.C.S. §§ 9799.15(b)(1)(i)(A), 9799.19(l)(2)(iv).
Subchapter I is entitled “Continued Registration of Sexual Offenders.”
Subchapter I, in relevant part, states that it applies to defendants who commit
a sexually violent offense on or after April 22, 1996, but before December 20,
2012. See 42 Pa.C.S. §§ 9799.52, 9799.53 (defining “sexually violent
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offense” for the purposes of Subchapter I). Furthermore, “Subchapter I
contains less stringent reporting requirements than [current] Subchapter
H[.]” Commonwealth v. Alston, 212 A.3d 526, 529 (Pa. Super. 2019)
(citations omitted).
In the context of guilty pleas, this Court has explained:
[W]hen a registration scheme is not punitive, it constitutes a
collateral consequence of a guilty plea. Further, because non-
punitive registration requirements are not criminal punishment,
they would not materially alter a negotiated term establishing a
petitioner’s criminal sentence. Under these circumstances, a
petitioner must demonstrate that non-registration, or a specific
term of registration, was part of the negotiated plea. See
[Commonwealth v. Hainesworth, 82 A.3d 444, 448 (Pa. Super.
2013) (en banc)] (stating that “the dispositive question is whether
registration was a term of the bargain struck by the parties”).
Moose, 245 A.3d at 1133 (some citations omitted).
Although “a plea agreement arises in a criminal context, it remains
contractual in nature and is to be analyzed under contract law standards.”
Hainesworth, 82 A.3d at 449 (citation omitted and formatting altered). Our
Supreme Court has explained that “[c]ontract interpretation is a question of
law for the court; ambiguities are to be resolved in favor of a reasonable rather
than an absurd or unreasonable interpretation[.]” Starling v. Lake Meade
Prop. Owners Ass’n, Inc., 162 A.3d 327, 346 (Pa. 2017); see also Wert
v. Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1253 (Pa. 2015)
(explaining that courts “will not interpret one provision of a contract in a
manner which results in another portion being annulled” (citation omitted)).
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Additionally, when reviewing a motion to enforce a plea agreement, this
Court has explained:
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. Such a
determination is made based on the totality of the surrounding
circumstances, and any ambiguities in the terms of the plea
agreement will be construed against the Commonwealth.
Hainesworth, 82 A.3d at 447 (citations omitted and formatting altered); see
also Commonwealth v. Nase, 104 A.3d 528, 534-35 (Pa. Super. 2014)
(concluding that, based on statements from the prosecutor and defense
counsel during the plea hearing and the sentencing hearing, the defendant’s
plea agreement included a term that the defendant had to register as a sex
offender for a ten-year period and not for twenty-five years).
Further, this Court has held that when a defendant enters a negotiated
guilty plea stating that the defendant does not have to register as a sex
offender, the defendant is entitled to specific enforcement of that agreement.
Hainesworth, 82 A.3d at 450. However, we note that when a defendant
pleads guilty and makes statements under oath at the plea colloquy, the
defendant may not later contradict those statements. See, e.g.,
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (noting,
in the context of a request to withdraw a guilty plea, that the defendant “is
bound by the statements he makes in open court while under oath” during the
plea colloquy (citation omitted)).
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Here, during the plea hearing, the trial court asked Appellant if he
understood that as consequence of his plea, he would be required to register
as a sex offender, and Appellant replied that he understood. See N.T. Plea
Hr’g at 11. The trial court also informed Appellant that the Sexual Offender
Assessment Board would conduct an evaluation, but the trial court would
ultimately determine if Appellant was an SVP. See id. at 11-12. Appellant
stated that he understood. See id. at 12. Further, the Commonwealth stated
that Appellant’s plea was “not an agreement or any case contemplated by []
Hainesworth whereby a plea agreement was specifically tailored to avoid
registration. This is not the case.” N.T. Plea Hr’g at 15. Appellant’s plea
counsel agreed with the Commonwealth. See id.
In its Rule 1925(a) opinion, the trial court explained:
In his [written] guilty plea and colloquy [at Docket Nos. 681-2014
and 917-2014], [Appellant] indicated “I intend to plead guilty to
the following criminal offense(s): [at Docket No. 917-2014] . . .
count I, possess[ing] child pornography . . . [and] count IV
possess[ing] child pornography.” As stated above, the date fixed
in the criminal information for the charges [Appellant] pleaded
guilty to was April 1, 2014. In addition, under section 9 entitled
“rights I give up by entering a plea of guilty,” [Appellant]
indicated, “I am convicting myself of the charges to which I am
pleading guilty, and I will be presumed guilty of those charges
beyond a reasonable doubt.” Finally, under section 10 entitled,
“other important consequences of my guilty plea,” [Appellant]
indicated, “I understand that by pleading guilty I will be convicted
of crimes[s] and there may be some collateral consequences of
this criminal conviction.”
Based on the foregoing, we find [Appellant] knowingly and
voluntarily pleaded guilty to [possessing] child pornography
offenses committed on April 1, 2014. Because [Appellant]
pleaded guilty to offenses committed after December 20, 2012,
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his classification under SORNA [II] Subchapter H is appropriate
and his challenge to the collateral consequences of his criminal
conviction lacks merit.
Trial Ct. Order, 11/24/21, at 8 (citations and footnotes omitted, formatting
altered).
Based on our review of the record, under the totality of the
circumstances, we conclude that Appellant’s plea agreement did not contain a
negotiated term stating that he was not required to register as a sex offender.
As stated above, Appellant acknowledged during the plea colloquy that he
would be subject to registration as a result of his guilty plea. Appellant may
not present a claim that contradicts the statements that he made under oath
at the plea colloquy. See, e.g., Pollard, 832 A.2d at 523.
Further, there is no indication in the record that Appellant or the
Commonwealth reasonably understood that non-registration was a term of
the plea agreement. To the contrary, both Appellant’s plea counsel and the
Commonwealth agreed that the plea agreement was not structured to avoid
the registration requirements. See Nase, 104 A.3d at 534-35 (examining the
statements of the prosecutor and defense counsel on the record to determine
the terms of the plea agreement).
Finally, to the extent that Appellant argues that he was not required to
register as a sex offender because the plea agreement established that the
charges of possessing child pornography at Docket No. 917-2014 occurred
between 1995 and 1997, a date range that is partially outside the effective
period of SORNA Subchapter I, we disagree. As noted previously, the record
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from the plea hearing reflects that Appellant, his plea counsel, and the
Commonwealth all agreed that Appellant would be subject to sex offender
registration as a result of his guilty plea. Were we to accept Appellant’s claim
that he pled guilty to offenses that were outside the scope of SORNA, it would
annul the parties’ agreement regarding Appellant’s obligation to register. See
Wert, 124 A.3d at 1253 (courts will not interpret our portion of a contract in
such a way that it would annul another portion of that contract). Further, a
reasonable interpretation of the plea agreement is that Appellant was required
to register as a sex offender because he pled guilty to two counts of possessing
child pornography, and that the date range of 1995 to 1997 only applies to
the statutory sexual assault charge. See Starling, 162 A.3d at 346 (when
interpreting a contract, the court must choose a reasonable interpretation and
not an absurd or unreasonable one). Therefore, to the extent Appellant seeks
to avoid sex offender registration requirements based on his plea agreement,
he is not entitled to relief. See Hainesworth, 82 A.3d at 450.
With respect to the applicability of SORNA II’s registration requirements,
the record reflects that Appellant pled guilty to offenses charged in two
separate criminal informations and filed under two different dockets. See N.T.
Plea Hr’g at 7. In Docket No. 917-2014, the criminal information stated that
Appellant possessed child pornography on April 1, 2014.13 See Criminal
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13 As stated above, there is no merit to Appellant’s claim that the plea
agreement included a term that his possession of child pornography occurred
(Footnote Continued Next Page)
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Information, 917-2014, 5/15/14, at 1. In Docket No. 681-2014, the criminal
information stated that Appellant committed statutory sexual assault between
October 3, 1995 and October 3, 1997. See Criminal Information, 681-2014,
4/23/14, at 1.
Although Appellant’s statutory sexual assault conviction is within the
date range for Subchapter I, statutory sexual assault is not an enumerated
offense under that Subchapter. See 42 Pa.C.S. §§ 9799.52, 9799.53,
9799.55. Therefore, Subchapter I does not apply to that conviction. See id.
However, because Subchapter H applies to enumerated offenses
committed after December 20, 2012, it is applicable to Appellant’s two
convictions for possessing child pornography in April of 2014. See 42 Pa.C.S.
§ 9799.11(c). Under Subchapter H, possessing child pornography is a Tier I
offense, which requires registration for a period of fifteen years.14 See 42
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between 1995 and 1997. Further, when a defendant enters a guilty plea,
courts may rely on the date of the offense as charged in the information to
determine which Subchapter of SORNA, if any, applies to a defendant’s
convictions. See, e.g., Commonwealth v. Luciani, 201 A.3d 802, 807-08
(Pa. Super. 2018) (concluding that Subchapter H did not apply to the
defendant’s convictions under one docket number where the information
alleged that the offenses occurred prior to Subchapter H’s effective date, but
Subchapter H applied to convictions under a second docket number where
that information alleged that the offenses occurred after its effective date).
14 As noted above, both the Commonwealth and Appellant’s plea counsel
stated during the plea hearing that Appellant would be required to register as
a Tier III offender because of his two convictions for possessing child
pornography. See N.T. Plea Hr’g at 14-15. 42 Pa.C.S. § 9799.14(d)(16)
treats two or more convictions for Tier I or Tier II offenses as a Tier III offense.
However, this section does not apply to Appellant’s convictions because they
(Footnote Continued Next Page)
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Pa.C.S. §§ 9799.14(b)(9), 9799.15(a)(1). However, the trial court found that
Appellant was an SVP, which requires Appellant to register for life. See 42
Pa.C.S. § 9799.15(d) (stating that “[a]n individual convicted of a Tier I sexual
offense, . . . who is determined to be a sexually violent predator under section
9799.24 . . . shall register for the life of the individual”). Therefore, to the
extent Appellant claims that Subchapter H does not apply to his convictions
for possessing child pornography, he is not entitled to relief. See Lutz-
Morrison, 143 A.3d at 894.
Lastly, to the extent Appellant argues the trial court should correct his
registration and notification requirements regarding his statutory sexual
assault conviction, those requirements will not commence until he is released
from prison. See 42 Pa.C.S. §§ 9799.15(b)(1)(i)(A), 9799.19(l)(2)(iv).
Appellant is still incarcerated15 and has not made any representations that his
release on parole is imminent. If Appellant wishes to challenge registration
requirements that may apply to him when his release is imminent, he can do
so at that time. See Gregory v. Pennsylvania State Police, 160 A.3d 274,
278 (Pa. Cmwlth. 2017) (single judge op., Cohn Jubelirer, J.)16 (holding that
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did not involve “an act, a conviction, and a subsequent act . . . .” Lutz-
Morrison, 143 A.3d at 895. We also note that although Lutz-Morrison
interpreted SORNA I, when the General Assembly enacted SORNA II, it did
not amend Section 9799.14(d)(16). See Act 10; Act 29.
15 A search on http://inmatelocator.cor.pa.gov on November 28, 2022,
indicated that Appellant was still incarcerated on that date.
16 A reported single-judge opinion of the Commonwealth Court may be cited
for its persuasive value. See Pa.R.A.P. 126(c)(2).
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action against the state police challenging SORNA’s application to a prisoner
was ripe for disposition when the prisoner was facing release as soon as a
home plan was approved). Therefore, Appellant is not presently entitled to
relief on this claim.
For these reasons, Appellant is not entitled to relief. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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