Com. v. Shrawder, R. ( 2015 )

J-A22020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBIN SHRAWDER
Appellant No. 2027 MDA 2014
Appeal from the Order Entered November 5, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0002057-2004
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 20, 2015
Appellant Robin Shrawder appeals from the November 5, 2014 order
entered in the Lycoming County Court of Common Pleas denying his Petition
to Enforce Plea Agreement or for a Writ of Habeas Corpus (“petition to
enforce”). We affirm.
The trial court sets forth the relevant facts of this appeal as follows:
On April 12, 2005, [Appellant] pled nolo contendere to two
counts of luring a child into a motor vehicle1 and two
counts of corruption of minors.2[, 1] On May 26, 2005,
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*
Retired Senior Judge assigned to the Superior Court.
1
These charges stem from an incident in which Appellant attempted to lure
two 16-year-old girls into his pick-up truck. As Appellant was driving past
the girls in his truck, he told them that they were “hot” and asked them if
they wanted to go on a date. Appellant then drove his truck past the girls
and parked in the parking lot of Ed’s Market. The girls entered the lot, and
(Footnote Continued Next Page)
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[Appellant] was sentence[d] to serve a period of probation
of three years under the supervision of the Lycoming
County Adult Probation Office. Around August of 2006, the
Pennsylvania State Police (PSP) notified [Appellant] that he
was required to register as a sexual offender for a period
of ten years. On August 13, 2006, [Appellant] registered
as a sexual offender. Since his registration in 2006,
[Appellant] has been made a Tier III sexual offender under
Section 9799.14(d)(16) of Pennsylvania’s Sexual Offender
Registration and Notification Act (SORNA).3 As a Tier III
sexual offender, [Appellant] will be required to register for
life. 42 Pa.C.S. § 9799.15(a)(3).[2]
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(Footnote Continued)
Appellant repeatedly tried to get the girls to come into his truck. He offered
them $20.00 for a hand-job and $50.00 for a blow job. The girls told him
that they were only 16 and not interested. He continued to ask them to get
into his truck and they declined. N.T., 5/26/05 at 2-4; N.T. 4/12/05 at 6.
2
The Commonwealth Court of Pennsylvania held the in-person registration
requirement of this statute unconstitutional as applied to individuals
convicted prior to SORNA’s enactment. Coppolino v. Noonan, 102 A.3d
1254 (Pa.Commw.Ct.2014). It reasoned:
The punitive requirement that updating of certain
information be done in person may be severed from the
remainder of Megan's Law IV. The clause at issue states:
(g) In-person appearance to update information.—In
addition to the periodic in-person appearance
required in subsections (e), (f) and (h), an individual
specified in section 9799.13 shall appear in person at
an approved registration site within three business
days to provide current information relating to....
42 Pa.C.S. § 9799.15(g). The only part of this provision
that this Court holds to be unconstitutionally punitive with
regard to individuals convicted prior to the enactment of
the provision, is the requirement that such updates be
made in person.
Coppolino, 102 A.3d at 1279.
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1
18 Pa.C.S. § 2910.
2
18 Pa.C.S. § 6301(a)(1).
3
42 Pa.C.S. § 9799.14(d)(16).
Trial Court Opinion, filed November 5, 2014 (some capitalization omitted).3
On July 7, 2014, Appellant filed his petition to enforce. On August 14,
2014, the court conducted a hearing on Appellant’s petition. The court
denied the petition on November 5, 2014. On December 1, 2014, Appellant
timely filed a notice of appeal. The next day, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) within 30 days, and he timely complied on December 30,
2014.
Appellant raises the following issues for our review:
1. This Court has repeatedly held that (a) a challenge to the
retroactive application of Megan’s Law is not governed by
the PCRA and its statutory limitations and (b) it can review
the merits of trial court orders upholding or rejecting a
retroactive registration requirement. Did the trial court
properly conclude that it had jurisdiction to review the
merits of this challenge to the retroactive imposition of
lifetime registration requirement?
2. Plea agreements are subject to specific enforcement under
principles of contract law and fundamental fairness.
[Appellant] (a) plead no contest to crimes that did not
initially include a registration requirement (b) received a
probation sentence without a Megan’s Law colloquy or sex
offender assessment and (c) testified that non-registration
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3
On January 8, 2015, the trial court issued a Pa.R.A.P. 1925(a) statement
that adopted its November 5, 2014 opinion.
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was material to his plea. Is specific enforcement of non –
registration as an implicit term of this plea appropriate?
3. Under SORNA, an individual convicted of “two or more”
enumerated offenses is subject to a lifetime reporting
requirement. [Appellant’s] two misdemeanor convictions
arise from his attempted solicitation of two 16-year-old
girls. He had no prior record and has since completed his
probation without incident. Should this non-violent first-
time offender be subject to a quarterly lifetime reporting
requirement?
Appellant’s Brief at 4-5.
Appellant first argues that the trial court had jurisdiction to hear his
petition to enforce and that the appeal is now properly before this court. He
asserts that the Superior Court has jurisdiction to review orders confirming
or rejecting a retroactive registration requirement.
The Commonwealth challenged the trial court’s jurisdiction to hear
Appellant’s petition, but the court never ruled on the issue. The
Commonwealth contends that this is an untimely Post Conviction Relief Act
(“PCRA”)4 petition that is not properly before this Court or the trial court
because Appellant is no longer serving his sentence of probation.
In Commonwealth v. Bundy, 96 A.3d 390 (Pa.Super.2014), this
Court examined the jurisdiction of orders confirming or rejecting a
retroactive sex-offender registration requirement:
First, as to the trial court’s decision to regard Appellant’s
petition under the PCRA, we note that our case law has yet
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4
42 Pa.C.S. §§ 9541-9546.
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to adopt a settled procedure for challenging the retroactive
application of a Megan’s Law’s registration requirement.
However, in Commonwealth v. Masker, 34 A.3d 841
(Pa.Super.2011) (en banc ), appeal denied, 47 A.3d 846
([Pa.]2012), this Court held that challenges to a
defendant’s designation as a sexually violent predator
(“SVP”) did not present cognizable issues under the PCRA
because it did not pertain to the underlying conviction or
sentence. Id. at 842. Similarly, in Commonwealth v.
Partee, 86 A.3d 245 (Pa.Super.2014)[, appeal denied, 97
A.3d 744 (Pa.2014)], this Court observed that a challenge
to the retroactive application of Megan’s Law “[did] not fall
within the scope of the PCRA and should not be reviewed
under the standard applicable to the dismissal of PCRA
petitions.” Id. at 247.
Nevertheless, this Court has previously considered the
substantive aspects of appeals challenging post-conviction
applications of Megan’s Law. For example, in
Commonwealth v. Benner, 853 A.2d 1068
(Pa.Super.2004), this Court affirmed, on the merits of that
appeal, the denial of a defendant’s “Motion for Hearing
Regarding Megan’s Law Applicability” contesting the
retroactive application of a lifetime registration
requirement. Id. at 1069. In Commonwealth v.
Hainesworth, 82 A.3d 444 (Pa.Super.2013) (en banc),
[appeal denied, 95 A.3d 276 (Pa.2014),] the trial court
dismissed the defendant’s “motion seeking termination of
supervision,” which he filed to avoid the retroactive
application of the SORNA registration requirement. Id. at
446. The trial court, in that case, denied the motion to
terminate supervision, but entered an order declaring that
the defendant would not be subject to the SORNA
requirements. Id. The Commonwealth appealed, and this
Court affirmed the trial court’s decision that the retroactive
application of Megan’s Law would offend a negotiated term
in the plea agreement between the parties. Id. at 450.
In Partee, the defendant filed a “petition for habeas
corpus and/or seeking enforcement of a plea agreement”
seeking to avoid the retroactive application of the SORNA
requirements. Partee, 86 A.3d at 246. The trial court
dismissed the petition under the PCRA. Id. This Court
concluded that the Appellant’s petition should not have
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been decided under the PCRA, but affirmed the trial court’s
denial of relief on the merits of the case. Id. at 247, 250.
Specifically, we held that the defendant was not entitled to
specific performance of his earlier plea bargain because his
probation violation voided that agreement. Id. at 250.
In light of the foregoing decisional law, we need not decide
the precise mechanism by which a defendant may
challenge the retroactive application of a Megan’s Law’s
registration requirement. Rather, it suffices to note that
the statutory and rule-based requirements governing a
PCRA petition 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. See Partee, 86 A.3d
at 247, 250; Hainesworth, 82 A.3d at 450; Benner, 853
A.2d at 1072.
Bundy, 96 A.3d at 394.
Instantly, Appellant challenges his lifetime registration requirement,
which became effective on December 20, 2012, and applies to him
retroactively. Thus, the trial court had jurisdiction to hear his claim 5 and we
have jurisdiction to review the order confirming the retroactive registration
requirement and address the merits of Appellant’s claims. See Bundy,
supra.
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5
We note that a challenge to the enforcement of a plea bargain is analyzed
under contract law, and that the statute of limitations to bring a contract
claim is four years. See Hainesworth, 82 A.3d at 447; Cole v. Lawrence,
701 A.2d 987, 989 (Pa.Super.1997), appeal denied, 725 A.2d 1217
(Pa.1998). “[T]he statute of limitations begins to run on a claim from the
time the cause of action accrues. In general, an action based on contract
accrues at the time of breach.” Cole, 701 A.2d at 989 (internal citations
omitted). Appellant was not subjected to lifetime sexual registration until
SORNA became effective on December 20, 2012. Appellant filed his petition
to enforce on July 7, 2014, within four years of the alleged breach.
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In his second issue, Appellant argues that plea bargains are contracts
subject to specific performance, and the lifetime registration requirement is
not consistent with the plea bargain. He claims he would not have entered
into the plea agreement if he had known he would have to register as a sex
offender for his entire life. Further, Appellant avers that he is not a sexually
violent predator (“SVP”) and his silence at the guilty plea hearing means
there is an implied non-registration term. Appellant concedes SORNA can be
applied retroactively pursuant to Commonwealth v. Perez, 97 A.3d 747
(Pa.Super.2014), however, he claims this does not preclude specific
enforcement of non-registration as a material term of his plea. He cites
Hainesworth, supra to support this proposition. Unfortunately for
Appellant, his claim merits no relief.
“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.’ ” Commonwealth v. Fruehan, 557 A.2d
1093, 1095 ([Pa.Super.]1989) (internal citations omitted).
Such a determination is made “based on the totality of the
surrounding circumstances,” and “[a]ny ambiguities in the
terms of the plea agreement will be construed against the
[Commonwealth].” Commonwealth v. Kroh, 654 A.2d
1168, 1172 ([Pa.Super.]1995) (internal citations omitted).
Hainesworth, 82 A.3d at 447.
In Hainesworth, this Court found that the plea was specifically
structured so that the defendant would not have to register as a sex
offender:
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Indeed, the plea agreement appears to have been
precisely structured so that Hainesworth would not be
subjected to a registration requirement. Hainesworth was
initially charged with ten counts. Pursuant to the plea
agreement, three counts were withdrawn: both counts of
aggravated indecent assault (a Megan’s Law offense), and
one count of criminal use of a communication facility (a
non-Megan’s Law offense). Thus, nearly all of the
withdrawn counts were Megan’s Law offenses. Moreover,
it is significant that the plea agreement included one count
of criminal use of a communication facility. Unlike this
charge, every count of aggravated indecent assault was
withdrawn. In other words, the Commonwealth withdrew
every single count of only one crime, and that crime was
the Megan’s Law offense.
Hainesworth, 82 A.3d at 448. Similarly, in Partee, the defendant’s plea
was specifically structured to avoid lifetime reporting:
Herein, Appellant was subject to a ten-year reporting
requirement under the terms of the plea agreement and
there is no indication that he bargained for non-
registration as a part of his plea. However, the ten-year
Megan’s Law registration period was discussed at the plea
proceeding. While it was not an explicit term of the
negotiated plea, it is apparent that Appellant’s negotiated
plea agreement was structured so that he would only be
subject to a ten-year rather than a lifetime reporting
requirement, distinguishing the facts herein from those in
Benner. 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. Under our reasoning in
Hainesworth, Appellant arguably would be entitled to the
benefit of that bargain.
Partee, 86 A.3d at 249.
However, unless non-registration is specifically part of the plea, this
Court does not consider registration a breach of the plea agreement. See
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Commonwealth v. Giannantonio, 114 A.3d 429, 435-36 (Pa.Super.2015)
(because Appellant failed to demonstrate through credible evidence that
registration for shorter time-period was bargained-for element of his plea,
petition for relief from SORNA requirements was properly denied). In
Commonwealth v. Leidig, 850 A.2d 743, 748 (Pa.Super.2004) aff'd, 956
A.2d 399 (Pa.2008), this Court found that registration is a collateral
consequence of a guilty plea and does not render it involuntary:
In view of our conclusion that the registration requirement
of Megan’s Law II is a collateral consequence of Appellant’s
guilty plea, if Appellant had been unaware of the
registration requirement at the time of his plea, such lack
of awareness would not have rendered his plea unknowing
or involuntary. In the instant case, Appellant incorrectly
was advised that he would be subject to the registration
requirements of Megan’s Law for a period of ten years, as
opposed to a lifetime period. However, in view of our
holding that registration is a collateral consequence of
which Appellant need not have been advised at all, and
because Appellant does not dispute that he was aware that
he would be subject to some period of registration as a
sexual offender under Megan’s Law, we conclude that
Appellant’s misunderstanding as to the actual duration of
the registration requirement is not a basis upon which
Appellant should have been permitted to withdraw his
plea.
Leidig, 850 A.2d at 748.
In this case, Appellant and the Commonwealth did not discuss sexual
offender registration as a part of the plea. The Commonwealth did not
remove any charges that would specifically subject Appellant to a longer
registration period. Appellant pled nolo contendere to two counts of luring a
child into a motor vehicle, a crime that subjected him to registration
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requirements at the time of his offense and guilty plea. SORNA now makes
two counts of luring a child into a motor vehicle subject to lifetime
registration. Thus, the collateral consequence of Appellant’s plea does not
render his plea involuntary. Further, because the Commonwealth did not
make registration a specific part of the plea, it did not breach the
agreement.6
In his third issue, Appellant argues that if SORNA does apply to him,
his two Tier I convictions should be viewed as a single offense for
registration purposes. He concedes that in Commonwealth v. Merolla,
909 A.2d 337 (Pa.Super.2006), this Court found a defendant with 2 counts
of indecent assault was subject to lifetime registration under Section
9795.1(b)(1) of Megan’s Law II. However, he claims Merolla is ripe for
reconsideration, and asserts that his case is distinguishable from Merolla
because he is subject to the registration requirements of SORNA, not
Megan’s Law II. He suggests we interpret the statute similarly to the Three
Strikes Statute, which is directed toward heightening punishment for
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6
I agree with the dissent that this decision yields a harsh result that
implicates principles of fundamental fairness regarding contract law. The
dissent accurately observes that Appellant did not seek to withdraw his
guilty plea but sought to have the terms of the plea enforced. The dissent
also accurately notes that Appellant’s crimes did not require him to register
as a sex offender for life at the time he entered into the plea bargain.
Appellant’s crimes, however, did subject him to registration for a period of
ten years. Thus, the plea could have been structured to avoid registration,
and the retroactive application of SORNA did not render the plea
unconstitutional or violate the terms of plea.
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criminals who have failed to benefit from penal discipline. He further
contends this Court should be consistent with the Commonwealth Court,
which recognized the general purpose of graduated sentencing laws is to
punish more severe offenders who have not benefited from penal discipline.
He concludes that if he is required to register under SORNA, it should only
be for fifteen years. We disagree.
The applicable standard of review is well settled: the
“application of a statute is a question of law, and our
standard of review is plenary.” Commonwealth v. Baird,
856 A.2d 114, 115 (Pa.Super.2004). When interpreting a
statute, the Statutory Construction Act dictates our
approach. See 1 Pa.C.S.A. § 1921; Baird, supra at 115.
“[T]he object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the
General Assembly ...” Id. “[T]he best indication of
legislative intent is the plain language of a statute.”
Commonwealth v. Bradley, 834 A.2d 1127, 1132
([Pa.]2003).
Commonwealth v. Merolla, 909 A.2d 337, 345 (Pa.Super.2006).
In Merolla, this Court found that the legislative intent and the effect
of the registration requirements of Megan’s Law II were distinguishable from
those invoked in the Three Strikes Statute:
The salient portion of the statute provides: “[a]n individual
with two or more convictions of any of the offenses set
forth in subsection (a)” shall be subject to lifetime
registration. 42 Pa.C.S.A. § 9795.1(b)(1). However, the
Three Strikes Statute applies “[w]here the person had at
the time of the commission of the current offense
previously been convicted of two or more such crimes ...”
42 Pa.C.S.A. § 9714(a)(2) (emphasis added). Thus, the
language of Megan’s Law II is distinguishable from the
language of the Three Strikes Statute as Megan’s Law II
does not require a previous conviction. Moreover, the
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legislative intent behind Megan’s Law II is distinct from
that of the Three Strikes Statute. Whereas Megan’s Law II
is based on concern for public safety, the Three Strikes
Statute, although it also implicates public safety, is
directed to heightening punishment for criminals who have
failed to benefit from the effects of penal [discipline.]
Merolla, 909 A.2d at 346-47 (internal footnotes and some citations
omitted).
Although Merolla dealt with the old version of Megan’s Law II, the
language in the SORNA statute is very similar:
§ 9799.14. Sexual offenses and tier system
* * *
(b) Tier I sexual offenses.--The following offenses shall
be classified as Tier I sexual offenses:
* * *
(4) 18 Pa.C.S. § 2910 (relating to luring a child into a
motor vehicle or structure).
* * *
(d) Tier III sexual offenses.--The following offenses
shall be classified as Tier III sexual offenses:
* * *
(16) Two or more convictions of offenses listed as Tier I or
Tier II sexual offenses.
42 Pa.C.S. § 9799.14.
§ 9799.15. Period of registration
(a) Period of registration.--Subject to subsection (c), an
individual specified in section 9799.13 (relating to
applicability) shall register with the Pennsylvania State
Police as follows:
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(1) An individual convicted of a Tier I sexual offense,
except an offense set forth in section 9799.14(b)(23)
(relating to sexual offenses and tier system), shall
register for a period of 15 years.
(2) An individual convicted of a Tier II sexual offense
shall register for a period of 25 years.
(3) An individual convicted of a Tier III sexual
offense shall register for the life of the individual.
42 Pa.C.S. § 9799.15.
Here, Appellant has two convictions for luring a child into a vehicle,
one of the enumerated offenses under § 9799.14, which qualifies him for
lifetime registration as a sexual offender. The registration is designed to be
protective, not punitive. The language in the statute is very similar to the
language of the Megan’s Law II, and this Court held in Merolla that two
enumerated convictions did not have to occur at separate times to subject a
defendant to lifetime registration requirements.7 Appellant tried to lure two
children into his vehicle and now has two luring convictions. Although the
result is somewhat harsh, Appellant should not have tried to lure two
children into his pick-up truck, actions which the General Assembly has seen
fit to criminalize. See 18 Pa.C.S. § 2910.8
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7
The dissent artfully argues that Merolla was improperly decided and
should be reexamined, however, it is currently controlling.
8
To the extent that Appellant argues the Commonwealth Court has
recognized that the general purpose of graduated sentencing laws is to
(Footnote Continued Next Page)
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Order affirmed.
Judge Platt joins in the memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2015
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(Footnote Continued)
punish more severe offenders who have not benefited from penal discipline,
we note that “the decisions of the Commonwealth Court are not binding on
this Court.” Commonwealth v. Heredia, 97 A.3d 392, 395 appeal denied,
104 A.3d 524 (Pa.2014).
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