Com. v. Nemeth, D.

J-S12042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant, :
:
v. :
:
DAVID WAYNE NEMETH, II, :
:
Appellee : No. 926 EDA 2015
Appeal from the Order Entered March 25, 2015,
in the Court of Common Pleas of Monroe County,
Criminal Division, at No(s): CP-45-CR-0001184-2010
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 22, 2016
The Commonwealth appeals from the March 25, 2015 order granting
the motion to enforce a plea agreement filed by Appellee, David Wayne
Nemeth, II (Appellee). We affirm.
On May 27, 2010, Appellee was arrested and charged with involuntary
deviant sexual intercourse (IDSI), statutory sexual assault, aggravated
indecent assault, indecent assault, unlawful contact with a minor, and
corruption of minors. On November 3, 2010, Appellee pled guilty to
corruption of minors and unlawful contact with a minor. Under the terms of
the plea agreement, the remaining charges were nolle prossed by the
Commonwealth.
* Senior Judge assigned to the Superior Court.
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On February 18, 2011, Appellee was sentenced to an aggregate term
of 36 to 72 months of incarceration. As a result of his conviction for unlawful
contact with a minor, Appellee was required to register as a sex offender
under Megan’s Law II1 for a period of ten years.
On December 20, 2011, the legislature enacted the Sex Offender
Registration and Notification Act (SORNA). See 42 Pa.C.S. § 9799.41.
SORNA became effective on December 20, 2012 and, inter alia, increased
the registration period for those convicted of unlawful contact with a minor
from ten to 25 years. Because he was under parole supervision at the time
SORNA went into effect, Appellee was subject to the new registration
provisions.
On October 31, 2014, Appellee filed a motion seeking to enforce the
terms of his plea agreement in which he contended that the increased
registration time required by SORNA violated the terms of his guilty plea
agreement because he had specifically bargained for a ten-year registration
period. A hearing was held on January 12, 2015, and on March 25, 2015,
the trial court granted Appellee’s motion. The Commonwealth timely filed
the instant appeal. Both the Commonwealth and the trial court complied
with Pa.R.A.P. 1925.
On appeal, the Commonwealth first argues that the trial court erred in
holding that the ten-year registration period imposed on Appellee at
1
42 Pa.C.S. §§ 9795.1—9799.4.
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sentencing “was not a specific bargained[-]for term” of the plea agreement.
Commonwealth’s Brief at 10.
In considering this issue, we apply the following principles. “[E]ven
though a plea agreement arises in a criminal context, it remains contractual
in nature and is to be analyzed under contract law standards.”
Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013) (en
banc) (citations omitted).
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 as the
appellate court may review the entire record in making its
decisions. However, we are bound by the trial court’s credibility
determinations.
Calabrese v. Zeager, 976 A.2d 1151, 1154 (Pa. Super. 2009) (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). “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). Because plea
bargaining is such an integral part of our criminal justice system, specific
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enforcement of valid plea bargains is a matter of fundamental fairness.
Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa. Super. 2012).
[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, an en banc panel of this Court was asked to consider
whether retroactive application of the SORNA registration requirements
breached the terms of Hainesworth’s plea agreement. Hainesworth, 82
A.3d at 446-47. Applying the contract principles outlined above, the
Hainesworth Court concluded that the trial court did not err in ordering
specific enforcement of Hainesworth’s plea bargain. Id. at 447. In upholding
the trial court’s determination, the Court found significant the terms of the
plea bargain, which required the Commonwealth to withdraw all charges
carrying a Megan’s Law registration requirement, and the Commonwealth’s
repeated assurances during the plea process that it was not seeking
registration. Id. at 445-48. Accordingly, the Court determined that the
objective evidence of record supported the conclusion that the parties had
negotiated a plea that would not require Hainesworth to register as a sex
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offender; thus, imposition of a registration requirement based on a
subsequent change in law, would breach that agreement. Id. at 450.
Instantly, the terms of Appellee’s guilty plea provided that he would
enter a plea to the charges of unlawful contact with a minor and corruption
of minors and the Commonwealth would nolle pros the remaining IDSI,
statutory sexual assault, aggravated indecent assault, and indecent assault
charges. N.T., 11/3/2010, at 14. At the time of the plea, a defendant
convicted of IDSI and/or aggravated indecent assault was subject to a
lifetime registration period under 42 Pa.C.S. § 9795.1(b). 2 Appellee was
advised by the Commonwealth and the trial court that the unlawful contact
conviction carried a ten-year Megan’s Law registration period.
[The Assistant District Attorney]: Yes, Your Honor. [Appellee] is
… pleading guilty to Count 5, unlawful contact with a minor,
which is a felony of the second degree. … As well as Count 6,
which is a misdemeanor of the first degree[.]
… And he also understands there’s a ten-year Megan’s Law
Registration.
THE COURT: Okay. [Appellee], you understand the maximum
penalty on each of those … [and t]hat you are also going to have
a Megan’s Law registration that goes along with this; do you
understand that, sir?
[Appellee]: Yes, Your Honor.
Id.
2
The crimes of statutory sexual assault and indecent assault were not
subject to registration under 42 Pa.C.S. § 9795.1.
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Consistent with this agreement, at sentencing, the assistant district
attorney specifically clarified the registration requirement, stating “Now,
there is one, I think, oversight in the [pre-sentence investigation report],
and it suggests that [unlawful contact] is a lifetime registration offense. It is
not. It is a 10-year registration offense, and that is all that it is.”
N.T., 2/18/2011, at 4 (emphasis added). Moreover, following imposition of
sentence, the district attorney recited for the record the terms of the
Megan’s Law notification signed by Appellee and reiterated that the
registration period was ten years.
[Assistant District Attorney]: Your Honor, I have the two-page
notification at sentencing pursuant to Megan’s Law. [Appellee]
has initialed all the paragraphs and signed the last page thereby
indicating that he has to register his current address with the
Pennsylvania State Police and provide other information as
required by law upon release from incarceration or upon parole
from a state or county correctional facility.
If he changes his residence, he must notify the
Pennsylvania State Police within 48 hours.
If he changes his residence and resides in a state outside
of Pennsylvania, he must notify the appropriate law enforcement
agency of that state within 48 hours.
If he’s unemployed or carries on a vocation or is a student
outside of the state of his residence, he has to register with that
state if it requires registration.
Periodically, an address verification form will be sent to
him. He has to complete it and submit it back to the
Pennsylvania State Police within 48 hours.
Registration shall be for a period of 10 years. Failure to
abide by these conditions would subject him to additional
criminal penalties including felony offenses.
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Id. at 9-10.
Based on the above, and following a hearing and submission of briefs
by both parties, the trial court found credible Appellee’s argument that the
ten-year Megan’s Law registration period attached to Appellee’s unlawful
contact with a minor conviction was an essential term in the agreement
negotiated between Appellee and the Commonwealth. Trial Court Opinion,
3/27/2015, at 5-6 (unnumbered). The court reasoned as follows.
[U]nder the totality of the circumstances, [] the plea
agreement was structured in a way that [Appellee] would only
be subject to the ten year Megan’s Law registration requirement.
All the counts requiring a twenty-five [year] or lifetime
registration were nolle prossed by the Commonwealth in return
for [Appellee] entering an open guilty plea to the two remaining
counts, one of which resulted in the ten[-]year registration
requirement. Considering the structure of the open plea
agreement to nolle pros the charges with longer Megan’s Law
registration requirements and the answers on [Appellee’s]
written guilty plea colloquy, the ten[-]year Megan’s Law
registration appears to have been an essential term to the
negotiated plea agreement made by [Appellee] with the
Commonwealth.
Id. at 4-6 (unnecessary capitalization and footnotes omitted).
It is well-settled that “the paramount goal of contract interpretation is
to ascertain and give effect to the parties’ intent. When the trier of fact has
determined the intent of the parties to a contract, [we] will defer to that
determination if it is supported by the evidence.” Commonwealth v.
Herbert, 85 A.3d 558, 562 (Pa. Super. 2014) (citation omitted).
Accordingly, as the record supports the trial court’s determination that the
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parties intended the ten-year registration period to be a specific term of
Appellee’s plea agreement, we discern no error in the trial court’s grant of
relief.
The Commonwealth also contends that the trial court erred in applying
this Court’s Hainesworth analysis in this case. Specifically, the
Commonwealth argues that Hainesworth is factually distinguishable from
the instant case because the terms of Appellee’s plea agreement always
required him to register for some period of time. Commonwealth’s Brief at
22-24. We disagree.
Application of Hainesworth is not limited to plea bargains involving
non-registration. See Commonwealth v. Nase, 104 A.3d 528 (Pa. Super.
2014) (reversing the trial court’s determination that the terms of a plea
agreement did not include a specific period of registration where the record
made at the guilty plea and sentencing hearings established that a ten-year
period of registration was a specifically bargained-for term of Nase’s plea
agreement). Nor does there need to be an explicit statement made on the
record for Hainesworth and its progeny to apply.3
3
The plea in Hainesworth was set forth on the record as follows.
[COURT ASSISTANT:] Is this Megan’s Law?
[THE COMMONWEALTH:] It is not Megan’s Law. Terms and
conditions are as follows: At Count 1 on case 106, 11-and-a-half
to 23-and-a-half months[‘] incarceration. Costs and fees. No
contact direct or indirect with the victim or the victim’s family. At
Count 2, 11–and–a–half to 23 concurrent to Count 1. Count 3,
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no further sentence. Count 6, one year probation consecutive to
Count 2. Count 7, one year probation consecutive to Count 6.
Count 8, one year probation consecutive to Count 7. Count 9,
two years[‘] probation consecutive to Count 8. That’s a total of
five years[‘] probation.
[THE COURT:] These are felony sexual assault and they’re not
Megan’s Law?
[THE COMMONWEALTH:] The Commonwealth will move to
dismiss Counts 4, 5 and 10. They are not. They’re statutory—
[THE COURT:] Statutory sexual assault, felony two.
[THE COMMONWEALTH:] Is not Megan’s Law.
[THE COURT:] You’re dismissing 4 and 5?
[THE COMMONWEALTH:] And 10.
[THE COURT:] 4, 5 and 10.
...
Subsequently, the following exchange occurred:
[THE COURT:] [W]as the agreement stated correctly by the
Commonwealth?
[COUNSEL FOR HAINESWORTH:] Yes, it was.... Do you have any
questions about anything you read?
[HAINESWORTH:] No, sir....
[THE COURT:] There’s no restitution or anything like that?
[THE COMMONWEALTH:] There is not, Your Honor.
Hainesworth then asked if he was eligible for school release, and
the trial court addressed his question. Likewise, Hainesworth
asked for clarification regarding time credit, and the court
explained this to him as well. The court then accepted
Hainesworth’s plea, and the hearing was adjourned.
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It is unambiguous from the record before us that the agreement
negotiated between Appellee and the Commonwealth was specifically
designed to require only a [ten-year] registration period. Both parties to this
appeal, as well as the trial court, understood that lifetime registration was
not included as a part of Appellee’s plea bargain, but more importantly, a
ten-year term was. As a result, when considering the circumstances as a
whole, we agree with the trial court that there was ample objective evidence
of record that the parties bargained for a specific period of registration.
Accordingly, we discern no error in the trial court’s application of
Hainesworth to the instant case.4
For all of the foregoing reasons, we affirm the trial court’s March 25,
2015 order.
Order affirmed.
Hainesworth, 82 A.3d 444, 447-48 (Pa. Super. 2013) (citations omitted).
4
The remainder of the Commonwealth’s appellate issues all assume that the
trial court erred in holding that the ten-year registration requirement was a
bargained-for contractual term of Appellee’s plea agreement.
Commonwealth’s Brief at 4. Because we have held that the trial court was
correct, we need not consider the rest of the Commonwealth’s arguments.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 3/22/2016
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