Com. v. Gilbert, T.

J-A26044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAURUS KENYATA GILBERT
Appellant No. 287 MDA 2014
Appeal from the Order Entered January 15, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002038-2003
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 10, 2015
Appellant, Taurus Kenyata Gilbert, appeals from the January 15, 2014
order denying his motion requesting an order indicating that Appellant is not
subject to the registration requirements of the Sex Offender Registration and
Notification Act (“SORNA”).1 Finding no merit to Appellant’s claims on
appeal, we affirm.
On December 10, 2003, Appellant pled guilty to indecent assault,
complainant less than thirteen years of age,2 and corruption of minors.3 The
trial court sentenced Appellant to a five-year term of probation on the
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1
See 42 Pa.C.S. § 9799, et seq.
2
18 Pa.C.S. § 1326(a)(7).
3
18 Pa.C.S. § 6301(a).
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indecent assault charge and a consecutive five-year term of probation on the
corruption of minors charge, and required Appellant to pay a fine of $200
and the costs of prosecution. As a term of Appellant’s plea, he was required
to register as a sex offender for a period of ten years pursuant to the version
of Megan’s Law applicable at the time of his plea, 42 Pa.C.S. § 9795.1.
Appellant testified at his guilty plea hearing that he signed the guilty plea
slip, the guilty plea colloquy, the acknowledgement of notification of
registration requirements under Megan’s Law, and the plea agreement.
N.T., 12/10/03, at 3.
Appellant’s sentence was scheduled to expire on December 10, 2013.
On November 4, 2011, the court granted Appellant’s motion for termination
of probation. His ten-year registration requirement under Megan’s Law,
however, did not expire until December 10, 2013.
On December 20, 2011, the legislature amended SORNA. The relevant
amendments became effective December 20, 2012 and increased the ten-
year registration requirement for an indecent assault conviction where the
complainant was less than thirteen years of age to a lifetime registration
requirement. 42 Pa.C.S. §§ 9799.14(d)(8), 9799.15(a)(3) (listing 18
Pa.C.S. § 3126(a)(7) as a tier III crime and requiring those convicted of tier
III crimes to register for life). In December 2012, Appellant received
notification he was required to register as a sex offender for the remainder
of his life.
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Following receipt of this notification, in January 2014, Appellant filed a
motion requesting an order indicating that Appellant is not subject to the
registration requirements of SORNA. The Commonwealth filed a response,
and on January 15, 2014, the trial court denied Appellant’s motion. This
timely appeal followed.4
Appellant raises the following three issues on appeal:
Did the lower court err in denying Appellant’s [m]otion to
[r]equest an [o]rder [i]ndicating that [Appellant] is [n]ot
[s]ubject to the [r]egistration [r]equirements of SORNA when
the application of SORNA to Appellant violates the provisions of
the negotiated plea agreement entered into between Appellant
and the Commonwealth?
Did the lower court commit error in denying Appellant’s [m]otion
to [r]equest an [o]rder [i]ndicating that [Appellant] is [n]ot
[s]ubject to the [r]egistration [r]equirements of SORNA when
the application of SORNA to Appellant violates his constitutional
rights to due process of law and fundamental fairness under both
the Constitution of the Commonwealth of Pennsylvania and the
United States Constitution?
Did the lower court err in denying Appellant’s [m]otion to
[r]equest an [o]rder [i]ndicating that [Appellant] is [n]ot
[s]ubject to the [r]egistration [r]equirements of SORNA when
the application of SORNA to Appellant violates the prohibitions
against ex post facto laws contained in the Constitution of the
Commonwealth of Pennsylvania and the United States
Constitution?
Appellant’s Brief at 7.
Appellant first claims that SORNA’s new registration requirements do
not apply to him because the ten-year registration requirement was a
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4
Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
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negotiated term of his plea agreement. Id. at 15-17. Specifically, Appellant
argues that by signing a “Notification of Registration Requirements for
Offenders Pursuant to Title 42 PACS, Section 9751.1” indicating that he
understood that he was required to register with the Pennsylvania State
Police for a period of ten years, Appellant agreed to be subject to a ten-year
sex offender registration period as a term of his plea. Id. at 16. He claims,
“[t]he ten-year registration was a specific term that [Appellant] agreed to
pursuant to his negotiated plea, and fundamental fairness requires this term
to be specifically enforced.” Id. Alternatively, Appellant argues that even if
the ten-year registration period was not a clear term of his plea agreement,
based on the totality of the circumstances, the length of Appellant’s
registration is an ambiguous term of the agreement which should be
construed against the Commonwealth. Id.
As this Court recently reiterated
[i]n determining whether a plea agreement has been breached,
we look to what that parties to the 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.
Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en
banc) (citations omitted).
SORNA’s 2012 amendments, including the increased registration term,
apply to individuals “required to register with the Pennsylvania State Police
pursuant to this subchapter prior to December 20, 2012, and who had not
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fulfilled the individual’s period of registration as of December 20, 2012.”5 42
Pa.C.S. § 9799.13(3). Because he had not completed his ten-year period of
registration as of December 20, 2012, SORNA’s amendments, including the
increased registration period, applied to Appellant.
We disagree with Appellant’s contention that SORNA’s new registration
requirements do not apply to him. Our review of the record indicates that
registration for only ten years was not a term of Appellant’s plea agreement.
Therefore, Appellant is subject to SORNA’s amendments.
To explain our decision, it is helpful to contrast this case with our
decision in Hainesworth, supra. In Hainesworth, this Court found the
parties “entered into a plea bargain that contained a negotiated term that
[the defendant] did not have to register as a sex offender.” Hainesworth,
82 A.3d at 450. At the defendant’s guilty plea hearing, the Commonwealth
stated it was not a Megan’s Law case. Id. at 448. This Court found:
The trial court and Hainesworth were assured no less than twice
by the Commonwealth that the plea did not obligate Hainesworth
to register as a sex offender. Moreover, these statements were
made as part of the Commonwealth’s recitation of the terms of
the plea agreement, which were laid out carefully on the record.
It is unambiguous from the record that both parties to this
appeal, and the trial court, understood that a registration
requirement was not included as a term of Hainesworth’s plea
agreement.
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5
The General Assembly again amended SORNA in March 2014, and made
the amendments retroactive to December 20, 2012. The March 2014
amendments do not affect this appeal, because Appellant registered as a sex
offender prior to December 20, 2012. See 42 Pa.C.S. § 9799.13.
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Id. We opined that “the plea agreement appear[ed] to have been precisely
structured so that [the defendant] would not be subjected to a registration
requirement.” Id. The Commonwealth charged the defendant with ten
counts, but withdrew the counts that would have required Megan’s Law
registration. Id. We concluded that non-registration as a sex offender was
a term of the plea bargain and found the trail court correctly required
specific enforcement of that bargain. Id. at 448, 450.
Unlike the defendant in Hainesworth, Appellant did not bargain for a
ten-year registration term. Rather, at the time of his guilty plea the charge
of indecent assault, complainant less than thirteen years of age, required a
ten-year registration term. There is no evidence in the record, and
Appellant has not brought any to this Court’s attention, that the parties
structured the guilty plea to avoid a longer registration requirement.
Although the parties agreed at sentencing that Megan’s Law required
Appellant to register for a ten-year period, this was not a term of the plea
agreement. Thus, Appellant must comply with the SORNA amendments and
register for his lifetime. Hainesworth, 82 A.3d at 450; see also
Commonwealth v. Nase, 2014 WL 4415061 (Pa. Super. Sept. 9, 2014)
(holding defendant not required to register as a sex offender for an
additional fifteen years where defendant expressly agreed to plead guilty to
lesser charges and register under Megan’s Law for a ten-year period);
Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004) (where
record at guilty plea and sentencing was silent as to whether defendant was
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required to register under Megan’s Law, post-sentence amendment requiring
lifetime registration applied to defendant, even though, version of Megan’s
Law in effect at sentencing only required registration for ten years);
Commonwealth v. Miller, 787 A.2d 1036 (Pa. Suoer. 2001) (requiring
registration where offense and conviction occurred prior to Megan’s Law
effective date).
In Appellant’s last two issues, he claims that application of SORNA’s
lifetime registration requirement violates his constitutional rights to due
process and fundamental fairness under the Due Process Clauses of the
United States Constitution and the Pennsylvania Constitution, and violates
the prohibitions against ex post facto laws contained in the United States
and Pennsylvania Constitutions. Appellant’s Brief at 12-14, 17-25; U.S.
Const. Art. 1, § 10; U.S. Const. Amend. V, XIV; Pa. Const. Art. I, § 1, 9, 11,
17.
Whether a due process or ex post facto violation exists presents a
question of law, for which this Court’s standard of review is de novo.
Commonwealth v. Perez, 97 A.3d 747, 750 (Pa. 2014).
The Pennsylvania Supreme Court found Megan’s Law II 6 registration,
counselling, and notification requirements did not violate due process. See
Commonwealth v. Williams, 823 A.2d 962, 986 (Pa. 2003). Further, this
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6
Act of May 10, 2000, P.L. 74, No. 18 (as amended, 42 Pa.C.S. §§ 9791-
9799.7)
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Court has held that, because the registration requirement pursuant to
Megan’s Law and SORNA is a collateral consequence of a plea agreement,
due process does not require that the court inform the defendant of the
registration requirement at the time of the plea. See Commonwealth v.
McDonough, 98 A.3d 1067, 1071 (Pa. Super. 2014); Benner, 853 A.2d at
1070-71.
Notwithstanding Appellant’s argument to the contrary, our case law is
clear—application of SORNA registration requirements are not violative of a
defendant’s due process rights. Accordingly, Appellant’s claim to this effect is
without merit.
Finally, Appellant maintains application of SORNA is a violation of the
ex post facto clauses of the United States and Pennsylvania Constitutions.
Appellant’s Brief at 17-25. This claim likewise lacks merit. This Court has
considered, and rejected, similar ex post facto challenges to various versions
of SORNA. See Perez, 97 A.3d at 760; Commonwealth v. Ackley, 58
A.3d 1284, 1286-87 (Pa. Super. 2012) (holding notification provision of
Megan’s Law III did not violate ex post facto clause); Benner, 853 A.2d at
1071 (discussing Commonwealth v. Flemming, 801 A.2d 1234 (Pa.
Super. 2002); Williams, 823 A.2d 962; Commonwealth v. Gaffney, 733
A.2d 616, 621 (Pa. 1999).
Therefore, based upon the foregoing well-settled principles, Appellant’s
due process and ex post facto claims fail. For this reason, and because
Appellant did not demonstrate that the requirement that he register as a sex
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offender was a negotiated term of his plea agreement, Appellant is not
entitled to relief. See Nase, 2014 WL 4415061 at *7; Hainesworth, 82
A.3d at 450.
Order affirmed.
Judge Mundy joins in this memorandum.
Judge Bowes files a concurring/dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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