Com. v. Blair, B.

J-S37023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL BLAIR
Appellant No. 1815 MDA 2013
Appeal from the Order Entered September 16, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No: CP-14-CR-0001702-2009
BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 03, 2014
Appellant, Brandon Michael Blair, appeals from the order entered on
September 16, 2013 in the Court of Common Pleas of Centre County,
September 16 order.
As a result of events that transpired in the early morning hours of
September 7, 2009, Appellant was arrested and charged with one count of
sexual assault, 18 Pa.C.S.A. § 3124, two counts of aggravated indecent
assault, 18 Pa.C.S.A. § 3125(a)(1), and two counts of indecent assault, 18
Pa.C.S.A. § 3126(a)(1). At a hearing conducted on July 23, 2010, Appellant
agreed to plead guilty to the two counts of indecent assault, misdemeanors
of the second degree.
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On August 24, 2010, the trial judge sentenced Appellant to
imprisonment in the Centre County Correctional Facility for a period of not
less than 11-1/2 nor more than 23-1/2 months on one count of indecent
assault, sentenced him to a consecutive two-year term of probation on the
second count of indecent assault, and nol prossed the remaining counts.
indecent assault convictions did not trigger any requirements to register as a
sex offender.1
The trial judge approved Appellant for parole in an order filed May 18,
2011. On December 20, 2011, the Pennsylvania Legislature enacted the Sex
effective on December 20, 2012. 42 Pa.C.S.A. §§ 9799.10-9799.41. Any
individual being supervised by the board of probation or parole as of the
effective date of SORNA was subject to its provisions. 42 Pa.C.S.A.
§ 9799.13(2). An individual convicted of indecent assault under 18
ster
with the Pennsylvania State Police for a period of 15 years. 42 Pa.C.S.A.
§ 9799.14(b)(6) and 15(a)(1). However, two convictions for indecent
____________________________________________
1
requirements were governed by 42 Pa.C.S.A § 9795.1, which expired on
December 20, 2012 pursuant to 42 Pa.C.S.A. § 9799.41.
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lifetime of the individual. 42 Pa.C.S.A. § 9799.14(d) and 15(a)(3). As an
individual with two convictions under 18 Pa.C.S.A. § 3126(a), Appellant
became subject to lifetime registration as a sex offender with the enactment
of SORNA.
On November 5, 2012, in anticipation of the effective date of SORNA
2014, Appellant filed a Motion for Early Termination of Parole/Probation
and/or Motion to Withdraw Guilty Pleas nunc pro tunc. Appellant sought an
order terminating his probation prior to December 20, 2012 so he would not
have to register as a sex offender under SORNA, noting there was no
requirement to register under the statute in effect when he entered his
guilty plea. Alternatively, Appellant sought leave to withdraw his guilty plea,
claiming that a significant incentive for entering his guilty plea was to
eliminate the risk of a conviction requiring sex offender registration.
December 17, Appellant filed an amended motion seeking the same relief.
The trial court denied the amended motion by order entered on December
27, 2012.2
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2
tion, the trial court
entered a second order on December 31, 2012 denying the amended
motion.
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On July 2, 2013, Appellant filed a Petition to Enforce Plea Agreement
or for a Writ of Habeas Corpus in an attempt to bar retroactive application of
SORNA to his convictions. Appellant asserted that the non-registration
aspect of his plea agreement, while not mentioned specifically in his written
ement
and was one of two major reasons for the acceptance of the plea offer made
9/25/13, at ¶ 5. Appellant argued that retroactive application of SORNA
violated his plea agreement and the Due Process Clauses of the United
States and Pennsylvania Constitutions. Id. at ¶ 9. By order dated
September 13 and filed on September 16, 2013, the trial court denied
On September 25, Appellant filed a motion for an evidentiary hearing
so that Appellant could state on the record for this appeal his belief that the
plea agreement eliminated the possibility of any sex offender registration
requirement. The trial court granted the motion and an evidentiary hearing
was conducted on October 3, 2013. In the course of the hearing, Appellant
register as a sex offender, some of the other charges were fel
Evidentiary Hearing, 10/3/13, at 5. He stated he would not have entered
the plea if he had known he would have to register as a sex offender, and
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explained that registration presents a problem for his employment, which
involves welding work in schools. Id. at 10-12.
During the course of the case and after jury selection
ongoing plea negotiations were instituted with the Assistant DA
at the time [], and during the course of those negotiations a key
[Appellant] would not plead to anything that would require a
state sentence or require registration as a sex offender.
***
[The Assistant D.A.] got back to me with a plea offer. The
plea offer was that if [Appellant] pled guilty to two counts of
indecent assault, misdemeanors of the second degree, the
Commonwealth would nol pros the other charges but he would
have to serve a sentence of 11 and a half to 23 and a half
months in regard to Count 4, that was the first count of indecent
assault, and that would be followed by a period of probation
thereafter.
The period of incarceration was above and beyond the
standard, or even for that matter the aggravated range, of the
sentencing guidelines for misdemeanor two, indecent assault,
but because it involved charges which would not require
[Appellant] to register as a sex offender, and after many
discussions not only with [Appellant] and his parents in my office
and on the phone, . . . [Appellant] agreed to accept the plea.
Implicit in that agreement was his understanding that he
would not have to register as a sex offender. At the time he had
a job, which required him to go into schools and that was a big,
big concern to him, that he not have to register as a sex
offender.
Had he had to register as a sex offender, [Appellant] had
made it clear to me he would take his chances with a trial. We
had talked about a trial and all of the potential problems and risk
involved, even though we always felt he had a decent defense to
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this case because it involved a situation in which the young lady
involved thought she was having sex with her boyfriend after
boyfriend, it was [Appellant] and he was charged as a result of
those circumstances.
But, again, it was absolutely clear that [Appellant] had two
major concerns in pleading guilty, avoiding the risk of going to
state prison if he were convicted of a felony charge and not
having to register as a sex offender if we were able to work out a
plea negotiation. It was clear from the beginning.
Id. at 14-
avoiding sex offender registration in the plea offer, in the guilty plea
requirement for registration [for the misdemeanor two indecent assault
convictions] and no one could have foreseen that this would become an
Id. at 20.
Following the evidentiary hearing, Appellant filed a timely appeal from
the September 16 order and co
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant raised two errors in his 1925(b) statement and has
rephrased them in this appeal as follows:
I. Did the lower court err in
enforce plea agreement or for a writ of habeas corpus
relating to the registration requirements under SORNA on
the basis the lower court no longer had jurisdiction in
II. Did the lower court err in holding it no longer had
jurisdiction or authority to enforce the explicit and/or
implicit terms of the plea agreement entered into by
[Appellant] and the Commonwealth in his case?
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ion, the trial court
constrained from granting relief to Appellant by virtue of its lack of
at 2-3. A week later, the trial court withdrew its December 12 opinion in a
Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en
banc), appeal denied, 2014 Pa. LEXIS 1664 (Pa., July 8, 2014).
In Hainesworth, an en banc panel of this Court upheld the trial
-SORNA plea agreement under
which no sex offender registration was required, applying contract principles
a negotiated term that
Id. at 450. In the
wake of Hainesworth, the trial court in the instant case explained it was
withdrawing its December 12 opinion, anticipating this Court would reverse
the Se
agreement. Trial Court Supplemental Opinion, 12/19/13, at 1.
The Commonwealth attempts to distinguish Hainesworth based on
ding sex
offender registration during the plea hearing in his case, whereas there was
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While it is true Appellant did not explain on the record in 2010 his motivation
for accepting the plea deal, it is equally true he was not asked anything
more specific than whether he understood the range of sentences and fines
for the offenses charged. N.T. Guilty Plea Hearing, 7/23/10 at 6. He did,
however, testify at the 2013 evidentiary hearing that the risk of having to
register as a sex offender was a consideration for entering into the plea
agreement. N.T. Evidentiary Hearing, 10/3/13, at 5, 10-12.
In Hainesworth, this Court employed a contract law analysis to
Id. at 447 (quoting Commonwealth v.
Fruehan rmination
ambiguities in the terms of the plea agreement will be construed against the
Id. (quoting Commonwealth v. Kroh, 654 A.2d 1168,
1172 (Pa. Super. 1995)). This Court concluded non-registration was a term
specific enforcement of the terms of that bargain. Id. at 448.
In the case before us, we could likewise employ a contract law analysis
plea agreement. However, that analysis is unnecessary due to amendments
to SORNA, under which Appellant is no longer subject to the registration
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requirements. See Commonwealth v. Bundy, 2014 PA Super. 144, 2014
Pa. Super. LEXIS 1780 (July 10, 2014).
On March 12, 2014, while this appeal was pending, Act 19 was signed
into law, amending SORNA by, inter alia, adding § 9799.13(3.1), effective
retroactive to December 20, 2012, so that § 9799.13 now reads, in relevant
part:
§ 9799.13. Applicability
The following individuals shall register with the
Pennsylvania State Police as provided in sections 9799.15
(relating to period of registration), 9799.19 (relating to initial
registration) and 9799.25 (relating to verification by sexual
offenders and Pennsylvania State Police) and otherwise comply
with the provisions of this subchapter:
***
(2) An individual who, on or after [December 20, 2102], is, as a
result of a conviction for a sexually violent offense, . . . being
supervised by the Pennsylvania Board of Probation and Parole or
county probation or parole [].
***
(3.1) The following:
(i) An individual who between January 23, 2005, and
December 19, 2012, was:
(A) convicted of a sexually violent offense;
(B) released from a period of incarceration resulting from
a conviction for a sexually violent offense; or
(C) under the supervision of the Pennsylvania Board of
Probation and Parole or county probation or parole as a
result of a conviction for a sexually violent offense.
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shall have the meaning set forth in section
9799.12 (relating to definitions), except that it shall not
include:
***
(B) A conviction under 18 Pa.C.S. § 3126 (relating to
indecent assault) where the crime is graded as a
misdemeanor of the second degree [].
42 Pa.C.S.A. § 9799.13 (emphasis added).
In Bundy
present cognizable issues under the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-9546, this Court does have jurisdiction to review orders confirming
or rejecting a retroactive sex offender registration requirement. Bundy,
supra at *3-*4. The Court then considered the current registration
requirements under SORNA as amended and announced:
The proper interpretation of a statute raises a question of law,
over which our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Dixon, 53 A.3d 839, 842
(Pa. Super. 2012).
language superfluous or assume language to be mere
ambiguity, the letter of it is not to be disregarded under the
In re T.P., 78 A.3d 1166, 1174 (Pa. Super. 2013).
Moreover, where there is a conflict in the terms of a statute, 1
Pa.C.S. § 1933 provides the following guidance:
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Whenever a general provision in a statute shall be in
conflict with a special provision in the same or another
statute, the two shall be construed, if possible, so that
effect may be given to both. If the conflict between the
two provisions is irreconcilable, the special provisions shall
prevail and shall be construed as an exception to the
general provision, unless the general provision shall be
enacted later and it shall be the manifest intention of the
General Assembly that such general provision shall prevail.
1 Pa.C.S. § 1933.
Under 42 Pa.C.S. § 9799.13(3.1), which was enacted by Act 19
and made retroactive to December 20, 2012, certain convictions
between January 23, 2005, and December 19, 2012, for
42
Pa.C.S. § 9799.13(3.1)(i)(A) (stating that registration
requirement applies, inter alia, to [an] individual, who between
However, the General Assembly also established that several
offenses are not sexually violent offenses under Paragraph (3.1).
42 Pa.C.S. § 9799.13(3.1)(ii)
paragraph
meaning set forth in section 9799.12 (relating to definitions),
except
subparagraphs (A) and (B) (emphasis added)). Those exceptions
18 Pa.C.S. § 3126 (relating to
indecent assault) where the crime is graded as a misdemeanor
42 Pa.C.S. § 9799.13(3.1)(ii)(B).
Consequently, where an individual, between January 23, 2005,
and December 19, 2012, is convicted of an offense enumerated
in 42 Pa.C.S. § 9799.13(3.1)(ii)(A) or (B), such as indecent
assault graded as a second-degree misdemeanor, that conviction
is not
requirement.
Instantly, [Bundy], in relevant part, was convicted of indecent
assault graded as a misdemeanor of the second degree on May
12, 2009. Therefore, the conviction upon which registration is
currently sought occurred within the timeframe specified in
Paragraph 3.1(i)(A). However, under Paragraph 3.1(ii)(B) the
offense is not deemed to be a sexually violent offense.
Accordingly, [Bundy] falls within the exception to the application
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of Megan's Law, and he is not subject to registration under 42
Pa.C.S. § 9799.15.
Thus, having reviewed the record and the governing law, we
conclude [Bundy] is not subject to a registration requirement,
and we must reverse the order of the trial court confirming the
imposition of a registration requirement.
Id. at *10-*13.
Paragraph (3.1)(ii) and Paragraph (2) of § 9799.13 and turned to the
statutory construction provisions of 1 Pa.C.S.A. § 1933 to resolve that
the extent there may be a conflict in the statute, the
general provision in Paragraph (2) yields to the specific provision set forth in
Id. at *12-*13 n.4.
Appellant was convicted on August 24, 2010 of two counts of indecent
assault under 18 Pa.C.S.A. 3126(a) graded as misdemeanors of the second
degree. As in Bundy
specified in Paragraph 3.1(i)(A) but his offense no longer is deemed a
sexually violent offense under Paragraph 3.1(ii)(B). Consequently, Appellant
falls into the exception created by Act 19 and he is not subject to
registration under 42 Pa.C.S.A. § 9799.15. Therefore, we vacate the trail
Order vacated. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2014
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