Commonwealth v. Nase

J-S38022-14
2014 PA Super 194COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES NASE,
Appellant No. 2946 EDA 2013
Appeal from the Order September 20, 2013
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001201-2005
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ.
OPINION BY BOWES, J.: FILED SEPTEMBER 09, 2014
Charles Nase appeals from the denial of his petition to avoid additional
sex offender registration requirements, specifically, registering for an
additional fifteen years. After careful review, we reverse.
Appellant originally entered a guilty plea to statutory sexual assault,
18 Pa.C.S. § 3122.1, and unlawful contact with a minor, 18 Pa.C.S. § 6318,
on March 7, 2006. The facts underlying the plea were that Appellant
engaged in sexual intercourse with a female aged fourteen when he was
twenty years of age. The Commonwealth agreed to nolle prosse charges of
involuntary deviate sexual intercourse with a person less than sixteen years
of age, aggravated indecent assault with a person less than sixteen years of
age, indecent assault of a person less than sixteen years of age, and
corruption of minors.
J-S38022-14
The court sentenced Appellant on May 24, 2006, to two months to
twelve months incarceration for the statutory sexual assault charge and did
not impose any further sentence at the remaining count. Appellant
completed serving his sentence no later than May of 2007. However, the
charge of unlawful contact with a minor required a period of sexual offender
specifically included in the plea so that Appellant would be required to
register as a sex offender for a period of ten years.
effective. This law brought Pennsylvania into compliance with the federal
Sexual Offender Registration and Notification Act, SORNA.1
SORNA law required those convicted of unlawful contact with a minor to
register for twenty-five years.2 Appellant filed the underlying petition on
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1
Pennsylvania passed the statute in question in response to the federal
sage of the Adam Walsh Child Protection and Safety Act of
2006, 42 U.S.C. § 16901 et seq. Title I of the Act is known as the Sex
Offender Registration & Notification Act. Pursuant to the Adam Walsh law,
failure of a state to modify its own sex offender registration and notification
statutes to meet the standards of the federal provision would result in a loss
of certain federal funds for state and local law enforcement. See 42 U.S.C.
§ 16925.
2
The General Assembly has subsequently retroactively altered the law
governing sexual offender registration. See 2014 P.L. ___, No. 19, § 3,
7(1) (enacted Mar. 14, 2014, effective Dec. 20, 2012). This change does
not alter the fact that Appellant is now subject to additional registration
requirements. The newest legislation, however, did retroactively remove
registration requirements for individuals convicted of certain offenses
(Footnote Continued Next Page)
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June 19, 2013. Therein, he contended that fundamental fairness, contract
law, and the due process and contract clauses of the United States and the
Pennsylvania Constitution precluded increasing his registration period from
ten to twenty-five years. The court conducted a hearing that consisted of
argument by both
issued an opinion in support of its order. This timely appeal ensued, and the
court directed Appellant to comply with Pa.R.A.P. 1925(b). Appellant
ed a brief supplemental
opinion pursuant to Pa.R.A.P. 1925(a). Appellant now presents three issues
for our review.
A.
interfere with or violate any agreement made by and between
the Commonwealth and the Defendant at the time that he
entered into his guilty plea?
B. Was the Defendant, at the time of his guilty plea and
sentencing, specifically advised as to what his obligations
were to be, not that those self same restrictions could be
modified at some time in the future retroactively?
C. Commonwealth v.
Benner [, 853 A.2d 1068 (Pa.Super. 2004)] misplaced?
Although Appellant purports to only raise three issues, his first claim
contains eight interrelated sub- -
_______________________
(Footnote Continued)
between a defined time period, which the December 20, 2012 legislation had
initially imposed. See 42 Pa.C.S. § 9799.13(3.1).
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arguments are that fundamental fairness and due process mandate that his
plea agreement be enforced. His next two positions are constitutional
challenges under the federal and Pennsylvania contract clauses. Relatedly,
his final three sub-
substantially impairs his plea bargain under the contract clauses.
The Fourteenth Amendment and Article I, § 9 of the Pennsylvania
Constitution guarantee due process protections.3 Our Supreme Court has
ruled that these provisions are essentially coextensive. Commonwealth v.
Moto, 23 A.3d 989, 1001 (2011). of
any cogent discussion of substantive or procedural due process standards,
nor does he contend that a fundamental right is at issue. See
Commonwealth v. Brown, 52 A.3d 1139, 1162 (Pa. 2012); Khan v. State
Bd. of Auctioneer Examiners, 842 A.2d 936, 946 (Pa. 2004)
be the deprivation of a property right or other interest that is constitutionally
Commonwealth v. Burnsworth, 669 A.2d 883, 889 (Pa.
1995).
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3
We r
9, is synonymous with that term. Commonwealth v. Rose, 81 A.3d 123,
126 n.2 (Pa.Super. 2013), allowance of appeal granted on other ground, __
A.3d __ (Pa. 2014) (filed July 8, 2014) (citing Craig v. Kline, 65 Pa. 399,
413 (1870); Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 276, 18
How. 272, 15 L.Ed. 372 (1855); Commonwealth v. Harrell, 65 A.3d 420,
448 n.10 (Pa.Super. 2013) (Donohue, J., dissenting)).
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Appellant does not argue that strict scrutiny or the rational basis test
applies to the SORNA statute, see Khan, supra, and he does not discuss
the statute in relation to his fundamental fairness arguments. Rather, his
focus is on the contractual nature of his plea agreement. In this respect, he
maintains that his ten-year registration period was an implicit term of his
plea. He points out that, at sentencing, he was provided notice of the ten-
year registration. Appellant highlights that both the United States Supreme
Court and this Court have construed plea bargains as contractual in nature.
See Santobello v. New York, 404 U.S. 257 (1971); Puckett v. United
States, 556 U.S. 129, 137 (2009); Commonwealth v. Kroh, 654 A.2d
1168, 1172 (Pa.Super. 1995). In Appella
be strictly enforced, and any ambiguity is to be counted against the
Commonwealth.
retroactive increase of registration requirements can withstand either strict
scrutiny or the rational basis test. Instead, we examine whether a
contractual analysis precludes Appellant, under the precise facts here, from
being subject to fifteen additional years of registering as a sex offender.
appellee in Commonwealth v. Hainesworth, 82 A.3d 444 (Pa.Super.
2013) (en banc). In addition to Santobello, supra and Kroh, supra,-5-
J-S38022-14
Appellant relies on Commonwealth v. Mebane, 58 A.3d 1243 (Pa.Super.
2012), Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976), and an
unpublished non-precedential Court of Common Pleas decision,
Commonwealth v. McMullen, 3116 C 2008 (Westmoreland County, Ct.
Com.Pl.) (filed December 18, 2008),4 each of which was briefed and
discussed by the appellee in Hainesworth.
In Mebane, the Commonwealth appealed after the trial court upheld a
plea bargain initially agreed to by the parties, but was subsequently
withdrawn by the Commonwealth on the date of the plea hearing. The
Commonwealth argued principally that, because a plea agreement does not
officially exist until it is entered of record and accepted by the court, no
agreement existed. The Mebane Court rejected this position, reasoning,
simply because Mebane does not have a right to specific
enforcement of the agreement does not necessarily deprive the
trial court of the discretion to enforce the plea agreement in
circumstances where enforcement is in the interest of justice.
Second, the existential question of whether an agreement exists
prior to its presentment in open court may be relevant to, but
not necessarily dispositive of, the determination of whether
enforcement is justified as a matter of judicial discretion rather
than as a matter of right.
Id. at 1248.
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4
Although Appellant asserts that he has attached a copy of the McMullen
decision to his brief, the decision is neither attached to nor part of the
record. As the decision was not published and we are without a copy of that
decision, we do not discuss or rely on it.
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In Zuber, the Pennsylvania Supreme Court afforded post-conviction
relief to a defendant by modifying his sentence. The defendant in Zuber
pled guilty to murder in exchange for the Commonwealth recommending a
sentence of seven to fifteen years incarceration to be served concurrently to
a parole violation sentence that consisted of a term of imprisonment of four
and one-half years. However, state law at the time mandated that the
sentences be consecutive. The Zuber Court concluded that the plea
into and is violated by the Commonwealth, the defendant is entitled, at the
Id
request on appeal, the Supreme Court modified his murder sentence to two
and one-half to fifteen years, thereby affording him the benefit of his initial
bargain.
Appellant also Hainesworth,
supra. The defendant in Hainesworth entered a negotiated guilty plea on
February 27, 2009, to three counts of statutory sexual assault and three
counts of a misdemeanor of the second-degree indecent assault, and one
count of criminal use of a communication facility. In exchange, the
Commonwealth dismissed charges of aggravated indecent assault, which
carried a lifetime registration requirement. When Hainesworth entered his
plea, none of the crimes to which he pled guilty mandated registration under
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convicted between January 23, 2005 and December 19, 2012. See 42
Pa.C.S. § 9799.13(3.1) (delineating crimes that are not sexually violent
offenses when occurring in aforementioned period). However, prior to March
passed legislation that would have required those convicted of the relevant
statutory sexual assault and indecent assault charges to register for a period
of twenty-five years.
Accordingly, Hainesworth, while still on probation, filed a motion to
terminate his supervision. The trial court declined to terminate
rmined that Hainesworth was not subject
to registration. The Commonwealth appealed. On appeal, the
Commonwealth argued that the registration requirements were a non-
punitive collateral consequence of his plea. Hainesworth countered that it
was immaterial that registration was a collateral consequence of his plea
since non-registration was an express term of his plea agreement.
The Hainesworth Court initially determined that Hainesworth
correctly framed the question as implicating contract law. We then found
that the record established that the defendant had specifically entered a
that because Appellant specifically negotiated with the Commonwealth to
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remove all sex offenses that required registration, requiring him to register
would deprive him of the benefit of his bargain.
Subsequently, in Commonwealth v. Partee, 86 A.3d 245 (Pa.Super.
2014), we addressed Hainesworth in the context of a defendant who
initially pled nolo contendere on September 17, 2007, to indecent assault of
a person under the age of thirteen, corruption of minors, and endangering
the welfare of children. Per the plea agreement, charges of rape and incest
were withdrawn. The court sentenced Partee to a term of six months
intermediate punishment to be followed by four years of probation. Partee
violated his probation, and the court re-sentenced him on May 11, 2010, on
the indecent assault count.
At the time Partee originally pled guilty, the indecent assault of a
person less than thirteen required a ten-year registration period. On
December 20, 2011, the General Assembly enacted a new version of
that law took effect December 20, 2012.
that those who were convicted of indecent assault of a person under the age
of thirteen register as a sex offender for life.5
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5
after this Court decided Commonwealth v. Partee 86 A.3d 245 (Pa.Super.
2014), on February 20, 2014, retained the lifetime reporting requirement.
See 2014 P.L. ___, No. 19, § 3, 7(1) (enacted Mar. 14, 2014, effective
Dec. 20, 2012).
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Partee filed a petition for habeas corpus and/or seeking enforcement of
his plea agreement. The court below treated the petition as a PCRA petition.
We rejected this position since Partee was not contesting his conviction, his
sentence, the effectiveness of plea counsel, or that his right to appeal his
judgment of sentence was obstructed by government officials.
The Partee Court then noted that the ten-year registration period was
-
year rather than a lifetime reporting requirement[.] Partee, supra at 249.
The Partee Hainesworth,
Id.
initial plea agreement by violating the terms of his probation. Ultimately, we
agreement is no longer in effect, and hence, [Partee] is not entitled to
Id. at 250.
Based on Hainesworth and Partee, and because Appellant is not
seeking to withdraw his plea, but to enforce it, it is necessary to determine
whether the ten-year registration period was a material part of the plea
agreement. The Commonwealth argues that although the ten-year
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Appellant to plead guilty to unlawful contact with a minor precisely so that
he would be subject to registration. Nonetheless, it continues that the only
express terms of the plea agreement were that Appellant plead to statutory
sexual assault and unlawful contact with a minor in exchange for withdrawal
of the remaining charges and a recommendation of a concurrent sentence.
registration was not a part of the agreement, only the fact of registration.
As in Hainesworth
decision in Commonwealth v. Leidig, 965 A.2d 399 (Pa. 2008), and this
Benner. In Leidig, our Supreme Court considered
y advise a defendant of the
duration of the Megan's Law registration period constitutes grounds for
Leidig, supra at 403. Therein, the defendant
entered an open nolo contendere to aggravated indecent assault on
September 18, 2002, based on the assault of his thirteen-year-old step-
registration for a period of ten years; however, when the defendant entered
his plea, the law mandated lifetime registration.
Importantly, during the plea proceeding, unlike herein, there was no
the trial court advised the defendant that he would be subject to a ten-year
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registration period. On that same date, after sentencing, both the
II, then in effect, lifetime registration was required for aggravated indecent
assault. Nonetheless, the court and parties mistakenly agreed that Leidig
would only be subject to a ten-year period of registration. Upon learning
that he would be required to register for life, Leidig filed a motion to
withdraw his plea, contending that it was not knowing, intelligent, and
voluntary. The trial court denied the motion, but opined that Leidig should
only be subject to the ten-year reporting requirement.
This Court concluded that Leidig was not entitled to withdraw his plea
and that he had to register for life. The Pennsylvania Supreme Court
affirmed.
requirements are a civil collateral consequence of a plea, the sentencing
The Leidig Court was not faced with the question of whether the
parties negotiated the registration requirement as part of the plea
agreement. Pointedly, it is evident that registration was not part of the
negotiations since no mention of registration was made during the plea
proceeding and the parties did not become aware of the discrepancy in
registration requirements until after sentencing. Furthermore, Leidig was
attempting to withdraw his plea, not enforce it based on the negotiated
terms of the plea. Thus, we find Leidig is not dispositive. Moreover,
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Hainesworth demonstrates that the collateral consequence construct does
not eliminate the requirement that courts enforce bargained-for exchanges
where the parties negotiate over a collateral consequence of a plea.
In Benner, the defendant pled guilty to aggravated indecent assault
on February 23, 1999. The court sentenced him on April 14, 1999, to two
and one-half to five years incarceration. At the time of his plea and
-year
period of registration. Subsequently, Benner was granted parole, but, as a
condition of his release, prison officials notified him that he had to comply
convicted of aggravated indecent assault.
Benner filed a motion seeking to excuse further compliance with the
lifetime registration requirement. The trial court denied the motion and
Benner appealed. Benner argued that he negotiated to avoid registration
Law colloquy, his plea was involuntary and unlawful. In the alternative,
Benner posited that he should only be subject to registration for ten years.
Finding nothing in the record to support that position, we rejected
Benne
would not have to register. Additionally, we held that, because registration
date his plea. The Benner Court then
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proceeded to analyze whether he was subject to the ten-year registration
argument in this latter respect was cursory. Ultimately, the Benner panel
on the defendant so long as he remains in the custody of correctional
Id.
at 1068.
Here, unlike Benner, the defendant was no longer in the custody of
correctional authorities, having completed his sentence. More importantly,
the record in this case does establish that a ten-year period of registration
hearing, counsel for
because
Count I does not have it, Count VI was added, and that carries a 10-year
-4. Counsel
y discussed at length that statutory Count I does not carry
Id. at 4.
During sentencing the Commonwealth related,
He was determined not to be a sexually violent predator.
Defendant is reviewing the documents and paperwork with his
attorney right now.
Your Honor, just for the record, I have the notification at
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and signed by the Defendant and also signed by his attorney.
And he does acknowledge that he must register his current
address with the Pennsylvania State Police and provide other
information as required by law upon his release from
incarceration or upon his parole from a state or county facility.
....
The period of registration shall be for ten years.
N.T., 5/24/06, at 4-5.
and I several months ago actually went over all of the specific registration
Id. at 5. To suggest that Appellant did not
contemplate a ten-year period of registration and expressly agree to that
term by pleading guilty to unlawful contact with a minor is contrary to the
record. Certainly, Appellant did not negotiate for a period of registration of
twenty-five years. To the extent that the Commonwealth asserts that
registration was not part of the plea agreement, such a position is belied by
the fact that Appellant expressly agreed to plead guilty to unlawful contact
with a minor so as to be subject to the then-extant registration period.
Thus, registration consequences were unequivocally part of the plea
negotiations and arrangement. Since the law at that time mandated
registration for a period of ten years, that period of registration was
contemplated as part of his plea agreement. See Landay v. Rite Aid, 40
A.3d 1280, 1288 (Pa.Super. 2012), appeal granted in part on other grounds,
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enter into a contract are merged with the other obligations that are
In light of th
retroactive sexual offender registration in the context of plea agreements
and the present record, we find that the ten-year registration requirement
ntitled to the benefit
of his bargain, and is not subject to additional registration beyond that
envisioned by his plea agreement. See Hainesworth, supra; cf. Partee,
supra.Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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