J-A27041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                   Appellant              :
                                          :
              v.                          :
                                          :
JUSTIN JAMES STOLLENWERK,                 :
                                          :
                   Appellee               :           No. 164 WDA 2014

               Appeal from the Order entered on January 9, 2014
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0002443-2009;
                            CP-02-CR-0002444-2009

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 10, 2014

        The Commonwealth of Pennsylvania appeals from the Order directing

that Justin James Stollenwerk (“Stollenwerk”) is not required to register with

the Pennsylvania State Police as a sexual offender for his lifetime, pursuant

to the Sex Offender Registration and Notification Act (“SORNA”),1 because

his underlying negotiated guilty plea agreement provided for a ten-year

registration period. We reverse and remand for the trial court to impose the

lifetime registration period pursuant to SORNA.

        In March 2009, the Commonwealth charged Stollenwerk, at docket No.

2444-2009,2 with indecent assault of a minor less than thirteen years of age



1
    See 42 Pa.C.S.A. § 9799, et seq.
2
  The charges of which Stollenwerk was convicted at docket No. 2443-2009
are not relevant for purposes of this appeal.
J-A27041-14


and corruption of minors. On October 21, 2009, Stollenwerk pled guilty to

indecent assault of a minor less than thirteen years of age.3

        Notably, Stollenwerk’s guilty plea was the result of a negotiated

agreement. In exchange for Stollenwerk’s plea, the Commonwealth agreed

that it would withdraw the corruption of minors charge and recommend a

sentence of five years of probation. Moreover, at the time of Stollenwerk’s

plea, the offense of indecent assault of a minor less than thirteen years of

age required a period of sexual offender registration of ten years under

Megan’s Law II.4     At the guilty plea hearing on October 21, 2009, the

prosecutor noted this fact on the record, and Stollenwerk stated that he

understood the ten-year registration term of his plea agreement. See N.T.,

10/21/09, at 4-5.    On the same day, the trial court judge, the Honorable

Donald E. Machen (“Judge Machen”), sentenced Stollenwerk, pursuant to the

plea agreement, to five years of probation, and advised him that he must

register as a sexual offender for ten years.      See id. at 4-5; see also

Sentencing Order, 10/21/09 (providing as follows regarding registration:

“Megan’s Law = 10 year reg.”). Stollenwerk did not appeal his judgment of

sentence.




3
    See 18 Pa.C.S.A. § 3126(a)(7).
4
  See 42 Pa.C.S.A. § 9795.1(a)(1). This statutory provision expired in
December 2012, and was replaced by the provisions of SORNA. See 42
Pa.C.S.A. § 9799.41.


                                     -2-
J-A27041-14


        Importantly to this appeal, in January 2011, the trial court revoked

Stollenwerk’s probation following a violation,5 and sentenced him to one to

two years in jail, followed by three years of probation. Stollenwerk did not

appeal this sentence.

        Effective on December 20, 2012, the legislature enacted SORNA, which

applies, inter alia, to “[a]n individual who, on or after the effective date of

this section, is, as a result of a conviction for a sexually violent offense, …

being supervised by the Pennsylvania Board of Probation and Parole ….” 42

Pa.C.S.A. § 9799.13(2); see also id. § 9799.14(d)(8) (including indecent

assault of a minor less than thirteen years of age as a sexually violent

offense). In approximately October 2013, Stollenwerk received notification

that, under the new provisions of SORNA, he was required to register as a

sexual offender for life,6 rather than the ten-year period previously imposed

as part of his guilty plea agreement.

        On   October   21,   2013,   Stollenwerk   filed   a   “Petition   Seeking

Enforcement of a Plea Agreement” (hereinafter “Petition to Enforce”),

arguing that the ten-year registration period was an essential term of his

plea agreement, and it must be specifically enforced.           In other words,

5
    The record contains no details regarding Stollenwerk’s probation violation.
6
  Under SORNA, a conviction for indecent assault of a minor less than
thirteen years of age is designated as a “Tier III sexual offense,” subjecting
a defendant to a lifetime registration requirement.             42 Pa.C.S.A.
§ 9799.14(d)(8); id. § 9799.15(a)(3). Although an amendment to SORNA
was enacted on March 14, 2014, the amended version retains the lifetime
registration requirement.


                                     -3-
J-A27041-14


Stollenwerk sought to avoid the retroactive application of the SORNA lifetime

registration requirement. The Commonwealth filed an Answer asserting that

the Petition to Enforce must be treated as a Petition for relief filed pursuant

to the Post Conviction Relief Act (“PCRA”),7 and that Stollenwerk was not

entitled to collateral relief because the Petition to Enforce was not filed

within the jurisdictional time limitations of the PCRA.8

        Shortly thereafter, Stollenwerk’s counsel brought to Judge Machen’s

attention this Court’s recently issued decision in Commonwealth v.

Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en banc). In that case, the

Court held that the length of the required statutory period for sexual

offender registration may constitute an enforceable component of a plea

agreement.     Id. at 450 (where the defendant had specifically negotiated

with the Commonwealth to withdraw all sexual offense charges that required

registration in exchange for his guilty plea, holding that requiring him to

7
    See 42 Pa.C.S.A. §§ 9541-9546.
8
  We observe that Stollenwerk’s Petition to Enforce did not, in fact, fall under
the provisions of the PCRA. This Court has held that a petition seeking
enforcement of a plea agreement, which includes a sexual offense that
requires the defendant to register as a sex offender, does not fall under the
PCRA and is not subject to the PCRA’s timeliness requirements.
Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa. Super. 2014) (collecting
cases and holding that “the statutory and rule-based requirements
governing a PCRA petition do not apply to a challenge to the retroactive
application of [SORNA], but [] this Court has jurisdiction to review orders
confirming or rejecting a retroactive registration requirement.”);
Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014) (holding
that a challenge to the retroactive application of SORNA “[did] not fall within
the scope of the PCRA and should not be reviewed under the standard
applicable to the dismissal of PCRA petitions.”).


                                  -4-
J-A27041-14


register as a sexual offender by retroactively applying SORNA would unfairly

deprive him of the benefit of his plea bargain).

      On January 9, 2014, Judge Machen issued an Order granting the relief

Stollenwerk sought in the Petition to Enforce, stating as follows:

            [Stollenwerk] is required to register for ten (10) years
      ONLY as a sex offender under … SORNA. Application of the
      statute to [Stollenwerk] subsequent to the date of the plea
      agreement violates due process of law, fundamental fairness,
      and provisions of the negotiated plea agreement entered into
      between [Stollenwerk] and the government.          It would also
      destroy the process of negotiated plea agreements essential to
      the efficient disposition of criminal cases in Allegheny County.
      This Order is entered under the same rational[e] as set forth in
      [] Ha[i]nesworth[, supra], decided on December 12, 2013.

Order, 1/9/14, at 2 (paragraph breaks and numbering omitted).

      The Commonwealth timely filed a Notice of Appeal.              In response,

Judge Machen ordered the Commonwealth to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The Commonwealth

timely filed a Concise Statement, after which Judge Machen issued a

Pa.R.A.P. 1925(a) Opinion, stating as follows:

             During the writing of this Opinion, two decisions have been
      published by the Superior Court[,] which elaborate [upon] and
      clarify the Hainesworth holding. Based upon the most recent
      case, [] Partee[, supra], decided on February 20, 2014, it [is]
      now this court’s Opinion that the fact that [Stollenwerk] had
      violated his probation distinguishes the instant case from that of
      Hainesworth[,] and that “having failed to abide by the terms of
      the plea bargain, that agreement is no longer in effect, and
      hence, [Stollenwerk] is not entitled to specific performance.
      Hainesworth is not controlling.” [] Partee, [86 A.3d at 250].

Trial Court Opinion, 2/26/14, at 2.



                                  -5-
J-A27041-14


      On appeal, the Commonwealth presents the following issues for our

review:

       I.   Whether the court below correctly concluded that its
            initial [January 9, 2014] Order, entered in reliance on
            [the] Superior Court’s Opinion in … Hainesworth, could
            not stand in that the circumstances of this case were
            governed by the Court’s subsequent Opinion in []
            Partee, which distinguished Hainesworth in a case
            where the defendant had violated the probation imposed
            under his plea agreement?

      II.   Whether no relief is available for a defendant whose
            Megan’s Law registration requirement is changed due to
            statutory changes, in that the registration requirement is
            a collateral consequence of conviction?

Brief for the Commonwealth at 5.

      Because the Commonwealth’s issues implicate a pure question of law,

our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Raban, 85 A.3d 467, 468 (Pa. 2014).

      The Commonwealth contends that Judge Machen correctly opined in

his Pa.R.A.P. 1925(a) Opinion that, pursuant to Partee, Stollenwerk is not

entitled to specific enforcement of the ten-year sexual offender registration

period, as agreed to in his negotiated plea agreement, because his

subsequent violation of his probation abrogated the plea agreement.      See

Brief for the Commonwealth at 20-21. We agree, and conclude that Partee

controls our disposition.

      In Partee, the appellant entered a negotiated nolo contendere plea to

several sexual offenses, including indecent assault of a minor less than



                                  -6-
J-A27041-14


thirteen years of age. Partee, 86 A.3d at 246. The trial court sentenced

the appellant to six months of intermediate punishment, followed by four

years of probation. Id. At the time of the plea, the indecent assault of a

minor less than thirteen years of age charge carried a ten-year sexual

offender registration period. Id. at 248-49.

      A few years after entering his plea, the appellant violated his probation

and was resentenced. Id. at 246. Following the enactment of SORNA, the

appellant received notification that pursuant to the statute, he was now

required to register as a sexual offender for life, rather than the ten-year

period imposed in connection with his plea agreement. Id. In response, the

appellant filed a “petition for habeas corpus and/or seeking enforcement of a

plea agreement,” seeking to avoid the retroactive application of the SORNA

registration requirements. Id. The trial court treated the appellant’s filing

as a PCRA petition and dismissed it, after which the appellant filed an appeal

to this Court. Id.

      As an initial matter, the Partee Court held that the trial court

improperly treated the appellant’s petition to enforce the plea agreement as

a PCRA petition.     Id. at 247.   In addressing whether the appellant was

entitled to specific enforcement of the ten-year registration period, this

Court first observed that “[w]hile [the ten-year registration period] was not

an explicit term of the negotiated plea, it is apparent that [a]ppellant’s

negotiated plea agreement was structured so that he would only be subject



                                   -7-
J-A27041-14


to a ten-year rather than a lifetime reporting requirement ….” Id. at 249.

The Court stated that “[u]nder our reasoning in Hainesworth, [a]ppellant

arguably would be entitled to the benefit of that bargain.” Id. Nonetheless,

the Court held that the appellant was not entitled to specific performance

because he had abrogated his plea agreement by violating his probation.

Id. at 249-50. In so holding, the Court agreed with the Commonwealth’s

argument that

     [a]ppellant cannot seek specific performance of the underlying
     plea agreement[,] as there is no longer a plea bargain to
     enforce.    [The Commonwealth] cites Commonwealth v.
     Parsons, 2009 PA Super 66, 969 A.2d 1259 (Pa. Super. 2009)
     [(en banc)], for the proposition that “where the original sentence
     evolved from a plea bargain, and a defendant later violates his
     parole or probation, the defendant has effectively abrogated the
     underlying plea bargain.” Id. at 1270 n.6. “[U]pon revocation
     [of probation,] the sentencing alternatives available to the court
     shall be the same as were available at the time of initial
     sentencing[.]” 42 Pa.C.S. § 9771[(b)].

            As our Supreme Court held in Commonwealth v.
     Wallace, 582 Pa. 234, 870 A.2d 838, 842-43 (Pa. 2005), where
     probation is violated, the trial court is free to impose any
     sentence permitted under the Sentencing Code and is not
     restricted by the bounds of a negotiated plea agreement
     between a defendant and prosecutor.

Partee, 86 A.3d at 249-50.     The Partee Court concluded that, “having

failed to abide by the terms of the plea bargain, [the appellant’s plea]

agreement is no longer in effect, and hence, [a]ppellant is not entitled to

specific performance. Hainesworth is not controlling.” Id. at 250. As a




                                -8-
J-A27041-14


result, the Court ruled that the appellant was required to register as a sexual

offender for life under SORNA. Id.9

      Like the situation in Partee, Stollenwerk violated his probation after

the trial court had sentenced him pursuant to the guilty plea agreement,

and, also pursuant to the plea agreement, imposed a ten-year registration

requirement.10    See N.T., 10/21/09, at 4-5.           Stollenwerk effectively

abrogated the plea agreement by violating his probation, and he is therefore

not entitled to the benefit of the ten-year registration period contemplated

within the plea agreement; rather, Stollenwerk must register as a sexual

offender for life, pursuant to SORNA. See Partee, 86 A.3d at 249-50.

      We   are   unpersuaded    by    Stollenwerk’s   attempts   to   avoid   the

application of Partee.     Stollenwerk points out the panel in Partee’s

observation that “[the a]ppellant [did] not address the Commonwealth’s

argument or the legal effect of his probation violation upon the original plea

agreement.” Brief for Appellee at 7 (quoting Partee, 86 A.3d at 250). The

Court’s observation in this regard is irrelevant and does not negate its clear

holding that, because the appellant had violated his probation, he thereby

abrogated his plea agreement and was not entitled to specific performance


9
 The Supreme Court of Pennsylvania denied allowance of appeal in Partee
on July 17, 2014. Commonwealth v. Partee, 2014 Pa. LEXIS 1748 (Pa.
2014).
10
   Under Partee, it is of no moment that the ten-year registration period in
this case was not an explicit term of Stollenwerk’s negotiated plea. Partee,
86 A.3d at 249.


                                  -9-
J-A27041-14


of the ten-year registration period that was part of the plea agreement.

Partee, 86 A.3d at 249-50.

      Finally, concerning the Commonwealth’s second issue on appeal, we,

like the Court in Hainesworth, decline the Commonwealth’s invitation to

specifically address whether sexual offender registration requirements under

SORNA must be viewed as collateral consequences of a conviction.        See

Hainesworth, 82 A.3d at 448, 449 n.4 (stating that “we do not reach the

question of whether the registration requirement contained in SORNA is a

collateral consequence of Hainesworth’s conviction[,]” as “the dispositive

question is whether registration was a term of the bargain struck by the

parties to this appeal.”); see also Nase, 2014 PA Super 194, at *15

(stating that “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.”).

      Based upon the foregoing, we reverse the January 9, 2014 Order

directing that Stollenwerk must register as a sexual offender for only ten

years pursuant to his plea agreement, and remand the case for the trial

court to impose the lifetime registration requirement pursuant to SORNA.

      Order reversed; case remanded for further proceedings consistent with

this Memorandum; jurisdiction relinquished.




                                - 10 -
J-A27041-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




                          - 11 -
