J-E01004-17

                               2018 PA Super 245




 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 CARLOS FERNANDEZ                       :
                                        :   No. 1888 EDA 2015
                   Appellant            :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0902501-2005

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 DEBORAH JEDRZEJ                        :
                                        :   No. 1900 EDA 2015
                   Appellant            :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-1110002-2004

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 JOSEPH LEWIS                           :
                                        :   No. 1904 EDA 2015
                   Appellant            :

                   Appeal from the Order June 15, 2015
J-E01004-17



          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0000638-2010

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 A.M.                               :
                                    :   No. 1907 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0003016-2009

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 CARL C. CORBIN                     :
                                    :   No. 1909 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0006112-2010

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 WILLIE COLBERT                     :
                                    :   No. 1913 EDA 2015
                   Appellant        :



                                 -2-
J-E01004-17



                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0907851-1996

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 ALBERT DONNELLY                    :
                                    :   No. 1917 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0206991-2001

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 VICTOR DEFLICE                     :
                                    :   No. 1918 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0108471-2004

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 APRIL GREGHINI                     :
                                    :   No. 1936 EDA 2015
                   Appellant        :


                                 -3-
J-E01004-17



                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0806121-2005

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 TRACY L. MCKINNEY                  :
                                    :   No. 1939 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CP-0006404-2009

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 JOSE MELENDEZ                      :
                                    :   No. 1940 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-1110221-2004

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 MARIANO ORTIZ                      :
                                    :   No. 1941 EDA 2015
                   Appellant        :


                                 -4-
J-E01004-17



                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0203931-2006

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 ROBERT NED                         :
                                    :   No. 1943 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0012780-2008

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 MICHAEL STANGER                    :
                                    :   No. 1944 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0012763-2010

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 ALBERT WILSON                      :
                                    :   No. 1945 EDA 2015
                   Appellant        :


                                 -5-
J-E01004-17



                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0005469-2008

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 TYREK WHITE                        :
                                    :   No. 1946 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0012967-2008

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 ALBERT TILSON                      :
                                    :   No. 1947 EDA 2015
                   Appellant        :

                  Appeal from the Order June 15, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0003959-2010

 COMMONWEALTH OF                    :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                       :        PENNSYLVANIA
                                    :
                                    :
              v.                    :
                                    :
                                    :
 FRANK GARCIA                       :
                                    :   No. 1948 EDA 2015
                   Appellant        :


                                 -6-
J-E01004-17



                      Appeal from the Order June 15, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003899-2011

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL T. LOVELACE                        :
                                               :   No. 2039 EDA 2015
                       Appellant               :

                 Appeal from the Order Entered June 15, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-CR-0050091-2008


BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS,
        J., OLSON, J., DUBOW, J., MOULTON, J., and SOLANO, J.

OPINION BY PANELLA, J.                               FILED SEPTEMBER 05, 2018

        These consolidated appeals follow our Supreme Court’s abrogation of

the retroactive provisions from the Sexual Offender Registration and

Notification Act (SORNA) in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), cert. denied, 138 S.Ct. 925 (2018).1 After Appellants were found to

have violated the terms of their respective probationary sentences, the trial

court, following the mandates of Commonwealth v. Partee, 86 A.3d 245

(Pa. Super. 2014), ordered Appellants to comply with the new registration

conditions and terms assigned to their crimes under SORNA. Appellants

request that we reverse the decisions of the trial court, and enforce the terms

____________________________________________


1   SORNA is codified at 42 PA.C.S.A. §§ 9799.14, 9799.15.

                                           -7-
J-E01004-17



of the original registration requirements from the time of their initial pleas and

sentencing hearings.

       We are constrained to order that under Muniz, the trial court may not

increase their registration requirements under SORNA. Consequently, we find

that Muniz abrogates Partee, and agree with Appellants that the original

periods of sexual offender registration and conditions imposed in each case be

reinstated.

       The relevant facts and procedural history of these consolidated appeals

are as follows. Each of the nineteen Appellants accepted plea agreements to

various sexual offenses prior to SORNA’s effective date, which was December

20, 2012. Under the law regarding sexual offender registration effective at the

time of their plea agreements, two Appellants did not have to register as

sexual offenders, and the remaining Appellants had to register for a period of

ten years.2

       While Appellants’ cases are not identical, each is similarly situated. Two

Appellants, Wilson and Colbert, pled guilty to crimes that, at the time, did not

require any period of registration as sexual offenders. The remaining

seventeen Appellants accepted plea deals to crimes that included ten years of

registration as sexual offenders under then-existing versions of Megan’s Law,

42 PA.C.S.A. §§ 9791-9799.7 (expired December 20, 2012). In exchange for

Appellants’ guilty or no-contest pleas, the Commonwealth withdrew several
____________________________________________


2To assist in our review, the parties have reached stipulations regarding the
procedural history of each case.

                                           -8-
J-E01004-17



other charged offenses in each case. Had Appellants been convicted of these

withdrawn offenses, each would have been subjected to longer periods of

registration as sexual offenders. All of these dispositions occurred prior to the

effective date of SORNA.

       At sentencing in each case, Appellants were informed of whether they

were required to register, and if so for how long. All nineteen Appellants later

violated   their    respective    probationary   terms.   Appellants   were   each

resentenced, to either incarceration or additional periods of probation.

       On December 20, 2011, the Legislature enacted SORNA, which, as

aforesaid, became effective on December 20, 2012. Appellants were informed

that they were subject to its new registration requirements. 3 The new

requirements increased each Appellant’s registration term from its original

length imposed at sentencing. Nearly all Appellants’ registration terms

increased to lifetime reporting requirements.4

       Each Appellant filed a “Petition to Enforce Plea Agreement or for a Writ

of Habeas Corpus.” Appellants challenged the retroactivity of SORNA to their

____________________________________________


3 Appellants Lewis, McKinney, Ned, White, Garcia, Lovelace, and Tilson were
resentenced for their probation violations after SORNA’s effective date. The
remaining Appellants were resentenced before SORNA became effective.
Notwithstanding the timing of resentencing, each Appellant was informed that
his or her failure to comply with terms of supervision resulted in the rejection
of the sexual offender registration period agreed to at original sentencing and
that they would be reclassified under SORNA.

4 Appellant Stanger’s registration term increased to 15 years under SORNA.
The registration terms for Appellants Lewis, Lovelace, and Greghini each
increased to 25 years.

                                           -9-
J-E01004-17



cases, and argued that it violated the plea deals each had made with the

Commonwealth. The trial court denied Appellants’ petitions, holding that

Appellants were not entitled to specific performance of the negotiated plea

bargain because Appellants had violated the terms of their plea agreements.

In each case, the trial court relied upon Partee. This Court ultimately granted

en banc review, and these consolidated appeals are now before us.

        A more detailed recitation of the facts relating to each Appellant follows:

        Carlos Fernandez: On September 20, 2006, Fernandez entered into a

negotiated plea agreement with the Commonwealth and pled guilty to

Indecent Assault, 18 PA.C.S.A. § 3126(a)(7),5 and Corruption of Minors, 18

PA.C.S.A. § 6301(a)(1)(i).6 On December 20, 2006, he was sentenced to a
____________________________________________


5 Indecent assault is codified as follows: “A person is guilty of indecent assault
if the person has indecent contact with the complainant, causes the
complainant to have indecent contact with the person or intentionally causes
the complainant to come into contact with seminal fluid, urine or feces for the
purpose of arousing sexual desire in the person or the complainant and: . . .
(7) the complainant is less than 13 years of age . . . .” 18 PA.C.S.A. §
3126(a)(7).
6   Corruption of Minors is defined as:

        (a) Offense defined.--
        (1) (i) Except as provided in subparagraph (ii), whoever, being of
        the age of 18 years and upwards, by any act corrupts or tends to
        corrupt the morals of any minor less than 18 years of age, or who
        aids, abets, entices or encourages any such minor in the
        commission of any crime, or who knowingly assists or encourages
        such minor in violating his or her parole or any order of court,
        commits a misdemeanor of the first degree.

18 PA.C.S.A. § 6301(a)(1)(i).



                                          - 10 -
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period of confinement followed by a term of probation. Under the applicable

version of Megan’s Law at the time, 42 PA.C.S.A. § 9795.1(a), Fernandez was

required to register as a sex offender for a period of ten years. Thereafter,

Fernandez violated the terms of his supervision and was resentenced. After

SORNA became effective, he was reclassified as a Tier III offender, and

retroactively subjected to lifetime registration.

       Deborah Jedrzej: On January 10, 2006, Jedrzej entered into a

negotiated plea with the Commonwealth and pled nolo contendere to Indecent

Assault, 18 PA.C.S.A. § 3126(a)(7), Corruption of Minors, 18 PA.C.S.A. §

6301(a)(1)(i), and Endangering the Welfare of Children, 18 PA.C.S.A. §

4304(a)(1).7 Sentencing occurred on February 22, 2006, and she received a

sentence of confinement followed by five years of probation. Under the

applicable version of Megan’s Law, 42 PA.C.S.A. § 9795.1(a), Jedrzej was

required to register as a sex offender for a period of ten years for the Indecent

Assault conviction.        Following a violation of her probation, she was

resentenced. Under SORNA, Jedrzej was reclassified requiring lifetime

registration.

       Joseph Lewis: Lewis entered into a negotiated plea of guilty to one count

____________________________________________


7 Endangering the Welfare of Children (EWOC) is defined as: “A parent,
guardian or other person supervising the welfare of a child under 18 years of
age, or a person that employs or supervises such a person, commits an
offense if he knowingly endangers the welfare of the child by violating a duty
of care, protection or support.” 18 PA.C.S.A. § 4304(a)(1).



                                          - 11 -
J-E01004-17



each of Unlawful Contact with a Minor, 18 PA.C.S.A. § 6318(a)(1),8 Statutory

Sexual Assault, 18 PA.C.S.A. § 3122.19, and Corruption of Minors, 18 PA.C.S.A.

§ 6301(a)(1)(i), on April 21, 2010. Under the applicable version of Megan’s

Law, the Unlawful Contact with a Minor charge required him to register as a

sex offender for ten years unless he was adjudged a sexually violent predator.

After receipt of the report from the Sexual Offender Assessment Board

(“SOAB”), the Commonwealth elected not to request a sexually violent

predator hearing. He received a sentence of incarceration followed by five
____________________________________________


8 Unlawful contact with a minor is defined as follows: “A person commits an
offense if he is intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has assumed the identity
of a minor, for the purpose of engaging in an activity prohibited under any of
the following, and either the person initiating the contact or the person being
contacted is within this Commonwealth: (1) Any of the offenses enumerated
in Chapter 31 (relating to sexual offenses).” 18 PA.C.S.A. § 6318(a)(1).
9   Statutory Sexual Assault is defined as:

        (a) Felony of the second degree.--Except as provided in
        section 3121 (relating to rape), a person commits a felony of the
        second degree when that person engages in sexual intercourse
        with a complainant to whom the person is not married who is
        under the age of 16 years and that person is either:
        (1) four years older but less than eight years older than the
        complainant; or
        (2) eight years older but less than 11 years older than the
        complainant.
        (b) Felony of the first degree.--A person commits a felony of
        the first degree when that person engages in sexual intercourse
        with a complainant under the age of 16 years and that person is
        11 or more years older than the complainant and the complainant
        and the person are not married to each other.

18 PA.C.S.A. § 3122.1.



                                          - 12 -
J-E01004-17



years of probation. He later violated the terms of his probation and was

resentenced. After the effective date of SORNA, he was reclassified to twenty-

five years of registration.

       Anthony Marano: Referred to as A.M. in the Superior Court docket,10

Marano entered into a negotiated plea agreement on September 21, 2010,

and pleaded nolo contendere to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7),

and Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i). He was sentenced the

same day to confinement followed by nine years of probation. Marano was

required to register as a sex offender for a period of ten years for the Indecent

Assault conviction under the then-current version of Megan’s Law. After

receipt of the report from the SOAB, the Commonwealth elected not to request

a sexually violent predator hearing. Thereafter, Marano violated the terms of

his supervision and, on December 28, 2011, his probation was revoked and

he was sentenced to additional periods of incarceration. Under SORNA,

Marano was reclassified for lifetime registration.

____________________________________________


10   On page eighteen of its substituted en banc appellate brief, the
Commonwealth avers “A.M.” is inappropriately listed in this appeal using his
initials, and his full name, Anthony Marano, should be reflected on the docket.
We too question the wisdom of shielding the name of a registered sexual
offender during the appellate process, particularly since A.M. was an adult at
the time of his crimes and his full name is listed on the trial court docket,
sentencing order, and even his own Petition to Enforce Plea Agreement.
However, when this issue was raised before the trial court, the Commonwealth
stated it had no objection to the use of initials on the caption, and the trial
court filed its decision of November 10, 2015, utilizing only the initials. The
Commonwealth’s concession before the trial court is not binding on the
Superior Court, and we will refer to the Appellant as his name appears on the
trial court docket.

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J-E01004-17



       Carl Corbin: On February 7, 2011, Corbin pled guilty to Indecent Assault,

18 PA.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 PA.C.S.A. §

6301(a)(1)(i). Corbin was sentenced on May 9, 2011, to five years of

probation.    After receipt of the report from the SOAB, the Commonwealth

elected not to request a sexually violent predator hearing. Therefore, Corbin

was required under Megan’s Law to register for a period of ten years, 42

PA.C.S.A. § 9795.1(a). Corbin violated the terms of his probation and was later

resentenced to incarceration. Pursuant to the requirements of SORNA, Corbin

was notified that he was reclassified for lifetime registration.

       Willie Colbert: On April 9, 1997, Colbert entered into a negotiated guilty

plea to one count of attempted rape, 18 PA.C.S.A. §§ 901 & 3121.11 He was

sentenced the same day to eleven and one-half to twenty-three months’

confinement, followed by six years of probation. At the time of his guilty plea,

Megan’s Law did not apply to inchoate offenses, so Colbert was not directed

to register as a sex offender. Eventually, Colbert violated the terms of his

supervision, and was resentenced to further incarceration with an additional

period of probation. After the effective date of SORNA, he was notified that he

was reclassified to lifetime registration.

____________________________________________


11 Pursuant to 18 PA.C.S.A. § 901, a person commits an attempt when, with
intent to commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime. Rape is defined as, inter
alia: “[W]hen the person engages in sexual intercourse with a complainant:
(1) By forcible compulsion . . . (5) Who suffers from a mental disability which
renders the complainant incapable of consent. 18 PA.C.S.A. § 3121(a).


                                          - 14 -
J-E01004-17



      Albert Donnelly: Donnelly entered a negotiated guilty plea to Indecent

Assault, 18 PA.C.S.A. § 3126(a)(7), and Endangering the Welfare of Children,

18 PA.C.S.A. § 4304(a)(1). At the time of the plea, Donnelly was required to

register as a sex offender for a period of ten years due to the conviction of

Indecent Assault, pursuant to the then-current version of Megan’s Law, 42

PA.C.S.A. § 9795.1(a). After receipt of the report from the SOAB, the

Commonwealth elected not to request a hearing to determine if Donnelly

should have been classified as a sexually violent predator. Donnelly was

initially sentenced to probation on the charges. After he violated the terms of

his supervision, he was resentenced to incarceration. Following the effective

date of SORNA, he was notified that he was reclassified to lifetime registration.

      Victor DeFelice: In May 2005, DeFelice entered into a negotiated plea

agreement with the Commonwealth and pled guilty to Indecent Assault, 18

PA.C.S.A.   §   3126(a)(7),   and   Corruption   of   Minors,   18   PA.C.S.A.   §

6301(a)(1)(i). The Commonwealth nolle prossed the remaining charges, as it

did in almost every one of these cases. After a hearing, the trial court ruled

that the evidence did not support a finding that DeFelice be classified as a

sexually violent predator; therefore, as a result of his conviction of Indecent

Assault, he was required to register as a sex offender under Megan’s Law for

ten years. He received an initial sentence of confinement followed by five years

of probation. After he violated the terms of his supervision, he was sentence

to an additional period of probation. Under SORNA, he was classified as a

lifetime registrant.

                                     - 15 -
J-E01004-17



       April Greghini: On April 13, 2006, Greghini pled guilty to one count each

of Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i), Endangering the Welfare

of Children, 18 PA.C.S.A. § 4304(a)(1), and Sexual Exploitation of Children,

18 PA.C.S.A. § 6320(a).12 Her sentence included incarceration followed by six

years of consecutive probation. After receipt of the report from the SOAB, the

Commonwealth elected not to request a hearing to determine if Greghini

should have been classified as a sexually violent predator. Under the

applicable version of Megan’s Law, the conviction of Sexual Exploitation of

Children required her to register as a sex offender for ten years. She

subsequently violated the terms of her probation, and received a new

sentence. Under SORNA, she was reclassified to twenty-five years of

registration under 42 PA.C.S.A. § 9799.15 as a Tier II offender.

       Tracey McKinney: On May 24, 2010, McKinney entered into a negotiated

plea agreement with the Commonwealth whereby he pled nolo contendere to

Indecent Assault, 18 PA.C.S.A. § 3126(a)(7). His initial sentence was for

incarceration followed by three years of consecutive probation. At that time,

he was required to register as a sex offender under Megan’s Law for ten years.

After receipt of the report from the SOAB, the Commonwealth elected not to

request a sexually violent predator hearing. He later violated the terms of his


____________________________________________


12 Sexual exploitation of children is defined as follows: “A person commits the
offense of sexual exploitation of children if he procures for another person a
child under 18 years of age for the purpose of sexual exploitation.” 18
PA.C.S.A. § 6320(a).


                                          - 16 -
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probation and was resentenced. After the effective date of SORNA, he was

reclassified for lifetime registration.

       Jose Melendez: Melendez pleaded guilty to Indecent Assault, 18

PA.C.S.A. § 3126(a)(7), which required him to register as a sex offender for

ten years under Megan’s Law, 42 PA.C.S.A. § 9795.1(a). His initial sentence

was for probation, but he was found to have violated his supervision and was

resentenced to confinement followed by a consecutive term of probation.

Under SORNA, he was required to be a lifetime registrant.

       Mariano Ortiz: On November 13, 2006, Ortiz entered a guilty plea to

Indecent Assault, 18 PA.C.S.A. § 3126(a)(7). Under the applicable version of

Megan’s Law, the Indecent Assault charge required him to register as a sex

offender for ten years unless he was adjudged a sexually violent predator.

After receipt of the report from the SOAB, the Commonwealth elected not to

request a sexually violent predator hearing. He received a sentence of five

years probation. He later violated the terms of his supervision and was

resentenced to an additional period of probation. After the effective date of

SORNA, he was reclassified as a lifetime registrant.

       Robert Ned: Ned pleaded guilty on December 10, 2008, to one count of

Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Unlawful Restraint, 18

PA.C.S.A. § 2902(b).13        Under the applicable version of Megan’s Law, the

____________________________________________


13Unlawful restraint is codified as follows: “Unlawful restraint of a minor
where offender is not victim's parent -If the victim is a person under 18 years



                                          - 17 -
J-E01004-17



Indecent Assault charge required him to register as a sex offender for ten

years unless he was adjudged a sexually violent predator. After receipt of the

report from the SOAB, the Commonwealth elected not to request a sexually

violent predator hearing. He received a sentence of incarceration followed by

ten years of probation. He later violated the terms of his probation and was

resentenced to additional periods of imprisonment and probation. After the

effective date of SORNA, he was notified that he was now subject to lifetime

registration.

       Michael Stanger: On December 14, 2010, Stanger pled guilty to Sexual

Abuse of Children (child pornography), 18 PA.C.S.A. § 6312(d).14 This crime,

as a first offense, is graded as a felony of the third degree. 18 PA.C.S.A. §

6312(d.1). On March 22, 2011, he was sentenced to seven years of probation.

At the time of the plea, Stanger was required to register as a sex offender for

a period of ten years due to this conviction, pursuant to the then-current

version of Megan’s Law, 42 PA.C.S.A. § 9795.1(a). After receipt of the report

from the SOAB, the Commonwealth elected not to request a hearing to

determine if Stanger should have been classified as a sexually violent
____________________________________________


of age, a person who is not the victim's parent commits a felony of the second
degree if he knowingly: (1) restrains another unlawfully in circumstances
exposing him to risk of serious bodily injury; or (2) holds another in a condition
of involuntary servitude.” 18 PA.C.S.A. § 2902(b).
14 Sexual abuse of children, as it relates to child pornography, is codified as

follows: “Any person who intentionally views or knowingly possesses or
controls any book, magazine, pamphlet, slide, photograph, film, videotape,
computer depiction or other material depicting a child under the age of 18
years engaging in a prohibited sexual act or in the simulation of such act
commits an offense.” 18 PA.C.S.A. § 6312(d).

                                          - 18 -
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predator. He later violated the terms of his probation and was resentenced to

imprisonment followed by five years of probation. After the effective date of

SORNA, he was notified that he was reclassified to fifteen years of registration.

      Albert Wilson: On February 17, 2011, Wilson entered a plea of nolo

contendere to Statutory Sexual Assault, 18 PA.C.S.A. § 3122.1. He was

sentenced to a negotiated term of eleven and a half to twenty-three months’

confinement followed by eight years of probation. At that time, he was not

required to register as a sex offender under the applicable version of Megan’s

Law. Thereafter, Wilson violated the terms of his supervision and was

resentenced to two to four years’ incarceration followed by four years of

probation. Under SORNA, he has been classified as a lifetime registrant.

      Tyrek White: White entered a negotiated guilty plea to Indecent Assault,

18 PA.C.S.A. § 3126(a)(7), Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i),

and Endangering the Welfare of Children, 18 PA.C.S.A. § 4304(a)(1). He was

sentenced to probation, however, after he was found to have repeatedly

violated the terms of his supervision, he was eventually resentenced to

confinement followed by additional years of probation. Initially, the applicable

version of Megan’s Law, 42 PA.C.S.A. § 9795.1(a), required White to register

as a sex offender for a period of ten years for the Indecent Assault conviction.

Following the violation of his original term of probation, he was reclassified

under SORNA as lifetime registration.

      Albert Tilson: On June 27, 2011, Tilson entered a guilty plea to Indecent

Assault, 18 PA.C.S.A. § 3126(a)(7), and was subsequently sentenced to

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incarceration and three years of consecutive probation. The applicable version

of Megan’s Law, 42 PA.C.S.A. § 9795.1(a), required Tilson to register as a sex

offender for a period of ten years. The Commonwealth waived the sexually

violent predator assessment hearing after receiving the report from the SOAB.

Tilson violated the terms of his supervision and was eventually resentenced

to additional periods of incarceration and probation. When SORNA took effect,

he was reclassified as a Tier III lifetime registrant.

      Frank Garcia: Garcia pleaded guilty to Indecent Assault, 18 PA.C.S.A. §

3126(a)(7), and Endangering the Welfare of Children, 18 PA.C.S.A. §

4304(a)(1), on July 26, 2011. The applicable version of Megan’s Law, 42

PA.C.S.A. § 9795.1(a), required Garcia to register as a sex offender for a

period of ten years for the Indecent Assault conviction. After receipt of the

report from the SOAB, the Commonwealth elected not to request a hearing to

determine if Garcia should have been classified as a sexually violent predator.

He was sentenced to incarceration on the Indecent Assault charge followed by

a period of six years of probation on the EWOC charge. He later violated the

terms of his supervision and was resentenced. After the effective date of

SORNA, he was reclassified as a Tier III offender which includes lifetime

registration.

      Michael Lovelace: Lovelace entered into a negotiated plea agreement

whereby he pled guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and




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J-E01004-17



Indecent Exposure, 18 PA.C.S.A. § 3127(a).15 He was sentenced to a period

of confinement and a concurrent term of probation.           The Commonwealth

waived the sexually violent predator assessment hearing after receiving the

report from the SOAB. Lovelace violated the terms of his supervision and was

eventually resentenced to an additional period of probation. When SORNA

took effect, he was reclassified as a Tier II registrant which requires

registration for twenty-five years.

       Appellants present a single question for our review: “Whether

Appellants’ plea agreements should be enforced with respect to the length or

fact of sexual offender registration where they violate a condition of

probation?” Appellants’ Brief, at 2.

       Briefly, we address our jurisdiction over this appeal. “[A]n appeal may

be taken as of right from any final order . . . of a trial court.” Pa.R.A.P. 341(a).

We have traditionally recognized the trial court’s jurisdiction over petitions to

enforce plea agreements with respect to the terms of sexual offender

registration requirements, and by extension, this Court’s ability to review the

court’s resulting orders. See Commonwealth v. Martinez, 147 A.3d 517

(Pa. 2016); Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super.

____________________________________________


15 Indecent exposure is defined as: “A person commits indecent exposure if
that person exposes his or her genitals in any public place or in any place
where there are present other persons under circumstances in which he or
she knows or should know that this conduct is likely to offend, affront or
alarm.” 18 PA.C.S.A. § 3127(a).



                                          - 21 -
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2013) (en banc); Commonwealth v. Nase, 104 A.3d 528 (Pa. Super. 2014).

Appellants filed petitions to enforce their plea agreements, and the trial court

denied these in subsequent orders. We see no reason to conclude Muniz

overruled our jurisdiction to review the decisions of trial courts to enforce plea

agreements, especially given Martinez.16 Moreover, we may correct an illegal

sentence sua sponte so long as we maintain jurisdiction over the case. See

Commonwealth v. Butler, 173 A.3d 1212, 1214 (Pa. Super. 2017). Thus,

we find the case is properly before us.

       The law on the enforcement of plea agreements is well established.

“Although a plea agreement occurs in a criminal context, it remains

contractual in nature and is to be analyzed under contract-law standards.”

Commonwealth v. Farabaugh, 136 A.3d 995, 1001 (Pa. Super. 2016)

(citation omitted). “In determining whether a particular plea agreement has

been breached, we look to what the parties to this plea agreement reasonably

understood to be the terms of the agreement.” Hainesworth, 82 A.3d at 447

(citation and internal quotation marks omitted). When the Commonwealth’s

promise or agreement provides consideration for the defendant’s acceptance

of the plea, the Commonwealth must fulfill that promise. See Martinez, 147

A.3d at 532.

____________________________________________


16To the extent Appellants also challenge the application of Commonwealth
v. Demora, 149 A.3d 330 (Pa. Super. 2016), this Court’s decision in
Commonwealth v. McCullough, 174 A.3d 1094 (Pa. Super. 2017) (en
banc), explicitly recognized Muniz overruled Demora. See id., at 1096. Thus,
we need not address that argument here.

                                          - 22 -
J-E01004-17



      Appellants challenge this Court’s holding in Partee. Appellants assert

that all parties to each plea agreement understood resentencing would be the

consequence for a probation violation. Appellants indicate the stipulated facts

show the Commonwealth withdrew charges requiring lengthier registration

terms. Appellants argue Partee unjustly expands the holding in Hainesworth

by releasing the Commonwealth from its agreement to collateral terms

unaffected by resentencing. They conclude we must overrule Partee.

      In its Rule 1925(a) opinion, the trial court explained that it relied solely

on this Court’s decision in Partee when it denied Appellants’ petitions to

enforce their plea agreements based on their violations of the terms of

probation. Partee, in turn, is premised on an extension of the logic in

Hainesworth. Therefore, we must examine how the Muniz decision affects

these and related precedents.

      In 2009, Hainesworth pled guilty to three counts of statutory sexual

assault, three counts of indecent assault, and one count of criminal use of a

communications facility. At the time he pled guilty, none of the above-listed

crimes carried a sexual offender registration requirement. Thus, Hainesworth

did not register as a sexual offender.

      Thereafter, SORNA became effective in 2012. SORNA required sexual

offender registration for additional crimes, including those for which

Hainesworth remained on probation.

      Hainesworth filed a motion seeking to preempt registration pursuant to

SORNA, and the trial court entered an order stating Hainesworth was not

                                     - 23 -
J-E01004-17



subject to reporting requirements, due to the contractual nature of his plea

bargain. On appeal, an en banc panel of this Court affirmed the trial court’s

order, holding that non-registration was an express term of Hainesworth’s

plea bargain. The panel reasoned that Hainesworth relinquished meaningful

rights in exchange for the Commonwealth’s proposed terms, and fundamental

fairness bound the Commonwealth to those terms.

      In Partee, the appellant, in 2007, entered a no-contest plea to indecent

assault of a person under the age of thirteen, corruption of minors, and

endangering the welfare of children. At that time, Partee was subject to a ten-

year sexual offender reporting requirement for those crimes under Megan’s

Law II. In 2010, the court found Partee in violation of his probation, and

resentenced him.

      SORNA became effective in 2012; SORNA increased the term for

Partee’s registration to twenty-five years. Partee sought enforcement of the

ten-year reporting term from his initial plea bargain, arguing that it was an

essential term of his plea bargain under the contract interpretation theory

from Hainesworth.

      A three-judge panel of this Court agreed that Partee’s plea bargain was

structured to avoid a lifetime reporting requirement. Nevertheless, the panel

found that the reasoning used in Hainesworth was inapposite, as Partee had

violated the terms of his probation. Instead, the panel ruled that Partee could

not seek specific performance where he effectively rescinded the plea bargain

by violating his probation.

                                    - 24 -
J-E01004-17



     Without mention of Partee, our Supreme Court, in 2016, adopted the

Hainesworth Court’s approach in Martinez. The Martinez Court agreed that

plea agreements are contractual in nature, and that convicted offenders are

entitled to specific performance of the registration terms in their plea

agreements. Consequently, the Court rejected retroactive imposition of

SORNA’s sexual offender registration requirements on parties who accept and

comply with a plea bargain.

     Hainesworth, Partee, and Martinez preceded Muniz. In 2007, Muniz

was convicted of two counts of indecent assault of a person under thirteen

years of age. At that time, Muniz would have been required to register as a

sexual offender for ten years. However, Muniz absconded before sentencing,

and was not apprehended and sentenced until 2014. At sentencing, the court

ordered   Muniz   to   comply   with    lifetime   sexual   offender   registration

requirements under SORNA. This Court affirmed Muniz’s judgment of

sentence. Muniz sought allowance of appeal in our Supreme Court.

     The Supreme Court granted allowance of appeal and examined the

factors weighing in favor of finding SORNA punitive. Ultimately, the Muniz

Court found the registration conditions of SORNA to be punitive. The Court

held that retroactive application of SORNA’s registration requirements

constituted a violation of both the United States and Pennsylvania’s

constitutional provisions against ex post facto laws. Consequently, the Court

deemed such retroactive applications unconstitutional and therefore invalid.




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J-E01004-17



      Finally, following the Muniz decision, the Supreme Court issued a per

curiam order in Commonwealth v. Reed, 168 A.3d 132 (Pa. 2017). Reed

contested the increase of his registration time under his plea bargain. The

increase was due to retroactive application of SORNA requirements. A panel

of this Court, pre-Martinez and Muniz, determined that Reed was not entitled

to relief. This Court found that unlike the appellant in Hainesworth, Reed

entered his guilty plea knowing that he could later be required to register as

a sexual offender for life, depending on the finding of the Sexual Offender

Assessment Board. Thus, our Court held the registration term was not a

negotiated part of his plea bargain. The Supreme Court issued a per curiam

order reversing that decision, based squarely on Muniz.

      We find the facts of this case nearly identical to those in Partee.

Appellants failed to comply with the sentencing requirements of their plea

bargains, but still attempt to enforce the terms of these agreements. However,

in Muniz, our Supreme Court held that the enhanced registration provisions

of SORNA constitute punishment, and may not be applied retroactively.

Therefore, the reclassifications of the Appellants after the effective date of

SORNA cannot stand.

      To   the   extent   the   Commonwealth   claims   Appellants   failed   to

demonstrate their plea agreements precluded lifetime registration, Muniz

renders such a demonstration unnecessary. Following Muniz, SORNA’s sexual

offender requirements may not be imposed retroactively on any defendant,

regardless of whether the defendant accepted a plea bargain or was convicted

                                    - 26 -
J-E01004-17



at trial. Even offenders who, like Appellants, were sentenced before SORNA

became law, have since violated the terms of their probation, and have been

resentenced,     are    not   subject    to    retroactive   application   of   SORNA’s

requirements.

       The Pennsylvania Legislature has endeavored to solve the issue of how

to treat these offenders by passing a law to replace the invalidated portions

of SORNA. See 2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June

12, 2018) (“Act 29”), amending Title 42 (Judicial Procedure) of the

Pennsylvania Consolidated Statutes. Though Act 29 was enacted during the

pendency of this appeal, it became effective immediately. In relevant part, its

purpose is to eradicate the unlawful retroactive portions of SORNA proscribed

in Muniz17 and instead impose lower periods of registration for offenders who

committed applicable crimes between April 22, 1996, and December 20, 2012.

See 42 PA.C.S.A. § 9799.52. Rather than increasing Appellants’ registration

terms, the new law effectively places many of the listed crimes back in a ten-

year registration category. See 42 PA.C.S.A. § 9799.55.

       Nevertheless, this Court rightly noted in Commonwealth v. Horning,

___ A.3d ___, 2018 WL 3372367 (Pa. Super., filed July 11, 2018), that SORNA


____________________________________________


17 “It is hereby declared to be the intention of the General Assembly to . . .
(4) Address the Pennsylvania Supreme Court’s decision in Commonwealth v.
Muniz . . ., and the Pennsylvania Superior Court’s decision in Commonwealth
v. Butler . . . .” 42 PA.C.S.A. § 9799.51.




                                          - 27 -
J-E01004-17



also enhanced registration conditions by adding requirements such as

frequent in-person reporting and the publication of an offender’s personal

information online. The Horning panel aptly identified these additional

obligations as noncompliant with Muniz.18 Problematically, though it reduces

the term of years for which these offenders must register, the new Act does

not address these additional, more stringent conditions required under SORNA

from those imposed under the earlier versions of Megan’s Law.

       However, the issue of the possible retroactive application of the

legislature’s new amendments to Appellants is not before us. The only issue

raised by Appellants, and argued to the Court, was whether the reclassification

under the then-existing version of SORNA, as applied to each Appellant, was

lawful. Under Muniz, we hold that the more onerous registration requirements

under these reclassifications are barred. Unless and until the Pennsylvania

State Police attempt to again reclassify Appellants, this time under Act 29,

and this new reclassification is challenged, this issue is not before the Court.19



____________________________________________


18  To the extent the Horning Court remanded that case for further
proceedings, we note that Horning committed his crimes when Megan’s Law
II was in effect, but was nevertheless informed he was subject to SORNA. As
the Horning Court notes, Muniz’s invalidation of SORNA does not preclude
Appellant from registration under Megan’s Law on remand, though Megan’s
Law requirements were not initially imposed.

19 The Pennsylvania State Police has substantive obligations under SORNA,
including the enforcement and maintenance of the sexual offender registry.
“[The] PSP has enforcement authority with regard to the requirements of



                                          - 28 -
J-E01004-17



       Consequently, we find Muniz abrogates Partee, and hold Appellants

are not subject to SORNA’s retroactive registration increases. Insofar as the

trial court’s order relies on Partee, we reverse. Appellants are instead subject

to the original periods of sexual offender registration and conditions imposed

at the time of their plea bargains, if applicable.20

       Orders reversed. Jurisdiction relinquished.

       President Judge Emeritus Bender, Judge Shogan, Judge Lazarus, Judge

Olson, and Judge Dubow join the opinion.

Judge Bowes files a dissenting opinion.

       Judge Moulton and Judge Solano did not participate in the consideration

or decision of this case.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/18




____________________________________________


SORNA . . . .” Konyk v. Pennsylvania State Police of Commonwealth of
Pennsylvania, 183 A.3d 981, 987 (Pa. 2018).
20To the extent Appellants’ reporting requirements increased after their plea
bargains under later versions of Megan’s Law, prior to the imposition of
SORNA, that issue has not been raised or briefed, and is consequently not
before us.

                                          - 29 -
