J-S29001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EDWARD RIPLEY MAXWELL,

                            Appellant                  No. 324 WDA 2014


                Appeal from the Order Entered January 31, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0004837-2002


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 18, 2016

        Appellant, Edward Ripley Maxwell, appeals from the trial court’s

January 31, 2014 order dismissing his petition seeking enforcement of his

2003 plea agreement. After careful review, we affirm.

        On February 7, 2003, Appellant entered a negotiated guilty plea to

charges of indecent assault, 18 Pa.C.S. § 3126(a)(7) (prohibiting indecent

contact with a “complainant [who] is less than 13 years of age”), and

corruption of minors, 18 Pa.C.S. § 6301.          Appellant was subsequently

sentenced on May 5, 2003. For indecent assault, the trial court sentenced

Appellant to 18 months’ intermediate punishment, followed by 3½ years’

probation. For corruption of minors, the trial court sentenced Appellant to a

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*
    Former Justice specially assigned to the Superior Court.
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consecutive term of 5 years’ probation.          At the time of his sentencing,

Appellant was required to register with the state police for a period of ten

years under Megan’s Law.1

        At a Gagnon2 II hearing held on January 23, 2006, the trial court

found that Appellant had violated the terms of his probation, as he had twice

been discharged from his sex offender rehabilitation program due to his

failure to comply with the prescribed treatment regimen. Consequently, the

trial court revoked Appellant’s probation and imposed a new aggregate

sentence of 2½-5 years’ incarceration, followed by 5 years’ probation.

Appellant unsuccessfully appealed his new sentence. See Commonwealth

v. Maxwell, 932 A.2d 941 (Pa. Super. 2007), appeal denied, 940 A.2d 363

(Pa. 2007). Appellant then filed a timely PCRA 3 petition on March 20, 2008.

His petition unexplainably sat dormant for 2½ years until PCRA counsel was

appointed in October of 2010.           However, PCRA counsel was permitted to

withdraw on March 3, 2011, after filing a Turner/Finley4 no-merit letter.
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1
   ‘Megan’s Law’ generally refers to a set of civil penalties/obligations
imposed on individuals convicted of criminal sexual offenses, including, inter
alia, registration and reporting requirements. Pennsylvania’s version of
Megan’s Law was enacted in 1995 and codified at 42 Pa.C.S. §§ 9791–
9799.9 (expired December 20, 2012).
2
    See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3
    Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.
4
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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The PCRA petition was denied on August 1, 2011, and Appellant did not

appeal from that decision.

       Appellant violated the terms of his probation again, which was the

basis for his arrest in June of 2011.            Consequently, Appellant was

resentenced on June 6, 2013, to a new term of 2½-5 years’ incarceration.

As a result of this new sentence, Appellant is now required to register for life

as a sex offender under the Sex Offender Registration and Notification Act

(“SORNA”), 42 Pa.C.S. § 9799.10 et seq.5 See 42 Pa.C.S. § 9799.15(a)(3)

(“An individual convicted of a Tier III sexual offense shall register for the life

of the individual.”); 42 Pa.C.S. § 9799.14(c) (classifying 18 Pa.C.S. §

3126(a)(7) as a Tier III offense).

       Apparently, during the period between Appellant’s 2011 arrest and the

new sentence imposed in June 2013, Appellant was represented both by

assistant public defender and current counsel, Victoria H. Vidt, Esq., and by

private counsel, Michael J. Machen, Esq. Attorney Vidt avers that that she

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5
   SORNA became effective on December 20, 2012, and requires all
“individuals who are currently subject to the criminal justice system of this
Commonwealth as inmates, supervised with respect to probation or parole or
registrants under this subchapter to register with the Pennsylvania State
Police and to otherwise comply with this subchapter.”          42 Pa.C.S. §
9799.10(4) (emphasis added). Thus, Appellant would have been subject to
the new registration requirements had his probation imposed in 2006
continued to remain in effect through December 20, 2012. Therefore,
Appellant may have been subject to the new requirements under SORNA
even had he not been resentenced in 2013.




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was unaware that Appellant had retained private counsel when she filed a

petition seeking enforcement of Appellant’s plea agreement on April 30,

2013, which is the subject of the instant appeal. See Petition (hereinafter,

the “Petition”), 4/30/13, at 1.           However, it does appear that Attorney

Machen had only been retained for purposes of representing Appellant for his

probation violation hearing, and not for the matter at issue herein. In any

event, there is no record of Attorney Machen entering his appearance on

Appellant’s behalf.6

       The trial court denied the Petition on February 4, 2014, and Appellant

(via Attorney Vidt) filed a timely appeal. Appellant filed a timely docketing

statement with this Court on March 10, 2014, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement with the trial court on April 22, 2014. The trial

court issued its Rule 1925(a) opinion on February 23, 2015.

       Appellant did not file a brief in accordance with the briefing schedule

issued by this Court, nor did he file a petition seeking an extension of time

to file a brief. Consequently, this Court remanded this case to the trial court

for a determination of whether Attorney Vidt had abandoned Appellant.       On

May 28, 2015, the trial court issued an order indicating that Attorney Vidt

had not abandoned Appellant, but instead had not received the briefing


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6
  There is only a single entry in the docket pertaining to Attorney Machen,
indicating that he filed a “Motion to Reinstate Probation” for Appellant on
November 27, 2012.



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schedule.     Accordingly, this Court reissued a briefing schedule, ordering

Appellant to file a brief on or before August 19, 2015, and he complied.

       Appellant now presents the following question for our review:

       I.     DID THE TRIAL COURT ERR IN FAILING TO ORDER THAT
              [APPELLANT] WAS REQUIRED TO REGISTER AS A SEXUAL
              OFFENDER FOR ONLY A 10 YEAR PERIOD, A[S] THE
              INITIAL NEGOTIATED AGREEMENT BETWEEN HIMSELF
              AND THE COMMONWEALTH PROVIDED?

Appellant’s Brief, at 5.

       The essence of Appellant’s argument is that the Commonwealth should

be bound by the terms of the plea agreement, which provided that he would

only be subject to registration as a sex offender for 10 years, despite his

violations of probation that extended his sentence long enough to fall within

the reach of SORNA.        Appellant contends that his plea agreement should be

treated as a contract that cannot be retroactively eviscerated by SORNA.

       There is at least some theoretical support for Appellant’s position to be

found in Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013)

(en banc), appeal denied, 95 A.3d 276 (Pa. 2014). In that case, this Court

held that the defendant, who had specifically negotiated to avoid Megan’s

Law registration as part of his plea agreement reached before the enactment

of SORNA, would not have to submit to the new requirements of SORNA, as

he was entitled to the benefit of his bargain with the Commonwealth.7
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7
  In Hainesworth, the appellant filed a motion seeking to terminate his
supervision one week prior to the effective date of SORNA.



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Appellant seeks to extend the Hainesworth decision to include probation

violators like Appellant who, some might argue, absolve the Commonwealth

of upholding its end of the plea bargain when they violate terms of probation

imposed under a negotiated sentence.

      The trial court rejected Appellant’s claim by relying on this Court’s

decision in Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014),

appeal denied, 97 A.3d 944 (Pa. 2014). The Commonwealth agrees with the

trial court’s decision, asserting that Partee precludes relief in this case. In

Partee, the appellant entered a negotiated nolo contendere plea agreement

which included ten-year Megan’s Law reporting requirements. We noted

that, despite the absence of direct evidence that the applicable Megan’s Law

reporting requirement was an explicit term of Partee’s plea agreement, it

was “apparent that [the a]ppellant's negotiated plea agreement was

structured so that he would only be subject to a ten-year rather than a

lifetime reporting requirement[.]” Id. at 249.

      However, unlike the appellant in Hainesworth, Partee had violated

the terms of his probation prior to being subjected to the more onerous

reporting requirements of SORNA. The Partee Court found this fact to be

dispositive in rejecting the applicability of Hainesworth.         The Court

reasoned that, by violating his probation, Partee had failed to uphold his

obligation under the plea agreement reached in his case.     The Court based

this holding on the well-established principle that, with respect to new

sentences imposed for violations of probation, a “trial court is free to impose

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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 (relying on Commonwealth v.

Wallace, 870 A.2d 838 (Pa. 2005)).

         Instantly, we agree with the trial court and the Commonwealth that

Partee is controlling authority.     Appellant recognizes Partee’s adverse

holding. He notes, however, that in his appeal, Partee did “not address the

Commonwealth's argument or the legal effect of his probation violation upon

the original plea agreement.”    Partee, 86 A.3d at 250.        Thus, Appellant

argues that “because the opportunity to argue the issue did not occur in

Partee, this discussion should be deemed dicta and this Court should still

permit argument on the issue.”      Appellant’s Brief, at 16.     We disagree.

Appellant cites no authority for the proposition that a legal holding in a case

is mere dicta because a party inadequately argued against, or failed to argue

against, their opponent’s successful legal argument.

         Nevertheless, Appellant goes on to present a robust argument as to

why Partee was wrongly decided. However, [t]his panel is not empowered

to overrule another panel of the Superior Court.” Commonwealth v. Beck,

78 A.3d 656, 659 (Pa. Super. 2013). Thus, we are constrained to recognize

Partee as controlling in this matter, and we reject Appellant’s claim on that

basis.     Consequently, we conclude that the trial court neither erred nor

abused its discretion when it denied relief based on Partee.

         Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016




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