J-S38022-14


                              2014 PA Super 194

COMMONWEALTH 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

____________________________________________


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).
____________________________________________


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,


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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.


____________________________________________


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

____________________________________________


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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J-S38022-14


      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


                                       - 14 -
J-S38022-14


      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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J-S38022-14


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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