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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                    :         IN THE SUPERIOR COURT OF
                                                 :              PENNSYLVANIA
                            Appellee             :
                                                 :
                    v.                           :
                                                 :
MERRILL MARVIN DUVALL, JR.,                      :
                                                 :
                            Appellant            :         No. 67 MDA 2015

               Appeal from the Order Entered December 22, 2014
              In the Court of Common Pleas of Huntingdon County
               Criminal Division No(s).: CP-31-CR-0000661-2002

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                                FILED AUGUST 31, 2015

        Appellant, Merrill Marvin DuVall, appeals pro se from the order entered

in the Huntingdon County Court of Common Pleas, denying his “Motion to

Enforce Plea Agreement.” He argues the trial court erred by failing to honor

his plea agreement which did not require him to register pursuant to the Sex

Offender     Registration   and   Notification       Act    (“SORNA”).1   Accordingly,

Appellant contends he is serving an illegal sentence. We affirm.

        The trial court summarized the facts and procedural history as follows:

*
    Former Justice specially assigned to the Superior Court.
1
  “SORNA, codified at 42 Pa.C.S.[ ] §§ 9799.10–9799.41, became effective
on December 20, 2012. . . . Pennsylvania courts have also referred to the
current statute as ‘Megan’s Law IV,’ ‘Act 111 of 2011,’ ‘Adam Walsh Child
Protection and Safety Act,’ and the ‘Adam Walsh Act.’” Commonwealth v.
Giannantonio, 114 A.3d 429, 432 n.1 (Pa. Super. 2015).
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           Appellant appeared before this [c]ourt on September 2,
        2003, and entered a plea of guilty to [i]ncest. Following
        the preparation of a Pre-Sentence Report, he was
        sentenced on November 17, 2003, to pay the costs of
        prosecution and to undergo imprisonment in a state
        correctional facility for a period of not less than eighteen
        (18) months or more than five (5) years with the effective
        date of the sentence being October 21, 2002.[2] By order
        dated December 2, 2008, we directed [Appellant] to
        comply with any special conditions imposed upon him by
        the Pennsylvania Board of Probation and Parole.

            Appellant filed on December 10, 2014, his “Motion to
        Enforce Plea Agreement”[3] in which he correctly pleaded
        that he had not been sentenced by this [c]ourt to register
        under the provisions of [SORNA] ([Megan’s] Law), 42
        Pa.C.S. 9799.10 et seq. He also correctly pleaded that he
        was not assessed as a sexually violent predator. Next, he
        cited to the recent decision of the Superior Court of
        Pennsylvania in Commonwealth v. Hainesworth, 8[2]
        A.3d 444 ([Pa. Super.] 2013) [(en banc), appeal denied,
        95 A.3d 276 (Pa. 2014)], where the court enforced a plea
        agreement that specifically provided that Hainesworth
        would not be subjected to the registration requirement of

2
  Appellant avers “on 21 October, 2007 [he] was forced to sign “Megan’s
Law Registration” via the Pennsylvania State Police while [he] was
incarcerated at S.C.I. Cresson.” Appellant’s Brief at 5. Appellant has
appended to his brief a sentence status summary from Bedford County
indicating that he pleaded guilty to failure to comply with registration of
sexual offenders requirement. Appellant’s Brief at Ex. “H.” See Pa.R.A.P.
1921, note (noting that although appellate court may consider only facts
which have been duly certified in record, appellate court may consider
document included in reproduced record─if accuracy of document is not
disputed).
3
  We “note that the statutory and rule-based requirements governing a Post
Conviction Relief Act] petition, [42 Pa.C.S. §§ 9541–9546,] do not apply to a
challenge to the retroactive application of Megan’s Law, but that this Court
has jurisdiction to review orders confirming or rejecting a retroactive
registration requirement.” Commonwealth v. Bundy, 96 A.3d 390, 394
(Pa. Super. 2014).




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         [Megan’s] Law. Finally, Appellant requests an “order”
         enforcing   the   plea    agreement    between    the
         Commonwealth and Petitioner.

Trial Ct. Op., 2/13/15, 2-3 (emphasis added).

      Appellant raises the following issues for our review:

         1. Did the trial court commit an err [sic] of law by failing to
         honor the plea agreement, in that [A]ppellant was not
         required to register pursuant to 42 Pa.C.S. §9799.10 et
         seq.?

         2. Did the court commit an err [sic] of law by issuing a
         [sic] order (5) five years after conviction for Appellant to
         comply with special conditions by the Pa. Board of
         Probation and Parole?

         3. Is Appellant currently illegally incarcerated for failure to
         register under 42 Pa.C.S. § 9799.10 et seq.?

Appellant’s Brief at 4.

      First, Appellant argues the trial court erred in failing to honor the plea

agreement that he was not required to register under Megan’s Law. Id. at

7, 9. He contends that “where a plea bargain has been entered into and is

violated by the Commonwealth, the defendant is entitled, at the least to the

benefit of the bargain.” Id. at 7.

      Our review is governed by the following principle: “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 (quotation marks and citation

omitted). “Hainesworth, and [Commonwealth v.] Partee, [86 A.3d 245

(Pa. Super.), appeal denied, 97 A.3d 744 (Pa. 2014)], stand for the


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proposition that this Court will specifically enforce parties’ plea bargains.”

Giannantonio, 114 A.3d at 435.

      The   Giannantonio      Court   rejected   the   defendant’s   claim   that

retroactive application of SORNA would violate his plea agreement. Id.

             Unlike in Hainesworth and Partee, there is no
         evidence here that Giannantonio’s guilty plea was
         negotiated or structured to insure that he would register
         for only a ten-year period. The record contains neither
         a colloquy from the federal guilty plea or sentencing
         hearings nor testimony or any other evidence
         demonstrating that counsel negotiated a specific
         ten-year registration period. Rather, the guilty plea
         required Giannantonio to register and report pursuant to
         the law of the state in which he would reside following his
         release (not necessarily Pennsylvania). We agree with the
         trial court’s conclusion that “because [Giannantonio] has
         failed to demonstrate through credible evidence that
         registration for a ten-year period was a bargained[-]for
         element of his negotiated plea, the petition for relief from
         SORNA’s requirements for an additional [five] years was
         properly denied.”

Id. at 435-36 (citation omitted and emphases added).

      Instantly, the trial court opined:

            We denied relief because no facts were set forth that
         entitled Appellant to relief. In this regard, Appellant did
         not plead nor is there anything in the record that
         indicates that there was a plea agreement in his
         case in 2003 that specifically addressed non-
         registration under [Megan’s] Law. . . .

Trial Ct. Op. at 3 (emphasis added). We agree no relief is due.

      Appellant has not demonstrated through credible evidence that, based

upon his plea agreement, he was not required to register pursuant to




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Megan’s Law.4     See Giannantonio, 114 A.3d at 435-36.          Accordingly,

Appellant’s Motion to Enforce Plea Agreement was properly denied. See id.

     Order affirmed.

     Judge Wecht joins the memorandum.

     Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




4
  Given our resolution of Appellant’s first issue on appeal, we need not
address issue two. Appellant registered under Megan’s Law on October 21,
2007. Even assuming the Huntingdon County trial court’s December 2, 2008
order is a legal nullity, it has no effect on the Megan’s Law registration
requirement. See 42 Pa.C.S. § 9799.13. We do not address issue three,
viz., the illegal sentence claim, based upon our resolution of issue one. See
infra. Additionally, the purported illegal sentence was imposed in a different
case in Bedford County. See note 2 infra.



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