J-A19005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

KEVIN M. MAGEE,

                        Appellant                    No. 979 WDA 2014


                Appeal from the Order Entered May 27, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0017074-2010


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 18, 2015

     Appellant, Kevin M. Magee, appeals from the May 27, 2014 order

denying his petition to enforce his plea agreement. After careful review, we

vacate the order and remand for reconsideration of Appellant’s petition.

     In its 1925(a) opinion, the trial court provides as follows.

           On June 22, 2011, [Appellant] pled guilty to one count of
     Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7); one count of
     Unlawful Contact with Minor, 18 Pa.C.S.A. § 6318 (a)(1); one
     count of Endangering the Welfare of Children, 18 Pa.C.S.A. §
     4304(a)(1); one count of Child Pornography, 18 Pa.C.S.A. §
     6312(d)(1); one count of Indecent Assault, 18 Pa.C.S.A. §
     3126(a)(7); one count of Indecent Exposure, 18 Pa.C.S.A. §
     3127(1); and one count of Corruption of Minors, 18 Pa.C.S.A. §
     6301(a)(1).    Pursuant to the terms of the negotiated plea
     agreement, this court sentenced [Appellant] to a period of 11 ½
     to 23 months confinement with eligibility for both alternative
     housing and work release; seven (7) years concurrent probation;
     continued counseling; no contact with the “Mother and Child”
     and a ten (10) year Megan’s Law Registration.
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              On December 20, 2012, the revisions to the registration
       requirements under SORNA[1] became effective.                 After
       notification from the Probation Department of the new reporting
       requirements, [Appellant] filed a Petition to Enforce Plea
       Agreement to which the Commonwealth filed an Answer. After
       review of the pleadings, this court agreed that the specific ruling
       in Commonwealth vs. Hainesworth, 82 A.3d 444 (Pa. Super.
       2013)[,] did not apply and the Petition was denied on May 27,
       2014. This timely appeal followed.

              Since the filing of this appeal, there have been cases that
       have further clarified the Superior Court’s line of reasoning in
       similar situations.     Most recently (September 9, 2014) an
       Opinion was issued in Commonwealth vs. Nase, [104] A.3d
       [528], [(Pa. Super. 2014)], which is on point to the instant case.
       After reviewing Nase, it is clear that there are two specific
       questions that must be answered to determine if [Appellant] is
       entitled to enforcement of the plea agreement. 1) Was the
       registration/reporting requirement and specifically, the length of
       that reporting a part of the plea bargain; and 2) has [Appellant]
       [] complied with all terms of his sentence so as to entitle him to
       specific performance.

             On the date of the Guilty Plea Hearing, the Commonwealth
       specifically points out that there is a “ten year registration
       requirement” and [Appellant] had “filled out the paperwork for
       that[.]” The court specifically asked the defense counsel if he
       agreed.     (Guilty Plea Transcript, p. 5).   At the Sentencing
       Hearing, the court enunciates each of the parts of the sentence
       and ends with asking the Commonwealth to put “on the record
       what his requirements are” and incorporated “the Megan’s Law
       Colloquy that was signed on the 22nd of June by both [Appellant]
       and [Appellant]’s counsel.” The court ends with “that’s the
       agreement, correct?” to which all parties say yes. (Sentencing
       transcript, p. 14-15).

Trial Court Opinion (T.C.O.), 9/12/2014, at 1-3.

       Appellant presents four issues on appeal.

____________________________________________


1
  Sex Offender Registration and Notification Act. 42 Pa.C.S. §§ 9799.10, et
seq.



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      A. [Whether] [t]he Trial Court erred and/or abused its discretion
         in denying Appellant’s Petition to Enforce Plea Agreement
         without an evidentiary hearing.

      B. [Whether] [t]he Trial Court erred and/or abused its discretion
         by determining, in derogation of the Ex Post Facto, Due
         Process and Contracts Clauses of the Constitutions of the
         United States of America and the Commonwealth of
         Pennsylvania, that the terms of Appellant’s negotiated plea
         agreement, including and referring specifically to the implied
         and express terms pertaining to sex offender registration,
         should not be specifically enforced.

      C. [Whether] [t]he Trial Court erred and/or abused its discretion
         in determining that Appellant should be required to register
         as a [Third] Tier, life-time sex offender pursuant to SORNA,
         42 Pa.C.S. § 9799, et seq., in contravention of the express
         and implied terms of the negotiated plea agreement, which
         was entered into prior to the effective date of SORNA and
         required a ten (10) year registration period.

      D. [Whether] [t]he Trial Court erred as a matter of law in failing
         to determine that SORNA’s life-time registration requirements
         were illegally applied to Appellant as those life-time
         registration requirements were clearly inapplicable to
         Appellant where, on or after December 20, 2012, the effective
         date of SORNA, Appellant was not, and never had been,
         under supervision for any offense requiring life-time
         registration pursuant to the express provisions of SORNA.

Appellant’s Brief at 3.

      In consideration of Appellant’s initial issue, the trial court ultimately

concludes that its ruling had been made in error.

            After a review of the record and the pleadings in light of
      the most recent cases decided by the Superior Court, it is this
      court’s opinion that the reporting/registration requirement of ten
      years was an express part of the plea agreement and that the
      defendant has complied with all parts of the agreement, entitling
      him to the benefit of his bargain. As such, this court would ask
      for the Superior Court to reverse the order denying relief and
      remand the case for an appropriate Order.



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T.C.O. at 3.

      In Hainesworth, the appellant was originally charged with three

counts of statutory sexual assault; two counts of aggravated indecent

assault; three counts of indecent assault; and two counts of criminal use of a

communication facility.      Hainesworth, 82 A.3d at 445.         At the time, the

only offense that carried a Megan’s Law reporting requirement was

aggravated indecent assault, which the Commonwealth withdrew in order to

induce a plea. Id. Hainesworth entered a negotiated plea of guilty to three

counts of statutory sexual assault, three counts of indecent assault, and one

count of criminal use of a communication facility. Id.

      The General Assembly subsequently enacted SORNA, thereby imposing

a twenty-five year registration requirement for Tier II sexual offenses.

Under SORNA, sexual assault is categorized as a Tier II sexual offense.

Hainesworth sought the termination of his probation in order to avoid this

new registration requirement, which the court denied. Id. at 446. However,

the court’s order stated that Hainesworth was not subject to the registration

requirements of SORNA.           Id.   The lower court provided the following

rationale for not imposing the new requirements. “Application of [SORNA] to

[Hainesworth] violates due process of law, fundamental fairness, and

provisions     of   the   negotiated   plea    agreement   entered   into   between

[Hainesworth] and the government.             It would also destroy the process of

negotiated plea agreements essential to the efficient disposition of criminal




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cases in Westmoreland County.”        Id. at 46-47 (citation to the record

omitted).

      On appeal, this Court upheld the lower court’s ruling, concluding that,

“the parties … entered into a plea bargain that contained a negotiated term

that Hainesworth did not have to register as a sex offender. As such, it was

not error for the trial court to order specific enforcement of that bargain.”

Id. at 450. In Nase, we clarified that, “because [Hainesworth] specifically

negotiated with the Commonwealth to remove all sex offenses that required

registration, requiring him to register would deprive him of the benefit of his

bargain.” Nase, 104 A.3d at 531.

      Addressing the applicability of Hainesworth, this Court recently held,

in Nase, that a ten-year registration requirement was a bargained-for term.

Nase, 104 A.3d at 530. Nase originally entered a guilty plea to statutory

sexual assault and unlawful contact with a minor. Id. at 528. In exchange

for his plea, the Commonwealth nolle prossed several other sexual offense

charges.    Id.   However, in order to impose a ten year registration

requirement under Megan’s Law, the plea bargain specifically included the

offense of unlawful contact with a minor.      Subsequently, SORNA became

effective, increasing the unlawful contact with a minor’s registration

requirement from ten to twenty-five years. Id. at 529. On appeal from the

denial of his petition to avoid additional registration requirements, this Court

found that Nase was entitled to specific performance for the following

reason:

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      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 [the] [a]ppellant 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.

Id. at 534.

      In the case sub judice, Appellant’s plea bargain included a ten-year

Megan’s Law registration requirement.           Initially, the trial court had

determined    that   Hainesworth    did   not   apply   because   the   ten-year

registration requirement was not bargained for, but was a collateral

consequence to the plea. However, our recent holding in Nase clarifies the

matter in recognizing that certain registration consequences may be a

negotiated part of a plea bargain. Therefore, we agree with the trial court,

that its decision, based on a narrow reading of Hainesworth, which we

rejected in Nase, was made in error. Accordingly, we vacate the order and

remand for reconsideration of Appellant’s petition.

      In light of the foregoing disposition, we do not reach Appellant’s other

issues.

      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 8/18/2015




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