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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
    Appellant                               :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
JUAN MIGUEL ACEVEDO                         :
                                            :
                                            :     No. 2984 EDA 2015

                     Appeal from the Order August 31, 2015
                In the Court of Common Pleas of Monroe County
                Criminal Division No(s): CP-45-CR-0002532-2010


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                        FILED SEPTEMBER 02, 2016

        The Commonwealth of Pennsylvania appeals from the August 31, 2015

Order entered in the Court of Common Pleas of Monroe County granting

Juan Miguel Acevedo’s (“Acevedo”) Motion to Enforce Plea Agreement.

Finding no merit to the Commonwealth’s claims on appeal, we affirm.

        On September 5, 2010, Acevedo was charged with one count each of

Statutory Sexual Assault, Aggravated Indecent Assault—Complainant Less

than 16 Years of Age, Interference with Custody of Children, Unlawful

Contact with Minor—Sexual Offenses, Involuntary Sexual Intercourse—




*
    Former Justice specially assigned to the Superior Court.
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Complainant Less than 16 Years of Age, and two counts of Indecent

Assault—Complainant Less than 16 Years of Age.1

        On October 4, 2011, the Commonwealth presented Acevedo with a

plea agreement.     Noting that Acevedo had similar charges pending at No.

2015-2011 and 2067-2011, the Commonwealth agreed to an open guilty

plea to one count of Unlawful Contact with Minor, a second degree felony, at

No. 2532-2010, and two counts of Statutory Sexual Assault, 2 one each at

Nos. 2015-2011 and 2067-2011.

        The Commonwealth noted in the plea offer that there was no

sentencing agreement.      It also informed Acevedo that,”[a]bsent a finding

that [Acevedo] would be classified as a [sexually violent predator], he would

be required to register under Megan’s law for 10 years (as opposed to a

lifetime registration for aggravated indecent assault, or a conviction for more

than one Megan’s law offense).” Plea Offer, 10/4/11. In exchange for this

plea, the Commonwealth agreed to nolle pros the remaining charges.

        On December 27, 2011, Acevedo pled guilty to one count of Unlawful

Contact with Minor and two counts of Statutory Sexual Assault.

        On March 22, 2012, the court sentenced Acevedo to a term of 9-36

months’ incarceration on the Unlawful Contact with Minor charge, and two

1
  18 Pa.C.S. § 3122.1, 3125(a)(8), 2904(a), 6318(a)(1), 3123(a)(7),
3126(a)(8), respectively.
2
    18. PaC.S. § 3122.1.




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terms of 12-26 months incarceration on the Statutory Sexual Assault

charges, to be served consecutively. The court ordered Acevedo to submit

to a sexual offender evaluation, and to comply with the registration

requirements of Megan’s Law3 for a period of 10 years.

        Pennsylvania enacted the Sex Offender Registration and Notification

Act (“SORNA”) on December 20, 2011, and it became effective on December

20, 2012.      See 42 Pa.C.S. § 9799.1 et seq.           SORNA’s registration

requirements apply to persons still under supervision for relevant offenses as

of December 20, 2012.        Id. at § 9799.13(2).    SORNA reclassified the

offenses requiring registration as a sex offender, and the length of the

required registration. Id.

        SORNA reclassified the offenses of Unlawful Contact with Minor and

Statutory Sexual Assault as Tier II sexual offenses, both of which carry 25-

year registration periods. Id. §§ 9799.14(c)(5); 9799.14(c)(1.1); and

9799.15(a)(2). Accordingly, since Acevedo was still incarcerated at the time

SORNA became effective, Acevedo was required to register for his lifetime

rather than 10 years. 4




3
    42 Pa.C.S. § 9795.1.
4
 Acevedo faced a lifetime registration requirement pursuant to 40 Pa.C.S. §
9799.14(d)(16), which classifies as a Tier III sexual offense “[t]wo or more
convictions of offenses listed as Tier I or Tier II sexual offenses.” See 42
Pa.C.S. § 9799.14(d)(16); see also id. at § 9799.15(a)(3).



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        On October 6, 2014, Acevedo filed a pro se “Motion for Evidentiary

Hearing [and] for Declaration that Megan’s Law [is] Unconstitutional [and]

Unenforceable.” The trial court initially treated this Motion as an application

for relief pursuant to the Post Conviction Relief Act5 (“PCRA”), and appointed

counsel for Acevedo. Counsel withdrew the PCRA petition without prejudice

and, on March 16, 2015, filed a Petition for Habeas Relief and/or Petition

Seeking Enforcement of Plea Agreement, in which Acevedo challenged the

retroactive enforcement of SORNA. Following a hearing, the court granted

Acevedo’s Petition on August 31, 2015, thereby enforcing Acevedo’s plea

agreement.

        The Commonwealth timely appealed and complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) Statement.

        The Commonwealth raises the following four issues for our review:

          1. Did the [t]rial [c]ourt err in finding that the mere act of
          advising a defendant of collateral consequences created a
          binding contractual obligation on the part of the
          Commonwealth when such notification was required by
          law?

          2. Did the [t]rial [c]ourt err in finding that the specific
          length of the registration, which was a collateral
          consequence, was within the control of the District
          Attorney, when at the time of the plea the only possible
          registration periods allowed by law were either 10 years or
          life?



5
    42 Pa.c.S. §§ 9541-9546.




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         3. Did the [t]rial [c]ourt err in finding that the state
         cannot, in the valid exercise of its police powers, modify
         the terms of an existing contract?

         4. Did the [t]rial [c]ourt err in modifying the period of
         registration contrary to the plan language of 42 Pa.C.S.A.
         9799.20?

Commonwealth’s Brief at 4.

      In its first issue, the Commonwealth avers that the trial court erred in

finding that Acevedo’s 10-year sex offender registration requirement was a

specifically bargained-for term of his plea agreement. The Commonwealth

argues that, although it and the trial court notified Acevedo of his 10-year

registration requirement at the time of Acevedo’s sentencing, “[t]he simple

act of notifying a defendant of his duty to register, when such notification is

required by statute, does not then turn that notification into a bargained for

term of a contract.” Commonwealth’s Brief at 10-11.

      Our standard of review is as follows:

         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. Such a determination is made based on the
         totality of the surrounding circumstances, and [a]ny
         ambiguities in the terms of the plea agreement will be
         construed against the [Commonwealth].

Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en

banc) (internal citations and quotations omitted).

      In Hainesworth, the defendant pled guilty to Statutory Sexual

Assault, Indecent Assault, and Criminal Use of a Communication Facility. Id.



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at 445.   None of the offenses to which Hainesworth pled guilty required

registration as a sex offender.           Id. at 446.       The Commonwealth

acknowledged this fact on the record in open court.          Id.   The trial court

accepted the plea, and Hainesworth did not register as a sex offender. Id.

However, after SORNA became effective, Hainesworth’s Indecent Assault

offense was reclassified as a Tier II sexual offense, requiring him to register

for 25 years. Id. Because Hainesworth was still on probation when SORNA

became effective, he filed a motion seeking termination of his supervision to

avoid SORNA’s registration requirements.           Id.   Although the trial court

denied his Motion, it nevertheless issued an order stating that Hainesworth

was not subject to the registration requirements of SORNA. Id.

      On appeal, this Court observed that plea agreements must be

analyzed under the principles of contract law. Id. at 447. We noted that

“[t]he terms of plea agreements are not limited to the withdrawal of

charges, or the length of a sentence.         Parties may agree to—and seek

enforcement of—terms that fall outside these areas.”           Id. at 449.      We

recognized    that   “[r]egistration   obviously   has   serious   and   restrictive

consequences for the offender, including prosecution if the requirement is

violated,” and held that the plea agreement should be specifically enforced

under principles of contract law, including fundamental fairness. Id. at 449;

(stating that plea-bargaining is a crucial element of the criminal justice

system, as nearly ninety-four percent of state convictions are the result of



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guilty pleas and that “it is critical that plea agreements are enforced, to

avoid any possible perversion of the plea bargaining system”) (internal

citations omitted). This court concluded that Hainesworth’s guilty plea was

premised on the withdrawal of all charges requiring registration (evidenced

both in the Plea Colloquy and the Notes of Testimony) and that non-

registration was, therefore, a term of the plea agreement requiring specific

enforcement. Id. at 447-48.

     Recently, in Commonwealth v. Nase, 104 A.3d 528, 534 (Pa. Super.

2014) (en banc), this Court held that the defendant expressly agreed to

plead guilty to unlawful contact with a minor so as to be subject to the then-

extant ten-year registration period. Therefore, we concluded the registration

consequences    were   unequivocally   part   of   his   plea   negotiation   and

arrangement to be specifically enforced. Id. at 535.

     In the instant matter, following a hearing, and pursuant to the

holdings in Hainesworth, and Nase, the trial court found that “the ten-year

registration requirement was part of [Acevedo’s] plea bargain. Therefore, he

is entitled to the benefit of his bargain, and is not subject to additional

registration beyond that envisioned by his plea agreement.” Trial Ct. Order,

8/31/15.

     We agree with the trial court.           The record reflects that the

Commonwealth offered Acevedo a plea agreement wherein he would plead

guilty to Unlawful Contact with Minor, and submit to a 10-year sexual



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offender registration requirement. In doing so, Acevedo forfeited his right to

a trial on six other charges, which, if convicted, could expose him to a

lifetime registration requirement.      The Commonwealth, aware of the

potential lifetime registration obligation, used this information to highlight

the benefit of entering into the negotiated plea agreement. See Plea Offer

(”[a]bsent a finding that [Acevedo] would be classified as a [sexually violent

preditor], he would be required to register under Megan’s law for 10 years

as opposed to a lifetime registration for aggravated indecent assault, or a

conviction for more than one Megan’s law offense.”).          See also N.T.,

7/27/15, at 15 (where Acevedo’s counsel argues that “[t]he DA’s Office even

acknowledge[d] [in the plea offer] that if he goes to trial and he’s

unsuccessful, he’s facing lifetime registration requirements.”).

      Furthermore, Acevedo testified at the hearing on his motion that he

understood at the time the Commonwealth offered him a plea agreement

that if he were unsuccessful at trial, he would have a significantly longer

period of required registration. Id. at 11. He specifically testified that when

he entered his guilty plea, his “understanding was ten years of a registration

requirement[,]” and that “through the plea deal, plea agreement with the

ten year registration, [ ] like that was in my best interest as opposed to

pursuing it all the way up to trial.” Id. at 13-14.

      We agree with the trial court that the 10-year registration requirement

was a bargained-for term of Acevedo’s plea. The Commonwealth’s offer of a



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10-year registration period induced Acavedo to forego his right to a trial on

all of the charges pending against him.         The application of SORNA’s

registration requirements would abrogate the promise made to Acevedo and

breach the agreement between the parties. See Hainesworth, 82 A.3d at

449.

       Thus, recognizing the magnitude of SORNA registration, the essential

role of plea agreements in the criminal justice system, and the need to

preserve the Commonwealth’s integrity in its dealings, we agree with the

trial court that Acevedo’s knowing and voluntary plea agreement must be

specifically enforced.   See Commonwealth v. Fruehan, 557 A.2d 1093,

1094 (Pa. Super. 1998) (stating that “[i]f a trial court accepts a plea

bargain, the defendant who has given up his constitutional right to trial by

jury must be afforded the benefit of all promises made by the district

attorney.”); see also Hainesworth, 82 A.3d at 447-49.

       In its next issue, the Commonwealth avers that the trial court erred in

finding that the length of Acevedo’s registration requirement was within the

control of the District Attorney, as it is fixed by law.   The Commonwealth

also argues that, as a collateral consequence,6 the “sexual offender

registration requirement simply cannot be considered a ‘term’ of any plea


6
  A collateral consequence has been defined as a civil requirement over
which a sentencing judge has no control. Commonwealth v. Abraham, 62
A.3d 343, 350 (Pa. 2012).




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agreement, specifically including the period of registration, which [is]

determined by statute.” Commonwealth’s Brief at 24 (emphasis in original).

     These arguments are without merit.        First, it is undisputed that the

length of a SORNA registration requirement is statutorily mandated.

However, it is within the Commonwealth’s sole discretion to determine

whether a plea offer should be made and, if so, which offenses the offer

should include. In deciding whether to offer a defendant a plea agreement,

the Commonwealth is free to consider the severity of each charge, the likely

sentence carried by each offense, and the collateral consequence of each

charge.   Thus, as aptly stated by Acevedo, “the Commonwealth may . . .

fashion a plea offer to a defendant based on the offenses in which the

Commonwealth believes best fits the situation, which for most sex offenses,

includes a determination of what, if any, SORNA registration requirements

should be applied.” Acavedo’s Brief at 9-10.

     Moreover, it is well-established that our courts can, and do, consider

sexual offender registration a term of plea agreements.7            See, e.g.

Hainesworth, 82 A.3d at 449 (stating the “dispositive question is whether

registration was a term of the bargain struck [in the plea agreement] . . .”);

Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014) (holding that

but for the defendant’s violation of probation, the new registration


7
 This point is, in fact, conceded by the Commonwealth in its Brief.        See
Commonwealth’s Brief at 35.



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requirements would not have been applied retroactively since the defendant

specifically negotiated a plea that carried only a 10 year registration

requirement); see also Nase, supra.

      Next, the Commonwealth claims the trial court erred in finding that the

state cannot modify the terms of an existing contract. The Commonwealth

argues that the state can, in the valid exercise of its police powers, modify

the terms of an existing contract, especially when the underlying law in

effect at the time the parties entered into the contract is thereafter declared

unconstitutional.   Commonwealth’s Brief at 32.       We find this argument

waived.

      The Commonwealth has not cited to any relevant cases in support of

its argument. Rather, it relies extensively on cases based on civil contracts.

None of the cases cited by the Commonwealth acknowledge the fundamental

differences between civil contracts entered into by private parties and plea

agreements between the Commonwealth and a criminal defendant.              The

Commonwealth overlooks that criminal defendants who enter into plea

agreements are afforded due process protections to which parties to a civil

contract are not entitled.8   See generally U.S. Const. amend. VI.; Pa.

Const., Article I, §§ 6, 9.   Because the Commonwealth failed to cite to


8
  Moreover, to permit the trial court to modify the terms of a valid and
enforceable plea agreement has enormous potential to create a chilling
effect for all future plea agreements, especially those that either directly
pertain to SORNA or could be implicated by SORNA.



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relevant case law, this arguments is waived.           See Pa.R.A.P. 2119(a);

Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa. Super. 2009) (claim

is waived if there is no citation to relevant authority).

      Last, the Commonwealth claims, again without citation to authority,

that the trial court cannot “‘modify the requirements’ of registration

statutorily imposed on a defendant and has ‘no authority to relieve’ him from

his duty to register as [SORNA] provides.”        Commonwealth’s Brief at 42.

This claim is waived. See Pa.R.A.P. 2119(a); Brougher, supra.

      Order affirmed. Jurisdiction relinquished.

      Judge Bender joins the memorandum.

      PJE Stevens files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/2/2016




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