J-S77021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD BEGLEY

                            Appellant                 No. 335 EDA 2014


                    Appeal from the Order January 7, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0005908-2002


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J. **

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 22, 2014

        Ronald Begley appeals from an order denying his petition to prevent

his classification as a Tier II sexual offender under the Sexual Offender

Registration and Notification Act (“SORNA”)1. We affirm.

        On November 22, 2002, Begley pled guilty under a negotiated plea

agreement to unlawful contact with a minor2 and corruption of minors3. On

the unlawful contact charge, the court sentenced Begley to 5-23 months’

imprisonment followed by three years’ probation.            On the corruption of




____________________________________________


**
     Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. § 9799 et seq.
2
    18 Pa.C.S. § 6318.
3
    18 Pa.C.S. § 6301.
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minors charge, the court sentenced Begley to a concurrent term of 5-23

months’ imprisonment.

     During the guilty plea hearing, the assistant district attorney asked

Begley whether he understood he had to register as a sex offender with the

Pennsylvania State Police for 10 years upon his release from prison. N.T.,

11/22/02, pp. 10-11. Begley answered in the affirmative. Id. In addition,

Begley completed and offered into evidence an "Addendum to Guilty Plea

Colloquy for Sexual offenders". Paragraph 5 of the Addendum asked: "Do

you understand the ten-year registration must be tolled if you are

recommitted for a parole violation or sentenced to an additional prison

term?" Begley answered: "Yes."

     On March 30, 2004, the date of his release from prison, Begley

registered as a sex offender under Megan’s Law II.

     On December 10, 2004, the court found Begley in violation of his

probation, and on March 4, 2005, it resentenced Begley to 11½-23 months’

imprisonment followed by one year of probation. He was incarcerated from

October 28, 2004 to August 5, 2005. On February 2, 2006, the court again

found Begley in violation of his parole/probation and sentenced him to the

balance of his backtime (13 months and 23 days) and to one year of

consecutive probation.

     At the time of Begley’s guilty plea in 2002, unlawful contact with a

minor carried a 10-year registration requirement under Megan’s Law II, the


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sex offender registration law then in effect4.         In December 2011, the

legislature enacted SORNA, which became effective on December 20, 2012.

Under SORNA, unlawful contact with a minor is a Tier II sexual offense which

carries a registration requirement of 25 years.       42 Pa.C.S. §§ 9799.14(c),

9799.15(a)(2).

       On January 29, 2013, Begley filed a petition to preclude his

classification as a Tier II sex offender under SORNA.       The Commonwealth

opposed Begley’s petition.        On January 6, 2014, the trial court denied the

petition.

       Begley filed a timely appeal and a timely statement of matters

complained of on appeal in which he raised the following issues:

              1. Whether the trial court erred in denying
              Defendant's Motion to preclude the Pennsylvania
              State Police from reclassifying him as a sexual
              offender pursuant to [SORNA].

              2. Whether the trial court erred in finding that
              Defendant was being supervised by the Pennsylvania
              Board of Probation or Parole or a county department
              of probation or parole on December 20, 2012, [thus]
              requiring him to comply with the requirements of
              SORNA.


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4
   SORNA has three legislative predecessors: Megan’s Law, which our
Supreme Court held unconstitutional in 1999 in Commonwealth v.
Williams, 733 A.2d 593 (Pa.1999); Megan’s Law II, which was signed into
law in May 2000 and which our Supreme Court found constitutional in
Commonwealth v. Williams, 832 A.2d 962 (Pa.2003); and Megan’s Law
III, which was effective from January 2005 until December 2012.



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              3. Whether the trial court erred in failing to enforce
              the terms of the agreement entered into by the
              Commonwealth and Defendant at the time of
              Defendant's plea, as required by Commonwealth v.
              Hainesworth, [82 A.3d 444 (Pa.Super.2013) (en
              banc)].

Pa.R.A.P. 1925(b) Statement. In response, the trial court filed a Pa.R.A.P.

1925(a) opinion.

       In his brief on appeal, Begley states the same three issues in his

Statement of Questions Involved, but he only provides argument on two

issues: (1) whether the county probation department was still supervising

him on SORNA’s effective date, thus requiring him to register as a sex

offender under SORNA, and (2) whether Hainesworth prohibited the trial

court from ordering him to register as a sex offender under SORNA5        6
                                                                              .

Because both of these issues are questions of law, our scope of review is

plenary, and our standard of review is limited to whether the trial court

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5
  Technically, Begley has waived the third issue (whether the trial court
erred in denying Begley’s petition to preclude his reclassification under
SORNA) by failing to devote any argument to this precise point.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived”). As a practical matter,
however, his two arguments appear to be functionally equivalent to the third
issue. In any event, we will limit our discussion to the two issues that
Begley briefed.
6
  Begley first briefs the Hainesworth issue and then the probation
supervision issue. For the sake of convenience, we will address these
arguments in reverse order.



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committed legal error. Commonwealth v. Benner, 853 A.2d 1068, 1070

(Pa.Super.2004).

        We first examine Begley’s claim that he is not subject to SORNA

because he was no longer under the supervision of the county probation

department on SORNA’s effective date.        We consider this argument a red

herring. It is irrelevant whether Begley was under probationary supervision

on SORNA’s effective date. Instead, Begley is required to register as a sex

offender under SORNA for the simple reason that his original 10-year

registration period was not complete as of SORNA’s effective date.

        SORNA provides:

             The following individuals shall register with the
             Pennsylvania State Police as provided in [this Act]
             and otherwise comply with the provisions of this
             subchapter. . .

             (3) An individual who. . .was required to register
             with the Pennsylvania State Police pursuant to this
             subchapter prior to December 20, 2012, and who
             had not fulfilled the individual's period of registration
             as of December 20, 2012. . .

42 Pa.C.S. § 9799.13(3)(i) (emphasis added). Under both Megan’s Law II

and SORNA, the registration period begins upon release from incarceration.

42 Pa.C.S. § 9795.1 (Megan’s Law II); 42 Pa.C.S. § 9799.15(b)(1)(i)(A)

(SORNA).      In addition, under both Megan’s Law II and SORNA, the

registration period tolls when the defendant is incarcerated in a federal,

state   or   local correctional institution, recommitted to       any of these




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institutions, or sentenced to an additional term of imprisonment. 42 Pa.C.S.

§ 9795.1 (Megan’s Law II); 42 Pa.C.S. § 9799.15(c)(1)(i), (c)(2) (SORNA).

       When SORNA became effective in December 2012, Begley’s original

10-year registration period was not complete, because it did not begin until

March 2004, and because he was re-incarcerated for nineteen months

between 2004 and 2006 for parole/probation violations.              Thus, SORNA

requires him to register as a sex offender for 25 years as a Tier II offender7.

42 Pa.C.S. § 9799.13(3)(i).

       We next consider whether Begley is exempt from SORNA under our

recent decision in Hainesworth.            Hainesworth clearly does not apply to

this case.

       In 2009, the defendant in Hainesworth entered a negotiated guilty

plea to statutory sexual assault, indecent assault and criminal use of a

communication facility.        None of these convictions required registration

under the then-prevailing version of Megan’s Law, 42 Pa.C.S. § 9791.

Moreover, as part of the guilty plea agreement, the Commonwealth

withdrew another charge (aggravated indecent assault) that would have

imposed a registration requirement.            During the guilty plea hearing, the

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7
  Credited   against this 25-year term is Begley’s period of registration from
March 30,    2004 to December 20, 2012, less time that he was incarcerated
for parole   or probation violations. 42 Pa.C.S. § 9799.15(a.1) (prescribing
credit for   time spent on sex offender registry prior to SORNA’s effective
date).



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Commonwealth repeatedly assured the defendant that his guilty plea did not

obligate him to register as a sex offender.    Three years later, one week

before SORNA took effect, the defendant filed a motion seeking to terminate

supervision by the probation department. The trial court denied the petition

to terminate supervision but held that application of SORNA’s registration

requirements to the defendant violated due process.     The Commonwealth

appealed the trial court’s order, and we affirmed, reasoning: “The parties to

this appeal 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.”

Hainesworth, 82 A.3d at 450.

     Significantly, the Hainesworth court reasoned that the defendant’s

plea agreement was different from the plea agreement in Benner, supra.

Hainesworth’s reasoning on this point deserves lengthy recitation:

           At the time of Benner’s plea, a conviction for this
           crime carried a 10–year registration requirement
           under Megan's Law. . .While Benner was on parole, a
           new version of Megan’s Law was enacted by the
           legislature, requiring those convicted of aggravated
           indecent assault and still under correctional
           supervision to be subject to a lifetime registration
           provision. . .On appeal, Benner argued that his plea
           was involuntary and unlawful because he was not
           made aware of the registration requirement by the
           trial court, or, in the alternative, that he should be
           subject to the 10–year requirement in effect at the
           time of his plea. . .Benner conceded that he was
           aware of the 10–year registration requirement at the
           time of his plea. . .This Court concluded, ‘Although
           [Benner]     contends    that    he   relied  on   the

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            representation of the District Attorney that he would
            not be required to register, the record provides no
            substantiation that the District Attorney ever made
            such a representation.’ Thus, we held that the new
            lifetime registration requirement was applicable.

            Benner is easily distinguished from the instant case.
            Benner was always subject to a registration
            requirement, which he was aware of at the time of
            his plea. Benner pled guilty to the very same crime
            that was withdrawn by the Commonwealth in the
            instant case so that Hainesworth would not be
            subject to a registration requirement. Moreover,
            unlike the instant case, the record did not support
            Benner’s contention that he had bargained for non-
            registration as a term of his plea. Accordingly, the
            holding in Benner is inapplicable to the instant case.
            All crimes requiring Hainesworth to register were
            withdrawn by the Commonwealth pursuant to the
            plea bargain, and that bargain was structured for the
            specific purpose of not requiring Hainesworth to
            register. Unlike Benner, Hainesworth has never been
            subject to a registration requirement.

Id., 82 A.3d at 450 (citations omitted).

      In contrast to the prosecution in Hainesworth, the Commonwealth

did not withdraw all charges requiring sex offender registration from

Begley’s plea agreement.    Nor did the Commonwealth promise in Begley’s

plea agreement that he was exempt from registering as a sex offender. To

the contrary, Begley pled guilty to a charge that required him to register as

a sex offender (unlawful contact with a minor), and he agreed in both his

verbal and written guilty plea colloquies that he had to register as a sex

offender. Thus, Begley’s reliance on Hainesworth is misplaced.




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       Indeed, Begley’s position is even weaker than the defendant’s position

in Benner.        The defendant in Benner claimed – without any record

evidence – that the Commonwealth promised that he would not have to

register    as a sex offender.            Here, it is beyond   dispute   that   the

Commonwealth informed Begley at the time of his guilty plea of his duty to

register as a sex offender, and that Begley agreed to this condition.

       In short, Begley agreed as part of his guilty plea in 2002 to register as

a sex offender for 10 years under Megan’s Law II, and his registration period

was not complete when SORNA took effect in 2012.           As a result, the trial

court correctly determined that Begley must register under SORNA as a Tier

II offender.

       Order affirmed.         Commonwealth’s motion to supplement record

granted8.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014
____________________________________________


8
  The Commonwealth moved to add to the record a letter from the
Pennsylvania State Police to Begley advising him of his requirement to
register under SORNA. We grant this motion pursuant to our authority to
supplement the record under Pa.R.A.P. 1926.



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