J-A11028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DEXTER WILLIAMS,

                        Appellant                  No. 1995 EDA 2014


               Appeal from the Order Entered June 11, 2014
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004567-2002


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED MAY 22, 2015

     Appellant, Dexter Williams, appeals from the order dated June 11,

2014 denying Appellant’s petition for exemption from the registration

requirements of the Sex Offender Registration and Notification Act (SORNA),

42 Pa.C.S.A. § 9799.10, et seq. Upon review, we affirm.

     We briefly summarize the facts and procedural history of this case as

follows. On May 15, 2002, police arrested Appellant and the Commonwealth

charged him with various sexual offenses including, inter alia, rape,

involuntary deviate sexual intercourse, sexual assault, indecent assault, and

corrupting the morals of a child. On December 4, 2002, Appellant entered

into a plea agreement and pled guilty to one count of sexual assault. The

Commonwealth agreed to nolle pros the remaining charges.        On March 3,

2003, pursuant to the plea agreement, the trial court sentenced Appellant to
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three to six years of incarceration.            The trial court further ordered that

Appellant was required to register as a sex offender for ten years following

his release from prison.

       On December 20, 2012, SORNA became effective and Appellant was

notified that his sexual assault conviction was now classified as a Tier III

offense that subjected him to lifetime sex offender registration. On May 3,

2013, Appellant filed a petition to enforce the plea agreement and/or a writ

of habeas corpus, requesting exemption from the applicability of SORNA’s

lifetime registration requirements.            Appellant argued that, as part of his

negotiated plea agreement, the Commonwealth agreed to a 10-year period

of registration as a sex offender. Both parties submitted legal memoranda

and the trial court held an evidentiary hearing on June 9, 2014. By order

entered on June 11, 2014, the trial court denied relief. This timely appeal

resulted.1

       On appeal, Appellant presents the following issues for our review:

         1. Whether the lower court erred as a matter of law by
            finding the updated 2012 SORNA lifetime registration
            requirements apply retroactively to Appellant in
            contradiction to the registration terms in his
            bargained-for plea agreement.

____________________________________________


1
  On July 8, 2014, Appellant filed a notice of appeal. On July 22, 2014, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
August 11, 2014. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on December 2, 2014.



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        2. Whether the lower court erred as a matter of law by
           finding the retroactive application of lifetime registration
           requirements did not violate the ex post facto clauses of
           the United States and Pennsylvania constitutions.


Appellant’s Brief at 4 (suggested answers omitted; italics supplied).

      In his first issue presented, Appellant contends that the trial court

erred as a matter of law by determining that the new SORNA registration

requirements, which retroactively required lifetime registration as a sex

offender, was not a breach of his negotiated plea agreement. Id. at 9-15.

More specifically, Appellant argues:

        Appellant chose to plead guilty because his attorney crafted
        a negotiated plea agreement with the district attorney that
        limited his reporting requirement to ten years. Appellant
        bargained for the reduced reporting requirement.          He
        testified that he rejected two prior plea offers without
        reduced reporting. He considered the reduced reporting
        requirement to be the most significant aspect of the plea
        agreement. The registration period was explicitly discussed
        during sentencing. Therefore, the registration period was a
        term of the agreement as reasonably understood by the
        parties.


Id. at 11.   Appellant argues that the trial court erred in determining he was

“not entitled to relief because he was subject to lifetime reporting

requirements when he was sentenced[,]” because the trial court must

“honor the terms of the plea agreement.” Id. at 12. Appellant asserts that

the trial court mistakenly relied on our Supreme Court’s decision in

Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008), because that case




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dealt with withdrawal of a guilty plea, whereas, here, Appellant was

attempting to enforce his guilty plea agreement. Id. at 14.

        We apply the following standard of review.                 “Although a plea

agreement occurs in a criminal context, it remains contractual in nature and

is to be analyzed under contract-law standards.” Commonwealth v.

Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010).                     “Where a plea

agreement has been entered of record and accepted by the trial court, the

state   is   required   to   abide   by   the   terms   of   the   plea   agreement.”

Commonwealth v. Mebane, 58 A.3d 1243, 1246 (Pa. Super. 2012), citing

Santobello v. New York, 404 U.S. 257 (1971). We must look to “what the

parties to this plea agreement reasonably understood to be the terms of the

agreement.”      Commonwealth v. Partee, 86 A.3d 245, 248 (Pa. Super.

2014) (citation omitted).        “We look to the totality of the surrounding

circumstances and any ambiguities in the terms of the plea agreement are

construed against the Commonwealth.” Id. (citation, internal quotations,

and brackets omitted). “The dispositive question [is] whether registration

was a term of the bargain struck by the parties.” Id. (citation omitted).

        Here, there is no written plea agreement.            However, the certified

record contains the notes of testimony from Appellant’s 2002 guilty plea




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hearing.2 At the beginning of that proceeding, the Commonwealth set forth

the terms of the negotiated plea agreement as such:

         Judge, the agreement that we’ve reached is that [Appellant]
         will plead guilty to Information D, which is a sexual assault
         felony in the second degree. He’s agreed to a three to six
         year term of incarceration in a State Correctional Facility.
         He must also participate in and follow all recommendations
         of a sex offender’s evaluation and a second, psych-sex
         evaluation. He’s also to have no contact with the victim in
         this case, and no contact with any minor unless it is done
         under the supervision of a person who had been approved
         by the parole board and who knows of [Appellant’s]
         conviction. And that’s the extent of it, Judge.

N.T., 12/4/2002, at 3-4.            There was, however, no explicit mention of

registration requirements.

       The trial court then directed defense counsel to review Appellant’s

rights with him. With regard to sexual offender registration, defense counsel

recited and Appellant unequivocally acknowledged:

         All right. If you fail to register and verify your current or
         intended residence and be photographed by the
         Pennsylvania State Police for a ten-year period, [you are]
         committing a felony of the third-degree. It’s a very serious
         matter if you don’t register when you move.

                                *          *        *

         Okay. Now do you understand you’re not being sentenced
         today, you’re actually going to have a psycho-sexual
         evaluation and then we’re going to come back here for
____________________________________________


2
   The Commonwealth erroneously claims, “the actual transcript of the guilty
plea is not part of the court record.” Commonwealth’s Brief at 14. Upon
review of the certified record, however, those transcripts were in fact
included and we rely upon them herein.



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         sentencing?     And, depending on what that evaluation
         reveals, there could be some very strict requirements as far
         as registration. Didn’t I explain that to you?

                            *         *          *
         Okay. Okay. Your Honor, may I just have one moment?
         Thank you. The D.A. had just brought to my attention, I
         had reviewed this with you, but I want to make it more –
         make it more specific with you. Because of the nature of
         the offense, this isn’t an attempt, this is an actual sexual
         assault case, it indicates here that there’s actually a life-
         time requirement to register. So it’s not just ten
         years, it’s a life-time requirement, do you understand
         that, sir?

Id. at 18-19 (emphasis added). Appellant responded on the record that he

understood all of the terms.     At the end of the hearing, the trial court

accepted the plea and deferred sentencing pending a sexual offender

evaluation. Id. at 24.

     In addition, Appellant initialed and signed a guilty plea statement of

rights that was incorporated into the record at the guilty plea hearing. Id.

at 18.    “[A] written plea colloquy can supplement an oral colloquy in

demonstrating a voluntary plea.”     Commonwealth v. Bedell, 954 A.2d

1209, 1216 (Pa. Super. 2008).         In an addendum to the guilty plea

statement, Appellant acknowledged, by initialing, the following paragraphs:

     1. By placing my initials on the line provided next to each
        paragraph in this document, I agree that I have read,
        understand and my lawyer had explained to my satisfaction
        the content and meaning of each paragraph in this
        document.

         If I plead guilty or nolo contendere to sexual assault
         [(handwritten)] a sexually violent offense(s) as stated in 42
         Pa.C.S. 9795.1:

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                               *          *           *

     9. I must register and verify my current residences or intended
        residences with the Pennsylvania State Police for my
        lifetime if:

                               *          *           *

        (B) I plead guilty or nolo contendere to committing the
        crime[] of [….] Sexual Assault, 18 Pa.C.S. [§] 3124.1[.]

Addendum to Guilty Plea Statement, 12/4/2002, at ¶¶ 1, 9.

      It was only at sentencing that the Commonwealth and defense counsel

stated that the 10-year period of registration for sexual offenders was

applicable.   At sentencing, the Commonwealth stated “he’s got to register

with [the] Pennsylvania State Police for the next 10 years based on his

conviction for sexual assault.” N.T., 3/3/2003, at 19-20. Defense counsel

agreed: “It’s not a lifetime obligation. It’s a ten-year obligation.” Id. at 20.

The trial court then stated:

        If you fail to inform your residence – your verification
        requirements of your residency sir. Then you must also be
        photographed during the 10-year period. If you fail to
        perform your obligations under this [l]aw you will be
        committing a [f]elony in the third-degree.[…]

Id. at 23. However, the following line of inquiry followed:

        The Court:                 He’s     not    subject   to   lifetime
                                   registration?

        [Defense]:                 No he’s not.

        [Commonwealth]:            Correct.

Id. at 24.

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      Based upon all of the foregoing, we conclude that the exchange

between the trial court, the Commonwealth, and defense counsel regarding

the 10-year registration period was not part of the agreed upon plea

negotiations.     At the plea hearing, Appellant acknowledged that he was

facing lifetime reporting as a sex offender. He acknowledged further that he

was pleading guilty to sexual assault, a conviction that required lifetime

registration. Thus, a 10-year reporting provision did not contractually bind

the Commonwealth. The trial court accepted the plea agreement and

deferred sentencing.      It was only at sentencing that both parties and the

trial court interjected a 10-year requirement. Thus, we have no hesitancy in

finding that, while an error may have occurred at sentencing, the erroneous

reference to a 10-year registration was not a part of the original plea

bargain.    In fact, it was the Commonwealth, not Appellant, that faced the

loss of the original bargain when the trial court erroneously sentenced

Appellant to the 10-year period of registration. Accordingly, Appellant’s first

issue lacks merit.

      Moreover, we note that in structuring plea agreements, when sex

offender registration is material to negotiations, the Commonwealth will

typically nolle pros the more serious charges that compel a defendant to

register for life to accomplish the parties’ intentions:


           While it was not an explicit term of the negotiated plea, it is
           apparent that [Partee’s] negotiated plea agreement was
           structured so that he would only be subject to a ten-year


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        rather than a lifetime reporting requirement[.] The two
        charges carrying a lifetime registration requirement were
        withdrawn by the Commonwealth as part of the
        negotiations, leaving Appellant subject to the less onerous
        ten-year reporting requirement then imposed on indecent
        assault. []Appellant arguably would be entitled to the
        benefit of that bargain.

Partee, 86 A.3d at 249. Here, effective July 10, 2000 and controlling at the

time of Appellant’s plea, sex offender reporting requirements required

lifetime reporting. See 42 Pa.C.S.A. § 9795.1(b)(2) (July 10, 2000). In this

case, the Commonwealth charged Appellant with less serious crimes,

including inter alia indecent assault and corrupting the morals of children.

However, unlike in Partee, there is no evidence that the Commonwealth in

this case agreed to withdraw the most serious charges in negotiating a less

onerous 10-year reporting requirement. Here, the Commonwealth nolle

prossed the most serious charges including rape and involuntary deviate

sexual intercourse. However, the Commonwealth did not agree to nolle pros

the charge of sexual assault, which as explained in detail supra, carried

lifetime registration under both SORNA and the prior statutory scheme. Had

the Commonwealth intended for Appellant to be subject to a 10-year period

of registration, it could have structured the agreement differently to

accomplish that goal, but it did not. For this additional reason, we conclude

that Appellant failed to show he negotiated a plea agreement for a 10-year

period of registration.




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        In his second issue presented, Appellant argues that the retroactive

application of SORNA impeded on his contract and, therefore, “is a violation

of the ex post facto laws of Pennsylvania and United States Constitutions.”

Appellant’s Brief at 16. Having already determined that registration was not

a negotiated term of the bargain, this issue is moot. Moreover, as we noted,

Appellant was subject to lifetime registration at the time he entered his plea.

See 42 Pa.C.S.A. § 9795.1(b)(2). SORNA took effect December 20, 2012

and Appellant was again subject to a period of lifetime registration as sexual

assault was classified as a Tier III offense. 42 Pa.C.S.A. § 9799.14(d)(5);

42 Pa.C.S.A. § 9799.15(a)(3). “When performing an ex post facto analysis a

court    is   concerned   solely   with   whether   a   statute   assigns   more

disadvantageous criminal or penal consequences to an act than did the law

in place when the act occurred.” Commonwealth v. Rose, 81 A.3d 123,

129 (Pa. Super. 2013) (internal citation and quotations omitted). Here, the

registration period never changed. Thus, Appellant’s second issue fails.

        Order affirmed.

        Judge Wecht joins this memorandum.

        President Judge Emeritus Ford Elliott notes dissent.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2015




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