J-A26044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TAURUS KENYATA GILBERT

                            Appellant                    No. 287 MDA 2014


                Appeal from the Order Entered January 15, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0002038-2003


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED FEBRUARY 10, 2015

        Appellant, Taurus Kenyata Gilbert, appeals from the January 15, 2014

order denying his motion requesting an order indicating that Appellant is not

subject to the registration requirements of the Sex Offender Registration and

Notification Act (“SORNA”).1           Finding no merit to Appellant’s claims on

appeal, we affirm.

        On December 10, 2003, Appellant pled guilty to indecent assault,

complainant less than thirteen years of age,2 and corruption of minors.3 The

trial court sentenced Appellant to a five-year term of probation on the

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1
    See 42 Pa.C.S. § 9799, et seq.
2
    18 Pa.C.S. § 1326(a)(7).
3
    18 Pa.C.S. § 6301(a).
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indecent assault charge and a consecutive five-year term of probation on the

corruption of minors charge, and required Appellant to pay a fine of $200

and the costs of prosecution. As a term of Appellant’s plea, he was required

to register as a sex offender for a period of ten years pursuant to the version

of Megan’s Law applicable at the time of his plea, 42 Pa.C.S. § 9795.1.

Appellant testified at his guilty plea hearing that he signed the guilty plea

slip, the guilty plea colloquy, the acknowledgement of notification of

registration requirements under Megan’s Law, and the plea agreement.

N.T., 12/10/03, at 3.

       Appellant’s sentence was scheduled to expire on December 10, 2013.

On November 4, 2011, the court granted Appellant’s motion for termination

of probation.    His ten-year registration requirement under Megan’s Law,

however, did not expire until December 10, 2013.

       On December 20, 2011, the legislature amended SORNA. The relevant

amendments became effective December 20, 2012 and increased the ten-

year registration requirement for an indecent assault conviction where the

complainant was less than thirteen years of age to a lifetime registration

requirement.     42 Pa.C.S. §§ 9799.14(d)(8), 9799.15(a)(3) (listing 18

Pa.C.S. § 3126(a)(7) as a tier III crime and requiring those convicted of tier

III crimes to register for life). In   December   2012,   Appellant   received

notification he was required to register as a sex offender for the remainder

of his life.




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        Following receipt of this notification, in January 2014, Appellant filed a

motion requesting an order indicating that Appellant is not subject to the

registration requirements of SORNA. The Commonwealth filed a response,

and on January 15, 2014, the trial court denied Appellant’s motion.          This

timely appeal followed.4

        Appellant raises the following three issues on appeal:

        Did the lower court err in denying Appellant’s [m]otion to
        [r]equest an [o]rder [i]ndicating that [Appellant] is [n]ot
        [s]ubject to the [r]egistration [r]equirements of SORNA when
        the application of SORNA to Appellant violates the provisions of
        the negotiated plea agreement entered into between Appellant
        and the Commonwealth?

        Did the lower court commit error in denying Appellant’s [m]otion
        to [r]equest an [o]rder [i]ndicating that [Appellant] is [n]ot
        [s]ubject to the [r]egistration [r]equirements of SORNA when
        the application of SORNA to Appellant violates his constitutional
        rights to due process of law and fundamental fairness under both
        the Constitution of the Commonwealth of Pennsylvania and the
        United States Constitution?

        Did the lower court err in denying Appellant’s [m]otion to
        [r]equest an [o]rder [i]ndicating that [Appellant] is [n]ot
        [s]ubject to the [r]egistration [r]equirements of SORNA when
        the application of SORNA to Appellant violates the prohibitions
        against ex post facto laws contained in the Constitution of the
        Commonwealth of Pennsylvania and the United States
        Constitution?

Appellant’s Brief at 7.

        Appellant first claims that SORNA’s new registration requirements do

not apply to him because the ten-year registration requirement was a
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4
    Both Appellant and the trial court have complied with Pa.R.A.P. 1925.



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negotiated term of his plea agreement. Id. at 15-17. Specifically, Appellant

argues that by signing a “Notification of Registration Requirements for

Offenders Pursuant to Title 42 PACS, Section 9751.1” indicating that he

understood that he was required to register with the Pennsylvania State

Police for a period of ten years, Appellant agreed to be subject to a ten-year

sex offender registration period as a term of his plea. Id. at 16. He claims,

“[t]he ten-year registration was a specific term that [Appellant] agreed to

pursuant to his negotiated plea, and fundamental fairness requires this term

to be specifically enforced.” Id. Alternatively, Appellant argues that even if

the ten-year registration period was not a clear term of his plea agreement,

based on the totality of the circumstances, the length of Appellant’s

registration is an ambiguous term of the agreement which should be

construed against the Commonwealth. Id.

      As this Court recently reiterated

      [i]n determining whether a plea agreement has been breached,
      we look to what that parties to the 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 any 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) (citations omitted).

      SORNA’s 2012 amendments, including the increased registration term,

apply to individuals “required to register with the Pennsylvania State Police

pursuant to this subchapter prior to December 20, 2012, and who had not

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fulfilled the individual’s period of registration as of December 20, 2012.”5 42

Pa.C.S. § 9799.13(3). Because he had not completed his ten-year period of

registration as of December 20, 2012, SORNA’s amendments, including the

increased registration period, applied to Appellant.

       We disagree with Appellant’s contention that SORNA’s new registration

requirements do not apply to him. Our review of the record indicates that

registration for only ten years was not a term of Appellant’s plea agreement.

Therefore, Appellant is subject to SORNA’s amendments.

       To explain our decision, it is helpful to contrast this case with our

decision in Hainesworth, supra.                In Hainesworth, this Court found the

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

[the defendant] did not have to register as a sex offender.” Hainesworth,

82 A.3d at 450. At the defendant’s guilty plea hearing, the Commonwealth

stated it was not a Megan’s Law case. Id. at 448. This Court found:

       The trial court and Hainesworth were assured no less than twice
       by the Commonwealth that the plea did not obligate Hainesworth
       to register as a sex offender. Moreover, these statements were
       made as part of the Commonwealth’s recitation of the terms of
       the plea agreement, which were laid out carefully on the record.
       It is unambiguous from the record that both parties to this
       appeal, and the trial court, understood that a registration
       requirement was not included as a term of Hainesworth’s plea
       agreement.
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5
  The General Assembly again amended SORNA in March 2014, and made
the amendments retroactive to December 20, 2012. The March 2014
amendments do not affect this appeal, because Appellant registered as a sex
offender prior to December 20, 2012. See 42 Pa.C.S. § 9799.13.



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Id. We opined that “the plea agreement appear[ed] to have been precisely

structured so that [the defendant] would not be subjected to a registration

requirement.”   Id.   The Commonwealth charged the defendant with ten

counts, but withdrew the counts that would have required Megan’s Law

registration. Id. We concluded that non-registration as a sex offender was

a term of the plea bargain and found the trail court correctly required

specific enforcement of that bargain. Id. at 448, 450.

     Unlike the defendant in Hainesworth, Appellant did not bargain for a

ten-year registration term. Rather, at the time of his guilty plea the charge

of indecent assault, complainant less than thirteen years of age, required a

ten-year registration term.    There is no evidence in the record, and

Appellant has not brought any to this Court’s attention, that the parties

structured the guilty plea to avoid a longer registration requirement.

Although the parties agreed at sentencing that Megan’s Law required

Appellant to register for a ten-year period, this was not a term of the plea

agreement. Thus, Appellant must comply with the SORNA amendments and

register for his lifetime.    Hainesworth, 82 A.3d at 450; see also

Commonwealth v. Nase, 2014 WL 4415061 (Pa. Super. Sept. 9, 2014)

(holding defendant not required to register as a sex offender for an

additional fifteen years where defendant expressly agreed to plead guilty to

lesser charges and register under Megan’s Law for a ten-year period);

Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004) (where

record at guilty plea and sentencing was silent as to whether defendant was

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required to register under Megan’s Law, post-sentence amendment requiring

lifetime registration applied to defendant, even though, version of Megan’s

Law in effect at sentencing only required registration for ten years);

Commonwealth v. Miller, 787 A.2d 1036 (Pa. Suoer. 2001) (requiring

registration where offense and conviction occurred prior to Megan’s Law

effective date).

       In Appellant’s last two issues, he claims that application of SORNA’s

lifetime registration requirement violates his constitutional rights to due

process and fundamental fairness under the Due Process Clauses of the

United States Constitution and the Pennsylvania Constitution, and violates

the prohibitions against ex post facto laws contained in the United States

and Pennsylvania Constitutions.           Appellant’s Brief at 12-14, 17-25; U.S.

Const. Art. 1, § 10; U.S. Const. Amend. V, XIV; Pa. Const. Art. I, § 1, 9, 11,

17.

       Whether a due process or ex post facto violation exists presents a

question of law, for which this Court’s standard of review is de novo.

Commonwealth v. Perez, 97 A.3d 747, 750 (Pa. 2014).

       The Pennsylvania Supreme Court found Megan’s Law II 6 registration,

counselling, and notification requirements did not violate due process. See

Commonwealth v. Williams, 823 A.2d 962, 986 (Pa. 2003). Further, this

____________________________________________


6
 Act of May 10, 2000, P.L. 74, No. 18 (as amended, 42 Pa.C.S. §§ 9791-
9799.7)



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Court has held that, because the registration requirement pursuant to

Megan’s Law and SORNA is a collateral consequence of a plea agreement,

due process does not require that the court inform the defendant of the

registration requirement at the time of the plea. See Commonwealth v.

McDonough, 98 A.3d 1067, 1071 (Pa. Super. 2014); Benner, 853 A.2d at

1070-71.

      Notwithstanding Appellant’s argument to the contrary, our case law is

clear—application of SORNA registration requirements are not violative of a

defendant’s due process rights. Accordingly, Appellant’s claim to this effect is

without merit.

      Finally, Appellant maintains application of SORNA is a violation of the

ex post facto clauses of the United States and Pennsylvania Constitutions.

Appellant’s Brief at 17-25. This claim likewise lacks merit. This Court has

considered, and rejected, similar ex post facto challenges to various versions

of SORNA.     See Perez, 97 A.3d at 760; Commonwealth v. Ackley, 58

A.3d 1284, 1286-87 (Pa. Super. 2012) (holding notification provision of

Megan’s Law III did not violate ex post facto clause); Benner, 853 A.2d at

1071 (discussing Commonwealth v. Flemming, 801 A.2d 1234 (Pa.

Super. 2002); Williams, 823 A.2d 962; Commonwealth v. Gaffney, 733

A.2d 616, 621 (Pa. 1999).

      Therefore, based upon the foregoing well-settled principles, Appellant’s

due process and ex post facto claims fail.      For this reason, and because

Appellant did not demonstrate that the requirement that he register as a sex

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offender was a negotiated term of his plea agreement, Appellant is not

entitled to relief. See Nase, 2014 WL 4415061 at *7; Hainesworth, 82

A.3d at 450.

     Order affirmed.

     Judge Mundy joins in this memorandum.

     Judge Bowes files a concurring/dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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