J-S67045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KYLE MATTHEW SAUL,

                            Appellant                 No. 815 MDA 2015


                     Appeal from the Order April 13, 2015
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0001262-2011


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 21, 2016

        Appellant, Kyle Matthew Saul, appeals from the order of April 13,

2015, denying his “Petition to Enforce Specific Terms and Conditions of Plea

Agreement and to Avoid Retroactive Application of SORNA[1] Registration

Requirements.” For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history from the trial

court’s July 8, 2015 opinion.

              On July 7, 2011, [Appellant], who was [eighteen] at the
        time, entered the bedroom of the victim [his stepsister], a
        [fourteen]-year-old girl and requested that she perform a sex act
        with him.     When she repeatedly refused his advances,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Sex Offender Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-
9799.19.
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     [Appellant] shut her door, blocking it with his body. He told her
     that the only way to prevent him from committing suicide was to
     engage in a sex act with him. The victim pushed [Appellant]
     away several times, but he succeeded in pushing her onto her
     bed. He exposed himself, "grinding" on the victim, and then
     forced her to manually stimulate him until he ejaculated on her.

           In July [] 2011, [Appellant] was arrested and charged with
     burglary, unlawful restraint, indecent exposure, corruption of
     minors and three counts of indecent assault. On October 19,
     2011, the Lebanon County District Attorney’s Office offered
     [Appellant] a [p]lea [a]greement in which it agreed to withdraw
     the burglary charge in exchange for [Appellant’s] open guilty
     plea as to the other counts. The guilty plea colloquy stated that
     it was “subject to standard sex offender conditions.” On May 23,
     2012, [the trial court] accepted [Appellant’s] guilty plea under
     the terms of this agreement. One of the indecent assault counts
     was a misdemeanor of the first degree that subjected
     [Appellant] to a [ten]-year registration requirement under
     Pennsylvania’s then—current version of Megan’s Law. . . .

           After sentencing on December 20, 2012, Megan’s Law was
     replaced with SORNA. . . . By its terms, any individual who was
     then being supervised by the board of probation or parole was
     subject to its provisions. . . . [Appellant] was released from
     prison on parole on August 24, 2014. Upon his release, he
     signed a registration notification document that stated that,
     since one of his indecent assault convictions was a misdemeanor
     of the first degree, he was classified as a Tier ll offender and
     would be required to register for [twenty-five] years.

            On November 11, 2014, [Appellant] filed a “Petition to
     Enforce Specific Terms and Conditions of Plea Agreement [and to
     Avoid     Retroactive    Application   of   SORNA    Registration
     Requirements],” alleging that the State Board of Probation and
     Parole violated his plea agreement when it sought to impose the
     [twenty-five]-year registration period. Because the gravamen of
     [Appellant’s p]etition was that his registration requirement
     directly contradicted his negotiated [p]lea [a]greement, [the trial
     court] reasoned that conditions of his sentence would be illegal if
     the subsequent registration requirements deprived [Appellant] of




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        the benefit of his bargain. Therefore, [the trial court] treated the
        [p]etition as one challenging the legality of his sentence under
        the PCRA.[2]

               [The trial court] held a factual hearing on April 10, 2015 to
        try to discern whether the original registration requirement was
        actually negotiated—for. At the hearing, [Appellant’s] counsel
        testified that he had explained to [Appellant] what “standard sex
        offender conditions” was commonly understood to mean at the
        time—that [Appellant] would be required to register for [ten]
        years. In addition, the Registration Notification contained a
        paragraph entitled, “10 YEAR REGISTRATION NOTICE.” The
        guilty plea colloquy also stated that [Appellant] would be subject
        to registration requirements for [ten] years. [Appellant] testified
        that the limited registration requirement was as important to
        him as the other aspects of the plea bargain.

              However, [the assistant district attorney] testified that the
        plea “had nothing to do with the Megan’s Law registration
        requirements.” Indeed, she stated that she did not even have
        the authority to offer a cap on the length of time to which a
        defendant could be subjected to registration requirements.
        Later, in response to our direct inquiry, [Appellant’s counsel]
        confirmed that the length of the registration requirement was
        never a part of any plea agreement with [Appellant]. Most
        important, the [assistant district attorney] advised [Appellant] at
        sentencing that she believed the law would be changed to create
        a much longer registration requirement. As it turned out, [her]
        prediction was accurate.

              After listening to all testimony, we found that there was no
        bargained—for exchange with respect to the length of
        registration requirements.        In other words, the length of
        [Appellant’s] registration requirement was not part of his
        negotiated plea deal.        Because of this and the fact that
        [Appellant] filed his [p]etition more than [sixty] days after he
        learned of the [twenty-five]-year registration requirement, we
        declined to award [Appellant] relief under the PCRA, concluding
        that his sentence was not illegal.

____________________________________________


2
    42 Pa.C.S.A. §§ 9541-9546.



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              In   announcing     [the]   decision,   [the   trial  court]
       acknowledged the conflict in present case law, and stated that
       [Appellant] might have grounds for relief from the retroactive
       application of SORNA via a mandamus action. As [the trial court
       was] (and remain[s]) unaware of any procedure that would
       enable [Appellant] to file a petition captioned to his criminal
       docket to preclude such retroactive application, [it] dismissed his
       [p]etition without prejudice. [Appellant] has appealed [the trial
       court’s] decision, alleging three counts of error.[3]

(Trial Court Opinion, 7/08/15, at 2-5) (record citations omitted).

       On appeal, Appellant raises the following questions for our review.

              1.    Whether [Appellant’s p]etition challenged the
       “legality” of his original sentence, and therefore, should have
       been considered a request for relief under the PCRA and
       examined under the strict requirements of the PCRA?

            2.   [Appellant’s] appeal presents an issue which has not
       yet been ultimately decided by an appellate court within the
       Commonwealth of Pennsylvania, namely:

                     Whether [Appellant’s p]etition for specific
              performance of the original plea agreement, which
              was filed in his criminal case, should have been
              heard and fully considered by the trial court outside
              of the mandates of the PCRA statute?           Stated
              differently, whether [Appellant’s p]etition was
              properly filed in his criminal case, or was a writ of
              mandamus the only proper procedural vehicle to
              challenge the retroactive application of SORNA?

             3.   Whether, under the totality of the circumstances
       surrounding [Appellant’s] negotiated plea agreement, and after
       construing any ambiguity in a term of agreement against the
       Commonwealth, the length of [Appellant’s] registration
____________________________________________


3
  On May 11, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On
May 29, 2015, Appellant filed his Rule 1925(b) statement. On July 8, 2015,
the trial court filed an opinion. See Pa.R.A.P. 1925(a).



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      requirement was a bargained for term of the plea agreement
      between the parties and, if so, whether the retroactive
      application of SORNA constitutes a breach of that agreement?

(Appellant’s Brief, at 4) (emphasis in original).

      In his first claim, Appellant contends that the trial court erred in

treating his petition as a request for relief under the PCRA. (See Appellant’s

Brief, at 14-15).      We agree, but decline to remand the matter because

Appellant has not demonstrated that he is entitled to relief on the underlying

merits of his claim.

      In Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014),

appeal denied, 97 A.3d 744 (Pa. 2014), this Court held that claims that the

Commonwealth had violated a plea agreement by the retroactive application

of SORNA did not fall within the ambit of the PCRA. See Partee, supra at

247. However, despite this, in Partee, we affirmed the decision of the trial

court after addressing the merits of the appellant’s underlying contention.

See id. at 247-50; see also Commonwealth v. Bundy, 96 A.3d 390, 394-

96 (Pa. Super. 2014) (holding trial court erred in treating appellant’s

challenge to retroactive application of SORNA as PCRA petition but reversing

on merits rather than because of procedural error).

      In the instant matter, the trial court held an evidentiary hearing on the

matter.    (See N.T. Hearing, 4/10/15, at 2-55).           In its opinion, it

acknowledged its error in treating the petition as a PCRA petition and

decided the underlying claim on the merits. (See Trial Ct. Op., at 1). In


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reaching its decision, it did not cite to PCRA decisions, but rather adopted

the reasoning of those decisions of this Court that have analyzed these

petitions under the principles of contract law. (See id. at 6-9). While the

trial court briefly alludes to the fact that, under the PCRA, the petition was

untimely, it did not dismiss it on that basis. (See id.; see also Trial Court

Order, 4/13/15, at 1-2 ¶¶ C-D).

      Moreover, we note that Appellant’s argument on this issue consists of

citations to case law stating that his petition should not have been treated as

a PCRA petition, combined with a conclusory statement that the trial court

erred in denying “the [p]etition after applying the PCRA standards.”

(Appellant’s Brief, at 14-15). Nowhere does Appellant explain how the trial

court’s error harmed him or how the result would have been different if the

trial court had treated the petition under a different standard.    (See id.).

Accordingly, we find that the trial court’s error in treating Appellant’s

pleading as a PCRA petition was harmless and we decline to reverse its

decision because of this error.

      In his second claim, Appellant alleges that the trial court erred in

concluding “that [Appellant’s p]etition was procedurally defective because it

was filed in his criminal case, and the only way [Appellant] could obtain the

relief he requested in his [p]etition was by filing a writ of mandamus.” (Id.,

at 15). The record does not support Appellant’s contention.




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      In both the order denying Appellant’s petition and in its Rule 1925(a)

opinion, the trial court noted a Commonwealth Court decision, Coppolino v.

Noonan, 102 A.3d 1254, 1263 (Pa. Cmwlth. 2014), affirmed, 2015 WL

7433285 (Pa. November 20, 2015), which held that a writ of mandamus can

be a means of challenging the retroactive application of SORNA. (See Trial

Ct. Order, at 2 ¶ E; Trial Ct. Op., at 10). The trial court then stated:

            [the trial court] acknowledge[s] that a mandamus action is
      an appropriate way to pursue the relief [Appellant] seeks. In
      [the trial court’s o]rder, [it] sought to clarify as much, stating
      that [the trial court was] in no way limiting [Appellant] from
      pursuing relief via a mandamus action. However a writ of
      mandamus is a civil remedy, and there is simply no way that
      [the trial court] could address such a claim captioned to his
      criminal case.

(Trial Ct. Op., at 10).   As noted above, the trial court decided Appellant’s

claim on the merits. (See id. at 6-9; see also Trial Court Order, at 1-2 ¶¶

C-D). There is nothing in this dictum that demonstrates that the trial court

denied the petition because it was not filed as a writ of mandamus or was

filed inappropriately in the criminal case. Appellant’s claim lacks merit.

      In his final claim, Appellant argues the trial court erred in finding that

his petition lacked merit and in holding that the ten-year registration

requirement was not a term of his plea agreement. (See Appellant’s Brief,

at 17-20). Prior to reaching the merits of Appellant’s claim, we must decide

if it is properly before us.   Pennsylvania Rule of Appellate Procedure 1925

provides that issues that are not included in the Rule 1925(b) statement or

raised in accordance with Rule 1925(b)(4) are waived.            See Pa.R.A.P.

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1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998), superseded by rule on other grounds as stated in Commonwealth v.

Burton, 973 A.2d 428, 430 (Pa. Super. 2009).

      Here, in his Rule 1925(b) statement, Appellant alleged that the trial

court erred in concluding that his petition challenged the legality of

sentence; that the trial court erred in treating the petition as a PCRA

petition; and that the trial court erred in declining to “hear/consider”

Appellant’s petition because it was filed as part of the criminal case rather

than as a mandamus action. (See Statement of Errors on Appeal, 5/29/15,

at 1). Appellant did not raise the issue that the trial court erred in finding

that the ten-year registration requirement was not a term in his plea

agreement.    Thus, because Appellant did not raise this issue in his Rule

1925(b) statement, he waived it. See Pa.R.A.P. 1925(b)(4)(vii).

      Moreover, the claim is without merit. Our review is governed by the

following principle: “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.” Commonwealth

v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013), appeal denied, 95

A.3d 276 (Pa. 2014) (quotation marks and citation omitted). “Hainesworth

and Partee, stand for the proposition that this Court will specifically enforce

parties’ plea bargains.” Commonwealth v. Giannantonio, 114 A.3d 429,

435 (Pa. Super. 2015).


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       In the instant matter, unlike in Hainesworth4 and Partee,5 there is

no evidence that Appellant’s guilty plea was negotiated or structured so that

he would only be required to register for a ten-year period.           The record

shows that Appellant entered an open guilty plea, the only bargained—for

term was that the Commonwealth would withdraw the burglary charge, a

charge that did not impact Appellant’s status a sex offender.           (See N.T.

Sentencing,     5/23/12,      at   2,   16).     Moreover,   at   sentencing,   the

Commonwealth specifically warned Appellant that, because of the pending

changes to the law, it was likely that he would be required to register for

longer than ten years.        (See id. at 17).     Despite this warning, Appellant

never sought to withdraw his guilty plea, and did not file a direct appeal

challenging the validity of his plea.            We agree with the trial court’s

conclusion that there was:

       no evidence supporting [Appellant’s] claim that he bargained for
       limited registration requirements.          Despite [Appellant’s]
       assertion that registration limits were important to him in
       agreeing to the plea deal, there was nothing in the plea
       agreement evincing that the limited registration requirements
       were negotiated. [The trial court’s] conclusion finds support in
       the testimony of the [assistant district attorney] that the length

____________________________________________


4
  In Hainesworth, as part of the plea bargain, the Commonwealth
specifically withdrew the charges that would have obligated the defendant to
register as a sex offender. See Hainesworth, supra at 448-49.
5
  Likewise, in Partee, the plea agreement was specifically structured so that
the defendant would be subject to a shorter registration period. See
Partee, supra at 249.



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      of registration requirements had nothing to do with the plea
      deal.

                                     *     *      *

            In fact the record suggests that [Appellant] was on notice
      that the laws were probably going to change.

(Trial Ct. Op., at 8-9). We agree that no relief is due.

      Appellant has not demonstrated through credible evidence that, based

upon his plea agreement, he was not required to register pursuant to

SORNA.     See Giannantonio, supra at 435-36.           The trial court properly

denied Appellant’s “Petition to Enforce Specific Terms and Conditions of Plea

Agreement and to Avoid Retroactive Application of SORNA Registration

Requirements.”        Thus, even if Appellant had not waived the issue, he is not

entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2016




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