J-S28033-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
             Appellant                   :
                                         :
      v.                                 :
                                         :
TANYA MARIE BROWN,                       :
                                         :
            Appellee                     :   No. 1506 WDA 2016

             Appeal from the Order Entered September 6, 2016
              in the Court of Common Pleas of McKean County
            Criminal Division at No(s): CP-42-CR-0000008-2004

BEFORE:     OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 07, 2017

      The Commonwealth of Pennsylvania appeals from the order entered on

September 6, 2016, in which the trial court determined that the registration

obligation imposed upon Appellee Tanya M. Brown (Brown) pursuant to the

Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.

§ 9799.10-9799.41, terminated in October of 2015. After review, we vacate

the court’s order.

      On November 12, 2003, a complaint was filed against Brown charging

her with one count of incest, graded as a felony of the second degree; one

count of endangering the welfare of a child (EWOC), graded as a

misdemeanor of the first degree; one count of corruption of minors, graded

as a misdemeanor of the first degree; and two counts of false reports to law

enforcement authorities, graded as misdemeanors of the second degree. On



*Retired Senior Judge assigned to the Superior Court.
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April 22, 2004, Brown entered into a negotiated plea agreement, the terms

of which were as follows.

     Pursuant to Pa.R.Crim.P.[] Rule 590 the above named defendant
     having been previously arraigned and fully advised of [her]
     statutory, procedural and constitutional rights and having had
     the right to discuss those with [her] attorney or having waived
     those rights, hereby agrees to the following plea to be entered at
     the next available court date.

     OFFENSE(S): [Defendant] to plead guilty to count 1, incest (F2),
     18 Pa.C.S. § 4302; and, count 2, [EWOC], Pa.C.S. § 4304 (M1).
     All other counts to be dismissed in consideration of plea. —
     Megan’s Law.

     SENTENCE RECOMMENDATION: (binding): Aggregate sentence
     of no more than 6 months to 2 years less a day. Costs and fines
     as set by the court. Mental health [evaluation] and follow
     through.    Megan’s Law offense and requirements (sexually
     violent offender [evaluation]). No contact with victim. No
     unsupervised contact with [juvenile] males under the age of 18
     unless appropriate mental health provider authorizes contact.*

                                   ***

     *other terms and conditions set by the court.

Written Guilty Plea Agreement, 4/26/2004 (unnecessary capitalization

omitted).

     Brown’s plea was accepted by the court and she was sentenced in

accordance with the agreement on July 27, 2004. Specifically, Brown was

sentenced to three months to one year of house arrest at count 1, and two

years of consecutive probation at count 2. Because incest, count 1, was an

enumerated offense under the version of Megan’s Law in place at the time,



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Brown was required to register with the State Police for a period of ten years

following her release from house arrest. 42 Pa.C.S. § 9795.1(b)(2).         In

acknowledgment of this, Brown completed a Megan’s Law colloquy, which

stated that “by pleading guilty to [incest she] will be required to register

with the Pennsylvania State Police for a period of at least ten (10) years

after [her] release from incarceration[.]” Megan’s Law Colloquy, 8/13/2004,

at ¶ 3 (emphasis added). No post-sentence motion or direct appeal was

filed.

         On December 20, 2011, the legislature enacted SORNA. See 42

Pa.C.S. §§ 9799.10 and 9799.41.        SORNA became effective on December

20, 2012, and, inter alia, increased the registration period for those

convicted of incest, now categorized as a Tier III sexual offense, from ten

years to lifetime registration. 42 Pa.C.S. § 9799.14 (d) and § 9799.15

(a)(3). Because Brown was still required to register with the State Police at

the time SORNA went into effect, she was subject to the new registration

provisions. 42 Pa.C.S. § 9799.13(3)(i).

         On July 20, 2016, Brown sent a letter to the trial court asking to be

removed from Megan’s Law registration. A hearing was scheduled and after

receiving testimony, the lower court issued an order, dated September 6,

2016, finding that Brown had specifically bargained for a ten-year term of

Megan’s Law registration and, as such, did not have to comply with the



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lifetime registration imposed by SORNA.        The court found that Brown’s

obligation to register under Megan’s Law was completed in October of 2015,

ten years after her release from house arrest. This timely appeal followed.

Both the Commonwealth and the lower court complied with the mandates of

Pa.R.A.P. 1925.

      The Commonwealth raises a number of issues for our review, which

can be summarized as follows.

           1. Did the lower court lack jurisdiction to terminate
      Brown’s SORNA registration requirements?

            2. Did the lower court err in determining that the ten-year
      registration period was a specifically-bargained-for term of the
      plea agreement?

Commonwealth’s Brief at 4-5.

      The Commonwealth begins by challenging the trial court’s jurisdiction

to enter an order terminating Brown’s Megan’s Law registration requirement.

First, the Commonwealth argues that, pursuant to 42 Pa.C.S. § 5505, the

lower court was without jurisdiction to modify Brown’s judgment of

sentence. Commonwealth’s Brief at 9-10. The question of whether SORNA

registration is punitive or a collateral consequence to one’s criminal sentence

is pending before our Supreme Court. Commonwealth v. Reed, 135 A.3d

177 (Pa. 2016).    However, regardless of whether registration constitutes

punishment or is a collateral consequence, it is well-settled that the courts of

common pleas may analyze registration requirements imposed incident to a

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plea of guilty under a breach-of-contract theory. See Commonwealth v.

Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013) (en banc) (citation

omitted) (“[E]ven though a plea agreement arises in a criminal context, it

remains contractual in nature and is to be analyzed under contract law

standards.”); Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016)

(same).     Contract claims are subject to a four year statute of limitations,

which begins to run at the time the breach occurs. See Hainesworth, 82

A.3d at 447; Cole v. Lawrence, 701 A.2d 987, 989 (Pa. Super. 1997).

Instantly, the alleged breach occurred on the date SORNA became effective,

December 20, 2012, see 42 Pa.C.S. § 9799.10, and Brown’s request,

docketed on July 20, 2016, was filed within four years. Thus, we conclude

the court had jurisdiction to hear Brown’s claim.    However, we agree with

the Commonwealth that the court erred in finding that Brown’s registration

period ended in October of 2015.

           Because contract interpretation is a question of law, this
     Court is not bound by the trial court’s interpretation. Our
     standard of review over questions of law is de novo and to the
     extent necessary, the scope of our review is plenary as the
     appellate court may review the entire record in making its
     decisions. However, we are bound by the trial court’s credibility
     determinations.

Calabrese v. Zeager, 976 A.2d 1151, 1154 (Pa. Super. 2009) (citations

omitted).




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     Parties must state the terms of a plea agreement on the record and in

the presence of the defendant. Pa.R.Crim.P. 590(B)(1). “If a trial court

accepts a plea bargain, the defendant who has given up his [or her]

constitutional right to trial by jury must be afforded the benefit of all

promises made by the district attorney.” Hainesworth, 82 A.3d at 449

(citation omitted). “The 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. (citation

omitted). Because plea bargaining is such an integral part of our criminal

justice system, specific enforcement of valid plea bargains is a matter of

fundamental fairness. Commonwealth v. Mebane, 58 A.3d 1243, 1249

(Pa. Super. 2012).

     [D]isputes over any particular term of a plea agreement must be
     resolved by objective standards. A determination of exactly what
     promises constitute the plea bargain must be based upon the
     totality of the surrounding circumstances and involves a case-by-
     case adjudication.

           Any ambiguities in the terms of the plea agreement will be
     construed against the Government.

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citations

omitted).

     In Hainesworth, an en banc panel of this Court was asked to consider

whether retroactive application of the SORNA registration requirements

breached the terms of Hainesworth’s plea agreement. Hainesworth, 82

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A.3d at 446-47.     Applying the contract principles outlined above, the

Hainesworth Court concluded that the trial court did not err in ordering

specific enforcement of Hainesworth’s plea bargain. Id. at 447. In upholding

the trial court’s determination, the Court found significant the terms of the

plea bargain, which required the Commonwealth to withdraw all charges

carrying a Megan’s Law registration requirement, and the Commonwealth’s

repeated assurances during the plea process that it was not seeking

registration. Id. at 445-48. Accordingly, the Court determined that the

objective evidence of record supported the conclusion that the parties had

negotiated an agreement that would not require Hainesworth to register as a

sex offender; thus, imposition of a registration requirement based on a

subsequent change in law, would breach that agreement. Id. at 450

     Such is not the case here.    Under questioning from the court during

the September 6, 2016 motion hearing, Brown testified as follows.

     BY THE COURT:

     Q: Okay. I would like you to tell me what the agreement was
     between you and the District Attorney that was accepted by [the
     trial court]. Why did you -- why did you decide to plead guilty?

     A: It was to be -- excuse me. It was between my attorney and
     the Judge and I. Not the DA. The DA was trying to do what
     she’s trying to do. We agreed to -- I was on house arrest for
     three months. I did -- excuse me. I was probation for two
     years, nine months.     I finished everything in 2007.  That
     includes the house arrest for the three months and the
     probation, and I was to be completely done. My last year to
     register on Megan’s Law was to be October 2014 to be

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     completed the following year, 2015 in October. And then, the
     law changed December 2012 with [SORNA], and I had, like 18
     months to go, and so that changed me into a lifetime
     [registration] when I was an offender now I’m lumped in with
     predators, and I would like to point out that I have lived behind
     the high school in Bradford for eight years, and they built a day
     care kiddie corner from my house six years ago.

     Q: Well, that doesn’t relate to it though. But the -- the main
     thing is that you say you had an understanding, your attorney,
     not the Dis -- and the Judge and --

     A: My attorney and the DA agreed that I would be --

     Q: Okay. And the DA and the --

     A: -- that I would be on Megan’s Law for ten years.

     Q: Okay.

     A: And while I was --

     Q: Was that made very specific because in the written plea
     agreement it says a minimum of ten years. In other words, it
     could be more. Were you promised that it would be ten years
     period?

     A: Dawn Fink was my attorney, and she was “You’re a ten year
     [registrant], and then you’ll be done.” And --

     Q: And was that what your basis was for your guilty plea?

     A: Yes. That I was on house arrest for three months, probation
     for two years, nine months, Megan’s Law for ten years. I wasn’t
     allowed -- on probation, I was not allowed to be with juvenile
     males between the ages of 12 and 18 unsupervised.

N.T., 9/6/2016, at 9.

     In her testimony, Brown indicated that her understanding of the

Megan’s Law registration period came from her attorney who told her that

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she was a ten-year registrant. This was certainly true under the law in place

at the time. The trial court found this testimony credible and we are bound

by that determination. Calabrese, 976 A.2d at 1154.            However, “the

dispositive question [here] was whether registration was a term of the

bargain struck by the parties.” Commonwealth v. Partee, 86 A.3d 245,

248 (Pa. Super. 2014) (quoting Hainesworth, 82 A.3d at 447).

      The certified record before us shows that, under the terms of her plea

agreement, the Commonwealth nolle prossed lesser charges not enumerated

under Megan’s Law, and that Brown pled guilty to the lead charge, incest,

which at the time carried with it a ten-year registration period. Additionally,

the documentation Brown signed in advance of her plea indicated that she

would have to register for “at least” ten years. Megan’s Law Colloquy,

8/13/2004, at ¶ 3 (emphasis added). Further, the transcripts from both the

guilty plea hearing and Brown’s sentencing are silent as to the length of

Brown’s registration period. In both proceedings, it is noted that she must

comply with Megan’s Law, but the term of years is never stated on the

record. N.T., 4/22/2004, at 6-8; N.T., 7/27/2004, at 3-5.      Thus, although

the parties agreed that the applicable Megan’s Law registration period for

incest was ten years, we cannot conclude that a ten-year registration period

was a specifically bargained-for or essential term of the plea agreement

negotiated between Brown and the Commonwealth. C.f. Commonwealth v.



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Ritz, 153 A.3d 336, 343 (2016) (holding that “the trial court correctly held

that Ritz and the Commonwealth entered into a binding contract to make ten

years the applicable registration period where “Ritz pled guilty to an offense

in exchange for the Commonwealth’s agreement to withdraw one or more

other charges” that were subject to Megan’s Law registration requirements;

and “the prosecutor expressly agreed that a ten-year registration period was

‘part of [its] plea agreement’ with Ritz”); Partee, 86 A.3d at 249 (Pa. Super.

2014) (holding that, inter alia, Partee’s negotiated plea agreement was

structured so that he would only be subject to a ten-year rather than a

lifetime reporting requirement, as evidenced by the fact that “[t]he two

charges carrying a lifetime registration requirement were withdrawn by the

Commonwealth as part of the negotiations, leaving [Partee] subject to the

less onerous ten-year reporting requirement” imposed at the count to which

he actually pled”).

      Accordingly, for all the foregoing reasons, we vacate the lower court’s

order.

      Order vacated.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2017




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