J-A05036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                   v.

ALTON LESSIG, JR.,

                          Appellant                 No. 1558 EDA 2014


               Appeal from the Order Entered April 24, 2014
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004640-2009


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 01, 2015

     Appellant, Alton Lessig, Jr., appeals from the order denying his petition

for habeas corpus, which sought an exemption from the lifetime registration

requirements of Pennsylvania’s “new” Megan’s Law, known as the Sex

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799 et

seq. We affirm.

     We summarize the underlying history of this case as follows.          On

April 9, 2009, at docket number CR-1457-2009, Appellant was charged with

two counts of possession of child pornography. On September 3, 2009, at

docket number CR-4640-2009, Appellant was charged with fifty counts of

possession of child pornography, and one count of criminal use of

communication facility.
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      On December 8, 2009, pursuant to a negotiated plea agreement at

docket number CR-1457-2009, Appellant pled guilty to one count of

possession of child pornography. He received a sentence of incarceration of

six to twenty-three months. Also on December 8, 2009, at docket number

CR-4640-2009, Appellant entered a negotiated guilty plea to five counts of

possession of child pornography and one count of criminal use of

communication facility. He received concurrent sentences of six to twenty-

three months on each of the child pornography convictions and a

consecutive sentence of five years of probation for the communication

facility conviction. Thus, Appellant’s aggregate sentence was six to twenty-

three months of incarceration, plus five years of probation.

      On December 3, 2012, while serving the probationary tail of his

negotiated sentence, Appellant was notified by the Pennsylvania State Police

that under SORNA he is now a Tier-III sex offender and is required to

register for the remainder of his life.     On November 12, 2013, at docket

number CR-4640-2009, Appellant filed a “Petition to Enforce Plea Agreement

and/or for Writ of Habeas Corpus and/or for Exemption from Applicability to

Continue to Re-Register Under Pennsylvania’s ‘New’ Megan’s Law as a

Lifetime Registrant.”   On November 14, 2013, the trial court entered an

order denying Appellant’s petition.

      On February 4, 2014, at docket number CR-4640-2009, Appellant filed

a petition for habeas corpus, requesting that the trial court require him to


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register for only ten years due to his negotiated plea. A hearing was held on

April 3, 2014. On April 24, 2014, the trial court entered an order denying

Appellant’s petition. This appeal followed.

      Appellant presents the following issues for our review:

      Whether the Court of Common Pleas committed error:

      1. In failing to grant Appellant’s petition because the Court failed
      to consider that the Commonwealth’s retroactive application of
      SORNA to Appellant substantially impairs the plea agreement in
      violation of the Contract Clauses and Due Process Clauses of
      both the United States and Pennsylvania Constitutions;

      2. In failing to grant Appellant’s petition because the Court failed
      to consider that Appellant should only be required to register for
      ten (10) years as his offenses were part of a single criminal
      episode or course of conduct;

      3. In failing to grant Appellant’s petition because the Court failed
      to consider that changing, or expanding and extending,
      Appellant’s registration and reporting requirements is a form of
      punishment and thus, application of SORNA to Appellant violates
      the Ex Post Facto Provision of the United States Constitution.

Appellant’s Brief at 4.

      In his first issue, Appellant argues that the trial court’s failure to

enforce his plea agreement violates the contract clause of both the United

States and Pennsylvania Constitutions, and that fundamental fairness and

due process require that his plea agreement be enforced. Appellant’s Brief

at 9-26.    Essentially, Appellant contends that he entered into his plea

agreement pursuant to an understanding that he was required to register as

a sexual offender for only ten years. Conversely, the Commonwealth asserts

that the documents in the certified record fail to demonstrate that a ten-year

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registration period was a negotiated term of Appellant’s plea agreement.

Commonwealth’s Brief at 17.

      When evaluating the terms of a negotiated plea agreement, we are

guided by the following principles:

      Although a plea agreement occurs in a criminal context, it
      remains contractual in nature and is to be analyzed under
      contract-law standards.     Furthermore, disputes 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.            Nevertheless, the
      agreement itself controls where its language sets out the terms
      of the bargain with specificity.

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

citations omitted).

      “Plea bargains which are entered knowingly and voluntarily are viewed

with favor in this Commonwealth. If a trial court accepts a plea bargain, the

defendant who has given up his constitutional right to trial by jury must be

afforded the benefit of all promises made by the district attorney.”

Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013)

(quoting Commonwealth v. Fruehan, 557 A.2d 1093, 1094 (Pa. Super




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1989)).1     “Specific enforcement of valid plea bargains is a matter of

fundamental fairness.”        Hainesworth, 82 A.3d at 449.       “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.’” Id. at 447 (quoting Fruehan, 557 A.2d at 1095).

       “[SORNA], commonly referred to as the Adam Walsh Act, became

effective on December 20, 2012.”               Commonwealth v. Partee, 86 A.3d

245, 246 (Pa. Super. 2014).2          “By its terms, any individual who was then


____________________________________________


1
   We acknowledge that on April 8, 2015, our Supreme Court entered an
order granting petition for allowance of appeal from our memorandum
decision in Commonwealth v. Martinez, 1420 MDA 2013, 102 A.3d 530
(Pa. Super. filed April 14, 2014) (unpublished memorandum) to consider the
proper application of Hainesworth. The order in Martinez specifically
stated the issue before the Supreme Court as follows:

       (1) Whether the Superior Court’s application of its decision
       Commonwealth v. Hainesworth to the instant cases
       impermissibly expanded the contract clause to bind the
       Commonwealth to collateral consequences over which the
       Commonwealth has no control?

Commonwealth v. Martinez, 328 MAL 2014 (Pa. filed April 8, 2015).
2
    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 our Supreme
Court found constitutional in Commonwealth v. Williams, 832 A.2d 962
(Pa. 2003); and Megan’s Law III, which took effect in January of 2005. On
December 20, 2011, the legislature enacted SORNA, which became effective
on December 20, 2012. SORNA requires offenders to register with state
police and notify community authorities in the area where they reside. 42
Pa.C.S. § 9799.15. The time period for which a particular offender must
(Footnote Continued Next Page)


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being supervised by the board of probation or parole was subject to its

provisions.” Id.

        In Hainesworth, this Court specifically enforced a negotiated plea

agreement that did not require the defendant to report as a sex offender

under Megan’s Law, despite subsequent amendments to the statute that

would     have   subjected       him     to   enhanced     registration   requirements.

Hainesworth entered a negotiated guilty plea to three counts each of

statutory sexual assault and indecent assault, and one count each of

indecent assault and criminal use of a communication facility in February

2009.     None of these convictions required registration under the then-

prevailing version of Megan’s Law.               Pursuant to plea negotiations, the

Commonwealth       withdrew        the    charges   that    would   have    imposed   a

                       _______________________
(Footnote Continued)

register depends on whether he has been convicted of a Tier I, Tier II, or
Tier III sexual offense. Id.

      Under SORNA, an individual convicted of a Tier I sexual offense must
register as a sex offender for a period of 15 years.             42 Pa.C.S.
§ 9799.15(a)(1). An individual convicted of a Tier II sexual offense must
register as a sex offender for a period of 25 years.             42 Pa.C.S.
§ 9799.15(a)(2). A Tier III offender must register as a sex offender for life.
42 Pa.C.S. § 9799.15(a)(3). In addition, SORNA defines a Tier III offense as
“[t]wo or more convictions of offenses listed as Tier I or Tier II sexual
offenses.” 42 Pa.C.S. § 9799.14(d)(16).

      Instantly, Appellant’s convictions under 18 Pa.C.S. § 6312(d) would be
designated as Tier I sexual offenses, which subject a defendant to a fifteen-
year registration period. 42 Pa.C.S. §§ 9799.14-9799.15. However, due to
Appellant’s multiple convictions of Tier I offenses, Appellant was informed
that he is subject to lifetime registration as a Tier III offender.



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registration requirement under the version of Megan’s Law in place at the

time the plea was entered.

      While Hainesworth was on probation, SORNA was due to become

effective.   Under SORNA, Hainesworth’s charges of indecent assault would

be categorized as a Tier-II sexual offense conviction, and would require a

fifteen-year registration.   Hainesworth filed a motion seeking to terminate

supervision one week prior to the effective date of SORNA. The trial court

denied the petition to terminate supervision, but held that application of

SORNA’s registration requirements to Hainesworth violated due process.

      On appeal, this Court, sitting en banc, concluded that Hainesworth

correctly framed the issue as one of contract law. The dispositive question

was “whether registration was a term of the bargain struck by the parties.”

Hainesworth, 82 A.3d at 448.        We examined the record, noting that the

terms of the plea agreement included a discussion of the fact that the

offenses to which the defendant pled guilty did not require registration and

supervision as a sex offender.      Ultimately, we held that avoidance of a

registration requirement was an essential component of Hainesworth’s plea

agreement and that he was entitled to the benefit of his bargain.

      This Court found the parties “entered into a plea bargain that

contained a negotiated term that Hainesworth did not have to register as a

sex offender.” Hainesworth, 82 A.3d at 450. In support, we relied upon




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the Commonwealth’s statements at Hainesworth’s guilty plea hearing, as

follows:

       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.

Id. at 448. We also opined that “the plea agreement appear[ed] to have

been precisely structured so that Hainesworth would not be subjected to a

registration requirement.”        Id.   The Commonwealth charged Hainesworth

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

Law registration.      Therefore, we concluded that non-registration as a sex

offender was a term of the plea bargain and found the trial court correctly

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

       Instantly, our review of the certified record before us reflects there is

no evidence that a ten-year registration period was a negotiated term of

Appellant’s plea agreement.3 The record reveals that, in two separate cases,


____________________________________________


3
   We note that the certified record in this matter does not contain any
transcripts of the various hearings held before the Court of Common Pleas.
Thus, we are left to review the written documents prepared at the time of
Appellant’s guilty plea and sentencing, which are contained within the
certified record. We further observe that the Superior Court Prothonotary
contacted the Court of Common Pleas of Delaware County in an effort to
(Footnote Continued Next Page)


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Appellant was charged with two counts of possession of child pornography

and with fifty counts of possession of child pornography.         At the time of

Appellant’s guilty plea, these crimes required a ten-year registration term.

Under Appellant’s plea agreement, the charges were reduced to one count of

possession of child pornography and five counts of possession of child

pornography, respectively. However, unlike the facts in Hainesworth, the

reduction in the number of counts had no effect upon the applicable

registration period. Accordingly, the parties did not structure the guilty plea

to avoid a longer registration requirement.         Hence, the record does not

indicate that Appellant received any benefit to his registration requirement

by entering into the negotiated plea agreement. Therefore, unlike the facts

in Hainesworth, there is no evidence that Appellant bargained for a ten-

year registration term.        Although the standard written guilty plea colloquy

form indicated that the then applicable version of Megan’s Law required

Appellant to register for a ten-year term, there is no indication in the record

to establish that this period of registration was an actual term of the plea

agreement.      Appellant’s contrary claim is unsupported by the certified

record, and we conclude Appellant’s first issue lacks merit. Thus, Appellant

must comply with the SORNA amendments and register for his lifetime. See

Commonwealth v. Benner, 853 A.2d 1068, 1071-1072 (Pa. Super. 2004)
                       _______________________
(Footnote Continued)

ascertain whether any transcripts were inadvertently omitted from the
certified record and discovered that none were missing.



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(where record at guilty plea and sentencing was silent as to whether

defendant was 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. Super. 2001)

(requiring registration where offense and conviction occurred prior to Megan

Law’s effective date).    See also Commonwealth v. Fleming, 801 A.2d

1234, 1241 (Pa. Super. 2002) (holding defendant, who pled guilty after

effective date of Megan’s Law II, was subject to Megan’s Law II lifetime sex

offender   registration   requirements   rather   than   ten-year   registration

requirement under Megan’s Law I, even though acts underlying his

conviction occurred prior to effective date of Megan’s Law II).

      In his second issue, Appellant argues that the trial court erred in

failing to grant his petition for habeas corpus, alleging that the facts of his

multiple convictions do not support an application of SORNA.        Appellant’s

Brief at 26-29.   In essence, Appellant claims that his seven convictions of

child pornography were part of one single criminal episode or course of

conduct because the child images were possessed on a single computer, and

therefore, he should only be required to register for ten years. We disagree.

      In Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), we

held that where the defendant pled nolo contendere to two separate counts

of indecent assault at the same plea hearing, he had two convictions of that


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offense for purposes of the Megan’s Law registration requirements.           In

Merolla, we distinguished the Pennsylvania Supreme Court’s decision in

Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005), which considered

the mandatory minimum sentence requirement of the Three Strikes Statute,

noting that both the language and purpose of the two laws are different:

      [T]he Three Strikes Statute applies “[w]here the person had at
      the time of the commission of the current offense previously
      been convicted of two or more such crimes . . .” 42 Pa.C.S.A.
      § 9714(a)(2) (emphasis added). Thus, the language of Megan’s
      Law II is distinguishable from the language of the Three Strikes
      Statute as Megan’s Law II does not require a previous
      conviction. Moreover, the legislative intent behind Megan’s Law
      II is distinct from that of the Three Strikes Statute. Whereas
      Megan’s Law II is based on concern for public safety, the Three
      Strikes Statute, although it also implicates public safety, is
      directed to heightening punishment for criminals who have failed
      to benefit from the effects of penal discipl[ine] . . . .

Merolla, 909 A.2d at 346-347 (citations omitted).       The Court in Merolla

went on to explain the following:

      The sequence of events described in Shiffler -- first offense,
      first conviction, first sentencing, second offense, second
      conviction, second sentencing -- does not apply to Megan’s Law
      II based on a literal reading of the statute. Thus, it is irrelevant
      that Merolla had not been sentenced for his first offense before
      the commission of his second crime.

Id. at 347 (citations omitted).

      However, as of this date, our Supreme Court has not issued a

definitive decision on this subject. Rather, several years ago, our Supreme

Court, with only six justices participating, was deadlocked on a similar




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question. Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012). The Gehris

Court summarized the facts of that case as follows:

      [Gehris] repeatedly engaged in communications of an explicit
      sexual nature regarding an individual whom he believed to be a
      13–year–old girl. In these conversations, he graphically detailed
      his fantasies of having sexual encounters with a young girl,
      solicited nude pictures of the person he thought was the 13–
      year–old girl, mailed a digital camera with a picture of his penis
      loaded therein to the person he thought was the 13–year–old
      girl, methodically arranged a meeting with the person he
      believed to be the 13–year–old girl at a motel room over 200
      miles away from his home, and drove continuously for an entire
      day specifically to have sex in the motel room with both the
      person he thought was the 13–year–old girl, and the person
      whom he believed to be her 19–year–old friend.

Id. at 862 (opinion in support of affirmance).

      Gehris pled guilty to criminal solicitation for the sexual exploitation of

children in violation of 18 Pa.C.S. §§ 902(a) and 6320 for soliciting the state

officer whom he believed to be a 19-year-old to procure the 13-year-old for

sexual exploitation; criminal solicitation for the sexual abuse of children in

violation of 18 Pa.C.S. §§ 902(a) and 6312 for soliciting the state officer

whom he believed to be a 19-year-old to obtain nude photographs of the 13-

year-old; criminal solicitation for the corruption of a minor in violation of 18

Pa.C.S. §§ 902(a) and 6301(a) for soliciting the state officer whom he

believed to be a 19-year-old to obtain a 13-year-old for sexual activity; and

criminal attempt of the corruption of a minor in violation of 18 Pa.C.S.

§§ 901 and 6301(a), for driving to the motel to engage in the planned

sexual activity. Because Gehris was guilty of both the criminal solicitation


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for the sexual exploitation of children and criminal solicitation for the sexual

abuse of children, the trial court found that he was subject to the lifetime

registration requirement in Megan’s Law II.4

       In the opinion in support of affirmance, Justice Todd, joined by Justice

Eakin and former Justice McCaffery, concluded that Gehris, who stood

convicted of more than one Tier-I offense, was required under the plain

language of section 9795.1(b) to register as a lifetime sex offender. Gehris,

54 A.3d at 866.       Conversely, in the opinion in support of reversal, former

Chief Justice Castille, joined by Justices Saylor and Baer, reasoned that a

“defendant convicted of ‘two or more’ [Tier-I] offenses [is] subject to the

lesser sanction of the ten-year registration requirement so long as it is clear

that the offenses were part of the same course of criminal conduct.” Id. at

879.     However, because Gehris resulted in a split decision, it lacks

precedential authority. See Commonwealth v. Covil, 378 A.2d 841, 844

(Pa. 1977) (opinion of affirmance of equally divided court has no

precedential value).

       As previously mentioned, as of this date, our Supreme Court has not

____________________________________________


4
   Former section 9795.1(a) of Megan’s Law II prescribed that an individual
convicted of a Tier-I sexual offense must register as a sex offender for a
period of ten years. Each of the offenses to which Gehris pled guilty was a
Tier-I offense.    However, former section 9795.1(b) provided that “an
individual with two or more convictions of any of the offenses set forth in
subsection (a),” i.e., two or more Tier-I offenses, was subject to lifetime
registration.



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issued a binding decision on this question.5 Therefore, our own precedent in

Merolla remains binding authority on this Court.6 Under the current state of

the law, Appellant’s multiple guilty pleas to separate counts of possession of

child pornography subjected him to lifetime registration and his claim lacks

merit.

       In his third issue, Appellant challenges SORNA’s constitutionality under

the   ex   post    facto   clauses    of   the   Pennsylvania   and   United   States

Constitutions.     This Court recently held that “the new registration regime

pursuant to SORNA is constitutional under the Federal and State Ex Post

Facto Clauses.” Commonwealth v. Perez, 97 A.3d 747, 760 (Pa. Super.

2014). Accordingly, Appellant’s final issue does not entitle him to relief for

the reasons stated in Perez. See id. at 759-760 (holding that the balancing
____________________________________________


5
   The Pennsylvania Commonwealth Court, in A.S. v. Pennsylvania State
Police, 87 A.3d 914 (Pa. Cmwlth. 2014), reviewed a similar issue and
reached a different conclusion. In A.S., a 21-year-old adult male pled guilty
to two sexual offenses relating to a 16-year-old minor arising from a single
criminal episode. Id. at 921-922. Ultimately, the Commonwealth Court
held that the Tier-I fifteen-year registration requirement applied to A.S.,
agreeing with the opinion in support of reversal in Gehris. However, we
decline to follow A.S., because Commonwealth Court decisions are not
binding on this Court. Commonwealth v. Rodriguez, 81 A.3d 103, 107
n.7 (Pa. Super. 2013). Rather, we are bound by our decision in Merolla.
Moreover, we observe that a direct appeal has been filed with our Supreme
Court in A.S., 24 MAP 2014, and a decision is pending.
6
  Indeed, we must follow the decisional law established by our own Court.
Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009).
Unless or until Merolla is overturned by an en banc panel of this Court or by
a decision of the Pennsylvania Supreme Court, it continues to be viable
precedent. Id.
J-A05036-15


of the seven factors provided in Kennedy v. Mendoza–Martinez, 372 U.S.

144 (1963), does not show that the provisions of SORNA are sufficiently

punitive to overcome the General Assembly’s categorization of them as

nonpunitive). Therefore, Appellant’s final claim lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




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