J-A27039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
THURMAN PERRY KING,                      :
                                         :
                   Appellant             :           No. 129 WDA 2014

             Appeal from the Order entered on December 26, 2013
              in the Court of Common Pleas of Allegheny County,
                Criminal Division, No. CP-02-CR-0000443-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED OCTOBER 10, 2014

        Thurman Perry King (“King”) appeals from the Order directing that,

pursuant to the Sex Offender Registration and Notification Act (“SORNA”),1

he must register with the Pennsylvania State Police as a sexual offender for

life, and denying his Petition seeking specific enforcement of his underlying

negotiated guilty plea agreement, which provided for a ten-year registration

period. We reverse and remand for the trial court to re-impose the ten-year

registration period.

        In January 2007, the Commonwealth charged King with indecent

assault of a minor less than thirteen years of age, endangering the welfare

of children, and corruption of minors. On June 21, 2007, King pled guilty to




1
    See 42 Pa.C.S.A. § 9799, et seq.
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indecent assault of a minor less than thirteen years of age.2 Significantly,

King’s guilty plea was the result of a negotiated agreement, wherein the

Commonwealth agreed that it would withdraw the corruption of minors and

endangering the welfare of children charges and recommend a sentence of

11½ to 23 months in jail (with credit for time served).

        At the time of King’s plea, the offense of indecent assault of a minor

less than thirteen years of age required a period of sexual offender

registration of ten years under Megan’s Law II.3 Importantly, at the guilty

plea    hearing,   the   prosecutor   stated,   regarding   the   negotiated   plea

agreement, that there was a stipulation between the parties that the offense

for which King agreed to plead guilty required a ten-year registration period.

See N.T., 6/21/07, at 2-3. King stated at the hearing that he understood

this term of the plea agreement. Id. at 4.4

        The trial court judge, the Honorable Lester G. Nauhaus (“Judge

Nauhaus”), sentenced King, pursuant to the plea agreement, to 11½ to 23

months in jail, followed by two years of probation, and advised him that he

must register as a sexual offender for ten years. Id. at 4, 10. King was



2
    See 18 Pa.C.S.A. § 3126(a)(7).
3
  See 42 Pa.C.S.A. § 9795.1(a)(1). This statutory provision expired in
December 2012, and was replaced by the provisions of SORNA. See 42
Pa.C.S.A. § 9799.41.
4
 King also completed a “Explanation of Megan’s Law Rights” form, wherein
he affirmed that he understood the ten-year registration requirement.


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immediately released on parole.         He did not appeal his judgment of

sentence.

      Effective on December 20, 2012, the legislature enacted SORNA, which

applies, inter alia, to “[a]n individual who, on or after the effective date of

this section, is, as a result of a conviction for a sexually violent offense, …

being supervised by the Pennsylvania Board of Probation and Parole ….” 5 42

Pa.C.S.A. § 9799.13(2); see also id. § 9799.14(d)(8) (including indecent

assault of a minor less than thirteen years of age as a sexually violent

offense).   In June 2013, King received notification that, under the new

provisions of SORNA, he would be required to register as a sexual offender

for life,6 rather than the ten-year period previously imposed as part of his

negotiated plea.

      On August 16, 2013, King filed a “Petition Seeking to Enforce a Plea

Agreement” (hereinafter “Petition to Enforce”), arguing that the ten-year

registration period was an essential term of his plea agreement, and it must

be specifically enforced.     In other words, King sought to avoid the

retroactive application of SORNA’s lifetime registration requirement.      The


5
  SORNA applies to King’s case because he will remain under supervision
until 2025. See N.T., 6/21/07, at 10.
6
  Under SORNA, a conviction for indecent assault of a minor less than
thirteen years of age is designated as a “Tier III sexual offense,” subjecting
a defendant convicted of this offense to a lifetime registration requirement.
42 Pa.C.S.A. § 9799.14(d)(8); id. § 9799.15(a)(3).               Although an
amendment to SORNA was enacted on March 14, 2014, the amended
version retains the lifetime registration requirement.


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Commonwealth filed an Answer asserting that the Petition to Enforce must

be treated as a Petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”),7 and King was not entitled to collateral relief because the

Petition to Enforce was not filed within the jurisdictional time limitations of

the PCRA.8

        In December 2013, King’s counsel filed a Supplement to the Petition to

Enforce, bringing to Judge Nauhaus’s attention this Court’s recently issued

decision in Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super.

2013) (en banc).      The Hainesworth Court held that the length of the

required statutory period for sexual offender registration may constitute an

enforceable component of a plea agreement.        See id. at 450 (where the

defendant had specifically negotiated with the Commonwealth to withdraw

all sexual offense charges that required registration in exchange for his

7
    See 42 Pa.C.S.A. §§ 9541-9546.
8
  We observe that King’s Petition to Enforce did not, in fact, fall under the
provisions of the PCRA.       This Court has held that a petition seeking
enforcement of a plea agreement, which includes a sexual offense that
requires the defendant to register as a sex offender, does not fall under the
PCRA and is not subject to the PCRA’s timeliness requirements.
Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa. Super. 2014) (collecting
cases and holding that “the statutory and rule-based requirements
governing a PCRA petition do not apply to a challenge to the retroactive
application of [SORNA], but [] this Court has jurisdiction to review orders
confirming or rejecting a retroactive registration requirement.”);
Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014) (holding
that a challenge to the retroactive application of SORNA “[did] not fall within
the scope of the PCRA and should not be reviewed under the standard
applicable to the dismissal of PCRA petitions.”); see also Trial Court Order,
12/26/13, at ¶ 4 (wherein Judge Nauhaus correctly found that the Petition to
Enforce did not fall under the PCRA).


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guilty plea, holding that requiring him to register as a sexual offender by

retroactively applying SORNA would unfairly deprive him of the benefit of his

plea bargain).

      On December 26, 2013, Judge Nauhaus issued an Order denying

King’s Petition to Enforce, stating as follows:

             This Court has determined that the Pennsylvania Superior
      Court decision [] Hainesworth … is not applicable to the instant
      matter because the charges to which the Hainesworth
      defendant pled guilty did not carry any registration requirement
      under Megan[’]s Law at the time the guilty plea was entered.
      Therefore, registration was not a collateral consequence of the
      guilty plea in Hainesworth.

             This Court finds that [King] is not entitled to relief because
      the registration requirements of Megan’s Law II and [SORNA] do
      not impose criminal penalties[,] and consequently are not part of
      [King’s] plea bargain.        The registration requirements are
      collateral, not direct consequences of conviction.            Lifetime
      registration requirements do not punish the offender[,] but
      instead help ensure public safety. Since lifetime registration
      requirements are a collateral consequence of a plea, rather than
      a direct consequence of the plea, they do not affect the
      voluntariness of a plea. Collateral consequences of a plea do not
      affect the legality of a plea and are not related to the length or
      nature of the sentence imposed on the basis of the plea.
      Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008).

Order, 12/26/13, at ¶¶ 5-6 (numbering omitted). King timely filed a Notice

of Appeal.

      King presents the following issue for our review: “Did the trial court

err in refusing to impose the period of registration as a sex offender under

SORNA … that was initially imposed and agreed upon, such that [King] may




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obtain the benefit of his plea bargain and only register for a 10[-]year

period?” Brief for Appellant at 6 (capitalization omitted).

      Because King’s issue presents a pure question of law, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Raban, 85 A.3d 467, 468 (Pa. 2014).

      King argues that Judge Nauhaus erred as a matter of law by refusing

to specifically enforce the ten-year registration period, as it was an essential

and bargained-for term of his negotiated plea agreement. Brief for Appellant

at 10-11.    King points out Judge Nauhaus’s conclusion in his Pa.R.A.P.

1925(a) Opinion, that “Hainesworth … is not applicable to the instant

matter because the charges to which the Hainesworth defendant pled

guilty did not carry any registration requirement under Megan[’]s Law at the

time the guilty plea was entered[,]” Order, 12/26/13, at ¶ 5, whereas King

had negotiated to plead guilty to an offense that had a ten-year registration

requirement.    Brief for Appellant at 13.    According to King, this factual

difference is completely irrelevant, and the holding in Hainesworth directly

applies to the instant case.   Brief for Appellant at 14.     Additionally, King

urges us to hold that “the SORNA provisions regarding registration cannot …

be deemed mere ‘collateral consequences’ of the conviction.” Id. at 17; see

also id. (arguing that “[t]he fact that previous registration provisions under

the Megan’s Law statutes that had been in force before SORNA were

historically called ‘collateral’ (see [] Leidig[, supra], cited by [Judge



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Nauhaus in support of his ruling]) does not preserve the collateral status in

this current legislation.”).

      In Hainesworth, the defendant entered a negotiated guilty plea to

several sexual offenses and related charges, none of which required

registration   under     the   then-prevailing   version   of   Megan’s     Law.

Hainesworth, 82 A.3d at 445, 446. Pursuant to the plea negotiations, the

Commonwealth withdrew three other charges, two of which would have

imposed a registration requirement. Id. Additionally, the defendant’s guilty

plea colloquy specified that he was not required to register as a sexual

offender. Id. at 446.

      Approximately three years after the imposition of the defendant’s

sentence, while he was still on probation, he filed a motion “[i]n

contemplation” of the new registration requirements to which he would be

subjected when SORNA became effective in December 2012.               Id.     In

response, the trial court issued an order ruling that the defendant shall not

be subject to the registration requirements of SORNA because application of

the statute to defendant would deprive him of the benefit of the bargain he

had reached with the Commonwealth in his plea agreement. Id. at 446-47.

      On appeal, this Court stated that “the dispositive question is whether




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registration was a term of the bargain[9] struck by the parties to this appeal.”

Id. at 448 (footnote added). The Hainesworth Court determined that non-

registration under Megan’s Law was a term of the plea agreement, and held

that, therefore, it would be improper to require the defendant to register as

a sexual offender under SORNA, as such would deprive him of the benefit of

his bargain. Id. at 450.10

      In the instant case, the Commonwealth argues Judge Nauhaus

properly distinguished Hainesworth. See Brief for the Commonwealth at

11-14 (wherein the Commonwealth largely relies upon two prior cases that

the Hainesworth Court distinguished, Commonwealth v. Benner, 853

A.2d 1068 (Pa. Super. 2004), and Leidig, supra). We disagree.

      This Court, in Commonwealth v. Nase, 2014 PA Super 194 (Pa.

Super., filed Sept. 9, 2014), addressed the same argument presented by the

Commonwealth in the instant case, and discussed Leidig and Benner,

stating as follows:

            As in Hainesworth, the Commonwealth relies on our
      Supreme Court’s decision in [] Leidig …, and this Court’s
      decision in Benner. In Leidig, our Supreme Court considered
      whether the “failure of a trial court to accurately advise a
      defendant of the duration of the Megan’s Law registration period

9
 In Partee, supra, this Court analyzed Hainesworth and held that it is not
necessary for a bargained-for period of sexual offender registration to be an
explicit term of a negotiated plea. Partee, 86 A.3d at 249.
10
   The Hainesworth Court declined to address the Commonwealth’s
contention that the sexual offender registration requirements under SORNA
must be viewed as non-punitive “collateral consequences” of a conviction.
Hainesworth, 82 A.3d at 449 n.4.


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     constitutes grounds for withdrawal of the plea.” Leidig, supra
     at 403. Therein, the defendant entered an open nolo contendere
     [plea] to aggravated indecent assault on September 18, 2002,
     based on the assault of his thirteen-year-old step-daughter in
     June of 2000. At the time of the offense, Megan’s Law required
     registration for a period of ten years; however, when the
     defendant entered his plea, the law mandated lifetime
     registration.

            Importantly, during the plea proceeding, unlike herein,
     [and unlike in King’s case,] there was no mention of the
     registration requirements under Megan’s Law. At sentencing,
     the trial court advised the defendant that he would be subject to
     a ten-year registration period.      On that same date, after
     sentencing, both the prosecution and defense counsel alerted
     the court that under Megan’s Law II, then in effect, lifetime
     registration was required for aggravated indecent assault.
     Nonetheless, the court and parties mistakenly agreed that Leidig
     would only be subject to a ten-year period of registration. Upon
     learning that he would be required to register for life, Leidig filed
     a motion to withdraw his plea, contending that it was not
     knowing, intelligent, and voluntary. The trial court denied the
     motion, but opined that Leidig should only be subject to the ten-
     year reporting requirement.

            This Court concluded that Leidig was not entitled to
     withdraw his plea and that he had to register for life. The
     Pennsylvania Supreme Court affirmed. The High Court reasoned
     that because Megan’s Law registration requirements are a civil
     collateral consequence of a plea, the sentencing court’s error did
     not result in an involuntary and unknowing plea.

           The Leidig Court was not faced with the question of
     whether the parties negotiated the registration requirement as
     part of the plea agreement.        Pointedly, it is evident that
     registration was not part of the negotiations[,] since no mention
     of registration was made during the plea proceeding and the
     parties did not become aware of the discrepancy in registration
     requirements until after sentencing. Furthermore, Leidig was
     attempting to withdraw his plea, not enforce it based on the
     negotiated terms of the plea. Thus, we find Leidig is not
     dispositive. …




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           In Benner, the defendant pled guilty to aggravated
     indecent assault on February 23, 1999.            The [trial] court
     sentenced him on April 14, 1999, to two and one-half to five
     years [of] incarceration. At the time of his plea and sentencing,
     Megan’s Law I was in effect. That law required a ten-year period
     of registration. Subsequently, Benner was granted parole, but,
     as a condition of his release, prison officials notified him that he
     had to comply with Megan’s Law II. That law mandated lifetime
     reporting for those convicted of aggravated indecent assault.

           Benner filed a motion seeking to excuse further compliance
     with the lifetime registration requirement. The trial court denied
     the motion and Benner appealed.          Benner argued that he
     negotiated to avoid registration under Megan’s Law I, and that
     because he had not been given a Megan’s Law colloquy, his plea
     was involuntary and unlawful. In the alternative, Benner posited
     that he should only be subject to registration for ten years.

           Finding nothing in the record to support that position, we
     rejected Benner’s claim that he relied on representations by the
     prosecution that he would not have to register. Additionally, we
     held that, because registration was a collateral consequence of
     his plea, the [trial] court’s failure to colloquy him on Megan’s
     Law did not invalidate his plea.         The Benner Court then
     proceeded to analyze whether he was subject to the ten-year
     registration provision of Megan’s Law I or lifetime reporting. …
     Ultimately, the Benner panel concluded that, “the collateral
     effect of current legislation may be imposed on the defendant so
     long as he remains in the custody of correctional authorities to
     discharge any part of his sentence for the sex offense[.]” Id. at
     1068.

Nase, 2014 PA Super 194, at **12-17. The Nase Court emphasized that

“unlike Benner, … the record in this case does establish that a ten-year




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period of registration was part of [a]ppellant’s plea agreement.”11      Id. at

*17.   Based upon this determination, the Nase Court held, Hainesworth

was controlling, and the appellant “is entitled to the benefit of his bargain,

and is not subject to additional registration beyond that envisioned by his

plea agreement.” Id. at *19.

       Here, we conclude that Hainesworth and Nase control the outcome,

and Judge Nauhaus erred in finding otherwise. Moreover, contrary to Judge

Nauhaus’s determination, it is of no moment that the circumstances of this

case differ from those in Hainesworth, in that the charges to which

Hainesworth pled guilty did not carry any registration requirement under

Megan’s Law at the time he entered the guilty plea. See, e.g., Nase, 2014

PA Super 194, at **1-2, 19 (where one of the charges to which the

appellant pled guilty required a ten-year registration period at the time he

entered the plea, holding that Hainesworth controlled). Accordingly, King

is entitled to specific enforcement of the ten-year registration term of his

negotiated plea agreement.

       Finally, at this time, like the Courts in Hainesworth and Nase, we

decline to specifically address whether the registration requirements under

SORNA must be viewed as collateral consequences of a conviction.           See


11
    Again, the Commonwealth in the instant appeal concedes that the
prosecutor stipulated, as part of King’s plea negotiations, that the offense for
which King agreed to plead guilty would require him to register as a sexual
offender for ten years. See Brief for Commonwealth at 9; see also N.T.
(guilty plea hearing), 6/21/07, at 2-3.


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Hainesworth, 82 A.3d at 449 n.4; see also Nase, 2014 PA Super 194, at

*15   (stating   that   “Hainesworth      demonstrates   that   the   collateral

consequence construct does not eliminate the requirement that courts

enforce bargained-for exchanges where the parties negotiate over a

collateral consequence of a plea.”).

      Based upon the foregoing, we reverse the December 26, 2013 Order

directing that King must register as a sexual offender for life under SORNA,

and remand the case for the trial court to re-impose the ten-year

registration period pursuant to King’s negotiated plea agreement.

      Order reversed; case remanded for further proceedings consistent with

this Memorandum; jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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