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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :          No. 3067 EDA 2015
                                         :
JUAN E. RIVERA III                       :


                 Appeal from the Order, September 16, 2015,
               in the Court of Common Pleas of Monroe County
               Criminal Division at No. CP-45-CR-0001510-2005


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 20, 2016

     The Commonwealth appeals the order of September 16, 2015,

granting Juan E. Rivera, III’s (“Rivera”) motion to enforce the plea

agreement. After careful review, we affirm.

     The trial court has set forth the history of this case as follows:

                  On January 23, 2006, a Criminal Information
           was filed against [Rivera] charging him with three
           counts of Indecent Assault on a Person less than
           13 Years of Age, Corruption of Minors, and
           Endangering the Welfare of Children.[Footnote 1]
           These charges arose from an incident where [Rivera]
           allegedly kissed and fondled a minor. On April 20,
           2006, [Rivera] entered an open guilty plea to
           Indecent Assault, graded as a misdemeanor of the
           first degree. This guilty plea was entered pursuant
           to a negotiated plea agreement, wherein the
           Commonwealth nolle prossed the remaining
           charges in exchange for [Rivera] entering a guilty
           plea to one count of Indecent Assault.          On
           August 29, 2006, [Rivera] was sentenced to a term
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              of incarceration of no less than 12 months nor more
              than 24 months. As a result of his conviction for
              Indecent Assault, [Rivera] was required to register
              as a sex offender under Megan’s Law[1] for a period
              of 10 years.       Megan’s Law was amended on
              December 20, 2011 (SORNA -- the Sex Offender
              Registration and Notification Act),[2] resulting in
              [Rivera’s] requirement to now register for his
              lifetime, as he was within his original ten year
              registration period when SORNA went into effect.[3]
              [Rivera] filed this Motion to Enforce a Plea
              Agreement on May 4, 2015 and a hearing was held
              on June 30, 2015.

                   [Footnote 1] 18 Pa.C.S.A. § 3126(a)(7)
                   -- Indecent Assault -- Person Less than
                   13 Years    of    Age;   18    Pa.C.S.A.
                   § 6301(a)(1) -- Corruption of Minors;
                   18 Pa.C.S.A. § 4304(a) -- Endangering
                   the Welfare of Children.

Trial court opinion and order, 9/16/15 at 1-2.

        On September 16, 2015, the trial court granted Rivera’s motion to

enforce the plea agreement, finding that the 10-year Megan’s Law

registration was an essential term of the negotiated plea agreement Rivera




1
    42 Pa.C.S.A. §§ 9791-9799.9.
2
  See 42 Pa.C.S.A. §§ 9799.10-9799.41.      SORNA, the successor to
Megan’s Law II, was enacted on December 20, 2011, and became effective
on December 20, 2012.
3
    42 Pa.C.S.A. § 9799.13(3), (3.1).


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made with the Commonwealth.4 The trial court determined that, examining

the totality of the circumstances, the plea agreement was structured in such

a way that Rivera would only be subject to the 10-year Megan’s Law

registration   requirement.               Following        this    court’s      decisions    in

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

(en banc), appeal denied, 95 A.3d 276 (Pa. 2014), and Commonwealth

v. Nase, 104 A.3d 528 (Pa.Super. 2014), holding that where registration

consequences    are    unequivocally         part     of    the    plea   negotiations      and

subsequent agreements, the defendant is entitled to the benefit of his

bargain, the trial court concluded that Rivera was not subject to the new

registration requirements under SORNA.                  Rather, the trial court held that

Rivera was subject to the 10-year Megan’s Law registration in effect at the

time of his plea.

      The Commonwealth filed a timely notice of appeal on October 7, 2015.

On October 8, 2015, the trial court directed the Commonwealth to file a

concise   statement        of    errors   complained        of    on   appeal    pursuant    to

Pa.R.A.P. 1925(b)     within       21     days;   the      Commonwealth         complied     on

October 28, 2015, alleging, inter alia, that the trial court erred in finding

that the 10-year registration was a specifically bargained-for term of the


4
  We note that Rivera’s claim does not fall within the scope of the PCRA
(Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546) and is not reviewed
under the standard applicable to PCRA petitions, nor is it subject to the
PCRA’s time constraints. Commonwealth v. Partee, 86 A.3d 245, 247
(Pa.Super. 2014), appeal denied, 97 A.3d 744 (Pa. 2014).


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plea agreement. (Docket #8.) The trial court filed a Rule 1925(a) opinion

on November 18, 2015, reiterating that its decision is dictated by this court’s

decisions in Hainesworth and Nase, which “made it clear that the issue

now before this Court -- [Rivera’s] Megan’s Law registration requirement --

is to be analyzed under contract principles in terms of enforcing [Rivera’s]

plea agreement with the Commonwealth.”          (Trial court opinion, 11/18/15

at 2.)

         The Commonwealth frames the issues to be decided on appeal as

follows:

              1.   Did the Trial Court err in finding the 10 year
                   registration was a specifically bargained for
                   term of the plea agreement?

              2.   Did the Trial Court err in finding that the mere
                   act of advising a defendant of collateral
                   consequences, created a binding contractual
                   obligation on the part of the Commonwealth,
                   when such notification was required by law?

              3.   Did the Trial Court err in finding that specific
                   length of the registration, which was a
                   collateral consequence, was within the control
                   of the District Attorney, when at the time of
                   the plea, the only possible registration periods
                   allowed by law were either 10 year[s] or life?

              4.   Did the Trial Court err in finding that the state
                   cannot, in the valid exercise of its police
                   powers, modify the terms of an existing
                   contract?

              5.   Did the Trial Court err in modifying the period
                   of registration contrary to the plain language of
                   42 Pa.C.S.A. § 9799.20?



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Commonwealth’s brief at 4.

           With respect to plea bargains, “The reality of the
           criminal justice system is that nearly all criminal
           cases     are   disposed    of   by   plea   bargains:
           [n]inety-seven percent of federal convictions and
           ninety-four percent of state convictions are the result
           of guilty pleas. Plea bargaining is not some adjunct
           to the criminal justice system; it is the criminal
           justice system. Accordingly, it is critical that plea
           agreements are enforced, to avoid any possible
           perversion of the plea bargaining system.”
           [Hainesworth, 82 A.3d] at 449 (internal citations
           and quotation marks omitted). “The disposition of
           criminal charges by agreement between the
           prosecutor and the accused, . . . is an essential
           component of the administration of justice. Properly
           administered, it is to be encouraged.          In this
           Commonwealth, the practice of plea bargaining is
           generally regarded favorably, and is legitimized and
           governed by court rule . . . .       A ‘mutuality of
           advantage’ to defendants and prosecutors flows from
           the ratification of the bargain.” Commonwealth v.
           Parsons, 969 A.2d 1259, 1267-68 (Pa.Super. 2009)
           (en banc), appeal denied, 603 Pa. 685, 982 A.2d
           1228 (2009).

Commonwealth v. Farabaugh,             A.3d      , 2016 WL 1072110 at *4

(Pa.Super. March 11, 2016).

           Assuming the plea agreement is legally possible to
           fulfill, when the parties enter the plea agreement
           and the court accepts and approves the plea, then
           the parties and the court must abide by the terms of
           the agreement. Commonwealth v. Anderson, 995
           A.2d 1184, 1191 (Pa.Super. 2010), appeal denied,
           608 Pa. 634, 9 A.3d 626 (2010).             “Specific
           enforcement of valid plea bargains is a matter of
           fundamental fairness.” Hainesworth, supra. “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.


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               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, 440 Pa.Super. 1, 654
          A.2d 1168, 1172 (Pa.Super. 1995) (internal citations
          omitted). Regarding the Commonwealth’s duty to
          honor plea agreements, well-settled Pennsylvania
          law states:

               Our courts have demanded strict
               compliance with that duty in order to
               avoid any possible perversion of the plea
               bargaining      system, evidencing    the
               concern that a defendant might be
               coerced into a bargain or fraudulently
               induced to give up the very valued
               constitutional guarantees attendant the
               right to trial by jury.

          Id. (internal citations omitted). Whether a particular
          plea agreement has been breached depends on what
          the “parties to the agreement reasonably understood
          to    be    the      terms    of   the   agreement.”
          Commonwealth v. Fruehan, 384 Pa.Super. 156,
          557 A.2d 1093, 1094 (Pa.Super. 1989).

Farabaugh, 2016 WL 1072110 at *5.


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          Sex offender registration:

                [O]bviously has serious and restrictive
                consequences for the offender, including
                prosecution if the requirement is
                violated. Registration can also affect the
                offender’s ability to earn a livelihood, his
                housing arrangements and options, and
                his reputation. In fact, the requirements
                of registration are so rigorously enforced,
                even the occurrence of a natural disaster
                or other event requiring evacuation of
                residences shall not relieve the sexual
                offender of the duty to register . . . .
                [W]hen a defendant agrees to a guilty
                plea, he gives up his constitutional rights
                to a jury trial, to confrontation, to
                present witness, to remain silent and to
                proof beyond a reasonable doubt. In
                negotiating a plea that will not require
                him to register as a sex offender, the
                defendant trades a non-trivial panoply of
                rights in exchange for his not being
                subject to a non-trivial restriction.
                Fundamental fairness dictates that this
                bargain be enforced.

          Hainesworth, supra. To summarize: (a) where a
          plea bargain is structured so the defendant will not
          have to register or report as a sex offender or he will
          have to register and report for a specific time; and
          (b) the defendant is not seeking to withdraw his plea
          but to enforce it, then the “collateral consequence”
          concept attributed generally to sex offender
          registration    requirements     does    not     trump
          enforcement of the plea bargain. Commonwealth
          v. Nase, 104 A.3d 528, 532-33 (Pa.Super. 2014)
          (holding appellant was entitled to benefit of his
          bargain for lower registration requirement, in light of
          recent plea-bargain law, which limits retroactive
          application of new or increased sex offender
          registration/reporting    requirements,   based     on
          specific record of case).



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Farabaugh, 2016 WL 1072110 at *5-6.

      We determine that this court’s decision in Nase controls the outcome

of this case. In Nase, the appellant pled guilty to statutory sexual assault

and   unlawful    contact   with   a   minor;   the   Commonwealth    agreed   to

nolle prosse additional charges including aggravated indecent assault and

involuntary deviate sexual intercourse (“IDSI”). Nase, 104 A.3d at 528. At

the time of his plea, unlawful contact required a 10-year period of

registration under Megan’s Law.        Id.   Subsequently, SORNA was enacted,

which required those convicted of unlawful contact to register for 25 years.

Id. at 529.     On appeal from the denial of his petition to avoid additional

sex offender registration requirements, this court reversed, finding that the

record established that a 10-year period of registration was part of the

appellant’s plea agreement. At the plea hearing, defense counsel indicated

that the appellant understood that unlawful contact carried a 10-year

reporting requirement, and was “in full agreement with that.”         Id. at 534.

This court in Nase also recited the sentencing proceedings, during which the

Commonwealth related,

              He was determined not to be a sexually violent
              predator.     No objection to the recommendation.
              However, it’s an offense requiring Megan’s Law
              notification, Your Honor, and I believe the Defendant
              is reviewing the documents and paperwork with his
              attorney right now.

              Your Honor, just for the record, I have the
              notification at sentencing for the Megan’s Law
              requirement. It’s been initialed and signed by the


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           Defendant and also signed by his attorney. And he
           does acknowledge that he must register his current
           address with the Pennsylvania State Police and
           provide other information as required by law upon
           his release from incarceration or upon his parole
           from a state or county facility.

           ....

           The period of registration shall be for ten years.

Id. The Nase court rejected the Commonwealth’s argument that although

the 10-year registration period was the subject of discussion at the plea

proceeding and during sentencing, it was not one of the terms of the

negotiated plea:

           To suggest that Appellant did not contemplate a
           ten-year period of registration and expressly agree
           to that term by pleading guilty to unlawful contact
           with a minor is contrary to the record. Certainly,
           Appellant did not negotiate for a period of
           registration of twenty-five years. To the extent that
           the Commonwealth asserts that registration was not
           part of the plea agreement, such a position is belied
           by the fact that Appellant expressly agreed to plead
           guilty to unlawful contact with a minor so as to be
           subject to the then-extant registration period. Thus,
           registration consequences were unequivocally part of
           the plea negotiations and arrangement. Since the
           law at that time mandated registration for a period
           of ten years, that period of registration was
           contemplated as part of his plea agreement. See
           Landay v. Rite Aid, 40 A.3d 1280, 1288 (Pa.Super.
           2012), appeal granted in part on other grounds,
           621 Pa. 108, 73 A.3d 577 (2013) (“the laws that are
           in force at the time the parties enter into a contract
           are merged with the other obligations that are
           specifically set forth in the agreement.”)




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Id. See also Hainesworth, 82 A.3d at 448 (where “the plea agreement

appears to have been precisely structured so that Hainesworth would not be

subjected to a registration requirement,” he was entitled to the benefit of his

bargain); Farabaugh, 2016 WL 1072110 at *6 (where the record made

clear that Farabaugh pled guilty to an offense that had no sex offender

registration/reporting requirement and that factor was part of the negotiated

plea agreement, this court refused to allow Farabaugh’s plea bargain to be

reformed with the addition of new conditions (i.e., 25 years of sex offender

registration and reporting under SORNA), which did not exist when

Farabaugh entered the plea agreement); Partee, 86 A.3d at 249 (“While it

was not an explicit term of the negotiated plea, it is apparent that [Partee]’s

negotiated plea agreement was structured so that he would only be subject

to a ten-year rather than a lifetime reporting requirement . . .”).

      In the instant case, Rivera agreed to plead guilty to Count 1, indecent

assault, graded as a first-degree misdemeanor. (Notes of testimony, plea,

4/20/06 at 6.) The Commonwealth noted that it was a Megan’s Law offense.

(Id.) In exchange for his plea, the Commonwealth agreed to drop all other

charges. At sentencing, the Commonwealth indicated that there was a 10-

year registration/reporting requirement under Megan’s Law:

            Your Honor, before the Court does impose sentence,
            also I do have the notification at sentencing in
            regards to the Megan’s Law requirement in this case.
            It requires a 10-year registration.        After he
            addresses the Court, I would like an opportunity just
            to read that into the record.


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Notes of testimony, sentencing, 8/29/06 at 3. See also id. at 6 (“For the

offense that [Rivera] pled guilty [to], it requires a 10-year registration.”).

Rivera also completed a written sentencing notification, providing that, “The

period of registration shall be for ten (10) years from release from

incarceration.” (“Notification at sentencing,” 8/29/06 at 2, ¶8.)

       The Commonwealth argues that the period of registration was not a

specific term of the agreement and, at sentencing, Rivera was merely

informed that he was required to register under Megan’s Law for a period of

10 years, which notification was required by law. (Commonwealth’s brief at

10.)   The Commonwealth complains that the simple act of notifying a

defendant of his duty to register does not turn it into a bargained-for term of

a contract. (Id. at 12.)

       The Commonwealth made a similar argument in Nase, and this court

rejected it, agreeing with the appellant in that case that a 10-year

registration period was an implicit term of his plea. As discussed above, the

parties in Nase never explicitly stated that a 10-year registration period was

a condition of the appellant’s plea.   Nevertheless, this court held that the

10-year registration requirement was part of the appellant’s plea bargain

which must be strictly enforced, and any ambiguity was to be construed

against the Commonwealth. The record in this case supports the trial court’s

conclusion that the 10-year Megan’s Law registration period was an essential




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term of the negotiated plea agreement.        As such, it was not error for the

trial court to order specific enforcement of that bargain. Hainesworth.5

      The Commonwealth relies on Commonwealth v. Benner, 853 A.2d

1068 (Pa.Super. 2004), which is inapposite.         In Benner, the defendant

entered a negotiated guilty plea to aggravated indecent assault, purportedly

on the representation of the district attorney that he would not be subject to

the Megan’s Law registration provisions. Benner, 853 A.2d at 1069. The

Commonwealth withdrew additional charges including rape and IDSI.           Id.

At the time of his guilty plea and sentencing, Megan’s Law I was in effect.

Id. Subsequently, after the repeal of Megan’s Law I and the effective date

of Megan’s Law II, which required lifetime registration, the defendant was

granted parole.   Id.   As a condition of his release, prison officials insisted

that he register his address with the state police in accordance with

42 Pa.C.S.A. § 9795.1(b), the registration provision of Megan’s Law II



5
  We note that the Pennsylvania Supreme Court, on April 8, 2015, granted
allowances of appeal to consider the following question: “Whether the
Superior Court’s application of its decision [in] 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, 112 A.3d
1207 (Pa. 2015); see also Commonwealth v. Shower, 112 A.3d 1210
(Pa. 2015). Unless and until Hainesworth is overruled by the Supreme
Court of Pennsylvania, it remains the law of this Commonwealth. See
Commonwealth v. Martin, 727 A.2d 1136, 1141 (Pa.Super. 1999), appeal
denied, 745 A.2d 1220 (Pa. 1999) (“It is well-settled . . . that until the
Supreme Court overrules a decision of this Court, our decision is the law of
this Commonwealth.”), citing Commonwealth v. Leib, 588 A.2d 922, 932
(Pa.Super. 1991).


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applicable to his crime. Id. The defendant complied but filed a Motion for

Hearing Regarding Megan’s Law Applicability, asserting that he had crafted

his guilty plea to avoid Megan’s Law registration and had not been given a

Megan’s Law colloquy. Id. The trial court denied the motion and ordered

him to comply with the registration provisions of Megan’s Law II.          Id. at

1070.

        On appeal, a panel of this court affirmed, applying Commonwealth v.

Leidig, 850 A.2d 743 (Pa.Super. 2004), affirmed, 956 A.2d 399 (Pa. 2008)

(registration   provisions   of   Megan’s   Law   do   not   constitute   criminal

punishment and are properly characterized as a “collateral consequence” of

the defendant’s plea). We explained that

             [b]ecause the registration requirement under either
             Megan’s Law is a collateral consequence of the
             defendant’s plea, the failure of the court to apprise
             [Benner] of it does not invalidate his plea.
             Moreover, Benner, like the defendant in Leidig,
             concedes his awareness of the registration
             requirement under Megan’s I, acknowledging that it
             was a matter of concern when he entered his plea.
             Although he contends that he relied on the
             representation of the District Attorney that he would
             not be required to register, the record provides no
             substantiation that the District Attorney ever made
             such a representation. Moreover, Benner concedes
             that the law indisputably applicable on the date he
             tendered his plea required registration for ten years
             following release from prison.       Accordingly, we
             conclude that the failure of the trial court to inform
             Benner of the registration requirement prior to
             accepting his plea invalidates neither the plea nor
             application of the registration requirement under
             Megan’s I.



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Benner, 853 A.2d at 1071. The Benner court also concluded that the trial

court did not err in applying the lifetime registration provisions of Megan’s

Law II, where the increase in the length of the registration period does not

constitute punishment: “We read these cases to suggest 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 1072 (citations omitted).

      In Benner, there was no indication whatsoever that the 10-year

registration provision of Megan’s Law I was a term of the plea bargain. In

fact, the defendant in Benner was never informed, on the record, of the

applicable registration provisions.    Id. at 1069.    Therefore, this court in

Benner    never   analyzed    whether,    under   contract   law   principles,   a

registration requirement was included as a term of a negotiated plea

agreement. The Benner court found no support for the proposition that the

defendant had been promised that he would not be required to register.

Benner and Leidig, upon which Benner relied, are readily distinguishable.

See Hainesworth, 82 A.3d at 450 (“unlike the instant case, the record did

not support Benner’s contention that he had bargained for non-registration

as a term of his plea”); Nase, 104 A.3d at 533 (“The Leidig Court was not

faced with the question of whether the parties negotiated the registration

requirement as part of the plea agreement.”).         Here, the Commonwealth

insists that the specific length of registration is a collateral consequence of a



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defendant’s plea that is outside the Commonwealth’s control. However, as

stated by this court in Nase, “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.”     Id.

      For these reasons, we determine the trial court did not err in granting

Rivera’s motion to enforce the plea agreement requiring him to register

under Megan’s Law for a period of 10 years.      As a matter of fundamental

fairness, Rivera is entitled to specific enforcement of his valid plea bargain

and is not required to comply with the lifetime reporting requirements of

SORNA. See Nase; Hainesworth.

      Order affirmed.



      Jenkins, J. joins the Memorandum.

      Olson, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




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