J-S37023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

BRANDON MICHAEL BLAIR

                        Appellant                No. 1815 MDA 2013


           Appeal from the Order Entered September 16, 2013
             In the Court of Common Pleas of Centre County
            Criminal Division at No: CP-14-CR-0001702-2009


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                  FILED SEPTEMBER 03, 2014

     Appellant, Brandon Michael Blair, appeals from the order entered on

September 16, 2013 in the Court of Common Pleas of Centre County,




September 16 order.

     As a result of events that transpired in the early morning hours of

September 7, 2009, Appellant was arrested and charged with one count of

sexual assault, 18 Pa.C.S.A. § 3124, two counts of aggravated indecent

assault, 18 Pa.C.S.A. § 3125(a)(1), and two counts of indecent assault, 18

Pa.C.S.A. § 3126(a)(1). At a hearing conducted on July 23, 2010, Appellant

agreed to plead guilty to the two counts of indecent assault, misdemeanors

of the second degree.
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       On   August     24,   2010,     the     trial   judge   sentenced   Appellant    to

imprisonment in the Centre County Correctional Facility for a period of not

less than 11-1/2 nor more than 23-1/2 months on one count of indecent

assault, sentenced him to a consecutive two-year term of probation on the

second count of indecent assault, and nol prossed the remaining counts.



indecent assault convictions did not trigger any requirements to register as a

sex offender.1

       The trial judge approved Appellant for parole in an order filed May 18,

2011. On December 20, 2011, the Pennsylvania Legislature enacted the Sex



effective on December 20, 2012. 42 Pa.C.S.A. §§ 9799.10-9799.41. Any

individual being supervised by the board of probation or parole as of the

effective date of SORNA was subject to its provisions.                     42 Pa.C.S.A.

§ 9799.13(2).       An individual convicted of indecent assault under 18

                                                                                       ster

with the Pennsylvania State Police for a period of 15 years. 42 Pa.C.S.A.

§ 9799.14(b)(6) and 15(a)(1).             However, two convictions for indecent



____________________________________________


1

requirements were governed by 42 Pa.C.S.A § 9795.1, which expired on
December 20, 2012 pursuant to 42 Pa.C.S.A. § 9799.41.



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lifetime of the individual. 42 Pa.C.S.A. § 9799.14(d) and 15(a)(3). As an

individual with two convictions under 18 Pa.C.S.A. § 3126(a), Appellant

became subject to lifetime registration as a sex offender with the enactment

of SORNA.

       On November 5, 2012, in anticipation of the effective date of SORNA



2014, Appellant filed a Motion for Early Termination of Parole/Probation

and/or Motion to Withdraw Guilty Pleas nunc pro tunc. Appellant sought an

order terminating his probation prior to December 20, 2012 so he would not

have to register as a sex offender under SORNA, noting there was no

requirement to register under the statute in effect when he entered his

guilty plea. Alternatively, Appellant sought leave to withdraw his guilty plea,

claiming that a significant incentive for entering his guilty plea was to

eliminate the risk of a conviction requiring sex offender registration.



December 17, Appellant filed an amended motion seeking the same relief.

The trial court denied the amended motion by order entered on December

27, 2012.2


____________________________________________


2
                                                tion, the trial court
entered a second order on December 31, 2012 denying the amended
motion.




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      On July 2, 2013, Appellant filed a Petition to Enforce Plea Agreement

or for a Writ of Habeas Corpus in an attempt to bar retroactive application of

SORNA to his convictions.      Appellant asserted that the non-registration

aspect of his plea agreement, while not mentioned specifically in his written

                                                                        ement

and was one of two major reasons for the acceptance of the plea offer made



9/25/13, at ¶ 5.    Appellant argued that retroactive application of SORNA

violated his plea agreement and the Due Process Clauses of the United

States and Pennsylvania Constitutions.       Id. at ¶ 9.      By order dated

September 13 and filed on September 16, 2013, the trial court denied



      On September 25, Appellant filed a motion for an evidentiary hearing

so that Appellant could state on the record for this appeal his belief that the

plea agreement eliminated the possibility of any sex offender registration

requirement. The trial court granted the motion and an evidentiary hearing

was conducted on October 3, 2013. In the course of the hearing, Appellant



register as a sex offender, some of the other charges were fel

Evidentiary Hearing, 10/3/13, at 5.    He stated he would not have entered

the plea if he had known he would have to register as a sex offender, and




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explained that registration presents a problem for his employment, which

involves welding work in schools. Id. at 10-12.




           During the course of the case and after jury selection
     ongoing plea negotiations were instituted with the Assistant DA
     at the time [], and during the course of those negotiations a key

     [Appellant] would not plead to anything that would require a
     state sentence or require registration as a sex offender.

                                ***

           [The Assistant D.A.] got back to me with a plea offer. The
     plea offer was that if [Appellant] pled guilty to two counts of
     indecent assault, misdemeanors of the second degree, the
     Commonwealth would nol pros the other charges but he would
     have to serve a sentence of 11 and a half to 23 and a half
     months in regard to Count 4, that was the first count of indecent
     assault, and that would be followed by a period of probation
     thereafter.

           The period of incarceration was above and beyond the
     standard, or even for that matter the aggravated range, of the
     sentencing guidelines for misdemeanor two, indecent assault,
     but because it involved charges which would not require
     [Appellant] to register as a sex offender, and after many
     discussions not only with [Appellant] and his parents in my office
     and on the phone, . . . [Appellant] agreed to accept the plea.

           Implicit in that agreement was his understanding that he
     would not have to register as a sex offender. At the time he had
     a job, which required him to go into schools and that was a big,
     big concern to him, that he not have to register as a sex
     offender.

           Had he had to register as a sex offender, [Appellant] had
     made it clear to me he would take his chances with a trial. We
     had talked about a trial and all of the potential problems and risk
     involved, even though we always felt he had a decent defense to

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     this case because it involved a situation in which the young lady
     involved thought she was having sex with her boyfriend after

     boyfriend, it was [Appellant] and he was charged as a result of
     those circumstances.

           But, again, it was absolutely clear that [Appellant] had two
     major concerns in pleading guilty, avoiding the risk of going to
     state prison if he were convicted of a felony charge and not
     having to register as a sex offender if we were able to work out a
     plea negotiation. It was clear from the beginning.

Id. at 14-

avoiding sex offender registration in the plea offer, in the guilty plea



requirement for registration [for the misdemeanor two indecent assault

convictions] and no one could have foreseen that this would become an

                       Id. at 20.

     Following the evidentiary hearing, Appellant filed a timely appeal from

the September 16 order and co

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b).     Appellant raised two errors in his 1925(b) statement and has

rephrased them in this appeal as follows:

     I.      Did the lower court err in
             enforce plea agreement or for a writ of habeas corpus
             relating to the registration requirements under SORNA on
             the basis the lower court no longer had jurisdiction in


     II.     Did the lower court err in holding it no longer had
             jurisdiction or authority to enforce the explicit and/or
             implicit terms of the plea agreement entered into by
             [Appellant] and the Commonwealth in his case?

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                                                         ion, the trial court



constrained from granting relief to Appellant by virtue of its lack of



at 2-3. A week later, the trial court withdrew its December 12 opinion in a



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

banc), appeal denied, 2014 Pa. LEXIS 1664 (Pa., July 8, 2014).

     In Hainesworth, an en banc panel of this Court upheld the trial

                                            -SORNA plea agreement under

which no sex offender registration was required, applying contract principles

                                                    a negotiated term that

                                                          Id. at 450. In the

wake of Hainesworth, the trial court in the instant case explained it was

withdrawing its December 12 opinion, anticipating this Court would reverse

the Se

agreement. Trial Court Supplemental Opinion, 12/19/13, at 1.

     The Commonwealth attempts to distinguish Hainesworth based on

                                                                    ding sex

offender registration during the plea hearing in his case, whereas there was




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While it is true Appellant did not explain on the record in 2010 his motivation

for accepting the plea deal, it is equally true he was not asked anything

more specific than whether he understood the range of sentences and fines

for the offenses charged. N.T. Guilty Plea Hearing, 7/23/10 at 6. He did,

however, testify at the 2013 evidentiary hearing that the risk of having to

register as a sex offender was a consideration for entering into the plea

agreement. N.T. Evidentiary Hearing, 10/3/13, at 5, 10-12.

      In Hainesworth, this Court employed a contract law analysis to



                                    Id. at 447 (quoting Commonwealth v.

Fruehan                                                              rmination



ambiguities in the terms of the plea agreement will be construed against the

                     Id. (quoting Commonwealth v. Kroh, 654 A.2d 1168,

1172 (Pa. Super. 1995)). This Court concluded non-registration was a term



specific enforcement of the terms of that bargain. Id. at 448.

      In the case before us, we could likewise employ a contract law analysis



plea agreement. However, that analysis is unnecessary due to amendments

to SORNA, under which Appellant is no longer subject to the registration




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requirements. See Commonwealth v. Bundy, 2014 PA Super. 144, 2014

Pa. Super. LEXIS 1780 (July 10, 2014).

        On March 12, 2014, while this appeal was pending, Act 19 was signed

into law, amending SORNA by, inter alia, adding § 9799.13(3.1), effective

retroactive to December 20, 2012, so that § 9799.13 now reads, in relevant

part:

        § 9799.13. Applicability

        The following individuals shall register with the
        Pennsylvania State Police as provided in sections 9799.15
        (relating to period of registration), 9799.19 (relating to initial
        registration) and 9799.25 (relating to verification by sexual
        offenders and Pennsylvania State Police) and otherwise comply
        with the provisions of this subchapter:

                                   ***

        (2) An individual who, on or after [December 20, 2102], is, as a
        result of a conviction for a sexually violent offense, . . . being
        supervised by the Pennsylvania Board of Probation and Parole or
        county probation or parole [].

                                   ***
        (3.1) The following:

        (i) An individual who between January 23, 2005, and
        December 19, 2012, was:

        (A) convicted of a sexually violent offense;

        (B) released from a period of incarceration resulting from
        a conviction for a sexually violent offense; or

        (C) under the supervision of the Pennsylvania Board of
        Probation and Parole or county probation or parole as a
        result of a conviction for a sexually violent offense.




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                       shall have the meaning set forth in section
     9799.12 (relating to definitions), except that it shall not
     include:

                                ***

     (B) A conviction under 18 Pa.C.S. § 3126 (relating to
     indecent assault) where the crime is graded as a
     misdemeanor of the second degree [].

42 Pa.C.S.A. § 9799.13 (emphasis added).

     In Bundy

present cognizable issues under the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546, this Court does have jurisdiction to review orders confirming

or rejecting a retroactive sex offender registration requirement.   Bundy,

supra at *3-*4.      The Court then considered the current registration

requirements under SORNA as amended and announced:

     The proper interpretation of a statute raises a question of law,
     over which our standard of review is de novo and our scope of
     review is plenary. Commonwealth v. Dixon, 53 A.3d 839, 842
     (Pa. Super. 2012).




     language    superfluous   or   assume   language   to   be   mere

     ambiguity, the letter of it is not to be disregarded under the


     In re T.P., 78 A.3d 1166, 1174 (Pa. Super. 2013).

     Moreover, where there is a conflict in the terms of a statute, 1
     Pa.C.S. § 1933 provides the following guidance:




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J-S37023-14


       Whenever a general provision in a statute shall be in
       conflict with a special provision in the same or another
       statute, the two shall be construed, if possible, so that
       effect may be given to both. If the conflict between the
       two provisions is irreconcilable, the special provisions shall
       prevail and shall be construed as an exception to the
       general provision, unless the general provision shall be
       enacted later and it shall be the manifest intention of the
       General Assembly that such general provision shall prevail.

     1 Pa.C.S. § 1933.

     Under 42 Pa.C.S. § 9799.13(3.1), which was enacted by Act 19
     and made retroactive to December 20, 2012, certain convictions
     between January 23, 2005, and December 19, 2012, for
                                                                    42
     Pa.C.S. §    9799.13(3.1)(i)(A)      (stating   that registration
     requirement applies, inter alia, to [an] individual, who between

     However, the General Assembly also established that several
     offenses are not sexually violent offenses under Paragraph (3.1).
     42 Pa.C.S. § 9799.13(3.1)(ii)
     paragraph
     meaning set forth in section 9799.12 (relating to definitions),
     except
     subparagraphs (A) and (B) (emphasis added)). Those exceptions
                                      18 Pa.C.S. § 3126 (relating to
     indecent assault) where the crime is graded as a misdemeanor
                                  42 Pa.C.S. § 9799.13(3.1)(ii)(B).
     Consequently, where an individual, between January 23, 2005,
     and December 19, 2012, is convicted of an offense enumerated
     in 42 Pa.C.S. § 9799.13(3.1)(ii)(A) or (B), such as indecent
     assault graded as a second-degree misdemeanor, that conviction
     is not
     requirement.

     Instantly, [Bundy], in relevant part, was convicted of indecent
     assault graded as a misdemeanor of the second degree on May
     12, 2009. Therefore, the conviction upon which registration is
     currently sought occurred within the timeframe specified in
     Paragraph 3.1(i)(A). However, under Paragraph 3.1(ii)(B) the
     offense is not deemed to be a sexually violent offense.
     Accordingly, [Bundy] falls within the exception to the application



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J-S37023-14


      of Megan's Law, and he is not subject to registration under 42
      Pa.C.S. § 9799.15.

      Thus, having reviewed the record and the governing law, we
      conclude [Bundy] is not subject to a registration requirement,
      and we must reverse the order of the trial court confirming the
      imposition of a registration requirement.

Id. at *10-*13.



Paragraph (3.1)(ii) and Paragraph (2) of § 9799.13 and turned to the

statutory construction provisions of 1 Pa.C.S.A. § 1933 to resolve that

                     the extent there may be a conflict in the statute, the

general provision in Paragraph (2) yields to the specific provision set forth in

                                                  Id. at *12-*13 n.4.

      Appellant was convicted on August 24, 2010 of two counts of indecent

assault under 18 Pa.C.S.A. 3126(a) graded as misdemeanors of the second

degree. As in Bundy

specified in Paragraph 3.1(i)(A) but his offense no longer is deemed a

sexually violent offense under Paragraph 3.1(ii)(B). Consequently, Appellant

falls into the exception created by Act 19 and he is not subject to

registration under 42 Pa.C.S.A. § 9799.15.      Therefore, we vacate the trail



      Order vacated. Jurisdiction relinquished.




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J-S37023-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/2014




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