J-A29002-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                     Appellee             :
                                          :
            v.                            :
                                          :
DAVID EDWARD KACPRZYK,                    :
                                          :
                     Appellant            : No. 1536 WDA 2013

                      Appeal from the Order August 7, 2013,
                    Court of Common Pleas, Allegheny County,
                 Criminal Division at No. CP-02-CR-0000623-2010

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 07, 2014

      David Edward Kacprzyk (“Kacprzyk”) appeals from the August 7, 2013

order entered in the Allegheny County Court of Common Pleas denying his

petition seeking enforcement of a plea agreement. For the reasons set forth

herein, we affirm.

      The trial court provided the following summary of the procedural

history of this case:

            On December 10, 2009, [Kacprzyk] was charged
            with one count of Possession of Child Pornography, a
            felony of the third degree. On October 12, 2010,
            [Kacprzyk] pled guilty to this offense, waived a pre-
            sentence report, and proceeded to sentencing.
            [Kacprzyk] and the Commonwealth had an
            agreement as to sentence that [Kacprzyk] would
            receive five (5) years [of] probation and comply with
            the special conditions of probation.[FN] In addition to
            this sentence, [Kacprzyk] had a ten (10) years’ [sic]
            Megan’s Law Registration requirement.




*Retired Senior Judge assigned to the Superior Court.
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          Since the date of his sentencing, [Kacprzyk] has
          been found to be in violation of the terms and
          conditions of his probation for failure to comply with
          the special sex offender conditions three (3) times.
          On December 6, 2011, the first bench warrant was
          issued for a violation of probation. On February 28,
          2012, [Kacprzyk] was found to be in violation and
          his October 12, 2011 period of probation was
          revoked. On that date, [Kacprzyk] was resentenced
          to time served of eighty-four (84) days in the
          Allegheny County Jail to be followed by five (5)
          years’ probation. On February 25, 2013, a second
          bench warrant was issued for a violation of
          [Kacprzyk’s] probation.        On May 15, 2013,
          [Kacprzyk] was found to be in violation, however, his
          current sentence was continued. A mere six (6)
          weeks later, a third bench warrant was issued for
          continued violation of the special conditions of his
          probation and [Kacprzyk] was lodged in the
          Allegheny County Jail beginning on June 27, 2013.
          Thereafter, on September 26, 2013, [Kacprzyk] was
          found to be in violation and his period of probation
          was revoked and he was sentenced to nine (9) to
          twenty-three (23) months in the Allegheny County
          Jail with a consecutive three (3) year period of
          probation.

          On May 6, 2013, [Kacprzyk] filed a Petition Seeking
          Enforcement of a Plea Agreement, or in the
          alternative, Motion for Writ of Habeas Corpus. The
          Commonwealth filed an Answer to Post-Conviction
          Relief Act Petition on May 7, 2013, as the
          Commonwealth considered [Kacprzyk’s] Motion to be
          a Post-Conviction Relief Act Petition. A hearing on
          [Kacprzyk’s] Motion was heard on June 17, 2013. At
          the conclusion of the hearing, [c]ounsel for
          [Kacprzyk] was given leave to file a brief on the
          jurisdictional    argument      raised      by    the
          Commonwealth. After consideration of the above,
          this [c]ourt denied [Kacprzyk’s] Petition on August 7,
          2013.

          Counsel for [Kacprzyk] failed to timely file an appeal
          to the August 7, 2013 Order. On September 23,


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            2013, [c]ounsel for [Kacprzyk] filed a Petition for
            Post-Conviction Relief seeking reinstatement of
            direct appeal rights. This was granted on September
            24, 2013, and [Kacprzyk] filed his Notice of Appeal
            on September 26, 2013.         On October 2, 2013,
            [c]ounsel for [Kacprzyk] was directed to file a
            Concise Statement of Matters Complained of on
            Appeal.      Thereafter, on October 23, 2013,
            [Kacprzyk] filed his Concise Statement[.]
            _____________________
            [FN]
                  This [c]ourt notes that the guilty plea and
            sentence were entered on October 12, 2010,
            however an amended order of sentence was entered
            on December 12, 2010 due to a clerical error.

Trial Court Opinion, 6/16/14, at 1-2 (footnote included in the original).

      On appeal, Kacprzyk presents the following issue for our review:

            Did the trial court err in refusing to enforce and
            uphold the time period of sex offender registration
            that was initially imposed and agreed upon, such
            that [] Kacprzyk may obtain the benefit of his plea
            bargain and only register for a 10-year period,
            despite any probation violation?

Kacprzyk’s Brief at 5.

      Kacprzyk    argues     that   the    10-year    sex   offender    registration

requirement    was      an   essential    term   of   his   agreement    with   the

Commonwealth and that because the term was negotiated, it is enforceable

under contract principles. Id. at 10-14. In its written opinion, the trial

court noted that at the time of the hearing on Kacprzyk’s petition for seeking

enforcement of plea agreement, Kacprzyk “was a three-time violator of [the]

[c]ourt’s probation.”    Trial Court Opinion, 6/14/14, at 3.      The trial court

denied Kacprzyk’s petition “on the basis that [he] had not been in



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compliance with the terms and conditions of his probation[.]”          Id.     As a

result, the trial court concluded that Kacprzyk “is not entitled to specific

performance of his plea agreement.” Id.

      As the issue raised by Kacprzyk before this Court is whether the trial

court erred by not upholding and enforcing the 10-year sex offender

registration requirement pursuant to the plea agreement, we look to

contract law for our standard of review.             See Commonwealth v.

Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010) (“Although a plea

agreement occurs in a criminal context, it remains contractual in nature and

is to be analyzed under contract-law standards.”)            As such, we must

determine “‘what the parties to this plea agreement reasonably understood

to be the terms of the agreement.’” Commonwealth v. Hainesworth, 82

A.3d 444, 447 (Pa. Super. 2013) (citing Commonwealth v. Fruehan, 557

A.2d 1093, 1095 (Pa. Super. 1989)). “Such a determination is made ‘based

on the totality of the surrounding circumstances,’ and ‘[a]ny ambiguities in

the   terms   of   the    plea   agreement   will   be   construed   against    the

[Commonwealth].”         Id. (citing Commonwealth v. Kroh, 654 A.2d 1168,

1172 (Pa. Super. 1995)).

      In his brief, Kacprzyk argues that “[t]he ten year provision was [] an

implicit part of the negotiated plea agreement in this case.” Kacprzyk’s Brief

at 19. In support of his argument, Kacprzyk states that he signed a Megan’s

Law Colloquy form on October 10, 2010, indicating that he must register for



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10 years, and argues that “[t]he parties also acknowledged on the record

that Megan’s Law registration would apply here; specifically, a ten year

period of registration.” Id.

      The notes of testimony establish the following dialogue:

            THE COURT: I see you are pleading guilty to one
            count of possession of child pornography, a felony
            three, punishable by a maximum of seven years and
            a $15,000 fine.

            Do you understand that as a result of your plea
            today you are required to register with the
            Pennsylvania State Police as a sexual offender?

            [] KACPRZYK: Yes.

            THE COURT: Do you understand that as a result of
            your plea today you will be required to register your
            name, all information concerning current or intended
            employment, or all information current or intended
            enrollment as a student with the Pennsylvania State
            Police as a sexual offender?

            [] KACPRZYK: Yes.

            THE COURT: Do you understand the charges to
            which you are pleading guilty to require you to
            register as a sexual offender for a period of ten
            years?

            [] KACPRZYK: Yes.

                                    ***

N.T., 10/12/10, at 5-6.

      In addition, the record reflects that at the conclusion of the sentencing

hearing, the trial court set out the terms of plea agreement as follows:




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            All right. On Case Number 0623 of 2010, based on
            David E. Kacprzyk’s guilty plea to possession of child
            pornography, a felony three, the sentence is five
            years probation effective at plea date, pay court
            costs, and the [c]ourt has signed the Charge Specific
            Special Conditions that Mr. Kacprzyk will abide by.

Id. at 12-13.    Notably, the trial court did not mention the sex offender

registration requirements.     Furthermore, the “Charge Specific Special

Conditions” referenced in the record does not refer to sex offender

registration requirements.

      There is no indication in the exchange between the trial court and

Kacprzyk or elsewhere in the record that the parties specifically agreed to a

10-year term. To the contrary, the record establishes that the parties did

not specifically agree to the 10-year registration period as a term of the plea

agreement; rather, the registration period was imposed by virtue of the

charge to which Kacprzyk pleaded guilty and the mandatory registration

requirements of Megan’s Law relating to that charge. See 42 Pa.C.S.A. §

9795.1(A)(1) (repealed December 20, 2012) (“The following individuals shall

be required to register with the Pennsylvania State Police for a period of ten

years: Individuals convicted of […] 18 Pa.C.S.[A.] § 6312 (relating to sexual

abuse of children).”)

      Furthermore, there is no support in the record for Kacprzyk’s assertion

that it was an “implicit part” of the plea agreement. Kacprzyk argues that

he is entitled to enforce the 10-year registration term based upon this

Court’s holding in Hainesworth. Kacprzyk’s Brief at 13.


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        In Hainesworth, the defendant entered into a negotiated guilty plea

with the Commonwealth.      Hainesworth, 82 A.3d at 445.       As part of the

plea, the Commonwealth withdrew charges that would require the defendant

to register as a sex offender under Megan’s Law.      Id. at 446.    Thus, the

defendant did not and was not required to register. Id.

        On December 13, 2012, the defendant filed a motion seeking

termination of his supervision to avoid being subjected to the sexual

offender registration requirements of The Sexual Offender Registration and

Notification Act (“SORNA”), which would become effective on December 20,

2012.     Id. at 446.   The trial court “entered an order stating that [the

defendant] was not subject to the registration requirements of SORNA[,]”

upholding the original negotiated plea agreement that did not require the

defendant to register as a sex offender. Id. at 446-47. The Commonwealth

appealed to this Court and we affirmed, concluding that “the parties to [the]

appeal entered into a plea bargain that contained a negotiated term that

[the defendant] did not have to register as a sex offender. As such, it was

not error for the trial court to order specific enforcement of that bargain[.]”

Id. at 450.

        We find Hainesworth to be distinguishable from the case presently

before this Court. In Hainesworth, the defendant negotiated the crimes to

which he pled guilty, ensuring that he would not be subject to the sex

offender registration requirements. Thus, implicit to the defendant’s guilty



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plea   was   the   absence   of   a   sex   offender   registration   requirement.

Conversely, in the case at bar, Kacprzyk pled guilty to the only crime with

which he was charged, which carried a mandatory 10-year registration

requirement. Therefore, Kacprzyk’s reliance on Hainesworth is misplaced.

Kacprzyk’s assertion that the registration requirement was an implicit part of

his plea agreement is without support.

       As this Court has held, “the agreement itself controls where its

language sets out the terms of the bargain with specificity.” Kroh, 654 A.2d

at 1172.     Based upon our review of the plea agreement and the court’s

pronouncement of the terms of the agreement, we conclude that there is no

evidence that the 10-year sex offender registration requirement was a

negotiated term of the plea agreement.

       Nevertheless, even if the 10-year registration period could be

considered a negotiated term of the plea agreement, we agree with the trial

court’s conclusion that Kacprzyk is not entitled to specific performance of the

plea agreement.

       Kacprzyk asserts “that the fact that he had violated probation between

the time of his initial plea and the time he sought enforcement of the

registration term of the plea agreement should not prevent him from

enforcing the agreement with the Commonwealth.” Kacprzyk’s Brief at 13.

Instead, Kacprzyk argues that “[…] when a sentence has been violated, a

trial court may impose a new sentence not limited to what was in the



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original negotiated plea agreement[,] [b]ut the entire agreement is not

void.”     Id. at 20.   He further argues that “[i]f the violation of probation

voided Kacprzyk’s plea agreement, when he came to court for a probation

violation hearing he could seek to have a jury trial on the underlying

charges.”      Id.   Thus, as Kacprzyk asserts, “the issue here is whether a

subsequent violation of probation will negate the negotiated agreement

regarding registration.” Id. at 14.

         As previously stated, the trial court determined that Kacprzyk’s

violation of probation prevents him from enforcing the plea agreement with

the Commonwealth. Trial Court Opinion, 6/16/14, at 3-4. In reaching its

conclusion, the trial court relied upon this Court’s recent decision in

Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014).                 Trial Court

Opinion, 6/16/14, at 3.

         In Partee, the appellant entered a negotiated nolo contendere plea to

indecent assault (person under age of thirteen), corruption of minors, and

endangering the welfare of children.          Pursuant to the negotiated plea

agreement, counts one and two of the information, rape and incest, were

withdrawn. Id. at 246. As a result of the plea bargain, the appellant was

only required to register as a sex offender for 10 years, rather than for his

lifetime. Id. at 248-49.

         After the appellant violated his probation, the trial court held a hearing

and sentenced the appellant at count three, indecent assault, to a term of



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imprisonment. Id. at 246. The appellant filed a motion for reconsideration

of the sentence, which the trial court denied.     Id.   On appeal, this Court

affirmed the judgment of sentence. The appellant then filed a petition for

habeas corpus and/or seeking enforcement of a plea agreement, specifically,

the 10-year sex offender reporting requirement that was allegedly part of his

original plea agreement. Id. After the trial court dismissed this petition, the

appellant appealed to this Court. Id.

      A panel of this Court concluded that the appellant was not entitled to

specific performance of the negotiated plea agreement because “having

failed to abide by the terms of the plea bargain, that agreement [was] no

longer in effect[.]” Id. at 250. Citing to our Supreme Court, we held that

“where probation is violated, the trial court is free to impose any sentence

permitted under the Sentencing Code and is not restricted by the bounds of

a negotiated plea agreement between a defendant and prosecutor.” Id. at

249. We explained:

            The rationale for giving the trial court such discretion
            upon resentencing is grounded in the nature of a
            negotiated guilty plea, which is a two-sided
            agreement that imposes obligations on both the
            defendant and the Commonwealth.            On the one
            hand, the Commonwealth agrees not to prosecute
            the defendant to the full extent of the law and to
            recommend a circumscribed punishment.               The
            defendant, on the other hand, accepts this benefit
            with the implicit promise that he will abide by the
            terms of the agreement and behave in accordance
            with the legal punishment imposed by the court.
            See Commonwealth v. Coles, 530 A.2d 453 (Pa.
            Super. 1987) (holding that the benefit of the bargain


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             principle commonly applied to the prosecution is also
             equally applicable to the defendant and imparts upon
             him the obligation to abide by the negotiated terms
             of his sentence).

Id. at 249 (citing Commonwealth v. Wallace, 870 A.2d 838, 843 n.6

(Pa. 2005)).

      Although    the   defendant    in   Partee    did   not   address    the

Commonwealth’s argument regarding the effect of his violation of probation

on the terms of his original plea agreement, we disagree with Kacprzyk that

the Partee court’s holding on this matter is dicta. See Kacprzyk’s Brief at

15. Rather, our review of Partee reveals that the defendant’s violation of

probation was the basis for its decision. See Partee, 86 A.3d at 249-50.

Therefore, we conclude that the trial court did not err in determining that his

probation violation prevents Kacprzyk from enforcing the plea agreement.

Contrary to Kacprzyk’s assertion that his probation violation should not

prevent him from enforcing the plea agreement with the Commonwealth and

that “nothing was said that continued [] Kacprzyk’s duties under the contract

beyond the entry of the plea[,]” Kacprzyk’s Brief at 13, 19, our holding in

Partee demonstrates that the nature of a plea agreement imposes

continued duties and obligations on both the defendant and Commonwealth.

See Partee, 86 A.3d at 249 (citing Wallace, 870 A.2d at 843 n.6). Thus,

the plea agreement was no longer enforceable after Kacprzyk’s probation

violation.




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      Kacprzyk argues that even if his probation violation voids his plea

agreement, the trial court is bound by the 10-year registration period.

Kacprzyk’s Brief at 22.   Kacprzyk cites to 42 Pa.C.S.A. § 9771(b), which

provides that “[u]pon revocation the sentencing alternatives available to the

court shall be the same as were available at the time of initial sentencing[.]”

Id.; Kacprzyk’s Brief at 22.   Kacprzyk argues that “[s]ince the trial court

during the initial sentencing did not have the ability to impose a registration

period longer than ten years, it could not do so again upon resentencing for

a probation violation.” Id. at 24-25.

      Kacprzyk correctly cites to 42 Pa.C.S.A. § 9771(b) as governing law

for resentencing a defendant following the revocation of an order of

probation. “[T]his Court has held that the revocation of probation places a

defendant in the same position he was in at the time of the original

sentencing. Thus, upon revocation of probation, the sentencing court has all

of the alternatives available at the time of the initial sentencing.”

Commonwealth v. Mazzetti, 44 A.3d 58, 61 (Pa. Super. 2012) (internal

citations omitted) (citing Wallace, 870 A.2d at 838, 842-43; 42 Pa.C.S.A. §

9771(b)).

      At the time of Kacprzyk’s initial sentencing hearing, Megan’s Law II, 42

Pa.C.S.A. § 9791, et seq. (repealed December 20, 2012), provided two

terms of registration: a 10-year requirement and a lifetime requirement. 42

Pa.C.S.A. § 9795.1 (repealed December 20, 2012). A conviction of sexual



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abuse of children required a 10-year registration period.              Id.   Thus, at

Kacprzyk’s resentencing hearing, he was subject to a 10-year registration

period.

      However, as of January 24, 2012, the date of the hearing for

Kacprzyk’s first probation violation, Pennsylvania’s Megan’s Law statute had

been replaced by SORNA. Under SORNA, sexual abuse of children mandates

a 15-year registration period.     See 42 Pa.C.S.A. § 9799.15.           In addition,

Section 9799.13 provides that the SORNA registration requirements apply

retroactively to “[a]n individual who[] was required to register with the

Pennsylvania State Police pursuant to this subchapter prior to December 20,

2012, and who had not fulfilled the individual’s period of registration as of

December    20,      2012.”       42    Pa.C.S.A.   §    9799.13(3).          Section

9799.13(3.1)(i)(C)    also    applies   the   SORNA     registration    requirements

retroactively to “[a]n individual who between January 23, 2005, and

December 19, 2012, was[] 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.” 42 Pa.C.S.A. § 9799.13(3.1)(i)(C).

      In this case, Kacprzyk had not fulfilled the 10-year period of

registration as of December 20, 2012. In addition, Kacprzyk was under the

supervision of the Pennsylvania Board of Probation and Parole beginning on

October 12, 2010 as a result of a conviction of sexual abuse of children.

Sexual abuse of children is considered to be a tier 1, sexually violent



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offense.   42 Pa.C.S.A. §§ 9799.14(b)(9), 9799.15(a)(1).                 Consequently,

Kacprzyk   became      subject   to    the   retroactive   application    of   SORNA’s

registration requirements pursuant to sections 9799.13(3) and (3.1)(i)(C),

which results in a 15-year registration requirement.               42 Pa.C.S.A. §§

9799.13(3), (3.1)(i)(C); 42 Pa.C.S.A. § 9799.15(a)(1).

      The Commonwealth argues, and we agree, that the “sentencing court

possesses no authority over the registration process [under SORNA].”

Commonwealth’s Brief at 16. Section 9799.23(b)(2) specifically states that

“the court shall have no authority to relieve a sexual offender from the duty

to register under this subchapter or to modify the requirements of this

subchapter as they relate to the sexual offender.”                 42 Pa.C.S.A. §

9799.23(b)(2). Accordingly, the trial court had no authority in this case to

modify the 15-year registration requirement.

      As a result, for the reasons discussed herein, we conclude that the trial

court did not err in refusing to enforce and uphold the 10-year sex offender

registration period.

      Finally, Kacprzyk argues that SORNA registration requirements and

retroactive application of SORNA registration requirements violates the ex

post facto clauses of the United States and Pennsylvania Constitutions.

Kacprzyk’s Reply Brief at 8.          Kacprzyk argues that SORNA’s registration

requirements are punitive and not collateral consequences of a conviction.

Id. at 8-9.   A review of the record reflects that Kacprzyk presented this



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challenge for the first time on appeal. It is well settled under the Rules of

Appellate Procedure that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”             Pa.R.A.P. 302(a).

Moreover, in his concise statement of errors complained of on appeal

pursuant to Rule 1925(b) of the Rules of Appellate Procedure, Kacprzyk

expressly states that he is not challenging the constitutionality of SORNA.

As this Court has held, “[w]here the trial court orders an [a]ppellant to file a

concise statement of matters complained of on appeal under Pa.R.A.P. 1925,

any   issue   not   contained   in   that   statement   is   waived   on   appeal.”

Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super. 2008) (citations

omitted); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”). Accordingly, Kacprzyk waived this issue.1

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


1
   This Court has already ruled that the retroactive application of SORNA
does not violate the ex post facto clause of the United States Constitution.
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014). We also note
that   Kacprzyk’s   constitutional  challenge   to   SORNA     is  woefully
underdeveloped.


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Date: 11/7/2014




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