J-S28038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CARLOS GENE MOOSE, JR.

                        Appellant                   No. 1897 MDA 2014


              Appeal from the Order Dated October 17, 2014
               In the Court of Common Pleas of York County
           Criminal Division at No(s): CR-67-CR-0000798-1988


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JUNE 08, 2015

      Carlos Gene Moose, Jr., appeals from the order entered on October 17,

2014, in the Court of Common Pleas of York County, denying his motion to

enforce a negotiated plea agreement and to enjoin any requirement that he

register under the Sex Offender Registration and Notification Act (“SORNA”).

Upon review, we affirm.

      In 1987, Moose assisted his co-defendant in the rape and murder of

Judy Ketterman, whom police found dead beneath a railroad bridge along

Codorus Creek in York County.       Specifically, Moose restrained the victim

while his co-defendant raped her, banged her head, and held a knife to her

throat.
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        Following a remand from our Supreme Court,1 Moose was scheduled

for re-trial.   On May 9, 1995, Moose pled guilty pursuant to a negotiated

plea agreement.       In exchange for pleading guilty to third-degree murder,2

rape,3 and criminal conspiracy to commit rape,4 Moose received an

aggregate sentence of 15 to 30 years’ incarceration.

        At the time of Moose’s plea, Pennsylvania had not yet enacted Megan’s

Law legislation.      On December 20, 2012, Pennsylvania’s Sex Offender

Registration and Notification Act (SORNA)5 went into effect, requiring

lifetime registration.

        On August 13, 2014, Moose filed a motion to enforce the negotiated

plea agreement and enjoin any requirement that he register under SORNA.

The trial court denied Moose’s motion on October 17, 2014, and this timely

appeal followed.

        On appeal, Moose argues that his forced compliance with the

registration requirement of SORNA violates due process of law, fundamental

____________________________________________


1
  The Pennsylvania Supreme Court reversed Moose’s conviction in 1992 on
the grounds of prosecutorial misconduct. See Commonwealth v. Moose,
602 A.2d 1265 (Pa. 1992).
2
    18 Pa.C.S. § 2502(c).
3
    42 Pa.C.S. § 9799.13.
4
    18 Pa.C.S. §903(3121).
5
    42 Pa.C.S. §§ 9799.10‒9799.41 (also known as Megan’s Law IV).



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fairness,    and   the    negotiated     plea   agreement   he      entered    with       the

Commonwealth.             In   support    of    his   argument,     Moose     relies      on

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

banc). We find Moose’s reliance misplaced.

         In Hainesworth, the defendant entered a negotiated guilty plea to

statutory    sexual      assault,   indecent    assault   and     criminal    use    of    a

communication facility.         None of these convictions required registration

under the then-prevailing version of Megan’s Law.6 Moreover, as part of the

guilty    plea agreement,       the    Commonwealth withdrew          another       charge

(aggravated indecent assault) that would have imposed a registration

requirement. During the guilty plea hearing, the Commonwealth repeatedly

assured the defendant that his guilty plea did not obligate him to register as

a sex offender. Three years later, one week before SORNA took effect, the

defendant filed a motion seeking to terminate supervision by the probation

department. The trial court denied the petition to terminate supervision but

held that application of SORNA’s registration requirements to the defendant

violated due process. The Commonwealth appealed the trial court’s order,

and we affirmed, reasoning: “The parties to this appeal entered into a plea

bargain that contained a negotiated term that Hainesworth did not have to




____________________________________________


6
    42 Pa.C.S. § 9791.



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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.

      Here, it is undisputed that Moose entered into a negotiated plea

agreement with the Commonwealth.             However, there is a significant

difference between the case sub judice and Hainesworth.                When Moose

pled guilty, sexual offender registration did not exist and therefore could not

possibly have been a consideration for the plea agreement. Hainesworth

and its progeny require that registration be a negotiated term of the plea,

either expressly or implied. Accordingly, we decline to apply the reasoning

of Hainesworth to the instant matter.

      In    determining   whether    Moose   is   subject   to   the    registration

requirement of SORNA, we find the recent case of Commonwealth v.

Perez, 97 A.3d 747, 760 (Pa. Super. 2014), to be dispositive.

      In Perez, this court held that the retroactive application of SORNA

does not violate the Ex Post Facto Clauses of both the Pennsylvania and

United States Constitutions.        Id. at 760.     Therefore, the retroactive

application of SORNA is permissible.

      Instantly, Moose is still serving his sentence for the rape conviction.

Under the current version of Megan’s Law, rape constitutes a Tier III offense

and requires life-long registration.     Accordingly, Moose is required to

register.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2015




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