                      [J-29A-C-2016][M.O. – Baer, J.]
               IN THE SUPREME COURT OF PENNSYLVANIA
                            MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,     :   No. 30 MAP 2015
                                  :
               Appellant          :   Appeal from the Order of the Superior
                                  :   Court at No. 1420 MDA 2013, dated
          v.                      :   4/14/14 affirming the order of the York
                                  :   County Court of Common Pleas,
                                  :   Criminal Division, at No. CP-67-CR-
GABRIEL J. MARTINEZ,              :   0001486-2010, dated 7/19/13
                                  :
               Appellee           :
                                  :
                                  :   ARGUED: March 8, 2016
                                  :
COMMONWEALTH OF PENNSYLVANIA,     :   No. 32 MAP 2015
                                  :
               Appellant          :   Appeal from the Order of the Superior
                                  :   Court at No. 1522 MDA 2013 dated
          v.                      :   4/14/14 affirming the order of the York
                                  :   County Court of Common Pleas,
                                  :   Criminal Division, at No. CP-67-CR-
ADAM MACKENZIE GRACE,             :   0000227-2011, dated 7/31/13
                                  :
               Appellee           :
                                  :
                                  :   ARGUED: March 8, 2016
                                  :
COMMONWEALTH OF PENNSYLVANIA,     :   No. 34 MAP 2015
                                  :
               Appellant          :   Appeal from the Order of the Superior
                                  :   Court at No. 1422 MDA 2013 dated
          v.                      :   4/15/14 affirming the order of the York
                                  :   County Court of Common Pleas,
                                  :   Criminal Division, at No. CP-67-CR-
WAYNE PATRICK SHOWER,             :   0006313-2005, dated 7/19/13
                                  :
               Appellee           :
                                  :
                                  :   ARGUED: March 8, 2016
                                CONCURRING OPINION


CHIEF JUSTICE SAYLOR                             DECIDED: September 28, 2016


       I agree with much of the majority’s contract-based reasoning and its conclusion

that appellees are entitled to the benefit of their bargains. However, I am circumspect

that such relief, exempting appellees from SORNA’s requirements, may be effectuated

absent a constitutional basis. See Commonwealth v. Killinger, 585 Pa. 92, 106, 888

A.2d 592, 601 (2005) (“We will not interfere any more than the constitution requires with

the Legislature's deliberative process in refining the treatment of sexual offenders to

best protect the citizens of the Commonwealth.”); see also 42 Pa.C.S. §9799.23(b)(2)

(“[T]he 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.”).

       The Zuber case -- which the majority appears to rely on as authority for the grant

of specific performance premised on contract principles alone -- involved a plea

agreement containing terms that violated existing law. See Majority Opinion, slip op. at

23 n.19 (discussing Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976)).

Critically, the Zuber Court, in enforcing the plea agreement, required that the sentence

be modified in such a manner so as to comply with the pertinent provisions of the law.

See Zuber, 466 Pa. at 462 & n.8, 353 A.2d at 446 & n.8. In contrast, any similar

modification appears impossible in the present matter, since SORNA facially requires

registration terms different from those that were incorporated into the plea bargains.

Accordingly, I believe further analysis is necessitated.

       The Fourteenth Amendment to the United States Constitution and Article 1,

Section 9 of the Pennsylvania Constitution, which have been interpreted as generally


                           [J-29A-C-2016][M.O. – Baer, J.] - 2
coextensive, guarantee the protections of due process. See Commonwealth v. Sims,

591 Pa. 506, 523 n.6, 919 A.2d 931, 941 n.6 (2007). The Court has previously related

that “[t]he due process inquiry, in its most general form, entails an assessment as to

whether the challenged proceeding or conduct offends some principle of justice so

rooted in the traditions and conscience of our people as to be ranked as fundamental

and that defines the community's sense of fair play and decency.” Commonwealth v.

Kratsas, 564 Pa. 36, 49, 764 A.2d 20, 27 (2001) (quote marks, citations, and alterations

omitted); see also Khan v. State Bd. of Auctioneer Exam’rs, 577 Pa. 166, 183, 842 A.2d

936, 946 (2004) (“Substantive due process is the esoteric concept interwoven within our

judicial framework to guarantee fundamental fairness and substantial justice . . ..”

(internal quotes and citation omitted)).

       As relates to this constitutional protection, the majority develops that plea

bargaining is an “essential component of the administration of justice,” Majority Opinion,

slip op. at 21 (quoting Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 498

(1971)), and that the Commonwealth has an affirmative duty to abide by the terms of

the plea agreement, see id. at 23 (citing Zuber, 466 Pa. at 458-59, 353 A.2d at 444

(“Our courts have demanded strict compliance . . . 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.”)).

       From my perspective, plea bargaining’s role in our justice system, combined with

the defendant’s exchanged waiver of constitutional rights, mandates consideration of

fundamental fairness and attendant due process protections. See State v. Blackwell,

522 S.E.2d 313, 315 (N.C. Ct. App. 1999) (“By pleading guilty, a defendant waives

many constitutional rights, not the least of which is his right to a jury trial. No other right


                            [J-29A-C-2016][M.O. – Baer, J.] - 3
of the individual has been so zealously guarded over the years and so deeply

embedded in our system of jurisprudence . . .. As such, due process mandates strict

adherence to any plea agreement.” (quotation marks and citations omitted)), remanded

on other grounds, 538 S.E.2d 929 (N.C. 2000) (per curiam).1

      It seems evident from this Court’s and other jurisdictions’ precedents that the

enforcement of plea bargains is rooted in fundamental fairness.                See, e.g.,

Commonwealth v. Sluss, 419 S.E.2d 263, 265 (Va. Ct. App. 1992) (“[T]o allow the

government to receive the benefit of its bargain without providing the reciprocal benefit

contracted for by the defendant would do more than violate the private contractual rights

of the parties—it would offend all notions of fairness in the related criminal proceedings,

which are protected by constitutional due process.”). Accordingly, since the parties

stipulated in these cases that the registration conditions were express terms of

appellees’ plea agreements, I believe appellees are entitled to the benefit for which they

bargained as a matter of due process.




1
  The view that plea bargains must be enforced pursuant to due process principles
appears to garner support among many state and federal jurisdictions. See, e.g., Cuero
v. Cate, __ F.3d __, __, 2016 WL 3563660, at *3 (9th Cir. June 30, 2016) (indicating
that, where a term in a plea agreement functions as an inducement for the defendant to
plead guilty, the defendant obtains a vested right under the Due Process Clause to
enforce it); United States v. Lara-Ruiz, 681 F.3d 914, 919 (8th Cir. 2012); United States
v. Al-Arian, 514 F.3d 1184, 1190 (11th Cir. 2008); United States v. Randolph, 230 F.3d
243, 249 (6th Cir. 2000); In re Altro, 180 F.3d 372, 375 (2d Cir. 1999); United States v.
Ingram, 979 F.2d 1179, 1184 (7th Cir. 1992); People v. Villalobos, 277 P.3d 179, 182
(Cal. 2012); Van Buskirk v. State, 720 P.2d 1215, 1216 (Nev. 1986); State v.
Howington, 907 S.W.2d 403, 410 (Tenn. 1995); Commonwealth v. Sandy, 509 S.E.2d
492, 494 (Va. 1999). But see State v. Kuchenreuther, 218 N.W.2d 621, 624 (Iowa
1974) (requiring the state to honor its plea agreement, but concluding that Santobello
was adjudicated by “application of what may be termed a ‘fair-play standard,’” rather
than constitutional principles).


                           [J-29A-C-2016][M.O. – Baer, J.] - 4
