J-S10041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

JAYSON JOHNSON

                            Appellee                     No. 1497 EDA 2016


                    Appeal from the Order Dated May 6, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000318-2004

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                           FILED DECEMBER 22, 2017

        The Commonwealth appeals from the order granting Appellee Jayson

Johnson’s petition to enforce his guilty plea agreement, which provided for

him to register as a sex offender for a period of ten years. We vacate and

remand for further proceedings.

        On September 1, 2004, Appellee entered a negotiated plea of guilty to

one count of involuntary deviate sexual intercourse (“IDSI”) with a fifteen-

year-old girl, 18 Pa. C.S. § 3123(a)(7).           In exchange for his plea, the

Commonwealth nolle prossed a second count of IDSI, as well as two counts

of statutory sexual assault, two counts of indecent assault of a person under

16 years of age, one count of corruption of minors, and one count of

unlawful contact with a minor.1           At the time of Appellee’s plea, Section

9795.1 of Megan’s Law II, Act No. 2000-18, § 3, P.L. 74, 77, 84 (May 10,
____________________________________________
1   18 Pa. C.S. §§ 3122.1, 3126(a)(8), 6301(a)(1), and 6318(a)(1).
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2000), as amended, Act No. 2002-134, § 3, P.L. 1104, 1108 (Nov. 20,

2002) (expired 2012), stated that individuals convicted of IDSI “shall be

subject to lifetime registration” as sex offenders with the Pennsylvania State

Police. See Trial Ct. Op., 5/6/16, at 3.2 Appellee’s written plea agreement

did not mention any registration requirement, and the notes of testimony

from the plea hearing are not available.3

       On December 15, 2004, the trial court sentenced Appellee to 5-10

years’ incarceration.      The sentencing order did not mention a registration

requirement, see N.T., 12/15/04, at 15-16, but immediately following his

recitation of the order, the trial judge asked whether Appellee “ha[s] a plea

agreement and assessment you have to read to him.”            Id. at 16.   The

assistant district attorney replied affirmatively, and, among other things,

then stated, “The Defendant shall be required to register in this matter for a

period of ten years following his release from incarceration.”      Id. at 17
____________________________________________
2  Section 3 of Act No. 2000-18 added Section 9795.1 to the Judicial Code as
42 Pa. C.S. § 9795.1. The 2002 amendment (which became effective on
January 21, 2003) was the version in effect at the time of Appellee’s
conviction and until January 23, 2005. Trial Ct. Op. at 1 n.2. Section
9795.1 was amended several more times before it expired in 2012. Each of
the amendments retained the designation of IDSI as a crime requiring
lifetime registration. See Act No. 2011-111, § 9, P.L. 446, 471 (Dec. 20,
2011); Act No. 2008-98, § 7, P.L. 1352, 1356, 1358-59 (Oct. 9, 2008); Act
No. 2006-178, § 6, P.L. 1567, 1575-76 (Nov. 29, 2006); Act No. 2004-152,
§ 8, P.L. 1243, 1252 (Nov. 24, 2004).           Section 9795.1 expired on
December 20, 2012. See 42 Pa. C.S. § 9799.41. It was replaced by a
provision of the Sex Offender Registration and Notification Act, 42 Pa. C.S.
§ 9799.14, which also lists IDSI as a crime requiring lifetime registration.
3 The testimony from the guilty plea hearing could not be transcribed due to
the corruption of a floppy disc. Trial Ct. Op. at 5 n.5.

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(emphasis added).        Similarly, a written Notification at Sentencing stated,

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

incarceration.” Notification, 12/15/04, at ¶ 8.4

       On December 30, 2004, Appellee filed a motion to reconsider

sentence. On January 3, 2005, the trial court denied that motion. Appellee

filed a direct appeal, but later withdrew it.5

       On December 20, 2012, the Sex Offender Registration and Notification

Act (SORNA), 42 Pa. C.S. §§ 9799.10 to 9799.41, became effective and

replaced Megan’s Law.           SORNA, like Megan’s Law II, requires lifetime

registration    for   offenders     convicted    of   IDSI.   See   42   Pa.   C.S.

§§ 9799.14(d)(4), 9799.15(a)(3).
____________________________________________
4 The Notification provided for Appellee to initial each paragraph to show
that he had read and understood it. Three paragraphs of the Notification are
not initialed, including Paragraph 8, stating the ten-year registration
requirement, and Paragraphs 10-11, stating that non-compliance with the
registration requirement would be grounds for not releasing Appellee from
prison and would be a felony. At the sentencing hearing, Appellee’s counsel
stated that he advised Appellee not to sign Paragraphs 10 and 11 because
they “embrace issues that we might wish to preserve for appeal.” N.T.,
12/15/04, at 16. In response to that statement, the assistant district
attorney read into the record each of the provisions relating to registration,
including Paragraphs 8, 10, and 11, so that he then could certify that he
“notified [Appellee] of [them] now in the context of this proceeding.” Id. at
18.
5 In a February 28, 2005 statement prepared pursuant to Appellate Rule
1925(a) in connection with Appellee’s direct appeal, the trial court stated,
“Defendant shall be subject to lifetime registration pursuant to 42 Pa. C.S.A.
§ 9795.1[.]” Statement Pursuant to Pa.R.A.P. 1925(a), 2/28/05, at 1 n.2.
The registration requirement was not at issue in the direct appeal, and there
is no explanation in the record for the discrepancy between the trial court’s
Rule 1925 Statement in 2005 and the statements made during the
sentencing proceeding in 2004.

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       Upon learning of SORNA during his incarceration, Appellee became

concerned that he would be subject to registration for a period longer than

the ten-year period that he understood to be applicable to him. Therefore,

on September 29, 2015, Appellee filed a “Petition to Enforce the Contract

Made with the Commonwealth for Ten Year Megan’s Law Registration

Pursuant to [Commonwealth v.] Hainesworth[, 82 A.3d 444 (Pa. Super.

2013) (en banc), appeal denied, 95 A.3d 276 (Pa. 2014)].”6                   On

November 16, 2015, the trial court held a hearing on that petition. At that

hearing, Appellee’s counsel acknowledged that the version of Megan’s Law in

effect at the time of Appellee’s plea called for lifetime registration for IDSI.

She argued that Appellee was nonetheless entitled to relief because a 10-

year registration requirement was part of his plea agreement.             N.T.,

11/16/15, at 3-4.

       Appellee testified at the November 16, 2015 hearing that the assistant

district attorney in his case offered him, in exchange for a guilty plea, a

sentence of 5-10 years and a ten-year registration period. N.T., 11/16/15,

at 13, 16-17.      Appellee further testified that the judge discussed the ten-

year registration requirement at his plea hearing.     Id. at 14-15. Appellee
____________________________________________
6 This Court has held that a petition seeking specific enforcement of the
Megan’s Law registration period in a plea agreement is not cognizable under
the Post-Conviction Relief Act, 42 Pa. C.S. §§ 9541-46 (PCRA), and thus is
not subject to the PCRA’s time restrictions. Commonwealth v. Partee, 86
A.3d 245, 247 (Pa. Super.), appeal denied, 97 A.3d 744 (Pa. 2014).
Although the precedential status of Partee is unsettled due to recent
developments in the law, Appellee filed his petition to enforce the plea
agreement in accordance with the law at the time he filed his petition.

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stated that neither his attorney, nor the assistant district attorney, nor the

trial court judge ever told him he would have to register for the rest of his

life. Id. at 15-16. Appellee stated that the offer of a ten-year registration

requirement led him to waive his right to a trial and to plead guilty instead.

Id. at 16.   Appellee said that he learned while he was in prison that he

might be subject to a lifetime registration requirement and tried to contact

the public defender’s office, but was told that there was nothing to do until

he was released from prison. Appellee did not try to contact the assistant

district attorney who handled his plea agreement to obtain his testimony for

the November 16, 2015 hearing. Id. at 20-22. He tried to contact his plea

counsel, but was unable to locate him. Id. at 20.

      The    Commonwealth     did   not    present   any   testimony   at   the

November 16, 2015 hearing. It argued that the 10-year registration period

was not part of the plea agreement, noting that the law called for lifetime

registration at the time of the plea and that the plea colloquy did not

mention any registration requirement.      Following the hearing, both parties

submitted briefs.

      On May 6, 2016, the trial court granted Appellee’s petition to enforce.

The court explained, “[i]t is clear from the record that the Commonwealth

specifically required a 10 year registration term.” Trial Ct. Op. at 6. The

court held that Appellee was entitled to the benefit of his bargain. Id.




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       On May 17, 2016, the Commonwealth filed a timely notice of appeal. 7

Upon review of the Commonwealth’s brief, we identified a potential

jurisdictional defect under Commonwealth v. Demora, 149 A.3d 330 (Pa.

Super. 2016) (holding that the trial court lacked jurisdiction to consider a

petition to enforce the sexual offender registration requirements in a plea

agreement because the Pennsylvania State Police was not joined as an

indispensable party). We ordered the parties to file supplemental briefs on

the jurisdictional issue, and they complied. We then held the case pending

the resolution of several cases that were pending before this Court en banc.

                                      Jurisdiction

       Before we reach the issue the Commonwealth raises in this appeal, we

must address whether the trial court had jurisdiction to decide Appellee’s

petition to enforce his plea agreement, notwithstanding our ruling in

Demora that the Pennsylvania State Police (PSP) must be joined as an

indispensable party to such actions.

       On November 9, 2017, this Court, sitting en banc, recognized that the

Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), pet. for cert. filed, No. 17-575 (U.S., Oct. 13,

2017),8     effectively     overruled     our    decision   in   Demora.   See

____________________________________________
7 We are disappointed that Appellee did not file any brief on the merits of
this appeal.
8 In Muniz, the Supreme Court held that SORNA’s registration provisions
constitute punishment and that retroactive application of those provisions
(Footnote Continued Next Page)
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Commonwealth v. McCullough, ___ A.3d ___, 2017 WL 5184490, at *2

(Pa. Super., Nov. 9, 2017) (en banc). Thus, the PSP need not be joined in

an action to remove an individual from the sex offender registry, and the

absence of the PSP imposes no jurisdictional barrier to consideration of a

claim like that presented by Appellee.

                          The Commonwealth’s Appeal

      The Commonwealth raises one issue, as stated in its brief:

      Did the trial court err in finding that a 10 year Megan’s Law
      registration was a specifically bargained for part of the plea
      agreement, when it was not part of the written plea agreement,
      there was no mention of it in either the Plea Order or Sentencing
      Order, and the law in effect at the time mandated a lifetime
      registration?

Commonwealth’s Brief at 4.9



(Footnote Continued) _______________________
therefore violates state and federal constitutional prohibitions against ex
post facto laws. Muniz, 164 A.3d at 1193 (opinion announcing judgment of
Court); id. at 1224 (Wecht, J., concurring). Although no opinion was joined
by a majority of the Justices, the conclusion of unconstitutionality was
shared by five of the Court’s six participating members. There therefore is
no question that the holding stated in Muniz is binding law.
9 Under Muniz, SORNA cannot be applied retroactively to Appellee. Thus,
the only issue in this case is whether Appellee is subject a 10-year
registration period under his plea agreement or to a lifetime registration
period under Megan’s Law. Appellee does not argue that the expiration of
Megan’s Law in 2012 — several years after his conviction and sentencing —
precludes its application to him now. Moreover, the Pennsylvania Supreme
Court has specifically enforced plea agreements with Megan’s Law
registration requirements after the expiration of Megan’s Law and the
enactment of SORNA. See Commonwealth v. Martinez, 147 A.3d 517,
533 (Pa. 2016) (holding that, after passage of SORNA, defendants who had
pleaded guilty prior to enactment of SORNA in exchange for ten-year
registration under Megan’s Law were entitled to the benefit of their bargain).

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     We analyze plea agreements using “concepts closely associated with

contract law.”   Commonwealth v. Martinez, 147 A.3d 517, 531 (Pa.

2016). In that connection —

     Because contract interpretation is a question of law, this Court is
     not bound by the trial court’s interpretation. Our standard of
     review over questions of law is de novo and[,] to the extent
     necessary, the scope of our review is plenary as the appellate
     court may review the entire record in making its decision.
     However, we are bound by the trial court’s credibility
     determinations.

Calabrese v. Zeager, 976 A.2d 1151, 1154 (Pa. Super. 2009) (citation

omitted).

     We have summarized the law applicable to petitions to enforce plea

agreements as follows:

     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. Specific enforcement of valid plea
     bargains is a matter of fundamental fairness. 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.

     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.

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     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.

     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. Farabaugh, 136 A.3d 995, 1001-02 (Pa. Super. 2016)

(quotation marks and citations omitted, some formatting altered), appeal

denied, No. 155 WAL 2016, 2017 WL 4621697 (Pa., Oct. 16, 2017); see

Martinez, 147 A.3d at 532-33.

     Pennsylvania   courts   have   specifically   enforced   sexual   offender

registration requirements in plea agreements where those registration

requirements were a material term of the plea. See Martinez, 147 A.3d at

533; Commonwealth v. Ritz, 153 A.3d 336, 343 (Pa. Super. 2016),

appeal denied, 170 A.3d 995 (Pa. 2017); Farabaugh, 136 A.3d at 1003;

Commonwealth v. Nase, 104 A.3d 528, 534-35 (Pa. Super. 2014), appeal

denied, 163 A.3d 405 (Pa. 2016); Hainesworth, 82 A.3d at 450. In each

of these cases, the defendant’s plea agreement included a term regarding

the length of the registration requirement (or the absence of a registration

requirement) that fell into danger of abrogation by the enactment of SORNA.

On its face, SORNA applied retroactively to individuals who were registered

prior to SORNA’s effective date, see 42 Pa. C.S. § 9799.13(3)(i), and it
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increased the required registration periods for defendants convicted of

certain offenses.      To prevent application of SORNA’s longer registration

requirements, defendants with shorter registration terms in their plea

agreements sought and successfully obtained specific enforcement of their

agreements.      Considering the totality of the circumstances, the courts in

these cases concluded that the original, bargained for registration periods

were part of a binding contract, SORNA’s enactment of longer registration

periods    did   not   supersede      those    bargained-for   provisions,   and   the

defendants therefore were entitled to have their agreements enforced. See,

e.g., Hainesworth, 82 A.3d at 447-50.

       Here, the trial court explained that it based its decision to enforce a

ten-year registration period as part of Appellee’s plea agreement upon a

consideration of the totality of the circumstances, including Appellee’s

testimony that during plea negotiations the assistant district attorney told

him he would be subject to a 10-year registration requirement. Trial Ct. Op.

at 5-6.     The Commonwealth presented no witnesses to contradict that

testimony.10      No transcript of the plea hearing is available to confirm

Appellee’s testimony, but the transcript of the sentencing hearing confirms

that the court and the parties specifically referred to a “plea agreement” and

that, in connection with that agreement, the assistant district attorney

____________________________________________
10The trial court noted that although Appellee did not call his plea counsel or
the assistant district attorney to testify at the November 16, 2015 hearing,
the Commonwealth did not call them either. Trial Ct. Op. at 6.

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notified Appellee that there was a 10-year registration term. Trial Ct. Op. at

5; see N.T. 12/15/04, at 16-17. In light of the available evidence, the trial

court concluded that, under cases such as Hainesworth and Nase, the 10-

year registration term was a bargained-for part of the plea agreement, and

that Appellee was entitled to specific enforcement of that term. Trial Ct. Op.

at 5-6.

       We do not question the trial court’s resolution of the credibility and

factual questions in this case.           See Calabrese, 976 A.2d at 1154.11

However, in the cases upon which the trial court relied, the bargained-for

registration period was not contrary to the statutory requirements that were

applicable at the time the plea was entered.           Rather, the agreements

contained terms that complied with the law at the time the bargain was

made, and were called into question only after new legislation was enacted

that contradicted those previously-agreed upon terms.            This case is

different, as the applicable law at the time of Appellee’s plea — Section

9795.1 of Megan’s Law II — required a lifetime registration, not the agreed-

upon registration period of ten years.
____________________________________________
11We do not accept the Commonwealth’s argument that we should reverse
because, as a matter of fact in light of Megan’s Law II, a ten-year
registration period was not a part of the parties’ bargain. Based on the
evidence presented, the trial court concluded otherwise, and its conclusion
was supported by the evidence and not an abuse of discretion. The cases
upon which the Commonwealth relies are inapposite. As this Court has
previously noted, the defendants in both Commonwealth v. Leidig, 956
A.2d 399 (Pa. 2008), and Commonwealth v. Benner, 853 A.2d 1068 (Pa.
Super. 2004), “did not seek specific enforcement of their pleas under
contract law principles.” Hainesworth, 82 A.3d at 450.

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        “[A] plea agreement cannot contain a term proscribed by the

Legislature.” Commonwealth v. Dorsey, 421 A.2d 777, 778 (Pa. Super.

1980). The parties are bound to abide by a plea agreement only if “the plea

agreement is legally possible to fulfill.” Farabaugh, 136 A.3d at 1001. In

light of Megan’s Law II, Appellee’s agreement to a ten-year registration term

may be legally unenforceable.

        Even if the agreement were unenforceable, however, Appellee still may

be entitled to relief.   In Commonwealth v. Zuber, 353 A.2d 441 (Pa.

1976), the Commonwealth agreed to recommend a sentence of seven to

fifteen years’ incarceration and to join with defense counsel in requesting

that the Parole Board make the new sentence concurrent with Zuber’s back

time of four-and-one-half years from a previous conviction.       Id. at 443.

However, the Commonwealth’s promise to make the request to the Parole

Board “was a false and empty one,” because, a statute in effect at the time

the plea was entered required that new sentences be consecutive to back

time.    Id.   The Pennsylvania Supreme Court held that on these facts, the

appropriate remedy was to modify Zuber’s sentence to two-and-one-half to

fifteen years’ incarceration so that it complied with both the plea agreement

and the law. Id. at 446.

        Here, neither the trial court nor the parties adequately addressed the

apparent conflict between the statutory registration requirement and the

agreement the parties reached, or considered whether an appropriate

alternate remedy could be fashioned in light of that conflict. For this reason,
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we vacate the trial court’s order and remand for further proceedings. If the

trial court concludes that the Commonwealth lacked discretion to waive the

lifetime registration requirements and the court lacked discretion to accept a

plea without a lifetime registration period,12 the court must then, like the

Court in Zuber, ascertain whether there is a remedy that will allow Appellee

to keep the benefit of his bargain and also comply with the law. 13

Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.




____________________________________________
12  The Commonwealth has discretion to depart from some sentencing
provisions. See, e.g., Commonwealth v. Pittman, 528 A.2d 138, 142
(Pa. 1987) (discussing Commonwealth’s discretion regarding mandatory
minimum sentences under 42 Pa. C.S. § 9712(b)).              SORNA explicitly
provides that, with an exception related to juvenile offenders, “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. § 9799.23(b)(2). The
comparable provision of Megan’s Law II that was in effect at the time of
Appellee’s plea had no similar provision, however. See Act No. 2000-18,
§ 3, P.L. 74, 77, 86-87 (May 10, 2000) (enacting 42 Pa. C.S. § 9795.3), as
amended, Act No. 2002-127, § 4, P.L. 880, 884-85 (Oct. 17, 2002) (expired
2012). On remand, the trial court must address whether the Commonwealth
had the authority to proffer the terms that it did and whether the court had
authority to accept a plea containing terms potentially violative of the law in
effect at the time of Appellee’s plea.
13  Nothing in our mandate precludes the trial court and parties from
resolving on remand other issues that have not been identified by this Court,
but are otherwise implicated by a determination regarding the validity of the
instant plea agreement.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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