J-A07007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOHN A. SPANOS,

                            Appellant                  No. 1070 WDA 2014


                   Appeal from the Order Entered June 2, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000803-2007


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED APRIL 13, 2015

       Appellant, John A. Spanos, appeals from the trial court’s June 2, 2014

order denying his petition seeking enforcement of the terms of his guilty

plea. At the time of his guilty plea, Appellant was required to register under

Megan’s Law for a term of ten years.           Subsequent legislative action has

increased Appellant’s registration requirement to a term of twenty-five

years. After careful review, we affirm.

       Appellant entered an open guilty plea before the trial court on July 11,

2007, to two offenses,1 “in relation to a series of online chats of a sexual

nature between [Appellant] and a Special Agent from the Child Predator Unit

____________________________________________


1
  Appellant pled guilty to attempted unlawful contact with a minor, 18
Pa.C.S. §§ 901, 6318; and criminal use of a communication facility, 18
Pa.C.S. § 7512.
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of the Office of the Attorney General posing as a 13-year-old girl.”        Trial

Court Opinion (TCO), 9/2/14, at 1.               On November 2, 2007, the court

sentenced Appellant to five years’ probation.          Pursuant to the version of

Megan’s Law in effect at that time, Appellant was required to register as a

sex offender for ten years.2 No direct appeal or post-conviction petition was

ever filed.

       On December 20, 2012, a new version of Megan’s Law became

effective, bringing Pennsylvania in compliance with the federal Sexual

Offender Registration and Notification Act (SORNA), 42 Pa.C.S. § 9799.10 et

seq. Under SORNA, Appellant is retroactively required to register as a sex

offender for twenty-five years.           On February 19, 2013, in light of this

development, Appellant filed a counseled “Petition for Habeas Corpus and/or

Seeking to Enforcement [sic] of a Plea Agreement” and, subsequently, a

“Supplement to Petition Seeking to Enforce Plea Agreement” amending his

initial filing.   These documents are hereinafter referred to, collectively, as

“the Petition.”




____________________________________________


2
  Prior to the imposition of the ten-year registration requirements, and
before sentencing, Appellant was ordered to undergo an assessment to
determine whether he is a sexually violent predator (SVP) under Megan’s
Law, a designation that would have required him to register as a sex
offender for life. The trial court ultimately found that Appellant is not an
SVP.



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        The trial court denied the Petition on June 2, 2014. Appellant filed a

timely appeal, as well as a timely Pa.R.A.P. 1925(b) statement.         The trial

court issued its Rule 1925(a) opinion on September 2, 2014.

        Appellant now presents the following question for our review:

        Did the trial court err in refusing to impose the period of
        registration as a sex offender under SORNA (Megan’s Law) that
        was initially imposed and agreed upon, such that [Appellant]
        may only register for a 10 year period?

Appellant’s Brief, at 5 (unnecessary capitalization omitted).

        Appellant asserts that because he agreed to report under Megan’s Law

for a period of ten years at the time he pled and was sentenced, he should

not be required to report for twenty-five years as dictated by SORNA. He

bases    this   claim   on   this    Court’s   decision   in   Commonwealth    v.

Hainesworth, 82 A.3d 444 (Pa. Super. 2013)(en banc), appeal denied, 95

A.3d 276 (Pa. 2014).

        Hainesworth pled guilty to sexual offenses under the version of

Megan’s Law in effect prior to the implementation of SORNA.           Hainsworth

was charged with multiple offenses, one of which carried Megan’s Law

reporting requirements upon conviction, aggravated indecent assault (AIA).

However, pursuant to a plea agreement, the Commonwealth withdrew the

AIA charge, and Appellant pled guilty to three counts each of statutory

sexual assault and indecent assault, as well as a single count of criminal use

of a communication facility.        None of the pled-to offenses carried Megan’s

Law reporting requirements at the time of Hainesworth’s plea.                 Had


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Hainesworth been convicted of AIA at that time, however, he would have

been required to register under Megan’s Law for life.

      SORNA was implemented in Pennsylvania two years after Hainesworth

entered his plea.    Under SORNA, Hainesworth’s conviction for indecent

assault required him to register under Megan’s Law for twenty-five years

because he was still under supervision for that offense when SORNA became

effective. Consequently, Hainesworth sought to terminate his probation in

anticipation of SORNA’s implementation. The trial court denied that request;

however, the court “entered an order stating that Hainesworth was not

subject to the registration requirements of SORNA” as a matter of

fundamental fairness and pursuant to due process principles.       Id. at 446.

The Commonwealth appealed from that order.

      On appeal, the Hainesworth Court first recognized the importance of

plea bargains to the administration of criminal justice:

            The reality of the criminal justice system is that nearly all
      criminal cases are disposed of by plea bargains: “[n]inety-seven
      percent of federal convictions and ninety-four percent of state
      convictions are the result of guilty pleas.” Missouri v. Frye, ––
      – U.S. ––––, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012)
      (internal citations omitted).      Plea bargaining “is not some
      adjunct to the criminal justice system; it is the criminal justice
      system.” Id. Accordingly, it is critical that plea agreements are
      enforced, “to avoid any possible perversion of the plea
      bargaining system.”        Commonwealth v. Fruehan, 384
      Pa.Super. 156, 557 A.2d 1093, 1094 (1989) (internal citations
      omitted).

Hainesworth, 82 A.3d at 449.




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      Given the importance of enforcing plea bargains, and the serious

nature of registration and reporting requirements under Megan’s Law, the

Hainesworth Court then concluded that “[i]n negotiating a plea that will not

require him to register as a sex offender, the defendant trades a non-trivial

panoply of rights in exchange for his not being subject to a non-trivial

restriction.   Fundamental fairness dictates that this bargain be enforced.”

Id. at 449. The Hainesworth Court relied, in part, on the decision of the

United States Supreme Court in Santobello v. New York, 404 U.S. 257

(1971), wherein the high Court ruled that “when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it

can be said to be part of the inducement or consideration, such promise

must be fulfilled.” Id. at 262. Because the Hainesworth Court concluded

that Hainesworth’s plea agreement had “been precisely structured so that

Hainesworth would not be subjected to a registration requirement[,]” the

Hainesworth Court upheld the trial court’s order refusing to retroactively

apply SORNA’s Megan’s Law registration requirements to him. Id. at 448.

      Instantly, Appellant contends the Hainesworth rule should apply to

his case as well. He asserts that the record in this case demonstrates that

the terms of his plea were understood to carry a 10-year registration

requirement, which has been retroactively extended pursuant to SORNA.

However, the trial court rejected this claim, finding that “the record in its

entirely suggests that [Appellant’s] plea was not made to exempt [him] from

any more lengthy registration requirements, as he pled guilty to all charges

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and did not bargain for the withdrawal of any more serious charges.” TCO,

at 4. Indeed, there is no evidence of record that Appellant negotiated the

terms of his plea. Rather, the record shows that he entered an open guilty

plea before the trial court. Accordingly, there was no ‘bargain’ upon which

Appellant could be said to have relied on in entering his plea with regard to

his Megan’s Law obligations.   Furthermore, Appellant, unlike Hainesworth,

pled guilty to charges which carried pre-SORNA registration requirements.

Hainesworth negotiated a plea whereby he was not subject to any long-term

supervision under Megan’s Law before the implementation of SORNA.

      Appellant suggests that Commonwealth v. Partee, 86 A.3d 245 (Pa.

Super. 2014), supports application of the Hainesworth rule to his case.

However, the holding in that case was that Partee was “not entitled to

specific performance of a negotiated plea bargain that he subsequently

breached.” Partee, 86 A.3d at 246. Thus, technically, Partee is not on-

point. Nevertheless, Appellant asserts that the Partee court recognized, or

stands for the proposition, that in reviewing whether the Hainesworth rule

applies, we must look “at the totality of the circumstances surrounding the

guilty plea[,]” and not just whether the explicit terms of a plea bargain

demonstrate whether the Megan’s Law implications were negotiated.

Appellant’s Brief, at 12.

       We agree with Appellant that we must examine the context of the

whole record, and not just explicit terms expressed in a written plea

agreement, in determining whether the Hainesworth rule applies in a given

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case.    Nevertheless, Appellant is still not entitled to relief.   The totality of

circumstances surrounding Appellant’s plea does not justify application of

the Hainesworth rule, nor does Partee suggest that it should. Partee, like

Hainesworth, entered a negotiated plea with the Commonwealth.              In this

case, however, there are no terms in a negotiated plea to consider because

there was no negotiated plea.         Indeed, there was no evidence of any

negotiation with the Commonwealth at all.

        Appellant draws our attention to some evidence that he was made

aware of his Megan’s Law obligations. For instance, during the plea process,

Appellant signed a form acknowledging his Megan’s Law registration

requirements for the crimes to which he was pleading guilty.                  See

Appellant’s Reply Brief, Appendix C, 1-2. However, mere awareness of the

consequences of a conviction for a Megan’s Law offense does not

automatically implicate the Hainesworth rule.             Moreover, unless the

Megan’s Law implications were at least an implicit basis upon which an

agreement or bargain was reached with the Commonwealth, Hainsesworth

is not applicable.       This does not necessarily require a written plea

agreement, or specific terms addressing Megan’s Law, but it does require

some evidence that the result of the plea in terms of its Megan’s Law

implications was the product of a negotiation with the Commonwealth.

Routine Megan’s law notifications given during plea or sentencing hearings

are not the product of negotiations with the Commonwealth.




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     In Partee, this Court found that Partee’s “negotiated plea agreement

was structured so that he would only be subject to a ten-year rather than a

lifetime reporting requirement,” as evidenced by the fact that “[t]he two

charges carrying a lifetime registration requirement were withdrawn by the

Commonwealth as part of the negotiations, leaving Appellant subject to the

less onerous ten-year reporting requirement ….”    Partee, 86 A.3d at 249.

In that regard, the circumstantial evidence that Partee’s plea was entered as

the product of a negotiation with the Commonwealth was nearly identical to

circumstances present in Hainesworth.      Here, however, no charges were

dropped in exchange for Appellant’s guilty plea and there was no plea

agreement. Accordingly, we conclude that Appellant is not entitled to relief

under Hainesworth.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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