J-A12044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DENNIS L. HARTMAN,

                        Appellant                 No. 1355 MDA 2014


               Appeal from the Order entered July 14, 2014,
              in the Court of Common Pleas of Berks County,
           Criminal Division, at No(s): CP-06-CR-0001765-2000


BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED APRIL 30, 2015

      Dennis L. Hartman, (“Appellant”), appeals from the order denying his

petition to enforce plea agreement or for a writ of habeas corpus.       We

affirm.

      The trial court summarized the procedural history of this case as

follows:

            On March 22, 2000, Appellant was charged by Criminal
      Complaint with one count of Possession of Child
      Pornography, in violation of 18 Pa.C.S.A. § 6312(d), a
      Felony of the Third Degree, following an undercover Postal
      Inspector sting operation. On June 29, 2000, Appellant pled
      guilty to this crime and was sentenced to two years on county
      probation. At the time, Appellant was represented by attorney
      Lawrence J. Hracho. No direct appeal was taken. Attorney
      Hracho passed away on December 3, 2011. Six years later, the
      Pennsylvania State Police sent Appellant a notice, requiring him
      to register under Megan’s Law III; he did not file any motions
      challenging this requirement and began compliance on
      November 8, 2006. His ten year registration period was then set
      to expire in 2016. Pennsylvania’s Sex Offender Registration and
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     Notification Act (SORNA) went into effect in December 2012.
     Under SORNA, Appellant’s period of registration will be extended
     to November 8, 2021. On May 5, 2014, Appellant filed a Petition
     to Enforce Plea Agreement or for a Writ of Habeas Corpus. An
     evidentiary hearing was set for June 13, 2014 and thereafter,
     the parties were required to file briefs. On July 14, 2014, we
     denied the request for relief from registration. On August 12,
     2014, Appellant filed a Notice of Appeal to the Superior Court.
     On that same date, we ordered Appellant to file a concise
     statement of the errors complained of on appeal, which he filed
     on August 27, 2014.

Trial Court Memorandum Opinion, 10/8/14, at 1-2 (bold in original).

     Appellant raises the following issues:

        1.    Can an agreement between a defendant and the
        Commonwealth to avoid sex offender registration be
        inferred in the absence of any indication of an agreed upon
        and affirmative step to do so?

        2. Is Appellant entitled to specific performance of the
        terms of his plea agreement?

        3. Are all other considerations irrelevant to this inquiry?

Appellant’s Brief at 3. We address these issues together.

     “[SORNA], commonly referred as the Adam Walsh Act, became

effective on December 20, 2012.”      Commonwealth v. Partee, 86 A.3d

245, 247 (Pa. Super. 2014).     “By its terms, any individual who was then

being supervised by the board of probation or parole was subject to its

provisions.” Id. Appellant’s conviction under 18 Pa.C.S.A. § 6312(d) was

designated as a Tier 1 sexual offense, subjecting a defendant to a fifteen-

year registration period. See 42 Pa.C.S.A. §§ 9799.14-9799.15.




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      In    Partee,   we   summarized     our   recent   en   banc   decision   in

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

follows:

              In [Hainesworth,] this Court specifically enforced a
           negotiated plea agreement that did not require the
           defendant to report as a sex offender under Megan’s Law,
           despite subsequent amendments to the statute that would
           have     subjected   him   to    reporting  requirements.
           Hainesworth entered a negotiated plea to three counts
           each of statutory sexual assault and indecent assault, and
           once count each of indecent assault and criminal use of a
           communication facility in February 2009. None of these
           convictions required registration under Megan’s Law, 42
           Pa.C.S. § 9791. Other charges that would have imposed a
           registration   requirement   were    withdrawn   by    the
           Commonwealth pursuant to the plea negotiations.

              Hainesworth filed a motion seeking to terminate
           supervision effective one week prior to the effective date of
           SORNA. The trial court denied the petition to terminate
           supervision, but held that application of SORNA’s
           registration requirements to Hainesworth violated due
           process.

              On appeal, this Court, sitting en banc, concluded first
           that Hainesworth correctly framed the issue as one of
           contract law, and applied the standard of review applicable
           to whether a plea agreement has been breached: “what
           the parties to this plea agreement reasonably understood
           to be the terms of the agreement.” Hainesworth, supra
           (quoting Commonwealth v. Fruehan, 384 Pa. Super.
           156, 557 A.2d 1093, 1095 (1989)). We look to the
           “totality of the surrounding circumstances” and “[a]ny
           ambiguities in the terms of the plea agreement are
           construed        against       the      [Commonwealth].”
           Commonwealth v. Kroh, 440 Pa. Super. 1, 654 A.2d
           1168, 1172 (1995). The dispositive question was “whether
           registration was a term of the bargain struck by the
           parties.” [Hainesworth, 82 A.3d] at 448. We examined
           the record. The terms of the plea agreement was set forth
           and included a discussion of the fact that the offense to

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         which [Hainesworth] was pleading guilty did not require
         registration and supervision as a sex offender.        We
         distinguished Commonwealth v. Benner, 853 A.2d 1068
         (Pa. Super. 2004) (Benner was always subject to a
         reporting requirement, albeit ten years instead of a
         lifetime, and the record did not support Benner’s
         contention that he had bargained for non-registration as a
         term of his plea), and held that the plea agreement
         “appears to have been precisely structured so that
         Hainesworth would not be subject to a registration
         requirement.” Hainesworth, 82 A.3d] at 448.

Partee, 86 A.3d at 247-48.

      In Partee, Partee pled guilty to indecent assault which, at the time of

his plea, subjected him to a ten-year registration requirement under Megan’s

Law. With the subsequent passage of SORNA, however, Partee’s conviction

of a Tier II sexual offense increased his registration requirement to twenty-

five years.   Id. at 246.   After reviewing the totality of the circumstances

surrounding Partee’s plea, we reasoned:

         Herein, [Partee] was subject to a ten-year reporting
         requirement under the terms of the plea agreement and
         there is no indication that he bargained for non-
         registration as part of his plea. However, the ten-year
         Megan’s Law registration period was discussed at the plea
         proceeding. While it was not an explicit term of the
         negotiated plea, it is apparent 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, distinguishing the facts herein from those in
         Benner. The two charges carrying a lifetime registration
         were withdrawn by the Commonwealth as part of the
         negotiations, leaving [Partee] subject to the less onerous
         ten-year reporting requirement then imposed on indecent
         assault. Under our reasoning in Hainesworth, [Partee]
         arguably would be entitled to the benefit of that bargain.




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Partee, 86 A.3d at 249.

      Despite the above, in Partee we accepted the Commonwealth’s

argument that, by violating his probation, Partee breached the original plea

agreement, and therefore he could no longer seek specific enforcement of its

terms.   Id. at 249-50.   Thus, we determined that Hainesworth, “is not

controlling.” Id.

      Here, the trial court likewise concluded that Hainesworth did not

apply to Appellant’s claim:

            Appellant would ask the Superior Court to review this
         matter under the laws concerning plea agreements and
         contracts.    It was for this reason that we held an
         evidentiary hearing to provide Appellant with the
         opportunity to meet his burden that there was indeed a
         negotiated plea agreement entered into to avoid the
         registration requirement under [Megan’s Law II]. After
         hearing, however, we were unable to conclude that such
         an agreement occurred.

            Appellant was charged with only one count; no counts
         were withdrawn in exchange for a plea. The matter was
         actually scheduled for a PreTrial [sic] Hearing on June 29,
         2000. The Statement Accompanying his Request to Enter
         a Guilty Plea lists the that Maximum Permissible Sentence
         Appellant was facing was 7 years [of] incarceration and/or
         a $15,000.00 fine. Appellant acknowledged, by signing
         this statement, that this plea permitted him to avoid a trial
         and a large fine, as well as possible incarceration for this
         felony offense. Thus, we could not determine solely from
         this statement that the reason the plea was entered into
         was to avoid registration. There is no transcript or record
         of any terms of a negotiated plea agreement in June 2000.
         Looking at the totality of the circumstances, we found as a
         fact that there was no plea agreement made in exchange
         for avoiding registration.




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               Appellant registered when notified by the State Police to
            do so in November of 2006. There is no record to show
            why the police waited six years to notify Appellant.
            Appellant claimed he objected to the registration
            requirement. There is also no record that any challenge to
            the registration requirement was filed. Appellant waived
            the issue of the retroactivity of Megan’s Law III by not
            raising it before now to give the court an opportunity to
            review it.    See generally Commonwealth v. Cody
            Miller, 80 A.3d 806, 812 (Pa. Super. 2013) (citations
            omitted). We found Appellant’s testimony to be self-
            serving and not credible. It is well settled that credibility
            determinations are the province of the trial court. Thus,
            the standard of review in this case should be whether or
            not the court committed an error of law.

Trial Court Memorandum Opinion, 10/8/14, at 2-4.

      Rather than applying Hainesworth, the trial court characterized the

issue to be addressed as follows:

               We surmise that the legal question then becomes
            whether a defendant who was convicted of a
            nonregisterable [sic] offense prior to the passage of
            Megan’s Law II, but was serving a sentence of probation at
            the time of the passage of Megan’s Law [III], which now
            included that offense, is therefore still subject to the ten
            year period of registration when he did not begin his initial
            period of registration for six years.

Id. at 4.

      The trial court then reviewed case law addressing the retroactivity

question as applied in cases involving the various versions of Megan’s Law.

See id. at 4-6 (discussing Commonwealth v. Benner, 853 A.2d 1068 (Pa.

Super. 2004); Commonwealth v. James Miller, 787 A.2d 1036 (Pa.

Super. 2001)). It concluded:



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             [W]hile Megan’s Law II has been amended several
          times, the requirement for Appellant to register remains.
          Appellant is classified as a sexually violent predator under
          42 Pa.C.S.A. § 9799.12 because he was convicted of an
          offense listed under section 9799.14(b)(9). Under the
          most recent amendment, [SORNA] predicate offenses
          requiring registration are grouped in tiers, with Sexual
          Abuse of Children, § 6312(d), being considered a Tier I
          sexual offense, requiring a fifteen year registration period.
          See 42 Pa.C.S. [§] 9799.14(b)(9); § 9799.15(a)(1).

             Without proof of a plea agreement, Appellant is bound
          by the law of retroactivity as it applies to his case. When
          Megan’s Law II went into effect, Appellant was still serving
          his sentence for the sex offense. We do not think that the
          fact that he did not comply with registration for the first six
          years negates the initial requirement that he register for
          ten years.

Trial Court Memorandum Opinion, 10/8/14, at 6-7 (footnotes omitted). Our

review of the record, in accordance with the applicable statutory and case

authority, supports the trial court’s conclusions.

       Appellant’s claims to the contrary are unavailing. Appellant’s reliance

upon the factually distinguishable case of Partee, supra, is inapposite.

Unlike Appellant’s case, this Court was able to review the guilty plea colloquy

that occurred between the parties, noted a specific registration period was

enumerated, and further noted that offenses requiring lifetime registration

were withdrawn by the Commonwealth.1 Here, we are unable to conduct a

____________________________________________


1
  Because the Partee court ultimately concluded that Partee breached his
plea agreement, the discussion quoted above and relied upon by Appellant is
dicta. See supra.




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similar review, and the trial court found Appellant’s testimony concerning the

plea agreement unworthy of belief.     We cannot disturb this determination.

See generally Commonwealth v. Weathers, 95 A.3d 908 (Pa. 2014).

      Appellant’s similar reliance upon Commonwealth v. Jones, 2014 PA

Super. 109, a decision that we withdrew from publication because the

SORNA issue addressed became moot, and Commonwealth v. Nase, 104

A.2d 528 (Pa. Super. 2014), is misplaced, given the fact that in each case, a

guilty plea colloquy was available for appellate review. Put simply, Appellant

acquiesced to registration under Megan’s Law II, and cannot now—in the

absence of credible record evidence—maintain a contradictory position

approximately fourteen years following the original entry of his plea.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




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