J-A22020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ROBIN SHRAWDER

                            Appellant                   No. 2027 MDA 2014


               Appeal from the Order Entered November 5, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0002057-2004


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                         FILED NOVEMBER 20, 2015

        Appellant Robin Shrawder appeals from the November 5, 2014 order

entered in the Lycoming County Court of Common Pleas denying his Petition

to Enforce Plea Agreement or for a Writ of Habeas Corpus (“petition to

enforce”). We affirm.

        The trial court sets forth the relevant facts of this appeal as follows:

           On April 12, 2005, [Appellant] pled nolo contendere to two
           counts of luring a child into a motor vehicle1 and two
           counts of corruption of minors.2[, 1] On May 26, 2005,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  These charges stem from an incident in which Appellant attempted to lure
two 16-year-old girls into his pick-up truck. As Appellant was driving past
the girls in his truck, he told them that they were “hot” and asked them if
they wanted to go on a date. Appellant then drove his truck past the girls
and parked in the parking lot of Ed’s Market. The girls entered the lot, and
(Footnote Continued Next Page)
J-A22020-15


          [Appellant] was sentence[d] to serve a period of probation
          of three years under the supervision of the Lycoming
          County Adult Probation Office. Around August of 2006, the
          Pennsylvania State Police (PSP) notified [Appellant] that he
          was required to register as a sexual offender for a period
          of ten years. On August 13, 2006, [Appellant] registered
          as a sexual offender. Since his registration in 2006,
          [Appellant] has been made a Tier III sexual offender under
          Section 9799.14(d)(16) of Pennsylvania’s Sexual Offender
          Registration and Notification Act (SORNA).3 As a Tier III
          sexual offender, [Appellant] will be required to register for
          life. 42 Pa.C.S. § 9799.15(a)(3).[2]

                       _______________________
(Footnote Continued)

Appellant repeatedly tried to get the girls to come into his truck. He offered
them $20.00 for a hand-job and $50.00 for a blow job. The girls told him
that they were only 16 and not interested. He continued to ask them to get
into his truck and they declined. N.T., 5/26/05 at 2-4; N.T. 4/12/05 at 6.
2
  The Commonwealth Court of Pennsylvania held the in-person registration
requirement of this statute unconstitutional as applied to individuals
convicted prior to SORNA’s enactment. Coppolino v. Noonan, 102 A.3d
1254 (Pa.Commw.Ct.2014). It reasoned:

          The punitive requirement that updating of certain
          information be done in person may be severed from the
          remainder of Megan's Law IV. The clause at issue states:

             (g) In-person appearance to update information.—In
             addition to the periodic in-person appearance
             required in subsections (e), (f) and (h), an individual
             specified in section 9799.13 shall appear in person at
             an approved registration site within three business
             days to provide current information relating to....

          42 Pa.C.S. § 9799.15(g). The only part of this provision
          that this Court holds to be unconstitutionally punitive with
          regard to individuals convicted prior to the enactment of
          the provision, is the requirement that such updates be
          made in person.

Coppolino, 102 A.3d at 1279.




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              1
                  18 Pa.C.S. § 2910.
              2
                  18 Pa.C.S. § 6301(a)(1).
              3
                  42 Pa.C.S. § 9799.14(d)(16).

Trial Court Opinion, filed November 5, 2014 (some capitalization omitted).3

        On July 7, 2014, Appellant filed his petition to enforce. On August 14,

2014, the court conducted a hearing on Appellant’s petition.         The court

denied the petition on November 5, 2014. On December 1, 2014, Appellant

timely filed a notice of appeal. The next day, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) within 30 days, and he timely complied on December 30,

2014.

        Appellant raises the following issues for our review:

        1. This Court has repeatedly held that (a) a challenge to the
           retroactive application of Megan’s Law is not governed by
           the PCRA and its statutory limitations and (b) it can review
           the merits of trial court orders upholding or rejecting a
           retroactive registration requirement. Did the trial court
           properly conclude that it had jurisdiction to review the
           merits of this challenge to the retroactive imposition of
           lifetime registration requirement?

        2. Plea agreements are subject to specific enforcement under
           principles of contract law and fundamental fairness.
           [Appellant] (a) plead no contest to crimes that did not
           initially include a registration requirement (b) received a
           probation sentence without a Megan’s Law colloquy or sex
           offender assessment and (c) testified that non-registration
____________________________________________


3
  On January 8, 2015, the trial court issued a Pa.R.A.P. 1925(a) statement
that adopted its November 5, 2014 opinion.



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           was material to his plea. Is specific enforcement of non –
           registration as an implicit term of this plea appropriate?

        3. Under SORNA, an individual convicted of “two or more”
           enumerated offenses is subject to a lifetime reporting
           requirement. [Appellant’s] two misdemeanor convictions
           arise from his attempted solicitation of two 16-year-old
           girls. He had no prior record and has since completed his
           probation without incident. Should this non-violent first-
           time offender be subject to a quarterly lifetime reporting
           requirement?

Appellant’s Brief at 4-5.

        Appellant first argues that the trial court had jurisdiction to hear his

petition to enforce and that the appeal is now properly before this court. He

asserts that the Superior Court has jurisdiction to review orders confirming

or rejecting a retroactive registration requirement.

        The Commonwealth challenged the trial court’s jurisdiction to hear

Appellant’s petition, but the court never ruled on the issue.               The

Commonwealth contends that this is an untimely Post Conviction Relief Act

(“PCRA”)4 petition that is not properly before this Court or the trial court

because Appellant is no longer serving his sentence of probation.

        In Commonwealth v. Bundy, 96 A.3d 390 (Pa.Super.2014), this

Court examined the jurisdiction of orders confirming or rejecting a

retroactive sex-offender registration requirement:

           First, as to the trial court’s decision to regard Appellant’s
           petition under the PCRA, we note that our case law has yet
____________________________________________


4
    42 Pa.C.S. §§ 9541-9546.



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       to adopt a settled procedure for challenging the retroactive
       application of a Megan’s Law’s registration requirement.
       However, in Commonwealth v. Masker, 34 A.3d 841
       (Pa.Super.2011) (en banc ), appeal denied, 47 A.3d 846
       ([Pa.]2012), this Court held that challenges to a
       defendant’s designation as a sexually violent predator
       (“SVP”) did not present cognizable issues under the PCRA
       because it did not pertain to the underlying conviction or
       sentence. Id. at 842. Similarly, in Commonwealth v.
       Partee, 86 A.3d 245 (Pa.Super.2014)[, appeal denied, 97
       A.3d 744 (Pa.2014)], this Court observed that a challenge
       to the retroactive application of Megan’s Law “[did] not fall
       within the scope of the PCRA and should not be reviewed
       under the standard applicable to the dismissal of PCRA
       petitions.” Id. at 247.

       Nevertheless, this Court has previously considered the
       substantive aspects of appeals challenging post-conviction
       applications of Megan’s Law.                For example, in
       Commonwealth          v.   Benner,         853   A.2d     1068
       (Pa.Super.2004), this Court affirmed, on the merits of that
       appeal, the denial of a defendant’s “Motion for Hearing
       Regarding Megan’s Law Applicability” contesting the
       retroactive    application   of   a     lifetime   registration
       requirement.     Id. at 1069.       In Commonwealth v.
       Hainesworth, 82 A.3d 444 (Pa.Super.2013) (en banc),
       [appeal denied, 95 A.3d 276 (Pa.2014),] the trial court
       dismissed the defendant’s “motion seeking termination of
       supervision,” which he filed to avoid the retroactive
       application of the SORNA registration requirement. Id. at
       446. The trial court, in that case, denied the motion to
       terminate supervision, but entered an order declaring that
       the defendant would not be subject to the SORNA
       requirements. Id. The Commonwealth appealed, and this
       Court affirmed the trial court’s decision that the retroactive
       application of Megan’s Law would offend a negotiated term
       in the plea agreement between the parties. Id. at 450.

       In Partee, the defendant filed a “petition for habeas
       corpus and/or seeking enforcement of a plea agreement”
       seeking to avoid the retroactive application of the SORNA
       requirements. Partee, 86 A.3d at 246. The trial court
       dismissed the petition under the PCRA. Id. This Court
       concluded that the Appellant’s petition should not have

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J-A22020-15


          been decided under the PCRA, but affirmed the trial court’s
          denial of relief on the merits of the case. Id. at 247, 250.
          Specifically, we held that the defendant was not entitled to
          specific performance of his earlier plea bargain because his
          probation violation voided that agreement. Id. at 250.

          In light of the foregoing decisional law, we need not decide
          the precise mechanism by which a defendant may
          challenge the retroactive application of a Megan’s Law’s
          registration requirement. Rather, it suffices to note that
          the statutory and rule-based requirements governing a
          PCRA petition do not apply to a challenge to the retroactive
          application of Megan’s Law, but that this Court has
          jurisdiction to review orders confirming or rejecting a
          retroactive registration requirement. See Partee, 86 A.3d
          at 247, 250; Hainesworth, 82 A.3d at 450; Benner, 853
          A.2d at 1072.

Bundy, 96 A.3d at 394.

       Instantly, Appellant challenges his lifetime registration requirement,

which became effective on December 20, 2012, and applies to him

retroactively. Thus, the trial court had jurisdiction to hear his claim 5 and we

have jurisdiction to review the order confirming the retroactive registration

requirement and address the merits of Appellant’s claims.         See Bundy,

supra.
____________________________________________


5
  We note that a challenge to the enforcement of a plea bargain is analyzed
under contract law, and that the statute of limitations to bring a contract
claim is four years. See Hainesworth, 82 A.3d at 447; Cole v. Lawrence,
701 A.2d 987, 989 (Pa.Super.1997), appeal denied, 725 A.2d 1217
(Pa.1998). “[T]he statute of limitations begins to run on a claim from the
time the cause of action accrues. In general, an action based on contract
accrues at the time of breach.” Cole, 701 A.2d at 989 (internal citations
omitted). Appellant was not subjected to lifetime sexual registration until
SORNA became effective on December 20, 2012. Appellant filed his petition
to enforce on July 7, 2014, within four years of the alleged breach.



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      In his second issue, Appellant argues that plea bargains are contracts

subject to specific performance, and the lifetime registration requirement is

not consistent with the plea bargain. He claims he would not have entered

into the plea agreement if he had known he would have to register as a sex

offender for his entire life. Further, Appellant avers that he is not a sexually

violent predator (“SVP”) and his silence at the guilty plea hearing means

there is an implied non-registration term. Appellant concedes SORNA can be

applied retroactively pursuant to Commonwealth v. Perez, 97 A.3d 747

(Pa.Super.2014), however, he claims this does not preclude specific

enforcement of non-registration as a material term of his plea.        He cites

Hainesworth, supra to support this proposition.              Unfortunately for

Appellant, his claim merits no relief.

         “In determining whether a particular plea agreement has
         been breached, we look to ‘what the parties to this plea
         agreement reasonably understood to be the terms of the
         agreement.’ ” Commonwealth v. Fruehan, 557 A.2d
         1093, 1095 ([Pa.Super.]1989) (internal citations omitted).
         Such a determination is made “based on the totality of the
         surrounding circumstances,” and “[a]ny ambiguities in the
         terms of the plea agreement will be construed against the
         [Commonwealth].” Commonwealth v. Kroh, 654 A.2d
         1168, 1172 ([Pa.Super.]1995) (internal citations omitted).

Hainesworth, 82 A.3d at 447.

      In Hainesworth, this Court found that the plea was specifically

structured so that the defendant would not have to register as a sex

offender:




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J-A22020-15


         Indeed, the plea agreement appears to have been
         precisely structured so that Hainesworth would not be
         subjected to a registration requirement. Hainesworth was
         initially charged with ten counts. Pursuant to the plea
         agreement, three counts were withdrawn: both counts of
         aggravated indecent assault (a Megan’s Law offense), and
         one count of criminal use of a communication facility (a
         non-Megan’s Law offense).           Thus, nearly all of the
         withdrawn counts were Megan’s Law offenses. Moreover,
         it is significant that the plea agreement included one count
         of criminal use of a communication facility. Unlike this
         charge, every count of aggravated indecent assault was
         withdrawn. In other words, the Commonwealth withdrew
         every single count of only one crime, and that crime was
         the Megan’s Law offense.

Hainesworth, 82 A.3d at 448. Similarly, in Partee, the defendant’s plea

was specifically structured to avoid lifetime reporting:

         Herein, Appellant 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 a 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 Appellant’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
         requirement were withdrawn by the Commonwealth as
         part of the negotiations, leaving Appellant subject to the
         less onerous ten-year reporting requirement then imposed
         on indecent assault.          Under our reasoning in
         Hainesworth, Appellant arguably would be entitled to the
         benefit of that bargain.

Partee, 86 A.3d at 249.

      However, unless non-registration is specifically part of the plea, this

Court does not consider registration a breach of the plea agreement. See



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Commonwealth v. Giannantonio, 114 A.3d 429, 435-36 (Pa.Super.2015)

(because Appellant failed to demonstrate through credible evidence that

registration for shorter time-period was bargained-for element of his plea,

petition for relief from SORNA requirements was properly denied).         In

Commonwealth v. Leidig, 850 A.2d 743, 748 (Pa.Super.2004) aff'd, 956

A.2d 399 (Pa.2008), this Court found that registration is a collateral

consequence of a guilty plea and does not render it involuntary:

        In view of our conclusion that the registration requirement
        of Megan’s Law II is a collateral consequence of Appellant’s
        guilty plea, if Appellant had been unaware of the
        registration requirement at the time of his plea, such lack
        of awareness would not have rendered his plea unknowing
        or involuntary. In the instant case, Appellant incorrectly
        was advised that he would be subject to the registration
        requirements of Megan’s Law for a period of ten years, as
        opposed to a lifetime period. However, in view of our
        holding that registration is a collateral consequence of
        which Appellant need not have been advised at all, and
        because Appellant does not dispute that he was aware that
        he would be subject to some period of registration as a
        sexual offender under Megan’s Law, we conclude that
        Appellant’s misunderstanding as to the actual duration of
        the registration requirement is not a basis upon which
        Appellant should have been permitted to withdraw his
        plea.

Leidig, 850 A.2d at 748.

     In this case, Appellant and the Commonwealth did not discuss sexual

offender registration as a part of the plea.    The Commonwealth did not

remove any charges that would specifically subject Appellant to a longer

registration period. Appellant pled nolo contendere to two counts of luring a

child into a motor vehicle, a crime that subjected him to registration

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J-A22020-15


requirements at the time of his offense and guilty plea. SORNA now makes

two counts of luring a child into a motor vehicle subject to lifetime

registration. Thus, the collateral consequence of Appellant’s plea does not

render his plea involuntary.        Further, because the Commonwealth did not

make registration a specific part of the plea, it did not breach the

agreement.6

       In his third issue, Appellant argues that if SORNA does apply to him,

his two Tier I convictions should be viewed as a single offense for

registration purposes.       He concedes that in Commonwealth v. Merolla,

909 A.2d 337 (Pa.Super.2006), this Court found a defendant with 2 counts

of indecent assault was subject to lifetime registration under Section

9795.1(b)(1) of Megan’s Law II.           However, he claims Merolla is ripe for

reconsideration, and asserts that his case is distinguishable from Merolla

because he is subject to the registration requirements of SORNA, not

Megan’s Law II. He suggests we interpret the statute similarly to the Three

Strikes Statute, which is directed toward heightening punishment for
____________________________________________


6
  I agree with the dissent that this decision yields a harsh result that
implicates principles of fundamental fairness regarding contract law. The
dissent accurately observes that Appellant did not seek to withdraw his
guilty plea but sought to have the terms of the plea enforced. The dissent
also accurately notes that Appellant’s crimes did not require him to register
as a sex offender for life at the time he entered into the plea bargain.
Appellant’s crimes, however, did subject him to registration for a period of
ten years. Thus, the plea could have been structured to avoid registration,
and the retroactive application of SORNA did not render the plea
unconstitutional or violate the terms of plea.



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J-A22020-15


criminals who have failed to benefit from penal discipline.       He further

contends this Court should be consistent with the Commonwealth Court,

which recognized the general purpose of graduated sentencing laws is to

punish more severe offenders who have not benefited from penal discipline.

He concludes that if he is required to register under SORNA, it should only

be for fifteen years. We disagree.

        The applicable standard of review is well settled: the
        “application of a statute is a question of law, and our
        standard of review is plenary.” Commonwealth v. Baird,
        856 A.2d 114, 115 (Pa.Super.2004). When interpreting a
        statute, the Statutory Construction Act dictates our
        approach. See 1 Pa.C.S.A. § 1921; Baird, supra at 115.
        “[T]he object of all interpretation and construction of
        statutes is to ascertain and effectuate the intention of the
        General Assembly ...” Id. “[T]he best indication of
        legislative intent is the plain language of a statute.”
        Commonwealth v. Bradley, 834 A.2d 1127, 1132
        ([Pa.]2003).

Commonwealth v. Merolla, 909 A.2d 337, 345 (Pa.Super.2006).

     In Merolla, this Court found that the legislative intent and the effect

of the registration requirements of Megan’s Law II were distinguishable from

those invoked in the Three Strikes Statute:

        The salient portion of the statute provides: “[a]n individual
        with two or more convictions of any of the offenses set
        forth in subsection (a)” shall be subject to lifetime
        registration. 42 Pa.C.S.A. § 9795.1(b)(1). However, the
        Three Strikes Statute applies “[w]here the person had at
        the time of the commission of the current offense
        previously been convicted of two or more such crimes ...”
        42 Pa.C.S.A. § 9714(a)(2) (emphasis added). Thus, the
        language of Megan’s Law II is distinguishable from the
        language of the Three Strikes Statute as Megan’s Law II
        does not require a previous conviction. Moreover, the

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J-A22020-15


        legislative intent behind Megan’s Law II is distinct from
        that of the Three Strikes Statute. Whereas Megan’s Law II
        is based on concern for public safety, the Three Strikes
        Statute, although it also implicates public safety, is
        directed to heightening punishment for criminals who have
        failed to benefit from the effects of penal [discipline.]

Merolla, 909 A.2d at 346-47 (internal footnotes and some citations

omitted).

     Although Merolla dealt with the old version of Megan’s Law II, the

language in the SORNA statute is very similar:

        § 9799.14. Sexual offenses and tier system

                                *     *      *

        (b) Tier I sexual offenses.--The following offenses shall
        be classified as Tier I sexual offenses:

                                *     *      *

        (4) 18 Pa.C.S. § 2910 (relating to luring a child into a
        motor vehicle or structure).

                                *     *      *

        (d) Tier III sexual offenses.--The following offenses
        shall be classified as Tier III sexual offenses:

                                *     *      *

        (16) Two or more convictions of offenses listed as Tier I or
        Tier II sexual offenses.

42 Pa.C.S. § 9799.14.

        § 9799.15. Period of registration

        (a) Period of registration.--Subject to subsection (c), an
        individual specified in section 9799.13 (relating to
        applicability) shall register with the Pennsylvania State
        Police as follows:



                                    - 12 -
J-A22020-15


              (1) An individual convicted of a Tier I sexual offense,
              except an offense set forth in section 9799.14(b)(23)
              (relating to sexual offenses and tier system), shall
              register for a period of 15 years.



              (2) An individual convicted of a Tier II sexual offense
              shall register for a period of 25 years.

              (3) An individual convicted of a Tier III sexual
              offense shall register for the life of the individual.

42 Pa.C.S. § 9799.15.

       Here, Appellant has two convictions for luring a child into a vehicle,

one of the enumerated offenses under § 9799.14, which qualifies him for

lifetime registration as a sexual offender. The registration is designed to be

protective, not punitive. The language in the statute is very similar to the

language of the Megan’s Law II, and this Court held in Merolla that two

enumerated convictions did not have to occur at separate times to subject a

defendant to lifetime registration requirements.7 Appellant tried to lure two

children into his vehicle and now has two luring convictions. Although the

result is somewhat harsh, Appellant should not have tried to lure two

children into his pick-up truck, actions which the General Assembly has seen

fit to criminalize. See 18 Pa.C.S. § 2910.8

____________________________________________


7
  The dissent artfully argues that Merolla was improperly decided and
should be reexamined, however, it is currently controlling.
8
  To the extent that Appellant argues the Commonwealth Court has
recognized that the general purpose of graduated sentencing laws is to
(Footnote Continued Next Page)


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J-A22020-15


      Order affirmed.

      Judge Platt joins in the memorandum.

      Judge Bowes files a dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




                       _______________________
(Footnote Continued)

punish more severe offenders who have not benefited from penal discipline,
we note that “the decisions of the Commonwealth Court are not binding on
this Court.” Commonwealth v. Heredia, 97 A.3d 392, 395 appeal denied,
104 A.3d 524 (Pa.2014).




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