J-S20021-14


                             2016 PA Super 63

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RAYMOND W. FARABAUGH

                        Appellant                  No. 1198 WDA 2013


                Appeal from the Order Entered July 1, 2013
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0000362-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and FITZGERALD, J.*

OPINION BY GANTMAN, P.J.:                          FILED MARCH 11, 2016

     Appellant, Raymond W. Farabaugh, is before us upon remand from the

Pennsylvania Supreme Court, with regard to his appeal from the Cambria

County Court of Common Pleas order that dismissed his petition to enforce

his negotiated plea agreement or, in the alternative, for a writ of habeas

corpus. For the following reasons, we reverse and remand.

     The relevant facts and procedural history of this case are as follows.

On September 23, 2010, Victim initiated an investigation, based on

allegations that when she was under 16 years old, in 1994-1995, she

worked on a farm with Appellant, who was then 25 years old.         Victim

claimed Appellant would approach her from behind, grind up against her,

grab her breasts, stick his hands down her pants, and rub her vagina.

___________________________

*Former Justice specially assigned to the Superior Court.
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Victim eventually quit the job. Both parties moved on with their respective

adult lives until 2010. As a result of Victim’s report in 2010, and follow-up

police investigation, the Commonwealth charged Appellant on January 12,

2011, with one count of aggravated indecent assault as a second degree

felony and one count of indecent assault as a second degree misdemeanor.1

Appellant    and    his   counsel     engaged    in   plea   negotiations   with   the

Commonwealth and struck an agreement. Appellant agreed to plead guilty

to the indecent assault count as a second degree misdemeanor and a non-

reportable offense under the relevant version of Megan’s Law (requiring

perpetrators of specified offenses to register and report to authorities), to be

punishable by two years’ probation, plus fines, costs, 500 hours of

community service, sex offender treatment, and no contact with Victim. In

exchange, the Commonwealth agreed to a nolle prosequi on the felony

count, which was a reportable offense under Megan’s Law. At the time of

the plea agreement/proceeding on April 26, 2011, the parties expressly

agreed Appellant’s plea involved a non-reportable offense.            That fact was

____________________________________________


1
  18 Pa.C.S.A. § 3126(a)(8) (providing: (a) “A person is guilty of indecent
assault if the person has indecent contact with the complainant, causes the
complainant to have indecent contact with the person…for the purpose of
arousing sexual desire in the person or the complainant and: (8) the
complainant is less than 16 years of age and the person is four or more
years older than the complainant and the complainant and the person are
not married to each other”). This version of the statute became effective
May 30, 1995, and graded Section 3126(a)(8) as a misdemeanor of the
second degree.



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acknowledged undisputedly on the written plea colloquy and in an email

from the Commonwealth to defense counsel.

       Our Supreme Court continues:

          On June 28, 2011, the trial court sentenced [Appellant] to
          two years’ probation; at the time of sentencing, the law
          did not require [him] to register as a sexual offender.
          Later that year, amendments to Megan’s Law added crimes
          to the list defined as sexually violent offenses, and
          established a three-tiered system for classifying such
          offenses and their corresponding registration periods. See
          Act of December 20, 2011, P.L. 446, No. 111, § 12
          (effective December 20, 2012) (Megan's Law IV). The
          2011 amendments became effective December 20, 2012;
          they applied to individuals who, as of that date, [had been]
          convicted of a sexually violent offense and were
          incarcerated, on probation or parole, or subject to
          intermediate punishment. See id. (codified as amended at
          42 Pa.C.S. § 9799.13). Thus, [Appellant] was subject to
          the reporting and registration requirements, …and, as a
          Tier–II sexual offender, …was required to register for 25
          years, …§ 9799.15(a)(2).[2]

          After [SORNA] went into effect, [Appellant] filed a “Petition
          to Enforce Plea Bargain/Habeas Corpus,” arguing that
          ordering him to comply with the new registration and
          reporting requirements violated his plea agreement and

____________________________________________


2
  On October 17, 2012, before the effective date of SORNA (December 20,
2012), Appellant’s probation officer notified Appellant about the imminent
changes per SORNA and filed a petition to terminate Appellant’s probation,
noting Appellant had fulfilled all of the requirements of his probation. The
court denied the petition the same day. Appellant also sought relief from
probation on December 6, 2012, based on the plea agreement and the
impending SORNA registration/reporting requirements.          The trial court
scheduled a hearing for December 14, 2012, after which the court denied
Appellant’s petition by order filed December 17, 2012. Appellant filed an
appeal from this order on December 28, 2012.




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          various state and federal constitutional provisions.[3] The
          trial court denied the petition, and [Appellant] appealed to
          the Superior Court.[4]

          On March 14, 2014, while the appeal was pending in the
          Superior Court, after the parties had submitted their briefs,
          the governor signed Act 19 into law, amending the
          provisions of Megan’s Law again; the Act was effective
          immediately and made retroactive to December 20, 2012.
          See Act of March 14, 2014, P.L. 41, No. 19, §§ 7–8.
          Relevant to this appeal, Act 19 added the following
          provision, in pertinent part: “For purposes of this
          paragraph, the term ‘sexually violent offense’ …shall not
          include…[a] conviction under 18 Pa.C.S. § 3126 (relating
          to indecent assault) where the crime is graded as a
          misdemeanor of the second degree.” Id., § 3 (codified at
          42 Pa.C.S. § 9799.13(3.1)(ii)(B)).

          The Superior Court panel sua sponte addressed Act 19,
          holding the above language exempted [Appellant] from the
          requirements of Megan’s Law.          The panel interpreted
          paragraph (3.1) as excluding convictions of indecent
          assault as a second-degree misdemeanor from every class
          of registrants in 42 Pa.C.S. § 9799.13. Thus, the panel
          reasoned [Appellant] “effectively never was[] subject to
          the Megan’s Law registration requirements” because Act
          19 was made retroactive to December 20, 2012—the
          effective date of Megan’s Law IV, which [Appellant] was
          challenging. Commonwealth v. Farabaugh, No. 1198
          WDA 2013, unpublished memorandum at 4, 105 A.3d 36
          (Pa.Super. filed June 17, 2014). As a result, the panel
          determined [Appellant’s] constitutional issues were moot,
          vacated the trial court’s order, and remanded.
____________________________________________


3
  Appellant filed his petition to enforce plea bargain/habeas corpus on
January 28, 2013. That same day, he withdrew his pending appeal.
4
  The order and opinion denying Appellant’s petition to enforce plea
bargain/habeas corpus was entered July 1, 2013. Appellant filed a timely
notice of appeal from that decision on July 22, 2013. By order filed July 29,
2013, the court directed Appellant to file a concise statement of errors
complained of on appeal, which he timely filed on August 13, 2013.



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           The Commonwealth filed a Petition for Allowance of
           Appeal, and we granted review of the following question:

             Whether the Superior Court erred, while acting sua
             sponte, when it incorrectly found that new
             amendments to 42 Pa.C.S. § 9799.13 excluded the
             crime of [i]ndecent [a]ssault (18 Pa.C.S. §
             3126(a)(8)) from list [sic] of mandated sex offender
             registry crimes.

           Commonwealth v. Farabaugh, ___ Pa. ___, 105 A.3d
           655 (2014) (per curiam) (alterations in original)….

Commonwealth v. Farabaugh, ___ A.3d ___, 2015 WL 9282997, at

*1−*2 (Pa. December 21, 2015). Following intense statutory construction,

the Supreme Court was “constrained to reverse” this Court’s decision,

holding:

           [T]he Superior Court erred in finding Act 19 excluded
           [Appellant] from registering as a sexual offender. It is
           clear that provision (3.1) of § 9799.13 is “a paragraph
           since it is illustrated by an Arabic numeral.” Id. If the
           legislature intended the paragraph (3.1) exception to apply
           to each class of registrants in § 9799.13, it would have
           used the phrase “for purposes of this section,” but that is
           not what the statute says, and we may not read words into
           an unambiguous statutory provision. See 1 Pa.C.S. §
           1921(b). The phrase “for purposes of this paragraph”
           demonstrates the exclusion applies only to paragraph
           (3.1), as the word “paragraph” in this context is a
           technical term with a specific meaning. See 1 Pa.C.S. §
           1903

Id. at *5. As a result of the Farabaugh decision, the Supreme Court also

indirectly called into doubt the Superior Court case of Commonwealth v.

Bundy, 96 A.3d 390 (Pa.Super. 2014) (relying on statutory interpretation

similar to this Court’s decision in the Farabaugh case, which our Supreme

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Court overturned).       Following reversal, the Supreme Court remanded the

case to our Court to address any issues Appellant properly preserved for

appeal; the matter is now before us for that resolution.

       Appellant raised five issues in his brief:

          [WHETHER] THE SENTENCING COURT ERRED BY
          REFUSING TO HONOR THE PLEA AGREEMENT BETWEEN
          [APPELLANT] AND [THE COMMONWEALTH] AS A MATTER
          OF DUE PROCESS.

          [WHETHER] THE SENTENCING COURT ERRED BY NOT
          FINDING THE SEXUAL OFFENDER REGISTRATION AND
          NOTIFICATION ACT UNCONSTITUTIONAL.

          [WHETHER] THE STATUTE OF LIMITATIONS EXPIRED
          PRIOR TO THE FILING OF CHARGES CAUSING ANY
          CONVICTION TO BE TIME BARRED.

          [WHETHER] THE SENTENCING COURT ERRED IN FINDING
          [APPELLANT’S] PLEA WAS KNOWING, VOLUNTARY, AND
          INTELLIGENT.

          [WHETHER]   [APPELLANT’S]  GUILTY                   PLEA       AND
          SENTENCING COUNSEL WAS INEFFECTIVE.

(Appellant’s Brief at 20).5

       For   disposition,    we    combine     Appellant’s   remaining    arguments.

Essentially, Appellant contends he agreed to plead guilty to one count of

____________________________________________


5
  Appellant raised his third, fourth and fifth issues for the first time on
appeal. See generally Pa.R.A.P. 302(a) (providing: “Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal”). Consequently, issues three through five are waived solely for
purposes of this appeal. They could be raised, if necessary, under the rubric
of ineffective assistance of counsel in a timely petition filed per the Post
Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546.



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indecent assault, as a second degree misdemeanor, to be punishable by two

years’ probation, plus fines, costs, 500 hours of community service, sex

offender treatment, and no contact with Victim. The Commonwealth agreed

to nolle prosequi the felony count, which was a reportable offense under the

relevant version of Megan’s Law. At the time of the plea proceedings, the

parties agreed Appellant’s plea involved a non-reportable offense under

Megan’s Law. Appellant contends the integrity of the plea process generally,

and his in particular, compels enforcement of the plea entered.      Appellant

insists he relinquished his right to a jury trial, among other rights, to enter

the plea agreement; and application of SORNA to his case materially

undercuts the plea agreement because it subjects Appellant to reporting

conditions he sought to avoid by pleading guilty.

      Appellant maintains that SORNA substantially modifies his plea

agreement and the impairment is unreasonable.        Appellant avers his plea

bargain incorporated then-existing law regarding sex offender registration,

and the contracting parties understood he would not have to register as a

sex offender. Appellant claims he reasonably expected to be subject to two

years of probation with no Megan’s Law registration. By virtue of SORNA,

new terms have been unilaterally added to that bargain, terms Appellant

specifically sought to avoid by pleading guilty. Appellant maintains SORNA

is no incidental or minor alteration to the plea bargain, where SORNA

transforms Appellant from a non-reporting offender to an offender subject to


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25 years of registration and reporting.     Appellant further complains that

during this new, lengthy registration/reporting period, SORNA likewise

dictates numerous other aspects of Appellant’s life and subjects him to

imprisonment for noncompliance. As such, Appellant reasons the imposition

of SORNA to his case substantially alters his plea bargain.

      Appellant also avers the SORNA registration/reporting requirement

violates the contract clauses of the state and federal constitutions, both

facially and as applied to him.       Appellant offers several constitutional

challenges to SORNA facially, questioning its (a) retroactivity; (b) overly

broad reach to include low-level misdemeanors as well as disputes outside

the realm of sex-related offenses; (c) unreasonable conditions such as in-

person registration and reporting; and (d) unreasonable abrogation of

settled plea bargains. For these reasons, Appellant submits the retroactive

application of SORNA is facially unconstitutional and unconstitutional as

applied to him in the context of his plea bargain.

      Based on the foregoing, Appellant concludes he is entitled to specific

performance of his plea bargain as a matter of fundamental fairness, due

process, and contract law; and the trial court erred when it refused to

enforce the plea agreement as entered, which plainly represents his offense

as non-reportable.      We agree that Appellant is entitled to specific

performance of his plea bargain.




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       As a prefatory matter, settled Pennsylvania law provides “a restraining

principle that counsels against reaching a constitutional question if a non-

constitutional ground for [the] decision is available.”   Commonwealth v.

Levanduski, 907 A.2d 3, 14 (Pa.Super. 2006) (en banc), appeal denied,

591 Pa. 711, 919 A.2d 955 (2007), cert. denied, 552 U.S. 823, 128 S.Ct.

166, 169 L.Ed.2d 33 (2007) (citing Com., Dept. of Transp. v. Taylor, 576

Pa. 622, 633, 841 A.2d 108, 114 (2004); P.J.S. v. Pennsylvania State

Ethics Com’n, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999)). See also In

re Farnese, 609 Pa. 543, 17 A.3d 357 (2011) (reiterating long-standing

legal precedent that courts “should not reach constitutional issue if the case

can properly be decided on non-constitutional grounds”); Commonwealth

v. Kennedy, 583 Pa. 208, 876 A.2d 939 (2005) (declining to address

constitutional claim where matter could be decided under state law

doctrine).   In deference to this rule, we decline to address Appellant’s

“constitutional” arguments, because we can resolve this appeal under state

law.     See    Levanduski,    supra.      See   also     Commonwealth      v.

Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc), appeal denied, 626

Pa. 683, 95 A.3d 276 (2014).

       With respect to plea bargains, “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. Plea bargaining is not some


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adjunct to the criminal justice system; it is the criminal justice system.

Accordingly, it is critical that plea agreements are enforced, to avoid any

possible perversion of the plea bargaining system.”       Id. at 449 (internal

citations and quotation marks omitted). “The disposition of criminal charges

by agreement between the prosecutor and the accused, …is an essential

component of the administration of justice. Properly administered, it is to be

encouraged.    In this Commonwealth, the practice of plea bargaining is

generally regarded favorably, and is legitimized and governed by court rule.

… A ‘mutuality of advantage’ to defendants and prosecutors flows from the

ratification of the bargain.” Commonwealth v. Parsons, 969 A.2d 1259,

1267-68 (Pa.Super. 2009) (en banc), appeal denied, 603 Pa. 685, 982 A.2d

1228 (2009).

      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.     Commonwealth v. Anderson,            995    A.2d   1184,   1191

(Pa.Super. 2010), appeal denied, 608 Pa. 634, 9 A.3d 626 (2010). “Specific

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

Hainesworth, supra. “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.” Id.

         Although a plea agreement occurs in a criminal context, it
         remains contractual in nature and is to be analyzed under

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         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.

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.Super. 1995) (internal

citations omitted).   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.

Id. (internal citations omitted).   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.

Fruehan, 557 A.2d 1093, 1094 (Pa.Super. 1989).

      Sex offender registration:

         [O]bviously has serious and restrictive consequences for
         the offender, including prosecution if the requirement is
         violated. Registration can also affect the offender’s ability
         to earn a livelihood, his housing arrangements and
         options, and his reputation. In fact, the requirements of
         registration are so rigorously enforced, even the
         occurrence of a natural disaster or other event requiring
         evacuation of residences shall not relieve the sexual
         offender of the duty to register. … [W]hen a defendant

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         agrees to a guilty plea, he gives up his constitutional rights
         to a jury trial, to confrontation, to present witness, to
         remain silent and to proof beyond a reasonable doubt. In
         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.

Hainesworth, supra.           To summarize: (a) where a plea bargain is

structured so the defendant will not have to register or report as a sex

offender or he will have to register and report for a specific time; and (b) the

defendant is not seeking to withdraw his plea but to enforce it, then the

“collateral consequence” concept attributed generally to sex offender

registration requirements does not trump enforcement of the plea bargain.

Commonwealth v. Nase, 104 A.3d 528, 532-33 (Pa.Super. 2014) (holding

appellant was entitled to benefit of his bargain for lower registration

requirement, in light of recent plea-bargain law, which limits retroactive

application   of   new   or   increased   sex   offender   registration/reporting

requirements, based on specific record of case).

      Instantly, we respectfully reject the trial court’s analysis in this case.

Here, the record makes clear Appellant pled guilty to an offense that had no

sex offender registration/reporting requirement and that factor was part of

the negotiated plea agreement. Appellant entered his plea with the express

understanding he would not have to register and report as a sex offender.

This understanding was confirmed on the written plea colloquy and in an

email from the Commonwealth to defense counsel, so there can be no

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dispute that this term was an inducement to Appellant to plead.          Any

ambiguity in the agreement therefore must be construed against the

Commonwealth. See Kroh, supra.

     Further, the Commonwealth stated its Cambria County practice was to

comment on any sex offender requirements during the oral plea colloquy,

yet the Commonwealth made no reference to it at Appellant’s plea

proceeding.   After his plea, Appellant did not register or report as a sex

offender because none was required, until SORNA, which now entails 25

years of sex offender registration and reporting for the offense at issue. No

change in the law could have been considered at the time of this plea

agreement on April 26, 2011, and no “collateral consequence” of SORNA

registration/reporting with respect to this offense existed.   Appellant was

already fully compliant with his probation conditions when he learned of

SORNA and sought early termination of probation, long after entering his

plea and in anticipation of SORNA’s effective date. Therefore, we decline to

apply the “collateral consequence” construct to this case. See Nase, supra.

Likewise, we refuse to allow Appellant’s plea bargain to be reformed with the

addition of new conditions which did not exist when he entered the plea

agreement.    See Hainesworth, supra.         To do otherwise would play

“gotcha” with a revered and favored method of resolving criminal cases.

See Parsons, supra.




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      Given the totality of the circumstances surrounding Appellant’s plea as

well as the language of the written plea bargain itself, the question raised in

this appeal, whether non-registration was an enforceable term of the

agreement, must be answered in Appellant’s favor.         See Hainesworth,

supra; Nase, supra; Kroh, supra; Fruehan, supra.              Therefore, after

careful review of the certified record as well as the relevant, settled law

pertaining to plea agreements, and in light of Hainesworth and its progeny,

we hold the trial court erred when it refused to enforce Appellant’s plea

agreement and enter the requested order stating Appellant was not subject

to the registration/reporting requirements of SORNA. We recognize the trial

court did not consider the Hainesworth decision when it denied Appellant’s

petition.   Nevertheless, Hainesworth controls the outcome of this case,

under principles of fundamental fairness, due process and contract law.

Accordingly, we reverse the order denying Appellant’s petition to enforce his

negotiated plea agreement and remand for entry of an order declaring

Appellant is not subject to the registration/reporting requirements of SORNA.

      Order reversed; case remanded for entry of proper order. Jurisdiction

is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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