J-S72039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                    Appellee                 :
                                             :
                     v.                      :
                                             :
ERNESTO SALDANA,                             :
                                             :
                 Appellant                   :       No. 799 MDA 2016

                 Appeal from the Order Entered April 13, 2016,
              in the Court of Common Pleas of Lancaster County,
              Criminal Division at No(s): CP-36-CR-0002999-2008

BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED DECEMBER 09, 2016

        Ernesto Saldana (Appellant) appeals pro se from the order of April 13,

2016, which denied his “Motion to Confirm Defendant is Not Required to

Register    Under    [the   Sex   Offender       Registration   and   Notification   Act

(SORNA)].”1 We affirm.

        In November of 2007, a minor female relative of Appellant disclosed

that she had been sexually assaulted by him on more than one occasion. On

April 22, 2008, after an investigation into these claims, Appellant was

arrested and charged with indecent assault - complainant less than 13 years

of age and corruption of minors. On November 17, 2008, Appellant entered

into a guilty plea to the indecent assault charge. The crime of corruption of

minors was nolle prossed by the Commonwealth. Sentencing was postponed


1
    42 Pa.C.S. § 9799.41.
*Retired Senior Judge assigned to the Superior Court.
J-S72039-16


pending a review by the Sexual Offender Assessment Board (SOAB). Once it

was determined that Appellant did not meet the criteria for classification as a

sexually violent predator, he was sentenced to an agreed-upon sentence of

23 months’ incarceration followed by a consecutive term of two and one half

years of probation.   The following conditions of probation/parole applied:

“sex offender conditions, Megan’s Law, no contact [with] victim.” Plea

Agreement, 11/17/2008. Because the offense to which Appellant pled was

enumerated under the version of Megan’s Law in place at the time, Appellant

was required to register for a period of ten years. 42 Pa.C.S. § 9795.1(b)(2).

No post-sentence motion or direct appeal was filed.

      Appellant was granted parole on February 19, 2009; however, he

failed to attend a scheduled appointment on March 10, 2009 and, as a

result, a bench warrant was issued and he was charged with the offense of

failure to comply with registration of sexual offender requirements, 18

Pa.C.S. § 4915(a)(1).2     This offense served as the basis for a parole

violation. On March 26, 2010, Appellant was found to be in violation of his

parole and was sentenced to serve the balance of his unserved incarceration,

to be followed by the original two and one half year probationary term.

      This pattern repeated itself in 2011, with Appellant failing to report for

scheduled probation appointment and failing to maintain an approved


2
  Appellant pled guilty to this offense on March 26, 2010, and was sentenced
to a term of time served to 23 months’ incarceration and a consecutive term
of two years of probation.


                                     -2-
J-S72039-16


residence for the purpose of Megan’s Law compliance. Once more, Appellant

was charged with failure to comply with registration of sexual offender

requirements. On June 6, 2013, Appellant was found to be in violation of his

parole in the instant case and was sentenced to a new two year term of

probation.3

      On December 20, 2011, the legislature enacted the Sex Offender

Registration and Notification Act (SORNA). See 42 Pa.C.S. § 9799.41.

SORNA became effective on December 20, 2012 and, inter alia, increased

the registration period for those convicted of indecent assault - complainant

less than 13 years of age from ten years to lifetime registration. Because he

was under parole supervision at the time SORNA went into effect, Appellant

was subject to the new registration provisions. 42 Pa.C.S. § 9799.13(3)(i)

and (3.1)(i)(C).

      On February 24, 2016, Appellant filed pro se a motion4 seeking to

enforce the terms of his plea agreement in which he contended that the



3
  On that same date, Appellant was found to be in violation of his parole at
another case and also pled guilty to the new failure to comply with
registration of sexual offender requirements offense.       His aggregate
sentence on these two matters and the instant case is three to six years’
incarceration.
4
  Although, generally, established practice in Pennsylvania requires a trial
court to consider all petitions for post-conviction relief under the Post-
Conviction Relief Act, the trial court was correct in not treating the instant
petition as an untimely-filed PCRA. The PCRA “is not intended . . . to
provide relief from collateral consequences of a criminal conviction.” 42
Pa.C.S. § 9542. See Commonwealth v. Partee, 86 A.3d 245, 247 (Pa.


                                    -3-
J-S72039-16


increased registration time required by SORNA violated the terms of his

guilty plea agreement because he had specifically bargained for a ten-year

registration period.     The Commonwealth filed a response and, on April 13,

2016, the trial court denied Appellant’s motion. This timely-filed appeal

followed.

      On appeal, Appellant appears to argue that the trial court erred in

denying his motion because he only agreed to a ten-year Megan’s Law

registration period at the time of his plea; thus, imposition of a lifetime

registration violates the terms of his plea agreement. Appellant’s Brief at 1-

3.   In considering this issue, we apply the following principles. “[E]ven

though a plea agreement arises in a criminal context, it remains contractual

in   nature   and   is   to   be   analyzed   under   contract   law   standards.”

Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013) (en

banc) (citations omitted).5

            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
      decisions. However, we are bound by the trial court’s credibility
      determinations.




Super. 2014) (finding appellant’s petition seeking to enforce plea agreement
and preclude application of SORNA amendments not a PCRA petition).
5
 On September 28, 2016, our Supreme Court approved of Hainesworth in
Commonwealth v. Martinez, 2016 WL 5480682 (Pa. Sept. 28, 2016).



                                       -4-
J-S72039-16


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

omitted).

     Parties must state the terms of a plea agreement on the record and in

the presence of the defendant. Pa.R.Crim.P. 590(B)(1). “If a trial court

accepts a plea bargain, the defendant who has given up his constitutional

right to trial by jury must be afforded the benefit of all promises made by

the district attorney.” Hainesworth, 82 A.3d at 449 (citation omitted). “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. (citation omitted). Because plea

bargaining is such an integral part of our criminal justice system, specific

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

Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa. Super. 2012).

     [D]isputes 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.

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

omitted).

     In Hainesworth, an en banc panel of this Court was asked to consider

whether retroactive application of the SORNA registration requirements

breached the terms of Hainesworth’s plea agreement. Hainesworth, 82


                                   -5-
J-S72039-16


A.3d at 446-47.         Applying the contract principles outlined above, the

Hainesworth Court concluded that the trial court did not err in ordering

specific enforcement of Hainesworth’s plea bargain. Id. at 447. In upholding

the trial court’s determination, the Court found significant the terms of the

plea bargain, which required the Commonwealth to withdraw all charges

carrying a Megan’s Law registration requirement, and the Commonwealth’s

repeated assurances during the plea process that it was not seeking

registration. Id. at 445-48. Accordingly, the Court determined that the

objective evidence of record supported the conclusion that the parties had

negotiated an agreement that would not require Hainesworth to register as a

sex offender; thus, imposition of a registration requirement based on a

subsequent change in law, would breach that agreement. Id. at 450.

        At the outset, we note that Appellant has failed to meet his burden of

providing this Court with a complete record; specifically, he has failed to

order the transcripts of his guilty plea and sentencing hearings, in violation

of Pa.R.A.P. 1911. Accordingly, “we are limited to considering only those

facts    which   have    been   duly   certified   in   the   record   on   appeal.”

Commonwealth v. Osellanie, 597 A.2d 130, 131 (Pa. Super. 1991).

        The certified record before us reveals that, under the terms of his plea

agreement, the Commonwealth nolle prossed the charge of corruption of

minors in exchange for a plea to indecent assault - complainant under 13

years of age.



                                       -6-
J-S72039-16


      At the time of Appellant’s guilty plea, the charge of corruption of

minors, 18 Pa.C.S. § 6301(a)(1), was not a predicate offense for registration

under Megan’s Law. See Commonwealth v. Bundy, 96 A.3d 390, 392 n.3

& 5 (Pa. Super. 2014).        However, the offense of indecent assault -

complainant under 13 years of age carried a ten-year registration period.

Simply stated, the agreement negotiated herein resulted in the nolle pros of

an offense that did not carry a registration period, and a plea of guilty to an

offense that did.   Thus, there is nothing in the certified record to support

Appellant’s claim that his agreement was similar to that upheld in

Hainesworth.

      Moreover, the record is devoid of any negotiation as to a specific term

of registration. As the trial court explained, “[a]lthough the parties agreed

at sentencing that Megan’s Law required [Appellant] to register for a ten-

year period, this was simply not a negotiated term of the plea agreement,”

noting that the written plea agreement form presented in this case set forth

the condition of “Megan’s Law” with no specific term attached. Trial Court

Opinion, 5/23/2016, at 8. We agree with the court’s analysis and hold that

Appellant has failed to convince us that the ten-year Megan’s Law

registration period was an essential term of the agreement negotiated

between Appellant and the Commonwealth.           Accordingly, we affirm the

court’s order.




                                     -7-
J-S72039-16


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2016




                          -8-
