J-S90038-16

                                   2016 PA Super 296

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JONATHAN RITZ,

                            Appellee                      No. 862 EDA 2016


                    Appeal from the Order February 16, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000171-2005

BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

OPINION BY JENKINS, J.:                            FILED DECEMBER 21, 2016

        The Commonwealth appeals from an order granting Jonathan Ritz’s

motion to enforce the condition in his guilty plea agreement requiring him to

register as a sex offender for ten years. The Commonwealth contends that

the Sex Offender Registration and Notification Act (“SORNA”),1 which the

legislature enacted six years after Ritz’s guilty plea agreement, requires Ritz

to register as a sex offender for the rest of his life.

        Based on our Supreme Court’s recent decision in Commonwealth v.

Martinez, 147 A.3d 517 (Pa.2016), and authorities cited therein, we agree

with the trial court that under contract principles, Ritz’s agreement is binding

and enforceable, and he is only required to register for ten years. We also

address an issue that the majority in Martinez declined to examine: even if

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1
    42 Pa.C.S. §§ 9799.10 – 9799.41.
J-S90038-16



Ritz has a binding agreement with the Commonwealth, do the Contract

Clauses of the United States and Pennsylvania Constitutions entitle the

legislature to modify the terms of Ritz’s plea agreement through SORNA?

Guided by Chief Justice Saylor’s concurring opinion in Martinez, we hold

that SORNA runs afoul of Ritz’s fundamental due process right to enforce the

terms of his plea agreement. Because SORNA violates due process, it also

fails to satisfy the United States and Pennsylvania Contract Clauses.

       Accordingly, we affirm the trial court’s order.

       On March 14, 2005, Ritz was charged with two counts of indecent

assault of a person less than 13 years of age, endangering the welfare of

children, corruption of minors and unlawful contact with a minor. 2       Under

Megan’s Law, 18 Pa.C.S. 9795.1 (repealed), the sexual offender registration

law then in effect, each offense carried a ten year registration period for first

time offenders such as Ritz. No offense carried a lifetime registration period.

       On June 15, 2005, Ritz entered into a negotiated plea in which he

agreed to plead guilty to one count of indecent assault in return for the

Commonwealth’s agreement to nolle prosse the remaining charges. There




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2
   18 Pa.C.S. §§ 3126(a)(7), 4304(a), 6301(a)(1), and 6318(a)(1),
respectively. The bills of information alleged that on or about June 1, 2004,
Ritz had a minor child put lotion on his penis and watch him masturbate.
Later on the same date, Ritz had the minor child straddle his legs as he
rubbed his penis against her.



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was no mention during the guilty plea hearing about the length of time that

Ritz had to register as a sex offender.

      On September 15, 2005, the trial court sentenced Ritz to three years’

probation. During Ritz’s sentencing hearing, the assistant district attorney

asserted that Ritz’s guilty plea to indecent assault carried a mandatory

registration period of ten years: “Your Honor, this does require as part of a

plea agreement 10 year Megan’s Law registration and the notification that

needs to be read into the record.” N.T., 9/15/05, at 2 (emphasis added).

The court stated in its sentencing order: “[Ritz] is … subject to the ten []

year [registration] requirement[] under Megan’s Law pursuant to 18 Pa.C.S.

[§] 9795.1.”

      In September 2008, Ritz completed his three-year term of probation

with no violations.

      The legislature enacted SORNA on December 20, 2011, and SORNA

became effective on December 20, 2012. SORNA “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.”

Commonwealth v. Farabaugh, 128 A.3d 1191, 1192 (Pa.2015). Tier I

offenses require registration for 15 years; Tier II offenses mandate 25 years

of registration; and Tier III offenses obligate an offender to register for his

or her lifetime. 42 Pa.C.S. § 9799.15(a)(1), (2), and (3), respectively.

Indecent assault is a Tier III offense.        42 Pa.C.S. § 9799.14(d)(8).

Individuals who registered as sex offenders prior to SORNA’s effective date,

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but who had not completed their registration periods by that date, were

required to register under SORNA “as provided in section 9799.15.”               42

Pa.C.S. § 9799.13(3)(i).

      As of SORNA’s effective date, Ritz had not completed his ten-year

registration period under Megan’s Law.          Consequently, if SORNA were to

apply, it would obligate Ritz to register “as provided in section 9799.15,”

i.e., as a sex offender for life, instead of for the ten years that the parties

agreed upon at sentencing, as explained below.

      On December 3, 2015, the Pennsylvania State Police notified Ritz that

he was required to register as a sex offender for life. Ritz promptly filed a

Petition To Enforce Plea Agreement To Avoid Additional Sex Offender

Registration   contending   that    his    guilty   plea   agreement   limited   his

registration period to ten years.

      On February 16, 2016, the trial court ordered that Ritz was “subject to

the 10 year Megan’s Law registration in effect at the time of his plea” and

“not subject to the new registration requirements under the SORNA statute.”

The Commonwealth filed a timely appeal, and both the Commonwealth and

the trial court complied with Pa.R.A.P. 1925.

      The Commonwealth raises five issues in this appeal, which we have re-

ordered for the sake of disposition:

      1.    Did the trial court err in finding that [Ritz] presented
      sufficient evidence that he specifically bargained for only a 10
      year registration period, when there was absolutely no mention
      of it in any guilty plea colloquy, nor at the time of the plea
      hearing?

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       2. Did the trial court err in finding that simply informing a
       defendant of his statutory duty to register under Megan’s Law,
       when such notification was required by statute, transformed that
       notice into a specifically bargained for term of a plea agreement?

       3. Did the trial court err in finding that the specific length of the
       registration, which is a collateral consequence, was within the
       control of the District Attorney to negotiate away?

       4. Did the trial court err in modifying the length of registration
       when it is specifically prohibited [from doing so] by 42 Pa.C.S. §
       9799.20?

       5. Did the trial court err in finding that the Commonwealth of
       Pennsylvania cannot modify the term of an existing contract as a
       legitimate exercise of the police power of this state?

Brief of Commonwealth, at 4.

       We address the Commonwealth’s first four arguments together,

because they boil down to the same issue: whether the order limiting Ritz’s

registration period to ten years violates the plain language of SORNA. This

is a question of law for which our standard of review is de novo and our

scope of review is plenary.        Commonwealth v. Crawley, 924 A.2d 612,

614 (Pa.2007). Based on the majority opinion in Martinez, we conclude that

the order is valid and enforceable.

       In Martinez, the trial court granted the petitions of three individuals 3

to limit their registration periods as sex offenders to the time periods in

effect under Megan’s Law at the time of their guilty plea agreements. One
____________________________________________


3
   Our Supreme Court later consolidated the Commonwealth’s appeals
relating to these individuals under the caption “Commonwealth v.
Martinez”.



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petitioner, Wayne Shower, had been charged with indecent assault under 18

Pa.C.S. § 3126(a)(7), the same offense charged against Ritz in the present

case, and aggravated indecent assault.              Shower pled guilty to indecent

assault in exchange for the Commonwealth’s promise to withdraw the

aggravated indecent assault charge and to recommend a sentence of 11½ -

23 months’ imprisonment.

       The trial court accepted the plea agreement and imposed sentence on

June 12, 2006, a date when Megan’s law was in effect. Under Megan’s Law,

Shower’s conviction for indecent assault required him to register as a sexual

offender for ten years.           42 Pa.C.S. § 9795.1(a)(1) (expired).        The

aggravated indecent assault charge withdrawn by the Commonwealth would

have subjected Shower to lifetime registration under Megan’s Law.              42

Pa.C.S. § 9795.1(b)(2) (expired).

       During the plea agreement hearing, the only mention of Shower’s

registration requirement was a comment by defense counsel: “Section

9795.1 [of Megan’s Law] does seem to indicate that a 10-year registration

would be required relating to indecent assault where the offense is a

misdemeanor of the first degree.”              N.T., 3/6/06, at 5.4   There was no
____________________________________________


4
  We have located the transcript from Shower’s guilty plea hearing in the
Commonwealth’s reproduced record in Martinez, and we attach the
transcript as an appendix to this opinion. The Martinez majority does not
recite from the guilty plea transcript, but it does discuss the guilty plea
proceedings in some detail. Therefore, we think it safe to assume that the
guilty plea transcript was in the certified record in that appeal.



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mention that Shower’s motive for pleading guilty to indecent assault was to

avoid a lifetime registration term required for an aggravated indecent

assault conviction.

      Seven years passed. In 2013, shortly after SORNA went into effect,

Shower filed a petition to enforce his plea agreement, arguing that his plea

agreement rested upon an “understanding and agreement” with the

Commonwealth that he only had to register as a sexual offender for ten

years under Megan’s Law.     The court held a hearing during which Shower

testified that he entered the plea agreement with the “underst[anding]” that

part of the agreement required him to register as a sexual offender for only

ten years.   Shower further testified that the main reason that he entered

into the agreement with the Commonwealth was to avoid the lifetime

registration requirement Megan’s Law attached to an aggravated indecent

assault conviction, i.e., the charge that the Commonwealth withdrew as part

of the plea agreement. Martinez, 147 A.3d at 523-24. But while Shower

chose to explain his motives seven years after his guilty plea, nobody said

during the guilty plea hearing itself that Shower’s motive for pleading guilty

to indecent assault was to avoid a lifetime registration term.

      The trial court granted Shower’s petition.    It explained that general

principles of contract law entitled Shower to enforce his bargain with the

Commonwealth restricting his registration period to ten years.            The

Commonwealth appealed to this Court, which affirmed on the basis of

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

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J-S90038-16



banc).5 The Commonwealth filed a petition for allowance of appeal, and the

Supreme Court granted allocatur.

       In the Supreme Court, the petitioners, including Shower, argued that

Hainesworth was correctly decided, while the Commonwealth insisted that

the plea agreements were subject to modification through SORNA.             On

September 28, 2016, the Supreme Court affirmed.              Citing Hainesworth

with approval, the majority opinion in Martinez held that basic contract

principles entitled Shower to enforce the Commonwealth’s agreement in his

guilty plea to limit his registration period to ten years:



____________________________________________


5
  The defendant in Hainesworth was charged with statutory sexual assault,
aggravated indecent assault, indecent assault and criminal use of a
communication facility. The defendant entered a negotiated plea of guilty to
statutory sexual assault, indecent assault, and criminal use of a
communication facility.     The Commonwealth agreed to withdraw the
aggravated indecent assault charge, which carried a lifetime registration
requirement under Megan’s Law. The Commonwealth stated during the
defendant’s guilty plea hearing that the offenses to which the defendant pled
guilty were “not Megan’s Law.” Nobody expressly stated during the guilty
plea hearing that the parties structured the plea agreement in order for the
defendant to avoid lifetime registration under Megan’s Law.

One week before SORNA’s effective date, the defendant filed a petition
seeking termination of his supervision in contemplation of the registration
requirement that would be imposed if he remained on probation on SORNA’s
effective date. The trial court denied the petition to terminate Hainesworth’s
supervision but entered an order stating that Hainesworth was not subject to
the registration requirements of SORNA. This Court affirmed, stating: “It is
unambiguous from the record that both parties to this appeal, and the trial
court, understood that a registration requirement was not included as a term
of Hainesworth’s plea agreement.” Id., 82 A.3d at 448.



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     [T]he Hainesworth court accurately described the critical role
     that plea agreements play in the criminal justice system. In fact,
     courts have long recognized that plea negotiations and
     agreements are essential components of the criminal justice
     system. See, e.g., Santobello [v. New York], 404 U.S. [257],
     260 [(1971)] (explaining that ‘[t]he disposition of criminal
     charges by agreement between the prosecutor and the accused,
     sometimes loosely called “plea bargaining,” is an essential
     component of the administration of justice’). In this
     Commonwealth, we look upon the practice of plea bargaining
     with favor. Commonwealth v. Zuber, 353 A.2d 441, [443
     (Pa.1976)].

     We acknowledge that the analogy of a plea agreement as a
     contract is not a perfect one. For instance, unlike a typical
     contract, a plea agreement does not become binding on the
     parties upon their consent to terms; rather, a plea agreement is
     not valid and binding until it is evaluated and accepted by a third
     party, i.e., a trial court. See Pa.R.Crim.P. 590(A)(3) (stating
     that a judge may refuse to accept a plea of guilty or nolo
     contendere and that the judge shall not accept the plea unless
     the judge determines after inquiry of the defendant that the plea
     is voluntarily and understandingly tendered).

     Nonetheless, as the Hainesworth court recognized, plea
     agreements clearly are contractual in nature. See Puckett v.
     United States, 556 U.S. 129, 137 (2009) (stating that,
     ‘[a]lthough the analogy may not hold in all respects, plea
     bargains are essentially contracts’)….

     [T]he Santobello Court instructed 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.’ Santobello, 404
     U.S. at 262. Consistent with Santobello, this Court has held
     that, when a trial court has accepted a plea agreement entered
     into by the Commonwealth and a defendant, the prosecutor is
     duty bound to fulfill the promises made in exchange for the
     defendant’s guilty plea. See Zuber, 353 A.2d at 444 (holding
     that the prosecutor has an affirmative duty to honor all promises
     made in exchange for a defendant’s plea) (citing, inter alia,
     Santobello) … ‘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

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J-S90038-16


       might be coerced into a bargain or fraudulently induced to give
       up the very valued constitutional guarantees attendant the right
       to trial by jury.’ Zuber, 353 A.2d at 444. Consequently, in this
       Commonwealth, when trial courts accept plea agreements, the
       convicted criminals, like [Shower] in this case, are entitled to the
       benefit of their bargains. Id.

Id., 147 A.3d at 531-32.

       The majority concluded:

       When a question arises as to whether a convicted criminal is
       entitled to specific performance of a term of his plea agreement,
       the focus is not on the nature of the term, e.g., whether the
       term addressed is a collateral consequence of the defendant's
       conviction. Rather, quite simply, the convicted criminal is
       entitled to the benefit of his bargain through specific
       performance of the terms of the plea agreement. Santobello,
       404 U.S. at 262 ... Thus, a court must determine whether an
       alleged term is part of the parties' plea agreement. If the answer
       to that inquiry is affirmative, then the convicted criminal is
       entitled to specific performance of the term ...

       Regarding Shower’s case, in concluding that the record
       demonstrated the nature of the parties’ plea agreement, the
       Superior Court accurately recounted the discussion that took
       place at Shower’s plea colloquy … That discussion included
       Shower’s counsel stating that Shower would be subject to ten
       years of registration under Megan’s Law … Thus, the Superior
       Court held that the record demonstrated that Shower was
       entitled to the benefit of his bargain - ten years of registering as
       a sexual offender. The Commonwealth fails to convince us that
       the court erred in this regard.

Id. at 532-33.6



____________________________________________


6
  Chief Justice Saylor and Justice Wecht filed concurring opinions. We
discuss Chief Justice Saylor’s concurring opinion on pages 19-20, infra, in
the course of analyzing the Commonwealth’s Contract Clause argument.



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J-S90038-16


      This case is the same in all material respects as Shower’s case in

Martinez and Hainesworth. Like Shower and Hainesworth, Ritz pled guilty

to an offense in exchange for the Commonwealth’s agreement to withdraw

one or more other charges. In each case, the parties agreed on the record

as to the length, if any, of the defendant’s sexual offender registration

period.      In Hainesworth, the prosecutor said that the defendant’s

sentences are “not Megan’s law”; in Martinez, Shower’s attorney stated,

without objection by the Commonwealth, that Shower had a 10 year

registration period; and in the present case, the prosecutor expressly agreed

that a ten-year registration period was “part of [its] plea agreement” with

Ritz. In each case, the agreement was valid under the sexual offender law

then in effect, Megan’s Law.           In particular, at the time of Ritz’s plea

agreement in 2005, the maximum allowable registration period for his

offense under Megan’s Law was ten years – the period of time he agreed to

accept.   For these reasons, the trial court correctly held that Ritz and the

Commonwealth entered into a binding contract to make ten years the

applicable    registration   period.     Martinez,   147   A.3d   at   531   (“plea

agreements clearly are contractual in nature”).        Ritz is entitled to enforce

this agreement to receive the benefit of his bargain. Id.

      The proceedings in Martinez and Hainesworth are noteworthy for

one additional reason. In neither case did the defendant state on the record

his motives for entering the plea agreement. Specifically, neither defendant


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J-S90038-16


explained on the record that he entered his plea agreement to avoid lifetime

registration under Megan’s Law.    Despite this omission, the Martinez and

Hainesworth courts held that each plea agreement was enforceable. The

lesson that we learn, therefore, is that the defendant need not explain his

motives for entering a guilty plea in order to enforce its terms. All that is

essential is that the terms themselves are clear and constitute valid

consideration   for   the   agreement,   as   they   did    in   Martinez   and

Hainesworth. In the present case, Ritz did not explain on the record why

he decided to plead guilty, but under Martinez and Hainesworth, he did

not need to do so.

      Finally, even though Ritz did not need to explain his motivations on the

record, a reasonable person in his position would have had precisely the

same motivation as Shower did in Martinez -- to avoid lifetime registration

as a sex offender.     Ritz was charged with three offenses that required

registration under Megan's Law: two counts of indecent assault of a person

less than 13 years of age and one count of unlawful contact with a minor.

18 Pa.C.S. § 9795.1(a)(1).     Had Ritz been convicted of more than one of

these offenses, he would have been subject to lifetime registration under

Megan's Law. 18 Pa.C.S. § 9795.1(b)(1) ("the following individuals shall be

subject to lifetime registration:... An individual with two or more convictions

of any of the offenses set forth in subsection (a)").      By pleading guilty to

only one of these offenses and obtaining the nolle prosse of the remaining


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J-S90038-16


charges under his plea agreement, Ritz limited his registration period to ten

years and eliminated any possibility of lifetime registration (as well as any

possibility of conviction and sentencing on the nolle prossed charges).

      As in Martinez and Hainesworth, the terms that Ritz and the

Commonwealth       affirmatively       placed    on   the   record    provided   ample

consideration to both parties and created a binding and enforceable

agreement between Ritz and the Commonwealth.

      The Commonwealth insists that its promise of a ten-year registration

period is not binding because it occurred during Ritz’s sentencing hearing

instead of his guilty plea hearing.        We find this distinction irrelevant.      At

sentencing, the Commonwealth agreed on the record to make the ten-year

registration   “part   of   [Ritz’s]    plea    agreement.”     The    fact   that   the

Commonwealth agreed to this term at sentencing does not make this

agreement any less binding than if it occurred at Ritz’s guilty plea hearing.

To conclude otherwise would undermine confidence in the integrity of the

plea bargaining system, the very danger the majority opinion in Martinez

warns us to avoid. See id., 147 A.3d at 532 (“our courts have demanded

strict compliance with [the] duty [to honor all promises made in exchange

for a defendant’s plea] in order to avoid any possible perversion of the plea

bargaining system”).

      The Commonwealth claims that it lacked the authority to “negotiate

away” the length of Ritz’s registration period at sentencing. This statement


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J-S90038-16


is inaccurate, if not disingenuous. A party cannot “negotiate away” a right it

never had in the first place.     At the time of Ritz’s sentencing in 2005,

Megan’s Law limited the registration period for indecent assault to ten years.

SORNA’s amendment to lifetime registration did not become effective until

seven years after sentencing.     Since the Commonwealth had no right to

demand lifetime registration at sentencing, it obviously did not “negotiate

away” lifetime registration.    In truth, the Commonwealth obtained every

minute of the registration period which the law required at that time for

Ritz's crime of conviction.

      Equally inaccurate is the Commonwealth’s assertion that the trial court

“modif[ied]” Ritz’s registration period in violation of SORNA.     The court

“modified” nothing -- to the contrary, it denied the Commonwealth’s attempt

to modify Ritz’s 2005 plea bargain by changing Ritz’s registration period

from ten years to his entire lifetime.   This was the correct decision under

Martinez. Id., 147 A.3d at 527 (quoting, inter alia, Hainesworth) (“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”).

      Under Martinez, a deal is a deal. The Commonwealth agreed on the

record at Ritz’s sentencing in 2005 that his registration period under Megan’s

Law was ten years. Although the Commonwealth might not like the deal it

made in 2005, it cannot abrogate it now.      As another panel of this Court


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J-S90038-16


recently stated: “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.       To do otherwise would play ‘gotcha’ with a revered and

favored    method      of   resolving    criminal    cases.”      Commonwealth           v.

Farabaugh, 136 A.3d 995, 1003 (Pa.Super.2016).

       Having     resolved      the     contract-based        issues   raised     by    the

Commonwealth,        we     turn   to   a    constitutional    issue   asserted    in   the

Commonwealth’s fifth and final argument.               The Commonwealth contends

that even if Ritz’s plea agreement is enforceable under contract law

principles, the Contract Clauses of the United States and Pennsylvania

Constitution entitle the legislature to modify the plea agreement via

enactment of SORNA.           SORNA, the Commonwealth claims, overrides the

plea agreement as a “valid exercise of [the Commonwealth’s] police powers”

under the Contract Clauses.

       The majority in Martinez refrained from deciding whether the

Contract Clauses permit the legislature to pass legislation that modifies or

overrides the defendant’s plea agreement.7 Id., 147 A.3d at 524-25, 529-


____________________________________________


7
  The majority elected to decide the case on common law contract principles
alone, because the trial court and Superior Court only applied contract law
principles in deciding the case, the parties provided adequate argument on
this non-constitutional subject, and the Commonwealth never raised the
constitutional Contract Clause issue in the trial court. Id. at 524-25, 529-
30.



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30.    Accordingly, we now perform that task, and we conclude that the

Contract Clause argument lacks merit.

       The United States Constitution states that “[n]o State shall ... pass

any ... Law impairing the Obligation of Contracts....” U.S. Const. art. I, § 10.

The Pennsylvania Constitution provides similar protection. Pa. Const. art. I,

§ 17 (“No ex post facto law, nor any law impairing the obligation of

contracts,    or   making     irrevocable    any   grant    of   special    privileges   or

immunities, shall be passed”).

       In general, the United States and Pennsylvania Contract Clauses

prohibit the legislature from enacting laws that retroactively impair contract

rights. First Nat. Bank of Pennsylvania v. Flanagan, 528 A.2d 134, 137

(Pa.1987) (“[t]he [C]ontracts [C]lauses… protect contracts freely arrived at

by    the   parties    to   them   from     subsequent     legislative     impairment    or

abridgment”).         Although the United States Contract Clause speaks in

absolute terms, it is not “the Draconian provision that its words might seem

to imply.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 240

(1978).     This provision “does not prevent the State from exercising such

powers as are vested in it for the promotion of the common weal, or are

necessary for the general good of the public,” even though contracts

previously entered into may be affected. Id. at 241. Stated another way,

this provision “does not trump the police power of a state to protect the

general welfare of its citizens.” Buffalo Teachers Fed’n v. Tobe, 464 F.3d


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362, 367 (2d Cir. 2006).     The same principle applies to Pennsylvania’s

Contract Clause, because “the test for unconstitutional impairment of

contract is the same under both constitutions.” South Union Township v.

Commonwealth, 839 A.2d 1179, 1188 n. 14 (Pa.Cmwlth.2003) (citing

Parsonese v. Midland National Insurance Company, 706 A.2d 814

(Pa.1998)).

     To determine whether legislation satisfies the United States and

Pennsylvania Contract Clauses, we apply a three-part test articulated in

Energy Reserves Group, Inc. v. Kansas Power and Light, 459 U.S. 400

(1983):

     The threshold inquiry is to determine whether the state statute
     in reality has operated to substantially impair a contractual
     relationship. [Energy Reserves Group, 459 U.S.] at 411 [].
     Should it be determined that a substantial impairment has
     occurred, the state must set forth a legitimate and significant
     public purpose.      Id. at 412-13 []. Once that purpose is
     identified, the final inquiry concerns whether the adjustment of
     contractual rights is reasonable and of a nature appropriate to
     the public purpose justifying the legislation’s adoption; however,
     if the state is not a contracting party, deference is given to the
     state’s enunciated purpose. Id.

Foster v. Mutual Fire, Marine and Inland Ins. Co., 614 A.2d 1086, 1094

n. 4 (Pa.1992) (citing Energy Reserves Group).

     In this case, the Commonwealth concedes, and we agree, that SORNA

substantially impairs Ritz’s rights under the plea agreement by extending his

period of registration from ten years to his entire life.          Brief For

Commonwealth, at 30.


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      With regard to the second prong, the Commonwealth asserts, and we

agree, that the legislature enacted SORNA for a legitimate and significant

public purpose, namely “to further protect the safety and general welfare of

the citizens of this Commonwealth by providing for increased regulation of

sexual offenders, specifically as that regulation relates to registration of

sexual offenders…”     42 Pa.C.S. § 9799.11(b)(1) (declaration of General

Assembly’s policy).

      We turn to the third prong of the Energy Reserves Group test, which

inquires whether the impairment is both necessary and reasonable to meet

the purpose advanced by the legislature. U.S. Trust Co. v. New Jersey,

431 U.S. 1, 22, (1977) (“legislation adjusting the rights and responsibilities

of contracting parties must be upon reasonable conditions and of a character

appropriate to the public purpose justifying its adoption”); United Steel

Paper and Forestry Rubber Manufacturing Allied Industrial and

Service Workers International Union AFL–CIO–CLC v. Government of

Virgin Islands, -- F.3d --, 2016 WL 6695785, *10 (3d Cir., 11/15/16)

(“any impairment must be both necessary and        reasonable … [to] survive

Contract Clause scrutiny”) (emphasis in original).    Significantly, when the

State itself is a contracting party, “complete deference to a legislative

assessment of reasonableness and necessity is not appropriate because the

State’s self-interest is at stake.”   U.S. Trust Co., 431 U.S. at 26.   If we

afforded complete deference to the State in such a case, the Contract Clause


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probably “would provide no protection at all.” Id. For this reason, when a

State is a contracting party, its “legislative judgment is subject to stricter

scrutiny than when the legislation affects only private contracts.” Nieves v.

Hess Oil Virgin Islands Corp., 819 F.2d 1237, 1249 (3d Cir. 1987).

      When a statute is unreasonable, the court need not address whether

the statute is unnecessary. United Steel Paper, 2016 WL at 6695785, *8

(“we need not decide today whether [the Virgin Islands Economic Stability

Act] was necessary because … we conclude it was unreasonable, which is

alone sufficient to render it improper under the Contract Clause”).

      Chief Justice Saylor’s concurring opinion in Martinez correctly reasons

that SORNA violates the due process rights of individuals who registered for

shorter time periods under Megan’s Law. Because SORNA runs afoul of due

process, SORNA obviously is unreasonable.

      Chief Justice Saylor began by observing:

      The Fourteenth Amendment to the United States Constitution
      and Article 1, Section 9 of the Pennsylvania Constitution, which
      have been interpreted as generally coextensive, guarantee the
      protections of due process. Commonwealth v. Sims, 919 A.2d
      931, 941 n.6 (Pa.2007). The Court has previously related that
      ‘[t]he due process inquiry, in its most general form, entails an
      assessment as to whether the challenged proceeding or conduct
      offends some principle of justice so rooted in the traditions and
      conscience of our people as to be ranked as fundamental and
      that defines the community’s sense of fair play and decency.’
      Commonwealth v. Kratsas, 764 A.2d 20, 27 (Pa.2001).

Martinez, 147 A.3d at 534.     SORNA, the Chief Justice continued, violates

due process by permitting the Commonwealth to circumvent solemn and


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binding promises it made in plea agreements to limit sex offenders’

registration periods under Megan’s Law:

      Plea bargaining’s role in our justice system, combined with the
      defendant’s exchanged waiver of constitutional rights, mandates
      consideration of fundamental fairness and attendant due process
      protections. See State v. Blackwell, 522 S.E.2d 313, 315 (N.C.
      Ct. App. 1999) remanded on other grounds, 538 S.E.2d 929
      (N.C. 2000) (per curiam) (‘By pleading guilty, a defendant
      waives many constitutional rights, not the least of which is his
      right to a jury trial. No other right of the individual has been so
      zealously guarded over the years and so deeply embedded in our
      system of jurisprudence .... As such, due process mandates
      strict adherence to any plea agreement’).

      It seems evident from this Court’s and other jurisdictions’
      precedents that the enforcement of plea bargains is rooted in
      fundamental fairness. See, e.g., Commonwealth v. Sluss, 419
      S.E.2d 263, 265 (Va. Ct. App. 1992) (‘[T]o allow the government
      to receive the benefit of its bargain without providing the
      reciprocal benefit contracted for by the defendant would do more
      than violate the private contractual rights of the parties—it
      would offend all notions of fairness in the related criminal
      proceedings, which are protected by constitutional due
      process.’). Accordingly, since the parties stipulated in these
      cases that the registration conditions were express terms of
      appellees’ plea agreements, I believe appellees are entitled to
      the benefit for which they bargained as a matter of due process.

Id. at 534-35. “The view that plea bargains must be enforced pursuant to

due process principles,” the Chief Justice added, “appears to garner support

among many state and federal jurisdictions.”      Id. at 535 n. 1 (citing ten

federal and state decisions).

      We agree with Chief Justice Saylor’s logic, and we hold that SORNA

violates Ritz’s federal and state due process rights by depriving him of the

benefit of his plea bargain with the Commonwealth.         Because SORNA is


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invalid as a matter of due process, it also is unreasonable, and therefore

invalid, under the United States and Pennsylvania Contract Clauses.       In

everyday terms, SORNA is unreasonable because it robs Peter to pay Paul --

it plunders Ritz’s due process rights in its effort to enhance public safety.

We have no doubt that the legislature had the best of intentions in enacting

SORNA, but its motives do not excuse its incursion on Ritz’s constitutional

rights.

      Because we find SORNA unreasonable, we need not evaluate whether

it is necessary. United Steel Paper, 2016 WL at 6695785, *8. We reject

the Commonwealth’s argument that SORNA is a valid modification to Ritz’s

plea agreement under the United States and Pennsylvania Contract Clauses.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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