Com. v. Blair, B.
Opinion
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL BLAIR Appellant No. 1815 MDA 2013
Appeal from the Order Entered September 16, 2013 In the Court of Common Pleas of Centre County Criminal Division at No: CP-14-CR-0001702-2009
BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 03, 2014 Appellant, Brandon Michael Blair, appeals from the order entered on September 16, 2013 in the Court of Common Pleas of Centre County,
September 16 order.
As a result of events that transpired in the early morning hours of September 7, 2009, Appellant was arrested and charged with one count of sexual assault, 18 Pa.C.S.A. § 3124, two counts of aggravated indecent assault, 18 Pa.C.S.A. § 3125(a)(1), and two counts of indecent assault, 18 Pa.C.S.A. § 3126(a)(1). At a hearing conducted on July 23, 2010, Appellant agreed to plead guilty to the two counts of indecent assault, misdemeanors of the second degree.
On August 24, 2010, the trial judge sentenced Appellant to imprisonment in the Centre County Correctional Facility for a period of not less than 11-1/2 nor more than 23-1/2 months on one count of indecent assault, sentenced him to a consecutive two-year term of probation on the second count of indecent assault, and nol prossed the remaining counts.
indecent assault convictions did not trigger any requirements to register as a sex offender.1 The trial judge approved Appellant for parole in an order filed May 18, 2011. On December 20, 2011, the Pennsylvania Legislature enacted the Sex
effective on December 20, 2012. 42 Pa.C.S.A. §§ 9799.10-9799.41. Any individual being supervised by the board of probation or parole as of the effective date of SORNA was subject to its provisions. 42 Pa.C.S.A. § 9799.13(2). An individual convicted of indecent assault under 18 ster
with the Pennsylvania State Police for a period of 15 years. 42 Pa.C.S.A. § 9799.14(b)(6) and 15(a)(1). However, two convictions for indecent
1
requirements were governed by 42 Pa.C.S.A § 9795.1, which expired on December 20, 2012 pursuant to 42 Pa.C.S.A. § 9799.41.
lifetime of the individual. 42 Pa.C.S.A. § 9799.14(d) and 15(a)(3). As an individual with two convictions under 18 Pa.C.S.A. § 3126(a), Appellant became subject to lifetime registration as a sex offender with the enactment of SORNA.
On November 5, 2012, in anticipation of the effective date of SORNA
2014, Appellant filed a Motion for Early Termination of Parole/Probation and/or Motion to Withdraw Guilty Pleas nunc pro tunc. Appellant sought an order terminating his probation prior to December 20, 2012 so he would not have to register as a sex offender under SORNA, noting there was no requirement to register under the statute in effect when he entered his guilty plea. Alternatively, Appellant sought leave to withdraw his guilty plea, claiming that a significant incentive for entering his guilty plea was to eliminate the risk of a conviction requiring sex offender registration.
December 17, Appellant filed an amended motion seeking the same relief. The trial court denied the amended motion by order entered on December 27, 2012.2
2 tion, the trial court
entered a second order on December 31, 2012 denying the amended motion.
On July 2, 2013, Appellant filed a Petition to Enforce Plea Agreement or for a Writ of Habeas Corpus in an attempt to bar retroactive application of SORNA to his convictions. Appellant asserted that the non-registration aspect of his plea agreement, while not mentioned specifically in his written ement
and was one of two major reasons for the acceptance of the plea offer made
9/25/13, at ¶ 5. Appellant argued that retroactive application of SORNA violated his plea agreement and the Due Process Clauses of the United States and Pennsylvania Constitutions. Id. at ¶ 9. By order dated September 13 and filed on September 16, 2013, the trial court denied
On September 25, Appellant filed a motion for an evidentiary hearing so that Appellant could state on the record for this appeal his belief that the plea agreement eliminated the possibility of any sex offender registration requirement. The trial court granted the motion and an evidentiary hearing was conducted on October 3, 2013. In the course of the hearing, Appellant
register as a sex offender, some of the other charges were fel Evidentiary Hearing, 10/3/13, at 5. He stated he would not have entered the plea if he had known he would have to register as a sex offender, and
explained that registration presents a problem for his employment, which involves welding work in schools. Id. at 10-12.
During the course of the case and after jury selection ongoing plea negotiations were instituted with the Assistant DA at the time [], and during the course of those negotiations a key
[Appellant] would not plead to anything that would require a state sentence or require registration as a sex offender.
***
[The Assistant D.A.] got back to me with a plea offer. The plea offer was that if [Appellant] pled guilty to two counts of indecent assault, misdemeanors of the second degree, the Commonwealth would nol pros the other charges but he would have to serve a sentence of 11 and a half to 23 and a half months in regard to Count 4, that was the first count of indecent assault, and that would be followed by a period of probation thereafter.
The period of incarceration was above and beyond the standard, or even for that matter the aggravated range, of the sentencing guidelines for misdemeanor two, indecent assault, but because it involved charges which would not require [Appellant] to register as a sex offender, and after many discussions not only with [Appellant] and his parents in my office and on the phone, . . . [Appellant] agreed to accept the plea.
Implicit in that agreement was his understanding that he would not have to register as a sex offender. At the time he had a job, which required him to go into schools and that was a big, big concern to him, that he not have to register as a sex offender.
Had he had to register as a sex offender, [Appellant] had made it clear to me he would take his chances with a trial. We had talked about a trial and all of the potential problems and risk involved, even though we always felt he had a decent defense to
this case because it involved a situation in which the young lady involved thought she was having sex with her boyfriend after
boyfriend, it was [Appellant] and he was charged as a result of those circumstances.
But, again, it was absolutely clear that [Appellant] had two major concerns in pleading guilty, avoiding the risk of going to state prison if he were convicted of a felony charge and not having to register as a sex offender if we were able to work out a plea negotiation. It was clear from the beginning.
Id. at 14- avoiding sex offender registration in the plea offer, in the guilty plea
requirement for registration [for the misdemeanor two indecent assault convictions] and no one could have foreseen that this would become an Id. at 20.
Following the evidentiary hearing, Appellant filed a timely appeal from the September 16 order and co statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant raised two errors in his 1925(b) statement and has rephrased them in this appeal as follows:
I. Did the lower court err in enforce plea agreement or for a writ of habeas corpus relating to the registration requirements under SORNA on the basis the lower court no longer had jurisdiction in
II. Did the lower court err in holding it no longer had jurisdiction or authority to enforce the explicit and/or implicit terms of the plea agreement entered into by [Appellant] and the Commonwealth in his case?
ion, the trial court
constrained from granting relief to Appellant by virtue of its lack of
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