J-E01004-17
2018 PA Super 245
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : CARLOS FERNANDEZ : : No. 1888 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0902501-2005
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : DEBORAH JEDRZEJ : : No. 1900 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1110002-2004
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : JOSEPH LEWIS : : No. 1904 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 J-E01004-17
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000638-2010
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : A.M. : : No. 1907 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003016-2009
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : CARL C. CORBIN : : No. 1909 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006112-2010
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : WILLIE COLBERT : : No. 1913 EDA 2015 Appellant :
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Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0907851-1996
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : ALBERT DONNELLY : : No. 1917 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0206991-2001
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : VICTOR DEFLICE : : No. 1918 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0108471-2004
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : APRIL GREGHINI : : No. 1936 EDA 2015 Appellant :
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Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0806121-2005
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : TRACY L. MCKINNEY : : No. 1939 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CP-0006404-2009
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : JOSE MELENDEZ : : No. 1940 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1110221-2004
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : MARIANO ORTIZ : : No. 1941 EDA 2015 Appellant :
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Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0203931-2006
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : ROBERT NED : : No. 1943 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012780-2008
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : MICHAEL STANGER : : No. 1944 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012763-2010
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : ALBERT WILSON : : No. 1945 EDA 2015 Appellant :
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Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005469-2008
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : TYREK WHITE : : No. 1946 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012967-2008
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : ALBERT TILSON : : No. 1947 EDA 2015 Appellant :
Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003959-2010
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : FRANK GARCIA : : No. 1948 EDA 2015 Appellant :
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Appeal from the Order June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003899-2011
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : MICHAEL T. LOVELACE : : No. 2039 EDA 2015 Appellant :
Appeal from the Order Entered June 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0050091-2008
BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., DUBOW, J., MOULTON, J., and SOLANO, J.
OPINION BY PANELLA, J. FILED SEPTEMBER 05, 2018
These consolidated appeals follow our Supreme Court’s abrogation of
the retroactive provisions from the Sexual Offender Registration and
Notification Act (SORNA) in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), cert. denied, 138 S.Ct. 925 (2018).1 After Appellants were found to
have violated the terms of their respective probationary sentences, the trial
court, following the mandates of Commonwealth v. Partee, 86 A.3d 245
(Pa. Super. 2014), ordered Appellants to comply with the new registration
conditions and terms assigned to their crimes under SORNA. Appellants
request that we reverse the decisions of the trial court, and enforce the terms
____________________________________________
1 SORNA is codified at 42 PA.C.S.A. §§ 9799.14, 9799.15.
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of the original registration requirements from the time of their initial pleas and
sentencing hearings.
We are constrained to order that under Muniz, the trial court may not
increase their registration requirements under SORNA. Consequently, we find
that Muniz abrogates Partee, and agree with Appellants that the original
periods of sexual offender registration and conditions imposed in each case be
reinstated.
The relevant facts and procedural history of these consolidated appeals
are as follows. Each of the nineteen Appellants accepted plea agreements to
various sexual offenses prior to SORNA’s effective date, which was December
20, 2012. Under the law regarding sexual offender registration effective at the
time of their plea agreements, two Appellants did not have to register as
sexual offenders, and the remaining Appellants had to register for a period of
ten years.2
While Appellants’ cases are not identical, each is similarly situated. Two
Appellants, Wilson and Colbert, pled guilty to crimes that, at the time, did not
require any period of registration as sexual offenders. The remaining
seventeen Appellants accepted plea deals to crimes that included ten years of
registration as sexual offenders under then-existing versions of Megan’s Law,
42 PA.C.S.A. §§ 9791-9799.7 (expired December 20, 2012). In exchange for
Appellants’ guilty or no-contest pleas, the Commonwealth withdrew several ____________________________________________
2To assist in our review, the parties have reached stipulations regarding the procedural history of each case.
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other charged offenses in each case. Had Appellants been convicted of these
withdrawn offenses, each would have been subjected to longer periods of
registration as sexual offenders. All of these dispositions occurred prior to the
effective date of SORNA.
At sentencing in each case, Appellants were informed of whether they
were required to register, and if so for how long. All nineteen Appellants later
violated their respective probationary terms. Appellants were each
resentenced, to either incarceration or additional periods of probation.
On December 20, 2011, the Legislature enacted SORNA, which, as
aforesaid, became effective on December 20, 2012. Appellants were informed
that they were subject to its new registration requirements. 3 The new
requirements increased each Appellant’s registration term from its original
length imposed at sentencing. Nearly all Appellants’ registration terms
increased to lifetime reporting requirements.4
Each Appellant filed a “Petition to Enforce Plea Agreement or for a Writ
of Habeas Corpus.” Appellants challenged the retroactivity of SORNA to their
3 Appellants Lewis, McKinney, Ned, White, Garcia, Lovelace, and Tilson were resentenced for their probation violations after SORNA’s effective date. The remaining Appellants were resentenced before SORNA became effective. Notwithstanding the timing of resentencing, each Appellant was informed that his or her failure to comply with terms of supervision resulted in the rejection of the sexual offender registration period agreed to at original sentencing and that they would be reclassified under SORNA.
4 Appellant Stanger’s registration term increased to 15 years under SORNA. The registration terms for Appellants Lewis, Lovelace, and Greghini each increased to 25 years.
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cases, and argued that it violated the plea deals each had made with the
Commonwealth. The trial court denied Appellants’ petitions, holding that
Appellants were not entitled to specific performance of the negotiated plea
bargain because Appellants had violated the terms of their plea agreements.
In each case, the trial court relied upon Partee. This Court ultimately granted
en banc review, and these consolidated appeals are now before us.
A more detailed recitation of the facts relating to each Appellant follows:
Carlos Fernandez: On September 20, 2006, Fernandez entered into a
negotiated plea agreement with the Commonwealth and pled guilty to
Indecent Assault, 18 PA.C.S.A. § 3126(a)(7),5 and Corruption of Minors, 18
PA.C.S.A. § 6301(a)(1)(i).6 On December 20, 2006, he was sentenced to a ____________________________________________
5 Indecent assault is codified as follows: “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 or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and: . . . (7) the complainant is less than 13 years of age . . . .” 18 PA.C.S.A. § 3126(a)(7). 6 Corruption of Minors is defined as:
(a) Offense defined.-- (1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.
18 PA.C.S.A. § 6301(a)(1)(i).
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period of confinement followed by a term of probation. Under the applicable
version of Megan’s Law at the time, 42 PA.C.S.A. § 9795.1(a), Fernandez was
required to register as a sex offender for a period of ten years. Thereafter,
Fernandez violated the terms of his supervision and was resentenced. After
SORNA became effective, he was reclassified as a Tier III offender, and
retroactively subjected to lifetime registration.
Deborah Jedrzej: On January 10, 2006, Jedrzej entered into a
negotiated plea with the Commonwealth and pled nolo contendere to Indecent
Assault, 18 PA.C.S.A. § 3126(a)(7), Corruption of Minors, 18 PA.C.S.A. §
6301(a)(1)(i), and Endangering the Welfare of Children, 18 PA.C.S.A. §
4304(a)(1).7 Sentencing occurred on February 22, 2006, and she received a
sentence of confinement followed by five years of probation. Under the
applicable version of Megan’s Law, 42 PA.C.S.A. § 9795.1(a), Jedrzej was
required to register as a sex offender for a period of ten years for the Indecent
Assault conviction. Following a violation of her probation, she was
resentenced. Under SORNA, Jedrzej was reclassified requiring lifetime
registration.
Joseph Lewis: Lewis entered into a negotiated plea of guilty to one count
7 Endangering the Welfare of Children (EWOC) is defined as: “A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” 18 PA.C.S.A. § 4304(a)(1).
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each of Unlawful Contact with a Minor, 18 PA.C.S.A. § 6318(a)(1),8 Statutory
Sexual Assault, 18 PA.C.S.A. § 3122.19, and Corruption of Minors, 18 PA.C.S.A.
§ 6301(a)(1)(i), on April 21, 2010. Under the applicable version of Megan’s
Law, the Unlawful Contact with a Minor charge required him to register as a
sex offender for ten years unless he was adjudged a sexually violent predator.
After receipt of the report from the Sexual Offender Assessment Board
(“SOAB”), the Commonwealth elected not to request a sexually violent
predator hearing. He received a sentence of incarceration followed by five ____________________________________________
8 Unlawful contact with a minor is defined as follows: “A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth: (1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).” 18 PA.C.S.A. § 6318(a)(1). 9 Statutory Sexual Assault is defined as:
(a) Felony of the second degree.--Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either: (1) four years older but less than eight years older than the complainant; or (2) eight years older but less than 11 years older than the complainant. (b) Felony of the first degree.--A person commits a felony of the first degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is 11 or more years older than the complainant and the complainant and the person are not married to each other.
18 PA.C.S.A. § 3122.1.
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years of probation. He later violated the terms of his probation and was
resentenced. After the effective date of SORNA, he was reclassified to twenty-
five years of registration.
Anthony Marano: Referred to as A.M. in the Superior Court docket,10
Marano entered into a negotiated plea agreement on September 21, 2010,
and pleaded nolo contendere to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7),
and Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i). He was sentenced the
same day to confinement followed by nine years of probation. Marano was
required to register as a sex offender for a period of ten years for the Indecent
Assault conviction under the then-current version of Megan’s Law. After
receipt of the report from the SOAB, the Commonwealth elected not to request
a sexually violent predator hearing. Thereafter, Marano violated the terms of
his supervision and, on December 28, 2011, his probation was revoked and
he was sentenced to additional periods of incarceration. Under SORNA,
Marano was reclassified for lifetime registration.
10 On page eighteen of its substituted en banc appellate brief, the Commonwealth avers “A.M.” is inappropriately listed in this appeal using his initials, and his full name, Anthony Marano, should be reflected on the docket. We too question the wisdom of shielding the name of a registered sexual offender during the appellate process, particularly since A.M. was an adult at the time of his crimes and his full name is listed on the trial court docket, sentencing order, and even his own Petition to Enforce Plea Agreement. However, when this issue was raised before the trial court, the Commonwealth stated it had no objection to the use of initials on the caption, and the trial court filed its decision of November 10, 2015, utilizing only the initials. The Commonwealth’s concession before the trial court is not binding on the Superior Court, and we will refer to the Appellant as his name appears on the trial court docket.
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Carl Corbin: On February 7, 2011, Corbin pled guilty to Indecent Assault,
18 PA.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 PA.C.S.A. §
6301(a)(1)(i). Corbin was sentenced on May 9, 2011, to five years of
probation. After receipt of the report from the SOAB, the Commonwealth
elected not to request a sexually violent predator hearing. Therefore, Corbin
was required under Megan’s Law to register for a period of ten years, 42
PA.C.S.A. § 9795.1(a). Corbin violated the terms of his probation and was later
resentenced to incarceration. Pursuant to the requirements of SORNA, Corbin
was notified that he was reclassified for lifetime registration.
Willie Colbert: On April 9, 1997, Colbert entered into a negotiated guilty
plea to one count of attempted rape, 18 PA.C.S.A. §§ 901 & 3121.11 He was
sentenced the same day to eleven and one-half to twenty-three months’
confinement, followed by six years of probation. At the time of his guilty plea,
Megan’s Law did not apply to inchoate offenses, so Colbert was not directed
to register as a sex offender. Eventually, Colbert violated the terms of his
supervision, and was resentenced to further incarceration with an additional
period of probation. After the effective date of SORNA, he was notified that he
was reclassified to lifetime registration.
11 Pursuant to 18 PA.C.S.A. § 901, a person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. Rape is defined as, inter alia: “[W]hen the person engages in sexual intercourse with a complainant: (1) By forcible compulsion . . . (5) Who suffers from a mental disability which renders the complainant incapable of consent. 18 PA.C.S.A. § 3121(a).
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Albert Donnelly: Donnelly entered a negotiated guilty plea to Indecent
Assault, 18 PA.C.S.A. § 3126(a)(7), and Endangering the Welfare of Children,
18 PA.C.S.A. § 4304(a)(1). At the time of the plea, Donnelly was required to
register as a sex offender for a period of ten years due to the conviction of
Indecent Assault, pursuant to the then-current version of Megan’s Law, 42
PA.C.S.A. § 9795.1(a). After receipt of the report from the SOAB, the
Commonwealth elected not to request a hearing to determine if Donnelly
should have been classified as a sexually violent predator. Donnelly was
initially sentenced to probation on the charges. After he violated the terms of
his supervision, he was resentenced to incarceration. Following the effective
date of SORNA, he was notified that he was reclassified to lifetime registration.
Victor DeFelice: In May 2005, DeFelice entered into a negotiated plea
agreement with the Commonwealth and pled guilty to Indecent Assault, 18
PA.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 PA.C.S.A. §
6301(a)(1)(i). The Commonwealth nolle prossed the remaining charges, as it
did in almost every one of these cases. After a hearing, the trial court ruled
that the evidence did not support a finding that DeFelice be classified as a
sexually violent predator; therefore, as a result of his conviction of Indecent
Assault, he was required to register as a sex offender under Megan’s Law for
ten years. He received an initial sentence of confinement followed by five years
of probation. After he violated the terms of his supervision, he was sentence
to an additional period of probation. Under SORNA, he was classified as a
lifetime registrant.
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April Greghini: On April 13, 2006, Greghini pled guilty to one count each
of Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i), Endangering the Welfare
of Children, 18 PA.C.S.A. § 4304(a)(1), and Sexual Exploitation of Children,
18 PA.C.S.A. § 6320(a).12 Her sentence included incarceration followed by six
years of consecutive probation. After receipt of the report from the SOAB, the
Commonwealth elected not to request a hearing to determine if Greghini
should have been classified as a sexually violent predator. Under the
applicable version of Megan’s Law, the conviction of Sexual Exploitation of
Children required her to register as a sex offender for ten years. She
subsequently violated the terms of her probation, and received a new
sentence. Under SORNA, she was reclassified to twenty-five years of
registration under 42 PA.C.S.A. § 9799.15 as a Tier II offender.
Tracey McKinney: On May 24, 2010, McKinney entered into a negotiated
plea agreement with the Commonwealth whereby he pled nolo contendere to
Indecent Assault, 18 PA.C.S.A. § 3126(a)(7). His initial sentence was for
incarceration followed by three years of consecutive probation. At that time,
he was required to register as a sex offender under Megan’s Law for ten years.
After receipt of the report from the SOAB, the Commonwealth elected not to
request a sexually violent predator hearing. He later violated the terms of his
12 Sexual exploitation of children is defined as follows: “A person commits the offense of sexual exploitation of children if he procures for another person a child under 18 years of age for the purpose of sexual exploitation.” 18 PA.C.S.A. § 6320(a).
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probation and was resentenced. After the effective date of SORNA, he was
reclassified for lifetime registration.
Jose Melendez: Melendez pleaded guilty to Indecent Assault, 18
PA.C.S.A. § 3126(a)(7), which required him to register as a sex offender for
ten years under Megan’s Law, 42 PA.C.S.A. § 9795.1(a). His initial sentence
was for probation, but he was found to have violated his supervision and was
resentenced to confinement followed by a consecutive term of probation.
Under SORNA, he was required to be a lifetime registrant.
Mariano Ortiz: On November 13, 2006, Ortiz entered a guilty plea to
Indecent Assault, 18 PA.C.S.A. § 3126(a)(7). Under the applicable version of
Megan’s Law, the Indecent Assault charge required him to register as a sex
offender for ten years unless he was adjudged a sexually violent predator.
After receipt of the report from the SOAB, the Commonwealth elected not to
request a sexually violent predator hearing. He received a sentence of five
years probation. He later violated the terms of his supervision and was
resentenced to an additional period of probation. After the effective date of
SORNA, he was reclassified as a lifetime registrant.
Robert Ned: Ned pleaded guilty on December 10, 2008, to one count of
Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and Unlawful Restraint, 18
PA.C.S.A. § 2902(b).13 Under the applicable version of Megan’s Law, the
13Unlawful restraint is codified as follows: “Unlawful restraint of a minor where offender is not victim's parent -If the victim is a person under 18 years
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Indecent Assault charge required him to register as a sex offender for ten
years unless he was adjudged a sexually violent predator. After receipt of the
report from the SOAB, the Commonwealth elected not to request a sexually
violent predator hearing. He received a sentence of incarceration followed by
ten years of probation. He later violated the terms of his probation and was
resentenced to additional periods of imprisonment and probation. After the
effective date of SORNA, he was notified that he was now subject to lifetime
Michael Stanger: On December 14, 2010, Stanger pled guilty to Sexual
Abuse of Children (child pornography), 18 PA.C.S.A. § 6312(d).14 This crime,
as a first offense, is graded as a felony of the third degree. 18 PA.C.S.A. §
6312(d.1). On March 22, 2011, he was sentenced to seven years of probation.
At the time of the plea, Stanger was required to register as a sex offender for
a period of ten years due to this conviction, pursuant to the then-current
version of Megan’s Law, 42 PA.C.S.A. § 9795.1(a). After receipt of the report
from the SOAB, the Commonwealth elected not to request a hearing to
determine if Stanger should have been classified as a sexually violent ____________________________________________
of age, a person who is not the victim's parent commits a felony of the second degree if he knowingly: (1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or (2) holds another in a condition of involuntary servitude.” 18 PA.C.S.A. § 2902(b). 14 Sexual abuse of children, as it relates to child pornography, is codified as
follows: “Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.” 18 PA.C.S.A. § 6312(d).
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predator. He later violated the terms of his probation and was resentenced to
imprisonment followed by five years of probation. After the effective date of
SORNA, he was notified that he was reclassified to fifteen years of registration.
Albert Wilson: On February 17, 2011, Wilson entered a plea of nolo
contendere to Statutory Sexual Assault, 18 PA.C.S.A. § 3122.1. He was
sentenced to a negotiated term of eleven and a half to twenty-three months’
confinement followed by eight years of probation. At that time, he was not
required to register as a sex offender under the applicable version of Megan’s
Law. Thereafter, Wilson violated the terms of his supervision and was
resentenced to two to four years’ incarceration followed by four years of
probation. Under SORNA, he has been classified as a lifetime registrant.
Tyrek White: White entered a negotiated guilty plea to Indecent Assault,
18 PA.C.S.A. § 3126(a)(7), Corruption of Minors, 18 PA.C.S.A. § 6301(a)(1)(i),
and Endangering the Welfare of Children, 18 PA.C.S.A. § 4304(a)(1). He was
sentenced to probation, however, after he was found to have repeatedly
violated the terms of his supervision, he was eventually resentenced to
confinement followed by additional years of probation. Initially, the applicable
version of Megan’s Law, 42 PA.C.S.A. § 9795.1(a), required White to register
as a sex offender for a period of ten years for the Indecent Assault conviction.
Following the violation of his original term of probation, he was reclassified
under SORNA as lifetime registration.
Albert Tilson: On June 27, 2011, Tilson entered a guilty plea to Indecent
Assault, 18 PA.C.S.A. § 3126(a)(7), and was subsequently sentenced to
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incarceration and three years of consecutive probation. The applicable version
of Megan’s Law, 42 PA.C.S.A. § 9795.1(a), required Tilson to register as a sex
offender for a period of ten years. The Commonwealth waived the sexually
violent predator assessment hearing after receiving the report from the SOAB.
Tilson violated the terms of his supervision and was eventually resentenced
to additional periods of incarceration and probation. When SORNA took effect,
he was reclassified as a Tier III lifetime registrant.
Frank Garcia: Garcia pleaded guilty to Indecent Assault, 18 PA.C.S.A. §
3126(a)(7), and Endangering the Welfare of Children, 18 PA.C.S.A. §
4304(a)(1), on July 26, 2011. The applicable version of Megan’s Law, 42
PA.C.S.A. § 9795.1(a), required Garcia to register as a sex offender for a
period of ten years for the Indecent Assault conviction. After receipt of the
report from the SOAB, the Commonwealth elected not to request a hearing to
determine if Garcia should have been classified as a sexually violent predator.
He was sentenced to incarceration on the Indecent Assault charge followed by
a period of six years of probation on the EWOC charge. He later violated the
terms of his supervision and was resentenced. After the effective date of
SORNA, he was reclassified as a Tier III offender which includes lifetime
Michael Lovelace: Lovelace entered into a negotiated plea agreement
whereby he pled guilty to Indecent Assault, 18 PA.C.S.A. § 3126(a)(7), and
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Indecent Exposure, 18 PA.C.S.A. § 3127(a).15 He was sentenced to a period
of confinement and a concurrent term of probation. The Commonwealth
waived the sexually violent predator assessment hearing after receiving the
report from the SOAB. Lovelace violated the terms of his supervision and was
eventually resentenced to an additional period of probation. When SORNA
took effect, he was reclassified as a Tier II registrant which requires
registration for twenty-five years.
Appellants present a single question for our review: “Whether
Appellants’ plea agreements should be enforced with respect to the length or
fact of sexual offender registration where they violate a condition of
probation?” Appellants’ Brief, at 2.
Briefly, we address our jurisdiction over this appeal. “[A]n appeal may
be taken as of right from any final order . . . of a trial court.” Pa.R.A.P. 341(a).
We have traditionally recognized the trial court’s jurisdiction over petitions to
enforce plea agreements with respect to the terms of sexual offender
registration requirements, and by extension, this Court’s ability to review the
court’s resulting orders. See Commonwealth v. Martinez, 147 A.3d 517
(Pa. 2016); Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super.
15 Indecent exposure is defined as: “A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.” 18 PA.C.S.A. § 3127(a).
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2013) (en banc); Commonwealth v. Nase, 104 A.3d 528 (Pa. Super. 2014).
Appellants filed petitions to enforce their plea agreements, and the trial court
denied these in subsequent orders. We see no reason to conclude Muniz
overruled our jurisdiction to review the decisions of trial courts to enforce plea
agreements, especially given Martinez.16 Moreover, we may correct an illegal
sentence sua sponte so long as we maintain jurisdiction over the case. See
Commonwealth v. Butler, 173 A.3d 1212, 1214 (Pa. Super. 2017). Thus,
we find the case is properly before us.
The law on the enforcement of plea agreements is well established.
“Although a plea agreement occurs in a criminal context, it remains
contractual in nature and is to be analyzed under contract-law standards.”
Commonwealth v. Farabaugh, 136 A.3d 995, 1001 (Pa. Super. 2016)
(citation omitted). “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.” Hainesworth, 82 A.3d at 447
(citation and internal quotation marks omitted). When the Commonwealth’s
promise or agreement provides consideration for the defendant’s acceptance
of the plea, the Commonwealth must fulfill that promise. See Martinez, 147
A.3d at 532.
16To the extent Appellants also challenge the application of Commonwealth v. Demora, 149 A.3d 330 (Pa. Super. 2016), this Court’s decision in Commonwealth v. McCullough, 174 A.3d 1094 (Pa. Super. 2017) (en banc), explicitly recognized Muniz overruled Demora. See id., at 1096. Thus, we need not address that argument here.
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Appellants challenge this Court’s holding in Partee. Appellants assert
that all parties to each plea agreement understood resentencing would be the
consequence for a probation violation. Appellants indicate the stipulated facts
show the Commonwealth withdrew charges requiring lengthier registration
terms. Appellants argue Partee unjustly expands the holding in Hainesworth
by releasing the Commonwealth from its agreement to collateral terms
unaffected by resentencing. They conclude we must overrule Partee.
In its Rule 1925(a) opinion, the trial court explained that it relied solely
on this Court’s decision in Partee when it denied Appellants’ petitions to
enforce their plea agreements based on their violations of the terms of
probation. Partee, in turn, is premised on an extension of the logic in
Hainesworth. Therefore, we must examine how the Muniz decision affects
these and related precedents.
In 2009, Hainesworth pled guilty to three counts of statutory sexual
assault, three counts of indecent assault, and one count of criminal use of a
communications facility. At the time he pled guilty, none of the above-listed
crimes carried a sexual offender registration requirement. Thus, Hainesworth
did not register as a sexual offender.
Thereafter, SORNA became effective in 2012. SORNA required sexual
offender registration for additional crimes, including those for which
Hainesworth remained on probation.
Hainesworth filed a motion seeking to preempt registration pursuant to
SORNA, and the trial court entered an order stating Hainesworth was not
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subject to reporting requirements, due to the contractual nature of his plea
bargain. On appeal, an en banc panel of this Court affirmed the trial court’s
order, holding that non-registration was an express term of Hainesworth’s
plea bargain. The panel reasoned that Hainesworth relinquished meaningful
rights in exchange for the Commonwealth’s proposed terms, and fundamental
fairness bound the Commonwealth to those terms.
In Partee, the appellant, in 2007, entered a no-contest plea to indecent
assault of a person under the age of thirteen, corruption of minors, and
endangering the welfare of children. At that time, Partee was subject to a ten-
year sexual offender reporting requirement for those crimes under Megan’s
Law II. In 2010, the court found Partee in violation of his probation, and
resentenced him.
SORNA became effective in 2012; SORNA increased the term for
Partee’s registration to twenty-five years. Partee sought enforcement of the
ten-year reporting term from his initial plea bargain, arguing that it was an
essential term of his plea bargain under the contract interpretation theory
from Hainesworth.
A three-judge panel of this Court agreed that Partee’s plea bargain was
structured to avoid a lifetime reporting requirement. Nevertheless, the panel
found that the reasoning used in Hainesworth was inapposite, as Partee had
violated the terms of his probation. Instead, the panel ruled that Partee could
not seek specific performance where he effectively rescinded the plea bargain
by violating his probation.
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Without mention of Partee, our Supreme Court, in 2016, adopted the
Hainesworth Court’s approach in Martinez. The Martinez Court agreed that
plea agreements are contractual in nature, and that convicted offenders are
entitled to specific performance of the registration terms in their plea
agreements. Consequently, the Court rejected retroactive imposition of
SORNA’s sexual offender registration requirements on parties who accept and
comply with a plea bargain.
Hainesworth, Partee, and Martinez preceded Muniz. In 2007, Muniz
was convicted of two counts of indecent assault of a person under thirteen
years of age. At that time, Muniz would have been required to register as a
sexual offender for ten years. However, Muniz absconded before sentencing,
and was not apprehended and sentenced until 2014. At sentencing, the court
ordered Muniz to comply with lifetime sexual offender registration
requirements under SORNA. This Court affirmed Muniz’s judgment of
sentence. Muniz sought allowance of appeal in our Supreme Court.
The Supreme Court granted allowance of appeal and examined the
factors weighing in favor of finding SORNA punitive. Ultimately, the Muniz
Court found the registration conditions of SORNA to be punitive. The Court
held that retroactive application of SORNA’s registration requirements
constituted a violation of both the United States and Pennsylvania’s
constitutional provisions against ex post facto laws. Consequently, the Court
deemed such retroactive applications unconstitutional and therefore invalid.
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Finally, following the Muniz decision, the Supreme Court issued a per
curiam order in Commonwealth v. Reed, 168 A.3d 132 (Pa. 2017). Reed
contested the increase of his registration time under his plea bargain. The
increase was due to retroactive application of SORNA requirements. A panel
of this Court, pre-Martinez and Muniz, determined that Reed was not entitled
to relief. This Court found that unlike the appellant in Hainesworth, Reed
entered his guilty plea knowing that he could later be required to register as
a sexual offender for life, depending on the finding of the Sexual Offender
Assessment Board. Thus, our Court held the registration term was not a
negotiated part of his plea bargain. The Supreme Court issued a per curiam
order reversing that decision, based squarely on Muniz.
We find the facts of this case nearly identical to those in Partee.
Appellants failed to comply with the sentencing requirements of their plea
bargains, but still attempt to enforce the terms of these agreements. However,
in Muniz, our Supreme Court held that the enhanced registration provisions
of SORNA constitute punishment, and may not be applied retroactively.
Therefore, the reclassifications of the Appellants after the effective date of
SORNA cannot stand.
To the extent the Commonwealth claims Appellants failed to
demonstrate their plea agreements precluded lifetime registration, Muniz
renders such a demonstration unnecessary. Following Muniz, SORNA’s sexual
offender requirements may not be imposed retroactively on any defendant,
regardless of whether the defendant accepted a plea bargain or was convicted
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at trial. Even offenders who, like Appellants, were sentenced before SORNA
became law, have since violated the terms of their probation, and have been
resentenced, are not subject to retroactive application of SORNA’s
requirements.
The Pennsylvania Legislature has endeavored to solve the issue of how
to treat these offenders by passing a law to replace the invalidated portions
of SORNA. See 2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (approved June
12, 2018) (“Act 29”), amending Title 42 (Judicial Procedure) of the
Pennsylvania Consolidated Statutes. Though Act 29 was enacted during the
pendency of this appeal, it became effective immediately. In relevant part, its
purpose is to eradicate the unlawful retroactive portions of SORNA proscribed
in Muniz17 and instead impose lower periods of registration for offenders who
committed applicable crimes between April 22, 1996, and December 20, 2012.
See 42 PA.C.S.A. § 9799.52. Rather than increasing Appellants’ registration
terms, the new law effectively places many of the listed crimes back in a ten-
year registration category. See 42 PA.C.S.A. § 9799.55.
Nevertheless, this Court rightly noted in Commonwealth v. Horning,
___ A.3d ___, 2018 WL 3372367 (Pa. Super., filed July 11, 2018), that SORNA
17 “It is hereby declared to be the intention of the General Assembly to . . . (4) Address the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz . . ., and the Pennsylvania Superior Court’s decision in Commonwealth v. Butler . . . .” 42 PA.C.S.A. § 9799.51.
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also enhanced registration conditions by adding requirements such as
frequent in-person reporting and the publication of an offender’s personal
information online. The Horning panel aptly identified these additional
obligations as noncompliant with Muniz.18 Problematically, though it reduces
the term of years for which these offenders must register, the new Act does
not address these additional, more stringent conditions required under SORNA
from those imposed under the earlier versions of Megan’s Law.
However, the issue of the possible retroactive application of the
legislature’s new amendments to Appellants is not before us. The only issue
raised by Appellants, and argued to the Court, was whether the reclassification
under the then-existing version of SORNA, as applied to each Appellant, was
lawful. Under Muniz, we hold that the more onerous registration requirements
under these reclassifications are barred. Unless and until the Pennsylvania
State Police attempt to again reclassify Appellants, this time under Act 29,
and this new reclassification is challenged, this issue is not before the Court.19
18 To the extent the Horning Court remanded that case for further proceedings, we note that Horning committed his crimes when Megan’s Law II was in effect, but was nevertheless informed he was subject to SORNA. As the Horning Court notes, Muniz’s invalidation of SORNA does not preclude Appellant from registration under Megan’s Law on remand, though Megan’s Law requirements were not initially imposed.
19 The Pennsylvania State Police has substantive obligations under SORNA, including the enforcement and maintenance of the sexual offender registry. “[The] PSP has enforcement authority with regard to the requirements of
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Consequently, we find Muniz abrogates Partee, and hold Appellants
are not subject to SORNA’s retroactive registration increases. Insofar as the
trial court’s order relies on Partee, we reverse. Appellants are instead subject
to the original periods of sexual offender registration and conditions imposed
at the time of their plea bargains, if applicable.20
Orders reversed. Jurisdiction relinquished.
President Judge Emeritus Bender, Judge Shogan, Judge Lazarus, Judge
Olson, and Judge Dubow join the opinion.
Judge Bowes files a dissenting opinion.
Judge Moulton and Judge Solano did not participate in the consideration
or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/5/18
SORNA . . . .” Konyk v. Pennsylvania State Police of Commonwealth of Pennsylvania, 183 A.3d 981, 987 (Pa. 2018). 20To the extent Appellants’ reporting requirements increased after their plea bargains under later versions of Megan’s Law, prior to the imposition of SORNA, that issue has not been raised or briefed, and is consequently not before us.
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