Com. v. Hart, J. ( 2017 )

J-A21034-17
2017 PA Super 355COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JAMES HART
Appellant No. 1087 WDA 2016
Appeal from the Judgment of Sentence Entered June 1, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0010022-2015
BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.
OPINION BY STABILE, J.: FILED NOVEMBER 13, 2017
Appellant James Hart appeals from the June 1, 2016 judgment of
sentence entered in the Court of Common Pleas of Allegheny County (“trial
court”), following his plea of nolo contendere to one count of invasion of
privacy, 18 Pa.C.S.A. § 7507.1(a)(1). Upon review, we vacate and remand.
On June 8, 2015, the O’Hara Township Police Department filed a criminal
complaint against Appellant, charging him with one count of invasion of
privacy. In the affidavit accompanying the complaint, the police alleged that
in May 2015, Appellant resided with this wife, their son, and his nineteen-
year-old stepdaughter (the “victim”), in O’Hara Township, Allegheny County.
On May 26, 2015, at approximately 5:00 a.m., the victim took a shower and
entered her second floor bedroom wearing only a towel. She closed the
bedroom door and removed the towel. As she stood nude in her bedroom,
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she noticed a shadow out of the corner of her eye by the window. When she
approached the window, she observed Appellant climbing down a ladder that
was outside her bedroom window. The victim knocked on the window, but
Appellant continued to climb down the ladder and walk towards the front of
the house. The victim quickly dressed herself, ran to her mother’s bedroom,
and explained to her mother what had happened. Her mother immediately
confronted Appellant about the incident, to which Appellant replied, “I don’t
know what I was doing, I’m very sorry.” Appellant apologized several more
times, and offered to pay for anything the victim wanted, including an
apartment for the victim. Appellant’s wife, and the victim’s mother, told him
that their relationship was over, and made him leave the residence. The victim
proceeded to her nursing school classes for the day, and at approximately
8:45 p.m., went to the O’Hara Township Police station to file a report against
Appellant.
On June 1, 2016, after the jury had been picked, Appellant pleaded nolo
contendere to invasion of privacy. The trial court then colloquied Appellant on
his decision to plead nolo contendere.1 Among other things, Appellant agreed
with the allegations against him contained in the affidavit of probable cause
accompanying the criminal complaint. See N.T. Plea Hearing, 6/1/16, at 11.
On the same day, the trial court sentenced Appellant to one year of probation.
Id. at 15.
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1 Appellant also completed a written plea colloquy on June 1, 2016.
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On June 9, 2016, Appellant, still represented by plea counsel, filed a
post-sentence motion to withdraw his plea, averring that:
3. That on June 2, 2016, undersigned counsel received notification
from Assistant District Attorney Edward H. Scheid that the
probation office had advised him hat [sic] the aforementioned
disposition required that [Appellant] register as [a] sexual
offender pursuant to 42 Pa.C.S.A. 9799.13.[2] Notable,
[Appellant] was never advised of the Sexual Offender Registration
Notification Act (SORNA) requirements at the time of his plea and
sentence.
4. At issue is the aforementioned resolution of [Appellant’s] case
was reached without [Appellant], undersigned counsel, or the
Commonwealth appreciating the consequences of his plea and
therefore was not made voluntarily with full comprehension of the
effect of his plea. Specifically, [Appellant] was never advised at
the time of his plea and sentence of the mandatory registration
requirements under [SORNA].
Appellant’s Motion to Withdraw, 6/9/16, at ¶¶ 3-4. Based on these
averments, Appellant requested that the trial court grant his request to
withdraw his plea of nolo contendere.
In response, the Commonwealth argued that Appellant’s plea should not
be set aside because it was voluntary and knowing, even though Appellant
was not informed of the registration requirements under SORNA at the time
of his plea and sentencing. To buttress its position, the Commonwealth relied
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2 The offense of invasion of privacy, when it is a first violation, is graded as a
misdemeanor of the third degree with a maximum term of one year in prison.
See 18 Pa.C.S.A. §§ 7507.1(b) and 1104. Additionally, under the Sexual
Offender Registration Notification Act (“SORNA”), invasion of privacy offenses
are categorized as “Tier I sexual offenses.” 18 Pa.C.S.A. § 9799.14(b).
SORNA provides that individuals “convicted of a Tier I sexual offense . . . shall
register for a period of [fifteen] years.” 18 Pa.C.S.A. § 9799.15(a)(1). Having
pleaded nolo contendere to invasion of privacy, Appellant must register as a
sex offender for fifteen years.
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on Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008) and
Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003)3 to argue that
“registration requirements constitute a collateral punishment, not a criminal
punishment.” Commonwealth’s Response to Motion to Withdraw, 6/15/16, at
¶ 4. The Commonwealth also argued that Appellant’s plea was voluntary and
knowing because he “was made fully aware of his criminal punishment
responsibilities with probation.” Id. at ¶ 5. The Commonwealth pointed out
that if Appellant’s withdrawal motion were granted, it would be prejudiced
because “the victim in this case was already reluctant to appear in court.” Id.
at ¶ 6. On June 23, 2016, the trial court denied Appellant’s motion to
withdraw.
Appellant eventually retained the services of private counsel, who filed
a praecipe for appearance on behalf of Appellant on July 19, 2016. On the
same date, Appellant filed a motion to reconsider the denial of his post-
sentence motion to withdraw the plea of nolo contendere. In support,
Appellant argued that he “was not apprised of the SORNA aspect of the
potential sentence as a result of a fundamental breakdown in the customary
processes and practices used in SORNA cases by the [trial court].” Motion to
Reconsider, 7/19/16, at ¶ 4. Appellant argued:
6. Second, the case was not identified and “tracked” as Sex
Offender Court (“SOC”) case. A SOC case includes on the Notice
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3 In Williams, our Supreme Court held that registration, notification and
counseling requirements of Megan’s Law II were non-punitive for purposes of
due process. Williams, 832 A.2d at 986.
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of Formal Arraignment provided to a defendant by the Issuing
Authority the following legend: “Comments: Sex Offender Case.”
Exhibit “A”. Also, the Allegheny County Court of Common Pleas
abbreviates the procedures associated with cases involving
allegations of sex offenses by combining the Formal Arraignment
and Pre-Trial Conference into a single proceeding in the context
of specialized court known as SOC. Exhibit “B”. This case was
not, however, identified by the Issuing Authority as a SOC case or
scheduled for a combined Formal Arraignment and Pre-Trial
Conference; instead, it proceeded in the customary fashion: a
Formal Arraignment on September 29, 2015; and, a Pre-Trial
Conference, several weeks later, on October 23, 2015. Exhibits
“C” and “D.”
7. Third, it is the settled practice in the Allegheny County Court of
Common Pleas to apprise [Appellant] on the record and in writing
of his obligation to register pursuant to SORNA. Exhibit “E”
[SORNA Colloquy]. In this case, however, [Appellant] was neither
apprised on the record nor in writing that he had such an
obligation.
8. In sum, all of the mechanisms that are in place to ensure that
a defendant is apprised of the full panoply of consequences
attendant to a plea of guilty or nolo contendere in an SOC case
failed: (a) he did not receive actual notice from his attorney; (b)
he did not receive constructive notice from the District Attorney
and Administrative Office of the Court of Common Pleas by
“tracking” this case as an SOC case; and, (c) he did not receive
either actual or constructive notice from the District Attorney or
the presiding Judge on the record or in-writing at the time of his
plea that he would be required to register pursuant to SORNA.
Id. at ¶¶ 6-8.
On July 25, 2016, Appellant timely appealed his judgment of sentence,
which was rendered final and appealable by the denial of his post-sentence
motion to withdraw his plea of nolo contendere. On July 27, 2016, the
Commonwealth filed a response to Appellant’s reconsideration motion,
challenging, inter alia, as misguided Appellant’s contention that the
Commonwealth did not adhere to its customary practices and procedures in
this case. Specifically, the Commonwealth pointed out that “[t]he offense
charged in this case, invasion of privacy (Misdemeanor 3), is not a charge
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enumerated on the Sex Offender Court (SOC) list. Exhibit “A”. Misdemeanor
offenses typically are not identified and tracked as SOC cases . . . to facilitate
the efficiency of SOC docket.” Commonwealth’s Response to Motion for
Reconsideration, 7/27/16, at ¶ 8. On July 27, 2016, the trial court denied
Appellant’s reconsideration motion.4
On August 12, 2016, Appellant filed a praecipe waiving his right to Post
Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46, review in
exchange for an opportunity to raise an ineffective assistance of counsel claim
on direct appeal. On August 19, 2016, the trial court directed Appellant to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant
complied, challenging his plea of nolo contendere and raising a claim for
ineffectiveness assistance of plea counsel. In response, on January 17, 2017,
the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s
claims are without merit. In so concluding, and relying on Leidig, the trial
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4 We note that the trial court’s denial of Appellant’s reconsideration motion is
a legal nullity because it was without jurisdiction to deny the motion as
Appellant already had filed an appeal in this court. See 42 Pa.C.S.A. § 5505
(“Except as otherwise provided or prescribed by law, a court upon notice to
the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.”). Moreover, even if Appellant had not
appealed to this Court, the trial court still would have been without jurisdiction
to dispose of the reconsideration motion because it did so more than 30 days
after it denied his post-sentence motion to withdraw the plea of nolo
contendere.
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court emphasized that SORNA does not constitute punishment. See Trial
Court Opinion, 1/17/17, at 6, 8, and 11.
On appeal, Appellant raises two issues for our review:
[I.] Did the trial court err when it refused to permit Appellant to
withdraw his plea of nolo contendere where the plea was not
knowing, voluntary, and intelligent because Appellant was not
advised that his plea would require him to register as a sex
offender under SORNA?
[II.] Did the trial court err when it concluded that Appellant’s plea
counsel was not ineffective where he failed to advise Appellant
that his plea would require him to register under SORNA?
Appellant’s Brief at 6.5
We first address Appellant’s argument that the trial court abused its
discretion in denying his post-sentence motion to withdraw his plea of nolo
contendere.
It is well-settled that the decision whether to permit a defendant to
withdraw a guilty plea is within the sound discretion of the trial court.6
Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super. 2013)
(quotation omitted); see Commonwealth v. Broaden, 980 A.2d 124, 128
(Pa. Super. 2009) (noting that we review a trial court’s order denying a motion
to withdraw a guilty plea for an abuse of discretion), appeal denied, 992
A.2d 885 (Pa. 2010). Although no absolute right to withdraw a guilty plea
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5 Based on the outcome in this case, we need not address Appellant’s second
issue.
6 We note that “in terms of its effect upon a case, a plea of nolo contendere is
treated the same as a guilty plea.” Commonwealth v. Miller, 748 A.2d 733,
735 (Pa. Super. 2000).
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exists in Pennsylvania, the standard applied differs depending on whether the
defendant seeks to withdraw the plea before or after sentencing. When a
defendant seeks to withdraw a plea after sentencing, he “must demonstrate
prejudice on the order of manifest injustice.” Commonwealth v. Yeomans,
24 A.3d 1044, 1046 (Pa. Super. 2011). In Commonwealth v. Prendes, 97
A.3d 337, 352 (Pa. Super. 2014), impliedly overruled on other grounds
by Commonwealth v. Hvizda, 116 A.3d 1103, 1106 (Pa. 2015), we
explained that a defendant may withdraw his guilty plea after sentencing “only
where necessary to correct manifest injustice.” Prendes, 97 A.3d at 352(citation omitted). Thus, “post-sentence motions for withdrawal are subject
to higher scrutiny since the courts strive to discourage the entry of guilty pleas
as sentence-testing devices.” Commonwealth v. Flick, 802 A.2d 620, 623
(Pa. Super. 2002).
“Manifest injustice occurs when the plea is not tendered knowingly,
intelligently, voluntarily, and understandingly.” Commonwealth v. Kpou,
153 A.3d 1020, 1023 (Pa. Super. 2016) (citation omitted). In determining
whether a plea is valid, the court must examine the totality of circumstances
surrounding the plea. Id. “Pennsylvania law presumes a defendant who
entered a guilty plea was aware of what he was doing, and the defendant
bears the burden of proving otherwise.” Id. In Commonwealth v. Frometa,
555 A.2d 92, 93 (Pa. 1989), abrogated in part by, Padilla v. Kentucky,
559 U.S. 356 (2010), as in prior cases, our Supreme Court held that when a
defendant is not made aware of a given consequence of his or her guilty plea,
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relief must be based upon a determination of whether the consequence at
issue was a “direct” or “collateral” consequence of the plea, with only the
former warranting a remedy. See Frometa, 555 A.2d at 93 (noting that
“defense counsel need only advise a criminal defendant of the direct
consequences of pleading guilty.”) (citation omitted). The distinction between
a direct and collateral consequence of a plea is best described as “the
distinction between a criminal penalty and a civil requirement over which a
sentencing judge has no control.” Leidig, 956 A.2d at 404.
With the foregoing standard in mind, we now address Appellant’s
argument that his plea of nolo contendere was not knowing, voluntary and
intelligent because the trial court, his trial counsel, and the Commonwealth
failed to inform him of the SORNA consequences arising from his plea.
Specifically, Appellant argues that he was unaware at the time of his plea and
sentencing that the offense of invasion of privacy carried a fifteen-year
registration requirement under SORNA. As a result, Appellant claims that he
did not tender his plea in a knowing, voluntary, and intelligent fashion.
Accordingly, he claims that he suffered manifest injustice and that,
consequently, the trial court abused its discretion in denying his post-sentence
motion to withdraw the plea. Id. at 12.
Relying on Leidig, the Commonwealth counters that Appellant is not
entitled to relief because SORNA’s registration requirement is merely a
collateral consequence (or a civil requirement) of a criminal conviction.
Commonwealth’s Brief at 9.
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In Leidig, our Supreme Court considered the issue of
whether the mandatory registration requirements under Megan’s
Law II[7] should be considered a direct consequence of a guilty
plea or a plea of nolo contendere, such that the failure of a trial
court to accurately advise a defendant of the duration of the
Megan’s Law registration period constitutes grounds for
withdrawal of the plea.
Leidig, 956 A.2d at 403. The appellant, Todd Leidig, entered an open nolo
contendere plea to aggravated indecent assault on September 18, 2002,
based upon the June 8, 2000 sexual assault of his thirteen-year-old
stepdaughter. Id. at 400. At the plea hearing, the appellant was not apprised
of the registration requirements of Megan’s Law. Rather, the trial court
informed the appellant that, prior to sentencing, “he would need to be
assessed by the Sexual Offender’s Assessment Board in order to determine
whether he was a sexually violent predator.” Id. at 401. At sentencing,
however, the appellant was advised that he would need to register as a sexual
offender for a period of ten years following his release from prison. The ten-
year registration requirement under Megan’s Law was in effect at time of his
offense. Later on the day of sentencing, the parties noted that the appellant
would be subject to lifetime registration under Megan’s Law II, which went
into effect on July 9, 2000, after the appellant’s commission of aggravated
indecent assault. The trial court and the attorneys “agreed that because [the
a]ppellant’s crime had been committed while Megan’s Law I was in effect, [the
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7Act of May 10, 2000, P.L. 74, No. 18 (formerly codified at 42 Pa.C.S.A.
§§ 9791-99.9). Megan’s Law expired on December 20, 2012, and eventually
was replaced by SORNA. See 42 Pa.C.S.A. § 9799.41.
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a]ppellant was subject to its ten-year registration requirement, not the
lifetime registration requirement under Megan’s Law II.” Id. at 401-2.
Nonetheless, following the imposition of sentence, the county probation
and parole department confirmed to the appellant that we would be subject
to the lifetime registration requirement of Megan’s Law II. Consequently, the
appellant filed a motion to withdraw his nolo contendere plea, contending that
it was not knowing, intelligent, and voluntary. The trial court denied the
motion, but opined that the appellant should only be subject to the ten-year
reporting requirement.
On appeal, we concluded that the appellant was not entitled to withdraw
his plea and that he had to register for life. Our Supreme Court affirmed. In
so doing, the Court reasoned that, because Megan’s Law registration
requirements are a civil collateral consequence of a plea, the sentencing
court’s interpretation of the duration of the appellant’s registration period did
not result in an involuntary and unknowing plea. Id. at 406. In other words,
sexual offender registration requirements were collateral consequences to a
defendant’s nolo contendere plea and the defendant’s lack of knowledge of
those consequences did not weaken the validity of the plea. Id. (“To the
extent that there was any confusion following those decisions that the
registration requirements of Megan’s Law are collateral and not direct
consequences of a plea or other conviction, we settle the issue here: such
requirements are collateral consequences and, as such, a defendant’s lack of
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knowledge of these collateral consequences to his or her pleading guilty or
nolo contendere fails to undermine the validity of the plea.”).
We, however, find Leidig distinguishable from the instant case for one
important reason. SONRA now has been determined to be punitive in effect
despite its expressed civil remedial purpose. During the pendency of this
appeal, our Supreme Court issued its decision in Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017), announcing that SORNA registration requirements
are tantamount to punishment.
There, the appellant was convicted of two counts of indecent assault on
February 7, 2007. The appellant failed to appear for his May 8, 2007
sentencing hearing, absconding until he was arrested in Rhode Island in
September 2014. At the time of his 2007 sentence, “he would have been
ordered to register as a sex offender with the Pennsylvania State Police for a
period of ten years pursuant to then-effective Megan’s Law III.”8 Muniz, 164
A.3d at 1193.
At his 2014 sentencing, the appellant was subject to SORNA’s lifetime
registration provisions, which had replaced Megan’s Law III during the time
he absconded. The appellant filed a post-sentence motion seeking the
application of Megan’s Law III’s ten-year registration requirement. The trial
court denied his motion. The appellant appealed to this Court, challenging the
application of SORNA on the basis of the ex post facto clauses of the United
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8 Megan’s Law III replaced earlier versions of Megan’s Law.
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States and Pennsylvania Constitutions. We affirmed his judgment of
sentence.
Our Supreme Court on appeal reversed our decision and vacated the
portion of the appellant’s sentence that required his compliance with SORNA.
Five of the six participating justices concluded that, despite the General
Assembly’s characterization of SORNA’s registration provisions as
nonpunitive, the provisions constitute punishment. They further concluded
that a retroactive application of SORNA’s registration provisions violates the
ex post facto clause of the Pennsylvania Constitution.9 See id. at 1223, 1239
(Wecht, J. concurring). The Court observed that the appellant’s seven-year
absence from the Commonwealth did not affect its decision, because had the
appellant been sentenced in 2007 and subject to registration under Megan’s
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9 The Supreme Court’s plurality Opinion Announcing the Judgment of the Court
(“OAJC”) has no precedential value. However, “where a concurring opinion
enumerates the portions of the plurality’s opinion in which the author joins or
disagrees, those portions of agreement gain precedential value.”
Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super. 2011) (citation
omitted). In Muniz, the OAJC found that SORNA’s registration provisions are
punitive and thus violated the ex post facto clauses under the federal and
Pennsylvania Constitutions. In so holding, the OAJC concluded that the
Pennsylvania Constitution’s ex post facto clause provides greater protection
than its federal counterpart. Justice Wecht’s concurring opinion, joined by
Justice Todd, found only that SORNA violates the Pennsylvania Constitution
and declined to entertain the federal ex post facto question. Disagreeing with
the OAJC, Justice Wecht also determined that the ex post facto clauses of the
federal and Pennsylvania Constitutions are coterminous. Nonetheless, the
binding precedent emerging from Muniz is confined to the determination that
SORNA’s registration requirement is punishment that runs afoul of the ex post
facto clause of the Pennsylvania Constitution when applied retroactively.
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Law III, his ten-year registration period, under Section 9799.13 of SORNA,
would have converted to a lifetime registration when SORNA became effective.
Id. at 1193 n.3.
In light of our Supreme Court’s announcement in Muniz, we are
constrained to hold that SORNA’s registration requirements are no longer
merely a collateral consequence, but rather punishment. As such, the
Commonwealth no longer can rely upon Leidig as dispositive in this case.10
As stated, to be valid, a plea must be voluntary, knowing, and
intelligent. Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa. 1992).
To ensure these requirements are met, Rule 590 of the Pennsylvania Rules of
Criminal Procedure requires that a trial court conduct a separate inquiry of the
defendant before accepting a guilty plea. It first requires that a guilty plea be
offered in open court. The rule then provides a procedure to determine
whether the plea is voluntarily, knowingly, and intelligently entered. As the
Comment to Rule 590 provides, at a minimum, the trial court should ask
questions to elicit the following information:
(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to
trial by jury?
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10Although Leidig is not specifically mentioned by the Muniz Court, it appears
that the Muniz decision impliedly overrules Leidig to the extent that Leidig
determined sex offender registration requirements to be a collateral
consequence.
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(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range or
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
Pa.R.Crim.P. 590, Comment (Emphasis added).11 In Yeomans, this Court
explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences.
This determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Yeomans, 24 A.3d at 1047 (Pa. Super. 2011) (citing Commonwealth v.
Fluharty, 632 A.2d 312, 314-15 (Pa. Super. 1993)).
Applying this standard, we conclude that, because the trial court here
failed to inform Appellant of SORNA’s registration requirements at the time of
his plea and sentencing, it abused its discretion in denying his post-sentence
motion to withdraw his plea of nolo contendere. Based upon our review of the
record, specifically the plea and sentencing transcript, and as conceded by the
Commonwealth and the trial court, Appellant was unaware of any SORNA
consequences of his plea of nolo contendere. See Trial Court Opinion,
1/17/17, at 5 (“At that time the collateral consequences of his plea, including
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11The Comment also includes a seventh question, which is applicable only
when a defendant pleads guilty to murder generally.
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registration under [SORNA], were not discussed.”). Moreover, as Appellant’s
plea counsel noted in the post-sentence motion to withdraw the plea of nolo
contendere, Appellant was never apprised of the SORNA consequences of his
plea until after sentencing, when on June 2, 2016, the Commonwealth notified
plea counsel to inform him that Appellant’s plea of nolo contendere to invasion
of privacy carried a fifteen-year registration requirement. See Appellant’s
Motion to Withdraw, 6/9/16, at ¶¶ 3-4.
Additionally, our review of the plea and sentencing transcript indicates
that, although Appellant executed a written and an on-the-record plea
colloquy, he was never colloquied on SORNA, as required by 42 Pa.C.S.A. §
9799.23, which directs a trial court to inform a defendant of SORNA’s
mandatory registration requirements at the time of sentencing. Section
9799.23 of SORNA provides in relevant part that the trial court, at the time of
sentencing, must classify the sexual offender as a Tier I, II, or III offender, or
sexually violent predator; must specifically inform a sexual offender of his or
her duties to register initially, upon change of address, and upon
commencement of employment or enrollment as a student; and to attend
counseling, to provide fingerprints, DNA, and a photograph to Pennsylvania
State Police. Interestingly, Allegheny County’s written SORNA colloquy largely
mirrors the requirements of Section 9799.23 of SORNA.12
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12 Allegheny County’s written SORNA colloquy reads as follows:
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1. Do you understand that, as a result of your plea today, you will
be required to register with the Pennsylvania State Police as a “sexual
offender”? __ Yes __ No
2. Do you understand that, as a result of your plea today, you will
be required to register your name, all current or intended residences,
all information concerning current or intended employment and all
information concerning current or intended enrollment as a student with
the Pennsylvania State Police as a “sexual offender”? __ Yes __ No
3. Do you understand the charges to which you are pleading
guilty/nolo contendere require you to register as a “sexual offender” for
a period of: (Assistant District Attorney to check appropriate line)
__ 15 years (Tier I) __ Yes __No
__ 25 years (Tier II) __ Yes __No
__ Life (Tier III) __ Yes __No
Do you understand that you must register your address with the
Pennsylvania State Police immediately upon release from
incarceration, upon your parole from any institution to which
you have been sentenced, or upon the start of a sentence of
intermediate punishment or probation? __ Yes __ No
4. Do you understand that if you are sentenced to a period of
probation and/or intermediate punishment as a result of your plea today
you must immediately register in person with the Pennsylvania State
Police? __Yes __ No
5. Do you understand that you must notify the Pennsylvania State
Police, within 48 hours, of any change in the following:
a. Any change in residence, or establishment of an additional
residence(s);
b. Any change of employer, employment location, or
termination of employment;
c. Any change of institution or location at which you are
enrolled as a student, or termination of enrollment;
d. Becoming enrolled in school, or employed, if you have yet
to provide this information to the Pennsylvania State Police?
__ Yes __ No
6. Do you understand that moving to a residence outside of the
Commonwealth of Pennsylvania in no way negates any of the
requirements to which you are subject under SORNA and, in fact, that
you will be required to report your arrival to the authorities in the new
state to which you relocate? __ Yes __ No
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Given the uncontroverted evidence of record, we conclude that
Appellant was not apprised of SORNA consequences at the time of his plea
and sentencing. We also conclude that the trial court did not colloquy
Appellant on the SORNA consequences, especially its registration
requirements, at the time of his plea and sentencing, and as a result, the trial
court failed to comply with the mandate of Section 9799.23 of SORNA.
Accordingly, we conclude that, because Appellant was unaware of SORNA
registration requirements attendant to his plea of nolo contendere at the time
of his plea and sentencing, it cannot be said that he had a full understanding
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7. Do you understand that you have right to be sentenced within 90
days? __ Yes __No
8. Do you understand that SORNA dictates, as a result of your plea
today, that you must be evaluated to determine whether you are a
“sexually violent predator”? __Yes __ No
9. Do you understand that your evaluation to determine whether you
are a “sexually violent predator” must be completed within 90 days, and
that SORNA statue states that the evaluation must be completed prior
to sentencing? __Yes __ No
10. Are you willing to waive the requirements that your evaluation be
completed prior to sentencing, and be sentenced today? (See
Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011))
__ Yes __ No
11. If the evaluation results in a recommendation that you be labeled
a “sexually violent predator”, a separate hearing will be conducted at
which time a Judge will hear testimony and weigh evidence presented
by the Commonwealth and possibly your attorney to reach the final
determination as to whether you will be labeled a “sexually violent
predator”. Do you understand this? __ Yes __ No
12. Do you understand if you are labeled a “sexually violent predator”
that you will have a lifetime registration requirement? __ Yes __ No
13. Have you answered all the above questions with the assistance of
your attorney, and of your own free will? __ Yes __ No
Appellant’s Reconsideration Motion, 7/19/16, at Exhibit “E” (SORNA Colloquy)
(emphasis in original).
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J-A21034-17
of the nature and consequences of his plea. See Yeomans, supra. Thus,
we hold that his plea was invalid and illegal because he did not tender it
knowingly, voluntarily and intelligently.
In sum, as set forth above, we conclude that Appellant’s plea of nolo
contendere was not tendered in a knowing, voluntary and intelligent fashion
because Appellant was unaware of any SORNA consequences—which now are
considered punitive in nature under Muniz—at the time of his plea and
sentencing. Specifically, neither his counsel, nor the Commonwealth, nor the
trial court informed Appellant of any potential SORNA consequences.
Accordingly, Appellant has established that he has suffered manifest injustice
sufficient to invalidate his plea of nolo contendere. See Frometa, supra.
Accordingly, we conclude that the trial court abused its discretion in denying
Appellant’s post-sentence motion to withdraw his plea of nolo contendere. We
vacate Appellant’s judgment of sentence and remand this matter to the trial
court for further proceedings.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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