Com. v. Byrd, S. ( 2022 )

J-S03035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN BYRD :
:
Appellant : No. 596 WDA 2021
Appeal from the PCRA Order Entered April 19, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001276-2004
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: February 23, 2022
Steven Byrd (Byrd) appeals from the April 19, 2021 order of the Court
of Common Pleas of Erie County (PCRA court) denying his motion to enforce
plea agreement. Byrd sought to be relieved of his registration obligations
pursuant to Subchapter I of the Sex Offenders Registration and Notification
Act (SORNA II), 42 Pa.C.S. §§ 9799.51 et seq.1 We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Byrd filed his petition on August 28, 2019, pursuant to the Post-Conviction
Relief Act, 42 Pa. C.S. §§ 9541 et seq. In addition to seeking to enforce an
alleged ten-year registration period as part of his plea bargain, he argued that
retroactive registration requirements under Subchapter I of SORNA II were
unconstitutional. The PCRA court stayed proceedings pending our Supreme
Court’s decision in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020).
There, the Court ultimately rejected challenges to the retroactive application
of Subchapter I, holding that the statute was non-punitive. Because
Lacombe was dispositive of Byrd’s constitutional claims, the PCRA court
(Footnote Continued Next Page)
J-S03035-22
We glean the following facts from the certified record and trial court
opinion. In 2004, Byrd was charged with two counts of rape, two counts of
aggravated indecent assault of a person under the age of 16, incest,
endangering the welfare of children, indecent assault of a child, two counts of
indecent assault of a person under the age of 16, and corruption of minors.2
Prior to his preliminary hearing, Byrd negotiated a plea agreement with the
Commonwealth. He waived his preliminary hearing and agreed to plead guilty
to one count of aggravated indecent assault and one count of indecent assault
of a child when the case reached the trial court. The Commonwealth would
nolle prosse the remaining charges and take no position regarding whether
the sentences should run concurrently or consecutively. The parties agreed
that the charges would not merge.
Byrd subsequently entered his plea and the trial court sentenced him to
an aggregate term of 3.5 to 8 years of incarceration. He did not file a direct
appeal.3 He was released from prison in April 2009 and commenced reporting
to the Pennsylvania State Police (PSP). He completed parole without incident
____________________________________________
dismissed those portions of the petition and proceeded to consider only the
motion to enforce the plea agreement.
218 Pa.C.S. §§ 3121(a)(1), 3125(a)(8), 4302, 4304, 3126(a)(7), 3126(a)(8)
& 6301(a)(1).
3 When Byrd attempted to order the transcripts of the proceedings to prepare
the instant petition, he was told the files were destroyed after seven years in
accordance with the policy of the court reporters’ office.
-2-
J-S03035-22
and continued to register until April 2019 when the PSP informed him that he
was required to register for his lifetime. Byrd then filed the instant petition
seeking to enforce his plea agreement.
The PCRA court held an evidentiary hearing and Byrd testified that he
had negotiated a ten-year registration requirement as an element of his plea.
He said that he told his attorney that he would not enter any plea that would
require lifetime registration. He said that the sentencing judge told him on
the record that he would be required to register for ten years.
The trial court record contained the written plea agreement, Byrd’s
signed guilty plea colloquy and a signed notice of registration requirements
under Megan’s Law II which was docketed on the day of sentencing. The
notice of registration requirements read:
By virtue of your guilty plea for Indecent Assault and Aggravated
Indecent Assault, you are subject to the provisions of Title 42 Pa.
C.S.A. 9791 et. seq., entitled “Registration of Sexual Offenders”
for a period of 10 years or Your Lifetime (please circle one)
following your release from incarceration.
Notice to Defendant of Duty to Register, 2/7/05 (emphasis in original). The
notice was signed by Byrd, trial counsel, the prosecutor and the sentencing
judge. The form had the caption for Byrd’s case, but no required period of
registration had been circled. In addition, the plea agreement form and
written guilty plea colloquy do not include any terms related to registration.
The Commonwealth called Byrd’s trial counsel as a witness but he could
not recall any discussions regarding registration in the plea. Trial counsel had
-3-
J-S03035-22
reviewed his file and found a copy of the notice of registration requirements
which had the above-quoted language with “10 years” circled. The form was
unsigned and undated, did not include a case caption and was stamped as
“defendant’s copy” at the bottom. Counsel did not recall who had circled “10
years” or whether he had discussed that with Byrd.
The PCRA court ultimately denied the motion, finding that Byrd had not
proven that the ten-year registration requirement had been specifically
negotiated as an element of his plea. It found Byrd’s testimony to be
incredible and self-serving in light of the documentary evidence and the
registration statutes in effect at the time of the plea. Byrd timely appealed
and he and the PCRA court have complied with Pa. R.A.P. 1925.
On appeal, Byrd contends that the trial court erred in denying his motion
to enforce the plea agreement.4 He argues that the ten-year registration
period was a critical aspect of his plea, and he would not have entered a plea
to any charge that would result in lifetime registration. He maintains that the
sentencing judge told him on the record that he was required to register for
ten years. He argues that the Commonwealth did not offer testimony refuting
his own, as trial counsel could not recall any details of the plea and no
____________________________________________
4 “Contract interpretation is a question of law, so ‘[o]ur standard of review
over questions of law is de novo and to the extent necessary, the scope of our
review is plenary.’” Commonwealth v. Kerns, 220 A.3d 607, 612 (Pa.
Super. 2019) (quoting Gillard v. Martin, 13 A.3d 482, 487 (Pa. Super.
2010)).
-4-
J-S03035-22
transcripts were available for review. Trial counsel provided an unsigned
notice of registration requirements with “10 years” circled, which he had in his
file for Byrd’s case. Finally, he points out that the notice of registration
requirements docketed in the case does not reflect which registration period
applied to his crimes, and he argues that this ambiguity must be construed
against the Commonwealth.
Plea agreements are contractual in nature and courts employ contract
law principles to interpret the terms of the agreement and ascertain the intent
of the parties. Commonwealth v. Martinez, 147 A.3d 517, 531 (Pa. 2016).
After a plea is entered and accepted by the trial court, the Commonwealth and
the defendant are bound by its terms, and the defendant may seek specific
performance to enforce the agreement if the terms are not carried out. Id.
at 532. In Martinez, our Supreme Court held that the defendants who pled
guilty prior to SORNA’s enactment were entitled to specific performance in the
form of non-registration or shorter periods of registration when the
Commonwealth conceded that the defendants’ pleas had been structured to
avoid or reduce registration requirements. Id. at 533. Despite an intervening
change in the law, the defendants could enforce the terms of their original
agreements to avoid SORNA’s registration requirements.
In Commonwealth v. Kerns, 220 A.3d 607 (Pa. Super. 2019), this
Court applied these principles to examine whether the defendant should be
relieved of his registration obligations when registration was not specifically
-5-
J-S03035-22
mentioned in his plea agreement. There, the defendant argued that when he
entered his plea, he believed that he would not be subject to any registration
requirements. However, there were no terms related to registration placed
on the record at his plea hearing and at his sentencing hearing the court
informed him that he would be required to register for life.
This Court rejected the argument that non-registration was a term of
the plea bargain: “When sex-offender registration statutes are in force and
applicable to the offense(s) at issue, sex-offender registration is an implied
term of the plea bargain; and this Court will not consider sex-offender
registration as a breach of a plea agreement unless non-registration was made
part of the plea deal.” Id. at 613. Thus, for a defendant to obtain specific
performance in these circumstances, non-registration must be an “express
provision” of the plea agreement. Id. at 616. The defendant’s understanding
of his plea did not control over the express terms placed on the record.
Kerns is dispositive here. When Byrd entered his plea on November 2,
2004, the crime of aggravated indecent assault carried a lifetime period of
registration under the then-effective Megan’s Law II. See 42 Pa.C.S.
§ 9795.1(b)(2) (expired). Accordingly, lifetime registration was an implied
term of Byrd’s plea agreement unless the parties specifically bargained
otherwise. Kerns, supra. While the transcripts of the plea and sentencing
hearings in this case could not be prepared, the documentary evidence in the
-6-
J-S03035-22
record supports the trial court’s conclusion that a reduced ten-year period of
registration was not an express provision of Byrd’s plea.
First, the written plea agreement form does not include any terms
related to registration. It lists the original charges and outlines an agreement
for Byrd to waive his preliminary hearing and enter an open guilty plea to one
count of aggravated indecent assault and one count of indecent assault of a
child. The charges would not merge for sentencing purposes. The remaining
charges would be nolle prossed and the Commonwealth agreed to take no
position regarding whether the sentences should run concurrently or
consecutively. Sex offender registration obligations are not addressed in any
way on the form, indicating that while the parties bargained for several terms
related to the charges and sentencing, they did not specifically contemplate
ten-year registration as part of the bargain.
Similarly, Byrd’s guilty plea colloquy contains the following language:
I understand that any plea bargain in my case is set forth here
and that there has been no other bargain and no other promise or
threat of any kind to induce me to plead guilty/no contest. The
only plea bargain in my case is defendant will plead guilty to
Counts #3 and #7 and, in exchange, the Commonwealth
will nolle prosse all remaining counts, with costs on the
defendant.
See Defendant’s Statement of Understanding of Rights Prior to Guilty/No
Contest Plea (emphasis in original). The colloquy was signed by Byrd, trial
counsel, the prosecutor and the sentencing judge. Again, reduced registration
requirements were not included in the agreement.
-7-
J-S03035-22
Finally, the notice of registration requirements that Byrd received and
signed at the sentencing hearing informed him that based on his guilty plea
to aggravated indecent assault and indecent assault, he was “subject to the
provisions of Title 42 Pa. C.S.A. 9791 et. seq., entitled ‘Registration of Sexual
Offenders.’” See Notice to Defendant of Duty to Register, 2/7/05. This form
was signed by Byrd, trial counsel, the prosecutor and the sentencing judge.
Although no one had circled the applicable registration period on the form, the
relevant provision of the cited statute stated that convictions for aggravated
indecent assault result in lifetime registration. Thus, not only was this
provision an implied term of the plea in absence of a contradictory agreement,
see Kerns, supra, but the lifetime registration period was specifically
incorporated in the sentencing record. Together, these three documents
strongly support the trial court’s conclusion that a reduced period of
registration was not an express provision of Byrd’s plea agreement.
Byrd relies on his testimony at the evidentiary hearing and the
document located in trial counsel’s file in support of his contention that he had
bargained for a ten-year period of registration. Byrd testified that he agreed
to a ten-year period of registration, would not have pled guilty to any charge
that required lifetime registration, and was told at sentencing that he would
have to register for ten years. However, the trial court found this testimony
to be incredible given the severity of the charges that the Commonwealth
withdrew in exchange for his plea. It concluded that while Byrd may have
-8-
J-S03035-22
believed that his plea did not carry lifetime registration, it did not follow that
this was an express term of the agreement. See Trial Court Opinion, 4/19/21,
at 9-10.
Moreover, trial counsel testified that he did not recall anything about the
plea bargain in the case but had found a notice of registration requirements
in Byrd’s file. Trial counsel’s copy of the notice had “10 years” circled, but the
form was unsigned, undated and did not have the caption for Byrd’s case.
“Defendant’s copy” was stamped on the bottom. This form may substantiate
Byrd’s testimony that he believed he would be required to register for ten
years, but it cannot overcome the copy of the notice he signed at the time of
sentencing. As discussed supra, while the docketed form does not have a
period of registration circled, it refers to the statute in effect at the time which
imposed lifetime registration for the crime of aggravated indecent assault.
That form was signed by all parties and is, thus, more credible evidence of the
agreement they had negotiated. Accordingly, the totality of the circumstances
supports the trial court’s conclusion that a reduced period of registration was
not an “express provision” of Byrd’s plea. Kerns, supra, at 616.
Order affirmed.
-9-
J-S03035-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2022
- 10 -