Com. v. Hartman, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS L. HARTMAN,
Appellant No. 1355 MDA 2014
Appeal from the Order entered July 14, 2014,
in the Court of Common Pleas of Berks County,
Criminal Division, at No(s): CP-06-CR-0001765-2000
BEFORE: BOWES, DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 30, 2015
Dennis L. Hartman, (“Appellant”), appeals from the order denying his
petition to enforce plea agreement or for a writ of habeas corpus. We
affirm.
The trial court summarized the procedural history of this case as
follows:
On March 22, 2000, Appellant was charged by Criminal
Complaint with one count of Possession of Child
Pornography, in violation of 18 Pa.C.S.A. § 6312(d), a
Felony of the Third Degree, following an undercover Postal
Inspector sting operation. On June 29, 2000, Appellant pled
guilty to this crime and was sentenced to two years on county
probation. At the time, Appellant was represented by attorney
Lawrence J. Hracho. No direct appeal was taken. Attorney
Hracho passed away on December 3, 2011. Six years later, the
Pennsylvania State Police sent Appellant a notice, requiring him
to register under Megan’s Law III; he did not file any motions
challenging this requirement and began compliance on
November 8, 2006. His ten year registration period was then set
to expire in 2016. Pennsylvania’s Sex Offender Registration and
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Notification Act (SORNA) went into effect in December 2012.
Under SORNA, Appellant’s period of registration will be extended
to November 8, 2021. On May 5, 2014, Appellant filed a Petition
to Enforce Plea Agreement or for a Writ of Habeas Corpus. An
evidentiary hearing was set for June 13, 2014 and thereafter,
the parties were required to file briefs. On July 14, 2014, we
denied the request for relief from registration. On August 12,
2014, Appellant filed a Notice of Appeal to the Superior Court.
On that same date, we ordered Appellant to file a concise
statement of the errors complained of on appeal, which he filed
on August 27, 2014.
Trial Court Memorandum Opinion, 10/8/14, at 1-2 (bold in original).
Appellant raises the following issues:
1. Can an agreement between a defendant and the
Commonwealth to avoid sex offender registration be
inferred in the absence of any indication of an agreed upon
and affirmative step to do so?
2. Is Appellant entitled to specific performance of the
terms of his plea agreement?
3. Are all other considerations irrelevant to this inquiry?
Appellant’s Brief at 3. We address these issues together.
“[SORNA], commonly referred as the Adam Walsh Act, became
effective on December 20, 2012.” Commonwealth v. Partee, 86 A.3d
245, 247 (Pa. Super. 2014). “By its terms, any individual who was then
being supervised by the board of probation or parole was subject to its
provisions.” Id. Appellant’s conviction under 18 Pa.C.S.A. § 6312(d) was
designated as a Tier 1 sexual offense, subjecting a defendant to a fifteen-
year registration period. See 42 Pa.C.S.A. §§ 9799.14-9799.15.
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In Partee, we summarized our recent en banc decision in
Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) as
follows:
In [Hainesworth,] this Court specifically enforced a
negotiated plea agreement that did not require the
defendant to report as a sex offender under Megan’s Law,
despite subsequent amendments to the statute that would
have subjected him to reporting requirements.
Hainesworth entered a negotiated plea to three counts
each of statutory sexual assault and indecent assault, and
once count each of indecent assault and criminal use of a
communication facility in February 2009. None of these
convictions required registration under Megan’s Law, 42
Pa.C.S. § 9791. Other charges that would have imposed a
registration requirement were withdrawn by the
Commonwealth pursuant to the plea negotiations.
Hainesworth filed a motion seeking to terminate
supervision effective one week prior to the effective date of
SORNA. The trial court denied the petition to terminate
supervision, but held that application of SORNA’s
registration requirements to Hainesworth violated due
process.
On appeal, this Court, sitting en banc, concluded first
that Hainesworth correctly framed the issue as one of
contract law, and applied the standard of review applicable
to whether a plea agreement has been breached: “what
the parties to this plea agreement reasonably understood
to be the terms of the agreement.” Hainesworth, supra
(quoting Commonwealth v. Fruehan, 384 Pa. Super.
156, 557 A.2d 1093, 1095 (1989)). We look to the
“totality of the surrounding circumstances” and “[a]ny
ambiguities in the terms of the plea agreement are
construed against the [Commonwealth].”
Commonwealth v. Kroh, 440 Pa. Super. 1, 654 A.2d
1168, 1172 (1995). The dispositive question was “whether
registration was a term of the bargain struck by the
parties.” [Hainesworth, 82 A.3d] at 448. We examined
the record. The terms of the plea agreement was set forth
and included a discussion of the fact that the offense to
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which [Hainesworth] was pleading guilty did not require
registration and supervision as a sex offender. We
distinguished Commonwealth v. Benner, 853 A.2d 1068(Pa. Super. 2004) (Benner was always subject to a
reporting requirement, albeit ten years instead of a
lifetime, and the record did not support Benner’s
contention that he had bargained for non-registration as a
term of his plea), and held that the plea agreement
“appears to have been precisely structured so that
Hainesworth would not be subject to a registration
requirement.” Hainesworth, 82 A.3d] at 448.
Partee, 86 A.3d at 247-48.
In Partee, Partee pled guilty to indecent assault which, at the time of
his plea, subjected him to a ten-year registration requirement under Megan’s
Law. With the subsequent passage of SORNA, however, Partee’s conviction
of a Tier II sexual offense increased his registration requirement to twenty-
five years. Id. at 246. After reviewing the totality of the circumstances
surrounding Partee’s plea, we reasoned:
Herein, [Partee] was subject to a ten-year reporting
requirement under the terms of the plea agreement and
there is no indication that he bargained for non-
registration as part of his plea. However, the ten-year
Megan’s Law registration period was discussed at the plea
proceeding. While it was not an explicit term of the
negotiated plea, it is apparent that [Partee’s] negotiated
plea agreement was structured so that he would only be
subject to a ten-year rather than a lifetime reporting
requirement, distinguishing the facts herein from those in
Benner. The two charges carrying a lifetime registration
were withdrawn by the Commonwealth as part of the
negotiations, leaving [Partee] subject to the less onerous
ten-year reporting requirement then imposed on indecent
assault. Under our reasoning in Hainesworth, [Partee]
arguably would be entitled to the benefit of that bargain.
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Partee, 86 A.3d at 249.
Despite the above, in Partee we accepted the Commonwealth’s
argument that, by violating his probation, Partee breached the original plea
agreement, and therefore he could no longer seek specific enforcement of its
terms. Id. at 249-50. Thus, we determined that Hainesworth, “is not
controlling.” Id.Here, the trial court likewise concluded that Hainesworth did not
apply to Appellant’s claim:
Appellant would ask the Superior Court to review this
matter under the laws concerning plea agreements and
contracts. It was for this reason that we held an
evidentiary hearing to provide Appellant with the
opportunity to meet his burden that there was indeed a
negotiated plea agreement entered into to avoid the
registration requirement under [Megan’s Law II]. After
hearing, however, we were unable to conclude that such
an agreement occurred.
Appellant was charged with only one count; no counts
were withdrawn in exchange for a plea. The matter was
actually scheduled for a PreTrial [sic] Hearing on June 29,
2000. The Statement Accompanying his Request to Enter
a Guilty Plea lists the that Maximum Permissible Sentence
Appellant was facing was 7 years [of] incarceration and/or
a $15,000.00 fine. Appellant acknowledged, by signing
this statement, that this plea permitted him to avoid a trial
and a large fine, as well as possible incarceration for this
felony offense. Thus, we could not determine solely from
this statement that the reason the plea was entered into
was to avoid registration. There is no transcript or record
of any terms of a negotiated plea agreement in June 2000.
Looking at the totality of the circumstances, we found as a
fact that there was no plea agreement made in exchange
for avoiding registration.
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Appellant registered when notified by the State Police to
do so in November of 2006. There is no record to show
why the police waited six years to notify Appellant.
Appellant claimed he objected to the registration
requirement. There is also no record that any challenge to
the registration requirement was filed. Appellant waived
the issue of the retroactivity of Megan’s Law III by not
raising it before now to give the court an opportunity to
review it. See generally Commonwealth v. Cody
Miller, 80 A.3d 806, 812 (Pa. Super. 2013) (citations
omitted). We found Appellant’s testimony to be self-
serving and not credible. It is well settled that credibility
determinations are the province of the trial court. Thus,
the standard of review in this case should be whether or
not the court committed an error of law.
Trial Court Memorandum Opinion, 10/8/14, at 2-4.
Rather than applying Hainesworth, the trial court characterized the
issue to be addressed as follows:
We surmise that the legal question then becomes
whether a defendant who was convicted of a
nonregisterable [sic] offense prior to the passage of
Megan’s Law II, but was serving a sentence of probation at
the time of the passage of Megan’s Law [III], which now
included that offense, is therefore still subject to the ten
year period of registration when he did not begin his initial
period of registration for six years.
Id. at 4.
The trial court then reviewed case law addressing the retroactivity
question as applied in cases involving the various versions of Megan’s Law.
See id. at 4-6 (discussing Commonwealth v. Benner, 853 A.2d 1068 (Pa.
Super. 2004); Commonwealth v. James Miller, 787 A.2d 1036 (Pa.
Super. 2001)). It concluded:
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[W]hile Megan’s Law II has been amended several
times, the requirement for Appellant to register remains.
Appellant is classified as a sexually violent predator under
42 Pa.C.S.A. § 9799.12 because he was convicted of an
offense listed under section 9799.14(b)(9). Under the
most recent amendment, [SORNA] predicate offenses
requiring registration are grouped in tiers, with Sexual
Abuse of Children, § 6312(d), being considered a Tier I
sexual offense, requiring a fifteen year registration period.
See 42 Pa.C.S. [§] 9799.14(b)(9); § 9799.15(a)(1).
Without proof of a plea agreement, Appellant is bound
by the law of retroactivity as it applies to his case. When
Megan’s Law II went into effect, Appellant was still serving
his sentence for the sex offense. We do not think that the
fact that he did not comply with registration for the first six
years negates the initial requirement that he register for
ten years.
Trial Court Memorandum Opinion, 10/8/14, at 6-7 (footnotes omitted). Our
review of the record, in accordance with the applicable statutory and case
authority, supports the trial court’s conclusions.
Appellant’s claims to the contrary are unavailing. Appellant’s reliance
upon the factually distinguishable case of Partee, supra, is inapposite.
Unlike Appellant’s case, this Court was able to review the guilty plea colloquy
that occurred between the parties, noted a specific registration period was
enumerated, and further noted that offenses requiring lifetime registration
were withdrawn by the Commonwealth.1 Here, we are unable to conduct a
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1
Because the Partee court ultimately concluded that Partee breached his
plea agreement, the discussion quoted above and relied upon by Appellant is
dicta. See supra.
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similar review, and the trial court found Appellant’s testimony concerning the
plea agreement unworthy of belief. We cannot disturb this determination.
See generally Commonwealth v. Weathers, 95 A.3d 908 (Pa. 2014).
Appellant’s similar reliance upon Commonwealth v. Jones, 2014 PA
Super. 109, a decision that we withdrew from publication because the
SORNA issue addressed became moot, and Commonwealth v. Nase, 104
A.2d 528 (Pa. Super. 2014), is misplaced, given the fact that in each case, a
guilty plea colloquy was available for appellate review. Put simply, Appellant
acquiesced to registration under Megan’s Law II, and cannot now—in the
absence of credible record evidence—maintain a contradictory position
approximately fourteen years following the original entry of his plea.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2015
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