Com. v. Moose, C., Jr. ( 2021 )

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2021 PA Super 2COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS GENE MOOSE, JR. :
:
Appellant : No. 1897 MDA 2014
Appeal from the Order Dated October 17, 2014
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000798-1988
BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J.,
DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.
OPINION BY NICHOLS, J.: FILED: JANUARY 4, 2021
Appellant Carlos Gene Moose, Jr. appeals from the order denying his
motion to enforce a negotiated plea agreement and to enjoin any requirement
that he register under the Sex Offender Registration and Notification Act1
(SORNA I). This Court granted en banc reargument to consider (1) whether
Appellant’s claims must be decided under the Post Conviction Relief Act2
(PCRA); (2) whether Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)
applied retroactively; (3) whether Commonwealth v. Fernandez, 195 A.3d
299 (Pa. Super. 2018) (en banc), or Commonwealth v. Johnson, 200 A.3d
964 (Pa. Super. 2018), governed if Muniz applied in determining the
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1The Sexual Offender Registration and Notification Act (SORNA I), 42 Pa. C.S.
§§ 9799.10-9799.41 (subsequently amended 2018).
2 42 Pa.C.S. §§ 9541-9546.
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retroactive application of SORNA. See Order, 1897 MDA 2014, 5/6/19, at 1-
2.
In his supplemental brief, Appellant asserts that the issues set forth in
this Court’s order granting reargument are no longer relevant in light of the
subsequent amendments to SORNA I in Acts 10 and 29 of 20183 (SORNA II),
in particular, Subchapter I of SORNA II. In the alternative, Appellant asserts
that his original plea agreement bars any obligation to register as a sex
offender. For the reasons that follow, we vacate the trial court’s order and
remand the matter for further proceedings to consider the applicability of
SORNA II.
The following background is relevant to this appeal. In October of 1987,
Appellant participated in the rape and murder of a woman in York County. In
May of 1995,4 Appellant entered a negotiated guilty plea to one count each of
third-degree murder, rape, and criminal conspiracy.5 Pursuant to the plea
agreement, the trial court imposed an aggregate term of fifteen to thirty years’
incarceration. Pennsylvania had no laws relating to registration, community
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32018, Feb. 21, P.L. 27, No. 10 (Act 10); 2018, June 12, P.L. 140, No. 29,
(Act 29).
4 Appellant was initially convicted following a jury trial in 1988. The
Pennsylvania Supreme Court vacated Appellant’s 1988 conviction in 1992 on
the grounds of prosecutorial misconduct and remanded the matter for a new
trial. See Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992).
5 18 Pa.C.S. §§ 2502(c), 3121(a)(1), and 903(b), respectively.
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notification, or counseling provisions for convicted sex offenders at the time
of Appellant’s plea or the date of the underlying offense.
In December of 2011, the Pennsylvania General Assembly enacted
SORNA I, which retroactively applied registration requirements to any
individual who was serving a sentence for a sexually violent offense on or after
the effective date of the statute. The trial court subsequently informed
Appellant, who was still incarcerated, that he was considered a Tier III
offender and would be subject to lifetime registration requirements.
On August 13, 2014, Appellant filed a pro se motion to enforce his
negotiated plea agreement and to enjoin any requirement that he register
under the then-existing sex offender registration scheme, SORNA I. See Mot.
to Enforce Plea Agreement, 8/13/14. Therein, Appellant argued that “his
forced compliance with the registration requirement of SORNA [I] violates due
process of law, fundamental fairness, and the negotiated plea agreement
entered into between him and the Commonwealth.” Id. at 2. Appellant
argued that his negotiated plea agreement “did not require him to register as
a sex offender [and] must be strictly enforced.” Id. at 3.
On October 17, 2014, the trial court denied Appellant’s motion. Trial
Ct. Order, 10/17/14, at 1. The trial court explained that sex offender
registration requirements “could not have been a consideration” in Appellant’s
decision to plead guilty, as Pennsylvania did not have any laws relating to sex
offender registration at the time Appellant negotiated his plea deal. Id.
Relying on Commonwealth v. Perez, 97 A.3d 747, 760 (Pa. Super. 2014),
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the trial court concluded that SORNA I applied retroactively to Appellant, who
was still serving a sentence for rape. Id. After a panel of this Court affirmed
the trial court’s decision on appeal, Appellant filed a petition for allowance of
appeal in the Pennsylvania Supreme Court.
On July 19, 2017, our Supreme Court decided Muniz. The Muniz Court
held that SORNA I’s registration requirements were “punitive in effect.”
Muniz, 164 A.3d at 1218. As such, the Court concluded that SORNA I violated
ex post facto principles when applied to individuals who, like Appellant,
committed a sexual offense before December 20, 2012, the effective date of
SORNA I. See id. at 1223; see also Commonwealth v. Lippincott, 208
A.3d 143, 150 (Pa. Super. 2019) (en banc).
On February 23, 2018, our Supreme Court, by per curiam order, granted
Appellant’s petition for allowance of appeal in the instant case, vacated this
Court’s decision affirming the trial court’s denial of Appellant’s motion to
enforce his plea agreement, and remanded the matter to this Court for
reconsideration in light of Muniz. See Commonwealth v. Moose, No. 526
MAL 2015 (Pa. Feb. 23, 2018).
Meanwhile, SORNA II took effect. SORNA II divides sex offender
registrants into two distinct subchapters—Subchapter H and Subchapter I.
Amended Subchapter H includes individuals who were convicted for an offense
that occurred on or after December 20, 2012 and whose registration
requirements had not yet expired. See 42 Pa.C.S. § 9799.11(c). Subchapter
I includes individuals who were convicted for an offense that occurred “on or
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after April 22, 1996, but before December 20, 2012,” or who were required to
register under a former sexual offender registration law on or after April 22,
1996, but before December 20, 2012, and whose registration requirements
had not yet expired. See 42 Pa.C.S. § 9799.52.
Following the remand from the Pennsylvania Supreme Court, a panel of
this Court reversed the trial court’s order denying relief. See
Commonwealth v. Moose, 1897 MDA 2014 at 2 (Pa. Super. filed January
11, 2019). The majority found that this Court had jurisdiction over Appellant’s
motion outside of the PCRA because, like the Fernandez petitioners,
Appellant sought to enforce the terms of a plea agreement. Id. at 4. Further,
the majority reasoned that Appellant’s position was comparable to two of the
Fernandez petitioners, who pled guilty to offenses that did not require any
period of registration at the time of their pleas. Id. Therefore, the majority
concluded that it had jurisdiction to review Appellant’s motion to enforce his
plea agreement based on Fernandez. Id. at 6.
In reviewing Appellant’s underlying challenge to SORNA I, the majority
explained that “at the time of his offenses and his plea, Pennsylvania had not
yet enacted Megan’s Law legislation or, in particular, SORNA [I].” Id. at 10.
The majority reasoned that requiring Appellant to register under SORNA I
“would constitute a greater punishment than what would have been imposed
under the law in effect at the time the crimes were committed. As such,
retroactive application of these enhanced registration requirements runs afoul
of constitutional ex post facto prohibitions.” Id. at 10-11. Therefore, the
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majority concluded that Appellant was “not required to register under SORNA.
Since [Appellant’s] offenses occurred prior to any version of Megan’s Law or
SORNA, the post-Muniz legislation does not apply to him.” Id. at 11.
The dissent responded that Appellant’s motion was an untimely PCRA
petition for the same reasons stated in Johnson. Id. at 1 (Bowes, J.,
dissenting). Specifically, the dissent emphasized that Appellant pled guilty
before Pennsylvania had enacted any sex offender registration laws.
Therefore, the dissent concluded that Appellant could not avoid sex offender
registration based on his plea agreement because “the parties clearly could
not structure the plea to accommodate law that did not exist.” Id. at 4. This
Court granted en banc reargument on May 6, 2019.
Thereafter, on July 21, 2020, our Supreme Court issued its decision in
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020). Notably, the
Lacombe Court rejected the Commonwealth’s argument that the petitioner
was “required to challenge his sex offender registration status within the
confines of the PCRA.” Id. at 617. The Lacombe Court also concluded that
“Subchapter I is nonpunitive and does not violate the constitutional prohibition
against ex post facto laws.” Id. at 605-06.
Parties’ Arguments
With the foregoing background in mind, we summarize the parties’
arguments. In so doing, we note that the parties initially present a procedural
dispute as to whether Appellant was required to raise his claims under the
PCRA. On the merits, Appellant and the Commonwealth present two lines of
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arguments directed to (1) Appellant’s challenge to SORNA I, as was presented
to the trial court and (2) the application of SORNA II, which Appellant raised
in his brief to this Court.
Appellant argues that the trial court had jurisdiction to consider his
motion to enforce the plea agreement outside of the PCRA. Appellant’s Brief
at 48-51. Appellant also asserts that “retroactive application of Muniz is
unnecessary for this Court to decide . . . whether registration requirements
can be enforced against [him] at this time.” Appellant’s Brief at 16. Appellant
asserts that Muniz preceded the enactment of Subchapter I, which is the “sole
conceivably applicable” sex offender registration scheme currently in effect.
Id. Therefore, Appellant argues that this Court need only “address whether
Subchapter I applies to Appellant and can be enforced against him. Only if a
currently existing scheme actually applies and is enforceable does this Court
need to go on and consider whether registration is permissible in light of
Appellant’s plea agreement.” Id. at 17.
Appellant argues that Subchapter I does not apply to him, as “his
triggering offenses occurred in 1987” and, because he has been incarcerated
since his conviction, he was never required to register under a former version
of the sex offender registration laws. Appellant’s Brief at 19; see also 42
Pa.C.S. § 9799.52 (establishing the dates that determine whether Subchapter
I applies). Further, Appellant contends that even if Subchapter I applies to
him based on the terms of the statute, “it is punitive and cannot be applied
retroactively.” Appellant’s Brief at 24.
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In the alternative, Appellant contends that he is entitled to specific
performance of his negotiated plea agreement, which, he alleges, set forth an
agreed-upon criminal sentence on which no term of sex offender registration
would apply. Id. at 52. Appellant also asserts that Fernandez controls, as
he agreed to a specific term of punishment in exchange for his guilty plea.
Id. at 54.
Therefore, Appellant contends that his plea agreement precludes him
from any obligation to register as a sex offender under either version of
SORNA. Appellant’s Brief at 16-17, 51. Appellant argues that, although his
plea agreement did not include non-registration as a term, he “pled guilty with
the understanding that the Commonwealth would take no further action
against him apart from his term of incarceration. In other words, by inducing
[Appellant’s] plea, the Commonwealth promised—implicitly if not explicitly—
that all it required of him was [fifteen] to [thirty] years’ incarceration.” Id. at
55.
Appellant asserts that, under these circumstances, “this Court should
apply Fernandez, not Johnson, because Fernandez upholds important
principles of contract law, prevents unfairness, and avoids the chilling of plea
bargaining that would occur if this Court endorses the imposition of
requirements that did not exist—and could not have been foreseen—when
Appellant agreed to plead guilty.” Id. at 13. Appellant argues that
Fernandez “comports with contract law by giving effect to the implicit
promise that induced [Appellant] to plead guilty.” Id. at 54. Appellant
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contends that “[f]or the Commonwealth to later subject [Appellant] to sex
offender registration by virtue of those convictions is a clear breach of that
promise: a unilateral addition to the consequences of [Appellant’s] plea that
he never accepted.” Id.
Appellant also argues that Johnson “ignores the contractual principles
that Pennsylvania courts have applied to construe plea agreements.” Id. at
56. Appellant acknowledges that his plea agreement did not contain any
terms relating to sex offender registration, but asserts that “the Johnson
approach places the risk of unforeseen developments wholly on defendants.
Defendants must perform their end of the bargain completely, but have no
recourse when the Commonwealth places additional, onerous burdens on
them.” Id. at 58. Finally, Appellant concludes that “due to the uncertainty
and unfairness that the Johnson approach wreaks, applying it here would
chill plea bargains going forward.” Id. at 61.
The Commonwealth initially responds that Appellant’s motion must be
treated as a PCRA petition. Commonwealth’s Brief at 29. The Commonwealth
asserts that the “resolution of whether Johnson or Fernandez controls is
largely based on whether this Court rules that [Appellant] is challenging the
legality of his sentence.” Id. at 37. The Commonwealth argues that Johnson
applies in the instant matter, as both matters “involved plea agreements that
existed prior to the enactment . . . of any sexual offender registration
requirements. As the Johnson Court stated, ‘by definition, the parties could
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not have contemplated non-registration as a term of the plea.’” Id. The
Commonwealth contends that, because Appellant does not have a valid plea
enforcement claim, his Muniz claim is a challenge to the legality of his
sentence that must be brought under the PCRA. Id.
In distinguishing Fernandez, the Commonwealth asserts that the
Fernandez petitioners “entered into negotiated pleas at times where various
incarnations of Megan’s Law existed and where the parties could negotiate the
registration requirements.” Id. at 37. Therefore, the Commonwealth
contends that, unlike Appellant, the Fernandez petitioners were not limited
to challenging the legality of their sentence. Id. at 37-38.
On the merits, the Commonwealth similarly argues that because
Appellant’s negotiated plea agreement did not contain terms relating to sex
offender registration, he has “no specific plea bargain to enforce” with respect
to sex offender registration. Id. at 21. Further, because sex offender
registration laws were not in effect at the time of Appellant’s plea, the
Commonwealth asserts that “the parties could not have contemplated a lack
of registration as a term of the plea bargain.” Id. at 11. The Commonwealth
concludes that, because Appellant’s plea agreement did not contain a term
relating to sex offender registration, he “cannot establish a plea bargain that
requires enforcement.” Id. at 21. As such, the Commonwealth argues that
Johnson controls, and that Appellant is not entitled to relief from SORNA I
based on Muniz. Id. at 16.
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In response to Appellant’s challenges to his obligation to register under
Subchapter I, the Commonwealth contends that it “is not germane to
resolution of [Appellant’s] appeal,” as he filed the original motion to enforce
his plea agreement based on SORNA I. Id.
Preliminary Procedural Matters
Initially, we resolve the parties’ dispute as to whether Appellant was
required to challenge his sex offender registration requirements in a PCRA
petition, such that Appellant’s failure to establish a PCRA timeliness exception
would preclude a court for entertaining the merits of his claim. We conclude
that our Supreme Court’s recent decision in Lacombe is dispositive.
Briefly, we note that following Muniz, petitioners seeking relief from
SORNA I’s registration requirements were required to raise such claims in a
timely PCRA petition. See, e.g., Commonwealth v. Greco, 203 A.3d 1120,
1123 (Pa. Super. 2019) (discussing Muniz and concluding that because the
“punitive nature of [SORNA I] implicates the legality of a sex offender’s
sentence . . . claims challenging application of SORNA’s registration provisions
– unlike prior versions of Megan’s Law – are properly considered under the
PCRA”); Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa. Super. 2018)
(affirming the dismissal of an untimely PCRA petition and stating that the
petitioner’s “reliance on Muniz cannot satisfy the ‘new retroactive right’
exception” to the PCRA time-bar); see also, e.g., Commonwealth v.
Rivera-Figueroa, 174 A.3d 674, 678-79 (Pa. Super. 2017) (vacating the trial
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court’s order denying the petitioner’s timely PCRA petition and remanding the
matter to the trial court for the petitioner to argue Muniz)).
In Johnson, the petitioner filed a petition for writ of habeas corpus and
challenged his obligation to register as a sex offender under SORNA I.
Johnson, 200 A.3d at 966. In that case, the petitioner’s conviction arose
from a 1992 nolo contendere plea, which was completed three years prior to
Pennsylvania’s first iteration of the sex offender registration laws. Following
the enactment of SORNA I, the petitioner challenged his registration
requirements based, in part, on his plea agreement. Id. at 965. On appeal,
a panel of this Court held that the petitioner’s habeas filing should have been
treated as an untimely PCRA petition. Id. at 967.
The Johnson Court acknowledged that a petitioner could seek
enforcement of the negotiated terms of a plea agreement outside the
timeliness requirements of the PCRA. Id. However, the Court concluded that
the “plea enforcement theory” did not apply to the petitioner, who pled guilty
before sex offender registration laws went into effect. Id. Specifically, the
Johnson Court reasoned that it could not “apply Muniz via a plea
enforcement theory, as the parties clearly could not structure the plea to
accommodate law that did not exist.” Id. at 968. Further, although the
Johnson Court acknowledged that SORNA I’s registration requirements were
“in fact punitive post-Muniz,” it nonetheless declined to grant relief, noting
that “the PCRA clearly offers a remedy for the requested relief, i.e. the
retroactive application of Muniz.” Id.
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As discussed previously, the Lacombe Court emphasized that
petitioners may challenge the application of a sexual offender registration
statute outside the framework of the PCRA. Lacombe, 234 A.3d at 617.
Specifically, the Court explained:
This Court has not yet required that sexual offender registration
statutes be challenged through the PCRA or some other procedural
mechanism. Indeed, we have consistently decided cases
regarding sexual offender registration statutes that were
challenged via different types of filings. See Muniz, [164 A.3d at
1208] (successful challenge to constitutionality of SORNA via
direct appeal), Commonwealth v. Martinez, 147 A.3d 517, 523
(Pa. 2016) (successful challenge to increase of registration term
through “Petition to Enforce Plea Agreement or for a Writ of
Habeas Corpus” where PCRA petition would have been untimely),
A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7 (Pa. 2016)
(successful challenge to registration term through mandamus
action against PSP), [Commonwealth v. Williams, 832 A.2d
962, 972 (Pa. 2003) (Williams II)] (unsuccessful challenge to
constitutionality of Megan’s Law II through “Motion for
Extraordinary Relief” and “Motion for Relief”). Our approach in
this regard takes into account the fact that frequent changes to
sexual offender registration statutes, along with more onerous
requirements and retroactive application, complicate registrants’
ability to challenge new requirements imposed years after their
sentences become final.
This is especially so under the PCRA as many registrants . . . would
be ineligible for relief on timeliness grounds. See 42 Pa.C.S. §
9545(b)(1) (PCRA petition must be filed within one year of
judgment of sentence becoming final unless exception applies).
Other registrants may be ineligible because their sentence has
expired while their registration requirements continue. See 42
Pa.C.S. § 9543(a)(1) (PCRA petitioner must be serving sentence
to be eligible for relief). Both situations arise from the fact that
the registration period does not begin until registrants are
released from prison, which may be well after their sentence has
become final or may signal the completion of their sentence.
Accordingly, we decline to find the PCRA, or any other procedural
mechanism, is the exclusive method for challenging sexual
offender registration statutes and we thus conclude the trial court
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had jurisdiction to consider Lacombe’s “Petition to Terminate His
Sexual Offender Registration Requirements.”
Id. at 617-18. (some formatting altered).
Here, Appellant filed a motion challenging his obligation to register as a
sex offender based on his negotiated plea agreement. In light of our Supreme
Court’s decision in Lacombe, we conclude that Appellant was not required to
challenge his registration requirements under the PCRA.6 See id. Therefore,
the trial court properly exercised jurisdiction over Appellant’s motion.
Effect of Appellant’s Plea Agreement
We next consider the issue of whether Appellant’s negotiated plea
agreement affects his obligation to register as a sex offender.
The law regarding the enforcement of plea agreements is well
established.
Plea bargaining is not some adjunct to the criminal justice system;
it is the criminal justice system. Accordingly, it is critical that plea
agreements are enforced, to avoid any possible perversion of the
plea bargaining system. The disposition of criminal charges by
agreement between the prosecutor and the accused, . . . is an
essential component of the administration of justice. Properly
administered, it is to be encouraged. In this Commonwealth, the
practice of plea bargaining is generally regarded favorably, and is
legitimized and governed by court rule. . . . A “mutuality of
advantage” to defendants and prosecutors flows from the
ratification of the bargain.
* * *
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6 To the extent prior decisions of this Court, including Johnson, concluded
that petitioners are required to challenge their sex offender registration
requirements in a timely PCRA petition, that pronouncement is overruled.
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Although a plea agreement occurs in a criminal context, it remains
contractual in nature and is to be analyzed under contract-law
standards. Furthermore, disputes over any particular term of a
plea agreement must be resolved by objective standards. A
determination of exactly what promises constitute the plea
bargain must be based upon the totality of the surrounding
circumstances and involves a case-by-case adjudication.
Any ambiguities in the terms of the plea agreement will be
construed against the Government. Nevertheless, the agreement
itself controls where its language sets out the terms of the bargain
with specificity. Regarding the Commonwealth’s duty to honor
plea agreements, well-settled Pennsylvania law states:
Our courts have demanded strict compliance with that duty
in order to avoid any possible perversion of the plea
bargaining system, evidencing the concern that a defendant
might be coerced into a bargain or fraudulently induced to
give up the very valued constitutional guarantees attendant
the right to trial by jury.
Whether a particular plea agreement has been breached
depends on what the parties to the agreement reasonably
understood to be the terms of the agreement.
Commonwealth v. Farabaugh, 136 A.3d 995, 1001-02 (Pa. Super. 2016)
(internal citations and quotation marks omitted).
[T]he convicted criminal is entitled to the benefit of his bargain
through specific performance of the terms of the plea agreement.
Thus, a court must determine whether an alleged term is part of
the parties’ plea agreement. . . . If the answer to that inquiry is
affirmative, then the convicted criminal is entitled to specific
performance of the term.
Martinez, 147 A.3d at 533 (some internal citations omitted). Further, as is
true of all contracts, “[t]he laws that are in force at the time the parties enter
into a contract are merged with the other obligations that are specifically set
forth in the agreement. Statutes generally should not be applied retroactively
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to a contractual relationship where the application would alter existing
obligations.” Empire Sanitary Landfill, Inc. v. Com., Dept. of
Environmental Resources, 684 A.2d 1047, 1059 (Pa. 1996) (citations
omitted).
Prior to Muniz, a defendant’s obligation to register as a sex offender
was considered a “collateral consequence” of a guilty plea, as those conditions
were held to be non-punitive and were therefore unrelated to “the length or
nature of the sentence.” Commonwealth v. Leidig, 956 A.2d 399, 404 (Pa.
2008) (citation omitted) (discussing a former sex offender registration scheme
and noting that, because registration was non-punitive, the “logical extension
. . . is that the registration requirements . . . are collateral, not direct,
consequences of conviction”).
Therefore, when a defendant sought to avoid sex offender registration
requirements based on a negotiated plea, courts could only grant relief in
cases where non-registration or a specified period of registration was a term
of the agreement. Commonwealth v. Nase, 104 A.3d 528, 532-33 (Pa.
Super. 2014) (reversing the trial court’s order denying the appellant’s motion
to enforce a plea agreement that contained an express term relating to sex
offender registration and holding that “the collateral consequence construct
does not eliminate the requirement that courts enforce bargained-for
exchanges where the parties negotiate over a collateral consequence of a
plea”); see also Commonwealth v. Hainesworth, 82 A.3d 444, 448 (Pa.
Super. 2013)) (holding that, in a plea enforcement case concerning sex
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offender registration requirements, “the dispositive question is whether non-
registration was a term of [the defendant’s] plea agreement”).
In Martinez, which was decided before Muniz, the Pennsylvania
Supreme Court determined that the petitioners were entitled to serve the
registration terms set forth in their plea agreements, rather than those later
prescribed by SORNA I. Martinez, 147 A.3d at 532-33. In reaching this
conclusion, the Martinez Court explained:
When a question arises as to whether a convicted criminal is
entitled to specific performance of a term of his plea agreement,
the focus is not on the nature of the term, e.g., whether the term
addressed is a collateral consequence of the defendant’s
conviction. Rather, quite simply, the convicted criminal is entitled
to the benefit of his bargain through specific performance of the
terms of the plea agreement. Thus, a court must determine
whether an alleged term is part of the parties’ plea agreement. If
the answer to that inquiry is affirmative, then the convicted
criminal is entitled to specific performance of the term.
Id. (citations and footnote omitted). In each of the cases considered in
Martinez, the Supreme Court emphasized that Megan’s Law was in effect at
the time of the plea agreement, the defendants had pled guilty in exchange
for a specific term of sex offender registration, and that, therefore, the
defendants were entitled to the benefit of their bargain. Id. at 533.
Following Muniz, this Court recognized that SORNA I’s sex offender
registration requirements were “no longer merely a collateral consequence but
rather punishment.” Commonwealth v. Hart, 174 A.3d 660, 667 (Pa.
Super. 2017). Further, this Court noted that “[a]lthough Leidig is not
specifically mentioned by the Muniz Court, it appears that the Muniz decision
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impliedly overrules Leidig to the extent that Leidig determined sex offender
registration requirements to be a collateral consequence.” Id. at n.10.
In Fernandez, an en banc panel of this Court addressed whether the
appellants, who entered negotiated guilty pleas and later violated their
probation, could be ordered to register under SORNA I. Fernandez, 195 A.3d
at 301. The Fernandez appellants, who were ordered to comply with SORNA
I as part of their violation of probation (VOP) sentences, filed motions to
enforce the terms of their respective plea agreements. Id. at 302. In each
case, the trial court denied relief based on this Court’s decision in
Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), concluding that
the appellants “were not entitled to specific performance of the negotiated
plea agreement because [they] had violated the terms of their plea
agreements.” Id.In a consolidated appeal to this Court, we considered whether the
appellants could be ordered to comply with the new registration conditions
assigned to their crimes under SORNA I, in light of Muniz. Id. The
Fernandez Court noted that the facts of the appellants’ cases were identical
to Partee, as each appellant had violated the terms of his respective plea
agreement. Id. at 308-09. However, the Fernandez Court reiterated that
following Muniz, a trial court could not retroactively increase a defendant’s
registration requirements under SORNA I. Id. at 301. Therefore, the Court
concluded that Muniz abrogated Partee, and that although the appellants
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violated their probation sentences, “the reclassifications of the [a]ppellants
after the effective date of SORNA cannot stand.” Id. at 309-10.
Importantly, the Fernandez Court did not condition its conclusion on
whether sex offender registration was a negotiated term of the appellants’
plea agreements. Instead, the Fernandez Court explained:
To the extent the Commonwealth claims [the a]ppellants 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 at trial.
Even offenders who, like [the a]ppellants, 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.
Id. at 310. Ultimately, the Fernandez Court held that the appellants were
“subject to the original periods of sexual offender registration and conditions
imposed at the time of their plea bargains, if applicable.”7 Id. at 311.
As noted above, however, Johnson reasoned that the plea enforcement
theory did not apply to a petitioner who pled guilty “prior to the enactment of
any sexual offender laws.” Johnson, 200 A.3d at 967. Johnson relied on
Farabaugh for the proposition that “where a plea bargain is structured so the
defendant will not have to register or report as a sex offender or he will have
to register and report for a specific time[,]” then the “‘collateral consequence’
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7 Two of the petitioners, Colbert and Wilson, pled guilty to offenses that did
not require sex offender registration at the time they entered their plea
agreements. Nonetheless, sex offender laws existed and applied to other
sexual offenses at that time.
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concept attributed generally to sex offender registration requirements does
not trump enforcement of the plea bargain.” Id. at 967-68 (citing Farabaugh
136 A.3d at 1002). The Johnson panel emphasized that because sex offender
registration requirements did not exist at the time the petitioner pled guilty,
“[b]y definition, the parties could not have contemplated non-registration as
a term of the plea.” Id. at 967. Therefore, the Johnson Court stated that it
could not “apply Muniz via a plea enforcement theory, as the parties clearly
could not structure the plea to accommodate law that did not exist.” Id. at
968.
In sum, our review of the plea enforcement cases, together with the
more recent decisions applying Muniz, discussed herein, clarifies that a
petitioner’s negotiated guilty plea precludes subsequent application of a
punitive registration scheme because it would effectively alter the petitioner’s
agreed-upon sentence. This is so even where a negotiated plea agreement is
silent regarding sex offender registration. Moreover, where a petitioner pleads
guilty in exchange for a specific sentence, he is entitled to the benefit of that
bargain.
Given the factual and procedural circumstances of this case, we decline
to apply the reasoning suggested in the Johnson case that, in all instances,
the absence of a specific term in a plea agreement precludes a party from
obtaining relief. See Johnson, 200 A.3d at 968 (stating that “we cannot
apply Muniz via a plea enforcement theory, as the parties could not structure
the plea to accommodate law that did not exist”). When a registration
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requirement is punitive, it effectively increases a defendant’s agreed-upon
criminal sentence. Such an increase would not only violate ex post facto
principles, but would alter a fundamental term of the bargain as to the
sentence. As this Court noted in Farabaugh, “we refuse to allow [a
petitioner’s] plea bargain to be reformed with the addition of new conditions
which did not exist when he entered the plea agreement. To do otherwise
would play ‘gotcha’ with a revered and favored method of resolving criminal
cases.” Farabaugh 136 A.3d at 1003 (citations omitted). In other words,
because punitive registration requirements constitute “criminal punishment,”
a petitioner may avoid such requirements by demonstrating that application
of those requirements would exceed the terms of his agreed-upon sentence.
See Farabaugh 136 A.3d at 1003 (citations omitted).
However, when a registration scheme is not punitive, it constitutes a
collateral consequence of a guilty plea. See Hart, 174 A.3d at 667. Further,
because non-punitive registration requirements are not criminal punishment,
they would not materially alter a negotiated term establishing a petitioner’s
criminal sentence. See Lacombe, 234 A.3d at 606; see also
Commonwealth v. Smith, --- A.3d ---, 1011 MDA 2019, 2020 WL 5755494at *3 (Pa. Super. filed Sep. 28, 2020) (discussing Lacombe and Leidig and
reiterating that “non-punitive, administrative requirements are merely
collateral consequences of a criminal conviction”). Under these
circumstances, a petitioner must demonstrate that non-registration, or a
specific term of registration, was part of the negotiated plea. See
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Hainesworth, 82 A.3d at 448 (stating that “the dispositive question is
whether registration was a term of the bargain struck by the parties”); see
also Martinez, 147 A.3d at 531; see also Johnson, 200 A.3d at 969.
Here, to the extent Appellant challenged his obligation to register under
SORNA I, we agree that he is entitled to relief. We recognize that Appellant’s
plea agreement did not contain any terms related to sex offender registration.
Moreover, at the time Appellant pled guilty, Pennsylvania had not yet enacted
laws requiring sex offender registration. Therefore, as noted by the trial court,
non-registration could not have been a consideration in Appellant’s decision
to plead guilty. See Trial Ct. Order, 10/17/14, at 1. Nonetheless, Appellant’s
plea agreement set forth an agreed-upon sentence of fifteen to thirty years’
incarceration. Given our Supreme Court’s decision in Muniz, retroactive
application of SORNA I’s punitive registration scheme would effectively
increase Appellant’s sentence. See Muniz, 164 A.3d at 1218; see also
Fernandez, 195 A.3d at 310. Therefore, although Appellant’s plea agreement
did not specifically preclude or limit sex offender registration, we nonetheless
conclude that Appellant cannot be ordered to comply with registration
requirements that would impose additional criminal punishment beyond what
was stated in the plea agreement. See Farabaugh 136 A.3d at 1003
(citations omitted); see also Hart, 174 A.3d at 667; see also Lacombe, 234
A.3d at 606.
Applicability of SORNA II
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Finally, to the extent Appellant presently challenges his obligation to
register under Subchapter I, the trial court has not had the opportunity to
address Appellant’s claims. Therefore, any issues relating to the application
of Subchapter I are not properly before us. See Pa.R.A.P. 302(a) (stating
that “[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal”).
Accordingly, in light of the issues discussed in Appellant’s brief, we
remand the matter to the trial court for further proceedings for the trial court
to address Appellant’s claims and determine whether Appellant is obligated to
register as a sex offender under Subchapter I. See Smith, 2020 WL 5755494at *3.
In sum, we vacate the portion of the trial court’s order requiring
Appellant to register under SORNA I and remand for further proceedings
consistent with this opinion.8
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2021
____________________________________________
8 On remand, Appellant may file a supplemental petition raising his instant
claims relating to his obligation to register under Subchapter I.
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