Commonwealth v. Nase

104 A.3d 528

2014 PA Super 194

COMMONWEALTH of Pennsylvania, Appellee

v.Charles NASE, Appellant.

No. 2946 EDA 2013

Superior Court of Pennsylvania.

Submitted May 27, 2014.

Filed Sept. 09, 2014.

Reargument Denied Nov. 12, 2014.

Thomas P. Sundmaker, Stroudsburg, for appellant.

Elmer D. Christine, Jr., Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ.

Opinion

OPINION BY BOWES, J.:

Charles Nase appeals from the denial of his petition to avoid additional sex offender registration requirements, specifically, registering for an additional fifteen years. After careful review, we reverse.

Appellant originally entered a guilty plea to statutory sexual assault, 18 Pa.C.S. § 3122.1, and unlawful contact with a minor, 18 Pa.C.S. § 6318, on March 7, 2006. The facts underlying the plea were that Appellant engaged in sexual intercourse with a female aged fourteen when he was twenty years of age. The Commonwealth agreed to nolle prosse charges of involuntary deviate sexual intercourse with a person less than sixteen years of age, aggravated indecent assault with a person less than sixteen years of age, indecent assault of a person less than sixteen years of age, and corruption of minors.

The court sentenced Appellant on May 24, 2006, to two months to twelve months incarceration for the statutory sexual assault charge and did not impose any further sentence at the remaining count. Appellant completed serving his sentence no later than May of 2007. However, the charge of unlawful contact with a minor required a period of sexual offender registration of ten years under Megan's Law. That registration offense was specifically included in the plea so that Appellant would be required to register as a sex offender for a period of ten years.

On December 20, 2012, a new version of Megan's Law became effective. This law brought Pennsylvania into compliance with the federal Sexual Offender Registration and Notification Act, SORNA.¹ Pennsylvania's SORNA law required those convicted of unlawful contact with a minor to register for twenty-five years.² Appellant filed the underlying petition on June 19, 2013. Therein, he contended that fundamental fairness, contract law, and the due process and contract clauses of the United States and the Pennsylvania Constitution precluded increasing his registration period from ten to twenty-five years. The court conducted a hearing that consisted of argument by both parties before denying Appellant's petition. The court issued an opinion in support of its order. This timely appeal ensued, and the court directed Appellant to comply with Pa.R.A.P. 1925(b). Appellant complied with the court's order and the court issued a brief supplemental opinion pursuant to Pa.R.A.P. 1925(a). Appellant now presents three issues for our review.

A. Do the mandatory registration requirements for Megan's Law interfere with or violate any agreement made by and between the Commonwealth and the Defendant at the time that he entered into his guilty plea?

B. Was the Defendant, at the time of his guilty plea and sentencing, specifically advised as to what his obligations were to be, not that those self same restrictions could be modified at some time in the future retroactively?

C. Was the Commonwealth's reliance upon Commonwealth v. Benner [, 853 A.2d 1068 (Pa.Super.2004) ] misplaced?

Appellant's brief at 17.

Although Appellant purports to only raise three issues, his first claim contains eight interrelated sub-arguments. Appellant's initial three sub-arguments are that fundamental fairness and due process mandate that his plea agreement be enforced. His next two positions are constitutional challenges under the federal and Pennsylvania contract clauses. Relatedly, his final three sub-arguments allege that Pennsylvania's SORNA statute substantially impairs his plea bargain under the contract clauses.

The Fourteenth Amendment and Article I, § 9 of the Pennsylvania Constitution guarantee due process protections.³ Our Supreme Court has ruled that these provisions are essentially coextensive. Commonwealth v. Moto, 611 Pa. 95, 23 A.3d 989, 1001 (2011). Instantly, Appellant's brief is devoid of any cogent discussion of substantive or procedural due process standards, nor does he contend that a fundamental right is at issue. See Commonwealth v. Brown, 617 Pa. 107, 52 A.3d 1139, 1162 (2012) ; Khan v. State Bd. of Auctioneer Examiners, 577 Pa. 166, 842 A.2d 936, 946 (2004) (“Preliminarily, for substantive due process rights to attach there must first be the deprivation of a property right or other interest that is constitutionally protected.”); Commonwealth v. Burnsworth, 543 Pa. 18, 669 A.2d 883, 889 (1995).

Appellant does not argue that strict scrutiny or the rational basis test applies to the SORNA statute, see Khan, supra, and he does not discuss the statute in relation to his fundamental fairness arguments. Rather, his focus is on the contractual nature of his plea agreement. In this respect, he maintains that his ten-year registration period was an implicit term of his plea. He points out that, at sentencing, he was provided notice of the ten-year registration. Appellant highlights that both the United States Supreme Court and this Court have construed plea bargains as contractual in nature. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) ; Puckett v. United States, 556 U.S. 129, 137, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ; Commonwealth v. Kroh, 440 Pa.Super. 1, 654 A.2d 1168, 1172 (1995). In Appellant's view, his plea agreement must be strictly enforced, and any ambiguity is to be counted against the Commonwealth.

As Appellant's due process position is underdeveloped and relies solely on a contractual analysis, we need not determine whether SORNA's retroactive increase of registration requirements can withstand either strict scrutiny or the rational basis test. Instead, we examine whether a contractual analysis precludes Appellant, under the precise facts here, from being subject to fifteen additional years of registering as a sex offender.

Appellant's argument is virtually identical to that leveled by the appellee in Commonwealth v. Hainesworth, 82 A.3d 444 (Pa.Super.2013) (en banc ). In addition to Santobello, supra and Kroh, supra, Appellant relies on Commonwealth v. Mebane, 58 A.3d 1243 (Pa.Super.2012), Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976), and an unpublished non-precedential Court of Common Pleas decision, Commonwealth v. McMullen, 3116 C 2008 (Westmoreland County, Ct. Com.Pl.) (filed December 18, 2008),⁴ each of which was briefed and discussed by the appellee in Hainesworth.

In Mebane, the Commonwealth appealed after the trial court upheld a plea bargain initially agreed to by the parties, but was subsequently withdrawn by the Commonwealth on the date of the plea hearing. The Commonwealth argued principally that, because a plea agreement does not officially exist until it is entered of record and accepted by the court, no agreement existed. The Mebane Court rejected this position, reasoning,

simply because Mebane does not have a right to specific enforcement of the agreement does not necessarily deprive the trial court of the discretion to enforce the plea agreement in circumstances where enforcement is in the interest of justice. Second, the existential question of whether an agreement exists prior to its presentment in open court may be relevant to, but not necessarily dispositive of, the determination of whether enforcement is justified as a matter of judicial discretion rather than as a matter of right.

Id. at 1248.

In Zuber, the Pennsylvania Supreme Court afforded post-conviction relief to a defendant by modifying his sentence. The defendant in Zuber pled guilty to murder in exchange for the Commonwealth recommending a sentence of seven to fifteen years incarceration to be served concurrently to a parole violation sentence that consisted of a term of imprisonment of four and one-half years. However, state law at the time mandated that the sentences be consecutive. The Zuber Court concluded that the plea agreement was illusory and that the defendant's plea was not knowingly and voluntarily entered. It opined that, “where a plea bargain has been entered into and is violated by the Commonwealth, the defendant is entitled, at the least, to the [b]enefit of the bargain.” Id. at 444. Based on the defendant's request on appeal, the Supreme Court modified his murder sentence to two and one-half to fifteen years, thereby affording him the benefit of his initial bargain.

Appellant also relies on this Court's recent decision in Hainesworth, supra. The defendant in Hainesworth entered a negotiated guilty plea on February 27, 2009, to three counts of statutory sexual assault and three counts of a misdemeanor of the second-degree indecent assault, and one count of criminal use of a communication facility. In exchange, the Commonwealth dismissed charges of aggravated indecent assault, which carried a lifetime registration requirement. When Hainesworth entered his plea, none of the crimes to which he pled guilty mandated registration under Megan's Law. Currently, these crimes do not require registration for those convicted between January 23, 2005 and December 19, 2012. See 42 Pa.C.S. § 9799.13(3.1) (delineating crimes that are not sexually violent offenses when occurring in aforementioned period). However, prior to March 14, 2014, and at the time of Hainesworth's appeal, the legislature had passed legislation that would have required those convicted of the relevant statutory sexual assault and indecent assault charges to register for a period of twenty-five years.

Accordingly, Hainesworth, while still on probation, filed a motion to terminate his supervision. The trial court declined to terminate Hainesworth's probation, but determined that Hainesworth was not subject to registration. The Commonwealth appealed. On appeal, the Commonwealth...