J-A27041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JUSTIN JAMES STOLLENWERK, :
:
Appellee : No. 164 WDA 2014
Appeal from the Order entered on January 9, 2014
in the Court of Common Pleas of Allegheny County,
Criminal Division, No(s): CP-02-CR-0002443-2009;
CP-02-CR-0002444-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 10, 2014
The Commonwealth of Pennsylvania appeals from the Order directing
that Justin James Stollenwerk (“Stollenwerk”) is not required to register with
the Pennsylvania State Police as a sexual offender for his lifetime, pursuant
to the Sex Offender Registration and Notification Act (“SORNA”),1 because
his underlying negotiated guilty plea agreement provided for a ten-year
registration period. We reverse and remand for the trial court to impose the
lifetime registration period pursuant to SORNA.
In March 2009, the Commonwealth charged Stollenwerk, at docket No.
2444-2009,2 with indecent assault of a minor less than thirteen years of age
1
See 42 Pa.C.S.A. § 9799, et seq.
2
The charges of which Stollenwerk was convicted at docket No. 2443-2009
are not relevant for purposes of this appeal.
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and corruption of minors. On October 21, 2009, Stollenwerk pled guilty to
indecent assault of a minor less than thirteen years of age.3
Notably, Stollenwerk’s guilty plea was the result of a negotiated
agreement. In exchange for Stollenwerk’s plea, the Commonwealth agreed
that it would withdraw the corruption of minors charge and recommend a
sentence of five years of probation. Moreover, at the time of Stollenwerk’s
plea, the offense of indecent assault of a minor less than thirteen years of
age required a period of sexual offender registration of ten years under
Megan’s Law II.4 At the guilty plea hearing on October 21, 2009, the
prosecutor noted this fact on the record, and Stollenwerk stated that he
understood the ten-year registration term of his plea agreement. See N.T.,
10/21/09, at 4-5. On the same day, the trial court judge, the Honorable
Donald E. Machen (“Judge Machen”), sentenced Stollenwerk, pursuant to the
plea agreement, to five years of probation, and advised him that he must
register as a sexual offender for ten years. See id. at 4-5; see also
Sentencing Order, 10/21/09 (providing as follows regarding registration:
“Megan’s Law = 10 year reg.”). Stollenwerk did not appeal his judgment of
sentence.
3
See 18 Pa.C.S.A. § 3126(a)(7).
4
See 42 Pa.C.S.A. § 9795.1(a)(1). This statutory provision expired in
December 2012, and was replaced by the provisions of SORNA. See 42
Pa.C.S.A. § 9799.41.
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Importantly to this appeal, in January 2011, the trial court revoked
Stollenwerk’s probation following a violation,5 and sentenced him to one to
two years in jail, followed by three years of probation. Stollenwerk did not
appeal this sentence.
Effective on December 20, 2012, the legislature enacted SORNA, which
applies, inter alia, to “[a]n individual who, on or after the effective date of
this section, is, as a result of a conviction for a sexually violent offense, …
being supervised by the Pennsylvania Board of Probation and Parole ….” 42
Pa.C.S.A. § 9799.13(2); see also id. § 9799.14(d)(8) (including indecent
assault of a minor less than thirteen years of age as a sexually violent
offense). In approximately October 2013, Stollenwerk received notification
that, under the new provisions of SORNA, he was required to register as a
sexual offender for life,6 rather than the ten-year period previously imposed
as part of his guilty plea agreement.
On October 21, 2013, Stollenwerk filed a “Petition Seeking
Enforcement of a Plea Agreement” (hereinafter “Petition to Enforce”),
arguing that the ten-year registration period was an essential term of his
plea agreement, and it must be specifically enforced. In other words,
5
The record contains no details regarding Stollenwerk’s probation violation.
6
Under SORNA, a conviction for indecent assault of a minor less than
thirteen years of age is designated as a “Tier III sexual offense,” subjecting
a defendant to a lifetime registration requirement. 42 Pa.C.S.A.
§ 9799.14(d)(8); id. § 9799.15(a)(3). Although an amendment to SORNA
was enacted on March 14, 2014, the amended version retains the lifetime
registration requirement.
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Stollenwerk sought to avoid the retroactive application of the SORNA lifetime
registration requirement. The Commonwealth filed an Answer asserting that
the Petition to Enforce must be treated as a Petition for relief filed pursuant
to the Post Conviction Relief Act (“PCRA”),7 and that Stollenwerk was not
entitled to collateral relief because the Petition to Enforce was not filed
within the jurisdictional time limitations of the PCRA.8
Shortly thereafter, Stollenwerk’s counsel brought to Judge Machen’s
attention this Court’s recently issued decision in Commonwealth v.
Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en banc). In that case, the
Court held that the length of the required statutory period for sexual
offender registration may constitute an enforceable component of a plea
agreement. Id. at 450 (where the defendant had specifically negotiated
with the Commonwealth to withdraw all sexual offense charges that required
registration in exchange for his guilty plea, holding that requiring him to
7
See 42 Pa.C.S.A. §§ 9541-9546.
8
We observe that Stollenwerk’s Petition to Enforce did not, in fact, fall under
the provisions of the PCRA. This Court has held that a petition seeking
enforcement of a plea agreement, which includes a sexual offense that
requires the defendant to register as a sex offender, does not fall under the
PCRA and is not subject to the PCRA’s timeliness requirements.
Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa. Super. 2014) (collecting
cases and holding that “the statutory and rule-based requirements
governing a PCRA petition do not apply to a challenge to the retroactive
application of [SORNA], but [] this Court has jurisdiction to review orders
confirming or rejecting a retroactive registration requirement.”);
Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014) (holding
that a challenge to the retroactive application of SORNA “[did] not fall within
the scope of the PCRA and should not be reviewed under the standard
applicable to the dismissal of PCRA petitions.”).
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register as a sexual offender by retroactively applying SORNA would unfairly
deprive him of the benefit of his plea bargain).
On January 9, 2014, Judge Machen issued an Order granting the relief
Stollenwerk sought in the Petition to Enforce, stating as follows:
[Stollenwerk] is required to register for ten (10) years
ONLY as a sex offender under … SORNA. Application of the
statute to [Stollenwerk] subsequent to the date of the plea
agreement violates due process of law, fundamental fairness,
and provisions of the negotiated plea agreement entered into
between [Stollenwerk] and the government. It would also
destroy the process of negotiated plea agreements essential to
the efficient disposition of criminal cases in Allegheny County.
This Order is entered under the same rational[e] as set forth in
[] Ha[i]nesworth[, supra], decided on December 12, 2013.
Order, 1/9/14, at 2 (paragraph breaks and numbering omitted).
The Commonwealth timely filed a Notice of Appeal. In response,
Judge Machen ordered the Commonwealth to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The Commonwealth
timely filed a Concise Statement, after which Judge Machen issued a
Pa.R.A.P. 1925(a) Opinion, stating as follows:
During the writing of this Opinion, two decisions have been
published by the Superior Court[,] which elaborate [upon] and
clarify the Hainesworth holding. Based upon the most recent
case, [] Partee[, supra], decided on February 20, 2014, it [is]
now this court’s Opinion that the fact that [Stollenwerk] had
violated his probation distinguishes the instant case from that of
Hainesworth[,] and that “having failed to abide by the terms of
the plea bargain, that agreement is no longer in effect, and
hence, [Stollenwerk] is not entitled to specific performance.
Hainesworth is not controlling.” [] Partee, [86 A.3d at 250].
Trial Court Opinion, 2/26/14, at 2.
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On appeal, the Commonwealth presents the following issues for our
review:
I. Whether the court below correctly concluded that its
initial [January 9, 2014] Order, entered in reliance on
[the] Superior Court’s Opinion in … Hainesworth, could
not stand in that the circumstances of this case were
governed by the Court’s subsequent Opinion in []
Partee, which distinguished Hainesworth in a case
where the defendant had violated the probation imposed
under his plea agreement?
II. Whether no relief is available for a defendant whose
Megan’s Law registration requirement is changed due to
statutory changes, in that the registration requirement is
a collateral consequence of conviction?
Brief for the Commonwealth at 5.
Because the Commonwealth’s issues implicate a pure question of law,
our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Raban, 85 A.3d 467, 468 (Pa. 2014).
The Commonwealth contends that Judge Machen correctly opined in
his Pa.R.A.P. 1925(a) Opinion that, pursuant to Partee, Stollenwerk is not
entitled to specific enforcement of the ten-year sexual offender registration
period, as agreed to in his negotiated plea agreement, because his
subsequent violation of his probation abrogated the plea agreement. See
Brief for the Commonwealth at 20-21. We agree, and conclude that Partee
controls our disposition.
In Partee, the appellant entered a negotiated nolo contendere plea to
several sexual offenses, including indecent assault of a minor less than
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thirteen years of age. Partee, 86 A.3d at 246. The trial court sentenced
the appellant to six months of intermediate punishment, followed by four
years of probation. Id. At the time of the plea, the indecent assault of a
minor less than thirteen years of age charge carried a ten-year sexual
offender registration period. Id. at 248-49.
A few years after entering his plea, the appellant violated his probation
and was resentenced. Id. at 246. Following the enactment of SORNA, the
appellant received notification that pursuant to the statute, he was now
required to register as a sexual offender for life, rather than the ten-year
period imposed in connection with his plea agreement. Id. In response, the
appellant filed a “petition for habeas corpus and/or seeking enforcement of a
plea agreement,” seeking to avoid the retroactive application of the SORNA
registration requirements. Id. The trial court treated the appellant’s filing
as a PCRA petition and dismissed it, after which the appellant filed an appeal
to this Court. Id.
As an initial matter, the Partee Court held that the trial court
improperly treated the appellant’s petition to enforce the plea agreement as
a PCRA petition. Id. at 247. In addressing whether the appellant was
entitled to specific enforcement of the ten-year registration period, this
Court first observed that “[w]hile [the ten-year registration period] was not
an explicit term of the negotiated plea, it is apparent that [a]ppellant’s
negotiated plea agreement was structured so that he would only be subject
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to a ten-year rather than a lifetime reporting requirement ….” Id. at 249.
The Court stated that “[u]nder our reasoning in Hainesworth, [a]ppellant
arguably would be entitled to the benefit of that bargain.” Id. Nonetheless,
the Court held that the appellant was not entitled to specific performance
because he had abrogated his plea agreement by violating his probation.
Id. at 249-50. In so holding, the Court agreed with the Commonwealth’s
argument that
[a]ppellant cannot seek specific performance of the underlying
plea agreement[,] as there is no longer a plea bargain to
enforce. [The Commonwealth] cites Commonwealth v.
Parsons, 2009 PA Super 66, 969 A.2d 1259 (Pa. Super. 2009)
[(en banc)], for the proposition that “where the original sentence
evolved from a plea bargain, and a defendant later violates his
parole or probation, the defendant has effectively abrogated the
underlying plea bargain.” Id. at 1270 n.6. “[U]pon revocation
[of probation,] the sentencing alternatives available to the court
shall be the same as were available at the time of initial
sentencing[.]” 42 Pa.C.S. § 9771[(b)].
As our Supreme Court held in Commonwealth v.
Wallace, 582 Pa. 234, 870 A.2d 838, 842-43 (Pa. 2005), where
probation is violated, the trial court is free to impose any
sentence permitted under the Sentencing Code and is not
restricted by the bounds of a negotiated plea agreement
between a defendant and prosecutor.
Partee, 86 A.3d at 249-50. The Partee Court concluded that, “having
failed to abide by the terms of the plea bargain, [the appellant’s plea]
agreement is no longer in effect, and hence, [a]ppellant is not entitled to
specific performance. Hainesworth is not controlling.” Id. at 250. As a
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result, the Court ruled that the appellant was required to register as a sexual
offender for life under SORNA. Id.9
Like the situation in Partee, Stollenwerk violated his probation after
the trial court had sentenced him pursuant to the guilty plea agreement,
and, also pursuant to the plea agreement, imposed a ten-year registration
requirement.10 See N.T., 10/21/09, at 4-5. Stollenwerk effectively
abrogated the plea agreement by violating his probation, and he is therefore
not entitled to the benefit of the ten-year registration period contemplated
within the plea agreement; rather, Stollenwerk must register as a sexual
offender for life, pursuant to SORNA. See Partee, 86 A.3d at 249-50.
We are unpersuaded by Stollenwerk’s attempts to avoid the
application of Partee. Stollenwerk points out the panel in Partee’s
observation that “[the a]ppellant [did] not address the Commonwealth’s
argument or the legal effect of his probation violation upon the original plea
agreement.” Brief for Appellee at 7 (quoting Partee, 86 A.3d at 250). The
Court’s observation in this regard is irrelevant and does not negate its clear
holding that, because the appellant had violated his probation, he thereby
abrogated his plea agreement and was not entitled to specific performance
9
The Supreme Court of Pennsylvania denied allowance of appeal in Partee
on July 17, 2014. Commonwealth v. Partee, 2014 Pa. LEXIS 1748 (Pa.
2014).
10
Under Partee, it is of no moment that the ten-year registration period in
this case was not an explicit term of Stollenwerk’s negotiated plea. Partee,
86 A.3d at 249.
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of the ten-year registration period that was part of the plea agreement.
Partee, 86 A.3d at 249-50.
Finally, concerning the Commonwealth’s second issue on appeal, we,
like the Court in Hainesworth, decline the Commonwealth’s invitation to
specifically address whether sexual offender registration requirements under
SORNA must be viewed as collateral consequences of a conviction. See
Hainesworth, 82 A.3d at 448, 449 n.4 (stating that “we do not reach the
question of whether the registration requirement contained in SORNA is a
collateral consequence of Hainesworth’s conviction[,]” as “the dispositive
question is whether registration was a term of the bargain struck by the
parties to this appeal.”); see also Nase, 2014 PA Super 194, at *15
(stating that “Hainesworth demonstrates 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.”).
Based upon the foregoing, we reverse the January 9, 2014 Order
directing that Stollenwerk must register as a sexual offender for only ten
years pursuant to his plea agreement, and remand the case for the trial
court to impose the lifetime registration requirement pursuant to SORNA.
Order reversed; case remanded for further proceedings consistent with
this Memorandum; jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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