J-A19005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN M. MAGEE,
Appellant No. 979 WDA 2014
Appeal from the Order Entered May 27, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0017074-2010
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 18, 2015
Appellant, Kevin M. Magee, appeals from the May 27, 2014 order
denying his petition to enforce his plea agreement. After careful review, we
vacate the order and remand for reconsideration of Appellant’s petition.
In its 1925(a) opinion, the trial court provides as follows.
On June 22, 2011, [Appellant] pled guilty to one count of
Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7); one count of
Unlawful Contact with Minor, 18 Pa.C.S.A. § 6318 (a)(1); one
count of Endangering the Welfare of Children, 18 Pa.C.S.A. §
4304(a)(1); one count of Child Pornography, 18 Pa.C.S.A. §
6312(d)(1); one count of Indecent Assault, 18 Pa.C.S.A. §
3126(a)(7); one count of Indecent Exposure, 18 Pa.C.S.A. §
3127(1); and one count of Corruption of Minors, 18 Pa.C.S.A. §
6301(a)(1). Pursuant to the terms of the negotiated plea
agreement, this court sentenced [Appellant] to a period of 11 ½
to 23 months confinement with eligibility for both alternative
housing and work release; seven (7) years concurrent probation;
continued counseling; no contact with the “Mother and Child”
and a ten (10) year Megan’s Law Registration.
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On December 20, 2012, the revisions to the registration
requirements under SORNA[1] became effective. After
notification from the Probation Department of the new reporting
requirements, [Appellant] filed a Petition to Enforce Plea
Agreement to which the Commonwealth filed an Answer. After
review of the pleadings, this court agreed that the specific ruling
in Commonwealth vs. Hainesworth, 82 A.3d 444 (Pa. Super.
2013)[,] did not apply and the Petition was denied on May 27,
2014. This timely appeal followed.
Since the filing of this appeal, there have been cases that
have further clarified the Superior Court’s line of reasoning in
similar situations. Most recently (September 9, 2014) an
Opinion was issued in Commonwealth vs. Nase, [104] A.3d
[528], [(Pa. Super. 2014)], which is on point to the instant case.
After reviewing Nase, it is clear that there are two specific
questions that must be answered to determine if [Appellant] is
entitled to enforcement of the plea agreement. 1) Was the
registration/reporting requirement and specifically, the length of
that reporting a part of the plea bargain; and 2) has [Appellant]
[] complied with all terms of his sentence so as to entitle him to
specific performance.
On the date of the Guilty Plea Hearing, the Commonwealth
specifically points out that there is a “ten year registration
requirement” and [Appellant] had “filled out the paperwork for
that[.]” The court specifically asked the defense counsel if he
agreed. (Guilty Plea Transcript, p. 5). At the Sentencing
Hearing, the court enunciates each of the parts of the sentence
and ends with asking the Commonwealth to put “on the record
what his requirements are” and incorporated “the Megan’s Law
Colloquy that was signed on the 22nd of June by both [Appellant]
and [Appellant]’s counsel.” The court ends with “that’s the
agreement, correct?” to which all parties say yes. (Sentencing
transcript, p. 14-15).
Trial Court Opinion (T.C.O.), 9/12/2014, at 1-3.
Appellant presents four issues on appeal.
____________________________________________
1
Sex Offender Registration and Notification Act. 42 Pa.C.S. §§ 9799.10, et
seq.
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A. [Whether] [t]he Trial Court erred and/or abused its discretion
in denying Appellant’s Petition to Enforce Plea Agreement
without an evidentiary hearing.
B. [Whether] [t]he Trial Court erred and/or abused its discretion
by determining, in derogation of the Ex Post Facto, Due
Process and Contracts Clauses of the Constitutions of the
United States of America and the Commonwealth of
Pennsylvania, that the terms of Appellant’s negotiated plea
agreement, including and referring specifically to the implied
and express terms pertaining to sex offender registration,
should not be specifically enforced.
C. [Whether] [t]he Trial Court erred and/or abused its discretion
in determining that Appellant should be required to register
as a [Third] Tier, life-time sex offender pursuant to SORNA,
42 Pa.C.S. § 9799, et seq., in contravention of the express
and implied terms of the negotiated plea agreement, which
was entered into prior to the effective date of SORNA and
required a ten (10) year registration period.
D. [Whether] [t]he Trial Court erred as a matter of law in failing
to determine that SORNA’s life-time registration requirements
were illegally applied to Appellant as those life-time
registration requirements were clearly inapplicable to
Appellant where, on or after December 20, 2012, the effective
date of SORNA, Appellant was not, and never had been,
under supervision for any offense requiring life-time
registration pursuant to the express provisions of SORNA.
Appellant’s Brief at 3.
In consideration of Appellant’s initial issue, the trial court ultimately
concludes that its ruling had been made in error.
After a review of the record and the pleadings in light of
the most recent cases decided by the Superior Court, it is this
court’s opinion that the reporting/registration requirement of ten
years was an express part of the plea agreement and that the
defendant has complied with all parts of the agreement, entitling
him to the benefit of his bargain. As such, this court would ask
for the Superior Court to reverse the order denying relief and
remand the case for an appropriate Order.
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T.C.O. at 3.
In Hainesworth, the appellant was originally charged with three
counts of statutory sexual assault; two counts of aggravated indecent
assault; three counts of indecent assault; and two counts of criminal use of a
communication facility. Hainesworth, 82 A.3d at 445. At the time, the
only offense that carried a Megan’s Law reporting requirement was
aggravated indecent assault, which the Commonwealth withdrew in order to
induce a plea. Id. Hainesworth entered a negotiated plea of guilty to three
counts of statutory sexual assault, three counts of indecent assault, and one
count of criminal use of a communication facility. Id.
The General Assembly subsequently enacted SORNA, thereby imposing
a twenty-five year registration requirement for Tier II sexual offenses.
Under SORNA, sexual assault is categorized as a Tier II sexual offense.
Hainesworth sought the termination of his probation in order to avoid this
new registration requirement, which the court denied. Id. at 446. However,
the court’s order stated that Hainesworth was not subject to the registration
requirements of SORNA. Id. The lower court provided the following
rationale for not imposing the new requirements. “Application of [SORNA] to
[Hainesworth] violates due process of law, fundamental fairness, and
provisions of the negotiated plea agreement entered into between
[Hainesworth] and the government. It would also destroy the process of
negotiated plea agreements essential to the efficient disposition of criminal
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cases in Westmoreland County.” Id. at 46-47 (citation to the record
omitted).
On appeal, this Court upheld the lower court’s ruling, concluding that,
“the parties … entered into a plea bargain that contained a negotiated term
that Hainesworth did not have to register as a sex offender. As such, it was
not error for the trial court to order specific enforcement of that bargain.”
Id. at 450. In Nase, we clarified that, “because [Hainesworth] specifically
negotiated with the Commonwealth to remove all sex offenses that required
registration, requiring him to register would deprive him of the benefit of his
bargain.” Nase, 104 A.3d at 531.
Addressing the applicability of Hainesworth, this Court recently held,
in Nase, that a ten-year registration requirement was a bargained-for term.
Nase, 104 A.3d at 530. Nase originally entered a guilty plea to statutory
sexual assault and unlawful contact with a minor. Id. at 528. In exchange
for his plea, the Commonwealth nolle prossed several other sexual offense
charges. Id. However, in order to impose a ten year registration
requirement under Megan’s Law, the plea bargain specifically included the
offense of unlawful contact with a minor. Subsequently, SORNA became
effective, increasing the unlawful contact with a minor’s registration
requirement from ten to twenty-five years. Id. at 529. On appeal from the
denial of his petition to avoid additional registration requirements, this Court
found that Nase was entitled to specific performance for the following
reason:
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To the extent that the Commonwealth asserts that registration
was not part of the plea agreement, such a position is belied by
the fact that [the] [a]ppellant expressly agreed to plead guilty to
unlawful contact with a minor so as to be subject to the then-
extant registration period. Thus, registration consequences were
unequivocally part of the plea negotiations and arrangement.
Id. at 534.
In the case sub judice, Appellant’s plea bargain included a ten-year
Megan’s Law registration requirement. Initially, the trial court had
determined that Hainesworth did not apply because the ten-year
registration requirement was not bargained for, but was a collateral
consequence to the plea. However, our recent holding in Nase clarifies the
matter in recognizing that certain registration consequences may be a
negotiated part of a plea bargain. Therefore, we agree with the trial court,
that its decision, based on a narrow reading of Hainesworth, which we
rejected in Nase, was made in error. Accordingly, we vacate the order and
remand for reconsideration of Appellant’s petition.
In light of the foregoing disposition, we do not reach Appellant’s other
issues.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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J-A19005-15
Date: 8/18/2015
-7-
Com. v. Magee, K.
Combined Opinion