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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
v. :
:
JUAN MIGUEL ACEVEDO :
:
: No. 2984 EDA 2015
Appeal from the Order August 31, 2015
In the Court of Common Pleas of Monroe County
Criminal Division No(s): CP-45-CR-0002532-2010
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 02, 2016
The Commonwealth of Pennsylvania appeals from the August 31, 2015
Order entered in the Court of Common Pleas of Monroe County granting
Juan Miguel Acevedo’s (“Acevedo”) Motion to Enforce Plea Agreement.
Finding no merit to the Commonwealth’s claims on appeal, we affirm.
On September 5, 2010, Acevedo was charged with one count each of
Statutory Sexual Assault, Aggravated Indecent Assault—Complainant Less
than 16 Years of Age, Interference with Custody of Children, Unlawful
Contact with Minor—Sexual Offenses, Involuntary Sexual Intercourse—
*
Former Justice specially assigned to the Superior Court.
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Complainant Less than 16 Years of Age, and two counts of Indecent
Assault—Complainant Less than 16 Years of Age.1
On October 4, 2011, the Commonwealth presented Acevedo with a
plea agreement. Noting that Acevedo had similar charges pending at No.
2015-2011 and 2067-2011, the Commonwealth agreed to an open guilty
plea to one count of Unlawful Contact with Minor, a second degree felony, at
No. 2532-2010, and two counts of Statutory Sexual Assault, 2 one each at
Nos. 2015-2011 and 2067-2011.
The Commonwealth noted in the plea offer that there was no
sentencing agreement. It also informed Acevedo that,”[a]bsent a finding
that [Acevedo] would be classified as a [sexually violent predator], he would
be required to register under Megan’s law for 10 years (as opposed to a
lifetime registration for aggravated indecent assault, or a conviction for more
than one Megan’s law offense).” Plea Offer, 10/4/11. In exchange for this
plea, the Commonwealth agreed to nolle pros the remaining charges.
On December 27, 2011, Acevedo pled guilty to one count of Unlawful
Contact with Minor and two counts of Statutory Sexual Assault.
On March 22, 2012, the court sentenced Acevedo to a term of 9-36
months’ incarceration on the Unlawful Contact with Minor charge, and two
1
18 Pa.C.S. § 3122.1, 3125(a)(8), 2904(a), 6318(a)(1), 3123(a)(7),
3126(a)(8), respectively.
2
18. PaC.S. § 3122.1.
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terms of 12-26 months incarceration on the Statutory Sexual Assault
charges, to be served consecutively. The court ordered Acevedo to submit
to a sexual offender evaluation, and to comply with the registration
requirements of Megan’s Law3 for a period of 10 years.
Pennsylvania enacted the Sex Offender Registration and Notification
Act (“SORNA”) on December 20, 2011, and it became effective on December
20, 2012. See 42 Pa.C.S. § 9799.1 et seq. SORNA’s registration
requirements apply to persons still under supervision for relevant offenses as
of December 20, 2012. Id. at § 9799.13(2). SORNA reclassified the
offenses requiring registration as a sex offender, and the length of the
required registration. Id.
SORNA reclassified the offenses of Unlawful Contact with Minor and
Statutory Sexual Assault as Tier II sexual offenses, both of which carry 25-
year registration periods. Id. §§ 9799.14(c)(5); 9799.14(c)(1.1); and
9799.15(a)(2). Accordingly, since Acevedo was still incarcerated at the time
SORNA became effective, Acevedo was required to register for his lifetime
rather than 10 years. 4
3
42 Pa.C.S. § 9795.1.
4
Acevedo faced a lifetime registration requirement pursuant to 40 Pa.C.S. §
9799.14(d)(16), which classifies as a Tier III sexual offense “[t]wo or more
convictions of offenses listed as Tier I or Tier II sexual offenses.” See 42
Pa.C.S. § 9799.14(d)(16); see also id. at § 9799.15(a)(3).
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On October 6, 2014, Acevedo filed a pro se “Motion for Evidentiary
Hearing [and] for Declaration that Megan’s Law [is] Unconstitutional [and]
Unenforceable.” The trial court initially treated this Motion as an application
for relief pursuant to the Post Conviction Relief Act5 (“PCRA”), and appointed
counsel for Acevedo. Counsel withdrew the PCRA petition without prejudice
and, on March 16, 2015, filed a Petition for Habeas Relief and/or Petition
Seeking Enforcement of Plea Agreement, in which Acevedo challenged the
retroactive enforcement of SORNA. Following a hearing, the court granted
Acevedo’s Petition on August 31, 2015, thereby enforcing Acevedo’s plea
agreement.
The Commonwealth timely appealed and complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) Statement.
The Commonwealth raises the following four issues for our review:
1. Did the [t]rial [c]ourt err in finding that the mere act of
advising a defendant of collateral consequences created a
binding contractual obligation on the part of the
Commonwealth when such notification was required by
law?
2. Did the [t]rial [c]ourt err in finding that the specific
length of the registration, which was a collateral
consequence, was within the control of the District
Attorney, when at the time of the plea the only possible
registration periods allowed by law were either 10 years or
life?
5
42 Pa.c.S. §§ 9541-9546.
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3. Did the [t]rial [c]ourt err in finding that the state
cannot, in the valid exercise of its police powers, modify
the terms of an existing contract?
4. Did the [t]rial [c]ourt err in modifying the period of
registration contrary to the plan language of 42 Pa.C.S.A.
9799.20?
Commonwealth’s Brief at 4.
In its first issue, the Commonwealth avers that the trial court erred in
finding that Acevedo’s 10-year sex offender registration requirement was a
specifically bargained-for term of his plea agreement. The Commonwealth
argues that, although it and the trial court notified Acevedo of his 10-year
registration requirement at the time of Acevedo’s sentencing, “[t]he simple
act of notifying a defendant of his duty to register, when such notification is
required by statute, does not then turn that notification into a bargained for
term of a contract.” Commonwealth’s Brief at 10-11.
Our standard of review is as follows:
In determining whether a particular plea agreement has
been breached, we look to what the parties to this plea
agreement reasonably understood to be the terms of the
agreement. Such a determination is made based on the
totality of the surrounding circumstances, and [a]ny
ambiguities in the terms of the plea agreement will be
construed against the [Commonwealth].
Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en
banc) (internal citations and quotations omitted).
In Hainesworth, the defendant pled guilty to Statutory Sexual
Assault, Indecent Assault, and Criminal Use of a Communication Facility. Id.
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at 445. None of the offenses to which Hainesworth pled guilty required
registration as a sex offender. Id. at 446. The Commonwealth
acknowledged this fact on the record in open court. Id. The trial court
accepted the plea, and Hainesworth did not register as a sex offender. Id.
However, after SORNA became effective, Hainesworth’s Indecent Assault
offense was reclassified as a Tier II sexual offense, requiring him to register
for 25 years. Id. Because Hainesworth was still on probation when SORNA
became effective, he filed a motion seeking termination of his supervision to
avoid SORNA’s registration requirements. Id. Although the trial court
denied his Motion, it nevertheless issued an order stating that Hainesworth
was not subject to the registration requirements of SORNA. Id.
On appeal, this Court observed that plea agreements must be
analyzed under the principles of contract law. Id. at 447. We noted that
“[t]he terms of plea agreements are not limited to the withdrawal of
charges, or the length of a sentence. Parties may agree to—and seek
enforcement of—terms that fall outside these areas.” Id. at 449. We
recognized that “[r]egistration obviously has serious and restrictive
consequences for the offender, including prosecution if the requirement is
violated,” and held that the plea agreement should be specifically enforced
under principles of contract law, including fundamental fairness. Id. at 449;
(stating that plea-bargaining is a crucial element of the criminal justice
system, as nearly ninety-four percent of state convictions are the result of
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guilty pleas and that “it is critical that plea agreements are enforced, to
avoid any possible perversion of the plea bargaining system”) (internal
citations omitted). This court concluded that Hainesworth’s guilty plea was
premised on the withdrawal of all charges requiring registration (evidenced
both in the Plea Colloquy and the Notes of Testimony) and that non-
registration was, therefore, a term of the plea agreement requiring specific
enforcement. Id. at 447-48.
Recently, in Commonwealth v. Nase, 104 A.3d 528, 534 (Pa. Super.
2014) (en banc), this Court held that the defendant expressly agreed to
plead guilty to unlawful contact with a minor so as to be subject to the then-
extant ten-year registration period. Therefore, we concluded the registration
consequences were unequivocally part of his plea negotiation and
arrangement to be specifically enforced. Id. at 535.
In the instant matter, following a hearing, and pursuant to the
holdings in Hainesworth, and Nase, the trial court found that “the ten-year
registration requirement was part of [Acevedo’s] plea bargain. Therefore, he
is entitled to the benefit of his bargain, and is not subject to additional
registration beyond that envisioned by his plea agreement.” Trial Ct. Order,
8/31/15.
We agree with the trial court. The record reflects that the
Commonwealth offered Acevedo a plea agreement wherein he would plead
guilty to Unlawful Contact with Minor, and submit to a 10-year sexual
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offender registration requirement. In doing so, Acevedo forfeited his right to
a trial on six other charges, which, if convicted, could expose him to a
lifetime registration requirement. The Commonwealth, aware of the
potential lifetime registration obligation, used this information to highlight
the benefit of entering into the negotiated plea agreement. See Plea Offer
(”[a]bsent a finding that [Acevedo] would be classified as a [sexually violent
preditor], he would be required to register under Megan’s law for 10 years
as opposed to a lifetime registration for aggravated indecent assault, or a
conviction for more than one Megan’s law offense.”). See also N.T.,
7/27/15, at 15 (where Acevedo’s counsel argues that “[t]he DA’s Office even
acknowledge[d] [in the plea offer] that if he goes to trial and he’s
unsuccessful, he’s facing lifetime registration requirements.”).
Furthermore, Acevedo testified at the hearing on his motion that he
understood at the time the Commonwealth offered him a plea agreement
that if he were unsuccessful at trial, he would have a significantly longer
period of required registration. Id. at 11. He specifically testified that when
he entered his guilty plea, his “understanding was ten years of a registration
requirement[,]” and that “through the plea deal, plea agreement with the
ten year registration, [ ] like that was in my best interest as opposed to
pursuing it all the way up to trial.” Id. at 13-14.
We agree with the trial court that the 10-year registration requirement
was a bargained-for term of Acevedo’s plea. The Commonwealth’s offer of a
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10-year registration period induced Acavedo to forego his right to a trial on
all of the charges pending against him. The application of SORNA’s
registration requirements would abrogate the promise made to Acevedo and
breach the agreement between the parties. See Hainesworth, 82 A.3d at
449.
Thus, recognizing the magnitude of SORNA registration, the essential
role of plea agreements in the criminal justice system, and the need to
preserve the Commonwealth’s integrity in its dealings, we agree with the
trial court that Acevedo’s knowing and voluntary plea agreement must be
specifically enforced. See Commonwealth v. Fruehan, 557 A.2d 1093,
1094 (Pa. Super. 1998) (stating that “[i]f a trial court accepts a plea
bargain, the defendant who has given up his constitutional right to trial by
jury must be afforded the benefit of all promises made by the district
attorney.”); see also Hainesworth, 82 A.3d at 447-49.
In its next issue, the Commonwealth avers that the trial court erred in
finding that the length of Acevedo’s registration requirement was within the
control of the District Attorney, as it is fixed by law. The Commonwealth
also argues that, as a collateral consequence,6 the “sexual offender
registration requirement simply cannot be considered a ‘term’ of any plea
6
A collateral consequence has been defined as a civil requirement over
which a sentencing judge has no control. Commonwealth v. Abraham, 62
A.3d 343, 350 (Pa. 2012).
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agreement, specifically including the period of registration, which [is]
determined by statute.” Commonwealth’s Brief at 24 (emphasis in original).
These arguments are without merit. First, it is undisputed that the
length of a SORNA registration requirement is statutorily mandated.
However, it is within the Commonwealth’s sole discretion to determine
whether a plea offer should be made and, if so, which offenses the offer
should include. In deciding whether to offer a defendant a plea agreement,
the Commonwealth is free to consider the severity of each charge, the likely
sentence carried by each offense, and the collateral consequence of each
charge. Thus, as aptly stated by Acevedo, “the Commonwealth may . . .
fashion a plea offer to a defendant based on the offenses in which the
Commonwealth believes best fits the situation, which for most sex offenses,
includes a determination of what, if any, SORNA registration requirements
should be applied.” Acavedo’s Brief at 9-10.
Moreover, it is well-established that our courts can, and do, consider
sexual offender registration a term of plea agreements.7 See, e.g.
Hainesworth, 82 A.3d at 449 (stating the “dispositive question is whether
registration was a term of the bargain struck [in the plea agreement] . . .”);
Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014) (holding that
but for the defendant’s violation of probation, the new registration
7
This point is, in fact, conceded by the Commonwealth in its Brief. See
Commonwealth’s Brief at 35.
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requirements would not have been applied retroactively since the defendant
specifically negotiated a plea that carried only a 10 year registration
requirement); see also Nase, supra.
Next, the Commonwealth claims the trial court erred in finding that the
state cannot modify the terms of an existing contract. The Commonwealth
argues that the state can, in the valid exercise of its police powers, modify
the terms of an existing contract, especially when the underlying law in
effect at the time the parties entered into the contract is thereafter declared
unconstitutional. Commonwealth’s Brief at 32. We find this argument
waived.
The Commonwealth has not cited to any relevant cases in support of
its argument. Rather, it relies extensively on cases based on civil contracts.
None of the cases cited by the Commonwealth acknowledge the fundamental
differences between civil contracts entered into by private parties and plea
agreements between the Commonwealth and a criminal defendant. The
Commonwealth overlooks that criminal defendants who enter into plea
agreements are afforded due process protections to which parties to a civil
contract are not entitled.8 See generally U.S. Const. amend. VI.; Pa.
Const., Article I, §§ 6, 9. Because the Commonwealth failed to cite to
8
Moreover, to permit the trial court to modify the terms of a valid and
enforceable plea agreement has enormous potential to create a chilling
effect for all future plea agreements, especially those that either directly
pertain to SORNA or could be implicated by SORNA.
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relevant case law, this arguments is waived. See Pa.R.A.P. 2119(a);
Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa. Super. 2009) (claim
is waived if there is no citation to relevant authority).
Last, the Commonwealth claims, again without citation to authority,
that the trial court cannot “‘modify the requirements’ of registration
statutorily imposed on a defendant and has ‘no authority to relieve’ him from
his duty to register as [SORNA] provides.” Commonwealth’s Brief at 42.
This claim is waived. See Pa.R.A.P. 2119(a); Brougher, supra.
Order affirmed. Jurisdiction relinquished.
Judge Bender joins the memorandum.
PJE Stevens files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2016
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