Commonwealth, Aplt. v. Grace, A.

[J-29A-2016, J-29B-2016, J-29C-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., EAKIN, J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 30 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court at No. 1420 MDA 2013, dated
: April 14, 2014, Affirming the Order of
v. : the York County Court of Common
: Pleas, Criminal Division, at No. CP-67-
: CR-0001486-2010, dated July 19, 2013.
GABRIEL J. MARTINEZ, :
: ARGUED: March 8, 2016
Appellee :

COMMONWEALTH OF PENNSYLVANIA, : No. 32 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court at No. 1522 MDA 2013 dated
: April 14, 2014 Affirming the Order of the
v. : York County Court of Common Pleas,
: Criminal Division, at No. CP-67-CR-
: 0000227-2011, dated July 31, 2013.
ADAM MACKENZIE GRACE, :
: ARGUED: March 8, 2016
Appellee :

COMMONWEALTH OF PENNSYLVANIA, : No. 34 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court at No. 1422 MDA 2013 dated
: April 15, 2014 Affirming the Order of the
v. : York County Court of Common Pleas,
: Criminal Division, at No.CP-67-CR-
: 0006313-2005, dated July 19, 2013.
WAYNE PATRICK SHOWER, :
: ARGUED: March 8, 2016
Appellee :

OPINION
JUSTICE BAER DECIDED: September 28, 2016
In the three consolidated appeals presently before this Court, all of which

originated in the Court of Common Pleas of York County before the same judge, the

Superior Court applied its en banc decision in Commonwealth v. Hainesworth, 82 A.3d

444 (Pa. Super. 2013) (en banc), and concluded that Appellees are entitled to specific

performance of their plea agreements, i.e., Appellees’ sexual offender registration

requirements are governed by Megan’s Law,1 which was in effect when Appellees

entered their plea agreements, and not by the Sex Offender Registration and

Notification Act (“SORNA”),2 which superseded Megan’s Law. We granted allowance of

appeal to examine Hainesworth and its applicability to Appellees’ cases. Consistent

with the Superior Court’s decision in Hainesworth, we hold that Appellees are entitled to

the benefit of the bargains struck with the Commonwealth when the trial court accepted

the parties’ plea agreements. Accordingly, we affirm.

I. Background

A. Appellee Wayne Patrick Shower (“Shower”)

The Commonwealth charged Shower with aggravated indecent assault, 18

Pa.C.S. § 3125(a)(7), and indecent assault, 18 Pa.C.S. § 3126(a)(7). The

Commonwealth and Shower entered into a plea agreement. In exchange for Shower’s

guilty plea to indecent assault, the Commonwealth withdrew the aggravated-indecent-

assault charge and recommended that Shower receive a sentence of 11½ to 23 months

of imprisonment. The trial court accepted the plea agreement and sentenced Shower

on June 12, 2006.

1
42 Pa.C.S. §§ 9791-9799.9 (expired).
2
42 Pa.C.S. §§ 9799.10–9799.41.

[J-29A-C-2016] - 2
 Megan’s law was in effect when the trial court accepted the plea agreement.

Under Megan’s Law, an aggravated-indecent-assault conviction triggered a lifetime of

registering as a sexual offender. 42 Pa.C.S. § 9795.1(b)(2) (expired). However,

because the Commonwealth withdrew that charge and Shower was convicted of

indecent assault,3 Megan’s Law required Shower to register as a sexual offender for

only ten years. 42 Pa.C.S. § 9795.1(a)(1) (expired).

B. Appellee Gabriel J. Martinez (“Martinez”)

The Commonwealth charged Martinez with one count each of involuntary deviate

sexual intercourse, 18 Pa.C.S. § 3123(a)(7), statutory sexual assault, 18 Pa.C.S.

§ 3122.1(a), and indecent assault, 18 Pa.C.S. § 3126(a)(7). Martinez and the

Commonwealth entered into a plea agreement. In exchange for Martinez pleading

guilty to indecent assault, the Commonwealth agreed to nolle pros the charges of

involuntary deviate sexual intercourse and statutory sexual assault and recommended

that Martinez be sentenced to five years of probation. The trial court accepted the plea

agreement and sentenced Martinez accordingly on August 27, 2010.

Megan’s law was in effect when the trial court accepted the plea agreement, and

pursuant to Megan’s Law, a conviction for involuntary deviate sexual intercourse

obligated the offender to register for life as a sexual offender. 42 Pa.C.S. § 9795.1(b)(2)

(expired). Because the Commonwealth nolle prossed that charge, Martinez’s indecent-

3
A judgment of conviction follows a trial court’s determination that a defendant is
knowingly and voluntarily entering a guilty plea and the court’s acceptance of the
defendant’s plea. See Eisenberg v. Com., Dep’t of Pub. Welfare, 516 A.2d 333, 335
(Pa. 1986) (quoting favorably Commonwealth v. Ferguson, 44 Pa.Super. 626, 628
(1910), for the proposition that a judgment of conviction follows upon pleas of guilty and
nolo contendere).

[J-29A-C-2016] - 3
assault conviction required him to register as a sexual offender for only ten years

pursuant Megan’s Law. 42 Pa.C.S. § 9795.1(a)(1) (expired).

C. Appellee Adam MacKenzie Grace (“Grace”)

The Commonwealth charged Grace with one count each of unlawful contact with

a minor, 18 Pa.C.S. § 6318(a)(1), corruption of minors, 18 Pa.C.S. § 6301(a)(1), and

indecent assault, 18 Pa.C.S. § 3126(a)(8). The Commonwealth and Grace entered into

a plea agreement. Grace agreed to plead guilty to corruption of minors and indecent

assault. In exchange for Grace’s guilty pleas, the Commonwealth nolle prossed the

unlawful-contact-with-a-minor charge and recommended an aggregate sentence of

three years of probation. On March 22, 2011, the trial court accepted the plea

agreement and sentenced Grace.

Megan’s law was in effect when the trial court accepted the parties’ plea

agreement. Neither of Grace’s convictions required him to register as a sexual offender

under Megan’s Law.4 However, had Grace been convicted of unlawful contact with a

minor, Megan’s Law would have mandated that he register as a sexual offender for ten

years. 42 Pa.C.S. § 9795.1(a)(1) (expired).

II. SORNA

After the trial court accepted the parties’ plea agreements and sentenced

Appellees, the General Assembly passed SORNA as Act 111 of 2011, signed

4
Shower and Martinez were convicted of indecent assault under 18 Pa.C.S.
§ 3126(a)(7). Generally, a violation of that statutory subsection is graded as a first-
degree misdemeanor. 18 Pa.C.S. § 3126(b)(3). Grace was convicted of indecent
assault pursuant to 18 Pa.C.S. § 3126(a)(8), which is graded as a misdemeanor of the
second degree. 18 Pa.C.S. § 3126(b)(1). Megan’s Law attached a ten-year registration
requirement to an indecent-assault conviction when the offense was graded as a first-
degree misdemeanor or higher. 42 Pa.C.S. § 9795.1(a)(1) (expired). Thus, unlike
Shower and Martinez, Grace’s indecent-assault conviction did not require him to
register as a sexual offender under Megan’s Law.

[J-29A-C-2016] - 4
December 20, 2011. SORNA provided for the expiration of Megan’s Law as of

December 20, 2012, and for the effectiveness of SORNA on the same date. While a

comprehensive review of SORNA is unnecessary for purposes of the appeals presently

before this Court,5 it is important to highlight that SORNA “added crimes to the list

defined as sexually violent offenses, and established a three-tiered system for

classifying such offenses and their corresponding registration periods.” Commonwealth

v. Farabaugh, 128 A.3d 1191, 1192 (Pa. 2015). Tier I offenses require registration for

15 years; Tier II offenses mandate 25 years of registration; and Tier III offenses obligate

an offender to register for his or her lifetime. 42 Pa.C.S. § 9799.15(a)(1), (2), and (3),

respectively.

Regarding its applicability to convicted criminals, SORNA provides, in pertinent

part:

The following individuals shall register with the Pennsylvania State Police
as provided in sections 9799.15 (relating to period of registration), 9799.19
(relating to initial registration) and 9799.25 (relating to verification by
sexual offenders and Pennsylvania State Police) and otherwise comply
with the provisions of this subchapter:

***

(2) An individual who, on or after the effective date of this section, is,
as a result of a conviction for a sexually violent offense, an inmate in
a State or county correctional institution of this Commonwealth,
including a community corrections center or a community contract
facility, is being supervised by the Pennsylvania Board of Probation
and Parole or county probation or parole, is subject to a sentence of
intermediate punishment or has supervision transferred pursuant to
the Interstate Compact for Adult Supervision in accordance with
section 9799.19(g).

***

5
This Court provided a thorough review of SORNA’s history and details in In re J.B.,
107 A.3d 1, 3-9 (Pa. 2014).

[J-29A-C-2016] - 5
 (3) An individual who:

(i) was required to register with the Pennsylvania State Police
pursuant to this subchapter prior to December 20, 2012, and
who had not fulfilled the individual's period of registration as of
December 20, 2012[.]

42 Pa.C.S. § 9799.13. SORNA defines “Sexually violent offense” as “[a]n offense

specified in section 9799.14 (relating to sexual offenses and tier system) as a Tier I, Tier

II or Tier III sexual offense.” 42 Pa.C.S. § 9799.12.

Shower and Martinez were convicted of indecent assault under 18 Pa.C.S.

§ 3126(a)(7), which SORNA classifies as a Tier III offense. 42 Pa.C.S. § 9799.14(d)(8).

Tier III offenses require a lifetime of sexual offender registration. 42 Pa.C.S.

§ 9799.15(a)(3). Shower and Martinez already were registered as sexual offenders

under Megan’s Law prior to December 20, 2012, and they had not fulfilled their periods

of registration by that date. Consequently, SORNA’s registration requirements facially

would apply to them, 42 Pa.C.S. § 9799.13(3)(i), and would obligate them to register as

sexual offenders for life, not for the ten years of registration they faced at the time the

trial court accepted their plea agreements.

Grace was convicted of indecent assault for violating 18 Pa.C.S. § 3126(a)(8),

which SORNA classifies as a Tier II sexual offense. 42 Pa.C.S. § 9799.14(c)(1.3). Tier

II offenses require registration as a sexual offender for 25 years. 42 Pa.C.S.

§ 9799.15(a)(2). When SORNA became effective, Grace had been convicted of a

sexual offense as defined by SORNA, and he still was serving his probationary term for

that conviction. Accordingly, SORNA’s registration requirements facially would apply to

him, 42 Pa.C.S. § 9799.13(2), and would necessitate that he register as a sexual

offender for ten years rather than not having to register at all, as was the case when the

trial court accepted his plea agreement.

[J-29A-C-2016] - 6
 III. Trial Court Proceedings

A. Shower

On March 12, 2013, Shower filed in the trial court a “Petition to Enforce Plea

Agreement or for a Writ of Habeas Corpus.” Therein, Shower explained that he entered

his plea with an understanding and agreement that he would be required to register as a

sexual offender for only ten years under Megan’s Law. Because SORNA now would

obligate him to register as a sexual offender for life, Shower asked the trial court to

enforce specifically the parties’ plea agreement and to order that he has to register as a

sexual offender only for ten years as contemplated by the agreement and his accepted

guilty plea.

In support of this request, Shower alluded to contract law principles and averred

that the application of SORNA’s increased registration requirements to him violates the

parties’ plea agreement. Shower also took the position that the application of SORNA

to him violates the Due Process and Contract Clauses of the United States and

Pennsylvania Constitutions.6

On May 31, 2013, the trial court held a hearing on Shower’s petition. The only

evidence offered at that hearing was Shower’s testimony. He testified that, when he

entered into the plea agreement, he understood that part of the agreement required him

to register as a sexual offender for only ten years. N.T., 5/31/2013, at 4-5. Shower

further stated that the main reason that he entered into the agreement with the

Commonwealth was to avoid the lifetime registration requirement Megan’s Law

attached to an aggravated-indecent-assault conviction, i.e., the charge that the

Commonwealth withdrew as part of the plea agreement. N.T., 5/31/2013, at 5-6.

6
For reasons we discuss below, this Court’s Opinion does not address these alleged
constitutional violations. Infra, at 19 n. 16.

[J-29A-C-2016] - 7
 B. Martinez

The day after Shower filed his petition, Martinez filed a nearly identical petition in

the trial court. Like Shower, SORNA would obligate Martinez to register as a sexual

offender for life, not for the ten years that Megan’s Law’s required when the trial court

accepted his plea agreement. The trial court held a hearing regarding Martinez’s

petition on June 21, 2013. No evidence was offered at the hearing, as the

Commonwealth was willing to stipulate to the facts as stated in Martinez’s petition, N.T.,

6/21/2013, at 13-14, which were nearly identical to the facts alleged in Shower’s

petition.

C. Grace

On the same day as the hearing on Martinez’s petition, Grace filed a petition in

the trial court. Grace’s petition was substantially similar to the petitions filed by Shower

and Martinez. When the trial court accepted Grace’s plea agreement, he was not

required to register as a sexual offender. SORNA now would mandate him to register

as a sexual offender for 25 years. For the same reasons cited in the petitions filed by

Shower and Martinez, Grace asked the trial court to issue an order instructing the

Commonwealth to perform specifically the plea agreement, which for Shower would

mean that he is not required to register as a sexual offender.

IV. Trial Court Orders and Opinions

On July 19, 2013, the trial court entered separate orders granting the petitions of

Shower and Martinez. In the two opinions in support of those orders, the court

concluded that the application of SORNA to persons such as Shower and Martinez

violates the Ex Post Facto Clause of both the United States and Pennsylvania

[J-29A-C-2016] - 8
Constitutions.7 The court then examined whether principles of contract law entitle

Shower and Martinez to specific performance of their plea agreements. In this regard,

the court determined that general principles of contract law apply in the cases and that

Shower and Martinez are entitled to the benefit of their bargains with the

Commonwealth. Thus, the court concluded, Shower and Martinez are required to

register as sexual offenders only for ten years; not for their lifetimes as SORNA would

mandate. The Commonwealth timely filed notices of appeal.

Soon thereafter, the Commonwealth filed identical court-ordered Pa.R.A.P.

1925(b) statements in the cases concerning Shower and Martinez. Germane to this

matter, the Commonwealth did not present an issue in their 1925(b) statements

explicitly challenging the trial court’s contract law analysis; however, the Commonwealth

did assert that the trial court erred by holding that the application of SORNA to Shower

and Martinez violated the Contract Clauses of the state and federal constitutions,

seemingly confusing contract law and Contract Clause analyses, as the trial court did

not find that the Contract Clauses of either constitution were violated.8

7
As noted previously, the same trial court judge from the Court of Common Pleas of
York County addressed all of Appellees’ petitions. Further, as will be discussed below,
because we are able to dispose of these matters on non-constitutional grounds, it is
unnecessary to address the trial court’s conclusions regarding any alleged ex post facto
violation. Infra, at 19 n. 16.
8
Generally speaking, the Contract Clauses of the Pennsylvania and United States
Constitutions prohibit the Legislature from enacting laws that retroactively impair
contract rights. See First Nat. Bank of Pennsylvania v. Flanagan, 528 A.2d 134, 137
(Pa. 1987) (explaining that “[t]he contracts clauses of the United States and
Pennsylvania Constitutions protect contracts freely arrived at by the parties to them
from subsequent legislative impairment or abridgment”). Thus, unlike a claim that
requires a court to apply principles of contract law, when a court is presented with an
issue that implicates the Contract Clauses, the court must examine whether a statute,
enacted after parties have entered into a contract, unconstitutionally infringes on the
parties’ contractual rights. None of the trial court’s opinions in these matters addressed
whether SORNA unconstitutionally infringes upon the contractual rights of the
Commonwealth and Appellees.

[J-29A-C-2016] - 9
 The trial court subsequently issued opinions pursuant to Pa.R.A.P. 1925(a).

Those opinions are nearly identical to the original opinions that the court issued in

support of its orders granting the petitions of Shower and Martinez. Notably, however,

in its original opinions, the court named one section “Plea Bargains as Contracts,” and

under that section, it provided a contract law analysis of the parties’ plea agreements,

concluding that Shower and Martinez are entitled to the benefit of their bargains. Trial

Court Opinions, 7/19/2013, at 6-7. Apparently mislead by the Commonwealth’s 1925(b)

statements, in its Pa.R.A.P. 1925(a) opinions, the court renamed the “Plea Bargains as

Contracts” sections of its prior opinions as “Contract Clause.” 1925(a) Opinions,

10/2/2013 and 10/3/2013, at 7. Despite these title changes, the court nonetheless

offered the same contract law analyses and conclusions in its 1925(a) opinions as it did

in its original opinions.

Finally, with regard to Grace, the trial court entered an order granting his petition

and adopting the initial opinion it authored in Martinez’s case. The Commonwealth

timely filed a notice of appeal and, subsequently, a court-ordered Pa.R.A.P. 1925(b)

statement, which was exactly the same as the 1925(b) statements it filed in the cases of

Shower and Martinez. The trial court responded by filing an opinion that tracked its

previously issued Pa.R.A.P. 1925(a) opinions.

The Superior Court consolidated the Commonwealth’s appeals regarding

Martinez and Grace.9 Commonwealth v. Martinez et al., 102 A.3d 530 (Pa. Super.

2014) (unpublished memorandum) (“Martinez/Grace Appeal”). The court considered

9
This consolidated appeal included two other appellants, Shawn Patrick McGinnis, Jr.
(“McGinnis”) and Christina J. Lasater (“Lasater”). When this Court granted the
Commonwealth’s petitions for allowance of appeal, McGinnis and Lasater were named
as appellees. However, McGinnis and Lasater subsequently filed motions to dismiss
them from the appeal, and this Court granted their motions.

[J-29A-C-2016] - 10
the Martinez/Grace Appeal separately from the Commonwealth’s appeal in Shower’s

case. However, the same three-judge panel of the Superior Court decided the

Martinez/Grace Appeal and the appeal in the Shower’s case. Commonwealth v.

Shower, 102 A.3d 533 (Pa. Super. 2014) (unpublished memorandum) (“Shower

Appeal”). While these appeals were pending in the Superior Court, an en banc panel of

that court issued an opinion in Hainesworth, directly on point, which we now summarize.

V. Hainesworth

The Commonwealth charged Hainesworth with three counts of statutory sexual

assault, 18 Pa.C.S. § 3122.1; two counts of aggravated indecent assault, 18 Pa.C.S.

§ 3125(a)(8); three counts of indecent assault, 18 Pa.C.S. § 3126(a)(8); and two counts

of criminal use of a communication facility, 18 Pa.C.S. § 7512. Hainesworth, 82 A.3d at

445. Megan’s Law was in effect at that time. If convicted of these charges, the only

convictions that would have required Hainesworth to register as a sexual offender under

Megan’s Law would have been the convictions for aggravated indecent assault, which

carried a lifetime registration requirement. 42 Pa.C.S. §9795.1(b)(2) (expired).

On February 27, 2009, Hainesworth and the Commonwealth entered into a plea

agreement pursuant to which Hainesworth pled guilty to three counts of statutory sexual

assault, three counts of indecent assault, and one count of criminal use of a

communication facility. Hainesworth, 82 A.3d at 445. Thus, as part of the agreement,

the Commonwealth withdrew all of the aggravated-indecent-assault charges that would

have triggered registration under Megan’s Law. Id. at 446. However, if applicable to

Hainesworth, SORNA would alter his sexual offender registration status.

More specifically, Hainesworth pled guilty to, inter alia, violating 18 Pa.C.S.

§ 3126(a)(8), which, as mentioned above, SORNA classifies as a Tier II sexual offense.

42 Pa.C.S. § 9799.14(c)(1.3). Tier II sexual offenses require registration as a sexual

[J-29A-C-2016] - 11
offender for 25 years. 42 Pa.C.S. § 9799.15(a)(2). When SORNA became effective,

Hainesworth was serving a term of probation as a result of a conviction that SORNA

classifies as a sexually violent offense. Hainesworth, 82 A.3d at 446. Consequently,

based on his probationary status, SORNA ordinarily would have applied to Hainesworth,

42 Pa.C.S. § 9799.13(2), and would have obligated him to register as a sexual offender

for 25 years, as opposed to the non-registration contemplated by the parties’ plea

agreement.

In anticipation of the effective date of SORNA’s new registration requirements,

Hainesworth filed a motion on December 13, 2012, seeking termination of his probation.

After a hearing, the trial court denied the petition; however, the court’s order further

stated that Hainesworth was not subject to SORNA’s registration requirements. In this

regard, the court posited that the application of SORNA to Hainesworth would violate

due process, fundamental fairness, and the parties’ negotiated plea agreement. Id. at

446-47. The Commonwealth appealed to the Superior Court, which heard the matter en

banc.

The Hainesworth court began its analysis by highlighting the very different

manners in which the parties characterized the issue before the court. Id. at 447.

Hainesworth framed the issue similarly to how the trial court viewed it, i.e., whether the

parties’ plea agreement included a term that Hainesworth does not have to register as a

sexual offender, and if so, whether he is entitled to the benefit of his bargain. On the

other hand, the Commonwealth believed the issue involved a question of statutory

application of SORNA, which could not be avoided. Consistently, the Commonwealth

argued that the Superior Court had previously upheld changes to the registration

requirements of Megan’s Law applicable to registrants who are under correctional

supervision, noting that registration requirements are non-punitive collateral

[J-29A-C-2016] - 12
consequences of convictions, id., and that the court should apply the same reasoning to

SORNA. The Hainesworth court determined that the trial court and Hainesworth

properly framed the issue in the case as one that implicated a contract law analysis. Id.

Thereafter, the Hainesworth court concluded that the record unambiguously

demonstrated that Hainesworth, the Commonwealth, and the guilty plea court

understood that a sexual registration requirement was not included as a term of

Hainesworth’s plea agreement. Id. at 447-48. According to the court, the plea

agreement appeared to have been precisely structured so that Hainesworth would not

be subjected to a registration requirement. Id. at 448. In this regard, the court found

significant that the plea agreement completely eliminated only the aggravated-indecent-

assault counts, the sole counts Hainesworth faced that would have triggered a Megan’s

Law registration requirement. Id.

The Hainesworth court next concluded that the trial court did not err by ordering

specific performance of the terms of the parties’ plea agreement. The court did so by

first rejecting the Commonwealth’s contention that, because registration under SORNA

is a non-punitive collateral consequence of Hainesworth’s conviction, Hainesworth is

subject to SORNA’s reporting requirements. Instead, the court determined that the

dispositive question is whether sexual offender registration was a term of the parties’

agreement.10 Id. at 448-49 The court further highlighted that, while a plea agreement

arises in a criminal context, it remains contractual in nature and, therefore, must be

analyzed under principles of contract law. Id. at 449.

10
Based upon this determination, the Hainesworth court did not address whether
SORNA’s registration requirements are collateral consequences of qualifying
convictions. Hainesworth, 82 A.3d at 448-49 n.4.

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 The Hainesworth court bolstered this portion of its decision by noting that nearly

all criminal cases are disposed of by plea bargains Thus, in the court’s view, avoiding

possible perversion of the plea bargaining system is critical. Id. (citing Commonwealth

v. Fruehan, 557 A.2d 1093, 1094 (Pa. Super. 1989)). After espousing this view, the

court emphasized the serious nature of sexual offender registration requirements,

pointing out that these requirements are so rigorously enforced that, pursuant to 42

Pa.C.S. § 9799.25(e), neither a natural disaster nor any other event requiring

evacuation of residences relieves a sexual offender of the duty to register under

SORNA.11 Id. The court observed that, when a defendant agrees to plead guilty to

avoid registering as a sexual offender, the defendant trades important rights, such as

the right to a jury trial, in exchange for not being subjected to the non-trivial restrictions

encompassed by sexual offender registration requirements. According to the court,

“[f]undamental fairness dictates that this bargain be enforced.” Id.

The Hainesworth court found further support for its position in the United States

Supreme Court’s decision in Santobello v. New York, 404 U.S. 257 (1971). The

Hainesworth court quoted Santobello for the proposition that “when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must be fulfilled.” Santobello,

404 U.S. at 262. The Hainesworth court opined that this proposition of law is reflected

in the law of this Commonwealth, which holds that, when a trial court accepts a plea

agreement, the convicted criminal has forfeited the right to a trial by jury and, therefore,

must be afforded the benefit of all of the promises made by the district attorney.

11
Subsection 9799.25(e) of SORNA provides, “The occurrence of a natural disaster or
other event requiring evacuation of residences shall not relieve the sexual offender of
the duty to register or any other duty imposed by this subchapter.” 42 Pa.C.S.
§ 9799.25(e)

[J-29A-C-2016] - 14
Hainesworth, 82 A.3d at 449 (quoting Fruehan, supra). The court then reiterated that

“[s]pecific enforcement of valid plea bargains is a matter of fundamental fairness.” Id.

(citing Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa. Super. 2012)).

Additionally, the Hainesworth court analogized the circumstances of

Hainesworth’s case with the situation presented to this Court in Commonwealth v.

Zuber, 353 A.2d 441 (Pa. 1976). In Zuber, the trial court accepted a plea agreement

which contained a sentence that was both advantageous to Zuber and, as it turns out,

incapable of fulfillment under the law. Yet, this Court held that Zuber was entitled to

receive the benefit of his bargain -- “a prison sentence commensurate with the term

contemplated by all of the parties to the plea proceedings,” Zuber, 353 A.2d at 446 --

despite the unenforceable nature of the sentence.12 Premised upon these conclusions

and supporting logic, the Hainesworth court found no error in the trial court’s decision to

order specific performance of the agreement between the Commonwealth and

Hainesworth. For these reasons, the en banc panel unanimously affirmed the trial

court’s order. We now turn our attention back to the Superior Court’s decisions

regarding the Commonwealth’s appeals sub judice.

VI. Superior Court’s Memorandum Opinions

The Commonwealth presented the same four issues in the Martinez/Grace

Appeal as it did in the Shower Appeal. The Superior Court disposed of both appeals

12
When Zuber was arrested and charged with murder, he was on parole for a previous
conviction. Zuber, 353 A.2d at 442. As to the murder charge, Zuber and the
Commonwealth entered into a plea agreement, which the trial court accepted. The
agreement required the Commonwealth to join with Zuber’s counsel in a request to the
State Board of Parole that Zuber’s murder sentence run concurrently with his parole-
related sentence. Id. at 443. However, as this Court explained, a parole violator is
statutorily required to serve his back-time before he can begin serving a new sentence.
Id. Thus, the sentence contemplated by the parties’ plea agreement could not be
fulfilled under the law.

[J-29A-C-2016] - 15
based upon the issue the Commonwealth phrased as: whether the trial court erred by

concluding that the application of SORNA’s registration requirements to Appellees

violates the federal and state Contract Clauses. The court construed the arguments

that the Commonwealth presented in support of this issue as a challenge to the trial

court’s conclusion that Appellees are entitled to the benefit of the bargains that they

negotiated with the Commonwealth.13 Martinez/Grace Appeal at 6 (quoting the

Commonwealth’s Superior Court brief); Shower Appeal at 2-3 (same). The Superior

Court panel then summarized Hainesworth and determined that the holding therein

controlled the outcome of each of Appellees’ cases. Subsequently, the court examined

Appellees’ individual circumstances in light of Hainesworth’s holding.

Regarding Shower, the Superior Court concluded that the record, specifically the

transcript of Shower’s guilty plea colloquy, clearly demonstrated the nature of the

parties’ agreement. Shower Appeal at 6-7. During that colloquy, the parties discussed

that: the Commonwealth would be withdrawing the charge of aggravated indecent

assault (which would have required Shower to register as a sexual offender for life

under Megan’s Law); Shower would be pleading guilty to indecent assault; and, under

Megan’s Law, an indecent-assault conviction required the criminal to register as a

sexual offender for ten years. Id. (citing to the notes of testimony from Shower’s guilty

plea colloquy). The Superior Court pointed out that subjecting Shower to SORNA’s

lifetime-registration requirement for a Subsection 3126(a)(7) indecent assault conviction

would have placed Shower in the same position that he was in when he began the plea

13
In its memorandum opinion in the Shower Appeal, the Superior Court noted the
apparent confusion in the trial court proceedings concerning contract law and Contract
Clause analyses. Shower Appeal at 11-12 n.4. The court concluded that a non-
constitutional contract law analysis was appropriate to resolve the issue before the
court. Id.

[J-29A-C-2016] - 16
process -- facing a lifetime of sexual offender registration requirements. Id. at 7. Thus,

the court found that a term of the parties’ plea agreement contemplated that Shower

would have to register as a sexual offender only for ten years.

As to Martinez, the Superior Court observed that, at the hearing regarding

Martinez’s petition to enforce his plea agreement, the Commonwealth stipulated to the

facts as set forth in the petition. Martinez/Grace Appeal at 10. Because the petition

alleged, inter alia, that Martinez entered into the plea agreement with the agreement

that he was required to register as a sexual offender for only ten years, id. (quoting

Martinez’s Petition to Enforce Plea Agreement or for a Writ of Habeas Corpus,

3/13/2013, at ¶1), the Superior Court concluded that a term of the parties’ plea

agreement was that Martinez would have to register as a sexual offender only for ten

years.

Concerning Grace, the Superior Court highlighted the parties’ stipulation of facts,

wherein they specified, inter alia, that the plea agreement was based upon Grace not

having to plead to charges that would require him to register as a sexual offender.

Martinez/Grace Appeal at 10-11 (quoting Stipulation of Facts, 7/30/2013, at ¶4).14

Based upon this stipulation, the Superior Court determined that the parties’ plea

agreement did not require Grace to register as a sexual offender.

The Superior Court rejected the Commonwealth’s various attempts to distinguish

Appellees’ cases from Hainesworth and held that, because Appellees’ plea agreements

contained conditions regarding their sexual offender registration status, Hainesworth

14
After quoting the parties’ stipulation of facts, the Superior Court cited paragraph five
of an exhibit supposedly attached to Grace’s petition. Martinez/Grace Appeal at 10-11.
The certified record before this Court indicates that the parties filed their stipulation of
facts on July 30, 2013, separately from Grace’s petition, and that the paragraph the
court quoted was paragraph four of the stipulated facts.

[J-29A-C-2016] - 17
mandates that they receive the benefit of their bargains. Consequently, pursuant to the

Superior Court’s rationale, Martinez’s and Shower’s registration as sexual offenders

would be for the ten year period contemplated by their plea agreements, and Grace

would not be required to register as a sexual offender, per the terms of his plea

agreement.

VII. The Parties’ Arguments to this Court

The Commonwealth filed a petition for allowance of appeal in all three cases.

This Court granted the petitions and consolidated the matters in order to evaluate

Hainesworth and its application to Appellees’ cases. The issues in these cases

implicate questions of law. As with all questions of law, our standard of review is de

novo, and our scope of review is plenary. Commonwealth v. Crawley, 924 A.2d 612,

614 (Pa. 2007).

In its briefs to this Court,15 the Commonwealth continues to invoke the

constitutional Contract Clauses and to refer to a violation of those clauses. However, as

noted previously, neither the trial court nor the Superior Court disposed of Appellees’

cases by way of a Contract Clause constitutional analysis. Rather, the trial and

intermediate courts clearly applied general contract law in deciding that Appellees

should receive the benefit of their bargains.

Appellees have identified this weakness in the Commonwealth’s briefs. Indeed,

Appellees dedicate significant portions of their briefs arguing that this Court should

dismiss the appeals, primarily on the basis that “the Commonwealth seeks review of a

claim that was not the basis of the ruling below[.]” Martinez/Grace Brief at 18

15
The parties filed four briefs in this Court. Martinez and Grace jointly filed a brief, and
Shower filed a separate brief; the Commonwealth filed a brief addressing the cases of
Martinez and Grace and a different brief regarding Shower’s case.

[J-29A-C-2016] - 18
(capitalization omitted). We decline Appellees’ invitation to dismiss this matter on

procedural grounds.

At the inception of these cases, Appellees, in their various petitions, injected the

issue of whether principles of contract law require specific performance of the parties’

plea agreements. In addition to finding that the application of SORNA to Appellees

constitutes an ex post facto violation, the trial court determined that principles of

contract law mandate that Appellees receive the benefit of their bargains. The Superior

Court affirmed the trial court’s orders solely on the basis of contract law principles.

Moreover, throughout this litigation, the parties have provided adequate argument on

these non-constitutional principles, including the Commonwealth in its briefs to this

Court. Consequently, we now will consider the cases solely under common law

contract principles.16

Ultimately, the Commonwealth asks this Court to reject Hainesworth and remand

Appellees’ cases for further consideration. At the core of its argument is the

Commonwealth’s belief that SORNA’s registration requirements, like Megan’s Law’s

registration requirements, constitute collateral consequences of Appellees’

convictions.17 According to the Commonwealth, when it enters into a plea agreement

16
In their briefs to this Court, Appellees offer alternative, constitutional grounds in
support of affirming the Superior Court’s orders. To the extent that this Court could
reach those constitutional issues, we decline to do so, as the issue in this case can be
decided on non-constitutional grounds. See P.J.S. v. Pennsylvania State Ethics
Comm’n, 723 A.2d 174, 176 (Pa. 1999) (“When a case raises both a constitutional and
a non-constitutional issue, a court should not reach the constitutional issue if the case
can properly be decided on non-constitutional grounds.”).
17
The Commonwealth’s belief in this regard is based upon this Court’s previous
decisions where we found that the registration requirements of various versions of
Megan’s Law did not constitute punishment but, rather, amounted to collateral
consequences of qualifying criminal convictions. E.g., Commonwealth v. Williams, 832
A.2d 962 (Pa. 2003). It, however, remains an open question whether SORNA’s
registration requirements constitute punishment for constitutional purposes. Indeed,
(continuedQ)

[J-29A-C-2016] - 19
with a defendant, the parties are bound by any collateral consequences that exist at the

time of sentencing, unless the General Assembly changes those collateral

consequences by subsequently enacting legislation. Based upon this position, the

Commonwealth contends that the Legislature altered the terms of the various plea

agreements herein by enacting SORNA, and thus, the Commonwealth should no longer

be bound by the terms of those agreements. See Commonwealth’s Martinez/Grace

Brief at 13 (“The Hainesworth decision binds the Commonwealth to fixed terms of a

contract, even though enforcement of that contract is no longer legally possible because

the Legislature has changed said terms.”); Commonwealth’s Shower Brief at 13 (same).

Stated succinctly, Appellees primarily contend that Hainesworth was correctly

decided and that the Superior Court properly applied Hainesworth in concluding that

they are entitled to the benefit of their bargains -- Martinez and Shower have to register

as a sexual offender for ten years, and Grace does not have to register as a sexual

offender. As to the Commonwealth’s belief regarding the alleged collateral nature of

SORNA’s registration requirements, Appellees take the position that the Hainesworth

court properly rejected the claim that “a promise of non-registration should not be

enforced because registration is ‘collateral’ to the sentence.” Martinez/Grace Brief at

39; Shower’s Brief at 26. Indeed, Appellees echo the Hainesworth court’s determination

that, for purposes of a contractual analysis of the parties’ plea agreement, the

dispositive question regarding a convicted criminal’s sexual offender registration status

is whether sexual offender registration was a term of the parties’ agreement, and if it

(Qcontinued)
this Court recently granted allocatur to consider that question. Commonwealth v. Reed,
135 A.3d 177 (Pa. 2016). In any event, for reasons we discuss below, whether
SORNA’s registration requirements constitute collateral consequences has no impact
on this matter.

[J-29A-C-2016] - 20
was, then that term must be enforced. For the reasons that follow, we agree with

Appellees.

VIII. Discussion

As an initial matter, the Hainesworth court accurately described the critical role

that plea agreements play in the criminal justice system. In fact, courts have long

recognized that plea negotiations and agreements are essential components of the

criminal justice system. See, e.g., Santobello, 404 U.S. at 260 (explaining that “[t]he

disposition of criminal charges by agreement between the prosecutor and the accused,

sometimes loosely called ‘plea bargaining,’ is an essential component of the

administration of justice”). In this Commonwealth, we look upon the practice of plea

bargaining with favor. Zuber, 353 A.2d at 443.

We acknowledge that the analogy of a plea agreement as a contract is not a

perfect one. For instance, unlike a typical contract, a plea agreement does not become

binding on the parties upon their consent to terms; rather, a plea agreement is not valid

and binding until it is evaluated and accepted by a third party, i.e., a trial court. See

Pa.R.Crim.P. 590(A)(3) (stating that a judge may refuse to accept a plea of guilty or

nolo contendere and that the judge shall not accept the plea unless the judge

determines after inquiry of the defendant that the plea is voluntarily and understandingly

tendered).

Nonetheless, as the Hainesworth court recognized, plea agreements clearly are

contractual in nature. See Puckett v. United States, 556 U.S. 129, 137 (2009) (stating

that, “[a]lthough the analogy may not hold in all respects, plea bargains are essentially

contracts”). For all intents and purposes, the parties agree on this point. See

Commonwealth’s Martinez/Grace Brief at 13 (“A guilty plea is a contract.”);

Commonwealth’s Shower Brief at 13 (same); Martinez/Grace Brief at 30 (“Specific

[J-29A-C-2016] - 21
enforcement of a plea agreement is also supported by contract law, but with a

significant distinction.”) (footnote omitted); Shower’s Brief at 20 (same). The parties’

agreement on this point is not surprising, as this Court utilizes concepts closely

associated with contract law when evaluating issues involving plea agreements.

By way of example and pertinent to Appellees’ cases, in Commonwealth v.

Spence, 627 A.2d 1176 (Pa. 1993), Spence argued that the trial court erred by refusing

to enforce an oral plea agreement allegedly reached by the Commonwealth and Spence

prior to his trial. Spence, 627 A.2d at 1184. In rejecting this argument, this Court

acknowledged that, after a plea agreement has been entered and accepted by a trial

court, the Commonwealth must abide by the terms of the plea agreement. The Court,

however, clarified that, prior to the entry of a guilty plea, the defendant has no right to

specific performance of an agreement. Id. Stated in the affirmative, after parties enter

into a plea agreement and the trial court accepts it, the convicted criminal can seek

specific performance of the agreement. “Specific performance” is a traditional contract

remedy that is available when monetary damages are inadequate. See BLACK’S LAW

DICTIONARY 1425 (8th ed. 2004) (defining “specific performance” as, inter alia, “a court-

ordered remedy that requires precise fulfillment of a legal or contractual obligation when

monetary damages are inappropriate or inadequate . . .”).

In this vein, the Santobello Court instructed that, “when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must be fulfilled.” Santobello,

404 U.S. at 262. Consistent with Santobello, this Court has held that, when a trial court

has accepted a plea agreement entered into by the Commonwealth and a defendant,

the prosecutor is duty bound to fulfill the promises made in exchange for the

[J-29A-C-2016] - 22
defendant’s guilty plea.18 See Zuber, 353 A.2d at 444 (holding that the prosecutor has

an affirmative duty to honor all promises made in exchange for a defendant's plea)

(citing, inter alia, Santobello); Spence, 627 A.2d at 1184 (requiring the Commonwealth

to abide by the terms of a plea agreement when the agreement was entered on the

record and accepted by a trial court). “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.” Zuber, 353 A.2d at 444. Consequently, in this Commonwealth, when trial

courts accept plea agreements, the convicted criminals, like Appellees in this case, are

entitled to the benefit of their bargains. Id.

IX. Conclusion

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.19 Rather, quite simply, the convicted criminal is entitled to the benefit of his

18
Convicted criminals also must fulfill the promises they make in connection with plea
agreements. See Commonwealth v. Wallace, 870 A.2d 838, 843 n.6 (Pa. 2005) (“The
defendant, on the other hand, accepts this benefit with the implicit promise that he will
abide by the terms of the agreement and behave in accordance with the legal
punishment imposed by the court.”).
19
Indeed, despite the unenforceable nature of the agreed-upon sentence in Zuber, this
Court determined that Zuber was entitled to the benefit of his bargain. In other words,
the Zuber Court did not simply conclude that Zuber was not entitled to the bargained-for
sentence because the sentence was unenforceable. Instead, the Court examined the
parties’ agreement, found that the agreement included the unenforceable sentence, and
held that Zuber was entitled to that sentence. To be clear, in concluding that Zuber was
entitled to the sentence for which he bargained, this Court modified the sentence to
make it compliant with the law and the parties’ plea agreement. Zuber, 353 A.2d at 446.

[J-29A-C-2016] - 23
bargain through specific performance of the terms of the plea agreement. Santobello,

404 U.S. at 262; Spence, 627 A.2d at 1184. 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.

With regard to Appellees’ cases, the Superior Court accurately reported that the

Commonwealth stipulated to the facts as set forth in Martinez’s petition. Martinez/Grace

Appeal at 10; N.T., 6/21/2013, at 13-14. In the petition, Martinez alleged, inter alia, that

he entered into the plea agreement “pursuant to an understanding and agreement that

[he] was required to register as a sexual offender for only ten years.” Martinez’s Petition

to Enforce Plea Agreement or for a Writ of Habeas Corpus, 3/13/2013, at ¶1. By

stipulating to this fact, the Commonwealth confirmed that the parties’ plea agreement

contained a term requiring Martinez to register as a sexual offender for ten years. Thus,

Martinez is entitled to the benefit of that bargain.

Concerning Grace, he and the Commonwealth entered into a stipulation of facts.

Those facts included: “The plea agreement [Grace’s counsel] negotiated with the

Commonwealth was based on Mr. Grace not having to plea to charges which would

require registration under Megan’s Law in effect at the time of the plea.” Stipulation of

Facts, 7/30/2014, at ¶4. By stipulating to this fact, the Commonwealth admitted that the

parties’ plea agreement contained a term which contemplated that Grace would not

have to register as a sexual offender. Consequently, Grace is entitled to the benefit of

his bargain.

Regarding Shower’s case, in concluding that the record demonstrated the nature

of the parties’ plea agreement, the Superior Court accurately recounted the discussion

that took place at Shower’s plea colloquy. Shower Appeal at 6-7. That discussion

included Shower’s counsel stating that Shower would be subject to ten years of

[J-29A-C-2016] - 24
registration under Megan’s Law. N.T., 3/6/2006, at 5. Thus, the Superior Court held

that the record demonstrated that Shower was entitled to the benefit of his bargain -- ten

years of registering as a sexual offender. The Commonwealth fails to convince us that

the court erred in this regard. In fact, the Commonwealth fails to address this

conclusion in its brief to this Court. Moreover, the Commonwealth does not recognize

that the trial court credited the testimony Shower offered at the hearing on his petition to

enforce his plea agreement.20 N.T., 5/31/2013, at 8. Accordingly, we have no reason to

disturb the Superior Court’s determination that Shower need only register as a sexual

offender for ten years.

For these reasons, we affirm the orders of the Superior Court.

Former Justice Eakin and Justice Donohue did not participate in the

consideration or decision of this case.

Justices Todd, Dougherty and Wecht join the opinion.

Chief Justice Saylor files a concurring opinion.

Justice Wecht files a concurring opinion.

20
As we discussed above, at that hearing, Shower testified that, when he entered into
the plea agreement, he understood that part of the agreement required him to register
as a sexual offender for ten years and that the main reason he entered into the
agreement was to avoid the lifetime registration requirement Megan’s Law attached to
an aggravated-indecent-assault conviction. N.T., 5/31/2013, at 4-6.

[J-29A-C-2016] - 25