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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERNESTO SALDANA, :
:
Appellant : No. 799 MDA 2016
Appeal from the Order Entered April 13, 2016,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0002999-2008
BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 09, 2016
Ernesto Saldana (Appellant) appeals pro se from the order of April 13,
2016, which denied his “Motion to Confirm Defendant is Not Required to
Register Under [the Sex Offender Registration and Notification Act
(SORNA)].”1 We affirm.
In November of 2007, a minor female relative of Appellant disclosed
that she had been sexually assaulted by him on more than one occasion. On
April 22, 2008, after an investigation into these claims, Appellant was
arrested and charged with indecent assault - complainant less than 13 years
of age and corruption of minors. On November 17, 2008, Appellant entered
into a guilty plea to the indecent assault charge. The crime of corruption of
minors was nolle prossed by the Commonwealth. Sentencing was postponed
1
42 Pa.C.S. § 9799.41.
*Retired Senior Judge assigned to the Superior Court.
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pending a review by the Sexual Offender Assessment Board (SOAB). Once it
was determined that Appellant did not meet the criteria for classification as a
sexually violent predator, he was sentenced to an agreed-upon sentence of
23 months’ incarceration followed by a consecutive term of two and one half
years of probation. The following conditions of probation/parole applied:
“sex offender conditions, Megan’s Law, no contact [with] victim.” Plea
Agreement, 11/17/2008. Because the offense to which Appellant pled was
enumerated under the version of Megan’s Law in place at the time, Appellant
was required to register for a period of ten years. 42 Pa.C.S. § 9795.1(b)(2).
No post-sentence motion or direct appeal was filed.
Appellant was granted parole on February 19, 2009; however, he
failed to attend a scheduled appointment on March 10, 2009 and, as a
result, a bench warrant was issued and he was charged with the offense of
failure to comply with registration of sexual offender requirements, 18
Pa.C.S. § 4915(a)(1).2 This offense served as the basis for a parole
violation. On March 26, 2010, Appellant was found to be in violation of his
parole and was sentenced to serve the balance of his unserved incarceration,
to be followed by the original two and one half year probationary term.
This pattern repeated itself in 2011, with Appellant failing to report for
scheduled probation appointment and failing to maintain an approved
2
Appellant pled guilty to this offense on March 26, 2010, and was sentenced
to a term of time served to 23 months’ incarceration and a consecutive term
of two years of probation.
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residence for the purpose of Megan’s Law compliance. Once more, Appellant
was charged with failure to comply with registration of sexual offender
requirements. On June 6, 2013, Appellant was found to be in violation of his
parole in the instant case and was sentenced to a new two year term of
probation.3
On December 20, 2011, the legislature enacted the Sex Offender
Registration and Notification Act (SORNA). See 42 Pa.C.S. § 9799.41.
SORNA became effective on December 20, 2012 and, inter alia, increased
the registration period for those convicted of indecent assault - complainant
less than 13 years of age from ten years to lifetime registration. Because he
was under parole supervision at the time SORNA went into effect, Appellant
was subject to the new registration provisions. 42 Pa.C.S. § 9799.13(3)(i)
and (3.1)(i)(C).
On February 24, 2016, Appellant filed pro se a motion4 seeking to
enforce the terms of his plea agreement in which he contended that the
3
On that same date, Appellant was found to be in violation of his parole at
another case and also pled guilty to the new failure to comply with
registration of sexual offender requirements offense. His aggregate
sentence on these two matters and the instant case is three to six years’
incarceration.
4
Although, generally, established practice in Pennsylvania requires a trial
court to consider all petitions for post-conviction relief under the Post-
Conviction Relief Act, the trial court was correct in not treating the instant
petition as an untimely-filed PCRA. The PCRA “is not intended . . . to
provide relief from collateral consequences of a criminal conviction.” 42
Pa.C.S. § 9542. See Commonwealth v. Partee, 86 A.3d 245, 247 (Pa.
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increased registration time required by SORNA violated the terms of his
guilty plea agreement because he had specifically bargained for a ten-year
registration period. The Commonwealth filed a response and, on April 13,
2016, the trial court denied Appellant’s motion. This timely-filed appeal
followed.
On appeal, Appellant appears to argue that the trial court erred in
denying his motion because he only agreed to a ten-year Megan’s Law
registration period at the time of his plea; thus, imposition of a lifetime
registration violates the terms of his plea agreement. Appellant’s Brief at 1-
3. In considering this issue, we apply the following principles. “[E]ven
though a plea agreement arises in a criminal context, it remains contractual
in nature and is to be analyzed under contract law standards.”
Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013) (en
banc) (citations omitted).5
Because contract interpretation is a question of law, this
Court is not bound by the trial court’s interpretation. Our
standard of review over questions of law is de novo and to the
extent necessary, the scope of our review is plenary as the
appellate court may review the entire record in making its
decisions. However, we are bound by the trial court’s credibility
determinations.
Super. 2014) (finding appellant’s petition seeking to enforce plea agreement
and preclude application of SORNA amendments not a PCRA petition).
5
On September 28, 2016, our Supreme Court approved of Hainesworth in
Commonwealth v. Martinez, 2016 WL 5480682 (Pa. Sept. 28, 2016).
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Calabrese v. Zeager, 976 A.2d 1151, 1154 (Pa. Super. 2009) (citations
omitted).
Parties must state the terms of a plea agreement on the record and in
the presence of the defendant. Pa.R.Crim.P. 590(B)(1). “If 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.” Hainesworth, 82 A.3d at 449 (citation omitted). “The
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. (citation omitted). Because plea
bargaining is such an integral part of our criminal justice system, specific
enforcement of valid plea bargains is a matter of fundamental fairness.
Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa. Super. 2012).
[D]isputes over any particular term of a plea agreement must be
resolved by objective standards. A determination of exactly what
promises constitute the plea bargain must be based upon the
totality of the surrounding circumstances and involves a case-by-
case adjudication.
Any ambiguities in the terms of the plea agreement will be
construed against the Government.
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citations
omitted).
In Hainesworth, an en banc panel of this Court was asked to consider
whether retroactive application of the SORNA registration requirements
breached the terms of Hainesworth’s plea agreement. Hainesworth, 82
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A.3d at 446-47. Applying the contract principles outlined above, the
Hainesworth Court concluded that the trial court did not err in ordering
specific enforcement of Hainesworth’s plea bargain. Id. at 447. In upholding
the trial court’s determination, the Court found significant the terms of the
plea bargain, which required the Commonwealth to withdraw all charges
carrying a Megan’s Law registration requirement, and the Commonwealth’s
repeated assurances during the plea process that it was not seeking
registration. Id. at 445-48. Accordingly, the Court determined that the
objective evidence of record supported the conclusion that the parties had
negotiated an agreement that would not require Hainesworth to register as a
sex offender; thus, imposition of a registration requirement based on a
subsequent change in law, would breach that agreement. Id. at 450.
At the outset, we note that Appellant has failed to meet his burden of
providing this Court with a complete record; specifically, he has failed to
order the transcripts of his guilty plea and sentencing hearings, in violation
of Pa.R.A.P. 1911. Accordingly, “we are limited to considering only those
facts which have been duly certified in the record on appeal.”
Commonwealth v. Osellanie, 597 A.2d 130, 131 (Pa. Super. 1991).
The certified record before us reveals that, under the terms of his plea
agreement, the Commonwealth nolle prossed the charge of corruption of
minors in exchange for a plea to indecent assault - complainant under 13
years of age.
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At the time of Appellant’s guilty plea, the charge of corruption of
minors, 18 Pa.C.S. § 6301(a)(1), was not a predicate offense for registration
under Megan’s Law. See Commonwealth v. Bundy, 96 A.3d 390, 392 n.3
& 5 (Pa. Super. 2014). However, the offense of indecent assault -
complainant under 13 years of age carried a ten-year registration period.
Simply stated, the agreement negotiated herein resulted in the nolle pros of
an offense that did not carry a registration period, and a plea of guilty to an
offense that did. Thus, there is nothing in the certified record to support
Appellant’s claim that his agreement was similar to that upheld in
Hainesworth.
Moreover, the record is devoid of any negotiation as to a specific term
of registration. As the trial court explained, “[a]lthough the parties agreed
at sentencing that Megan’s Law required [Appellant] to register for a ten-
year period, this was simply not a negotiated term of the plea agreement,”
noting that the written plea agreement form presented in this case set forth
the condition of “Megan’s Law” with no specific term attached. Trial Court
Opinion, 5/23/2016, at 8. We agree with the court’s analysis and hold that
Appellant has failed to convince us that the ten-year Megan’s Law
registration period was an essential term of the agreement negotiated
between Appellant and the Commonwealth. Accordingly, we affirm the
court’s order.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
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