Appeal from the Order Entered December 19, 2012 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000106-2009
BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, J., GANTMAN, J., DONOHUE, J., ALLEN, J., LAZARUS, J., OTT, J., and WECHT, J.
Appellant, the Commonwealth of Pennsylvania, appeals from an order entered on December 19, 2012, by the Honorable John Blahovec of the Court of Common Pleas of Westmoreland County. That order states that Appellee, Deono Terrell Hainesworth, is not required to register as a sex offender under Act 111 of 2011, 42 Pa.C.S. § 9799.10, et. seq., also known as the Sex Offender Registration and Notification Act (SORNA). The Commonwealth contends that the trial court erred in determining that Hainesworth is not subject to the registration requirements of SORNA. After careful review, we conclude that the court did not err when it ordered specific enforcement of the parties' plea bargain. Accordingly, we affirm.
On January 26, 2009, Hainesworth was charged as follows: 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. On February 27, 2009,
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.
At the time of Hainesworth's plea, the registration of defendants convicted of sex offenses was governed by 42 Pa.C.S. § 9791, et. seq., commonly referred to as "Megan's Law." Under 42 Pa.C.S. § 9795.1(b)(2), a defendant convicted of aggravated indecent assault was subject to a lifetime registration requirement. This charge was withdrawn by the Commonwealth in the instant case pursuant to the plea agreement reached by the parties to this appeal. Both parties concede that none of the crimes to which Hainesworth pled guilty required registration under Megan's Law at the time his plea was entered. This fact was acknowledged on the record during Hainesworth's plea colloquy. N.T. Guilty Plea, 2/27/09, at 2 - 3. Accordingly, Hainesworth did not register.
SORNA was enacted on December 20, 2011, and became effective on December 20, 2012. SORNA provides that:
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 … being supervised by the Pennsylvania Board of Probation and Parole or county probation or parole ….
42 Pa.C.S. § 9799.13(2). "Sexually violent offense" is defined by SORNA as follows: "An 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. The charge of indecent assault to which Hainesworth pled guilty in the instant case, 18 Pa.C.S. § 3126(a)(8), is categorized as a Tier II sexual offense. 42 Pa.C.S. § 9799.14(c)(1.2). A Tier II sexual offense conviction requires a defendant to register with the State Police for 25 years. 42 Pa.C.S. § 9799.15(a)(2). Therefore, Hainesworth ostensibly became subject to a new registration requirement when he was on probation on the date SORNA became effective, having previously pled guilty to a Tier II offense.
Hainesworth filed a motion seeking termination of his supervision on December 13, 2012, in contemplation of the registration requirement that would be imposed on December 20, 2012, if he remained on probation. Following a hearing on December 18, 2012, the trial court denied the petition to terminate Hainesworth's supervision, but entered an order stating that Hainesworth was not subject to the registration requirements of SORNA. Specifically, the trial court's order states:
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 ...