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[U] Commonwealth v. Holtzer

Superior Court of Pennsylvania

February 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
PAUL K. HOLTZER, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered February 26, 2013, In the Court of Common Pleas of Westmoreland County, Criminal Division, at No. CP-65-CR-0000721-2010.

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN and SHOGAN, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, the Commonwealth of Pennsylvania ("the Commonwealth"), appeals from the order entered on February 26, 2013, in the Westmoreland County Court of Common Pleas. The order on appeal granted a petition for relief filed by Paul K. Holtzer ("Appellee") wherein he asserted he was not required to register as a sex offender pursuant to the newly enacted Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. § 9799.10 et seq. After careful review, we affirm.

The trial court aptly set forth the relevant facts and procedural history of this matter as follows:

On February 11, 2010, a criminal complaint was issued by Magisterial District Judge Mark Mansour charging the petitioner with the following crimes: Count 1: Indecent Assault, in violation of 18 Pa. C.S.A. § 3126(a)(7), a felony of the 3rd degree; Count 2: Endangering the Welfare of Children, in violation of 18 Pa. C.S.A. § 4304(a), a felony of the 3rd degree; and Corruption of Minors, in violation of 18 Pa. C.S.A. § 6301(a)(1), a misdemeanor of the 1st degree.
On February 19, 2010 the Preliminary Hearing on these charges was waived by the petitioner. The Commonwealth issued a Criminal Information on March 17, 2010. The Criminal Information issued by the Commonwealth charged the defendant with the following crime: Count 1: Indecent Assault-Without Consent of Other, in violation of 18 Pa. C.S.A. § 3126(a)(1), a misdemeanor of the 2nd degree.
On April 16, 2010, the petitioner was brought before this Court for the purposes of entering a guilty plea pursuant to plea bargaining that had taken place between the Commonwealth of Pennsylvania and the petitioner.
This Court conducted a guilty plea colloquy with the petitioner which included a written guilty plea petition that was entered into the record on April 16, 2010. At the time of the colloquy and as part of the negotiated plea bargain, the petitioner was sentenced at two separate cases. At Case Number 719 C 2010 the petitioner pled guilty to Indecent Assault-Without Consent of Other, in violation of 18 Pa. C.S.A. § 3126(a)(1), a misdemeanor of the 2nd degree. He was sentenced to two years probation. (That case has now been completed.) At Case Number 721 C 2010 (the case currently before this Court) the petitioner pled guilty to Count 1, Indecent Assault-Without Consent of Other, in violation of 18 Pa. C.S.A. § 3126(a)(1), a misdemeanor of the 2nd degree. (This is the former Count 3, Counts 1 and 2 were dismissed by the Commonwealth.) He was sentenced to two years of probation consecutive to Case Number 719 C 2010. In addition, the petitioner was to have no unsupervised contact with minor children, undergo treatment with Dr. Pass, and one year to pay costs. No Megan Law was to apply. The petitioner's period of probation is not due to expire until April 16, 2014, in regard to this case.
At page 2 of the guilty plea petition which is a part of this record, there appears paragraph 7 which reads as follows:
7. I know that if I plead guilty to these charges, the maximum possible sentences are as follows:
Imprisonment of 2 years, fine $5, 000 (Case Number 719 C 2010)
Imprisonment of 2 years, fine $5, 000 (Case Number 721 C 2010)
It would appear from the record that the guilty plea petition that was used, stated at paragraph 11 of that petition as follows.
11. I understand that by pleading guilty to charges as defined in 42 Pa. C.S.A. §9795.1, I am required to register with the Pa. State Police upon release from incarceration, upon parole from a state or county correctional institution, or upon the commencement of a sentence of intermediate punishment or probation; and I will be committing a felony of the 3rd degree if I fail to fulfill the requirements set forth.
12. I understand that by pleading guilty to charges as defined in 42 Pa. C.S.A. §9795.1, after an assessment and prior to sentencing, the Court will determine if I am a sexually violent predator. If the Court determines that I am a violent predator, I will remain on lifetime parole when released from a state or county correctional facility, unless the Court determines that I am no longer a sexually violent predator, and will be required to attend at least monthly counseling sessions in an approved program.
Paragraphs 11 and 12 were not applicable to the defendant's plea of guilty because the crimes pled to were not included in the enumerated offenses covered by that statute.
It should be noted that at the time of the guilty plea, the guilty plea petition was filed with the Court and will be attached to this Opinion. Attached to the preprinted guilty plea petition was a hand written registration of the terms of the guilty plea.
The next procedural event of significance in this matter occurred in December, 2012 when the petitioner received a letter from the Westmoreland County Adult Probation and Parole Office. He was notified that pursuant to the new requirements of SORNA (effective as of December 20, 2012) that the petitioner had to report to the Westmoreland County Adult Probation and Parole Office and register for the offense of Indecent Assault-Without Consent of Other, in violation of 18 Pa. C.S.A. § 3126(a)(1), a misdemeanor of the 2nd degree. Pursuant to the SORNA Act, Indecent Assault-Without Consent of Other, at 18 Pa. C.S.A. § 3126(a)(1) is now an offense for which the petitioner would have to report to the Pennsylvania State Police for registration as a sexual offender.
This Court takes judicial notice that the petitioner was not required to register as a sexual offender as a result of his 2010 guilty plea to Indecent Assault-Without Consent of Other, pursuant to 18 Pa. C.S.A. § 3126(a)(1), a misdemeanor of the 2nd degree at the time of the entry of the petitioner's guilty plea.
As a result of receiving the correspondence in December, 2012, from the Westmoreland County Adult Probation and Parole Office, the petitioner, on December 17, 2012, filed a Motion to Terminate Probation. Subsequently thereto, the petitioner filed an Amended Motion to Terminate Probation, on December 20, 2012, post hearing, with this Court. If said motion were to be granted, it would, in effect, exempt the petitioner from the Application of Megan's Law Reporting Requirements pursuant to Pennsylvania's Sex Offender's Registration and Notification Act (SORNA) at 42 Pa. C.S.A. § 9799.14 et. seq.
In his motion the petitioner contended:
(1) at the time of the guilty plea there was no requirement for registration with the Pennsylvania State Police pursuant to 42 Pa. C.S.A. §9799.13(2); 18 Pa. C.S.A. § 3126(a)(1) was not a statute that was subject to sexual offender registration at the time of the petitioner's guilty plea. Said statute will only become a sexual registration offense on the effective date of SORNA. The petitioner pled guilty on April 16, 2010 to Indecent Assault-Without Consent of Other, in violation of 18 Pa. C.S.A. § 3126(a)(1), a misdemeanor of the 2nd degree (and not a reportable offense under the Megan's Law registration requirements at that time).
(2) that the negotiated plea bargain entered into with the Commonwealth did not contain any requirement of Megan's Law reporting. However, with the enactment of the Adam Walsh Act [(42 U.S.C.A. § 16901 et seq.)] and the inclusion of 18 Pa. C.S.A. § 3126(a)(1)-Indecent Assault-Without Consent of Other, as a reportable offense, said new requirement imposed by SORNA has breached the plea bargain contract by imposing new conditions requiring registration and reporting. Therefore, the petitioner did not receive the benefits of the negotiated, plea bargained contract that he had entered into with the Commonwealth after he substantially performed his duties under said contract.
(3)that Section 17 of the Pennsylvania Constitution strictly prohibits the legal consequences of a criminal conviction from being changed retroactively. Therefore, the new registration act (SORNA) is an ex post facto law under the circumstances of this case.
On December 17, 2012 this Court held a hearing on petitioner's motion and established a briefing schedule for both the Commonwealth and the petitioner.

Trial Court Opinion, 2/26/13, at 1-4.

Following the hearing, the trial court concluded that while 42 Pa.C.S.A. § 9799.13 is not an ex post facto law, it was not applicable to Appellee.[1]Order, 2/26/13. The trial court also determined that Appellee was not required to register as a sex offender under 42 Pa.C.S.A. § 9799.13(2), which became effective December 20, 2012.[2] The trial court reasoned that: 1) indecent assault, as a misdemeanor of the second degree, was not an offense that required registration at the time of his plea; and 2) the Commonwealth agreed not to charge Appellee with any crimes that would require sex offender registration as part of the plea agreement.[3] Id. The Commonwealth filed a timely appeal.

On appeal, the Commonwealth raises one issue for this Court's consideration:

1. WHETHER THE LOWER COURT COMMITTED AN ERROR OF LAW BY DETERMINING THAT [APPELLEE] IS NOT SUBJECT TO THE REGISTRATION REQUIREMENTS UNDER ACT 111 OF 2011, 42 PA.C.S.A. §9799 et seq, [sic] ALSO KNOWN AS PENNSYLVANIA SORNA.

Commonwealth's Brief at 4. In evaluating a trial court's interpretation of a statute, our standard of review is plenary, and we are limited to determining whether the trial court committed an error of law. Commonwealth v. Leverette, 911 A.2d 998, 1002-1003 (Pa.Super. 2006) (citation omitted).

The relevant portion of the statue is reproduced below:

Applicability
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).

42 Pa.C.S.A. § 9799.13(2).

As noted above, at the time Appellee pled guilty to indecent assault, a conviction for that crime did not require registration as a sex offender. Appellant negotiated a plea agreement where he agreed to plead guilty, receive probation, and with the proviso that he need not register as a sex offender. Subsequently, SORNA was enacted. As of December 20, 2012, indecent assault is now one of the enumerated crimes that requires registration. 42 Pa.C.S.A. § 9799.14(b)(6). The trial court concluded that Appellee was not required to register as a sex offender under 42 Pa.C.S.A. § 9799.13(2). The trial court reached this decision based on its findings that indecent assault was not an offense that required registration at the time of his plea, and Appellant agreed to plead guilty if he did not have to register. Order, 2/26/13. Upon review, we agree.

While a plea agreement occurs in a criminal context, it remains contractual in nature. Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.Super. 1995) (citation omitted). "Furthermore, disputes 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." Id. "Assuming the plea agreement is legally possible to fulfill, when the parties enter the plea agreement on the record, and the court accepts and approves the plea, then the parties and the court must abide by the terms of the agreement." Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.Super. 2009).

The recent decision in Commonwealth v. Hainesworth, __A.3d __, 2013 PA.Super. 318 (Pa.Super. 2013) (en banc), is controlling. In Hainesworth, the appellant pled guilty, inter alia, to three counts of indecent assault, which at the time of his plea did not require sex offender registration. Id. at *1. In turn, the Commonwealth agreed to drop a charge of aggravated indecent assault, which at the time of the plea would have required registration. Id. Moreover, the plea was structured so that the appellant would not have to register as a sex offender. Id. at *3. However, just as in the instant case, when SORNA became effective, the new law required the appellant in Hainesworth to register as a sex offender despite his plea agreement. Id. at *2. In response, the appellant moved to have his probation terminated and sought to be free from registering as a sex offender. Id. Again, just as in the instant case, the trial court denied the motion to terminate supervision, but it held that the appellant was not required to register as a sex offender under SORNA. Id. at *2. This Court affirmed. Id. at *6. The en banc Court determined that, based on principles of contract law, "the parties to this appeal entered into a plea bargain that contained a negotiated term that [the appellant] 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, and we affirm the trial court's order." Id. at *6. Thus, where a defendant negotiated for non-registration as a term of his plea bargain, he is entitled to the benefit of that bargain. Id.

As the issue in the case at bar is identical to the issue presented in Hainesworth, and because we are applying the same legal principles, we are bound by the decision therein. See Commonwealth v. Bucknor, 657 A.2d 1005, 1007 (Pa.Super. 1995) (stating that a three judge panel is bound by the rulings of a court en banc). For the reasons set forth above, we conclude that the trial court committed no error of law in deciding that Appellee was not subject to the registration requirements of 42 Pa.C.S.A. § 9799.13. Accordingly, the trial court's order is affirmed.

Order affirmed.

Judgment Entered.


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