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[U] Commonwealth v. Andres

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TERENCE PAUL ANDRES, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered December 20, 2012, in the Court of Common Pleas of Butler County, Criminal Division, at No(s): CP-10-CR-0001298-2007

BEFORE: PANELLA, ALLEN, and STRASSBURGER [*] , JJ.

MEMORANDUM

STRASSBURGER, J.

Terence Paul Andres (Appellant) appeals an order entered on December 20, 2012, which denied his petition for declaratory judgment and ruled that he was required to register as a Tier I sex offender under the Sex Offender Registration and Notification Act (SORNA)[1] for the misdemeanor offense of corruption of minors. After review, we vacate the trial court's order and remand for proceedings consistent with this memorandum.

Appellant was charged on June 4, 2007, with two counts of rape of a child, two counts of statutory sexual assault, two counts of involuntary deviate sexual intercourse with a child, two counts of aggravated indecent assault, two counts of indecent assault, one count of endangering the welfare of a child, and one count of corruption of minors.[2] On January 23, 2009, the Commonwealth amended the criminal information to include one count of recklessly endangering another person (REAP).[3] On that same day, Appellant entered into a negotiated nolo contendere plea to one count of corruption of minors, graded as a first degree misdemeanor, [4] and one count of REAP. All other charges were dismissed. See Commonwealth's Objection to Appellant's Petition for Expungement, 1/18/2013. Appellant was sentenced on February 18, 2009, in accordance with the plea agreement, to an aggregate term of two to 12 months' incarceration at the Butler County Jail, followed by a consecutive 72 months of county probation. Appellant was also ordered to undergo a sexual offender assessment within 90 days of sentencing and comply with any recommended treatment.

The version of Megan's Law in effect at the time of Appellant's plea did not subject him to any reporting requirements based upon the crimes to which he pled.[5] However, in the years following Appellant's plea, a number of legislative changes occurred. In 2010, the legislature expanded the definition of the crime of corruption of minors to include a felony grading for sexual conduct:

(a) Offense defined.--
(1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree.

18 Pa.C.S. § 6301(a) (emphasis added).

Additionally, 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 "[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. Under SORNA, the felony grading of corruption of minors (18 Pa.C.S. § 6301(a)(1)(ii), related to sexual offenses) is categorized as a Tier I sexual offense. 42 Pa.C.S. § 9799.14(b)(8). A Tier I sexual offense conviction requires a defendant to register with the State Police for 15 years. 42 Pa.C.S. § 9799.15(a)(1).

In a letter dated December 12, 2012, the Butler County Adult Probation Office advised Appellant that he was "identified as an offender who is being supervised for an offense that will require registration" under SORNA. Butler County Adult Probation letter, 12/12/12. In response, Appellant, through counsel, filed a petition for declaratory judgment averring that SORNA is inapplicable to Appellant's conviction and seeking an emergency hearing on the issue.

On December 20, 2012, following a hearing, the trial court issued an order denying Appellant's petition. The order states as follows.

[Appellant's] petition for declaratory judgment is denied as [Appellant] was sentenced … for a violation of 18 Pa.C.S.A. [§] 6301(a)(1), corruption of minors, which crime had an offense gravity score of 5 and under the Sentencing Guidelines in effect at the time was defined as corruption of minors (when of a sexual nature).
42 Pa.C.S.A. [§ 9799.14] (b)(21)[6] requires this offense to be an offense registerable as Tier One offense.

Trial Court Order, 12/20/2012.

Appellant filed a timely notice of appeal. On February 12, 2013, Appellant filed his Pa.R.A.P. 1925(b) statement of errors complained of on appeal, wherein he raised three challenges to the trial court's December 20, 2012 order. See Appellant's Statement of Errors Complained of on Appeal, 2/12/2013. The trial court filed a 1925(a) opinion, directing this Court's attention to the December 20, 2012 order of court denying Appellant's petition for declaratory judgment. The trial court's opinion does not address any of the arguments raised in Appellant's 1925(b) statement.

On appeal, Appellant argues that the trial court erred in denying his petition for declaratory judgment for the following reasons: (1) the trial court erred in determining that the offense of corruption of minors is a former law as contemplated by 42 Pa.C.S. § 9799.14(b)(21); (2) the decision of the trial court violates the Equal Protection Clause; and, (3) the decision of the trial court violates the terms of the plea bargain in his case.

Appellant first contends that the language of SORNA is clear and unambiguous in including only the newly-added felony-graded subsection of the corruption of minors statute, 18 Pa.C.S. § 6301(a)(1)(ii), as a Tier I offense. Appellant's Brief at 14-16. Thus, he argues that because he was convicted under the language of subsection (a)(1)(i), which remains unchanged and graded as a misdemeanor following the addition of the new subsection, he should not be subjected to the registration requirements of SORNA. Id.

Resolution of this issue involves our interpretation and application of a statute, for which our standard of review is plenary. Commonwealth v. Baird, 856 A.2d 114, 115 (Pa. Super. 2004). The Statutory Construction Act dictates our approach. 1 Pa.C.S. § 1921.

The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. When the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage, " and the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit. When the words of a statute are not explicit, the former law on the subject is one of the matters that may be considered in order to ascertain the intent of the legislature.

Commonwealth v. Seiders, 11 A.3d 495, 497-498 (Pa. Super. 2010) (internal quotations and citations omitted; emphasis in original).

Appellant is correct that the language under which he was convicted remains the same following the addition of subsection (a)(1)(ii). However, the 2010 amendment to the corruption of minors statute created a new felony offense under which individuals engaged in sexual conduct may be charged by codifying an existing subcategory ("corruption of minors (when of a sexual nature)") present in the Sentencing Guidelines since the 5th edition.

Thus, while Appellant's argument focuses squarely upon the fact that he was convicted of a misdemeanor, what Appellant fails to consider is the nature of the underlying conduct to which he pled. There is no dispute that Appellant's criminal conduct was sexual in nature, a conclusion borne out in the offense gravity score (5) applied to Appellant at sentencing. See 204 Pa. Code § 303.3(b); 204 Pa. Code § 303.15 (as amended May 16, 1997). That the crime was at that time of Appellant's plea a misdemeanor does not change the clear legislative intent of SORNA: to require persons who corrupt minors through conduct of a sexual nature to comply with registration requirements. See 42 Pa.C.S. § 9799.10. As Appellant's conviction squarely fits within those parameters, his claim in this regard must fail.

However, Appellant's third issue on appeal may merit him relief. Appellant avers that his plea agreement was "intentionally structured so that the Appellant would avoid registering as a sex offender" and argues that the new registration requirement violates the terms of the agreement struck with the Commonwealth. Appellant's Brief at 16-20. An en banc panel of this Court recently addressed the contract argument advanced by Appellant in Commonwealth v. Hainesworth, ___A.3d ___, 2013 WL 6504424 (Pa. Super. 2013) (en banc).

Hainesworth entered into a negotiated guilty plea, pre-SORNA, whereby the offenses requiring Megan's Law registration were withdrawn and he was permitted to plead to, inter alia, indecent assault. Id. at *1. Accordingly, Hainesworth did not register. Subsequent to Hainesworth's plea, SORNA categorized indecent assault as a Tier II sexual offense subject to a 25 year registration period. Mindful of this, Hainesworth sought termination of his probation before SORNA's effective date. The trial court denied his request but made the specific finding that "[a]pplication 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 to the efficient disposition of criminal cases in Westmoreland County." Id. at *2.

This Court agreed with the trial court, holding that "the issue before [the Court] was properly framed … as an analysis of contract law." Id. at *2. Emphasizing the importance of the plea bargaining system and the need for specific enforcement of the terms of plea bargains, this Court held that "the parties to this appeal entered into a plea bargain that contained a negotiated term that Hainesworth did not have to register as a sex offender" and "[a]s such, it was not error for the trial court to order specific enforcement of that bargain[.] Id. at *6.

The rationale of Hainesworth controls here.[7] Appellant argues that his plea was specifically negotiated to avoid Megan's Law registration. The Commonwealth does not address this claim in its brief; however, at oral argument the Commonwealth took the position that avoidance of the Megan's Law requirements was not the goal of Appellant's negotiated plea. As noted above, the trial court failed to address this argument despite its inclusion in Appellant's 1925(b) statement. While the offenses requiring registration were dismissed prior to Appellant's plea, we are unable to determine whether such dismissal was part of the bargain, or merely a consequence of Appellant's plea. As such, we are unable to resolve the issue that would grant Appellant relief.

Accordingly, we vacate the order denying Appellant's request for declaratory judgment and we remand this matter to the trial court. On remand, the trial court shall hold a hearing in order to determine whether Appellant's plea bargain contained a negotiated term that he did not have to register as a sex offender. Based on its factual finding, the court shall dispose of Appellant's petition in accordance with Hainesworth.

Order vacated.

Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.


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