Com. v. Moose, C., Jr.

J-E02004-19

                                   

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  CARLOS GENE MOOSE, JR.                       :
                                               :
                       Appellant               :   No. 1897 MDA 2014

               Appeal from the Order Dated October 17, 2014
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0000798-1988


BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J.,
        DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.

OPINION BY NICHOLS, J.:                        FILED: JANUARY 4, 2021

       Appellant Carlos Gene Moose, Jr. appeals from the order denying his

motion to enforce a negotiated plea agreement and to enjoin any requirement

that he register under the Sex Offender Registration and Notification Act1

(SORNA I). This Court granted en banc reargument to consider (1) whether

Appellant’s claims must be decided under the Post Conviction Relief Act2

(PCRA); (2) whether Commonwealth v. Muniz, 

 (Pa. 2017)

applied retroactively; (3) whether Commonwealth v. Fernandez, 

 (Pa. Super. 2018) (en banc), or Commonwealth v. Johnson, 

 (Pa. Super. 2018), governed if Muniz applied in determining the




____________________________________________
1 The Sexual Offender Registration and Notification Act (SORNA I), 42 Pa. C.S.

§§ 9799.10-9799.41 (subsequently amended 2018).

2 42 Pa.C.S. §§ 9541-9546.
J-E02004-19



retroactive application of SORNA. See Order, 1897 MDA 2014, 5/6/19, at 1-

2.

       In his supplemental brief, Appellant asserts that the issues set forth in

this Court’s order granting reargument are no longer relevant in light of the

subsequent amendments to SORNA I in Acts 10 and 29 of 20183 (SORNA II),

in particular, Subchapter I of SORNA II. In the alternative, Appellant asserts

that his original plea agreement bars any obligation to register as a sex

offender. For the reasons that follow, we vacate the trial court’s order and

remand the matter for further proceedings to consider the applicability of

SORNA II.

       The following background is relevant to this appeal. In October of 1987,

Appellant participated in the rape and murder of a woman in York County. In

May of 1995,4 Appellant entered a negotiated guilty plea to one count each of

third-degree murder, rape, and criminal conspiracy.5      Pursuant to the plea

agreement, the trial court imposed an aggregate term of fifteen to thirty years’

incarceration. Pennsylvania had no laws relating to registration, community




____________________________________________
3 2018, Feb. 21, P.L. 27, No. 10 (Act 10); 2018, June 12, P.L. 140, No. 29,

(Act 29).

4  Appellant was initially convicted following a jury trial in 1988.  The
Pennsylvania Supreme Court vacated Appellant’s 1988 conviction in 1992 on
the grounds of prosecutorial misconduct and remanded the matter for a new
trial. See Commonwealth v. Moose, 

 (Pa. 1992).

5 18 Pa.C.S. §§ 2502(c), 3121(a)(1), and 903(b), respectively.


                                           -2-
J-E02004-19



notification, or counseling provisions for convicted sex offenders at the time

of Appellant’s plea or the date of the underlying offense.

      In December of 2011, the Pennsylvania General Assembly enacted

SORNA I, which retroactively applied registration requirements to any

individual who was serving a sentence for a sexually violent offense on or after

the effective date of the statute.    The trial court subsequently informed

Appellant, who was still incarcerated, that he was considered a Tier III

offender and would be subject to lifetime registration requirements.

      On August 13, 2014, Appellant filed a pro se motion to enforce his

negotiated plea agreement and to enjoin any requirement that he register

under the then-existing sex offender registration scheme, SORNA I. See Mot.

to Enforce Plea Agreement, 8/13/14.       Therein, Appellant argued that “his

forced compliance with the registration requirement of SORNA [I] violates due

process of law, fundamental fairness, and the negotiated plea agreement

entered into between him and the Commonwealth.”           Id. at 2.    Appellant

argued that his negotiated plea agreement “did not require him to register as

a sex offender [and] must be strictly enforced.” Id. at 3.

      On October 17, 2014, the trial court denied Appellant’s motion. Trial

Ct. Order, 10/17/14, at 1.      The trial court explained that sex offender

registration requirements “could not have been a consideration” in Appellant’s

decision to plead guilty, as Pennsylvania did not have any laws relating to sex

offender registration at the time Appellant negotiated his plea deal.       Id.

Relying on Commonwealth v. Perez, 

 (Pa. Super. 2014),

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the trial court concluded that SORNA I applied retroactively to Appellant, who

was still serving a sentence for rape. 

 After a panel of this Court affirmed

the trial court’s decision on appeal, Appellant filed a petition for allowance of

appeal in the Pennsylvania Supreme Court.

      On July 19, 2017, our Supreme Court decided Muniz. The Muniz Court

held that SORNA I’s registration requirements were “punitive in effect.”

Muniz, 

. As such, the Court concluded that SORNA I violated

ex post facto principles when applied to individuals who, like Appellant,

committed a sexual offense before December 20, 2012, the effective date of

SORNA I. See 

; see also Commonwealth v. Lippincott, 

 (Pa. Super. 2019) (en banc).

      On February 23, 2018, our Supreme Court, by per curiam order, granted

Appellant’s petition for allowance of appeal in the instant case, vacated this

Court’s decision affirming the trial court’s denial of Appellant’s motion to

enforce his plea agreement, and remanded the matter to this Court for

reconsideration in light of Muniz. See Commonwealth v. Moose, No. 526

MAL 2015 (Pa. Feb. 23, 2018).

      Meanwhile, SORNA II took effect.        SORNA II divides sex offender

registrants into two distinct subchapters—Subchapter H and Subchapter I.

Amended Subchapter H includes individuals who were convicted for an offense

that occurred on or after December 20, 2012 and whose registration

requirements had not yet expired. See 42 Pa.C.S. § 9799.11(c). Subchapter

I includes individuals who were convicted for an offense that occurred “on or

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after April 22, 1996, but before December 20, 2012,” or who were required to

register under a former sexual offender registration law on or after April 22,

1996, but before December 20, 2012, and whose registration requirements

had not yet expired. See 42 Pa.C.S. § 9799.52.

       Following the remand from the Pennsylvania Supreme Court, a panel of

this   Court   reversed   the   trial   court’s   order   denying   relief.   See

Commonwealth v. Moose, 1897 MDA 2014 at 2 (Pa. Super. filed January

11, 2019). The majority found that this Court had jurisdiction over Appellant’s

motion outside of the PCRA because, like the Fernandez petitioners,

Appellant sought to enforce the terms of a plea agreement. Id. at 4. Further,

the majority reasoned that Appellant’s position was comparable to two of the

Fernandez petitioners, who pled guilty to offenses that did not require any

period of registration at the time of their pleas. Id. Therefore, the majority

concluded that it had jurisdiction to review Appellant’s motion to enforce his

plea agreement based on Fernandez. Id. at 6.

       In reviewing Appellant’s underlying challenge to SORNA I, the majority

explained that “at the time of his offenses and his plea, Pennsylvania had not

yet enacted Megan’s Law legislation or, in particular, SORNA [I].” Id. at 10.

The majority reasoned that requiring Appellant to register under SORNA I

“would constitute a greater punishment than what would have been imposed

under the law in effect at the time the crimes were committed.            As such,

retroactive application of these enhanced registration requirements runs afoul

of constitutional ex post facto prohibitions.”     Id. at 10-11. Therefore, the

                                        -5-
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majority concluded that Appellant was “not required to register under SORNA.

Since [Appellant’s] offenses occurred prior to any version of Megan’s Law or

SORNA, the post-Muniz legislation does not apply to him.” Id. at 11.

      The dissent responded that Appellant’s motion was an untimely PCRA

petition for the same reasons stated in Johnson.         Id. at 1 (Bowes, J.,

dissenting). Specifically, the dissent emphasized that Appellant pled guilty

before Pennsylvania had enacted any sex offender registration laws.

Therefore, the dissent concluded that Appellant could not avoid sex offender

registration based on his plea agreement because “the parties clearly could

not structure the plea to accommodate law that did not exist.” Id. at 4. This

Court granted en banc reargument on May 6, 2019.

      Thereafter, on July 21, 2020, our Supreme Court issued its decision in

Commonwealth v. Lacombe, 

 (Pa. 2020).                 Notably, the

Lacombe Court rejected the Commonwealth’s argument that the petitioner

was “required to challenge his sex offender registration status within the

confines of the PCRA.” 

. The Lacombe Court also concluded that

“Subchapter I is nonpunitive and does not violate the constitutional prohibition

against ex post facto laws.” 

.

                            Parties’ Arguments

      With the foregoing background in mind, we summarize the parties’

arguments. In so doing, we note that the parties initially present a procedural

dispute as to whether Appellant was required to raise his claims under the

PCRA. On the merits, Appellant and the Commonwealth present two lines of

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arguments directed to (1) Appellant’s challenge to SORNA I, as was presented

to the trial court and (2) the application of SORNA II, which Appellant raised

in his brief to this Court.

      Appellant argues that the trial court had jurisdiction to consider his

motion to enforce the plea agreement outside of the PCRA. Appellant’s Brief

at 48-51.    Appellant also asserts that “retroactive application of Muniz is

unnecessary for this Court to decide . . . whether registration requirements

can be enforced against [him] at this time.” Appellant’s Brief at 16. Appellant

asserts that Muniz preceded the enactment of Subchapter I, which is the “sole

conceivably applicable” sex offender registration scheme currently in effect.

 Therefore, Appellant argues that this Court need only “address whether

Subchapter I applies to Appellant and can be enforced against him. Only if a

currently existing scheme actually applies and is enforceable does this Court

need to go on and consider whether registration is permissible in light of

Appellant’s plea agreement.” Id. at 17.

      Appellant argues that Subchapter I does not apply to him, as “his

triggering offenses occurred in 1987” and, because he has been incarcerated

since his conviction, he was never required to register under a former version

of the sex offender registration laws. Appellant’s Brief at 19; see also 42

Pa.C.S. § 9799.52 (establishing the dates that determine whether Subchapter

I applies). Further, Appellant contends that even if Subchapter I applies to

him based on the terms of the statute, “it is punitive and cannot be applied

retroactively.” Appellant’s Brief at 24.

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J-E02004-19



      In the alternative, Appellant contends that he is entitled to specific

performance of his negotiated plea agreement, which, he alleges, set forth an

agreed-upon criminal sentence on which no term of sex offender registration

would apply. Id. at 52. Appellant also asserts that Fernandez controls, as

he agreed to a specific term of punishment in exchange for his guilty plea.

Id. at 54.

      Therefore, Appellant contends that his plea agreement precludes him

from any obligation to register as a sex offender under either version of

SORNA. Appellant’s Brief at 16-17, 51. Appellant argues that, although his

plea agreement did not include non-registration as a term, he “pled guilty with

the understanding that the Commonwealth would take no further action

against him apart from his term of incarceration. In other words, by inducing

[Appellant’s] plea, the Commonwealth promised—implicitly if not explicitly—

that all it required of him was [fifteen] to [thirty] years’ incarceration.” Id. at

55.

      Appellant asserts that, under these circumstances, “this Court should

apply Fernandez, not Johnson, because Fernandez upholds important

principles of contract law, prevents unfairness, and avoids the chilling of plea

bargaining that would occur if this Court endorses the imposition of

requirements that did not exist—and could not have been foreseen—when

Appellant agreed to plead guilty.”        Id. at 13.      Appellant argues that

Fernandez “comports with contract law by giving effect to the implicit

promise that induced [Appellant] to plead guilty.”        Id. at 54.     Appellant

                                       -8-
J-E02004-19



contends that “[f]or the Commonwealth to later subject [Appellant] to sex

offender registration by virtue of those convictions is a clear breach of that

promise: a unilateral addition to the consequences of [Appellant’s] plea that

he never accepted.” Id.

      Appellant also argues that Johnson “ignores the contractual principles

that Pennsylvania courts have applied to construe plea agreements.” Id. at

56.   Appellant acknowledges that his plea agreement did not contain any

terms relating to sex offender registration, but asserts that “the Johnson

approach places the risk of unforeseen developments wholly on defendants.

Defendants must perform their end of the bargain completely, but have no

recourse when the Commonwealth places additional, onerous burdens on

them.” Id. at 58. Finally, Appellant concludes that “due to the uncertainty

and unfairness that the Johnson approach wreaks, applying it here would

chill plea bargains going forward.” Id. at 61.

      The Commonwealth initially responds that Appellant’s motion must be

treated as a PCRA petition. Commonwealth’s Brief at 29. The Commonwealth

asserts that the “resolution of whether Johnson or Fernandez controls is

largely based on whether this Court rules that [Appellant] is challenging the

legality of his sentence.” Id. at 37. The Commonwealth argues that Johnson

applies in the instant matter, as both matters “involved plea agreements that

existed prior to the enactment . . . of any sexual offender registration

requirements. As the Johnson Court stated, ‘by definition, the parties could



                                    -9-
J-E02004-19


not have contemplated non-registration as a term of the plea.’”       Id.   The

Commonwealth contends that, because Appellant does not have a valid plea

enforcement claim, his Muniz claim is a challenge to the legality of his

sentence that must be brought under the PCRA. Id.

      In distinguishing Fernandez, the Commonwealth asserts that the

Fernandez petitioners “entered into negotiated pleas at times where various

incarnations of Megan’s Law existed and where the parties could negotiate the

registration requirements.”     Id. at 37.    Therefore, the Commonwealth

contends that, unlike Appellant, the Fernandez petitioners were not limited

to challenging the legality of their sentence. Id. at 37-38.

      On the merits, the Commonwealth similarly argues that because

Appellant’s negotiated plea agreement did not contain terms relating to sex

offender registration, he has “no specific plea bargain to enforce” with respect

to sex offender registration.    Id. at 21.    Further, because sex offender

registration laws were not in effect at the time of Appellant’s plea, the

Commonwealth asserts that “the parties could not have contemplated a lack

of registration as a term of the plea bargain.” Id. at 11. The Commonwealth

concludes that, because Appellant’s plea agreement did not contain a term

relating to sex offender registration, he “cannot establish a plea bargain that

requires enforcement.” Id. at 21. As such, the Commonwealth argues that

Johnson controls, and that Appellant is not entitled to relief from SORNA I

based on Muniz. Id. at 16.


                                     - 10 -
J-E02004-19



      In response to Appellant’s challenges to his obligation to register under

Subchapter I, the Commonwealth contends that it “is not germane to

resolution of [Appellant’s] appeal,” as he filed the original motion to enforce

his plea agreement based on SORNA I. Id.

                      Preliminary Procedural Matters

      Initially, we resolve the parties’ dispute as to whether Appellant was

required to challenge his sex offender registration requirements in a PCRA

petition, such that Appellant’s failure to establish a PCRA timeliness exception

would preclude a court for entertaining the merits of his claim. We conclude

that our Supreme Court’s recent decision in Lacombe is dispositive.

      Briefly, we note that following Muniz, petitioners seeking relief from

SORNA I’s registration requirements were required to raise such claims in a

timely PCRA petition. See, e.g., Commonwealth v. Greco, 

 (Pa. Super. 2019) (discussing Muniz and concluding that because the

“punitive nature of [SORNA I] implicates the legality of a sex offender’s

sentence . . . claims challenging application of SORNA’s registration provisions

– unlike prior versions of Megan’s Law – are properly considered under the

PCRA”); Commonwealth v. Murphy, 

 (Pa. Super. 2018)

(affirming the dismissal of an untimely PCRA petition and stating that the

petitioner’s “reliance on Muniz cannot satisfy the ‘new retroactive right’

exception” to the PCRA time-bar); see also, e.g., Commonwealth v.

Rivera-Figueroa, 

, 678-79 (Pa. Super. 2017) (vacating the trial




                                     - 11 -
J-E02004-19



court’s order denying the petitioner’s timely PCRA petition and remanding the

matter to the trial court for the petitioner to argue Muniz)).

      In Johnson, the petitioner filed a petition for writ of habeas corpus and

challenged his obligation to register as a sex offender under SORNA I.

Johnson, 

. In that case, the petitioner’s conviction arose

from a 1992 nolo contendere plea, which was completed three years prior to

Pennsylvania’s first iteration of the sex offender registration laws. Following

the enactment of SORNA I, the petitioner challenged his registration

requirements based, in part, on his plea agreement. 

. On appeal,

a panel of this Court held that the petitioner’s habeas filing should have been

treated as an untimely PCRA petition. 

.

      The Johnson Court acknowledged that a petitioner could seek

enforcement of the negotiated terms of a plea agreement outside the

timeliness requirements of the PCRA. 

 However, the Court concluded that

the “plea enforcement theory” did not apply to the petitioner, who pled guilty

before sex offender registration laws went into effect. 

 Specifically, the

Johnson Court reasoned that it could not “apply Muniz via a plea

enforcement theory, as the parties clearly could not structure the plea to

accommodate law that did not exist.”      

.   Further, although the

Johnson Court acknowledged that SORNA I’s registration requirements were

“in fact punitive post-Muniz,” it nonetheless declined to grant relief, noting

that “the PCRA clearly offers a remedy for the requested relief, i.e. the

retroactive application of Muniz.” 

                                    - 12 -
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      As   discussed   previously,   the   Lacombe   Court   emphasized      that

petitioners may challenge the application of a sexual offender registration

statute outside the framework of the PCRA.       Lacombe, 234 A.3d at 617.

Specifically, the Court explained:

      This Court has not yet required that sexual offender registration
      statutes be challenged through the PCRA or some other procedural
      mechanism.       Indeed, we have consistently decided cases
      regarding sexual offender registration statutes that were
      challenged via different types of filings. See Muniz, [

] (successful challenge to constitutionality of SORNA via
      direct appeal), Commonwealth v. Martinez, 

      (Pa. 2016) (successful challenge to increase of registration term
      through “Petition to Enforce Plea Agreement or for a Writ of
      Habeas Corpus” where PCRA petition would have been untimely),
      A.S. v. Pa. State Police, 

, 903 n.7 (Pa. 2016)
      (successful challenge to registration term through mandamus
      action against PSP), [Commonwealth v. Williams, 

 (Pa. 2003) (Williams II)] (unsuccessful challenge to
      constitutionality of Megan’s Law II through “Motion for
      Extraordinary Relief” and “Motion for Relief”). Our approach in
      this regard takes into account the fact that frequent changes to
      sexual offender registration statutes, along with more onerous
      requirements and retroactive application, complicate registrants’
      ability to challenge new requirements imposed years after their
      sentences become final.

      This is especially so under the PCRA as many registrants . . . would
      be ineligible for relief on timeliness grounds. See 42 Pa.C.S. §
      9545(b)(1) (PCRA petition must be filed within one year of
      judgment of sentence becoming final unless exception applies).
      Other registrants may be ineligible because their sentence has
      expired while their registration requirements continue. See 42
      Pa.C.S. § 9543(a)(1) (PCRA petitioner must be serving sentence
      to be eligible for relief). Both situations arise from the fact that
      the registration period does not begin until registrants are
      released from prison, which may be well after their sentence has
      become final or may signal the completion of their sentence.
      Accordingly, we decline to find the PCRA, or any other procedural
      mechanism, is the exclusive method for challenging sexual
      offender registration statutes and we thus conclude the trial court


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J-E02004-19


       had jurisdiction to consider Lacombe’s “Petition to Terminate His
       Sexual Offender Registration Requirements.”

Id. at 617-18. (some formatting altered).

       Here, Appellant filed a motion challenging his obligation to register as a

sex offender based on his negotiated plea agreement. In light of our Supreme

Court’s decision in Lacombe, we conclude that Appellant was not required to

challenge his registration requirements under the PCRA.6 See id. Therefore,

the trial court properly exercised jurisdiction over Appellant’s motion.

                     Effect of Appellant’s Plea Agreement

       We next consider the issue of whether Appellant’s negotiated plea

agreement affects his obligation to register as a sex offender.

       The law regarding the enforcement of plea agreements is well

established.

       Plea bargaining is not some adjunct to the criminal justice system;
       it is the criminal justice system. Accordingly, it is critical that plea
       agreements are enforced, to avoid any possible perversion of the
       plea bargaining system. The disposition of criminal charges by
       agreement between the prosecutor and the accused, . . . is an
       essential component of the administration of justice. Properly
       administered, it is to be encouraged. In this Commonwealth, the
       practice of plea bargaining is generally regarded favorably, and is
       legitimized and governed by court rule. . . . A “mutuality of
       advantage” to defendants and prosecutors flows from the
       ratification of the bargain.

                                      …


____________________________________________
6 To the extent prior decisions of this Court, including Johnson, concluded
that petitioners are required to challenge their sex offender registration
requirements in a timely PCRA petition, that pronouncement is overruled.

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      Although a plea agreement occurs in a criminal context, it remains
      contractual in nature and is to be analyzed under contract-law
      standards. 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.

      Any ambiguities in the terms of the plea agreement will be
      construed against the Government. Nevertheless, the agreement
      itself controls where its language sets out the terms of the bargain
      with specificity. Regarding the Commonwealth’s duty to honor
      plea agreements, well-settled Pennsylvania law states:

         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.

         Whether a particular plea agreement has been breached
         depends on what the parties to the agreement reasonably
         understood to be the terms of the agreement.

Commonwealth v. Farabaugh, 

 (Pa. Super. 2016)

(internal citations and quotation marks omitted).

      [T]he convicted criminal is entitled to the benefit of his bargain
      through specific performance of the terms of the plea agreement.
      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.

Martinez, 

 (some internal citations omitted). Further, as is

true of all contracts, “[t]he laws that are in force at the time the parties enter

into a contract are merged with the other obligations that are specifically set

forth in the agreement. Statutes generally should not be applied retroactively



                                     - 15 -
J-E02004-19



to a contractual relationship where the application would alter existing

obligations.”   Empire Sanitary       Landfill,   Inc. v. Com., Dept. of

Environmental Resources, 

 (Pa. 1996) (citations

omitted).

      Prior to Muniz, a defendant’s obligation to register as a sex offender

was considered a “collateral consequence” of a guilty plea, as those conditions

were held to be non-punitive and were therefore unrelated to “the length or

nature of the sentence.” Commonwealth v. Leidig, 

 (Pa.

2008) (citation omitted) (discussing a former sex offender registration scheme

and noting that, because registration was non-punitive, the “logical extension

. . . is that the registration requirements . . . are collateral, not direct,

consequences of conviction”).

      Therefore, when a defendant sought to avoid sex offender registration

requirements based on a negotiated plea, courts could only grant relief in

cases where non-registration or a specified period of registration was a term

of the agreement.    Commonwealth v. Nase, 

 (Pa.

Super. 2014) (reversing the trial court’s order denying the appellant’s motion

to enforce a plea agreement that contained an express term relating to sex

offender registration and holding that “the collateral consequence construct

does not eliminate the requirement that courts enforce bargained-for

exchanges where the parties negotiate over a collateral consequence of a

plea”); see also Commonwealth v. Hainesworth, 

 (Pa.

Super. 2013)) (holding that, in a plea enforcement case concerning sex

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J-E02004-19



offender registration requirements, “the dispositive question is whether non-

registration was a term of [the defendant’s] plea agreement”).

      In Martinez, which was decided before Muniz, the Pennsylvania

Supreme Court determined that the petitioners were entitled to serve the

registration terms set forth in their plea agreements, rather than those later

prescribed by SORNA I.     Martinez, 

. In reaching this

conclusion, the Martinez Court explained:

      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. Rather, quite simply, the convicted criminal is entitled
      to the benefit of his bargain through specific performance of the
      terms of the plea agreement. 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.

 (citations and footnote omitted).    In each of the cases considered in

Martinez, the Supreme Court emphasized that Megan’s Law was in effect at

the time of the plea agreement, the defendants had pled guilty in exchange

for a specific term of sex offender registration, and that, therefore, the

defendants were entitled to the benefit of their bargain. 

.

      Following Muniz, this Court recognized that SORNA I’s sex offender

registration requirements were “no longer merely a collateral consequence but

rather punishment.”    Commonwealth v. Hart, 

, 667 (Pa.

Super. 2017).    Further, this Court noted that “[a]lthough Leidig is not

specifically mentioned by the Muniz Court, it appears that the Muniz decision

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impliedly overrules Leidig to the extent that Leidig determined sex offender

registration requirements to be a collateral consequence.” Id. at n.10.

     In Fernandez, an en banc panel of this Court addressed whether the

appellants, who entered negotiated guilty pleas and later violated their

probation, could be ordered to register under SORNA I. Fernandez, 

. The Fernandez appellants, who were ordered to comply with SORNA

I as part of their violation of probation (VOP) sentences, filed motions to

enforce the terms of their respective plea agreements. 

. In each

case, the trial court denied relief based on this Court’s decision in

Commonwealth v. Partee, 

 (Pa. Super. 2014), concluding that

the appellants “were not entitled to specific performance of the negotiated

plea agreement because [they] had violated the terms of their plea

agreements.” 

     In a consolidated appeal to this Court, we considered whether the

appellants could be ordered to comply with the new registration conditions

assigned to their crimes under SORNA I, in light of Muniz.         

    The

Fernandez Court noted that the facts of the appellants’ cases were identical

to Partee, as each appellant had violated the terms of his respective plea

agreement. 

. However, the Fernandez Court reiterated that

following Muniz, a trial court could not retroactively increase a defendant’s

registration requirements under SORNA I. 

. Therefore, the Court

concluded that Muniz abrogated Partee, and that although the appellants




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violated their probation sentences, “the reclassifications of the [a]ppellants

after the effective date of SORNA cannot stand.” 

.

       Importantly, the Fernandez Court did not condition its conclusion on

whether sex offender registration was a negotiated term of the appellants’

plea agreements. Instead, the Fernandez Court explained:

       To the extent the Commonwealth claims [the a]ppellants failed to
       demonstrate     their   plea  agreements     precluded   lifetime
       registration, Muniz renders such a demonstration unnecessary.
       Following Muniz, SORNA’s sexual offender requirements may not
       be imposed retroactively on any defendant, regardless of whether
       the defendant accepted a plea bargain or was convicted at trial.
       Even offenders who, like [the a]ppellants, were sentenced before
       SORNA became law, have since violated the terms of their
       probation, and have been resentenced, are not subject to
       retroactive application of SORNA’s requirements.

. Ultimately, the Fernandez Court held that the appellants were

“subject to the original periods of sexual offender registration and conditions

imposed at the time of their plea bargains, if applicable.”7 

.

       As noted above, however, Johnson reasoned that the plea enforcement

theory did not apply to a petitioner who pled guilty “prior to the enactment of

any sexual offender laws.” Johnson, 

. Johnson relied on

Farabaugh for the proposition that “where a plea bargain is structured so the

defendant will not have to register or report as a sex offender or he will have

to register and report for a specific time[,]” then the “‘collateral consequence’
____________________________________________
7 Two of the petitioners, Colbert and Wilson, pled guilty to offenses that did

not require sex offender registration at the time they entered their plea
agreements. Nonetheless, sex offender laws existed and applied to other
sexual offenses at that time.


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concept attributed generally to sex offender registration requirements does

not trump enforcement of the plea bargain.” 

 at 967-68 (citing Farabaugh

). The Johnson panel emphasized that because sex offender

registration requirements did not exist at the time the petitioner pled guilty,

“[b]y definition, the parties could not have contemplated non-registration as

a term of the plea.” Id. at 967. Therefore, the Johnson Court stated that it

could not “apply Muniz via a plea enforcement theory, as the parties clearly

could not structure the plea to accommodate law that did not exist.” Id. at

968.

       In sum, our review of the plea enforcement cases, together with the

more recent decisions applying Muniz, discussed herein, clarifies that a

petitioner’s negotiated guilty plea precludes subsequent application of a

punitive registration scheme because it would effectively alter the petitioner’s

agreed-upon sentence. This is so even where a negotiated plea agreement is

silent regarding sex offender registration. Moreover, where a petitioner pleads

guilty in exchange for a specific sentence, he is entitled to the benefit of that

bargain.

       Given the factual and procedural circumstances of this case, we decline

to apply the reasoning suggested in the Johnson case that, in all instances,

the absence of a specific term in a plea agreement precludes a party from

obtaining relief.   See Johnson, 

 (stating that “we cannot

apply Muniz via a plea enforcement theory, as the parties could not structure

the plea to accommodate law that did not exist”).          When a registration

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requirement is punitive, it effectively increases a defendant’s agreed-upon

criminal sentence.       Such an increase would not only violate ex post facto

principles, but would alter a fundamental term of the bargain as to the

sentence.      As this Court noted in Farabaugh, “we refuse to allow [a

petitioner’s] plea bargain to be reformed with the addition of new conditions

which did not exist when he entered the plea agreement. To do otherwise

would play ‘gotcha’ with a revered and favored method of resolving criminal

cases.” Farabaugh 

 (citations omitted). In other words,

because punitive registration requirements constitute “criminal punishment,”

a petitioner may avoid such requirements by demonstrating that application

of those requirements would exceed the terms of his agreed-upon sentence.

See Farabaugh 

 (citations omitted).

      However, when a registration scheme is not punitive, it constitutes a

collateral consequence of a guilty plea. See Hart, 174 A.3d at 667. Further,

because non-punitive registration requirements are not criminal punishment,

they would not materially alter a negotiated term establishing a petitioner’s

criminal     sentence.      See     Lacombe,      234   A.3d   at   606;   see   also

Commonwealth v. Smith, --- A.3d ---, 1011 MDA 2019, 

at *3 (Pa. Super. filed Sep. 28, 2020) (discussing Lacombe and Leidig and

reiterating that “non-punitive, administrative requirements are merely

collateral    consequences     of    a   criminal   conviction”).      Under     these

circumstances, a petitioner must demonstrate that non-registration, or a

specific term of registration, was part of the negotiated plea.                   See

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Hainesworth, 

 (stating that “the dispositive question is

whether registration was a term of the bargain struck by the parties”); see

also Martinez, 

; see also Johnson, 

.

      Here, to the extent Appellant challenged his obligation to register under

SORNA I, we agree that he is entitled to relief. We recognize that Appellant’s

plea agreement did not contain any terms related to sex offender registration.

Moreover, at the time Appellant pled guilty, Pennsylvania had not yet enacted

laws requiring sex offender registration. Therefore, as noted by the trial court,

non-registration could not have been a consideration in Appellant’s decision

to plead guilty. See Trial Ct. Order, 10/17/14, at 1. Nonetheless, Appellant’s

plea agreement set forth an agreed-upon sentence of fifteen to thirty years’

incarceration.   Given our Supreme Court’s decision in Muniz, retroactive

application of SORNA I’s punitive registration scheme would effectively

increase Appellant’s sentence.    See Muniz, 

; see also

Fernandez, 

. Therefore, although Appellant’s plea agreement

did not specifically preclude or limit sex offender registration, we nonetheless

conclude that Appellant cannot be ordered to comply with registration

requirements that would impose additional criminal punishment beyond what

was stated in the plea agreement.        See Farabaugh 

(citations omitted); see also Hart, 174 A.3d at 667; see also Lacombe, 234

A.3d at 606.

                         Applicability of SORNA II


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         Finally, to the extent Appellant presently challenges his obligation to

register under Subchapter I, the trial court has not had the opportunity to

address Appellant’s claims. Therefore, any issues relating to the application

of Subchapter I are not properly before us. See Pa.R.A.P. 302(a) (stating

that “[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal”).

         Accordingly, in light of the issues discussed in Appellant’s brief, we

remand the matter to the trial court for further proceedings for the trial court

to address Appellant’s claims and determine whether Appellant is obligated to

register as a sex offender under Subchapter I. See Smith, 

at *3.

         In sum, we vacate the portion of the trial court’s order requiring

Appellant to register under SORNA I and remand for further proceedings

consistent with this opinion.8

         Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 01/04/2021



____________________________________________
8 On remand, Appellant may file a supplemental petition raising his instant
claims relating to his obligation to register under Subchapter I.

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