J-S01036-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE ANGEL SEMIDEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1051 MDA 2020

Appeal from the PCRA Order Entered July 21, 2020

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0000698-1998

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 22, 2021

Appellant, Jose Angel Semidey, appeals from the order entered in the 

Court of Common Pleas of York County dismissing his “Petition to Enforce Plea 

Agreement” as an untimely petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. He asserts that his petition did not 

fall within the ambit of the PCRA because it relied on contract principles to

contest the retroactive imposition of SORNA II,1 Subsection I heightened

registration requirements to his case. He asks this Court to vacate the lower 

court’s order and remand the matter for an evidentiary hearing where he may 

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* Former Justice specially assigned to the Superior Court.

1 “Sex Offender Registration and Notification Act,” 42 Pa.C.S. § 9799.10 et 

seq.
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present evidence that his original 10-year registration period prescribed under 

Megan’s Law I 2 was a term of his negotiated plea that requires enforcement. 

After careful review, we vacate and remand with instructions.

On June 11, 1997, 22 year-old Appellant was charged with Involuntary 

Deviate Sexual Intercourse-Forcible Compulsion, 18 Pa.C.S. § 3123(a)(1), 

Involuntary Deviate Sexual Intercourse-Person less than 16 years of age, 18 

Pa.C.S. § 3123(a)(7), and Corruption of Minors, 18 Pa.C.S. § 6301(a) for his 

involvement with a 15 year-old girl. Because the alleged victim shortly 

thereafter retracted her claim that Appellant used force during the alleged 

episode, the IDSI-forcible compulsion charge was dropped.

Appellant and the Commonwealth eventually entered into plea 

negotiations and reached an agreement whereby Appellant would plead guilty 

to both remaining charges in exchange for a two to five year sentence. 

Specifically, Appellant’s written plea colloquy, at paragraph “30”, indicates the

“agreement” calls for Appellant to serve a “2-5” year sentence. Written Plea

Colloquy, 4/22/98, at ¶ 30. Paragraph 34 of the written plea states that no 

other promises were made except for that specified in Paragraph 30. Id. at 

¶ 34. Nowhere in the written colloquy are Appellant’s registration 

requirements mentioned. 

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2 18 Pa.C.S. 9795.1 (repealed).
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Appellant pleaded guilty on April 22, 1998.

3

 The sexual offender 

registration law then in effect was first iteration of Pennsylvania’s Megan’s 

Law, which required offenders convicted of IDSI—Person less than 16 years 

of age to register for a period of 10 years pursuant to 42 Pa.C.S. § 9793.4

On August 10, 1998, the trial court conducted Appellant’s sentencing 

hearing. After discussing Appellant’s status as a non-SVP Megan’s Law 

offender, the court announced that it was sentencing Appellant to two to five 

years’ incarceration “consistent with the plea agreement.” 8/10/98, at 7. 

Appellant was asked to read the sexual offender notification that he had 

signed, after which the prosecutor summarized the contents, stating, “You 

realize that the registration period is for 10 years, and that does not involve 

any community notification.” N.T. at 8. Receiving no reply from Appellant, 

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3 The notes of testimony from Appellant’s guilty plea hearing are not included 

in the certified record. In response to our request for the notes of testimony, 

the common pleas court informed us that no transcription of the hearing 

exists. We also note that the record has not been amended with a Pa.R.A.P. 

1923 “statement in absence of a transcript” alluding to any statement made 

during Appellant’s guilty plea hearing that identified his registration period as 

a product of negotiations.

For reasons made apparent infra, we determine that the lack of either a

transcript or a statement in its absence does not impair our ability to resolve 

the matter before us, as the remainder of the record enables full

understanding of all relevant circumstances surrounding Appellant’s plea and 

consequential registration period. 

4 Section 9793 was repealed effective July 9, 2000 and subsequently amended 

effective February 18, 2001 as 42 Pa.C.S. § 9795.1, pursuant to Megan’s Law 

II.
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the prosecutor requested that a copy of the hearing be made and transmitted 

to the Pennsylvania State Police, Megan’s Law Division. N.T. at 9. At no time 

did either the prosecutor or Appellant indicate that the term of registration 

was affected by plea negotiations.

Appellant completed a five-year prison sentence and commenced his 

10-year registration period on August 14, 2003. On December 3, 2012, with 

only eight months left to his registration, the Pennsylvania State Police notified 

him that under newly enacted Act 11 of 2011 and Act 91 of 2012, known as 

SORNA I, he was a Tier III violator subject to lifetime registration. Appellant 

did not challenge his new categorization or its attendant registration 

requirements. Subsequently, in 2018, Appellant was notified that he 

remained a lifetime registrant under Act 10 of 2018 HB 631, known as SORNA 

II, Subsection I.

5

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5

 The Supreme Court of Pennsylvania in Commonwealth v. Muniz, 640 Pa. 

699, 164 A.3d 1189 (Pa. 2016) determined that SORNA I registration 

requirements were punitive and may not be applied retroactively without 

violating ex post facto laws. In 2018, The Pennsylvania General Assembly 

responded to the constitutional concerns addressed in Muniz by enacting 

SORNA II, which, inter alia, comprised new registration requirements in 

Subsection H (for registrations commencing, or criminal acts committed, 

between 2012 and present) and Subsection I (for registrations commencing, 

or criminal acts committed, between 1996 and 2012). This Court has 

summarized the iterations of SORNA, as follows:

SORNA was originally enacted on December 20, 2011, effective 

December 20, 2012. See Act of Dec. 20, 2011, P.L. 446, No. 111, § 

12, effective in one year or Dec. 20, 2012 (Act 11 of 2011). Act 11 

was amended on July 5, 2012, also effective December 20, 2012, see

Act of July 5, 2012, P.L. 880, No. 91, effective Dec. 20, 2012 (Act 91 
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On December 23, 2019, Appellant filed with the lower court a counseled 

petition seeking relief from SORNA II’s lifetime registration requirement either 

through specific enforcement of the terms of his plea agreement—which he 

maintained included a 10-year registration period—or, in the alternative, on

ex post facto grounds by asserting that the registration requirements of 

SORNA II, Subsection I were punitive in effect and, thus, could not be imposed 

retroactively. Upon review of Appellant’s petition, the lower court deemed it 

an untimely PCRA petition and dismissed it in its entirety. This timely appeal 

follows.

Appellant raises the following issues for our consideration:

1. Did the court err when it categorized Appellant’s petition to 

enforce his plea agreement as a Post Conviction Relief Act 

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of 2012), and amended on February 21, 2018, effective immediately, 

known as Act 10 of 2018, see Act of Feb. 21, 2018, P.L. 27, No. 10, 

§§ 1-20, effective Feb. 21, 2018 (Act 10 of 2018), and, lastly, 

reenacted and amended on June 12, 2018, P.L. 140, No. 29, §§ 1-23, 

effective June 12, 2018 (Act 29 of 2018). Acts 10 and 29 of 2018 are 

generally referred to collectively as SORNA II. Through Act 10, as 

amended in Act 29 (collectively, SORNA II), the General Assembly split 

SORNA I's former Subchapter H into a Revised Subchapter H and 

Subchapter I. Subchapter I addresses sexual offenders who 

committed an offense on or after April 22, 1996, but before December 

20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I 

contains less stringent reporting requirements than Revised 

Subchapter H, which applies to offenders who committed an offense 

on or after December 20, 2012. See 42 Pa.C.S.A. §§ 9799.10-

9799.42.

Commonwealth v. Reslink, --- A.3d ----, 2020 PA Super 289 (Dec. 18, 

2020)
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Motion and thereby deemed that it did not have jurisdiction to 

rule on said petition?

2. Did the court fail to follow case precedent when it failed to 

enforce Appellant’s plea agreement with the Commonwealth of 

Pennsylvania thereby abusing its discretion contrary to 

Pennsylvania law? 

Appellant’s brief, at 8.

Appellant’s first issue addresses the lower court’s decision to construe 

his petition challenging the requirement that he register for life under SORNA 

II as a PCRA petition. Because his petition contained a discrete contract claim 

seeking enforcement of the terms of his negotiated plea, Appellant posits, it 

fell outside the ambit of the PCRA and required merits review. We agree. 

Decisional law of this Commonwealth has clarified that a petition seeking 

enforcement of negotiated plea terms need not be filed under the PCRA: 

A petition for collateral relief will generally be considered a PCRA 

petition if it raises issues cognizable under the PCRA. See 

Commonwealth v. Peterkin, 554 Pa. 547, 533, 722 A.2d 638, 

640 (Pa. 1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole 

means of obtaining collateral relief and encompasses all other 

common law and statutory remedies for same purpose). The plain 

language of the PCRA mandates that claims which could be 

brought under the PCRA, must be brought under the PCRA. 

. . .

On the other hand, a collateral petition to enforce a plea 

agreement is regularly treated as outside the ambit of the PCRA 

and under the contractual enforcement theory of specific 

performance. See, e.g., Commonwealth v. Martinez, 637 Pa. 

208, 147 A.3d 517 (2016) Commonwealth v. Fernandez, 195 

A.3d 299 (Pa.Super. 2018) (en banc); Commonwealth v. 

Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc), appeal 

denied, 626 Pa. 683, 95 A.3d 276 (2014); Commonwealth v. 

Farabaugh, 136 A.3d 995 (Pa.Super. 2016), appeal denied, 643 

Pa. 140, 172 A.3d 1115 (2017); Commonwealth v. Nase, 104 
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A.3d 528 (Pa.Super. 2014), appeal denied, 640 Pa. 389, 163 A.3d 

405 (2016). . . . The designation of the petition “does not preclude 

a court from deducing the proper nature of a pleading.” See

Commonwealth v. Porter, 613 Pa. 510, 524, 35 A.3d 4, 12 

(2012) (citing Commonwealth v. Abdul–Salaam, 606 Pa. 214, 

996 A.2d 482 (2010) (involving deceptive labeling of PCRA 

pleading)).

Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa. Super. 2019). 

More recently, in the consolidated appeal Commonwealth v.

Lacombe, ---A.3d---- (Pa. filed June 20, 2020), the Pennsylvania Supreme 

Court reaffirmed this jurisprudence by “declin[ing] to find that the PCRA, or 

any other procedural mechanism, is the exclusive method for challenging 

sexual offender registration statutes[.]” Id. at *6. Also notable for our 

purposes in the case sub judice is that the procedural history for appellant 

Claude Lacombe mirrors that of Appellant herein. 

In 1997, Lacombe was convicted of IDSI and lesser offenses, subjecting 

him to a prescribed 10-year registration under Megan’s Law I. He was 

released from prison in 2005 and his registration period would have ended in 

2015 but for the intervening enactment of SORNA I, which reclassified IDSI 

as a Tier III offense requiring lifetime registration. 

Like Appellant, Lacombe did not challenge the changes to his 

registration until 2018, when SORNA II, Subsection I had already taken effect. 

The Commonwealth contended that Lacombe’s filing was an untimely PCRA 

petition, but the lower court viewed it as raising an issue outside the aegis of 

the PCRA. Therefore, the court conducted merits review and deemed the 
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registration requirements of Subsection I punitive in effect so as to constitute 

an ex post facto violation.

Pursuant to Pa.C.S. § 722(7),6the Commonwealth appealed directly to 

the Pennsylvania Supreme Court, which granted review. On the threshold 

jurisdictional question of whether review of Lacombe’s challenge should have 

been confined to the PCRA, the court noted that it has “consistently decided 

cases regarding sexual offender registration statutes that were challenged via 

different types of filings.” Id. at 617 (listing “petition to enforce plea 

agreement” as one of the qualifying types). The Court expounded:

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, Lacombe 

included, 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 

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6 Section 722(7) provides, in relevant part:

The Supreme Court shall have exclusive jurisdiction of appeals 

from final orders ... [in m]atters where the court of common pleas 

has held invalid as repugnant to the Constitution, treaties or laws 

of the United States, or to the Constitution of this Commonwealth, 

any treaty or law of the United States or any provision of the 

Constitution of, or of any statute of, this Commonwealth, or any 

provision of any home rule charter.

42 Pa.C.S. § 722(7).
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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. 

Id., 234 A.3d at 617–18.

Accordingly, the Pennsylvania Supreme Court rejected the 

Commonwealth’s jurisdictional challenge, finding the lower court appropriately 

conducted merits review of Lacombe’s petition outside the auspices of the 

PCRA.7 For reasons expressed in both Lacombe and other precedent 

discussed supra, we find the lower court erred in dismissing as an untimely 

PCRA petition Appellant’s petition to enforce the terms of his plea agreement. 

In Appellant’s remaining issue, he argues that retroactive imposition of 

SORNA II, Subsection I, lifetime registration requirements for his offense 

denies him of the benefit of the bargain struck in his negotiated guilty plea. 

To this end, he claims a 10-year registration requirement was a “term” of his 

plea negotiations that required continued observance by both the 

Commonwealth and the court which accepted it, regardless of revised 

requirements of successor sexual offender registration laws. As Appellant 

raised this issue before the lower court, we may address it presently.

The law on the enforcement of agreements is well 

established. “Although a plea agreement occurs in a criminal 

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7 The Supreme Court went on to hold that the reduced registration 

requirements of SORNA II, Subsection I were constitutional, vacated the lower 

court’s order, and reinstated Lacombe’s lifetime registration under Subsection 

I. Id., 234 A.3d at 618-627.
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context, it remains contractual in nature and is to be analyzed

under contract-law standards.” [ ]Farabaugh, 136 A.3d [at]

1001 [ ] (citation omitted). “In determining whether a particular 

plea agreement has been breached, we look to what the parties 

to this plea agreement reasonably understood to be the terms of 

the agreement.” Hainesworth, 82 A.3d 447 (citation and 

internal quotation marks omitted). When the Commonwealth's 

promise or agreement provides consideration for the defendant's 

acceptance of the plea, the Commonwealth must fulfill that 

promise

Fernandez, 195 A.3d at 308.

Controlling precedent recognizes that petitioners may avoid retroactive 

application of new legislation imposing heightened sex offender registration 

requirements by demonstrating their registration terms were the product of 

plea agreement negotiations. Specifically, such a demonstration may be

made by reference to either a guilty plea made in exchange for an agreement 

to nolle prosse or withdraw charges which, if proven at trial, would have 

resulted in greater registration requirements, or to a specific 

acknowledgement made at the guilty plea or sentencing hearing confirming 

that the registration period was a negotiated term. See Farabaugh (finding 

registration avoidance a term of negotiations where Commonwealth nolle 

prossed felony, which would have required registration, in exchange for plea 

to non-reportable charge); Martinez (consideration established by offenders’ 

respective agreements to plead guilty to lesser charges carrying reduced or 

no registration requirement in exchange for either nolle prosse or withdrawal 

of most serious offense carrying greater registration requirements); 

Hainesworth (affirming order granting claim of specific performance of plea 
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agreement and invalidating retroactive application of SORNA registration 

requirements where, pursuant to agreement, Commonwealth dropped sole

charge requiring registration in exchange for Appellant’s guilty plea to

remaining charges); and Commonwealth v. Ritz, 153 A.3d 336, 339 (Pa. 

Super. 2016) (affirming order granting motion to enforce plea agreement; 

though record lacked explicit reference to registration as term of negotiation,

offender pleaded guilty to one charge requiring 10-year registration in 

exchange for agreement to nolle prosse remaining charges, which, if 

collectively proven at trial, would have subjected offender to lifetime 

registration).

In the case sub judice, however, Appellant makes no such 

demonstration. At the time his plea negotiations commenced, Appellant faced 

one count of IDSI-Person less than 16 years of age, which carried a 10-year 

period of registration under Megan’s Law I, and one count of Corruption of 

Minors, which carried no registration requirement. 

Appellant pleaded guilty to both charges in exchange for the promise of 

a reduced sentence of two to five years’ incarceration. In this regard, the 

written guilty plea identifies the reduced sentence as the sole negotiated term 

of the plea. Furthermore, there was neither the bargaining away of a more 

serious offense nor the avoidance of trial and a guilty verdict on multiple 

counts that would have subjected Appellant to a lengthier registration period. 

Therefore, we conclude that Appellant’s registration period was not a 

negotiated term of his plea bargain. In reaching this conclusion, we 
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distinguish the present case from those discussed supra, as the record evinces 

neither an express acknowledgment that registration was a negotiated term 

nor the restructuring of charges and consequential reduction of registration 

requirements that would allow for such an inference. 

It is well-settled that defendants are entitled to the “benefit of their 

bargain” in plea negotiations, but the benefit negotiated and obtained here

pertained only to the duration of Appellant’s sentence. Whether Appellant had 

pleaded guilty to, or suffered a guilty verdict on, the charges he faced, a 

prescribed 10-year registration period would have resulted. Accordingly, we 

affirm the order denying relief on Appellant’s petition to enforce the terms of 

his plea agreement, albeit on different grounds. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/22/2021