J-S20021-14 

___________________________ 

*Former Justice specially assigned to the Superior Court. 

2016 PA Super 63

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

RAYMOND W. FARABAUGH 

 Appellant No. 1198 WDA 2013 

Appeal from the Order Entered July 1, 2013 

In the Court of Common Pleas of Cambria County 

Criminal Division at No(s): CP-11-CR-0000362-2011 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and FITZGERALD, J.* 

OPINION BY GANTMAN, P.J.: FILED MARCH 11, 2016 

 Appellant, Raymond W. Farabaugh, is before us upon remand from the 

Pennsylvania Supreme Court, with regard to his appeal from the Cambria 

County Court of Common Pleas order that dismissed his petition to enforce 

his negotiated plea agreement or, in the alternative, for a writ of habeas 

corpus. For the following reasons, we reverse and remand. 

 The relevant facts and procedural history of this case are as follows. 

On September 23, 2010, Victim initiated an investigation, based on 

allegations that when she was under 16 years old, in 1994-1995, she 

worked on a farm with Appellant, who was then 25 years old. Victim 

claimed Appellant would approach her from behind, grind up against her, 

grab her breasts, stick his hands down her pants, and rub her vagina. 
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Victim eventually quit the job. Both parties moved on with their respective 

adult lives until 2010. As a result of Victim’s report in 2010, and follow-up 

police investigation, the Commonwealth charged Appellant on January 12, 

2011, with one count of aggravated indecent assault as a second degree 

felony and one count of indecent assault as a second degree misdemeanor.1 

Appellant and his counsel engaged in plea negotiations with the 

Commonwealth and struck an agreement. Appellant agreed to plead guilty 

to the indecent assault count as a second degree misdemeanor and a nonreportable offense under the relevant version of Megan’s Law (requiring 

perpetrators of specified offenses to register and report to authorities), to be 

punishable by two years’ probation, plus fines, costs, 500 hours of 

community service, sex offender treatment, and no contact with Victim. In 

exchange, the Commonwealth agreed to a nolle prosequi on the felony 

count, which was a reportable offense under Megan’s Law. At the time of 

the plea agreement/proceeding on April 26, 2011, the parties expressly 

agreed Appellant’s plea involved a non-reportable offense. That fact was 

____________________________________________ 

1

 18 Pa.C.S.A. § 3126(a)(8) (providing: (a) “A person is guilty of indecent 

assault if the person has indecent contact with the complainant, causes the 

complainant to have indecent contact with the person...for the purpose of 

arousing sexual desire in the person or the complainant and: (8) the 

complainant is less than 16 years of age and the person is four or more 

years older than the complainant and the complainant and the person are 

not married to each other”). This version of the statute became effective 

May 30, 1995, and graded Section 3126(a)(8) as a misdemeanor of the 

second degree. 
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acknowledged undisputedly on the written plea colloquy and in an email 

from the Commonwealth to defense counsel. 

Our Supreme Court continues: 

On June 28, 2011, the trial court sentenced [Appellant] to 

two years’ probation; at the time of sentencing, the law 

did not require [him] to register as a sexual offender. 

Later that year, amendments to Megan’s Law added crimes 

to the list defined as sexually violent offenses, and 

established a three-tiered system for classifying such 

offenses and their corresponding registration periods. See

Act of December 20, 2011, P.L. 446, No. 111, § 12 

(effective December 20, 2012) (Megan's Law IV). The 

2011 amendments became effective December 20, 2012;

they applied to individuals who, as of that date, [had been] 

convicted of a sexually violent offense and were 

incarcerated, on probation or parole, or subject to

intermediate punishment. See id. (codified as amended at 

42 Pa.C.S. § 9799.13). Thus, [Appellant] was subject to 

the reporting and registration requirements, ...and, as a 

Tier–II sexual offender, ...was required to register for 25 

years, ...§ 9799.15(a)(2).[2] 

After [SORNA] went into effect, [Appellant] filed a “Petition 

to Enforce Plea Bargain/Habeas Corpus,” arguing that 

ordering him to comply with the new registration and 

reporting requirements violated his plea agreement and 

____________________________________________ 

2

 On October 17, 2012, before the effective date of SORNA (December 20, 

2012), Appellant’s probation officer notified Appellant about the imminent 

changes per SORNA and filed a petition to terminate Appellant’s probation, 

noting Appellant had fulfilled all of the requirements of his probation. The 

court denied the petition the same day. Appellant also sought relief from 

probation on December 6, 2012, based on the plea agreement and the 

impending SORNA registration/reporting requirements. The trial court 

scheduled a hearing for December 14, 2012, after which the court denied 

Appellant’s petition by order filed December 17, 2012. Appellant filed an 

appeal from this order on December 28, 2012. 
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various state and federal constitutional provisions.

[3] The 

trial court denied the petition, and [Appellant] appealed to 

the Superior Court.[4] 

On March 14, 2014, while the appeal was pending in the 

Superior Court, after the parties had submitted their briefs, 

the governor signed Act 19 into law, amending the 

provisions of Megan’s Law again; the Act was effective 

immediately and made retroactive to December 20, 2012. 

See Act of March 14, 2014, P.L. 41, No. 19, §§ 7–8. 

Relevant to this appeal, Act 19 added the following

provision, in pertinent part: “For purposes of this

paragraph, the term ‘sexually violent offense’ ...shall not 

include...[a] conviction under 18 Pa.C.S. § 3126 (relating 

to indecent assault) where the crime is graded as a

misdemeanor of the second degree.” Id., § 3 (codified at 

42 Pa.C.S. § 9799.13(3.1)(ii)(B)). 

The Superior Court panel sua sponte addressed Act 19, 

holding the above language exempted [Appellant] from the 

requirements of Megan’s Law. The panel interpreted

paragraph (3.1) as excluding convictions of indecent 

assault as a second-degree misdemeanor from every class 

of registrants in 42 Pa.C.S. § 9799.13. Thus, the panel 

reasoned [Appellant] “effectively never was[] subject to 

the Megan’s Law registration requirements” because Act 

19 was made retroactive to December 20, 2012—the 

effective date of Megan’s Law IV, which [Appellant] was 

challenging. Commonwealth v. Farabaugh, No. 1198 

WDA 2013, unpublished memorandum at 4, 105 A.3d 36 

(Pa.Super. filed June 17, 2014). As a result, the panel 

determined [Appellant’s] constitutional issues were moot, 

vacated the trial court’s order, and remanded. 

____________________________________________ 

3

 Appellant filed his petition to enforce plea bargain/habeas corpus on 

January 28, 2013. That same day, he withdrew his pending appeal. 

4

 The order and opinion denying Appellant’s petition to enforce plea 

bargain/habeas corpus was entered July 1, 2013. Appellant filed a timely 

notice of appeal from that decision on July 22, 2013. By order filed July 29, 

2013, the court directed Appellant to file a concise statement of errors 

complained of on appeal, which he timely filed on August 13, 2013. 
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The Commonwealth filed a Petition for Allowance of 

Appeal, and we granted review of the following question: 

Whether the Superior Court erred, while acting sua 

sponte, when it incorrectly found that new 

amendments to 42 Pa.C.S. § 9799.13 excluded the 

crime of [i]ndecent [a]ssault (18 Pa.C.S. § 

3126(a)(8)) from list [sic] of mandated sex offender 

registry crimes. 

Commonwealth v. Farabaugh, ___ Pa. ___, 105 A.3d 

655 (2014) (per curiam) (alterations in original).... 

Commonwealth v. Farabaugh, ___ A.3d ___, 2015 WL 9282997, at 

*1−*2 (Pa. December 21, 2015). Following intense statutory construction, 

the Supreme Court was “constrained to reverse” this Court’s decision, 

holding: 

[T]he Superior Court erred in finding Act 19 excluded 

[Appellant] from registering as a sexual offender. It is 

clear that provision (3.1) of § 9799.13 is “a paragraph 

since it is illustrated by an Arabic numeral.” Id. If the 

legislature intended the paragraph (3.1) exception to apply 

to each class of registrants in § 9799.13, it would have 

used the phrase “for purposes of this section,” but that is 

not what the statute says, and we may not read words into 

an unambiguous statutory provision. See 1 Pa.C.S. § 

1921(b). The phrase “for purposes of this paragraph” 

demonstrates the exclusion applies only to paragraph 

(3.1), as the word “paragraph” in this context is a

technical term with a specific meaning. See 1 Pa.C.S. § 

1903 

Id. at *5. As a result of the Farabaugh decision, the Supreme Court also 

indirectly called into doubt the Superior Court case of Commonwealth v. 

Bundy, 96 A.3d 390 (Pa.Super. 2014) (relying on statutory interpretation 

similar to this Court’s decision in the Farabaugh case, which our Supreme 
J-S20021-14 

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Court overturned). Following reversal, the Supreme Court remanded the 

case to our Court to address any issues Appellant properly preserved for 

appeal; the matter is now before us for that resolution. 

Appellant raised five issues in his brief: 

[WHETHER] THE SENTENCING COURT ERRED BY 

REFUSING TO HONOR THE PLEA AGREEMENT BETWEEN 

[APPELLANT] AND [THE COMMONWEALTH] AS A MATTER 

OF DUE PROCESS. 

[WHETHER] THE SENTENCING COURT ERRED BY NOT 

FINDING THE SEXUAL OFFENDER REGISTRATION AND 

NOTIFICATION ACT UNCONSTITUTIONAL. 

[WHETHER] THE STATUTE OF LIMITATIONS EXPIRED 

PRIOR TO THE FILING OF CHARGES CAUSING ANY 

CONVICTION TO BE TIME BARRED. 

[WHETHER] THE SENTENCING COURT ERRED IN FINDING 

[APPELLANT’S] PLEA WAS KNOWING, VOLUNTARY, AND 

INTELLIGENT. 

[WHETHER] [APPELLANT’S] GUILTY PLEA AND 

SENTENCING COUNSEL WAS INEFFECTIVE. 

(Appellant’s Brief at 20).5 

 For disposition, we combine Appellant’s remaining arguments. 

Essentially, Appellant contends he agreed to plead guilty to one count of 

____________________________________________ 

5

 Appellant raised his third, fourth and fifth issues for the first time on 

appeal. See generally Pa.R.A.P. 302(a) (providing: “Issues not raised in

the lower court are waived and cannot be raised for the first time on 

appeal”). Consequently, issues three through five are waived solely for 

purposes of this appeal. They could be raised, if necessary, under the rubric 

of ineffective assistance of counsel in a timely petition filed per the Post 

Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. 
J-S20021-14 

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indecent assault, as a second degree misdemeanor, to be punishable by two 

years’ probation, plus fines, costs, 500 hours of community service, sex 

offender treatment, and no contact with Victim. The Commonwealth agreed 

to nolle prosequi the felony count, which was a reportable offense under the 

relevant version of Megan’s Law. At the time of the plea proceedings, the 

parties agreed Appellant’s plea involved a non-reportable offense under 

Megan’s Law. Appellant contends the integrity of the plea process generally, 

and his in particular, compels enforcement of the plea entered. Appellant 

insists he relinquished his right to a jury trial, among other rights, to enter 

the plea agreement; and application of SORNA to his case materially 

undercuts the plea agreement because it subjects Appellant to reporting 

conditions he sought to avoid by pleading guilty. 

Appellant maintains that SORNA substantially modifies his plea 

agreement and the impairment is unreasonable. Appellant avers his plea 

bargain incorporated then-existing law regarding sex offender registration, 

and the contracting parties understood he would not have to register as a 

sex offender. Appellant claims he reasonably expected to be subject to two 

years of probation with no Megan’s Law registration. By virtue of SORNA, 

new terms have been unilaterally added to that bargain, terms Appellant 

specifically sought to avoid by pleading guilty. Appellant maintains SORNA 

is no incidental or minor alteration to the plea bargain, where SORNA 

transforms Appellant from a non-reporting offender to an offender subject to 
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25 years of registration and reporting. Appellant further complains that 

during this new, lengthy registration/reporting period, SORNA likewise 

dictates numerous other aspects of Appellant’s life and subjects him to 

imprisonment for noncompliance. As such, Appellant reasons the imposition 

of SORNA to his case substantially alters his plea bargain. 

Appellant also avers the SORNA registration/reporting requirement 

violates the contract clauses of the state and federal constitutions, both 

facially and as applied to him. Appellant offers several constitutional 

challenges to SORNA facially, questioning its (a) retroactivity; (b) overly 

broad reach to include low-level misdemeanors as well as disputes outside 

the realm of sex-related offenses; (c) unreasonable conditions such as inperson registration and reporting; and (d) unreasonable abrogation of 

settled plea bargains. For these reasons, Appellant submits the retroactive 

application of SORNA is facially unconstitutional and unconstitutional as 

applied to him in the context of his plea bargain. 

Based on the foregoing, Appellant concludes he is entitled to specific 

performance of his plea bargain as a matter of fundamental fairness, due 

process, and contract law; and the trial court erred when it refused to 

enforce the plea agreement as entered, which plainly represents his offense 

as non-reportable. We agree that Appellant is entitled to specific 

performance of his plea bargain. 
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 As a prefatory matter, settled Pennsylvania law provides “a restraining 

principle that counsels against reaching a constitutional question if a nonconstitutional ground for [the] decision is available.” Commonwealth v. 

Levanduski, 907 A.2d 3, 14 (Pa.Super. 2006) (en banc), appeal denied, 

591 Pa. 711, 919 A.2d 955 (2007), cert. denied, 552 U.S. 823, 128 S.Ct. 

166, 169 L.Ed.2d 33 (2007) (citing Com., Dept. of Transp. v. Taylor, 576 

Pa. 622, 633, 841 A.2d 108, 114 (2004); P.J.S. v. Pennsylvania State 

Ethics Com’n, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999)). See also In 

re Farnese, 609 Pa. 543, 17 A.3d 357 (2011) (reiterating long-standing 

legal precedent that courts “should not reach constitutional issue if the case 

can properly be decided on non-constitutional grounds”); Commonwealth 

v. Kennedy, 583 Pa. 208, 876 A.2d 939 (2005) (declining to address 

constitutional claim where matter could be decided under state law 

doctrine). In deference to this rule, we decline to address Appellant’s 

“constitutional” arguments, because we can resolve this appeal under state 

law. See Levanduski, supra. See also Commonwealth v. 

Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc), appeal denied, 626 

Pa. 683, 95 A.3d 276 (2014). 

With respect to plea bargains, “The reality of the criminal justice 

system is that nearly all criminal cases are disposed of by plea bargains: 

[n]inety-seven percent of federal convictions and ninety-four percent of 

state convictions are the result of guilty pleas. Plea bargaining is not some 
J-S20021-14 

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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.” Id. at 449 (internal 

citations and quotation marks omitted). “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.” Commonwealth v. Parsons, 969 A.2d 1259, 

1267-68 (Pa.Super. 2009) (en banc), appeal denied, 603 Pa. 685, 982 A.2d 

1228 (2009). 

Assuming the plea agreement is legally possible to fulfill, when the 

parties enter the plea agreement and the court accepts and approves the 

plea, then the parties and the court must abide by the terms of the 

agreement. Commonwealth v. Anderson, 995 A.2d 1184, 1191 

(Pa.Super. 2010), appeal denied, 608 Pa. 634, 9 A.3d 626 (2010). “Specific 

enforcement of valid plea bargains is a matter of fundamental fairness.” 

Hainesworth, supra. “The terms of plea agreements are not limited to the 

withdrawal of charges, or the length of a sentence. Parties may agree to—

and seek enforcement of—terms that fall outside these areas.” Id. 

Although a plea agreement occurs in a criminal context, it 

remains contractual in nature and is to be analyzed under 
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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. 

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.Super. 1995) (internal 

citations omitted). 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. 

Id. (internal citations omitted). 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. 

Fruehan, 557 A.2d 1093, 1094 (Pa.Super. 1989). 

Sex offender registration: 

[O]bviously has serious and restrictive consequences for 

the offender, including prosecution if the requirement is 

violated. Registration can also affect the offender’s ability 

to earn a livelihood, his housing arrangements and 

options, and his reputation. In fact, the requirements of 

registration are so rigorously enforced, even the 

occurrence of a natural disaster or other event requiring 

evacuation of residences shall not relieve the sexual 

offender of the duty to register. ... [W]hen a defendant 
J-S20021-14 

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agrees to a guilty plea, he gives up his constitutional rights 

to a jury trial, to confrontation, to present witness, to 

remain silent and to proof beyond a reasonable doubt. In 

negotiating a plea that will not require him to register as a 

sex offender, the defendant trades a non-trivial panoply of 

rights in exchange for his not being subject to a non-trivial 

restriction. Fundamental fairness dictates that this bargain 

be enforced. 

Hainesworth, supra. To summarize: (a) 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; and (b) the 

defendant is not seeking to withdraw his plea but to enforce it, then the 

“collateral consequence” concept attributed generally to sex offender 

registration requirements does not trump enforcement of the plea bargain. 

Commonwealth v. Nase, 104 A.3d 528, 532-33 (Pa.Super. 2014) (holding 

appellant was entitled to benefit of his bargain for lower registration 

requirement, in light of recent plea-bargain law, which limits retroactive 

application of new or increased sex offender registration/reporting 

requirements, based on specific record of case). 

 Instantly, we respectfully reject the trial court’s analysis in this case. 

Here, the record makes clear Appellant pled guilty to an offense that had no 

sex offender registration/reporting requirement and that factor was part of 

the negotiated plea agreement. Appellant entered his plea with the express 

understanding he would not have to register and report as a sex offender. 

This understanding was confirmed on the written plea colloquy and in an 

email from the Commonwealth to defense counsel, so there can be no 
J-S20021-14 

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dispute that this term was an inducement to Appellant to plead. Any 

ambiguity in the agreement therefore must be construed against the 

Commonwealth. See Kroh, supra. 

Further, the Commonwealth stated its Cambria County practice was to 

comment on any sex offender requirements during the oral plea colloquy, 

yet the Commonwealth made no reference to it at Appellant’s plea 

proceeding. After his plea, Appellant did not register or report as a sex 

offender because none was required, until SORNA, which now entails 25 

years of sex offender registration and reporting for the offense at issue. No 

change in the law could have been considered at the time of this plea 

agreement on April 26, 2011, and no “collateral consequence” of SORNA 

registration/reporting with respect to this offense existed. Appellant was 

already fully compliant with his probation conditions when he learned of 

SORNA and sought early termination of probation, long after entering his 

plea and in anticipation of SORNA’s effective date. Therefore, we decline to 

apply the “collateral consequence” construct to this case. See Nase, supra. 

Likewise, we refuse to allow Appellant’s plea bargain to be reformed with the 

addition of new conditions which did not exist when he entered the plea 

agreement. See Hainesworth, supra. To do otherwise would play 

“gotcha” with a revered and favored method of resolving criminal cases. 

See Parsons, supra. 
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Given the totality of the circumstances surrounding Appellant’s plea as 

well as the language of the written plea bargain itself, the question raised in 

this appeal, whether non-registration was an enforceable term of the 

agreement, must be answered in Appellant’s favor. See Hainesworth, 

supra; Nase, supra; Kroh, supra; Fruehan, supra. Therefore, after 

careful review of the certified record as well as the relevant, settled law 

pertaining to plea agreements, and in light of Hainesworth and its progeny, 

we hold the trial court erred when it refused to enforce Appellant’s plea 

agreement and enter the requested order stating Appellant was not subject 

to the registration/reporting requirements of SORNA. We recognize the trial 

court did not consider the Hainesworth decision when it denied Appellant’s 

petition. Nevertheless, Hainesworth controls the outcome of this case, 

under principles of fundamental fairness, due process and contract law. 

Accordingly, we reverse the order denying Appellant’s petition to enforce his 

negotiated plea agreement and remand for entry of an order declaring 

Appellant is not subject to the registration/reporting requirements of SORNA. 

 Order reversed; case remanded for entry of proper order. Jurisdiction 

is relinquished. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 3/11/2016