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 FITZGERA LD, 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 appe al from the Cambria County Court of Common Pleas order that dismissed h is petition to enforce his negotiated plea agreement or, in the alternativ e, 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 investig ation, based on allegations that when she was under 16 years old, i n 1994-1995, she worked on a farm with Appellant, who was then 25 ye ars old. Victim claimed Appellant would approach her from behind, g rind up against her, grab her breasts, stick his hands down her pants, a nd rub her vagina.J-S20021-14

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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 re port in 2010, and follow-up police investigation, the Commonwealth charged Appe llant on January 12, 2011, with one count of aggravated indecent assault as a second degree felony and one count of indecent assault as a secon d degree misdemeanor. 1 Appellant and his counsel engaged in plea negotiati ons with the Commonwealth and struck an agreement. Appellant ag reed to plead guilty to the indecent assault count as a second degree mi sdemeanor and a nonreportable offense under the relevant version of Me gan’s Law (requiring perpetrators of specified offenses to register and report to authorities), to be punishable by two years’ probation, plus fines, cos ts, 500 hours of community service, sex offender treatment, and no c ontact 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, th e parties expressly agreed Appellant’s plea involved a non-reportable o ffense. That fact was

____________________________________________ 1 18 Pa.C.S.A. § 3126(a)(8) (providing: (a) “A perso n is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the perso n...for the purpose of arousing sexual desire in the person or the complai nant and: (8) the complainant is less than 16 years of age and the pe rson is four or more years older than the complainant and the complainan t and the person are not married to each other”). This version of the s tatute became effective May 30, 1995, and graded Section 3126(a)(8) as a mi sdemeanor of the second degree.J-S20021-14

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acknowledged undisputedly on the written plea collo quy and in an email from the Commonwealth to defense counsel. Our Supreme Court continues: On June 28, 2011, the trial court sentenced [Appell ant] to two years’ probation; at the time of sentencing, th e law did not require [him] to register as a sexual offen der. Later that year, amendments to Megan’s Law added cr imes to the list defined as sexually violent offenses, a nd established a three-tiered system for classifying s uch offenses and their corresponding registration perio ds. See Act of December 20, 2011, P.L. 446, No. 111, § 12 (effective December 20, 2012) (Megan's Law IV). Th e 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 subje ct 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 an d 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 Appel lant about the imminent changes per SORNA and filed a petition to terminate Appellant’s probation, noting Appellant had fulfilled all of the requireme nts 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 ag reement and the impending SORNA registration/reporting requirements . The trial court scheduled a hearing for December 14, 2012, after wh ich the court denied Appellant’s petition by order filed December 17, 20 12. Appellant filed an appeal from this order on December 28, 2012.J-S20021-14

- 4 - various state and federal constitutional provisions

. [3] The trial court denied the petition, and [Appellant] ap pealed to the Superior Court. [4] On March 14, 2014, while the appeal was pending in the Superior Court, after the parties had submitted the ir briefs, the governor signed Act 19 into law, amending the provisions of Megan’s Law again; the Act was effect ive immediately and made retroactive to December 20, 20 12. 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’ ...sha ll not include...[a] conviction under 18 Pa.C.S. § 3126 (rel ating 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] fro m the requirements of Megan’s Law. The panel interpreted paragraph (3.1) as excluding convictions of indecen t assault as a second-degree misdemeanor from every c lass of registrants in 42 Pa.C.S. § 9799.13. Thus, the panel reasoned [Appellant] “effectively never was[] subje ct 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 barga in/ habeas corpus on January 28, 2013. That same day, he withdrew his p ending appeal.

4 The order and opinion denying Appellant’s petition to enforce plea bargain/ habeas corpus was entered July 1, 2013. Appellant filed a timel y notice of appeal from that decision on July 22, 201 3. By order filed July 29, 2013, the court directed Appellant to file a concis e statement of errors complained of on appeal, which he timely filed on A ugust 13, 2013.J-S20021-14

- 5 - The Commonwealth filed a Petition for Allowance of Appeal, and we granted review of the following ques tion: 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 offende r 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 s tatutory construction, the Supreme Court was “constrained to reverse” this Court’s decision, holding:

[T]he Superior Court erred in finding Act 19 exclud ed [Appellant] from registering as a sexual offender. It is clear that provision (3.1) of § 9799.13 is “a parag raph 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 word s into an unambiguous statutory provision. See 1 Pa.C.S. § 1921(b). The phrase “for purposes of this paragrap h” demonstrates the exclusion applies only to paragrap h (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 cas e of Commonwealth v. Bundy , 96 A.3d 390 (Pa.Super. 2014) (relying on statutor y interpretation similar to this Court’s decision in the Farabaugh case, which our SupremeJ-S20021-14

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Court overturned). Following reversal, the Supreme Court remanded the case to our Court to address any issues Appellant p roperly preserved for appeal; the matter is now before us for that resolu tion. 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 issue s 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 pe tition filed per the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9 541-9546.J-S20021-14

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indecent assault, as a second degree misdemeanor, t o be punishable by two years’ probation, plus fines, costs, 500 hours of c ommunity service, sex offender treatment, and no contact with Victim. Th e Commonwealth agreed
to nolle prosequi

the felony count, which was a reportable offense u nder the relevant version of Megan’s Law. At the time of th e plea proceedings, the parties agreed Appellant’s plea involved a non-repo rtable offense under Megan’s Law. Appellant contends the integrity of t he plea process generally, and his in particular, compels enforcement of the p lea 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 Ap pellant to reporting conditions he sought to avoid by pleading guilty. Appellant maintains that SORNA substantially modifi es his plea agreement and the impairment is unreasonable. Appe llant avers his plea bargain incorporated then-existing law regarding se x offender registration, and the contracting parties understood he would not have to register as a sex offender. Appellant claims he reasonably expec ted 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 barg ain, terms Appellant specifically sought to avoid by pleading guilty. A ppellant maintains SORNA is no incidental or minor alteration to the plea ba rgain, where SORNA transforms Appellant from a non-reporting offender to an offender subject toJ-S20021-14

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25 years of registration and reporting. Appellant further complains that during this new, lengthy registration/reporting per iod, 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/reporti ng requirement violates the contract clauses of the state and fede ral constitutions, both facially and as applied to him. Appellant offers s everal constitutional challenges to SORNA facially, questioning its (a) r etroactivity; (b) overly broad reach to include low-level misdemeanors as we ll as disputes outside the realm of sex-related offenses; (c) unreasonable conditions such as inperson registration and reporting; and (d) unreason able abrogation of settled plea bargains. For these reasons, Appellan t submits the retroactive application of SORNA is facially unconstitutional a nd unconstitutional as applied to him in the context of his plea bargain. Based on the foregoing, Appellant concludes he is e ntitled to specific performance of his plea bargain as a matter of fund amental fairness, due process, and contract law; and the trial court erre d when it refused to enforce the plea agreement as entered, which plainl y represents his offense as non-reportable. We agree that Appellant is enti tled to specific performance of his plea bargain.J-S20021-14

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As a prefatory matter, settled Pennsylvania law pr ovides “a restraining principle that counsels against reaching a constitu tional question if a nonconstitutional ground for [the] decision is availab le.” 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 const itutional issue if the case can properly be decided on non-constitutional groun ds”); Commonwealth v. Kennedy , 583 Pa. 208, 876 A.2d 939 (2005) (declining to ad dress constitutional claim where matter could be decided under state law doctrine). In deference to this rule, we decline t o 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 dispos ed of by plea bargains: [n]inety-seven percent of federal convictions and n inety-four percent of state convictions are the result of guilty pleas. Plea bargaining is not someJ-S20021-14

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adjunct to the criminal justice system; it is the c riminal justice system. Accordingly, it is critical that plea agreements ar e enforced, to avoid any possible perversion of the plea bargaining system.” Id. at 449 (internal citations and quotation marks omitted). “The dispo sition of criminal charges by agreement between the prosecutor and the accused , ...is an essential component of the administration of justice. Proper ly administered, it is to be encouraged. In this Commonwealth, the practice of plea bargaining is generally regarded favorably, and is legitimized an d governed by court rule. ... A ‘mutuality of advantage’ to defendants and pro secutors 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 acce pts 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 f undamental 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 thes e areas.” Id.

Although a plea agreement occurs in a criminal cont ext, it remains contractual in nature and is to be analyzed underJ-S20021-14

- 11 - contract-law standards. Furthermore, disputes over any particular term of a plea agreement must be resolve d by objective standards. A determination of exactly wh at promises constitute the plea bargain must be based upon the totality of the surrounding circumstances and i nvolves a case-by-case adjudication. Any ambiguities in the terms of the plea agreement will be construed against the Government. Nevertheless, th e agreement itself controls where its language sets o ut 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 d uty to honor plea agreements, well-settled Pennsylvania law states:

Our courts have demanded strict compliance with tha t duty in order to avoid any possible perversion of the pl ea bargaining system, evidencing the concern that a defendant might be coerced into a bargain or fraudu lently induced to give up the very valued constitutional guarantees attendant the right to trial by jury. Id. (internal citations omitted). Whether a particula r plea agreement has been breached depends on what the “parties to the a greement 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 consequence s for the offender, including prosecution if the requirem ent is violated. Registration can also affect the offende r’s ability to earn a livelihood, his housing arrangements and options, and his reputation. In fact, the requirem ents of registration are so rigorously enforced, even the occurrence of a natural disaster or other event req uiring evacuation of residences shall not relieve the sexu al offender of the duty to register. ... [W]hen a defe ndantJ-S20021-14

- 12 - agrees to a guilty plea, he gives up his constituti onal rights to a jury trial, to confrontation, to present witne ss, to remain silent and to proof beyond a reasonable doub t. In negotiating a plea that will not require him to reg ister as a sex offender, the defendant trades a non-trivial pa noply of rights in exchange for his not being subject to a n on-trivial restriction. Fundamental fairness dictates that th is bargain be enforced. Hainesworth, supra . To summarize: (a) where a plea bargain is structured so the defendant will not have to regist er 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 t o enforce it, then the “collateral consequence” concept attributed general ly to sex offender registration requirements does not trump enforcemen t 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 fo r lower registration requirement, in light of recent plea-bargain law, w hich limits retroactive application of new or increased sex offender regist ration/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 h is plea with the express understanding he would not have to register and rep ort as a sex offender. This understanding was confirmed on the written ple a colloquy and in an email from the Commonwealth to defense counsel, so there can be noJ-S20021-14

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dispute that this term was an inducement to Appella nt to plead. Any ambiguity in the agreement therefore must be constr ued 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 App ellant’s plea proceeding. After his plea, Appellant did not regi ster or report as a sex offender because none was required, until SORNA, wh ich now entails 25 years of sex offender registration and reporting fo r 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 con sequence” of SORNA registration/reporting with respect to this offense existed. Appellant was already fully compliant with his probation conditio ns when he learned of SORNA and sought early termination of probation, lo ng after entering his plea and in anticipation of SORNA’s effective date. Therefore, we decline to apply the “collateral consequence” construct to thi s case. See Nase, supra

. Likewise, we refuse to allow Appellant’s plea barga in 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 resol ving 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 it self, the question raised in this appeal, whether non-registration was an enforc eable 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 t he 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 en force Appellant’s plea agreement and enter the requested order stating App ellant 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 proce ss and contract law. Accordingly, we reverse the order denying Appellant ’s petition to enforce his negotiated plea agreement and remand for entry of a n order declaring Appellant is not subject to the registration/report ing requirements of SORNA. Order reversed; case remanded for entry of proper order. Jurisdiction is relinquished.J-S20021-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/11/2016