J-A12044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DENNIS L. HARTMAN,

Appellant No. 1355 MDA 2014

Appeal from the Order entered July 14, 2014,

in the Court of Common Pleas of Berks County,

Criminal Division, at No(s): CP-06-CR-0001765-2000

BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED APRIL 30, 2015

Dennis L. Hartman, (“Appellant”), appeals from the order denying his 

petition to enforce plea agreement or for a writ of habeas corpus. We 

affirm.

The trial court summarized the procedural history of this case as 

follows:

On March 22, 2000, Appellant was charged by Criminal 

Complaint with one count of Possession of Child 

Pornography, in violation of 18 Pa.C.S.A. § 6312(d), a 

Felony of the Third Degree, following an undercover Postal 

Inspector sting operation. On June 29, 2000, Appellant pled 

guilty to this crime and was sentenced to two years on county 

probation. At the time, Appellant was represented by attorney 

Lawrence J. Hracho. No direct appeal was taken. Attorney 

Hracho passed away on December 3, 2011. Six years later, the 

Pennsylvania State Police sent Appellant a notice, requiring him 

to register under Megan’s Law III; he did not file any motions 

challenging this requirement and began compliance on 

November 8, 2006. His ten year registration period was then set 

to expire in 2016. Pennsylvania’s Sex Offender Registration and 
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Notification Act (SORNA) went into effect in December 2012. 

Under SORNA, Appellant’s period of registration will be extended 

to November 8, 2021. On May 5, 2014, Appellant filed a Petition 

to Enforce Plea Agreement or for a Writ of Habeas Corpus. An 

evidentiary hearing was set for June 13, 2014 and thereafter, 

the parties were required to file briefs. On July 14, 2014, we 

denied the request for relief from registration. On August 12,

2014, Appellant filed a Notice of Appeal to the Superior Court. 

On that same date, we ordered Appellant to file a concise 

statement of the errors complained of on appeal, which he filed 

on August 27, 2014. 

Trial Court Memorandum Opinion, 10/8/14, at 1-2 (bold in original).

Appellant raises the following issues:

1. Can an agreement between a defendant and the 

Commonwealth to avoid sex offender registration be 

inferred in the absence of any indication of an agreed upon 

and affirmative step to do so?

2. Is Appellant entitled to specific performance of the 

terms of his plea agreement?

3. Are all other considerations irrelevant to this inquiry?

Appellant’s Brief at 3. We address these issues together.

“[SORNA], commonly referred as the Adam Walsh Act, became 

effective on December 20, 2012.” Commonwealth v. Partee, 86 A.3d 

245, 247 (Pa. Super. 2014). “By its terms, any individual who was then 

being supervised by the board of probation or parole was subject to its 

provisions.” Id. Appellant’s conviction under 18 Pa.C.S.A. § 6312(d) was 

designated as a Tier 1 sexual offense, subjecting a defendant to a fifteenyear registration period. See 42 Pa.C.S.A. §§ 9799.14-9799.15.
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In Partee, we summarized our recent en banc decision in 

Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) as 

follows:

In [Hainesworth,] this Court specifically enforced a 

negotiated plea agreement that did not require the 

defendant to report as a sex offender under Megan’s Law, 

despite subsequent amendments to the statute that would 

have subjected him to reporting requirements. 

Hainesworth entered a negotiated plea to three counts 

each of statutory sexual assault and indecent assault, and 

once count each of indecent assault and criminal use of a 

communication facility in February 2009. None of these 

convictions required registration under Megan’s Law, 42 

Pa.C.S. § 9791. Other charges that would have imposed a 

registration requirement were withdrawn by the 

Commonwealth pursuant to the plea negotiations.

Hainesworth filed a motion seeking to terminate 

supervision effective one week prior to the effective date of 

SORNA. The trial court denied the petition to terminate 

supervision, but held that application of SORNA’s 

registration requirements to Hainesworth violated due 

process.

On appeal, this Court, sitting en banc, concluded first 

that Hainesworth correctly framed the issue as one of 

contract law, and applied the standard of review applicable 

to whether a plea agreement has been breached: “what 

the parties to this plea agreement reasonably understood 

to be the terms of the agreement.” Hainesworth, supra

(quoting Commonwealth v. Fruehan, 384 Pa. Super. 

156, 557 A.2d 1093, 1095 (1989)). We look to the 

“totality of the surrounding circumstances” and “[a]ny 

ambiguities in the terms of the plea agreement are 

construed against the [Commonwealth].” 

Commonwealth v. Kroh, 440 Pa. Super. 1, 654 A.2d 

1168, 1172 (1995). The dispositive question was “whether 

registration was a term of the bargain struck by the 

parties.” [Hainesworth, 82 A.3d] at 448. We examined 

the record. The terms of the plea agreement was set forth 

and included a discussion of the fact that the offense to 
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which [Hainesworth] was pleading guilty did not require 

registration and supervision as a sex offender. We 

distinguished Commonwealth v. Benner, 853 A.2d 1068 

(Pa. Super. 2004) (Benner was always subject to a 

reporting requirement, albeit ten years instead of a 

lifetime, and the record did not support Benner’s 

contention that he had bargained for non-registration as a 

term of his plea), and held that the plea agreement 

“appears to have been precisely structured so that 

Hainesworth would not be subject to a registration 

requirement.” Hainesworth, 82 A.3d] at 448.

Partee, 86 A.3d at 247-48.

In Partee, Partee pled guilty to indecent assault which, at the time of 

his plea, subjected him to a ten-year registration requirement under Megan’s 

Law. With the subsequent passage of SORNA, however, Partee’s conviction 

of a Tier II sexual offense increased his registration requirement to twentyfive years. Id. at 246. After reviewing the totality of the circumstances 

surrounding Partee’s plea, we reasoned:

Herein, [Partee] was subject to a ten-year reporting 

requirement under the terms of the plea agreement and

there is no indication that he bargained for nonregistration as part of his plea. However, the ten-year 

Megan’s Law registration period was discussed at the plea 

proceeding. While it was not an explicit term of the 

negotiated plea, it is apparent that [Partee’s] negotiated 

plea agreement was structured so that he would only be 

subject to a ten-year rather than a lifetime reporting 

requirement, distinguishing the facts herein from those in 

Benner. The two charges carrying a lifetime registration 

were withdrawn by the Commonwealth as part of the 

negotiations, leaving [Partee] subject to the less onerous 

ten-year reporting requirement then imposed on indecent 

assault. Under our reasoning in Hainesworth, [Partee] 

arguably would be entitled to the benefit of that bargain.
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Partee, 86 A.3d at 249.

Despite the above, in Partee we accepted the Commonwealth’s 

argument that, by violating his probation, Partee breached the original plea 

agreement, and therefore he could no longer seek specific enforcement of its 

terms. Id. at 249-50. Thus, we determined that Hainesworth, “is not 

controlling.” Id.

Here, the trial court likewise concluded that Hainesworth did not 

apply to Appellant’s claim:

Appellant would ask the Superior Court to review this 

matter under the laws concerning plea agreements and 

contracts. It was for this reason that we held an 

evidentiary hearing to provide Appellant with the 

opportunity to meet his burden that there was indeed a 

negotiated plea agreement entered into to avoid the 

registration requirement under [Megan’s Law II]. After 

hearing, however, we were unable to conclude that such 

an agreement occurred.

Appellant was charged with only one count; no counts 

were withdrawn in exchange for a plea. The matter was 

actually scheduled for a PreTrial [sic] Hearing on June 29, 

2000. The Statement Accompanying his Request to Enter 

a Guilty Plea lists the that Maximum Permissible Sentence 

Appellant was facing was 7 years [of] incarceration and/or 

a $15,000.00 fine. Appellant acknowledged, by signing 

this statement, that this plea permitted him to avoid a trial 

and a large fine, as well as possible incarceration for this 

felony offense. Thus, we could not determine solely from 

this statement that the reason the plea was entered into 

was to avoid registration. There is no transcript or record 

of any terms of a negotiated plea agreement in June 2000. 

Looking at the totality of the circumstances, we found as a 

fact that there was no plea agreement made in exchange 

for avoiding registration.
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Appellant registered when notified by the State Police to 

do so in November of 2006. There is no record to show 

why the police waited six years to notify Appellant. 

Appellant claimed he objected to the registration 

requirement. There is also no record that any challenge to 

the registration requirement was filed. Appellant waived 

the issue of the retroactivity of Megan’s Law III by not 

raising it before now to give the court an opportunity to 

review it. See generally Commonwealth v. Cody 

Miller, 80 A.3d 806, 812 (Pa. Super. 2013) (citations 

omitted). We found Appellant’s testimony to be selfserving and not credible. It is well settled that credibility 

determinations are the province of the trial court. Thus, 

the standard of review in this case should be whether or 

not the court committed an error of law. 

Trial Court Memorandum Opinion, 10/8/14, at 2-4.

Rather than applying Hainesworth, the trial court characterized the 

issue to be addressed as follows:

We surmise that the legal question then becomes 

whether a defendant who was convicted of a 

nonregisterable [sic] offense prior to the passage of 

Megan’s Law II, but was serving a sentence of probation at 

the time of the passage of Megan’s Law [III], which now 

included that offense, is therefore still subject to the ten 

year period of registration when he did not begin his initial 

period of registration for six years. 

Id. at 4. 

The trial court then reviewed case law addressing the retroactivity 

question as applied in cases involving the various versions of Megan’s Law. 

See id. at 4-6 (discussing Commonwealth v. Benner, 853 A.2d 1068 (Pa. 

Super. 2004); Commonwealth v. James Miller, 787 A.2d 1036 (Pa. 

Super. 2001)). It concluded:
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[W]hile Megan’s Law II has been amended several 

times, the requirement for Appellant to register remains. 

Appellant is classified as a sexually violent predator under 

42 Pa.C.S.A. § 9799.12 because he was convicted of an 

offense listed under section 9799.14(b)(9). Under the 

most recent amendment, [SORNA] predicate offenses 

requiring registration are grouped in tiers, with Sexual 

Abuse of Children, § 6312(d), being considered a Tier I 

sexual offense, requiring a fifteen year registration period. 

See 42 Pa.C.S. [§] 9799.14(b)(9); § 9799.15(a)(1).

Without proof of a plea agreement, Appellant is bound 

by the law of retroactivity as it applies to his case. When 

Megan’s Law II went into effect, Appellant was still serving 

his sentence for the sex offense. We do not think that the 

fact that he did not comply with registration for the first six 

years negates the initial requirement that he register for 

ten years. 

Trial Court Memorandum Opinion, 10/8/14, at 6-7 (footnotes omitted). Our 

review of the record, in accordance with the applicable statutory and case 

authority, supports the trial court’s conclusions.

Appellant’s claims to the contrary are unavailing. Appellant’s reliance 

upon the factually distinguishable case of Partee, supra, is inapposite. 

Unlike Appellant’s case, this Court was able to review the guilty plea colloquy 

that occurred between the parties, noted a specific registration period was 

enumerated, and further noted that offenses requiring lifetime registration 

were withdrawn by the Commonwealth.1 Here, we are unable to conduct a 

____________________________________________

1 Because the Partee court ultimately concluded that Partee breached his 

plea agreement, the discussion quoted above and relied upon by Appellant is 

dicta. See supra.
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similar review, and the trial court found Appellant’s testimony concerning the 

plea agreement unworthy of belief. We cannot disturb this determination. 

See generally Commonwealth v. Weathers, 95 A.3d 908 (Pa. 2014).

Appellant’s similar reliance upon Commonwealth v. Jones, 2014 PA 

Super. 109, a decision that we withdrew from publication because the 

SORNA issue addressed became moot, and Commonwealth v. Nase, 104 

A.2d 528 (Pa. Super. 2014), is misplaced, given the fact that in each case, a 

guilty plea colloquy was available for appellate review. Put simply, Appellant 

acquiesced to registration under Megan’s Law II, and cannot now—in the 

absence of credible record evidence—maintain a contradictory position 

approximately fourteen years following the original entry of his plea.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/2015