J-S12042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellant,

v.

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

DAVID WAYNE NEMETH, II, :

:

 Appellee : No. 926 EDA 2015

Appeal from the Order Entered March 25, 2015, 

in the Court of Common Pleas of Monroe County, 

Criminal Division, at No(s): CP-45-CR-0001184-2010

BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 22, 2016

The Commonwealth appeals from the March 25, 2015 order granting 

the motion to enforce a plea agreement filed by Appellee, David Wayne 

Nemeth, II (Appellee). We affirm.

On May 27, 2010, Appellee was arrested and charged with involuntary

deviant sexual intercourse (IDSI), statutory sexual assault, aggravated 

indecent assault, indecent assault, unlawful contact with a minor, and 

corruption of minors. On November 3, 2010, Appellee pled guilty to 

corruption of minors and unlawful contact with a minor. Under the terms of 

the plea agreement, the remaining charges were nolle prossed by the 

Commonwealth. 

 

* Senior Judge assigned to the Superior Court.
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On February 18, 2011, Appellee was sentenced to an aggregate term 

of 36 to 72 months of incarceration. As a result of his conviction for unlawful 

contact with a minor, Appellee was required to register as a sex offender 

under Megan’s Law II1for a period of ten years. 

On December 20, 2011, the legislature enacted the Sex Offender 

Registration and Notification Act (SORNA). See 42 Pa.C.S. § 9799.41. 

SORNA became effective on December 20, 2012 and, inter alia, increased 

the registration period for those convicted of unlawful contact with a minor 

from ten to 25 years. Because he was under parole supervision at the time 

SORNA went into effect, Appellee was subject to the new registration 

provisions.

On October 31, 2014, Appellee filed a motion seeking to enforce the 

terms of his plea agreement in which he contended that the increased 

registration time required by SORNA violated the terms of his guilty plea 

agreement because he had specifically bargained for a ten-year registration 

period. A hearing was held on January 12, 2015, and on March 25, 2015, 

the trial court granted Appellee’s motion. The Commonwealth timely filed 

the instant appeal. Both the Commonwealth and the trial court complied 

with Pa.R.A.P. 1925.

On appeal, the Commonwealth first argues that the trial court erred in 

holding that the ten-year registration period imposed on Appellee at 

 

1 42 Pa.C.S. §§ 9795.1—9799.4.
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sentencing “was not a specific bargained[-]for term” of the plea agreement. 

Commonwealth’s Brief at 10. 

In considering this issue, we apply the following principles. “[E]ven 

though a plea agreement arises in a criminal context, it remains contractual 

in nature and is to be analyzed under contract law standards.” 

Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013) (en 

banc) (citations omitted).

Because contract interpretation is a question of law, this 

Court is not bound by the trial court’s interpretation. Our 

standard of review over questions of law is de novo and to the 

extent necessary, the scope of our review is plenary as the 

appellate court may review the entire record in making its 

decisions. However, we are bound by the trial court’s credibility 

determinations.

Calabrese v. Zeager, 976 A.2d 1151, 1154 (Pa. Super. 2009) (citations 

omitted). 

Parties must state the terms of a plea agreement on the record and in 

the presence of the defendant. Pa.R.Crim.P. 590(B)(1). “If a trial court 

accepts a plea bargain, the defendant who has given up his constitutional 

right to trial by jury must be afforded the benefit of all promises made by 

the district attorney.” Hainesworth, 82 A.3d at 449 (citation omitted). “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 ofterms that fall outside these areas.” Id. (citation omitted). Because plea 

bargaining is such an integral part of our criminal justice system, specific 
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enforcement of valid plea bargains is a matter of fundamental fairness. 

Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa. Super. 2012). 

[D]isputes 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-bycase adjudication.

Any ambiguities in the terms of the plea agreement will be 

construed against the Government.

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

omitted).

In Hainesworth, an en banc panel of this Court was asked to consider 

whether retroactive application of the SORNA registration requirements 

breached the terms of Hainesworth’s plea agreement. Hainesworth, 82 

A.3d at 446-47. Applying the contract principles outlined above, the 

Hainesworth Court concluded that the trial court did not err in ordering 

specific enforcement of Hainesworth’s plea bargain. Id. at 447. In upholding 

the trial court’s determination, the Court found significant the terms of the 

plea bargain, which required the Commonwealth to withdraw all charges 

carrying a Megan’s Law registration requirement, and the Commonwealth’s 

repeated assurances during the plea process that it was not seeking 

registration. Id. at 445-48. Accordingly, the Court determined that the 

objective evidence of record supported the conclusion that the parties had 

negotiated a plea that would not require Hainesworth to register as a sex 
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offender; thus, imposition of a registration requirement based on a 

subsequent change in law, would breach that agreement. Id. at 450.

Instantly, the terms of Appellee’s guilty plea provided that he would 

enter a plea to the charges of unlawful contact with a minor and corruption 

of minors and the Commonwealth would nolle pros the remaining IDSI, 

statutory sexual assault, aggravated indecent assault, and indecent assault 

charges. N.T., 11/3/2010, at 14. At the time of the plea, a defendant 

convicted of IDSI and/or aggravated indecent assault was subject to a 

lifetime registration period under 42 Pa.C.S. § 9795.1(b).2 Appellee was 

advised by the Commonwealth and the trial court that the unlawful contact 

conviction carried a ten-year Megan’s Law registration period. 

[The Assistant District Attorney]: Yes, Your Honor. [Appellee] is 

... pleading guilty to Count 5, unlawful contact with a minor, 

which is a felony of the second degree. ... As well as Count 6, 

which is a misdemeanor of the first degree[.]

... And he also understands there’s a ten-year Megan’s Law 

Registration.

THE COURT: Okay. [Appellee], you understand the maximum 

penalty on each of those ... [and t]hat you are also going to have 

a Megan’s Law registration that goes along with this; do you 

understand that, sir?

[Appellee]: Yes, Your Honor.

Id.

 

2 The crimes of statutory sexual assault and indecent assault were not 

subject to registration under 42 Pa.C.S. § 9795.1.
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Consistent with this agreement, at sentencing, the assistant district 

attorney specifically clarified the registration requirement, stating “Now, 

there is one, I think, oversight in the [pre-sentence investigation report], 

and it suggests that [unlawful contact] is a lifetime registration offense. It is 

not. It is a 10-year registration offense, and that is all that it is.” 

N.T., 2/18/2011, at 4 (emphasis added). Moreover, following imposition of 

sentence, the district attorney recited for the record the terms of the 

Megan’s Law notification signed by Appellee and reiterated that the 

registration period was ten years. 

[Assistant District Attorney]: Your Honor, I have the two-page 

notification at sentencing pursuant to Megan’s Law. [Appellee] 

has initialed all the paragraphs and signed the last page thereby 

indicating that he has to register his current address with the 

Pennsylvania State Police and provide other information as 

required by law upon release from incarceration or upon parole 

from a state or county correctional facility.

If he changes his residence, he must notify the 

Pennsylvania State Police within 48 hours.

If he changes his residence and resides in a state outside 

of Pennsylvania, he must notify the appropriate law enforcement 

agency of that state within 48 hours.

If he’s unemployed or carries on a vocation or is a student 

outside of the state of his residence, he has to register with that 

state if it requires registration.

Periodically, an address verification form will be sent to 

him. He has to complete it and submit it back to the 

Pennsylvania State Police within 48 hours.

Registration shall be for a period of 10 years. Failure to 

abide by these conditions would subject him to additional 

criminal penalties including felony offenses.
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Id. at 9-10.

Based on the above, and following a hearing and submission of briefs 

by both parties, the trial court found credible Appellee’s argument that the 

ten-year Megan’s Law registration period attached to Appellee’s unlawful 

contact with a minor conviction was an essential term in the agreement 

negotiated between Appellee and the Commonwealth. Trial Court Opinion, 

3/27/2015, at 5-6 (unnumbered). The court reasoned as follows.

[U]nder the totality of the circumstances, [] the plea 

agreement was structured in a way that [Appellee] would only 

be subject to the ten year Megan’s Law registration requirement. 

All the counts requiring a twenty-five [year] or lifetime 

registration were nolle prossed by the Commonwealth in return 

for [Appellee] entering an open guilty plea to the two remaining 

counts, one of which resulted in the ten[-]year registration 

requirement. Considering the structure of the open plea 

agreement to nolle pros the charges with longer Megan’s Law 

registration requirements and the answers on [Appellee’s] 

written guilty plea colloquy, the ten[-]year Megan’s Law 

registration appears to have been an essential term to the 

negotiated plea agreement made by [Appellee] with the 

Commonwealth.

Id. at 4-6 (unnecessary capitalization and footnotes omitted).

It is well-settled that “the paramount goal of contract interpretation is 

to ascertain and give effect to the parties’ intent. When the trier of fact has 

determined the intent of the parties to a contract, [we] will defer to that 

determination if it is supported by the evidence.” Commonwealth v. 

Herbert, 85 A.3d 558, 562 (Pa. Super. 2014) (citation omitted). 

Accordingly, as the record supports the trial court’s determination that the 
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parties intended the ten-year registration period to be a specific term of 

Appellee’s plea agreement, we discern no error in the trial court’s grant of 

relief.

The Commonwealth also contends that the trial court erred in applying 

this Court’s Hainesworth analysis in this case. Specifically, the 

Commonwealth argues that Hainesworth is factually distinguishable from 

the instant case because the terms of Appellee’s plea agreement always 

required him to register for some period of time. Commonwealth’s Brief at 

22-24. We disagree. 

Application of Hainesworth is not limited to plea bargains involving 

non-registration. See Commonwealth v. Nase, 104 A.3d 528 (Pa. Super. 

2014) (reversing the trial court’s determination that the terms of a plea 

agreement did not include a specific period of registration where the record 

made at the guilty plea and sentencing hearings established that a ten-year 

period of registration was a specifically bargained-for term of Nase’s plea 

agreement). Nor does there need to be an explicit statement made on the 

record for Hainesworth and its progeny to apply.3

 

3 The plea in Hainesworth was set forth on the record as follows.

[COURT ASSISTANT:] Is this Megan’s Law? 

[THE COMMONWEALTH:] It is not Megan’s Law. Terms and 

conditions are as follows: At Count 1 on case 106, 11-and-a-half 

to 23-and-a-half months[‘] incarceration. Costs and fees. No 

contact direct or indirect with the victim or the victim’s family. At 

Count 2, 11–and–a–half to 23 concurrent to Count 1. Count 3, 
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no further sentence. Count 6, one year probation consecutive to 

Count 2. Count 7, one year probation consecutive to Count 6. 

Count 8, one year probation consecutive to Count 7. Count 9, 

two years[‘] probation consecutive to Count 8. That’s a total of 

five years[‘] probation.

[THE COURT:] These are felony sexual assault and they’re not 

Megan’s Law?

[THE COMMONWEALTH:] The Commonwealth will move to 

dismiss Counts 4, 5 and 10. They are not. They’re statutory—

[THE COURT:] Statutory sexual assault, felony two.

[THE COMMONWEALTH:] Is not Megan’s Law.

[THE COURT:] You’re dismissing 4 and 5?

[THE COMMONWEALTH:] And 10.

[THE COURT:] 4, 5 and 10.

...

Subsequently, the following exchange occurred:

[THE COURT:] [W]as the agreement stated correctly by the 

Commonwealth?

[COUNSEL FOR HAINESWORTH:] Yes, it was.... Do you have any 

questions about anything you read?

[HAINESWORTH:] No, sir....

[THE COURT:] There’s no restitution or anything like that?

[THE COMMONWEALTH:] There is not, Your Honor.

Hainesworth then asked if he was eligible for school release, and 

the trial court addressed his question. Likewise, Hainesworth 

asked for clarification regarding time credit, and the court 

explained this to him as well. The court then accepted 

Hainesworth’s plea, and the hearing was adjourned. 
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It is unambiguous from the record before us that the agreement 

negotiated between Appellee and the Commonwealth was specifically 

designed to require only a [ten-year] registration period. Both parties to this 

appeal, as well as the trial court, understood that lifetime registration was 

not included as a part of Appellee’s plea bargain, but more importantly, a 

ten-year term was. As a result, when considering the circumstances as a 

whole, we agree with the trial court that there was ample objective evidence 

of record that the parties bargained for a specific period of registration. 

Accordingly, we discern no error in the trial court’s application of 

Hainesworth to the instant case.4

For all of the foregoing reasons, we affirm the trial court’s March 25, 

2015 order.

Order affirmed.

 

Hainesworth, 82 A.3d 444, 447-48 (Pa. Super. 2013) (citations omitted).

4 The remainder of the Commonwealth’s appellate issues all assume that the 

trial court erred in holding that the ten-year registration requirement was a 

bargained-for contractual term of Appellee’s plea agreement. 

Commonwealth’s Brief at 4. Because we have held that the trial court was 

correct, we need not consider the rest of the Commonwealth’s arguments. 
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Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 3/22/2016