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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN HOWARD

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1280 EDA 2019

Appeal from the Judgment of Sentence Entered April 23, 2019
, i n the Court of Common Pleas of Philadelphia County
, Criminal Division at No(s): CP

- 51

- CR

- 0010631

- 2016

.

BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.: Filed: February 11, 2021

Kevin Howard appeals from the judgment of sentence imposed after a

stipulated waiver trial at which the trial court convicted him of possessing child

pornography. 1 We affirm.

The facts and procedural histo ry may be summarized as follows:

Originally, o n May 30, 2017, Howard pled guilty to possession of child

pornography, graded as a felony of the third degree. Pursuant to a negotiated

sentence, the trial court sentenced him to a six

- year probationary term. After

accepting the guilty plea and imposing sentence , the trial court confirmed with

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A § 6312 (d).J

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the parties that the terms of the plea agreement included a provision that

Howard would not be subject to the registration requirements under the Sex

Offender Registrati on and Notification Act (“SORNA”). 42 Pa.C.S.A. § §

9799.10

- 9799.75. 2

Subsequently, when Howard reported to the probation department, he

was informed that he was required to register under SORNA. In response,

Howard promptly filed a motion to withdraw his guilty plea on June 7, 2017.

The trial court granted Howard’s motion on June 22, 2017.

Represented by new counsel, Howard filed a “Motion to Compel

Compliance with Plea Agreement.” The trial court explained the contents of

this motion, as well as th e subsequent procedural history as follows:

In his motion, [ Howard ] requested that the “government comply with the term of the negotiated plea that [he] would not have to register under [SORNA].” On September 24, 2018, [the trial court] conducted a hearin g on the motion. At this hearing, [Howard’s counsel] argued that the Commonwealth was bound by the terms of the original plea offer and that [Howard] should not have to register under [SORNA]. The Commonwealth argued that while a lower offer without regi stration requirements was considered by the District Attorney’s Office, it was never formally offered to [Howard]. The original offer of 6 years reporting probation but with [SORNA] requirements as required by law was still available to [Howard]. At the conclusion of argument, [the trial court] denied [Howard’s] motion to compel, finding that there was no longer a plea agreement to enforce since [Howard] had withdrawn his guilty plea.

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2 Throughout the proceedings, the parties and the trial court refer to Megan’s Law. Because Howard committed the crime at issue in 2016, the provisions of SORNA apply

.J

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- That same day, [the trial court] conducted a stipulated waiver trial. At its conclusion, [the trial court] found [Howard] guilty of possession of child pornography, graded as a felony of the third degree. Sentencing was deferred until April 23, 2019. On that date, [the trial court] sentenced [Howard] t o 111⁄2 to 23 months c ounty incarceration plus 3 years reporting probation with immediate parole to house arrest, with all [SORNA] registration requirements applicable. On May 1, 2019, [Howard’s] counsel filed a Notice of Appeal on [Howard’s] behalf and then withdrew as counse l.
For inexplicable reasons, despite [the trial court’s] efforts to have new counsel appointed, James Berardinelli, Esquire was not appointed appellate counsel until nearly a year later on February 23, 2020.

Trial Court Opinion, 5/11/20, at 3

- 4. Both How ard and the trial court have

complied with Pa.R.A.P. 1925. 3

Howard now presents the following issue:

I. Did the [trial] court err in denying [Howard’s] request for specific performance of the bargain agreed upon by the parties at the time of [Howard’s] May 30, 2017 guilty plea, where the Commonwealth subsequently refused to abide by the agreed upon term that [Howard] not be subject to the reporting requirements of [SORNA]?

Howard’s Brief at 3.

In support of this issue, Howard contends that his guilty plea “ rested to

a significant degree on the promise that he would not be subject to the

provisions of [ SORNA]. As a result, [the trial court] clearly erred in denying

[Howard’s] motion to compel specific performance of the bargain.” Id. at 7.

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3 By separate order, this Court permitted Attorney Bera rdinelli to withdraw.J

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The trial cour t found no merit to Howard’s claim:

[Howard] claims that [the trial court] should have granted his request for specific performance of the terms of his guilty plea that he previously had withdrawn. He further argues that the Commonwealth should have been required to make him a new offer consistent with what he thought the original offer was at the time of sentencing. This claim is without merit as once [Howard] withdrew his guilty plea there was no longer any agreement or bargain to enforce.

***

In the case at bar, [the trial court] properly denied [Howard’s] motion to compel compliance with [ his ] plea agreement because there was no longer a plea agreement between the parties. [Howard] filed a motion to withdraw his plea agreement after he learned he wo uld have to register as a sex offender. The sentencing court granted

w ithdrawal of his original plea, finding that [Howard’s] plea had not been voluntary since he had been misinformed regarding his registration requirements. Once the guilty plea was with drawn, [Howard] was restored to his pre

agreement status. At that point, [Howard] could choose to go to trial or see if the Commonwealth was interested in entering into new plea negotiations with him. As there was no longer any agreement of the parties, there was no longer any agreement with which to “compel” the Commonwealth to comply.

Trial Court Opinion, 6/24/20, at 4

- 6.

Regarding Howard’s claim that the Commonwealth was required to offer

him a new plea agreement that exempted him from registering as a sex
offender, the trial court further explained:

[Howard] claims that the Commonwealth should have to offer him a new plea agreement that would permit him to avoid registering as a sex offender. He points to the conversation defense counsel had with [ a ssistant district attorney (“ADA”)] whe rein [ the ADA] said that the Commonwealth could consider downgrading [Howard’s]J

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- charge to one that did not require registration, but that this offer would “ need approval.” At the he aring on the motion to compel [ a different ADA] , on behalf of the Commonwealth, stated that after reviewing the case and speaking to the parties involved, the District Attorney’s Office decided not to extend a different offer. [This ADA] stated that the original offer, but this time with full disclosure of the applicable [SORNA] registration requirements, was still available to [Howard].

Id. at 6.

Our review of the record and applicable case law supports the trial

court’s conclusions. A lthough in his brief Howard provides case law regar ding

specific performance of plea agreements, he ignores the fact that he

withdrew his original guilty plea in this case. As noted by the t rial court,

when a defendant is permitted to withdraw his plea, his is returned to his pre

agreement status. See Id

. at 6 (citing Commonwealth v. Smith , 664 A.2d

622, 629 (Pa. Super. 1995) ) . Howard cites no authority for his proposition

t hat the underlying plea agreement remains binding even though the trial

court granted him permission and he withdrew his original gu ilty plea. 4 Thus,

as Howard’s claim is meritless , we affirm his judgment of sentence.

Judgment of sentence affirmed.

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4 While Howard argues that this Court’s decision in Commonwealth v. Hainesworth , 83 A.3d 444 (Pa. Super. 2013) ( en banc ), is “nearly identical,” Howard’s Brief at 8, the plea bargain enforced in Hainesworth was never withdrawn by the appellant.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/11/21