J-S48015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

in 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 history may be summarized as follows: 

Originally, on 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-S48015-20

- 2 -

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 Registration 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 the 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 hearing 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 registration 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.

____________________________________________

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-S48015-20

- 3 -

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] to 111⁄2 to 23 months county 

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 counsel.

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 Howard 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.

____________________________________________

3 By separate order, this Court permitted Attorney Berardinelli to withdraw.
J-S48015-20

- 4 -

 The trial court 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 would have to 

register as a sex offender. The sentencing court granted 

withdrawal 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 withdrawn, [Howard] was restored to his preagreement 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 [assistant district 

attorney (“ADA”)] wherein [the ADA] said that the 

Commonwealth could consider downgrading [Howard’s] 
J-S48015-20

- 5 -

charge to one that did not require registration, but that this 

offer would “need approval.” At the hearing 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. Although in his brief Howard provides case law regarding 

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

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

when a defendant is permitted to withdraw his plea, his is returned to his preagreement status. See Id. at 6 (citing Commonwealth v. Smith, 664 A.2d 

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

that the underlying plea agreement remains binding even though the trial 

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

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

Judgment of sentence affirmed.

____________________________________________

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-S48015-20

- 6 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/21