J. S41016/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

Appellant : PENNSYLVANIA

:

v. :

:

JUAN MIGUEL ACEVEDO :

:

: No. 2984 EDA 2015

Appeal from the Order August 31, 2015

In the Court of Common Pleas of Monroe County 

Criminal Division No(s): CP-45-CR-0002532-2010

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 02, 2016

The Commonwealth of Pennsylvania appeals from the August 31, 2015 

Order entered in the Court of Common Pleas of Monroe County granting 

Juan Miguel Acevedo’s (“Acevedo”) Motion to Enforce Plea Agreement. 

Finding no merit to the Commonwealth’s claims on appeal, we affirm.

On September 5, 2010, Acevedo was charged with one count each of 

Statutory Sexual Assault, Aggravated Indecent Assault—Complainant Less 

than 16 Years of Age, Interference with Custody of Children, Unlawful 

Contact with Minor—Sexual Offenses, Involuntary Sexual Intercourse—

 

*

Former Justice specially assigned to the Superior Court.
J.S41016/16

- 2 -

Complainant Less than 16 Years of Age, and two counts of Indecent 

Assault—Complainant Less than 16 Years of Age.1

On October 4, 2011, the Commonwealth presented Acevedo with a 

plea agreement. Noting that Acevedo had similar charges pending at No. 

2015-2011 and 2067-2011, the Commonwealth agreed to an open guilty 

plea to one count of Unlawful Contact with Minor, a second degree felony, at 

No. 2532-2010, and two counts of Statutory Sexual Assault,2one each at 

Nos. 2015-2011 and 2067-2011. 

The Commonwealth noted in the plea offer that there was no 

sentencing agreement. It also informed Acevedo that,”[a]bsent a finding 

that [Acevedo] would be classified as a [sexually violent predator], he would 

be required to register under Megan’s law for 10 years (as opposed to a 

lifetime registration for aggravated indecent assault, or a conviction for more 

than one Megan’s law offense).” Plea Offer, 10/4/11. In exchange for this 

plea, the Commonwealth agreed to nolle pros the remaining charges. 

On December 27, 2011, Acevedo pled guilty to one count of Unlawful 

Contact with Minor and two counts of Statutory Sexual Assault. 

On March 22, 2012, the court sentenced Acevedo to a term of 9-36 

months’ incarceration on the Unlawful Contact with Minor charge, and two 

 

1 18 Pa.C.S. § 3122.1, 3125(a)(8), 2904(a), 6318(a)(1), 3123(a)(7), 

3126(a)(8), respectively. 

2 18. PaC.S. § 3122.1.
J.S41016/16

- 3 -

terms of 12-26 months incarceration on the Statutory Sexual Assault 

charges, to be served consecutively. The court ordered Acevedo to submit 

to a sexual offender evaluation, and to comply with the registration 

requirements of Megan’s Law3for a period of 10 years.

Pennsylvania enacted the Sex Offender Registration and Notification 

Act (“SORNA”) on December 20, 2011, and it became effective on December 

20, 2012. See 42 Pa.C.S. § 9799.1 et seq. SORNA’s registration 

requirements apply to persons still under supervision for relevant offenses as 

of December 20, 2012. Id. at § 9799.13(2). SORNA reclassified the 

offenses requiring registration as a sex offender, and the length of the 

required registration. Id.

SORNA reclassified the offenses of Unlawful Contact with Minor and 

Statutory Sexual Assault as Tier II sexual offenses, both of which carry 25-

year registration periods. Id. §§ 9799.14(c)(5); 9799.14(c)(1.1); and 

9799.15(a)(2). Accordingly, since Acevedo was still incarcerated at the time 

SORNA became effective, Acevedo was required to register for his lifetime 

rather than 10 years. 4 

 

3 42 Pa.C.S. § 9795.1.

4 Acevedo faced a lifetime registration requirement pursuant to 40 Pa.C.S. § 

9799.14(d)(16), which classifies as a Tier III sexual offense “[t]wo or more 

convictions of offenses listed as Tier I or Tier II sexual offenses.” See 42 

Pa.C.S. § 9799.14(d)(16); see also id. at § 9799.15(a)(3).
J.S41016/16

- 4 -

On October 6, 2014, Acevedo filed a pro se “Motion for Evidentiary 

Hearing [and] for Declaration that Megan’s Law [is] Unconstitutional [and] 

Unenforceable.” The trial court initially treated this Motion as an application 

for relief pursuant to the Post Conviction Relief Act5(“PCRA”), and appointed 

counsel for Acevedo. Counsel withdrew the PCRA petition without prejudice 

and, on March 16, 2015, filed a Petition for Habeas Relief and/or Petition 

Seeking Enforcement of Plea Agreement, in which Acevedo challenged the 

retroactive enforcement of SORNA. Following a hearing, the court granted 

Acevedo’s Petition on August 31, 2015, thereby enforcing Acevedo’s plea 

agreement. 

The Commonwealth timely appealed and complied with the trial court’s 

order to file a Pa.R.A.P. 1925(b) Statement. 

The Commonwealth raises the following four issues for our review:

1. Did the [t]rial [c]ourt err in finding that the mere act of 

advising a defendant of collateral consequences created a 

binding contractual obligation on the part of the 

Commonwealth when such notification was required by 

law?

2. Did the [t]rial [c]ourt err in finding that the specific 

length of the registration, which was a collateral 

consequence, was within the control of the District 

Attorney, when at the time of the plea the only possible 

registration periods allowed by law were either 10 years or 

life?

 

5 42 Pa.c.S. §§ 9541-9546.
J.S41016/16

- 5 -

3. Did the [t]rial [c]ourt err in finding that the state 

cannot, in the valid exercise of its police powers, modify 

the terms of an existing contract?

4. Did the [t]rial [c]ourt err in modifying the period of 

registration contrary to the plan language of 42 Pa.C.S.A. 

9799.20?

Commonwealth’s Brief at 4.

In its first issue, the Commonwealth avers that the trial court erred in 

finding that Acevedo’s 10-year sex offender registration requirement was a 

specifically bargained-for term of his plea agreement. The Commonwealth 

argues that, although it and the trial court notified Acevedo of his 10-year 

registration requirement at the time of Acevedo’s sentencing, “[t]he simple 

act of notifying a defendant of his duty to register, when such notification is 

required by statute, does not then turn that notification into a bargained for 

term of a contract.” Commonwealth’s Brief at 10-11. 

Our standard of review is as follows:

In determining whether a particular plea agreement has 

been breached, we look to what the parties to this plea 

agreement reasonably understood to be the terms of the 

agreement. Such a determination is made based on the 

totality of the surrounding circumstances, and [a]ny 

ambiguities in the terms of the plea agreement will be 

construed against the [Commonwealth].

Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en 

banc) (internal citations and quotations omitted).

In Hainesworth, the defendant pled guilty to Statutory Sexual 

Assault, Indecent Assault, and Criminal Use of a Communication Facility. Id. 
J.S41016/16

- 6 -

at 445. None of the offenses to which Hainesworth pled guilty required 

registration as a sex offender. Id. at 446. The Commonwealth 

acknowledged this fact on the record in open court. Id. The trial court 

accepted the plea, and Hainesworth did not register as a sex offender. Id. 

However, after SORNA became effective, Hainesworth’s Indecent Assault 

offense was reclassified as a Tier II sexual offense, requiring him to register 

for 25 years. Id. Because Hainesworth was still on probation when SORNA 

became effective, he filed a motion seeking termination of his supervision to 

avoid SORNA’s registration requirements. Id. Although the trial court 

denied his Motion, it nevertheless issued an order stating that Hainesworth 

was not subject to the registration requirements of SORNA. Id.

On appeal, this Court observed that plea agreements must be 

analyzed under the principles of contract law. Id. at 447. We noted that 

“[t]he 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 these areas.” Id. at 449. We 

recognized that “[r]egistration obviously has serious and restrictive 

consequences for the offender, including prosecution if the requirement is 

violated,” and held that the plea agreement should be specifically enforced 

under principles of contract law, including fundamental fairness. Id. at 449; 

(stating that plea-bargaining is a crucial element of the criminal justice 

system, as nearly ninety-four percent of state convictions are the result of 
J.S41016/16

- 7 -

guilty pleas and that “it is critical that plea agreements are enforced, to 

avoid any possible perversion of the plea bargaining system”) (internal 

citations omitted). This court concluded that Hainesworth’s guilty plea was 

premised on the withdrawal of all charges requiring registration (evidenced 

both in the Plea Colloquy and the Notes of Testimony) and that nonregistration was, therefore, a term of the plea agreement requiring specific 

enforcement. Id. at 447-48. 

Recently, in Commonwealth v. Nase, 104 A.3d 528, 534 (Pa. Super. 

2014) (en banc), this Court held that the defendant expressly agreed to 

plead guilty to unlawful contact with a minor so as to be subject to the thenextant ten-year registration period. Therefore, we concluded the registration 

consequences were unequivocally part of his plea negotiation and 

arrangement to be specifically enforced. Id. at 535. 

In the instant matter, following a hearing, and pursuant to the 

holdings in Hainesworth, and Nase, the trial court found that “the ten-year

registration requirement was part of [Acevedo’s] plea bargain. Therefore, he 

is entitled to the benefit of his bargain, and is not subject to additional 

registration beyond that envisioned by his plea agreement.” Trial Ct. Order, 

8/31/15.

We agree with the trial court. The record reflects that the 

Commonwealth offered Acevedo a plea agreement wherein he would plead 

guilty to Unlawful Contact with Minor, and submit to a 10-year sexual 
J.S41016/16

- 8 -

offender registration requirement. In doing so, Acevedo forfeited his right to 

a trial on six other charges, which, if convicted, could expose him to a 

lifetime registration requirement. The Commonwealth, aware of the 

potential lifetime registration obligation, used this information to highlight 

the benefit of entering into the negotiated plea agreement. See Plea Offer 

(”[a]bsent a finding that [Acevedo] would be classified as a [sexually violent 

preditor], he would be required to register under Megan’s law for 10 years 

as opposed to a lifetime registration for aggravated indecent assault, or a 

conviction for more than one Megan’s law offense.”). See also N.T., 

7/27/15, at 15 (where Acevedo’s counsel argues that “[t]he DA’s Office even 

acknowledge[d] [in the plea offer] that if he goes to trial and he’s 

unsuccessful, he’s facing lifetime registration requirements.”).

Furthermore, Acevedo testified at the hearing on his motion that he 

understood at the time the Commonwealth offered him a plea agreement 

that if he were unsuccessful at trial, he would have a significantly longer 

period of required registration. Id. at 11. He specifically testified that when 

he entered his guilty plea, his “understanding was ten years of a registration 

requirement[,]” and that “through the plea deal, plea agreement with the 

ten year registration, [ ] like that was in my best interest as opposed to 

pursuing it all the way up to trial.” Id. at 13-14. 

We agree with the trial court that the 10-year registration requirement 

was a bargained-for term of Acevedo’s plea. The Commonwealth’s offer of a 
J.S41016/16

- 9 -

10-year registration period induced Acavedo to forego his right to a trial on 

all of the charges pending against him. The application of SORNA’s 

registration requirements would abrogate the promise made to Acevedo and 

breach the agreement between the parties. See Hainesworth, 82 A.3d at 

449. 

Thus, recognizing the magnitude of SORNA registration, the essential 

role of plea agreements in the criminal justice system, and the need to 

preserve the Commonwealth’s integrity in its dealings, we agree with the 

trial court that Acevedo’s knowing and voluntary plea agreement must be 

specifically enforced. See Commonwealth v. Fruehan, 557 A.2d 1093, 

1094 (Pa. Super. 1998) (stating that “[i]f 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.”); see also Hainesworth, 82 A.3d at 447-49.

In its next issue, the Commonwealth avers that the trial court erred in 

finding that the length of Acevedo’s registration requirement was within the 

control of the District Attorney, as it is fixed by law. The Commonwealth 

also argues that, as a collateral consequence,6the “sexual offender 

registration requirement simply cannot be considered a ‘term’ of any plea 

 

6 A collateral consequence has been defined as a civil requirement over 

which a sentencing judge has no control. Commonwealth v. Abraham, 62 

A.3d 343, 350 (Pa. 2012).
J.S41016/16

- 10 -

agreement, specifically including the period of registration, which [is] 

determined by statute.” Commonwealth’s Brief at 24 (emphasis in original). 

These arguments are without merit. First, it is undisputed that the 

length of a SORNA registration requirement is statutorily mandated. 

However, it is within the Commonwealth’s sole discretion to determine 

whether a plea offer should be made and, if so, which offenses the offer 

should include. In deciding whether to offer a defendant a plea agreement, 

the Commonwealth is free to consider the severity of each charge, the likely 

sentence carried by each offense, and the collateral consequence of each 

charge. Thus, as aptly stated by Acevedo, “the Commonwealth may . . . 

fashion a plea offer to a defendant based on the offenses in which the 

Commonwealth believes best fits the situation, which for most sex offenses, 

includes a determination of what, if any, SORNA registration requirements 

should be applied.” Acavedo’s Brief at 9-10.

Moreover, it is well-established that our courts can, and do, consider 

sexual offender registration a term of plea agreements.7 See, e.g. 

Hainesworth, 82 A.3d at 449 (stating the “dispositive question is whether 

registration was a term of the bargain struck [in the plea agreement] . . .”); 

Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014) (holding that 

but for the defendant’s violation of probation, the new registration 

 

7 This point is, in fact, conceded by the Commonwealth in its Brief. See 

Commonwealth’s Brief at 35.
J.S41016/16

- 11 -

requirements would not have been applied retroactively since the defendant 

specifically negotiated a plea that carried only a 10 year registration 

requirement); see also Nase, supra.

Next, the Commonwealth claims the trial court erred in finding that the 

state cannot modify the terms of an existing contract. The Commonwealth 

argues that the state can, in the valid exercise of its police powers, modify 

the terms of an existing contract, especially when the underlying law in 

effect at the time the parties entered into the contract is thereafter declared 

unconstitutional. Commonwealth’s Brief at 32. We find this argument 

waived. 

The Commonwealth has not cited to any relevant cases in support of 

its argument. Rather, it relies extensively on cases based on civil contracts. 

None of the cases cited by the Commonwealth acknowledge the fundamental 

differences between civil contracts entered into by private parties and plea 

agreements between the Commonwealth and a criminal defendant. The 

Commonwealth overlooks that criminal defendants who enter into plea 

agreements are afforded due process protections to which parties to a civil 

contract are not entitled.8 See generally U.S. Const. amend. VI.; Pa. 

Const., Article I, §§ 6, 9. Because the Commonwealth failed to cite to 

 

8 Moreover, to permit the trial court to modify the terms of a valid and 

enforceable plea agreement has enormous potential to create a chilling 

effect for all future plea agreements, especially those that either directly 

pertain to SORNA or could be implicated by SORNA.
J.S41016/16

- 12 -

relevant case law, this arguments is waived. See Pa.R.A.P. 2119(a); 

Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa. Super. 2009) (claim 

is waived if there is no citation to relevant authority).

Last, the Commonwealth claims, again without citation to authority, 

that the trial court cannot “‘modify the requirements’ of registration

statutorily imposed on a defendant and has ‘no authority to relieve’ him from 

his duty to register as [SORNA] provides.” Commonwealth’s Brief at 42. 

This claim is waived. See Pa.R.A.P. 2119(a); Brougher, supra.

Order affirmed. Jurisdiction relinquished. 

Judge Bender joins the memorandum.

PJE Stevens files a dissenting statement. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/2/2016