J-S29001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD RIPLEY MAXWELL,

Appellant No. 324 WDA 2014

Appeal from the Order Entered January 31, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0004837-2002

BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 18, 2016

Appellant, Edward Ripley Maxwell, appeals from the trial court’s 

January 31, 2014 order dismissing his petition seeking enforcement of his 

2003 plea agreement. After careful review, we affirm.

On February 7, 2003, Appellant entered a negotiated guilty plea to 

charges of indecent assault, 18 Pa.C.S. § 3126(a)(7) (prohibiting indecent 

contact with a “complainant [who] is less than 13 years of age”), and 

corruption of minors, 18 Pa.C.S. § 6301. Appellant was subsequently 

sentenced on May 5, 2003. For indecent assault, the trial court sentenced 

Appellant to 18 months’ intermediate punishment, followed by 31⁄2 years’ 

probation. For corruption of minors, the trial court sentenced Appellant to a 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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consecutive term of 5 years’ probation. At the time of his sentencing, 

Appellant was required to register with the state police for a period of ten 

years under Megan’s Law.1

At a Gagnon2II hearing held on January 23, 2006, the trial court 

found that Appellant had violated the terms of his probation, as he had twice 

been discharged from his sex offender rehabilitation program due to his 

failure to comply with the prescribed treatment regimen. Consequently, the 

trial court revoked Appellant’s probation and imposed a new aggregate 

sentence of 21⁄2-5 years’ incarceration, followed by 5 years’ probation. 

Appellant unsuccessfully appealed his new sentence. See Commonwealth 

v. Maxwell, 932 A.2d 941 (Pa. Super. 2007), appeal denied, 940 A.2d 363 

(Pa. 2007). Appellant then filed a timely PCRA3 petition on March 20, 2008. 

His petition unexplainably sat dormant for 21⁄2 years until PCRA counsel was 

appointed in October of 2010. However, PCRA counsel was permitted to 

withdraw on March 3, 2011, after filing a Turner/Finley4 no-merit letter. 

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1

‘Megan’s Law’ generally refers to a set of civil penalties/obligations 

imposed on individuals convicted of criminal sexual offenses, including, inter 

alia, registration and reporting requirements. Pennsylvania’s version of 

Megan’s Law was enacted in 1995 and codified at 42 Pa.C.S. §§ 9791–

9799.9 (expired December 20, 2012). 

 

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3

Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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The PCRA petition was denied on August 1, 2011, and Appellant did not 

appeal from that decision.

Appellant violated the terms of his probation again, which was the 

basis for his arrest in June of 2011. Consequently, Appellant was 

resentenced on June 6, 2013, to a new term of 21⁄2-5 years’ incarceration. 

As a result of this new sentence, Appellant is now required to register for life 

as a sex offender under the Sex Offender Registration and Notification Act 

(“SORNA”), 42 Pa.C.S. § 9799.10 et seq.

5

 See 42 Pa.C.S. § 9799.15(a)(3) 

(“An individual convicted of a Tier III sexual offense shall register for the life 

of the individual.”); 42 Pa.C.S. § 9799.14(c) (classifying 18 Pa.C.S. § 

3126(a)(7) as a Tier III offense). 

Apparently, during the period between Appellant’s 2011 arrest and the 

new sentence imposed in June 2013, Appellant was represented both by 

assistant public defender and current counsel, Victoria H. Vidt, Esq., and by 

private counsel, Michael J. Machen, Esq. Attorney Vidt avers that that she 

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5 SORNA became effective on December 20, 2012, and requires all 

“individuals who are currently subject to the criminal justice system of this 

Commonwealth as inmates, supervised with respect to probation or parole or 

registrants under this subchapter to register with the Pennsylvania State 

Police and to otherwise comply with this subchapter.” 42 Pa.C.S. § 

9799.10(4) (emphasis added). Thus, Appellant would have been subject to 

the new registration requirements had his probation imposed in 2006 

continued to remain in effect through December 20, 2012. Therefore, 

Appellant may have been subject to the new requirements under SORNA 

even had he not been resentenced in 2013. 

 
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was unaware that Appellant had retained private counsel when she filed a 

petition seeking enforcement of Appellant’s plea agreement on April 30, 

2013, which is the subject of the instant appeal. See Petition (hereinafter, 

the “Petition”), 4/30/13, at 1. However, it does appear that Attorney 

Machen had only been retained for purposes of representing Appellant for his 

probation violation hearing, and not for the matter at issue herein. In any 

event, there is no record of Attorney Machen entering his appearance on 

Appellant’s behalf.6 

The trial court denied the Petition on February 4, 2014, and Appellant 

(via Attorney Vidt) filed a timely appeal. Appellant filed a timely docketing 

statement with this Court on March 10, 2014, and a timely, court-ordered 

Pa.R.A.P. 1925(b) statement with the trial court on April 22, 2014. The trial 

court issued its Rule 1925(a) opinion on February 23, 2015. 

Appellant did not file a brief in accordance with the briefing schedule 

issued by this Court, nor did he file a petition seeking an extension of time 

to file a brief. Consequently, this Court remanded this case to the trial court 

for a determination of whether Attorney Vidt had abandoned Appellant. On 

May 28, 2015, the trial court issued an order indicating that Attorney Vidt 

had not abandoned Appellant, but instead had not received the briefing 

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6 There is only a single entry in the docket pertaining to Attorney Machen, 

indicating that he filed a “Motion to Reinstate Probation” for Appellant on 

November 27, 2012. 
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schedule. Accordingly, this Court reissued a briefing schedule, ordering 

Appellant to file a brief on or before August 19, 2015, and he complied. 

Appellant now presents the following question for our review:

I. DID THE TRIAL COURT ERR IN FAILING TO ORDER THAT 

[APPELLANT] WAS REQUIRED TO REGISTER AS A SEXUAL 

OFFENDER FOR ONLY A 10 YEAR PERIOD, A[S] THE 

INITIAL NEGOTIATED AGREEMENT BETWEEN HIMSELF 

AND THE COMMONWEALTH PROVIDED?

Appellant’s Brief, at 5. 

The essence of Appellant’s argument is that the Commonwealth should 

be bound by the terms of the plea agreement, which provided that he would 

only be subject to registration as a sex offender for 10 years, despite his 

violations of probation that extended his sentence long enough to fall within 

the reach of SORNA. Appellant contends that his plea agreement should be 

treated as a contract that cannot be retroactively eviscerated by SORNA. 

There is at least some theoretical support for Appellant’s position to be 

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

(en banc), appeal denied, 95 A.3d 276 (Pa. 2014). In that case, this Court 

held that the defendant, who had specifically negotiated to avoid Megan’s 

Law registration as part of his plea agreement reached before the enactment 

of SORNA, would not have to submit to the new requirements of SORNA, as 

he was entitled to the benefit of his bargain with the Commonwealth.7 

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7

In Hainesworth, the appellant filed a motion seeking to terminate his 

supervision one week prior to the effective date of SORNA. 
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Appellant seeks to extend the Hainesworth decision to include probation 

violators like Appellant who, some might argue, absolve the Commonwealth 

of upholding its end of the plea bargain when they violate terms of probation 

imposed under a negotiated sentence. 

The trial court rejected Appellant’s claim by relying on this Court’s 

decision in Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), 

appeal denied, 97 A.3d 944 (Pa. 2014). The Commonwealth agrees with the 

trial court’s decision, asserting that Partee precludes relief in this case. In 

Partee, the appellant entered a negotiated nolo contendere plea agreement 

which included ten-year Megan’s Law reporting requirements. We noted 

that, despite the absence of direct evidence that the applicable Megan’s Law 

reporting requirement was an explicit term of Partee’s plea agreement, it 

was “apparent that [the a]ppellant's negotiated plea agreement was 

structured so that he would only be subject to a ten-year rather than a 

lifetime reporting requirement[.]” Id. at 249. 

However, unlike the appellant in Hainesworth, Partee had violated 

the terms of his probation prior to being subjected to the more onerous 

reporting requirements of SORNA. The Partee Court found this fact to be 

dispositive in rejecting the applicability of Hainesworth. The Court 

reasoned that, by violating his probation, Partee had failed to uphold his 

obligation under the plea agreement reached in his case. The Court based 

this holding on the well-established principle that, with respect to new 

sentences imposed for violations of probation, a “trial court is free to impose 
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any sentence permitted under the Sentencing Code and is not restricted by 

the bounds of a negotiated plea agreement between a defendant and 

prosecutor.” Partee, 86 A.3d at 249 (relying on Commonwealth v. 

Wallace, 870 A.2d 838 (Pa. 2005)). 

Instantly, we agree with the trial court and the Commonwealth that 

Partee is controlling authority. Appellant recognizes Partee’s adverse 

holding. He notes, however, that in his appeal, Partee did “not address the 

Commonwealth's argument or the legal effect of his probation violation upon 

the original plea agreement.” Partee, 86 A.3d at 250. Thus, Appellant 

argues that “because the opportunity to argue the issue did not occur in 

Partee, this discussion should be deemed dicta and this Court should still 

permit argument on the issue.” Appellant’s Brief, at 16. We disagree. 

Appellant cites no authority for the proposition that a legal holding in a case 

is mere dicta because a party inadequately argued against, or failed to argue 

against, their opponent’s successful legal argument. 

Nevertheless, Appellant goes on to present a robust argument as to 

why Partee was wrongly decided. However, [t]his panel is not empowered 

to overrule another panel of the Superior Court.” Commonwealth v. Beck, 

78 A.3d 656, 659 (Pa. Super. 2013). Thus, we are constrained to recognize 

Partee as controlling in this matter, and we reject Appellant’s claim on that 

basis. Consequently, we conclude that the trial court neither erred nor 

abused its discretion when it denied relief based on Partee. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2016