[J-29A-C-2016][M.O. – Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v.**

**GABRIEL J. MARTINEZ,**

**Appellee :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 30 MAP 2015 Appeal from the Order of the Superior**  **Court at No. 1420 MDA 2013, dated 4/14/14 affirming the order of the York**  **County Court of Common Pleas, Criminal Division, at No. CP-67-CR**  **0001486-2010, dated 7/19/13**

**ARGUED: March 8, 2016**

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v.**

**ADAM MACKENZIE GRACE,**

**Appellee :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 32 MAP 2015 Appeal from the Order of the Superior**  **Court at No. 1522 MDA 2013 dated 4/14/14 affirming the order of the York**  **County Court of Common Pleas, Criminal Division, at No. CP-67-CR**  **0000227-2011, dated 7/31/13**

**ARGUED: March 8, 2016**

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v.**

**WAYNE PATRICK SHOWER,**

**Appellee :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 34 MAP 2015**  **Appeal from the Order of the Superior Court at No. 1422 MDA 2013 dated**  **4/15/14 affirming the order of the York County Court of Common Pleas,** **Criminal Division, at No. CP-67-CR 0006313-2005, dated 7/19/13** 

**ARGUED: March 8, 2016 [J-29A-C-2016][M.O. – Baer, J.] - 2**  CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: September 28, 201 6

**I agree with much of the majority’s contract-based reason ing and its conclusion**  **that appellees are entitled to the benefit of their bargains. However, I am circumspect**  **that such relief, exempting appellees from SORNA’s req uirements, may be effectuated** 

**absent a constitutional basis.** See Commonwealth v. Killinger **, 585 Pa. 92, 106, 888 A.2d 592, 601 (2005) (“We will not interfere any mo**  **re than the constitution requires with the Legislature's deliberative process in refining the**  **treatment of sexual offenders to best protect the citizens of the Commonwealth.”);**  see also **42 Pa.C.S. §9799.23(b)(2) (“[T]he court shall have no authority to relieve a se**  **xual offender from the duty to register under this subchapter or to modify the requirements o**  **f this subchapter as they relate to the sexual offender.”).** 

**The** Zuber **case -- which the majority appears to rely on as author ity for the grant**  **of specific performance premised on contract principles alon e -- involved a plea**  **agreement containing terms that violated existing law.** See **Majority Opinion,** slip op. **at 23 n.19 (discussing**  Commonwealth v. Zuber **, 466 Pa. 453, 353 A.2d 441 (1976)). Critically, the**  Zuber

**Court, in enforcing the plea agreement, required th at the sentence** 

**be modified in such a manner so as to** comply **with the pertinent provisions of the law.**

See Zuber

**, 466 Pa. at 462 & n.8, 353 A.2d at 446 & n.8. In contrast, any similar**  **modification appears impossible in the present matter, since SORNA facially requires**  **registration terms different from those that were inco rporated into the plea bargains.**  **Accordingly, I believe further analysis is necessitated.**

**The Fourteenth Amendment to the United States Constit ution and Article 1,**  **Section 9 of the Pennsylvania Constitution, which have been interpreted as generally** **[J-29A-C-2016][M.O. – Baer, J.] - 3**

**coextensive, guarantee the protections of due process.** See Commonwealth v. Sims

**, 591 Pa. 506, 523 n.6, 919 A.2d 931, 941 n.6 (2007).**  **The Court has previously related that “[t]he due process inquiry, in its most general fo**  **rm, entails an assessment as to whether the challenged proceeding or conduct offends so**  **me principle of justice so rooted in the traditions and conscience of our people a**  **s to be ranked as fundamental and that defines the community's sense of fair play and**  **decency.”** Commonwealth v.

Kratsas **, 564 Pa. 36, 49, 764 A.2d 20, 27 (2001) (quote mar ks, citations, and alterations**  **omitted);** see also Khan v. State Bd. of Auctioneer Exam’rs **, 577 Pa. 166, 183, 842 A.2d 936, 946 (2004) (“Substantive due process is the esoter**  **ic concept interwoven within our judicial framework to guarantee fundamental fairness an**  **d substantial justice . . ..” (internal quotes and citation omitted)).**  **As relates to this constitutional protection, the majorit y develops that plea**  **bargaining is an “essential component of the administrat ion of justice,” Majority Opinion,**  slip op. **at 21 (quoting** Santobello v. New York **, 404 U.S. 257, 260, 92 S. Ct. 495, 498 (1971)), and that the Commonwealth has an affirmati**  **ve duty to abide by the terms of the plea agreement,**  see id. **at 23 (citing** Zuber **, 466 Pa. at 458-59, 353 A.2d at 444 (“Our courts have demanded strict compliance . . . in ord**  **er to avoid any possible perversion of the plea bargaining system, evidencing th**  **e concern that a defendant might be coerced into a bargain or fraudulently induce**  **d to give up the very valued constitutional guarantees attendant the right to trial**  **by jury.”)). From my perspective, plea bargaining’s role in our just**  **ice system, combined with the defendant’s exchanged waiver of constitutional righ**  **ts, mandates consideration of fundamental fairness and attendant due process protection**  **s.** See State v. Blackwell

**, 522 S.E.2d 313, 315 (N.C. Ct. App. 1999) (“By plead**  **ing guilty, a defendant waives many constitutional rights, not the least of which is hi**  **s right to a jury trial. No other right [J-29A-C-2016][M.O. – Baer, J.] - 4** 

**of the individual has been so zealously guarded over the years and so deeply**  **embedded in our system of jurisprudence . . .. As such, due process mandates strict**  **adherence to any plea agreement.” (quotation marks and citations omitted)),**  remanded on other grounds **, 538 S.E.2d 929 (N.C. 2000) (** per curiam **). 1**  **It seems evident from this Court’s and other jurisdiction s’ precedents that the**  **enforcement of plea bargains is rooted in fundamental fairness.**  See, e.g.

**,** Commonwealth v. Sluss **, 419 S.E.2d 263, 265 (Va. Ct. App. 1992) (“[T]o al low the**  **government to receive the benefit of its bargain wi thout providing the reciprocal benefit**  **contracted for by the defendant would do more than vi olate the private contractual rights**  **of the parties—it would offend all notions of fairness i n the related criminal proceedings,**  **which are protected by constitutional due process.”). Accor dingly, since the parties**  **stipulated in these cases that the registration condition s were express terms of**  **appellees’ plea agreements, I believe appellees are en titled to the benefit for which they**  **bargained as a matter of due process.**

**1 The view that plea bargains must be enforced pursuant**  **to due process principles appears to garner support among many state and federal**  **jurisdictions.** See, e.g.

**,** Cuero v. Cate **, __ F.3d __, __, 2016 WL 3563660, at *3 (9th Cir.** **June 30, 2016) (indicating that, where a term in a plea agreement functions as an**  **inducement for the defendant to plead guilty, the defendant obtains a vested right u**  **nder the Due Process Clause to enforce it);**  United States v. Lara-Ruiz **, 681 F.3d 914, 919 (8th Cir. 2012);** United States v. Al-Arian **, 514 F.3d 1184, 1190 (11th Cir. 2008);** United States v. Randolph **, 230 F.3d 243, 249 (6th Cir. 2000);**  In re Altro **, 180 F.3d 372, 375 (2d Cir. 1999);** United States v. Ingram **, 979 F.2d 1179, 1184 (7th Cir. 1992);** People v. Villalobos **, 277 P.3d 179, 182 (Cal. 2012);**  Van Buskirk v. State **, 720 P.2d 1215, 1216 (Nev. 1986);** State v. Howington **, 907 S.W.2d 403, 410 (Tenn. 1995);** Commonwealth v. Sandy **, 509 S.E.2d 492, 494 (Va. 1999).**  But see State v. Kuchenreuther **, 218 N.W.2d 621, 624 (Iowa 1974) (requiring the state to honor its plea agreemen**  **t, but concluding that** Santobello **was adjudicated by “application of what may be termed a ‘fair-play standard,’” rather**  **than constitutional principles).**