Commonwealth v. Farabaugh

• Decision Date: 11 March 2016
• Docket Number: No. 1198 WDA 2013,1198 WDA 2013
• Citation: 136 A.3d 995,2016 PA Super 63
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Raymond W. FARABAUGH, Appellant.
• Court: Pennsylvania Superior Court

136 A.3d 995

2016 PA Super 63

COMMONWEALTH of Pennsylvania, Appellee

v.Raymond W. FARABAUGH, Appellant.

No. 1198 WDA 2013

Superior Court of Pennsylvania.

Submitted June 17, 2014.

Filed March 11, 2016.

Steven P. Passarello, Altoona, for appellant.

Scott M. Lilly, Assistant District Attorney, Ebensburg, for Commonwealth Appellee

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and FITZGERALD, J.^*

OPINION BY GANTMAN

, P.J.:

Appellant, Raymond W. Farabaugh, is before us upon remand from the Pennsylvania Supreme Court, with regard to his appeal from the Cambria County Court of Common Pleas order that dismissed his petition to enforce his negotiated plea agreement or, in the alternative, for a writ of habeas corpus. For the following reasons, we reverse and remand.

The relevant facts and procedural history of this case are as follows. On September 23, 2010, Victim initiated an investigation, based on allegations that when she was under 16 years old, in 1994–1995, she worked on a farm with Appellant, who was then 25 years old. Victim claimed Appellant would approach her from behind, grind up against her, grab her breasts, stick his hands down her pants, and rub her vagina. Victim eventually quit the job. Both parties moved on with their respective adult lives until 2010. As a result of Victim's report in 2010, and follow-up police investigation, the Commonwealth charged Appellant on January 12, 2011, with one count of aggravated indecent assault as a second degree felony and one count of indecent assault as a second degree misdemeanor.¹ Appellant and his counsel engaged in plea negotiations with the Commonwealth and struck an agreement. Appellant agreed to plead guilty to the indecent assault count as a second degree misdemeanor and a nonreportable offense under the relevant version of Megan's Law (requiring perpetrators of specified offenses to register and report to authorities), to be punishable by two years' probation, plus fines, costs, 500 hours of community service, sex offender treatment, and no contact with Victim. In exchange, the Commonwealth agreed to a nolle prosequi on the felony count, which was a reportable offense under Megan's Law. At the time of the plea agreement/proceeding on April 26, 2011, the parties expressly agreed Appellant's plea involved a non-reportable offense. That fact was acknowledged undisputedly on the written plea colloquy and in an email from the Commonwealth to defense counsel.

Our Supreme Court continues:

On June 28, 2011, the trial court sentenced [Appellant] to two years' probation; at the time of sentencing, the law did not require [him] to register as a sexual offender. Later that year, amendments to Megan's Law added crimes to the list defined as sexually violent offenses, and established a three-tiered system for classifying such offenses and their corresponding registration periods. See Act of December 20, 2011, P.L. 446, No. 111, § 12 (effective December 20, 2012) (Megan's Law IV). The 2011 amendments became effective December 20, 2012; they applied to individuals who, as of that date, [had been] convicted of a sexually violent offense and were incarcerated, on probation or parole, or subject to intermediate punishment. See id. (codified as amended at 42 Pa.C.S. § 9799.13

). Thus, [Appellant] was subject to the reporting and registration requirements, ... and, as a Tier–II sexual offender, ... was required to register for 25 years, ... § 9799.15(a)(2).^[2

^]

After [SORNA] went into effect, [Appellant] filed a “Petition to Enforce Plea Bargain/Habeas Corpus, ” arguing that ordering him to comply with the new registration and reporting requirements violated his plea agreement and various state and federal constitutional provisions.^[3

^] The trial court denied the petition, and [Appellant] appealed to the Superior Court.^[4

^]

On March 14, 2014, while the appeal was pending in the Superior Court, after the parties had submitted their briefs, the governor signed Act 19 into law, amending the provisions of Megan's Law again; the Act was effective immediately and made retroactive to December 20, 2012. See Act of March 14, 2014, P.L. 41, No. 19, §§ 7–8. Relevant to this appeal, Act 19 added the following provision, in pertinent part: “For purposes of this paragraph, the term ‘sexually violent offense’ ... shall not include ... [a] conviction under 18 Pa.C.S. § 3126 (relating to indecent assault) where the crime is graded as a misdemeanor of the

second degree.” Id., § 3 (codified at 42 Pa.C.S. § 9799.13(3.1)(ii)(B)

).

The Superior Court panel sua sponte addressed Act 19, holding the above language exempted [Appellant] from the requirements of Megan's Law. The panel interpreted paragraph (3.1) as excluding convictions of indecent assault as a second-degree misdemeanor from every class of registrants in 42 Pa.C.S. § 9799.13. Thus, the panel reasoned [Appellant] “effectively never was[ ] subject to the Megan's Law registration requirements” because Act 19 was made retroactive to December 20, 2012—the effective date of Megan's Law IV, which [Appellant] was challenging. Commonwealth v. Farabaugh, No. 1198 WDA 2013, unpublished memorandum at 4, 105 A.3d 36 (Pa.Super. filed June 17, 2014). As a result, the panel determined [Appellant's] constitutional issues were moot, vacated the trial court's order, and remanded.

The Commonwealth filed a Petition for Allowance of Appeal, and we granted review of the following question:

Whether the Superior Court erred, while acting sua sponte, when it incorrectly found that new amendments to 42 Pa.C.S. § 9799.13 excluded the crime of [i]ndecent [a]ssault (18 Pa.C.S. § 3126(a)(8) ) from list [sic] of mandated sex offender registry crimes.

Commonwealth v. Farabaugh, 629 Pa. 312, 105 A.3d 655 (2014) (per curiam ) (alterations in original)....

Commonwealth v. Farabaugh, ––– Pa. ––––, 128 A.3d 1191, 1192–93 (2015)

. Following intense statutory construction, the Supreme Court was “constrained to reverse” this Court's decision, holding:

[T]he Superior Court erred in finding Act 19 excluded [Appellant] from registering as a sexual offender. It is clear that provision (3.1) of § 9799.13

is “a paragraph since it is illustrated by an Arabic numeral.” Id. If the legislature intended the paragraph (3.1) exception to apply to each class of registrants in § 9799.13, it would have used the phrase “for purposes of this section,” but that is not what the statute says, and we may not read words into an unambiguous statutory provision. See 1 Pa.C.S. § 1921(b). The phrase “for purposes of this paragraph” demonstrates the exclusion applies only to paragraph (3.1), as the word “paragraph” in this context is a technical term with a specific meaning. See 1 Pa.C.S. § 1903.

Id. at 1196

. As a result of the Farabaugh decision, the Supreme Court also indirectly called into doubt the Superior Court case of Commonwealth v. Bundy, 96 A.3d 390 (Pa.Super.2014) (relying on statutory interpretation similar to this Court's decision in the Farabaugh case, which our Supreme Court overturned). Following reversal, the Supreme Court remanded the case to our Court to address any issues Appellant properly preserved for appeal; the matter is now before us for that resolution.

Appellant raised five issues in his brief:

[WHETHER] THE SENTENCING COURT ERRED BY REFUSING TO HONOR THE PLEA AGREEMENT BETWEEN [APPELLANT] AND [THE COMMONWEALTH] AS A MATTER OF DUE PROCESS.

[WHETHER] THE SENTENCING COURT ERRED BY NOT FINDING THE SEXUAL OFFENDER REGISTRATION AND NOTIFICATION ACT UNCONSTITUTIONAL.

[WHETHER] THE STATUTE OF LIMITATIONS EXPIRED PRIOR TO THE FILING OF CHARGES CAUSING ANY CONVICTION TO BE TIME BARRED.

[WHETHER] THE SENTENCING COURT ERRED IN FINDING [APPELLANT'S] PLEA WAS KNOWING, VOLUNTARY, AND INTELLIGENT.

[WHETHER] [APPELLANT'S] GUILTY PLEA AND SENTENCING COUNSEL WAS INEFFECTIVE.

(Appellant's Brief at 20).⁵

For disposition, we combine Appellant's remaining arguments. Essentially, Appellant contends he agreed to plead guilty to one count of indecent assault, as a second degree misdemeanor, to be punishable by two years' probation, plus fines, costs, 500 hours of community service, sex offender treatment, and no contact with Victim. The Commonwealth agreed to nolle prosequi the felony count, which was a reportable offense under the relevant version of Megan's Law. At the time of the plea proceedings, the parties agreed Appellant's plea involved a non-reportable offense under Megan's Law. Appellant contends the integrity of the plea process generally, and his in particular, compels enforcement of the plea entered. Appellant insists he relinquished his right to a jury trial, among other rights, to enter the plea agreement; and application of SORNA to his case materially undercuts the plea agreement because it subjects Appellant to reporting conditions he sought to avoid by pleading guilty.

Appellant maintains that SORNA substantially modifies his plea agreement and the impairment is unreasonable. Appellant avers his plea bargain incorporated then-existing law regarding sex offender registration, and the contracting parties understood he would not have to register as a sex offender. Appellant claims he reasonably expected to be subject to two years of probation with no Megan's Law registration. By virtue of SORNA, new terms have been unilaterally added to that bargain, terms Appellant specifically sought to avoid by pleading guilty. Appellant maintains SORNA is no incidental or minor alteration to the plea bargain, where SORNA transforms Appellant from a non-reporting offender to an offender subject to 25 years of registration and reporting. Appellant further complains that during this new, lengthy registration/reporting period, SORNA likewise dictates numerous other aspects of Appellant's life and subjects him to imprisonment for noncompliance. As such, Appellant reasons the imposition of SORNA to his case substantially alters his plea bargain.

Appellant also avers the SORNA registration/reporting requirement violates the contract...