Guilty Plea • Specific Performance • Sex Offender Registration

Commonwealth v. Partee, PICS Case No. 14-0325 (Pa. Super. Feb. 20, 2014) Bowes, J. (11 pages).

Appellant was not entitled to specific performance of his negotiated plea requiring him to register as a sexual offender for 10 years where he breached agreement by violating his probation. Affirmed.

Appellant entered a negotiated nolo contendere plea to indecent assault and related offenses. Pursuant to the agreement, com-monwealth withdrew the two highest counts (race and incest), thereby reducing appellant’s reporting requirements under Megan’s Law II from lifetime registration to registration for 10 years. The court sentenced appellant to intermediate punishment for six months, followed by a four-year probationary term.

Approximately three years later, appellant violated his probation and was re-sentenced to 30 to 60 months of imprisonment for his indent assault conviction. Because he was on probation when it passed, the Sex Offender Registration and Notification Act required that he register as a sex offender for 25 years.

Appellant petitioned for specific enforcement of his plea agreement, arguing that the ten-year registration requirement was an essential term of his plea agreement. The Superior Court affirmed.

In Commonwealth v. Hainesworth, 2013 Pa. Super. 318 (Dec. 12, 2013), the court specifically enforced a negotiated plea agreement under which defendant was not required to report as a sex offender, despite subsequent amendments to Megan’s Law that would have subjected him to reporting requirements. Using principles of contract law, the court found that the no-reporting requirement was an essential term of the bargain and specific performance an appropriate remedy.

While it was not an explicit term of the negotiated plea, appellant’s plea agreement was structured so that he would only be subject to a ten-year rather than a lifetime reporting requirement (i.e., commonwealth withdrew the two charges carrying lifetime registration). Under Hainesworth, appellant arguably was entitled to the benefit of that bargain.

However, appellant’s subsequent violation of probation constituted a breach of the plea agreement. Having failed to abide by the terms of the plea bargain, that agreement was no longer in effect and appellant was not entitled to specific performance.