That Nolo Contendere Plea for a year of probation for Invasion of Privacy just bought you a FIFTEEN YEAR Sex Offender Registration Requirement … WHA-WHAT?!?!?
The PA Superior Court has recently decided the case of Commonwealth v. Hart, No. 1087 WDA 2016 (November 13, 2017), holding that because the trial court failed to inform Hart of SORNA’s 15-year registration requirements at the time of his plea and sentencing, it abused its discretion in denying his post-sentence motion to withdraw his plea of nolo contendere.
Hart plead nolo contendere to one count of Invasion of Privacy, 18 Pa.C.S.A. § 7507.1(a)(1) and received a sentence of one year probation. He had been arrested for using a ladder to climb to the second story of his home and peer into the bedroom window of his 19 year old step-daughter while she stood nude in her bedroom after stepping out of the shower.
Invasion of privacy is graded as a misdemeanor of the third degree. It has a mandatory 15 year registration requirement under the Sexual Offender Registration Notification Act (SORNA). Let me repeat that: Invasion of Privacy is a misdemeanor of the third degree that carries a mandatory 15 year registration requirement under SORNA.
Hart was not apprised of SORNA consequences at the time of his plea and sentencing. The trial court did not colloquy him on the SORNA consequences, especially its registration requirements, at the time of his plea and sentencing. In failing to do so, the trial court failed to comply with the statutory mandate of SORNA.
Hart filed a post-sentence motion to withdraw his plea and his motion was denied. He filed a timely appeal to the Superior Court.
Hart argued that he was unaware at the time of his plea and sentencing that the offense of invasion of privacy carried a fifteen-year registration requirement under SORNA. As a result, Hart claimed that he did not tender his plea in a knowing, voluntary, and intelligent fashion. Accordingly, he claimed that he suffered manifest injustice and that, consequently, the trial court abused its discretion in denying his post-sentence motion to withdraw the plea.
The Superior Court began its analysis of Hart’s claim by recognizing that Pennsylvania law presumes a defendant who entered a guilty plea was aware of what he was doing, and the defendant bears the burden of proving otherwise. The Court then noted that the PA Supreme Court has previously held that when a defendant is not made aware of a given consequence of his or her guilty plea, relief must be based upon a determination of whether the consequence at issue was a “direct” or “collateral” consequence of the plea, with only the former warranting a remedy. And, the distinction between a “direct” and “collateral” consequence of a plea is best described as “the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control.”
The Superior Court thereafter recognized that SORNA now has been determined to be punitive in effect, despite its expressed civil remedial purpose. And, in light of the PA Supreme Court’s recent announcement in Commonwealth v. Muniz, the Superior Court was “constrained” to hold that SORNA’s registration requirements are no longer merely a collateral consequence, but rather punishment.
Accordingly, because the trial court here failed to inform Hart of SORNA’s registration requirements at the time of his plea and sentencing, it abused its discretion in denying his post-sentence motion to withdraw his plea of nolo contendere.
CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/26790479.pdf?cb=1
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