Hope exists for sexual offenders who were given bad advice at the time of their guilty plea.
By Attorney Elisabeth K.H. Pasqualini, Megan's Law/Adam Walsh Act Attorney, Harrisburg, PA
I have fielded numerous calls from clients regarding their active registration requirements under Megan's Law becoming enhanced due to the application of the Adam Walsh Act or "SORNA" (Sexual Offender's Registration and Notification Act). I have also dealt with those clients who were told one thing at their guilty plea and sentencing hearings about the length of their registration, only to be told later "we got it wrong...it's actually lifetime registration." What can those people do that are told suddenly by their parole officers or the state police that they have a newly enhanced registration requirement.
First, I need to discuss how this process works and then I will divide the two types of clients into groups: (1) those that have a newly enhanced registration requirement under Adam Walsh or SORNA (see link to blog on enhancements) and (2) those of you who were lied to or just got bad/wrong advice.
Next, let's all understand that in PA, Megan's Law (II) has been held to be constitutional on the issue of the registration, notification, and counseling provisions of the Act. These provisions are NOT criminal punishment. Com. v. Williams, 574 Pa. 487, 832 A.2d 962 (Pa. S.Ct. 2003). Megan's Law III is now in place and is set to expire once the Adam Walsh Act provisions take effect on December 20, 2012.
Thirdly, any time we discuss a "plea agreement," let's know that certain requirements need to be met. Pursuant to the Pennsylvania Rules of Criminal Procedure (Pa.R.Crim.P. 590, 42 Pa.C.S.A.):
The six questions a judge must ask or should be on the record during any guilty plea or nolo contendre plea:
- Does the defendant understand the nature of the charges to which he is pleading guilty?
- Is there a factual basis for the plea?
- Does the defendant understand that he has the right to a trial by jury?
- Does the defendant understand he is presumed innocent until he is found guilty?
- Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
- Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreements?
What's required for a plea agreement?
(1) When counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the Commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.
(2) The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.
Fourth, a plea of guilty forecloses challenges to all matters except the voluntariness of the plea, the jurisdiction of the court, or the legality of the sentence.
Fifth, allowing someone to withdraw a plea is not likely, since a defendant must show prejudice on the order of manifest injustice before a guilty plea may be withdrawn after sentencing. Examples of such prejudice would be after-discovered evidence warranting a new trial, the failure of a judge to abide by a plea agreement, or erroneous advice on how the law will affect the duration of the sentence. Manifest injustice may also be established if a plea was not tendered knowingly, intelligently, and voluntarily. If a defendant was either misinformed or not informed as to the maximum possible sentence he could receive if he went to trial, and the misinformation or lack of information was material to his decision to accept a negotiated plea, manifest injustice is established and the plea may be withdrawn. Recall, however, a Megan's Law or Adam Walsh registration period is NOT a criminal sentence.
Sixth, a criminal defendant has the right to effective assistance of counsel during the plea process. However, allegations of ineffectiveness in connection with the entry of a guilty plea will only serve as a basis for withdrawal if the defendant can show that the ineffective assistance rendered the plea involuntary or unknowing, that is, (1) counsel's action or omission was of questionable legal soundness; (2) counsel had no reasonable basis for the action or omission designed to further the defendant's interests; and (3) counsel's failure prejudiced the defendant. To show prejudice, the defendant must establish a reasonable probability that, but for counsel's errors, he would not have pleaded guilty.
It follows that when counsel gives a defendant legally unsound advice which works to the defendant's prejudice, counsel is ineffective and the plea involuntary. To succeed in establishing prejudice, the defendant must show that it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty but would have gone to trial. The "reasonable probability" test is not a stringent one, demanding less than a "preponderance" standard.
Finally, things that will not show ineffectiveness are things called "collateral consequences." These are things outside the normal meaning of criminal punishment and have included deportation, a driver's license suspension for ninety days due to the entry of the plea, the possibility of a probation revocation, eligibility for parole and a mandatory registration under Megan's Law, Com. v. Leidig, 2004 PA Super 167, 850 A.2d 743 (2004), order aff'd, 598 Pa. 211, 956 A.2d 399 (2008) (registration requirement does not have a definite, immediate, and largely automatic effect on defendant's punishment), citing Com. v. Williams, 574 Pa. 487, 832 A.2d 962 (2003).
The Bottom Line
In the beginning, I explained that there are two groups. Those that have enhanced registration requirements under the Adam Walsh Act and those that were lied to when they entered a plea. Those that have been told by their parole officers or state police that they will now have to register for 25 years or life, not much can be done except challenge the constitutionality of the current law. This is because the Adam Walsh Act or Megan's Law has been held not to be a criminal penalty.
Those that were lied to or given raw advice in the entry of their plea, you have a chance of seeking relief either under the Post Conviction Relief Act or directly through a petition to challenge the legality of your sentence. If you were told that by entering your plea, you would only be subject to a ten-year registration requirement and have now been told that due to the offenses you plead guilty to, you now have a lifetime registration requirement, you may have some light at the end of your tunnel. (See blog link to article for specific circumstances). This attack has not yet been tested in the appellate courts, however, where funadamental fairness exists, I believe it will be a persuasive argument.
For answers to your Megan's Law or Adam Walsh Act questions, contact Shaffer & Engle Law Offices, LLC or call toll free.