Opinion
No. 3488 EDA 2017
10-20-2020
COMMONWEALTH of Pennsylvania v. David SANTANA, Appellant
I. Introduction
In 2011, the General Assembly of Pennsylvania enacted the Sexual Offender Registration and Notification Act ("SORNA"), which adopted Title I of the federal Adam Walsh Act. A primary goal of the Adam Walsh Act (and, therefore, of SORNA) is addressing the inconsistencies that arose when 50 states had 50 unique, registration procedures for sex offenders. Congress therefore incentivized states to establish a national, coordinated registry. The federal government thereby hoped to track and to publicize sex offenders’ residences, employment locations, and online identities with improved accuracy and predictability.
42 Pa.C.S.A. §§ 9799.10 -9799.41 ; 34 U.S.C. §§ 20911 -20932.
However, in 2017, the Supreme Court of Pennsylvania found SORNA's registration requirements so injurious to reputation and individual liberty that they constitute a criminal punishment unto themselves. Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied sub nom. Pennsylvania v. Muniz , ––– U.S. ––––, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018). Furthermore, Muniz barred retroactive application of SORNA's registration, because the General Assembly violates the federal and Pennsylvania constitutions whenever it increases the punishment for a crime after that crime has occurred. Hence, the registration requirements of SORNA are unconstitutional if the Commonwealth applies them to someone whose underlying sexual offense occurred prior to SORNA's effective date.
In this appeal, we granted en banc review to determine whether, in light of the foregoing, the Commonwealth could constitutionally charge and convict Appellant David Santana with failing to register in Pennsylvania, under SORNA, for a pre-SORNA crime that occurred in New York. The trial court held SORNA's registration requirements were not ex post facto punishments for Mr. Santana, because he moved to Pennsylvania after SORNA had taken effect. By basing its decision on locality and not chronology, the trial court violated the precedents of the Supreme Court of the United States, the Supreme Court of Pennsylvania, and the federal and state constitutions. We therefore reverse its order denying Mr. Santana's post-sentence motions.
Specifically, Mr. Santana enter a negotiated guilty plea to the charge of failing to comply with the registration requirements of SORNA, 18 Pa.C.S.A. § 4915.1(a)(1), and the trial court sentenced him according to the terms of that plea bargain.
II. Factual and Procedural Background
The timeline of events in this case is critical.
In 1983, Mr. Santana committed a rape in New York, and a court of that state convicted and sentenced him for it. When Mr. Santana committed his crime, Pennsylvania had no law requiring sex offenders to register in this Commonwealth. Neither did New York.
In January of 1996, New York's sex-offender registration law took effect. Around the same time (on October 24, 1995), Pennsylvania's legislature expanded our Sentencing Code to include a new Subchapter H, "Registration of Sexual Offenders." See Act 24 of 1995; P.L. 24, effective April 22, 1996 (a.k.a., "Megan's Law I"). Among other things, Megan's Law I established a database for compiling data on sex offenders upon their return to society. Only a few offenses triggered registration, and all registrations were ten years in duration. See 42 Pa.C.S.A. §§ 9791 - 9799 (repealed).
In 2000, New York paroled Mr. Santana, and, upon his release from prison, a New York criminal court ordered him to register as a sex offender for life under that state's 1996 law. Over the next few years, the General Assembly of Pennsylvania amended our Subchapter H several times. This included its 2011 adoption of SORNA to implement the Adam Walsh Act. SORNA took effect in Pennsylvania on December 20, 2012.
We note that New York's registration law differs from Pennsylvania's SORNA, because, unlike SORNA, New York's registration requirements do not rise to the level of criminal punishments, in and of themselves. Instead, they are civil, regulatory consequences of the underlying sex offense, and the Ex Post Facto Clause (U.S. Const. art. I, § 10) therefore does not prohibit New York from applying them retroactively. See Devine v. Annucci , 56 N.Y.S.3d 149, 150 A.D.3d 1104 (N.Y. App. Div. 2017).
Three years later, Mr. Santana moved from New York to Pennsylvania. Believing he had to register here, Mr. Santana initially did so. Police eventually discovered that he failed to update some of his registration data in a timely manner, and they arrested him. He pleaded guilty.
On July 18, 2017, the trial court sentenced Mr. Santana to two years and nine months to five-and-a-half years’ incarceration for failing to register under SORNA. The next day, the Supreme Court of Pennsylvania decided Muniz , supra .
Mr. Santana immediately filed a post-sentence motion to withdraw his guilty plea and have all charges against him dismissed. He claimed his SORNA registration requirement was an unconstitutional, ex post facto punishment for his 1983 crime. Mr. Santana argued that, if SORNA's registration requirement was unconstitutional as to him, then the Commonwealth could not convict him for failing to obey that unconstitutional requirement. In other words, he claimed that, because Muniz exempted him from SORNA, he unknowingly and erroneously pleaded guilty to the crime of failing to register – a crime he could not have committed, as a matter of law.
He asked the trial court to vacate his illegal sentence, allow him to withdraw his plea, and dismiss the case against him. The trial court denied relief, and Mr. Santana timely appealed.
III. Analysis
Mr. Santana raises one issue in this appeal: "whether the trial court abused its discretion and erred as a matter of law when it determined [Mr. Santana's] registration and conviction under SORNA did not violate the state and federal Ex Post Facto Clauses." Santana's Original Brief at 4. Relying upon Muniz , he reiterates the arguments from his post-sentence motion. See id. at 9-13, 18-20.
The Commonwealth generally accepts Mr. Santana's reading of Muniz , but it claims SORNA's registration requirements do not retroactively increase Mr. Santana's punishment. It therefore asserts his conviction and sentence should stand. See Commonwealth's Original Brief at 7-9. The Commonwealth says that, because Mr. Santana faced lifetime registration requirements in New York in 2012 and he knew of SORNA when he moved to Pennsylvania, SORNA is not ex post facto as to him. See id. at 12. The trial court agreed with the Commonwealth and denied Mr. Santana's post-sentence motions to withdraw his guilty plea.
Also, the Commonwealth tangentially proposes a constitutional argument of its own. It believes the Full Faith and Credit Clause (U.S. Const. art. IV, § 1 ) of the federal constitution requires this Court to apply New York court's order that Mr. Santana register with local police. See Commonwealth's Brief at 11-12. The Commonwealth sites only a civil case to support its theory: Baker by Thomas v. General Motors Corp. , 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) (holding that the Full Faith and Credit Clause does not require Missouri to apply a Michigan court's equitable decree against the plaintiffs in a Missouri-based, federal-diversity lawsuit, who were not parties to the Michigan matter).
The Commonwealth's reliance upon Baker and the Full Faith and Credit Clause to enforce the criminal judgment from New York against Mr. Santana in Pennsylvania is misplaced. "[T]he Full Faith and Credit Clause does not require that Sister States enforce a foreign, penal judgment." Nelson v. George , 399 U.S. 224, 229, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970). See also Commonwealth v. Iverson , , 516 A.2d 738, 739 n.2 (Pa. Super. 1986) (recognizing that, in a multistate investigation, the Commonwealth may not rely upon the Full Faith and Credit Clause to import a final judgment from Delaware to conclusively establish, as res judicata , that police constitutionally seized the evidence).
The law regarding withdraw of a guilty plea following sentence dictates that a "defendant must demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea." Commonwealth v. Broaden , 980 A.2d 124, 129 (Pa. Super. 2009) (citations omitted). Such an injustice arises "if the plea was not tendered knowingly, intelligently, and voluntarily. In determining whether a plea is valid, the court must examine the totality of circumstances surrounding the plea." Id. Because post-sentence motions to withdraw a plea are disfavored in the law, "the decision whether to permit a defendant to withdraw a guilty plea is within the sound discretion of the trial court." Commonwealth v. Hart , 174 A.3d 660, 664 (Pa. Super. 2017).
"Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary action." Commonwealth v. Shaffer , 551 Pa. 622, 712 A.2d 749, 751 (1998). A court abuses its discretion if, among other things, "the law is not applied" correctly. Id. Regarding whether the trial court misapplied constitutional law, "our scope of review is plenary, and we review [its] legal determinations de novo ." Commonwealth v. Butler , ––– Pa. ––––, 226 A.3d 972, 977 (2020) (quoting Muniz , 164 A.3d at 1195 ). Additionally, all lawfully enacted statutes carry a presumption of constitutionality, which the party seeking to evade their enforcement must rebut. See id.
With this background in mind, we turn to the criminal statute and the two constitutional provisions at issue.
Mr. Santana pleaded guilty to violating Section 4915.1(a)(3) of the Crimes Code, failure to comply with a registration requirements – i.e., SORNA. The statute provides, in relevant part, "An individual who is subject to registration under 42 Pa.C.S. § 9799.13 ( [SORNA] ) commits an offense if he knowingly fails to ... provide accurate information when registering under [SORNA]." 18 Pa.C.S.A. § 4915.1(a)(3). The parties agree that Mr. Santana knowingly failed to provide the police with accurate information when he did not completely and timely update his SORNA-registration data. Thus, the only element of offense in doubt is the first. Was Mr. Santana, constitutionally speaking, "subject to registration under 42 Pa.C.S. § 9799.13" of SORNA? Id.
Pursuant to Section 9799.13, someone must register under SORNA if "on or after the effective date of this section, [he] is required to register in a sexual offender registry in another jurisdiction ... under a sexual offender statute in the jurisdiction where the individual is convicted and ... [he] has a residence in this Commonwealth or is a transient." 42 Pa.C.S.A. § 9799.13(7)(i). The parties agree that Mr. Santana satisfies the language of Section 9799.13(7)(i). He is someone whom the General Assembly intended for SORNA's registration requirements to include. However, he argues the federal and Pennsylvania constitutions prevent the Commonwealth from applying that section to him, thereby thwarting the legislature's intent. If the constitutions nullify the registration-requirement element of 18 Pa.C.S.A. § 4915.1(a)(3), he claims the Commonwealth cannot sustain his conviction.
We agree that a prerequisite for guilt under 18 Pa.C.S.A. § 4915.1(a)(3) is that the individual be "subject to registration under 42 Pa.C.S. § 9799.13 ( [SORNA] )." 18 Pa.C.S.A. § 4915.1(a)(3). If a person is not subject to register under SORNA, then he cannot be guilty of failing to register under Section 4915.1(a)(3) of the Crimes Code.
Mr. Santana attacks the applicability of 42 Pa.C.S.A. § 9799.13(7)(i) to him under the Ex Post Facto Clauses of both the federal and Pennsylvania constitutions. The Constitution of the United States dictates that, "No state shall ... pass any ... ex post facto law ...." U.S. Const. art. I, § 10. Similarly, the Constitution of the Commonwealth of Pennsylvania mandates that "No ex post facto law ... shall be passed." Pa. Const., art. I, § 17. The phrase "ex post facto " is Latin, literally meaning, "from a thing done afterwards," or, better stated, "after the fact."
Although Mr. Santana argues that the Commonwealth has violated both constitutions, he presents no Edmunds analysis and asserts no heightened protection under the state constitution. See Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 895 (Pa. 1991) (stating that, in our "New Federalism," there are "certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provision of the Pennsylvania constitution," especially if the litigant asserts novel claims under the Pennsylvania constitution). Furthermore, in Muniz , only three Justices found Pennsylvania's Ex Post Facto Clause to afford greater protections than the federal Ex Post Facto Clause. Compare Muniz , 164 A.3d at 1223 (Lead Opinion), with Muniz at 1224 (Wecht, J., concurring). Thus, Mr. Santana's federal and state rights remain coextensive, and we analyze them together. See , e.g. , Commonwealth v. Rose , 633 Pa. 659, 127 A.3d 794, 798 n.11 (2015).
Both constitutions restrain the Commonwealth from enforcing a law that it enacted after the fact, i.e. , after the event in question is complete. In other words, the legislature cannot criminalize or enhance the penalty for conduct after that conduct has occurred. Constitutional freedom from after-the-fact legislation ensures that a person receives "fair warning" about what actions are criminal and what the punishments will entail, before acting. Muniz , 164 A.3d 1189, 1195.
In Muniz , a Pennsylvania trial judge convicted the defendant of two counts of indecent assault, which would have required him to register under Megan's Law III for ten years. See 42 Pa.C.S.A. § 9795.1 (expired). Muniz fled the Commonwealth prior to his sentencing, and, while he was outside Pennsylvania, the legislature replaced Megan's Law III with SORNA. Following Muniz's apprehension and extradition, the Pennsylvania trial judge imposed lifetime registration under SORNA. On appeal, this Court affirmed.
The Supreme Court of Pennsylvania reversed. It determined SORNA's registration requirements were punitive in nature for purposes of an ex post facto challenge. The High Court found "1) SORNA's registration provisions constitute punishment notwithstanding the General Assembly's identification of the provisions as nonpunitive; 2) retroactive application of SORNA's registration provisions violates the federal Ex Post Facto Clause; and 3) retroactive application of SORNA's registration provisions also violates the Ex Post Facto Clause of the Pennsylvania Constitution." Muniz at 1193. The Court vacated the portion of Muniz's sentence ordering him to comply with SORNA's registration requirement. See Muniz at 1223.
After the Muniz Court issued its decision, the Commonwealth sought to appeal that case to the Supreme Court of the United States. That Court denied certiorari. See Pennsylvania v. Muniz , ––– U.S. ––––, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018).
In the matter at bar, the trial court refused to follow Muniz for several reasons. First, it believed that Muniz applied only when someone commits a crime under Megan's Law III, absconds before sentencing, and then returns to Pennsylvania after SORNA's effective date. See Trial Court Opinion, 10/17/17, at 9.
Second, the court emphasized that Muniz had committed a sex offense in Pennsylvania, while Mr. Santana committed one in New York and was already required to register for life. As the trial court stated, "SORNA was already in effect when [Mr. Santana] relocated from New York to Pennsylvania, therefore providing him with constructive notice that he would be subject to SORNA upon his relocation to Pennsylvania." Id. Muniz, the trial court opined, never received such notice. See id. Thus, the trial court felt "constrained to narrowly construe Muniz and apply the Supreme Court's holding to only those cases where a person is subject to SORNA's registration requirements after having been convicted of a sex offense in Pennsylvania that occurred prior to its enactment." Id. at 10.
Finally, it believed applying the Ex Post Facto Clauses as Mr. Santana asked would encourage sex offenders to relocate to this Commonwealth, "creating a ‘safe haven’ in Pennsylvania for sex offenders across the country." Id. at 11. The court did not "believe that this was the intent of the Supreme Court when it decided Muniz ." Id.
None of these explanations distinguishes Muniz from the case before us. The Supreme Court of Pennsylvania recently explained its Muniz decision and viewed that precedent differently than the trial court did here. The High Court said, "In Muniz , we considered whether the registration requirements of SORNA constituted criminal punishment such that their retroactive application violated the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions." Butler , 226 A.3d at 980. "Moreover ... we considered the [ Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), ] factors and found SORNA imposed an affirmative disability or restraint upon offenders due to the onerous in-person reporting requirements for both verification and changes to an offender's registration." Id. The Muniz Court determined "that SORNA's requirements were analogous to historical forms of punishment, specifically holding the statute's ‘publication provisions — when viewed in the context of our current Internet-based world — to be comparable to shaming punishments’ and the mandatory conditions placed on registrants to be akin to probation." Id. (quoting Muniz at 1213 ).
In Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), the Supreme Court of the United States announced a seven-factor test to determine whether a statute is so punitive as to negate a legislature's expressed intent that the statutory scheme be civil or regulatory. Those factors are "[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned." Mendoza-Martinez , 372 U.S. at 168-69, 83 S.Ct. 554 (footnotes omitted).
Far from suggesting that Muniz applies only to defendants who commit their crimes under Megan's Law III and flee the Commonwealth, the Butler Court clarified that the result in Muniz stemmed from the text of SORNA and the punishment that it inflicts upon registrants who are not "sexually violent predators." The Butler Court's reading of Muniz coincides with the broader application that Mr. Santana asserts.
The Commonwealth does not argue that Mr. Santana is a "sexually violent predator" under SORNA; therefore, we do not address the issue here.
Indeed, this broader application reflects the reality that ex post facto challenges always prompt an "as applied" analysis. A law can only be ex post facto "as applied" to a given defendant's prior action. Otherwise, there would be no basis for an ex post facto claim. Unlike due-process or equal-protection challenges, where a litigant may attack a statute as either facially unconstitutional or unconstitutional as applied, if a litigant raises an ex post facto claim, he necessarily challenges the law "as applied" to himself. Thus, the trial court placed irrelevant emphasis on the first sentence of Muniz – i.e. , that the Supreme Court "granted discretionary review to determine whether Pennsylvania's SORNA as applied retroactively to appellant Jose M. Muniz is constitutional under the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions." Trial Court Opinion, 10/17/17, at 9 (quoting Muniz at 1192 ) (punctuation omitted) (emphasis by trial court). Muniz challenged SORNA as it applied to him, because that was the only form that his ex post facto claim could take.
We also find the Commonwealth's and trial court's reliance on the facts that Mr. Santana committed his 1983 sexual offense in New York and that he had to register there for life to be misplaced. To explain this error, we must return to the first case to apply the federal Ex Post Facto Clause, Calder v. Bull , 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798).
In Calder , Chief Justice Chase identified four categories of laws that violate the Ex Post Facto Clause. They are:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
Calder , 3 U.S. at 390 (emphasis added).
Relying on Calder and its progeny, the Muniz Court observed:
"two critical elements" must be met for a criminal or penal law to be deemed ex post facto : "it must be retrospective, that is, it must apply to events occurring
before its enactment, and it must disadvantage the offender affected by it." Weaver [v. Graham ] , 450 U.S. [24]at 29, 101 S.Ct. 960[, 67 L.Ed.2d 17 (1981) ] (footnote omitted). As such, "only those laws which disadvantage a defendant and fall within a Calder category are ex post facto laws and constitutionally infirm." Commonwealth v. Young , 536 Pa. 57, 637 A.2d 1313, 1318 (1993) (emphasis in original).
Muniz, 164 A.3d at 1195-96 (emphasis in original).
As in Muniz , Mr. Santana committed his underlying, sexual offense prior to SORNA's 2011 enactment and effective date of December 20, 2012. While Muniz only faced a civil, collateral consequence of ten years of registration in Pennsylvania when he committed his 2007 crime, Mr. Santana faced absolutely no registration requirement in Pennsylvania when he committed his 1983 crime. Thus, when Mr. Santana acted in 1983, he had no notice that Pennsylvania would impose the punitive, registration requirements of SORNA or otherwise punish him for failing to comply.
Whether Pennsylvania has jurisdiction and/or authority to punish Santana with SORNA's punitive, registration requirements for a crime that occurred in another state presents another interesting question under the Due Process Clause of the Fourteenth Amendment. Santana did not raise that issue here.
Nevertheless, 28 years later, Pennsylvania imposed SORNA's punitive, registration requirements upon him, and the trial court upheld this after-the-fact punishment as constitutional. However, Muniz taught that SORNA's registration requirements constitute after-the-fact punishment for crimes committed before December 20, 2012. By increasing Pennsylvania's penalty for Mr. Santana's 1983 crime from nothing to something, the Commonwealth disadvantaged Mr. Santana in this Commonwealth on December 20, 2012, when SORNA took effect. Because Mr. Santana's crime occurred before that date, under Muniz , Weaver , and Calder , applying SORNA to him violates the Ex Post Facto Clauses. On the day he committed his underlying rape, Pennsylvania had no law in effect to punish him, if he had immediately moved here. Thus, the Commonwealth is forever barred from punishing him for that offense, notwithstanding his New York sentence, including the imposition of civil, regulatory consequences.
The trial court found no constitutional violation, because Mr. Santana had to register for life in New York and, in 2015 when he moved to Pennsylvania, he had notice of SORNA's registration requirements. These were red herrings. The trial court diverted its attention away from the triggering event of an ex post facto review – when the criminal act occurred. Instead, the trial court fixated upon a constitutionally irrelevant moment, i.e. , the date when Mr. Santana moved to Pennsylvania. The trial court's timeline violates Supreme Court precedent, dating all the way back to Calder , which directs us to analyze ex post facto claims from the date " when the crime was committed. " Muniz , 164 A.3d at 1195 (emphasis added).
Moreover, the trial court's application of the Ex Post Facto Clauses sets a dangerous precedent. Under its analysis, the Commonwealth may impose any punishment it desires against someone with a criminal record who moves to Pennsylvania. To illustrate, imagine if the General Assembly enacted the following statute:
Any person moving to Pennsylvania who has one or more felony convictions in a foreign jurisdiction shall serve one year of incarceration in the county correctional facility where such person now resides, followed by a year of probation.
Failure to serve the incarceration term and/or successfully compete probation is a felony of the first degree.
Based on the argument of the Commonwealth and the logic of the trial court, this statute would constitutionally apply to someone who committed an out-of-state felony prior to its enactment. After all, the individual would have had notice that the law "was already in effect when he relocated ... to Pennsylvania, therefore providing him with constructive notice that he would be subject to [the law] upon his relocation to Pennsylvania." Trial Court Opinion, 10/17/17, at 9. However, he could not have possibly known about this additional, Pennsylvania punishment when he committed his felony in another state.
The state and federal Ex Post Facto Clauses would surely disallow the retroactive incarceration and probation for out-of-state, criminal acts under that hypothetical statute. Those same clauses just as surely prohibit the retroactive imposition of SORNA's punitive, registration requirements for Mr. Santana's out-of-state crime.
Under Muniz , Pennsylvania could not apply SORNA to Mr. Santana if he had committed his 1983 crime in this Commonwealth. Likewise, it may not apply SORNA to the 1983 crime he committed outside this Commonwealth. Neither the Commonwealth nor the trial court may treat in-state and out-of-state crimes differently under the Ex Post Facto Clauses. Those clauses do not focus on where crimes occurred; they focus on when crimes occurred. Mr. Santana has as much of a constitutional right to be free from ex post facto laws that penalize him for pre-existing crimes that occurred outside this Commonwealth as he does from ex post facto laws that penalize him for pre-existing crimes that occurred inside this Commonwealth.
Finally, neither the trial court's policy predilections nor its attempt to divine the intent of the Supreme Court of Pennsylvania supersedes Mr. Santana's constitutional liberty in this regard. As mentioned above, the trial court worried that, if the Ex Post Facto Clauses barred the Commonwealth from requiring Mr. Santana to register under SORNA, then Pennsylvania would become a "safe haven" for registered sex offenders from across the nation. Trial Court Opinion, 10/17/17, at 11.
While the trial court's concern may be laudable, consequentialism has no place when interpreting constitutional texts. For it is the will of the Framers that courts strive to ascertain when construing our foundational documents, not our own, or even the will of supreme court justices. Whether applying the Ex Post Facto Clauses in Mr. Santana's case will benefit out-of-state, registered sex offenders is irrelevant to the judicial injury. "[S]uch questions as ‘Who wins?’ ... ‘Will this decision help future defendants?’ ... are appropriately asked by those who write the laws, but not by those who apply them ... In sum, once the meaning is plain, it is not the province of a court to scan its wisdom or its policy." Antonin Scalia, J., READING THE LAW: THE INTERPRETATION OF LEGAL TEXTS § 61 at 352-353 (2012). Hence, the trial court's personal worry that enforcing the Ex Post Facto Clauses might invite out-of-state offenders to move to Pennsylvania is unpersuasive. It is the prerogative of the legislature and the People to amend the statutory law and/or the constitutions to rectify any negative consequences of a ruling in favor of Mr. Santana. IV. Conclusion
The political branches have already responded to Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied sub nom. Pennsylvania v. Muniz , ––– U.S. ––––, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018), by amending Pennsylvania's sex-offender-registration statutes. To address ex post facto concerns, the new law divides the provisions into distinct subchapters — Subchapter H, for offenders whose underlying conduct occurred after December 20, 2012, SORNA's effective date, and Subchapter I, for offenders required to register under former versions of Megan's Law. 42 Pa.C.S. §§ 9799.11(c), 9799.52. Whether the Commonwealth may constitutionally subject Mr. Santana to SORNA's registration provisions under Subchapter I and subsequent criminal prosecution for noncompliance with that subsection is not before us, so we express no opinion on that question.
To recap, the trial court's ex post facto application has no support in the language of the two constitutions or precedent. Pennsylvania impermissibly penalized Mr. Santana under SORNA's registration requirement for a crime that pre-dated SORNA by 30 years. The Ex Post Facto Clauses forbids this state action. Mr. Santana's registration requirement under SORNA was an after-the-fact punishment and, therefore, unconstitutional. Accordingly, he had no duty to comply with those requirements and his conviction for ignoring them, under 18 Pa.C.S.A. § 4915.1(a)(3), was a manifest injustice and must be overturned.
Judgment of sentence vacated; conviction reversed; Mr. Santana discharged from custody.
Judges Bowes, Shogan, Lazarus and Murray join the opinion.
Judges Olson and Nichols concur in result.
Judge Stabile files a dissenting opinion in which Judge Dubow joins.
Judge Dubow notes dissent.
DISSENTING OPINION BY STABILE, J.:
I respectfully dissent. I believe the Majority paints too broadly in reaching the result that there was an ex post facto violation underlying Appellant's criminal sentence for failing to comply with the registration requirements of 42 Pa.C.S.A. § 4915.1(a)(3), as required under the Sexual Offender Registration and Notification Act ("SORNA") in effect at the time of his sentencing on July 18, 2017. While I agree fully with the Majority's recitation of our law regarding ex post facto considerations, I believe the Majority errs by not focusing on the more narrow and relevant question in this case. Our task here is not to decide whether the entirety of SORNA's registration provisions in their entirety may be retroactively applicable to Appellant without an ex post facto violation. Rather, the ex post facto analysis we must engage in requires only that we determine whether Appellant's registration failures supporting his conviction disadvantage him more than the registration obligations he already is subject to under New York law. I conclude the relevant provisions of SORNA do not, and therefore would affirm the trial court's denial of Appellant's motion to withdraw his guilty plea.
42 Pa.C.S.A. §§ 9799.10 et seq.
Appellant in his statement of question presented references both the state and federal Ex Post Facto Clauses. He, however, makes no substantive distinction between these clauses in the arguments presented. Therefore, references herein to "Ex Post Facto Clause(s)" should be deemed a reference to both clauses, unless the context indicates otherwise.
In 1983, New York State convicted Appellant of Rape in the First Degree, a felony under New York law. Appellant became subject to New York's Sex Offender Registration Act ("SORA") enacted on January 21, 1996, because he was convicted of a registrable offense and was on parole or probation supervision as of the date of that Act's enactment. Trial Court Opinion, 10/17/17, at 1 n.2. There is no dispute that Appellant was subject to registration under SORA. As the Majority notes, New York considers SORA a civil, regulatory consequence of Appellant's conviction that does not violate the Ex Post Facto Clause (U.S. Const. art. I, § 10) and, therefore, does not prohibit New York from applying the law retroactively. Majority Opinion at 663–64 n.5. SORA classifies Appellant as a Level three sex offender and, as such, imposes lifetime registration upon him in that state. Trial Court Opinion, 10/17/17, at 1 n.2. As under SORNA, the failure of a sex offender to register or verify required information under SORA constitutes a felony. N.Y. Correct. Law § 168-t.
N.Y. Correct. Law §§ 168 and 168-a -w.
Appellant moved to Pennsylvania in November 2015 and, as required under SORNA, registered with the Pennsylvania State Police ("PSP"). His New York conviction for rape qualifies as a Tier III sexual offense under SORNA thus requiring lifetime registration as a sexual offender in Pennsylvania. 42 Pa.C.S.A. §§ 9744.14(d), 9799.15(a)(3).
In September 2016, the PSP was conducting routine verification checks on sex offenders and noticed a discrepancy regarding Appellant's Internet identifiers. Trial Court Opinion, 10/17/17, at 2. Investigation revealed that Appellant reported to the PSP on six occasions subsequent to November 2015, but never reported any Internet identifiers. Pursuant to search warrant, the PSP subsequently found Facebook account information associated with Appellant that revealed several indicators, including a registered email address and phone number, as well as a second phone number not registered with the PSP. On November 7, 2016, Appellant was interviewed by the PSP and it was determined he failed to report in a timely manner termination of a phone number, the addition of another number, commencement of employment, and the use of two Internet identifiers. Id . at 3. Appellant was charged with various registration crimes and eventually pled guilty to failure to comply with registration requirements under Section 4915.1(a)(3).
Immediately following our Supreme Court's decision in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), Appellant moved to withdraw his guilty plea for violating Section 4915.1(a)(3) on the basis that his SORNA registration requirement was an unconstitutional ex post facto punishment for his 1983 crime. As such, Appellant claimed he could not have failed to register, verify, and provide accurate information as required under SORNA. The Majority considers Appellant's argument to be "because Muniz exempted [Appellant] from SORNA, he unknowingly and erroneously pleaded guilty to the crime of failing to register - a crime he could not have committed, as a matter of law." Majority Opinion at 663. The Majority opens its analysis stating that Appellant raises one issue in this appeal: "whether the trial court abused its discretion and erred as a matter of law when it determined [Appellant's] registration and conviction under SORNA did not violate the state and federal Ex Post Facto Clauses." Id. Based on Muniz , the Majority ultimately concludes,
Pennsylvania impermissibly penalized Mr. Santana under SORNA's registration requirement for a crime that predated SORNA by 30 years. The Ex Post Facto Clauses forbids [sic] this state
action. Mr. Santana's registration requirement under SORNA was an after-the-fact punishment and, therefore, unconstitutional. Accordingly, he had no duty to comply with those requirements and his conviction for ignoring them, under 18 Pa.C.S.A. § 4915.1(a)(3), was a manifest injustice and must be overturned.
Id . at 669–70. Both Appellant and the Majority approach the issue in this case as if the entirety of SORNA's registration scheme for non-SVP offenders, as in Muniz , was the controlling and relevant issue in this case. In my opinion, this is error.
Appellant was charged with various registration crimes for failing to timely report and update his phone numbers, Internet identifiers, and place of employment as required under SORNA. He pled guilty to a single count of failure to comply with registration requirements under Section 4915.1(a)(3). Appellant's conviction was not dependent upon the entirety of SORNA's registration scheme being applied to him. Rather, his conviction was based upon his failure to comply with several discrete SORNA registration provisions: namely, the failure to register and update the aforesaid information.
In Muniz , our Supreme Court granted review to determine whether SORNA's non-SVP registration provisions, as applied retroactively to Muniz, were unconstitutional under the Ex Post Facto Clauses of the United States and Pennsylvania constitutions. Muniz was not a case that addressed whether Appellant was properly convicted under 4915.1(a)(3) for failure to comply with some of SORNA's registration provisions. The Court's holding was limited to finding that SORNA's registration provisions, as a whole to be punitive, could not be applied retroactively to Muniz without violating the Ex Post Facto Clauses because his conviction predated SORNA's enactment. SORNA however has never been held to be unconstitutional.
In my opinion, the relevant inquiry is not whether SORNA's registration provisions as a whole were improperly applied retroactively to Appellant. Rather, the issue is whether the specific registration failures committed by Appellant could serve as a basis for sustaining his conviction for violating Section 4915.1(a)(3). Our inquiry should be whether SORNA's requirement to update and verify an offender's phone numbers, Internet identifiers, and place of employment, could be applied retroactively to Appellant as a result of his 1983 rape conviction in New York without violating the Ex Post Facto Clauses. The answer to this question, as will be discussed infra , depends upon whether SORNA changes or inflicts a greater punishment than SORA to the disadvantage of Appellant.
Critical to relief under the Ex Post Facto Clause is not a right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond that prescribed when a crime was consummated. Muniz , 164 A.3d at 1195 (citations omitted). Based on these concerns, four categories of laws that violate the Ex Post Facto Clause have been identified: first, every law that makes an action done before the passing of the law, which innocent when done, criminal, and punishes such action; second, every law that aggravates a crime or makes it greater than it was when committed; third, every law that changes punishment and annexes a greater punishment than the law at the time the crime was committed; and fourth, every law that alters the legal rules of evidence and receives less, or different, testimony than the law required at the time of the commission of an offense in order to convict. Id. Only the third category is applicable in this case. Two critical elements must be met for a criminal law to be deemed ex post facto : it must be retrospective, i.e. , it must apply to events occurring before its enactment, and it must disadvantage the offender affected by the law. Only those laws that disadvantage a defendant and fall within one of these categories are ex post facto laws and constitutionally infirm. Id . at 1195-96.
Both Appellant and the Majority rely heavily upon the holding in Muniz . In my opinion, they both overlook a critical fact that distinguishes Muniz from the instant appeal. In Muniz , the appellant was not lawfully subject to any prior registration requirements imposed under Pennsylvania law or elsewhere. In this case, there is no dispute Appellant was lawfully subject to offender registration under SORA before he came to Pennsylvania. For ex post facto purposes, there were no applicable pre-existing registration requirements in Muniz against which to compare SORNA's registration scheme to determine if Muniz was further disadvantaged by SORNA. Here, there is a prior and lawful registration scheme, SORA, against which SORNA's registration requirements may be measured to determine whether Appellant has been further disadvantaged in Pennsylvania in violation of the Ex Post Facto Clauses. In effect, SORA functions as a benchmark against which to measure the retroactive application of SORNA for ex post facto purposes.
With these considerations in mind and keeping within the more narrow focus that defines the ex post facto issue in this case, the criminal statute under which Appellant was convicted can be examined. The central inquiry is whether the relevant registration provisions retroactively applied to Appellant impose a greater disadvantage upon him than those to which he is subject under New York's SORA law.
The criminal statute under which Appellant pled guilty, Section 4915.1(a)(3), provides:
Failure to comply with registration requirements.
(a) Offense defined.-- An individual who is subject to registration under 42 Pa.C.S. § 9799.13 (relating to applicability) commits an offense if he knowingly fails to:
(1) register with the Pennsylvania State Police as required under 42 Pa.C.S. § 9799.15 (relating to period of registration), 9799.19 (relating to initial registration) or 9799.25 (relating to verification by sexual offenders and Pennsylvania State Police);
(2) verify his address or be photographed as required under 42 Pa.C.S. § 9799.15, 9799.19 or 9799.25 ; or
(3) provide accurate information when registering under 42 Pa.C.S. § 9799.15 , 9799.19 or 9799.25 .
18 Pa.C.S.A. § 4915.1(a) (emphasis added).
SORNA is made applicable to Appellant under section 9799.13(7).
§ 9799.13. Applicability.
The following individuals shall register with the Pennsylvania State Police as provided in sections 9799.15 (relating to period of registration), 9799.19 (relating to initial registration) and 9799.25 (relating to verification by sexual offenders and Pennsylvania State Police) and otherwise comply with the provisions of this subchapter:
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(7) A sexual offender required to register in a sexual offender registry in another jurisdiction or in a foreign country based upon a conviction for a sexually violent offense or under a sexual offender
statute in the jurisdiction where the individual is convicted and:
(i) has a residence in this Commonwealth or is a transient;
(ii) is employed within this Commonwealth; or
(iii) is a student within this Commonwealth.
42 Pa.C.S.A. § 4799.13.
In pertinent parts, sections 4799.15, 4799.19, and 4799.25, referenced in Section 4715.1(a)(3), provide:
§ 9799.15. Period of registration.
(a) Period of registration.-- Subject to subsection (c), an individual specified in section 9799.13 (relating to applicability) shall register with the Pennsylvania State Police as follows:
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(3) An individual convicted of a Tier III sexual offense shall register for the life of the individual.
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(e) Periodic in-person appearance required.-- Except as provided in subsection (f) and subject to subsections (g) and (h), an individual specified in section 9799.13 shall appear in person at an approved registration site to provide or verify the information set forth in section 9799.16(b) (relating to registry) and to be photographed as follows:
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(3) An individual convicted of a Tier III sexual offense shall appear quarterly.
A Tier III sexual offense includes a similar offense under the laws of another jurisdiction or country or under a former law of this Commonwealth. 42 Pa.C.S.A. § 9799.14(d)(13). Appellant's conviction of rape qualifies as a Tier III offense in Pennsylvania.
§ 9799.19. Initial registration.
(a) General rule.-- An individual set forth in section 9799.13 (relating to applicability) shall initially register with the Pennsylvania State Police as set forth in this section.
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(i) Initial registration if convicted or adjudicated delinquent outside Commonwealth.--
(1) An individual subject to registration under section 9799.13(7), (7.1) or (7.2) shall appear in person at an approved registration site to provide the information set forth in section 9799.16(b) to the Pennsylvania State Police within three business days of establishing residence, commencing employment or commencing enrollment as a student within this Commonwealth. In addition, the individual shall comply with the other provisions of this subchapter, including section 9799.15 (relating to period of registration).
§ 9799.25. Verification by sexual offenders and Pennsylvania State Police.
(a) Periodic verification.-- Except for initial registration as provided in section 9799.19 (relating to initial registration) and in accordance with section 9799.15(a) (relating to period of registration), sexual offenders shall verify the information provided in section 9799.16(b) (relating to registry) and be photographed as follows:
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(3) An individual convicted of a Tier III sexual offense shall appear in person at an approved registration site quarterly.
Section 9755.16(b), relating to the registration information to be provided by a sexual offender, referenced in all three of the above provisions, provides in pertinent part:
§ 9799.16. Registry.
(b) Information provided by sexual offender.-- An individual specified in section 9799.13 (relating to applicability) shall provide the following information which shall be included in the registry:
(1) Primary or given name, including an alias used by the individual, nickname, pseudonym, ethnic or tribal name, regardless of the context used and any designations or monikers used for self-identification in Internet communications or postings .
(2) Designation used by the individual for purposes of routing or self-identification in Internet communications or postings .
(3) Telephone number , including cell phone number, and any other designation used by the individual for purposes of routing or self-identification in telephonic communications.
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(9) Name and address where the individual is employed or will be employed . In order to fulfill the requirements of this paragraph, if the individual is not employed in a fixed workplace, the individual shall provide information regarding general travel routes and general areas where the individual works.
42 Pa.C.S.A. § 9799.16(b) (emphasis added).
Assuming for the moment Appellant is subject to SORNA's registration requirements, Appellant qualifies as a Tier III sex offender. As such, he had an initial and a continuing obligation upon his move to Pennsylvania to register with the PSP and to report to the PSP with the frequency required to register and verify his registration information. Specifically as it concerns this case, Appellant had this obligation with regard to his phone numbers, Internet identifiers, and places of employment. His failure to do so was sufficient to support conviction under Section 4715.1(a)(3).
Having established that Appellant's registration failures were sufficient to convict under Section 4715.1(a)(3), the inquiry as to whether SORNA's registration obligations were punitive and, therefore, violative of the Ex Post Facto Clause can be examined. A proper inquiry must compare New York's SORA registration requirements with those under SORNA to determine whether subjecting Appellant to SORNA's relevant registration requirements places him at a greater disadvantage than the registration requirements imposed upon him under New York's SORA law. As stated, this does not require a wholesale analysis of SORNA's registration requirements, since we need only be concerned with whether or not the registration requirements—the failures of which led to Appellant's conviction under Section 4915.1(a)(3) —were more onerous than those imposed under New York's SORA law. It is unnecessary, in my opinion, to engage in a broader consideration of SORNA as argued by Appellant and performed by the Majority. Any inquiries pertaining to registration requirements that did not form the basis for Appellant's conviction are irrelevant to the ex post facto consideration before this Court.
As a Level three offender under SORA and a Tier III offender under SORNA, Appellant, as a convicted rapist, has lifetime registration requirements. Cf. N.Y. Correct. Law § 168-h(2), 42 Pa.C.S.A. § 9799.15(a)(3). Therefore, the duration of the registration requirement under SORNA does not further disadvantage Appellant from the registration duration under New York's SORA. Under SORA, a Level three offender must personally verify his or her address with the local law enforcement agency every 90 calendar days after release or after, as the case here, commencement of parole or post-release supervision. N.Y. Correct. Law §§ 168-f(3) and 168-h(3). Under SORNA, a Tier III sexual offender must appear quarterly (every 90 days) in person at an approved registration site to verify information provided under section 9799.16(b), including current address information. 42 Pa.C.S.A. §§ 9799.25(a)(3) and 9799.16(b)(3). Once again, Appellant is not further disadvantaged under SORNA than he is under SORA. Both laws require Appellant to appear personally at the appropriate office on a quarterly basis.
Under SORNA an individual convicted of a Tier III offense must also appear quarterly not only to verify his or her address, but also to verify the information set forth in Section 9799.16(b), which includes the remaining registration information Appellant failed to provide to the PSP relating to phone numbers, Internet identifiers, and employment. 42 Pa.C.S.A. §§ 9799.25(a)(3), 9799.16(b)(2)(3) and (9). Admittedly, New York's SORA law does not require quarterly appearances to verify this additional information. Instead, verification of this additional information is to be done by mailing a provided verification form to the New York State Division of Criminal Services ("Division") on each anniversary date of the sex offender's initial registration for the entire period in which he or she is required to register. N.Y. Correct. Law § 168-f(2). Nonetheless, SORNA's requirement to appear personally every quarter to verify this additional information does not further disadvantage Appellant, because Appellant already must appear quarterly under SORA to verify his address information.
Finally, under SORNA, a sex offender must appear in person at an approved registration site within three business days to provide current information relating to any change in, inter alia, residence, employment, telephone numbers, and Internet identifiers. 42 Pa.C.S.A. § 9799.15(g). By contrast, under New York's SORA law, a sex offender must register with the Division no later than ten calendar days after any change of address, Internet accounts, Internet identifiers, or employment. N.Y. Correct. Law § 168-f(4). The difference between the time in which updated information is to be provided as between SORNA and SORA can be as little as five days (since SORNA speaks in terms of three business days) or as many as seven days. I conclude this difference does not further unconstitutionally disadvantage Appellant for ex post facto purposes for several reasons. First, both statutes require prompt update of changes in this information. While SORNA requires this information within three business days, SORA requires the information no later than ten days, which certainly includes time less than ten days, or as little as three days. Second, I do not find the difference between five and seven days significant. Third, information changes relating to phone numbers, employment, and Internet identifiers do not normally recur with any predictable frequency. It therefore is possible that any update of this information will never be triggered for the entire duration of an offender's registration period. On the other hand, it is also possible that these updates may occur more frequently than expected. The record is silent in this case as to how this condition relates to Appellant and he offers no argument otherwise.
To summarize, Appellant pled guilty and was convicted of violating Section 4715.1(a)(3) for failure to provide accurate information to the PSP with regard to his phone numbers, Internet identifiers, and employment. Any one of these failures was sufficient to sustain his conviction for failure to comply with registration requirements under this criminal statute. Although SORNA's registration requirements were applied retroactively to sustain Appellant's conviction, there was no ex post facto violation because the burden upon Appellant under SORNA did not further disadvantage him from the registration requirements to which he was already subject under New York's SORA law. Consequently, offenders like Appellant cannot relocate to Pennsylvania and escape the registration requirements imposed under New York's law. The trial court's order denying Appellant's motion to withdraw his guilty plea therefore should be affirmed.