Com. v. Reed, T.

J-A29037-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS M. REED, :
:
Appellant : No. 402 WDA 2014

Appeal from the Order Entered February 12, 2014
in the Court of Common Pleas of Clearfield County,
Criminal Division, at No(s): CP-17-CR-0000894-2000

BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 24, 2014

Thomas M. Reed (Appellant) appeals from the order entered February

12, 2014,1 which denied his motion challenging the constitutionality of the

Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.

§§ 9799.10‒9799.41 (also known as Megan’s Law IV). We affirm.

The trial court summarized the history of the case as follows.

[Appellant] entered into a plea agreement on January 4,
2002. Per the plea agreement, [Appellant] confessed his guilt to
one count of indecent assault, a misdemeanor of the first
degree. This charge resulted from an alleged assault involving a
minor under the age of thirteen. In addition, [Appellant] entered
a guilty plea to four counts of indecent assault, misdemeanors of
the second degree. Two counts stemmed from an incident with
a minor who was seventeen years old and two counts were for
the assault of a minor who was sixteen years of age.

1
The trial court’s opinion and order is dated February 11, 2012, but was not
entered on the docket with notice sent to the parties until February 12,
2012. We have amended the caption accordingly. See Pa.R.A.P. 108(a).

*Retired Senior Judge assigned to the Superior Court.
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On February 26, 2002, [Appellant] was sentenced by the
[trial c]ourt, in conformity with the above-mentioned plea
agreement, to six months to three years [of imprisonment] on
the count of indecent assault, a misdemeanor of the first degree.
[Appellant] was also sentenced to two years of probation on the
second degree misdemeanor charges. [Appellant] completed his
prison term in early 2004 and subsequently completed his
probation and parole responsibilities.

Because of the guilty plea, [Appellant] was placed under
Megan’s Law registration for ten years. The Megan’s Law
registration began around January 2004, shortly after
[Appellant] was paroled from his prison sentence. Accordingly,
[Appellant’s] Megan’s Law reporting obligations would have
ended in January 2014. However, with the subsequent passing
of [SORNA], [Appellant] is now obligated to be a lifetime
registrant. Under the new statutory changes, [Appellant] went
from a Tier 1 registrant to a Tier 3 lifetime registrant. This new
lifetime registration requirement is because [Appellant] pled
guilty to [having indecent contact with a child of less than 13].

[Appellant] has complied, thus far, with the new
registration requirements, but is now seeking to challenge the
increase in his Megan’s Law registration time period and the
constitutionality of [SORNA]. Said challenge was filed on
[2]
November 18, 2013. … [Therein, Appellant raised] the typical
volley of constitutional challenges levied upon Megan’s Law
whenever it is amended to require sterner reporting
requirements. The [trial c]ourt entertained oral arguments on
[Appellant’s m]otion to find said statutes unconstitutional on
January 20, 2014.

Trial Court Opinion, 7/12/2014, at 1-2 (citations, footnote, and repetition of

quantities in numeral form omitted). On February 12, 2014, the trial court

2
We have held that a challenge to the retroactive application of the
reporting requirements of SORNA is not cognizable under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and therefore is not subject to
the jurisdictional time constraints of the PCRA. See, e.g., Commonwealth
v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014).

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filed its opinion and order denying Appellant’s motion. Appellant timely filed

a notice of appeal.

Appellant presents this Court with numerous questions which may be

grouped into the following four categories: (1) whether retroactive

application of SORNA to increase Appellant’s registration period violates the

ex post facto clause of the Pennsylvania constitution; (2) whether increase,

without a hearing, of Appellant’s registration period pursuant to SORNA

violates the due process clauses of the United States and Pennsylvania

constitutions; (3) whether SORNA violates the separation of powers

provisions of the Pennsylvania constitution; and (4) whether the increase in

Appellant’s registration violates the terms of his guilty plea. Appellant’s Brief

at 4-5.

The first three groups of Appellant’s questions challenge the

constitutionality of SORNA. “[T]he constitutionality of a statute presents a

pure question of law. Therefore, our standard of review is de novo and

scope of review plenary.” Commonwealth v. Wade, 33 A.3d 108, 115-16

(Pa. Super. 2011). Further, a statute “is presumed to be constitutional and

will only be invalidated as unconstitutional if it clearly, palpably, and plainly

violates constitutional rights.” Commonwealth v. Brown, 26 A.3d 485,

493 (Pa. Super. 2011) (quoting Commonwealth v. Morgan, 913 A.2d 906,

911 (Pa. Super. 2006)).

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Appellant first challenges SORNA’s constitutionality under the ex post

facto clause of the Pennsylvania Constitution, which provides: “[n]o ex post

facto law… shall be passed.” Pa. Const. Art. I, § 17. Subsequent to

Appellant’s filing of his brief, this Court held “the new registration regime

pursuant to SORNA is constitutional under the Federal and State Ex Post

Facto Clauses.” Commonwealth v. Perez, 97 A.3d 747, 760 (Pa. Super.

2014). Accordingly, Appellant’s first challenge entitles him to no relief for

the reasons stated in Perez. See id. at 759-60 (holding that the balancing

of the seven factors provided in Kennedy v. Mendoza–Martinez, 372 U.S.

144 (1963), does not show that the provisions of SORNA are sufficiently

punitive to overcome the General Assembly’s categorization of them as non-

punitive).

Appellant next claims that his new registration requirements were

imposed without due process. Specifically, Appellant “contends that he was

given no hearing or opportunity to present evidence as to why he should

[not] be given enhanced lifetime registration. His individual situation was

not reviewed. There is nowhere in the [s]tatute an opportunity to petition

for relief from this onerous lifetime registration.” Appellant’s Brief at 39-40.

“It is beyond cavil that in order to successfully assert a due process

claim, one must have been deprived of something, be it a physical item or

personal right.” Commonwealth v. Mountain, 711 A.2d 473, 476 (Pa.

Super. 1998). As our Supreme Court noted in considering a due process

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challenge to a prior version of the statute, “the question of whether the

additional sanctions imposed under Megan's Law II are punitive in nature is

the threshold due process inquiry.” Commonwealth v. Williams, 832 A.2d

962, 970 n.13 (Pa. 2003). Because this Court determined in Perez that

SORNA’s registration and reporting requirements are not punitive,

Appellant’s due process challenge does not get past the threshold.

In his third issue, Appellant claims that, with the new registration and

reporting requirements of SORNA, the legislature has impermissibly intruded

upon “a uniquely judicial function” in violation of Article V of the

Pennsylvania constitution, which gives the Pennsylvania Supreme Court “the

sole role of regulating and supervising the judiciary.” Appellant’s Brief at 46.

Appellant is correct that “[t]he General Assembly cannot

constitutionally impose upon the judicial branch powers and obligations

exclusively reserved to the legislative or executive branch; nor can it in

essence deputize judicial employees to perform duties more properly

reserved to another of the co-equal branches of government.”

Commonwealth v. Mockaitis, 834 A.2d 488, 500 (Pa. 2003). However,

this Court held that Megan’s Law II did not violate separation of powers

because the mandated registration and reporting “constitutes substantive

law and it does not set forth rules governing court practice or procedure.”

Commonwealth v. Rhoads, 836 A.2d 159, 163 (Pa. Super. 2003).

Appellant points to nothing that convinces us that the requirements of

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SORNA are so different as to mandate the opposite conclusion. His

separation of power argument is unavailing.

Finally, Appellant claims that the ten-year registration requirement

was part of his plea bargain, and thus cannot be “unilaterally and arbitrarily

changed.” Appellant’s Brief at 51. In support, Appellant relies on this

Court’s decision in Commonwealth v. Hainesworth, 82 A.2d 444 (Pa.

Super. 2013) (en banc).

In Hainesworth, the plea agreement at issue was “precisely

structured so that Hainesworth would not be subjected to a registration

requirement.” Id. at 448. When SORNA changed the law to make the

offense to which Hainesworth pled guilty one subject to registration,

Hainesworth was deprived of a benefit of his bargain. Thus, under principles

of contract law, the trial court properly determined that Hainesworth was not

required to register as a sex offender because the Commonwealth and

Hainesworth “entered into a plea bargain that contained a negotiated term

that Hainesworth did not have to register as a sex offender.” Id. at 450.

See also Commonwealth v. Nase, No. 2946 EDA 2013, 2014 WL 4415061

at *7 (holding that Nase’s registration could not be extended to 25 years

because a ten-year registration requirement was part of his plea bargain).

The instant case is clearly distinguishable from Hainesworth.

Appellant did not bargain to avoid registration or to be subject to registration

for a specific length of time. The written plea agreement makes no

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reference to Megan’s Law registration. See Plea Agreement, 1/4/2002

(“[Appellant] to receive a minimum period of 6 months [of] incarceration.

Fines, cost, restitution, all other terms to the court.”). In the written plea

colloquy,3 Appellant acknowledged that he may be required to register for

ten years, or for the remainder of his life, depending upon the trial court’s

determination following the recommendation of the Sexual Offender

Assessment Board. Addendum to Guilty Plea Colloquy, 1/4/2002, at 2

(pages unnumbered). Thus, Appellant entered his guilty plea not knowing

for how long he would have to register, and with the understanding that it

could be for the rest of his life. Accordingly, the term of registration was

not negotiated and could not have informed Appellant’s decision to plead

guilty, and increasing Appellant’s registration requirement does not deprive

him of the benefit of his bargain. Hainesworth entitles Appellant to no

relief.

Order affirmed.

3
The transcript of the oral plea colloquy is not contained in the certified
record.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2014

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