Com. v. Gilbert, T.

J-A26044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

TAURUS KENYATA GILBERT,

Appellant No. 287 MDA 2014

Appeal from the Order Entered January 15, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002038-2003

BEFORE: BOWES, MUNDY, and JENKINS, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED FEBRUARY 10, 2015

I concur with the learned majority’s assessment in regards to

Appellant’s plea bargain claim. However, as I disagree with the majority’s

analysis in several other key respects, I respectfully dissent from those

aspects of its decision. Since the majority addresses Appellant’s second

claim first and his first issue second, as a matter of consistency and for ease

of reference, I will do the same. Accordingly, I consider Appellant’s position

with respect to his plea bargain and whether Commonwealth v.

Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc) and

Commonwealth v. Nase, 2014 PA Super 194 control, first.

I agree with the majority insofar as it recognizes the distinction

between this matter and Hainesworth. Therein, it was apparent that the
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defendant’s plea was specifically designed to avoid sex offender registration.

The record in this case does not reveal the same considerations. Thus, the

majority accurately holds that Hainesworth does not compel reversal. In

addition, I am in accord with the majority’s view that Nase is not controlling

on the plea agreement question. In Nase, as part of the defendant’s plea,

the Commonwealth withdrew more serious charges and, in exchange, the

defendant agreed to plead to other offenses that required a ten-year period

of registration. The record demonstrated that the registration period was an

essential part of the plea negotiations. The current record is silent as to

what impact registration had on Appellant’s plea agreement.

However, as it relates to Appellant’s Pennsylvania constitutional due

process claim, I disagree with the majority’s finding that “our case law is

clear—application of SORNA registration requirements are not violative of a

defendant’s due process rights.” Majority Memorandum, at 8. In support of

this claim, the majority cites to Commonwealth v. Williams, 832 A.2d 962

(Pa. 2003), Commonwealth v. McDonough, 96 A.3d 1067 (Pa.Super.

2014), and Commonwealth v. Benner, 853 A.2d 1068 (Pa.Super. 2004).

Williams and McDonough did not consider a substantive or

procedural due process argument; in fact, in Williams, the Pennsylvania

Supreme Court remanded to allow the trial court to consider the defendant’s

additional constitutional arguments, including a due process claim, after

addressing his ex post facto argument. Williams, supra at 986 n.27.

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While Benner used the phrase “due process” one time, it did not undertake

an analysis under the Pennsylvania Constitution. Essential to the Benner

Court’s holding was the fact that the defendant therein was still under

supervision for his crime. Benner, supra at 1072. In this case, Appellant’s

probation was terminated early and he was no longer on probation. Hence,

he had completed his judgment of sentence. Admittedly, SORNA requires

additional registration for certain offenders so long as they were still subject

to their original registration period. This fact, however, is an important

distinction not recognized by the majority.

Before performing a Pennsylvania constitutional analysis relative to

due process, I will consider in more detail the cases relied on by the majority

in support of its dismissal of Appellant’s due process claim. The majority

erroneously asserts that the Williams Court concluded that, “Megan’s Law

II registration, counselling, and notification requirements did not violate due

process.” Majority Memorandum, 7 (citing Williams, supra at 986). The

issue before the Pennsylvania Supreme Court was not a federal constitution

or Pennsylvania constitution due process claim. Rather, the trial court had

ruled Megan’s Law II was a violation of the federal ex post facto clause.

The Williams Court’s discussion on the page cited by the majority is

actually the portion of the opinion in which it struck down two aspects of

Megan’s Law II, but held the remainder of the statute severable. See

Williams, supra at 986 (“Having concluded that the portions of Sections

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9795.2(d)(2) and 9796(e)(2) applicable to sexually violent predators are

constitutionally infirm, it remains to determine whether they can be severed

from the Act.”). The mention of “due process” on the applicable page is in

reference to the Commonwealth’s argument that life imprisonment for

violating the registration scheme could only occur after “a criminal

proceeding in which the full panoply of due process protections was

afforded.” Id. The Williams Court rejected the Commonwealth’s argument

in this respect. Id. (“This argument overlooks the fact that the new

substantive offense proceeds directly from the Act's enforcement provisions,

and, furthermore, conviction would be a fairly trivial matter.”). Thus, the

majority’s citation simply does not support its conclusion.

No substantive or procedural due process analysis occurs anywhere

within the Williams decision. The focus of the Williams Court’s analysis

was whether Megan’s Law II constituted punishment for purposes of the ex

post facto clause of the federal constitution. Indeed, in remanding the case

“to the trial court for consideration of [the defendants’] remaining

constitutional challenges[,]” the High Court noted that, “[i]n addition to

claiming that Megan's Law is punitive, [the defendants’] assert that it is void

for vagueness and violative of substantive due process guarantees and the

separation of powers doctrine.” Id. Since the Supreme Court did not

address due process, Williams does not sustain the majority’s holding.

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Similarly, McDonough, supra, does not pertain to a constitutional

due process argument. The majority refers to McDonough, supra at 1071,

as support. That entire page is discussing whether SORNA was punitive.

Neither the phrase “due process” or its Pennsylvania equivalent, “law of the

land,” appears anywhere in the text. The defendant’s averment therein was

that “it is unconstitutional and illegal to require an individual to register as a

sex offender for 15 years for a crime that carries a maximum penalty of only

two years in prison.” Id. at 1070. Therefore, McDonough has no bearing

on the constitutional due process argument that retroactively requiring

additional registration, absent any process, violates the Pennsylvania

Constitution.

The only case that arguably could support the majority’s due process

analysis is Benner, supra. Benner did not raise a substantive or procedural

due process argument. Benner, supra at 1070 (setting forth Benner’s two

issues). Nonetheless, in rejecting Benner’s claim that he should not be

subject to registration at all, this Court stated in passing, “We have

concluded accordingly that the principles of due process that require the

court to inform the defendant of the length of his prospective sentence prior

to accepting his plea do not compel the court to inform him of the

registration requirement.” Id. at 1070-1071. We then held that, “the

failure of the trial court to inform Benner of the registration requirement

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prior to accepting his plea invalidates neither the plea nor application of the

registration requirement under Megan's [Law] I.” Id. at 1071.

Instantly, Appellant is not seeking to withdraw his plea on the basis

that he was not informed of his registration requirements. Instead, his issue

is that retroactively increasing his registration period from ten years to

lifetime reporting after he completed his sentence violates his due process

rights. Benner is, thus, inapposite. Pointedly, as mentioned previously,

essential to the Benner Court’s holding was that Benner was still serving his

sentence. Id. at 1072 (emphasis added) (“We read these cases to suggest

that the collateral effect of current legislation may be imposed on the

defendant so long as he remains in the custody of correctional

authorities to discharge any part of his sentence for the sex

offense.”).

The only Pennsylvania Supreme Court opinion to address SORNA and

procedural due process held that SORNA violated the rights of juveniles.

See In re J.B., __ A.3d __ (Pa. 2014) (filed December 29, 2014). Therein,

the High Court ruled that registration for juvenile offenders, all of whom

were previously not subject to sex offender registration, violated due

process. The juveniles in that case each had been adjudicated delinquent

before SORNA’s effective date, but were still subject to juvenile court

supervision on that date. Thus, unlike Appellant herein, the juveniles were

still under court supervision. Pursuant to SORNA, juveniles who were

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subject to the jurisdiction of the juvenile court, on the basis of certain sex

offense adjudications, were required to register as sex offenders. Juveniles

required to register for life, contrary to adults, were to be afforded a hearing

twenty-five years after the completion of court supervision. At that hearing,

the juvenile offender would be able to have registration terminated if he or

she met certain criteria. The juvenile offender would have to show by clear

and convincing evidence that he or she met the statutory criteria.

Admittedly, the Supreme Court focused extensively on the difference

between juveniles and adults. It concluded that creating an irrebuttable

presumption that the juveniles, based solely on their adjudication,

demonstrated a high risk of recidivism, was unconstitutional. Importantly

for our purposes, the Pennsylvania Supreme Court noted that the

Pennsylvania Constitution expressly protects a person’s reputation.

Having shown that our case law is not clear that a retroactive increase

of registration requirements after a defendant completes his sentence,

without any process, does not violate the Pennsylvania Constitution’s due

process protections, I now consider Appellant’s position. Appellant’s issue

melds both a substantive due process and procedural due process argument.

He begins by arguing that fundamental fairness under the federal

constitution and Article I, §§ 1, 9, and 11 are violated by SORNA’s

retroactive registration requirements. Appellant contends that lifetime

registration restricts his liberty interest without due process, noting that he

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must appear quarterly for registration for his life and his personal

information will then be listed online to the public. He adds that he cannot

change his address, vehicle, or aspects of his appearance without reporting

such changes to Pennsylvania State Police.1 Failure to comply will result in

felony charges, subjecting him to a potential ten year jail sentence.

Appellant acknowledges that he agreed to “have his liberty interests

restricted for ten years under Megan’s Law, 42 Pa.C.S.A. § 9795.1, but he

did not have notice of and did not agree to have his liberty interests

restricted for his lifetime.” The notice portion of Appellant’s arguments are

related to procedural due process. In addition, Appellant highlights that

because his probation had been terminated, he was no longer under the

jurisdiction of the court system. Appellant maintains that where he did not

reoffend and complied with his probationary sentence, fundamental fairness

requires notice and the opportunity to be heard before being subjected to

lifetime registration.

According to Appellant, his privacy interests are also violated where he

was not given notice or an opportunity to be heard with respect to increasing

his registration requirements. In this respect, he points out that his name,

____________________________________________

1
In a separate portion of his brief, Appellant provides that he may not
travel internationally without appearing in person at a registration site three
weeks before his departure and must provide the dates of travel, his
destination, and where he will be lodging. See Appellant’s brief at 20 (citing
42 Pa.C.S. § 9799.15(i)).

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birthdate, residence, place of employment, picture, vehicle information,

offense description, and tier designation under SORNA are placed on a

website maintained by the Pennsylvania State Police. In contrast, at the

time of Appellant’s sentence he “was only required to provide his name,

identifying features, address, offense history, photograph, and

documentation for mental/personality disorders[.]” Appellant’s brief at 14.

Quoting from Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971),

Appellant posits, “Where a person’s good name, reputation, honor, or

integrity is at stake because of what the government is doing to him, notice

and opportunity to be heard are essential.” Appellant’s brief at 14.

Although the Pennsylvania Constitution does not utilize the term “due

process,” the phrase “law of the land,” used in Article I, § 9, is synonymous

with that term. Craig v. Kline, 65 Pa. 399, 413 (1870); Murray v.

Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855); see also

Commonwealth v. Kratsas, 764 A.2d 20, 49 n.5 (2001); Commonwealth

v. Rose, 81 A.3d 123, 126 n.2 (Pa.Super. 2013), allowance of appeal

granted on other ground, 95 A.3d 274 (Pa. 2014); Commonwealth v.

Harrell, 65 A.3d 420, 448 n.10 (Pa.Super. 2013) (Donohue, J., dissenting)).

Accordingly, Article I, § 9 of the Pennsylvania Constitution guarantees due

process protections. That provision reads in relevant part, “nor can he be

deprived of his life, liberty or property, unless by the judgment of his peers

or the law of the land.” Pa.Const. Art. I, § 9.

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Article I, § 1, cited by Appellant, reads, “All men are born equally free

and independent, and have certain inherent and indefeasible rights, among

which are those of enjoying and defending life and liberty, of acquiring,

possessing and protecting property and reputation, and of pursuing their

own happiness.” Pa.Const. Art. I, § 1. The provision is a close analogue to

the turn of phrase in one of America’s most illustrious documents, the

Declaration of Independence. Lastly, Article I, § 11 is Pennsylvania’s open

courts requirement. That declaration sets forth,

All courts shall be open; and every man for an injury done him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale,
denial or delay. Suits may be brought against the
Commonwealth in such manner, in such courts and in such cases
as the Legislature may by law direct.

Pa.Const. Art. 1, § 11. This latter provision has been part of the

Pennsylvania Constitution since 1790.2 Article I, § 9 and Article I, § 1, have,

with minor alterations, been a part of the Pennsylvania charter since 1776.3

When considering the Pennsylvania Constitution, “‘great regard should

be paid to spirit and intention’ and it is important to examine the ‘probable

intent of the makers.’” Rose, supra at 127 (citing Farmers' & Mechanics'
____________________________________________

2
The Pennsylvania Constitution of 1776 also included an open courts
proviso, which stated in pertinent part, “All courts shall be open, and justice
shall be impartially administered without corruption or unnecessary delay[.]”
Pa.Const. Chapt. II, Art. 26 (1776).
3
Relevant to this case, Article I, § 1 inserted the reference to reputation in
the 1790 Constitution.

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Bank v. Smith, 3 Serg. & Rawle 63, 1817 WL 1771, 5 (Pa. 1817), reversed

on other grounds at 19 U.S. 131 (1821) (emphases removed), and Firing v.

Kephart, 353 A.2d 833, 835-836 (Pa. 1976)). In performing this

examination, we keep in mind that “[a] constitution is made, not particularly

for the inspection of lawyers, but for the inspection of the million, that they

may read and discern in it their rights and their duties; and it is

consequently expressed in the terms that are most familiar to them.”

Monongahela Navigation Co. v. Coons, 6 Watts & Serg. 101, 114 (Pa.

1843).

Thus, we construe words in their plain and natural meaning, unless the

words themselves denote a technical sense. Id. “Concomitantly, a

fundamental precept in interpreting our constitution is that the language

‘must be interpreted in its popular sense, as understood by the people when

they voted on its adoption. Our ultimate touchstone is the actual language of

the Constitution itself.’” Rose, supra at 127 (quoting Stilp v.

Commonwealth, 588 Pa. 539, 905 A.2d 918, 939 (Pa. 2006)). In short,

we consider “the original public meaning of the text at issue, giving due

regard to both its spirit and the intent of the framers of the clause.” Rose,

supra at 127.

Generally, our courts have maintained that federal and state due

process claims are coextensive. Commonwealth v. Sims, 919 A.2d 931,

941 n.6 (Pa. 2007). The United States Supreme Court has yet to consider

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constitutional concerns relative to the retroactive increase of registration

requirements under SORNA for a person not serving a sentence, though it

has addressed earlier sex offender registration statutes within the ex post

facto context. Smith v. Doe, 538 U.S. 84 (2003); compare also

Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003)

(hearing on current dangerousness of sex offender not required to comport

with due process).

The phrases “law of the land” and “due process of law” have a long

storied history. The Magna Carta exclaimed, “‘No Freeman shall be taken, or

imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or

be outlawed, or exiled, or any otherwise destroyed; nor will we not pass

upon him, nor condemn him, but by lawful Judgment of his Peers, or by Law

of the Land.” See In re Winship, 397 U.S. 358, 378-379, (1970) (Black,

J., dissenting). As far back as 1642, Lord Coke, in his influential Institutes,

opined that “due process of law” is synonymous with “law of the land.” Id.

at 379; Hoboken Land, supra at 276. “As early as 1683 there was an

effort in Pennsylvania to establish ‘due process of law’ as a part of the

fundamental law of the colony. William Penn favored it. The Crown opposed

it.” Commonwealth ex rel. McGlinn v. Smith, 24 A.2d 1, 5 n.2 (Pa.

1942). Indeed, according to the Pennsylvania Supreme Court, “The only

proposal for a ‘due process clause’ in a Federal Bill of Rights came from

members of the Constitutional Convention from Pennsylvania.” Id.

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Justice Curtis, writing in 1855 for the United States Supreme Court,

opined,

The constitutions which had been adopted by the several States
before the formation of the federal constitution, following the
language of the great charter more closely, generally contained
the words, ‘but by the judgment of his peers, or the law of the
land.’ The ordinance of congress of July 13, 1787, for the
government of the territory of the United States northwest of the
River Ohio, used the same words.

Hoboken Land, supra at 276. He continued by acknowledging that the

federal constitution “contains no description of those processes which it was

intended to allow or forbid. It does not even declare what principles are to

be applied to ascertain whether it be due process.” Id. However, the High

Court set forth, “It is manifest that it was not left to the legislative power to

enact any process which might be devised. The article is a restraint on the

legislative as well as on the executive and judicial powers of the

government, and cannot be so construed as to leave congress free to make

any process ‘due process of law,’ by its mere will.” Id. Even before Justice

Curtis’ opinion, the Pennsylvania Supreme Court recognized that due process

is not satisfied by the mere passage of legislation.

In Norman v. Heist, 5 Watts & Serg. 171 (Pa. 1843), the Court held

that Pennsylvania’s law of the land provision was designed “to exclude

arbitrary power from every branch of the government; and there would be

no exclusion of it, if such rescripts or decrees were allowed to take effect in

the form of a statute.” Heist, supra at 173. There, the Pennsylvania High

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Court ruled that a statute that retroactively deprived a party of property

violated due process. The “law of the land” had to be “a pre-existent rule of

conduct[.]” Id. In Brown v. Hummel, 6 Pa. 86 (1847), the Pennsylvania

Supreme Court eloquently stated,

What, then, is the law of the land, as it relates to the
protection of private rights? Does it mean bills of attainder in the
shape of an act of Assembly, whereby a man's property is swept
away from him without hearing trial, or judgment, or the
opportunity of making known his rights or producing his
evidence? It certainly does not. It was to guard against such
things which had been common in the reign of the Stuarts and
their predecessors, and with which our forefathers of the Anglo-
Saxon race were familiar, that these irrevocable and unassailable
provisions were introduced into the constitution. The law of the
land does not mean acts of Assembly in regard to private rights,
franchises, and interests, which are the subject of property and
individual dominion. But it means what is clearly indicated by the
other provisions of the bill of rights, to wit: the law of the
individual case, as established in a fair and open trial, or an
opportunity given for one in court, and by due course and
process of law. "I am a Roman citizen," were once words of
power, which brought the proudest proconsul to a pause, when
he was about to commit oppression: and the talismanic words, I
am a citizen of Pennsylvania, secures to the individual his private
rights, unless they are taken from him by a trial, where he has
an opportunity of being heard by himself, his counsel, and his
testimony, more majorum, according to the laws and customs of
our fathers, and the securities and safeguards of the
constitution.

Hummel, supra at 91.

Counsel in Menges v. Dentler, 33 Pa. 495 (1859), also argued that

“law of the land” did not merely mean legislative acts. Rather, they

maintained that laws that impaired or destroyed vested rights were in

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violation of due process. The Dentler Court considered both Article I, § 9

and Article I, § 11, and accepted that position. In doing so, it set forth,

These provisions are taken from Magna Charta; but they
have higher value here than in England, just as a constitution
adopted by the people is of higher value than a mere act of
Parliament. Parliament may disregard Magna Charta, but our
legislature must obey the constitution. These provisions are,
therefore, imperative limitations of legislative authority, and
imperative impositions of judicial duty.

Dentler, supra at 498. The Court continued, admittedly under the facts of

the issue in question, and posited,

The law which gives character to a case, and by which it is to be
decided (excluding the forms of coming to a decision), is the law
that is inherent in the case, and constitutes part of it when it
arises as a complete transaction between the parties. If this law
be changed or annulled, the case is changed, and justice denied,
and the due course of law violated.

Id. In sum, as the Pennsylvania Supreme Court found in Kline, supra, due

process “does not mean merely an act of the legislature, for that would

abrogate all restriction on legislative power[.]” Kline, supra at 413.

In determining whether a law violates due process, we first “examine

the constitution itself, to see whether this process be in conflict with any of

its provisions.” Hoboken Land, supra at 276. Where no other

constitutional proviso is violated, “we must look to those settled usages and

modes of proceeding existing in the common and statute law of England,

before the emigration of our ancestors, and which are shown not to have

been unsuited to their civil and political condition by having been acted on

by them after the settlement of this country.” Id. at 276-277.

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Appellant has argued that the Pennsylvania Constitution has been

violated by the law on several grounds. One, which is his final issue, relates

to ex post facto concerns. This Court has already held that the federal

constitution’s ex post facto prohibition was not violated by SORNA.

Commonwealth v. Perez, 97 A.3d 747 (Pa.Super. 2014). Because the

defendant therein did not adequately argue the Pennsylvania Constitution

required a separate analysis, we did not undertake a discussion on the

merits of that position. Similarly, Appellant levels no distinct Pennsylvania

constitutional argument. Accordingly, Perez controls. Nonetheless, as

mentioned, Appellant also submits that Article I, § 1 and § 11, as it relates

to his reputation, are infringed by SORNA’s retroactive registration

requirement and he briefly sets forth privacy concerns.

An individual’s reputation was considered fundamental by

Pennsylvanians as it was added to Pennsylvania’s 1790 constitution and is

included in multiple provisions. In fact, Pennsylvania’s prohibition against

self-incrimination was originally construed as protecting against disclosure of

information that would subject the individual to shame, ignominy, or

contempt. See Respublica v. Gibbs, 3 Yeates 429, 437 (Pa. 1802)

(discussing right against self-incrimination and opining, “The words accusare

or prodere are general terms, and their sense is not confined to cases,

where the answers to the questions proposed would induce to the

punishment of the party; if they would involve him in shame or reproach, he

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is under no obligation to answer them.”); Galbreath v. Eichelberger, 3

Yeates 515 (Pa. 1803); see also Commonwealth v. Swinehart, 664 A.2d

957 (Pa. 1995).

The recent decision by our Supreme Court declaring SORNA violative

of a juvenile’s procedural due process rights highlighted that lifetime

registration impacts the “right to reputation under the Pennsylvania

Constitution.” In re J.B., supra slip opinion at 28. Further, in

Commonwealth v. Hayes, 674 A.2d 677, 680 (Pa. 1996) (citation and

footnote omitted), our High Court opined that this Commonwealth has

“observed a tradition within Pennsylvania common law for protecting a

witness from questions which would damage the witness' reputation. This

concern for an individual's reputation is consistent with our long established

sense of a heightened awareness of personal privacy in Pennsylvania.”

The right to privacy, though not expressly included in the Pennsylvania

Constitution, has been considered to be part of that document. See

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) (discussing privacy

in context of search and seizure jurisprudence). Of course, much of the case

law relevant to privacy focuses on the prohibition against unreasonable

searches and seizures, which is not relevant here. This Court has defined

the broad based conception of a right to privacy as “the right to live one's

life in seclusion, without being subjected to unwarranted and undesired

publicity. In short, … the right to be let alone.” Hull v. Curtis Publishing

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Co., 125 A.2d 644, 645-646 (Pa. Super. 1956) (discussing tort of invasion of

privacy). In addition, we have opined that the right to privacy has been

defined as “the right of a person to be free from unwarranted publicity or

unwarranted approbation or exploitation of one's personality, the publicizing

of one's private affairs with which the public has no legitimate concern, or

the wrongful intrusion of one's private activities in such manner as to

outrage or cause mental suffering, shame or humiliation to a person of

ordinary sensibilities.” Id. at 646.

Important in this matter is also the retroactive application of the new

sex offender registration requirements. William Blackstone, in his influential

Commentaries on the Laws of England, posited, “All laws should be therefore

made to commence in futuro, and be notified before their

commencement[.]” 1 Tucker’s Blackstone, 46 (Philadelphia, 1803).4

“[S]ince the beginning of the Republic and indeed since the early days of the

common law: absent specific indication to the contrary, the operation of

nonpenal legislation is prospective only.” Kaiser Aluminum & Chemical

Corp. v. Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring).

Similarly, this Court in Anderson v. Sunray Elec. Inc., 98 A.2d 374,
____________________________________________

4
Blackstone made this reference after discussing Caligula, the notorious
Roman emperor, and his reported practice of posting laws so high on pillars
that the people could not read them. This practice is likely familiar to
readers of George Orwell’s famous book, Animal Farm. Therein, the leaders
on the farm, the pigs, repeatedly changed the laws and posted them where
the other animals could not discern them.

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375 (Pa.Super. 1953), has recognized, “Unless the legislature clearly

manifests its intention otherwise, no law may be construed to be retroactive,

and then only where it does not destroy vested rights or impair the

obligations of contracts.” See also 1 Pa.C.S. § 1926.5

While the legislature here did expressly indicate that this law would

apply retroactively, that does not alter the fact that from the early days of

this Commonwealth our courts have recognized the odious nature of

retroactive civil laws. In Commonwealth v. Duane, 1 Binn. 601 (Pa.

1809), the Pennsylvania Supreme Court distinguished between the

prohibition against civil retroactive laws and ameliorative retrospective

criminal legislation. There, the defendant was indicted and found guilty of

committing a libel against Pennsylvania’s governor in his official capacity.

However, prior to his judgment of sentence, the legislature passed a law

stating that no person was to be prosecuted by indictment for publication of

papers or for investigating the official conduct of men in a public capacity.

Counsel for Duane argued that the law interfered with no vested right, did

not violate any right of property, and effectively terminated his prosecution.

The Pennsylvania Supreme Court agreed, with Chief Justice Tilghman

stating, “If the same expression had been used, as applied to a civil action, I

should have thought myself warranted in giving it a different construction,

____________________________________________

5
1 Pa.C.S. § 1926 codified Pennsylvania common law.

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because then it would have operated in a retrospective manner, so as to

take away from a citizen a vested right. But there is a wide difference

between a civil and a criminal action.” Id. at 608-609.

Justice Joseph Story, writing while on circuit, offered a concise

summary of retroactive civil laws, which has subsequently been adopted by

the United States Supreme Court, see Landgraf v. USI Film Products,

511 U.S. 244 (1994), and utilized by courts in this Commonwealth.

Justice Story opined, “every statute, which takes away or impairs vested

rights acquired under existing laws, or creates a new obligation, imposes a

new duty, or attaches a new disability, in respect to transactions or

considerations already past, must be deemed retrospective[.]” Society for

the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756, 767 (1814).6

Justice Duncan of the Pennsylvania Supreme Court echoed this definition

and cited Justice Story’s opinion in Eakin v. Raub, 12 Serg. & Rawle 330

____________________________________________

6
This Court has defined a vested right as one that “so completely and
definitely belongs to a person that it cannot be impaired or taken away
without the person's consent.” In re R.T., 778 A.2d 670, 679 (Pa.Super.
2001). In Eakin v. Raub, 12 Serg. & Rawle 330, 360 (Pa. 1825),
Justice Duncan opined, “a vested right is where a man has power to do
certain actions, or to possess certain things, according to the laws of the
land.”

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(Pa. 1825), and recognized the distinction between the prohibition against

civil retroactive law and ameliorative criminal legislation. Id. at 362.7

A number of other state courts have construed versions of SORNA as

violating constitutional retroactivity clauses or that state’s ex post facto

prohibition. Starkey v. Oklahoma Dept. of Corrections, 305 P.3d 1004

(Okla. 2013) (SORNA statute violated ex post facto clause of state

constitution); Doe v. Department of Public Safety and Correctional

Services, 62 A.3d 123 (Md. 2013) (Maryland sex offender statute violated

ex post facto clause of state constitution); State v. Williams, 952 N.E.2d

1108, 1113 (Ohio 2011) (Ohio SORNA statute violated state constitutional

prohibition against retroactive laws); cf. State v. Bodyke, 933 N.E.2d 753

(Ohio 2010) (Ohio SORNA violated separation of powers) State v.

Letalien, 985 A.2d 4 (Me. 2009) (ex post facto violation to apply

retroactively the enhanced requirements of SORNA of 1999 when, by so

doing, the application revises and enhances sex offender registration

requirements that were a part of the offender's original sentence); but see

____________________________________________

7
Civil retrospective law was also permissible where, the law “does not
violate the constitutional prohibitions,” and provided “to a party a remedy
which he did not previously possess, or modify an existing remedy, or
remove an impediment in the way of recovering redress by legal
proceedings.” Hepburn v. Curts, 7 Watts 300, 301 (Pa. 1838). Thus,
statutory law that benefited individuals without invading the vested rights of
another was lawful.

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Doe I v. Williams, 61 A.3d 718 (Me. 2013) (SORNA statute at issue did not

violate substantive or procedural due process or ex post facto clause).

Concomitantly, several states have upheld retroactive sex offender

registration changes under ex post facto and due process challenges. Doe I

v. Williams, supra; Roe v. Replogle, 408 S.W.3d 759 (Mo. 2013) (federal

SORNA law, applicable to residents of Missouri, did not violate substantive

due process); Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013). As

noted, this Court has also rejected a federal ex post facto challenge. Perez,

supra. Of course, I have already noted that the Pennsylvania Supreme

Court has declared retroactive application of SORNA to juvenile offenders to

violate due process. See In re J.B., supra.

Having outlined the text, a brief history of Pennsylvania’s due process,

reputation, and privacy protections, as well as this Commonwealth’s general

distaste for retroactive laws, I now consider the current manner in which

Pennsylvania courts address due process issues. “The due process clauses

of the United States and Pennsylvania constitutions ..., generally, embody

the principle of fundamental fairness, entitling every individual to be free

from arbitrary or oppressive government conduct.” Commonwealth v.

Brown, 52 A.3d 1139, 1162 (Pa. 2012).

Since Appellant has not developed a substantive due process

argument, despite contending that he was denied fundamental fairness, and

having honed in on the lack of notice and an opportunity to be heard, I too

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will focus on his positions regarding procedural due process. Procedural due

process at its core has required notice and an opportunity to be heard.

Fiore v. Bd. of Fin. & Revenue, 633 A.2d 1111, 1114 (Pa. 1993) (“due

process ‘requires at a minimum that the deprivation of life, liberty or

property by adjudication must be preceded by notice and opportunity for

hearing appropriate to the nature of the case.’ . . . we note that procedural

due process requires more than notice and hearing, but protects as well the

right to an orderly proceeding adapted to the nature of the case.”).

Instantly, the notice provided to Appellant regarding his lifetime

registration and other SORNA requirements came nine years after he

entered his guilty plea. At the time of his plea, Appellant was only on notice,

based on existing law, that he would be subject to ten years of registration.

Not only did Appellant not have notice that he would be subject to lifetime

registration, he also had no notice that his registration requirement could be

retroactively increased without any opportunity to contest that increase.

Indeed, contrary to the provision in SORNA providing juveniles an

opportunity to show that they should no longer be subject to lifetime

registration, no such proviso exists for adults that successfully completed

their sentence.

Although this Court has held, for purposes of the lawfulness of a guilty

plea, that notice of registration is not required, this is wholly distinct from

the question herein. Appellant had no opportunity to be heard and

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potentially negotiate a guilty plea to a differing offense that would not have

resulted in lifetime registration. Thus, the fact that lifetime registration is

premised on his conviction is of little moment. Cases from other

jurisdictions to the contrary are relying on non-sequiturs and legal sophistry.

It is immaterial that the conviction is what results in lifetime registration

when, at the time of the defendant’s conviction, it did not. Had Appellant

known that his conviction would have required lifetime registration he may

have elected a different course through plea negotiations. This is why notice

and an opportunity to be heard relate not to the time the new law was

enacted, but to when the individual was deciding whether and to what

crimes to plead guilty. Appellant had no notice at the relevant time that he

would or could be required to register as a sex offender for life.

Certainly, the Commonwealth did not view Appellant as such a serious

offender that he should have to register for life or it would not have agreed

to a probationary sentence. What is more egregious and highly pertinent in

this case is that Appellant is no longer serving any criminal sentence. This

factor has been important in prior decisions from this Court. See Benner,

supra. Mandating lifetime registration, retroactively, to a person no longer

serving any sort of criminal sentence, while perhaps not criminal punishment

under our federal ex post facto precedent, is no less odious than other ex

post facto violations. Appellant’s liberty and reputation will undoubtedly be

curtailed by increased registration. Cf. In re J.B., supra.

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I repeat what the learned Professor Thomas Raeburn White so

eloquently stated over a century ago: “Any law which relates to past events

and alters the status of the parties with respect to them is unjust and

unwise, and this has been universally recognized by the American people.”

Thomas Raeburn White, Commentaries on the Constitution of Pennsylvania,

134 (1907). Retroactively requiring an individual no longer serving a

criminal sentence to have to register as a sex offender for the remainder of

his life, when he was initially subject to a ten-year registration period,

deprives the individual of notice and an opportunity to be heard.

Accordingly, it is unquestionable in my mind that Appellant’s procedural due

process rights under the Pennsylvania Constitution have been clearly and

palpably violated. For the aforementioned reasons, I respectfully but

adamantly register this dissent.

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