Commonwealth v. Woodruff

J-S05010-16

2016 PA Super 47

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MATTHEW WOODRUFF,

Appellant No. 632 MDA 2015

Appeal from the Order Entered March 6, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000872-2002

BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

OPINION BY BENDER, P.J.E.: FILED FEBRUARY 23, 2016

Appellant, Matthew Woodruff, appeals from the order denying his ex

post facto challenge to the imposition of new sexual offender registration

and reporting requirements under Pennsylvania’s Sexual Offender

Registration and Notification Act (SORNA), 42 Pa.C.S. § 9799.10–9799.41.

After careful review, we affirm.

As a result of Appellant’s 2002 conviction for indecent assault against

a minor less than 13 years of age,1,2 he was required to register with the

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3126(a)(7).
2
Appellant pled guilty on October 7, 2002. On January 31, 2003, following
a determination that he was not a sexually violent predator, Appellant was
sentenced to a term of 6-18 months’ incarceration.
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Pennsylvania State Police (PSP) for a period of ten years under a prior

version of Pennsylvania’s Megan’s Law3 (Megan’s Law II), 42 Pa.C.S. §

9791–9799.9 (expired December 20, 2012). See 42 Pa.C.S. § 9795.1(a)(1)

(requiring a ten-year registration period for any person convicted of 18

Pa.C.S. § 3126 “where the offense is graded as a misdemeanor of the first

degree or higher”) (expired December 20, 2012). Additionally, under

Megan’s Law II, Appellant was required to report annually, in person, to the

PSP. Following the end of his term of parole on September 14, 2004,

Appellant began his ten-year registration period. Thus, Appellant’s ten-year

registration term was set to expire in September of 2014.

SORNA was enacted on December 20, 2011, and became effective on

December 20, 2012. SORNA provides that:

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:
...
(3) An individual who:

(i) was required to register with the Pennsylvania State
Police pursuant to this subchapter prior to December
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3
“Megan Kanka was a 7–year–old New Jersey girl who was sexually
assaulted and murdered … by a neighbor who, unknown to the victim's
family, had prior convictions for sex offenses against children. The crime
gave impetus to laws for mandatory registration of sex offenders and
corresponding community notification.” Smith v. Doe, 538 U.S. 84, 89
(2003).

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20, 2012, and who had not fulfilled the individual's
period of registration as of December 20, 2012; …

42 Pa.C.S. § 9799.13.

Because Appellant had not completed his registration requirements as

of December 20, 2012, Section 9799.13(3)(i) applied to him. Under SORNA,

Appellant’s 2002 conviction is classified as a Tier III sexual offense. 42

Pa.C.S. § 9799.14(d)(8). Pursuant to this categorization, Appellant is now

subject to, inter alia, lifetime registration requirements, 42 Pa.C.S. §

9799.15(a)(3), and quarterly reporting requirements, 42 Pa.C.S. §

9799.15(e)(3).

On November 25, 2014, Appellant filed in the trial court a “Petition to

Reassess or Reclassify Period of Registration Under [SORNA]” (“the

Petition”), in which Appellant advanced two arguments. First, he maintained

that SORNA did not apply to him based upon calculating his ten-year

registration term from the date of his conviction rather than from the date

his parole expired. Second, Appellant argued that SORNA should not apply

to him as it was violative of the ex post facto clauses of the United States

and Pennsylvania Constitutions. The trial court held a hearing to consider

the Petition on January 23, 2015. On March 6, 2015, the court entered an

order denying the Petition, which is the subject of the instant appeal. The

court contemporaneously filed a memorandum opinion setting forth its legal

analysis in support of denying the Petition.

Appellant filed a timely notice of appeal on April 1, 2015 and, on May

20, 2015, he filed a timely, court-ordered Pa.R.A.P. 1925(b) statement.

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That same day, the trial court issued an order indicating that it would not

issue a Rule 1925(a) opinion, as the issues raised in Appellant’s Rule

1925(b) statement had been addressed in the opinion accompanying the

order denying relief. See Order, 5/20/15, at 2.

Appellant now presents the following question for our review:

Did [] the trial court err in failing to conclude that the effects of
SORNA are sufficiently punitive to be in violation of the Ex Post
Facto Clause of the United States and Pennsylvania Constitutions
and, therefore, unconstitutional?

Appellant’s Brief, at 3.

The Federal Constitution provides that: “No State shall … pass any …

ex post facto Law….” U.S. Const. art. I, § 10, cl. 1. Similarly, the

Pennsylvania Constitution provides that: “No ex post facto law … shall be

passed.” Pa. Const. art. I, § 17. Our Supreme Court has interpreted these

ex post facto clauses to be effectively identical. See Commonwealth v.

Young, 637 A.2d 1313, 1317 (Pa. 1993) (“As our interpretation of the state

constitutional prohibition against ex post facto laws has been consistent with

that of the United States Supreme Court's interpretation of the federal

prohibition, the analysis of [the] appellant's federal ex post facto claim

disposes of his state claim as well.”). Moreover, although Appellant

ostensibly raises an ex post facto challenge to SORNA under both the United

States and Pennsylvania Constitutions, he does not present distinct

arguments for each claim. Accordingly, as our Supreme Court did in Young,

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we consider Appellant’s ex post facto challenge to SORNA using federal ex

post facto standards.

The United States Supreme Court first defined what is meant by “ex

post facto laws” in 1798, when Chief Justice Chase explained that such laws

fall into one or more of the following four categories:

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 offence, in order to
convict the offender.

Calder v. Bull, 3 U.S. 386, 390 (1798).

Thus, it is clear from the very first interpretation of the Federal

Constitution’s ban on ex post facto laws that the prohibition pertains to

retroactive criminal punishments, and not to retroactive civil restraints or

penalties. It is not in dispute that the new constraints imposed on Appellant

by SORNA are retroactive; the statute itself dictates their retroactive

application. See 42 Pa.C.S. § 9799.13. Thus, dispositive of whether these

restraints are prohibited as ex post facto laws is whether these restraints are

punitive in intent, or in effect. See Smith, 538 U.S. at 92.

In Smith, the United States Supreme Court delineated the framework

for this inquiry as follows:

We must “ascertain whether the legislature meant the statute to
establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S.

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346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If the
intention of the legislature was to impose punishment, that ends
the inquiry. If, however, the intention was to enact a regulatory
scheme that is civil and non[-]punitive, we must further examine
whether the statutory scheme is “‘so punitive either in purpose
or effect as to negate [the State's] intention’ to deem it ‘civil.’”
Ibid. (quoting United States v. Ward, 448 U.S. 242, 248–249,
100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because we “ordinarily
defer to the legislature's stated intent,” Hendricks, supra, at
361, 117 S.Ct. 2072, “‘only the clearest proof’ will suffice to
override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty,” Hudson v.
United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d
450 (1997) (quoting Ward, supra, at 249, 100 S.Ct. 2636);
see also Hendricks, supra, at 361, 117 S.Ct. 2072; United
States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135
L.Ed.2d 549 (1996); United States v. One Assortment of 89
Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 79 L.Ed.2d 361
(1984).

Id.

Appellant’s statement of the question involved appears to sidestep the

intent inquiry, as he asks this Court to consider whether the “effects of

SORNA are sufficiently punitive.” Appellant’s Brief, at 3 (emphasis added).

He also acknowledges that “the Legislature in both Megan’s Law and SORNA

has expressed it[s] [] intent that the enactment of both were non-punitive.”

Id. at 11. Indeed, the Legislature “stated in its policy declarations that the

provisions of SORNA were not criminal.” Commonwealth v. Perez, 97

A.3d 747, 751 (Pa. Super. 2014), reargument denied, (Pa. Super. 2014)

(citing 42 Pa.C.S. § 9799.11(b)).

Nevertheless, in the argument section of his brief, Appellant asserts

two reasons why we should not take the Legislature’s declaration of non-

punitive intent at face value in analyzing the first prong of the Smith test.

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First, Appellant argues that, despite dramatically increasing Appellant’s

registration and reporting requirements under SORNA, the Legislature “has

not changed the grading of the predicate offense.” Appellant’s Brief, at 12.

Second, Appellant points to the fact that SORNA “is set within the

Pennsylvania criminal sentencing framework where punishment for criminal

convictions is procedurally determined.” Id. at 13.

Appellant’s first intent-related argument is no more than an assertion

that SORNA is punitive in effect. Accordingly, that assertion is more

appropriately addressed under the second prong of the Smith test.

Appellant’s second intent-related argument appears to somewhat mirror

concerns raised in the concurring opinion in Perez. See Perez, 97 A.3d at

762 (Donahue, J. concurring) (hesitating to “conclude that the first prong of

the Smith test is satisfied without further inquiry,” given that the manner of

codification is probative of legislative intent, and “[u]nlike the Alaska statute

at issue in Smith, all of SORNA's notification, registration, and procedural

provisions are codified in one section of the State's ‘Judiciary and Judicial

Procedure Code,’ specifically under Chapter 97, titled ‘Sentencing’”).

However, Appellant provides minimal discussion, and no supporting case

law, addressing his challenge under Smith’s first prong. Accordingly, we

conclude that this aspect of his ex post facto challenge has been waived due

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to his failure to present the issue in a manner permitting meaningful

appellate review.4

Thus, we next consider Appellant’s arguments regarding the second

prong of the Smith test.

This second prong enlists seven factors the Supreme Court has
found to be “useful guideposts” for determining whether a
statute unconstitutionally imposes retroactive punishment.
[Smith, 538 U.S. at 97]; see Kennedy v. Mendoza–Martinez,
372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The
“Mendoza–Martinez” factors are: 1) whether the sanction
involves an affirmative disability or restraint; 2) whether it has
historically been regarded as a punishment; 3) whether it comes
into play only on a finding of scienter; 4) whether its operation
will promote the traditional aims of punishment—retribution and
deterrence; 5) whether the behavior to which it applies is
already a crime; 6) whether the alternative purpose to which it
may rationally be connected is assignable for it; and 7) whether
____________________________________________

4
As this Court stated in Commonwealth v. Hardy, 918 A.2d 766 (Pa.
Super. 2007):

When briefing the various issues that have been
preserved, it is an appellant's duty to present arguments that
are sufficiently developed for our review. Commonwealth v.
Gould, 912 A.2d 869, 873 (Pa. Super. 2006). The brief must
support the claims with pertinent discussion, with references to
the record and with citations to legal authorities. Id.; Pa.R.A.P.
2119(a), (b), (c). Citations to authorities must articulate the
principles for which they are cited. Pa.R.A.P. 2119(b).

This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Gould, 912 A.2d at 873.
Moreover, when defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely
or find certain issues to be waived. Id.; Pa.R.A.P. 2101.

Id. at 771.

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it appears excessive in relation to the alternative purpose
assigned. Id., at 168–69, 83 S.Ct. 554.

Lehman v. Pennsylvania State Police, 839 A.2d 265, 271 (Pa. 2003).

“The Mendoza–Martinez factors are ‘neither exhaustive nor dispositive,’

Smith v. Doe, at 1149, but they ‘must be considered in relation to the

statute on its face, and only the clearest proof will suffice to override

legislative intent and transform what has been denominated a civil remedy

into a criminal penalty.’” Lehman, 839 A.2d at 271-72 (quoting Hudson v.

United States, 522 U.S. 93, 100 (1997)).

Initially, we note that sex offender notification and reporting

requirement statutes, i.e., Megan’s Law statutes, have generally survived

scrutiny under ex post facto analysis. For instance, the Smith court

ultimately concluded that the Alaska Sex Offender Registration Act (ASORA),

Alaska’s version of Megan’s Law, was not violative of the prohibition against

ex post facto laws. ASORA included, inter alia, lifetime registration

requirements for sex offenders who had been convicted of “an aggravated

sex offense or of two or more sex offenses[,]” Smith, 538 U.S. at 84

(syllabus). However, although ASORA required some registrants to update

the sex offender registry quarterly, “on its face, [the statute did] not require

these updates to be made in person.” Id. at 101. Thus, the mandatory,

quarterly, in-person reporting requirements imposed under SORNA differ

from ASORA in this regard. In any event, the Smith Court concluded, after

analyzing each of the Mendoza–Martinez factors, “that respondents cannot

show, much less by the clearest proof, that the effects of the law negate

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Alaska's intention to establish a civil regulatory scheme.” Smith, 538 U.S.

at 105.

In Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999), our

Supreme Court addressed provisions of Megan's Law I which imposed ten-

year registration requirements, annual verification, and immediate

notification of address changes for convicted sex offenders. Id. at 617. The

Supreme Court concluded that those aspects of Megan's Law I were non-

punitive and, therefore, that the statute did not constitute an ex post facto

law.5 Id. at 621.

In Commonwealth v. Williams, 832 A.2d 962, 975 (Pa. 2003)

(Williams II),6 our Supreme Court considered whether the provisions of

Megan’s Law II were punitive in effect using the Mendoza–Martinez

factors. Specifically, the Williams II Court considered whether the Megan’s

Law II’s registration, notification, and counseling requirements, applicable to
____________________________________________

5
The Gaffney Court did not apply the Mendoza–Martinez factors.
Instead, that court analyzed the ex post facto challenge to Megan’s Law I at
issue in that case under then-applicable, Third Circuit precedent from
Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), and E.B v.
Verniero, 119 F.3d 1077 (3d Cir. 1997). In Lehman, our Supreme Court
abandoned that precedent in favor of utilizing the Mendoza–Martinez
factors, as the United States Supreme Court had done in Smith.
6
This nomenclature is consistent with prior decisions of this Court and our
Supreme Court. “Williams I” refers to Commonwealth v. Williams, 733
A.2d 593 (Pa. 1999) (finding unconstitutional Megan’s Law I’s imposition of
a greater maximum term of confinement for sex offenders deemed sexually
violent predators (SVP), where the burden was on the defendant to prove he
was not an SVP).

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individuals deemed sexually violent predators (SVPs), were punitive, and

concluded that they were not. Id. at 986 (“Megan's Law[ II]'s registration,

notification, and counseling provisions constitute non-punitive, regulatory

measures supporting a legitimate governmental purpose. Therefore, these

measures are presently upheld against [the a]ppellees' claim that they result

in additional criminal punishment.”). Notably, with respect to the ostensibly

onerous monthly counseling requirements at issue in that case,7 the Court

held that they: did not constitute an affirmative disability or restraint, id. at

974; did not “implicate traditional methods of punishment,” id. at 977;

served an explicitly non-punitive purpose, id. at 979-80, and were not

excessive with respect to the fulfillment of the legitimate, non-punitive

purposes of the statute, id. at 981.

This is not the first instance in which SORNA has been addressed in

the context of an ex post facto challenge. A similar claim was raised in

Perez, where the appellant challenged the retroactive application of the 25-

year registration period imposed for Tier II offenses pursuant to 42 Pa.C.S. §

9799.15(a)(2), due to his conviction for indecent assault. Perez, 97 A.3d at

749-50. At the time he committed the indecent assault (specifically, 18

____________________________________________

7
The Williams II Court described the counseling requirements as follows:
“The Act also requires a sexually violent predator to attend ‘at least monthly’
counseling sessions in a program approved by the Board, and to pay all fees
assessed from such sessions, unless he cannot afford them, in which case
they are paid by the parole office.” Id. at 968.

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Pa.C.S. § 3126(a)(6)), the then-applicable Megan’s Law registration period

was only ten years for that offense. Thus, the appellant claimed the

imposition of the 25-year registration period constituted an unconstitutional

ex post facto law.

Although the Perez Court found that its analysis of the 25-year

registration period under the first Mendoza–Martinez factor weighed in

favor of finding SORNA to be punitive in effect, the Court determined that

the remaining six factors weighed against finding SORNA to be punitive in

effect, or that they were of little weight. As such, the Perez Court

concluded that Perez had not “shown by the ‘clearest proof’ that the effects

of SORNA are sufficiently punitive to overcome the General Assembly's

preferred categorization.” Perez, 97 A.3d at 759.

This Court has also rejected claims that SORNA’s 15-year registration

requirement was effectively punitive. See Commonwealth v.

Giannantonio, 114 A.3d 429, 437 (Pa. Super. 2015) (applying Perez); see

also Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa. Super.

2014), appeal denied, 108 A.3d 34 (Pa. 2015) (holding SORNA’s 15-year

registration requirement to be non-punitive for purposes of whether it

constitutes unconstitutionally excessive punishment). However, no

Pennsylvania court has yet addressed whether SORNA’s lifetime registration

and quarterly, in-person reporting requirements are effectively punitive for

ex post facto purposes. Accordingly, we shall now consider whether

Appellant has demonstrated by the clearest proof, with respect to the

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Mendoza–Martinez factors, that SORNA’s lifetime registration and

quarterly, in-person reporting requirements are effectively punitive.

1) whether the sanction involves an affirmative disability or restraint

In Williams II, our Supreme Court held that the lifetime registration

requirements imposed on SVPs pursuant to Megan’s Law II, inter alia, did

not impose an affirmative disability or restraint because lifetime registrants

“remain free to live where they choose, come and go as they please, and

seek whatever employment they may desire.” Williams II, 832 A.2d at

973 (internal quotation marks and citations omitted). Additionally, the

Williams II Court found that the “monthly counseling sessions” required of

lifetime registrants could not “be compared to incarceration or deprivation of

citizenship, or even to the liberty-restricting conditions of probation.” Id. at

974.

Here, we ascertain no significant difference between the instant case

and Williams II with respect to the first Mendoza–Martinez factor in

regard to the lifetime registration requirements at issue. Additionally,

Appellant’s quarterly, in-person reporting requirements appear comparable

to the mandatory, monthly counseling sessions at issue in Williams II. If

anything, the frequency and potential intrusiveness of the monthly

counseling requirement for SVPs under Megan’s Law II appear more onerous

than SORNA’s quarterly, in-person reporting requirement.

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Nevertheless, Appellant requests that we apply the conclusion reached

by the Perez Court that SORNA’s semi-annual reporting requirement, over

the course of a 25-year registration term, constitutes “an affirmative

constraint on Appellant's conduct imposed directly by SORNA” that “weighs

in favor of finding SORNA punitive.” Perez, 97 A.3d at 754. Clearly,

Appellant’s lifetime, quarterly, in-person reporting requirements are more

onerous than those involved in Perez.

Despite this apparent conflict in reasoning between Perez and

Williams II, and out of an abundance of caution,8 we acquiesce to

Appellant’s request to apply Perez’s analysis with regard to the first

Mendoza–Martinez factor weighing in favor of finding SORNA’s effects to

be punitive. Appellant is currently 34 years old. The average lifespan of an

American male is approximately 79 years. Thus, it would be fair to estimate

that Appellant will be required to report to authorities approximately 180

times during his life, regardless of whether he changes his address,

employment, or any other circumstance relevant to monitoring registrants

under SORNA during that time, all of which Appellant would be required to

report independent of his quarterly reporting requirement. Therefore, while

we do not believe SORNA’s lifetime registration requirement imposes an
____________________________________________

8
The Perez decision may, in fact, be binding precedent on this panel.
Although addressing different registration and reporting requirements, the
registration and reporting requirements at issue here are clearly more
burdensome.

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affirmative disability or restraint by itself, we hold, pursuant to Perez, that

the quarterly, in-person reporting requirement does. Accordingly, we find

that the first Mendoza–Martinez factor weighs in favor of finding SORNA’s

effects to be punitive as applied to Appellant.

2) whether it has historically been regarded as a punishment

Next, we consider whether Appellant’s lifetime registration and

quarterly, in-person reporting requirements are historically regarded as

punishment. Appellant contends that they are, given the similarities

between these requirements and the constraints imposed on probationers.

In Smith, the United States Supreme Court rejected a lower court’s

similar conclusion:

The Court of Appeals held that the registration system is parallel
to probation or supervised release in terms of the restraint
imposed. This argument has some force, but, after due
consideration, we reject it. Probation and supervised release
entail a series of mandatory conditions and allow the supervising
officer to seek the revocation of probation or release in case of
infraction. By contrast, offenders subject to the Alaska statute
are free to move where they wish and to live and work as other
citizens, with no supervision. Although registrants must inform
the authorities after they change their facial features (such as
growing a beard), borrow a car, or seek psychiatric treatment,
they are not required to seek permission to do so. A sex offender
who fails to comply with the reporting requirement may be
subjected to a criminal prosecution for that failure, but any
prosecution is a proceeding separate from the individual's
original offense.

Smith, 538 U.S. at 101-02 (internal citations omitted). Notably, in Smith,

while considering the second Mendoza–Martinez factor, the United States

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Supreme Court rejected a factual conclusion made by the Court of Appeals

“that the offender had to update the registry in person,” noting that “the

record contains no indication that an in-person appearance requirement has

been imposed on any sex offender subject to the Act.” Id. at 101. Here,

however, Appellant is required to report in-person. Thus, in this sense, at

least, the analogy between SORNA’s registration and reporting

requirements, and the traditional criminal sanction of probation, appears to

be stronger than the requirements analyzed in Smith.

Appellant suggests we follow the reasoning of the Commonwealth

Court’s recent analysis of SORNA under the second Mendoza–Martinez

factor. Therein, the Commonwealth Court stated:

The requirement that Coppolino appear in person quarterly
to verify his information might be seen as analogous to the
requirements that a probationer or parolee regularly contact his
probation or parole officer and supply him with information. For
instance, akin to the quarterly verification required by Section
9799.15(e)(3), the regulations of the Pennsylvania Board of
Probation and Parole (Parole Board) require that a parolee
“[m]aintain regular contact with the parole supervision staff by
... [r]eporting regularly as instructed.” 37 Pa.Code § 63.4(3)(i).
The Superior Court, in Perez, considered whether the
registration requirements of [SORNA] were akin to probation or
parole. Perez, 97 A.3d at 753–54. The Superior Court
concluded that the requirements were not analogous because a
registrant under Megan's Law IV must report changes to
registration information but, unlike a probationer or parolee, is
not required to seek permission to, for instance, change jobs or
move. Id. at 754 (citing Smith, 538 U.S. at 101–02, 123 S.Ct.
1140).

In a concurring opinion, Judge Donohue stated that it was
important that, under the quarterly verification requirement, a
registrant must not only verify his information, but must do so in

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person. Id. at 752 (Donohue, J., concurring). Reasoning that
this requirement “greatly resembles the periodic meetings with
probation officers imposed on probationers,” Judge Donohue
would have held that due to the in-person reporting
requirements of Section 9799.15(e)(3) and (g), along with the
plethora of information required by Section 9799.16(b), these
provisions of Megan's Law IV do, in fact, closely resemble the
supervision afforded individuals on probation or parole:

Like the conditions imposed on probationers, registrants
under [[SORNA]] must notify the state police of a change
in residency or employment.... Offenders also face
incarceration for any non-compliance with the registration
requirements.... Furthermore, [[SORNA]] requires
registrants who do not have a fixed work place to provide
“general travel routes and general areas where the
individual works” in order to be in compliance.... The
Supreme Court in Smith stated that “[a] sex offender who
fails to comply with the reporting requirement may be
subjected to criminal prosecution for that failure, but any
prosecution is a proceeding separate from the individual's
original offense.” Smith, 538 U.S. at 101–02, 123 S.Ct.
1140. However, violations for noncompliance with both
probation and [[SORNA]] registration requirements are
procedurally parallel. Both require factual findings to
determine whether a violation has actually occurred....
Similarly, but for the original underlying offense, neither
would be subject to the mandatory conditions from which
the potential violation stems.

Id. at 764 (internal citations omitted). We find this rationale
convincing and determine that this second factor weighs in favor
of a finding that the quarterly verification provision is punitive.

Coppolino v. Noonan, 102 A.3d 1254, 1270-71 (Pa. Cmwlth. 2014) aff'd,

125 A.3d 1196 (Pa. 2015).

Although not binding upon us, we agree with the Coppolino Court’s

analysis that the analogy to probation is stronger with regard to the

quarterly, in-person reporting requirements at issue here as compared to

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those at issue in Smith. Thus, we conclude that the second Mendoza–

Martinez factor weighs in favor of finding SORNA’s effects to be punitive,

with one caveat. Probation is quite unlike incarceration in that it involves a

significantly lesser burden on an individual’s liberty. As our Supreme Court

has recognized: “Probation, like parole, is not part of the criminal

prosecution, and thus the full panoply of rights due a defendant in a criminal

trial does not apply to probation revocation. Probation is a suspended

sentence of incarceration served upon such terms and conditions as imposed

by the sentencing court.” Commonwealth v. Holder, 805 A.2d 499, 503

(Pa. 2002) (internal citation omitted). While probation is now ubiquitous as

a manner of reprimanding criminals, it is also the least onerous and most

recent entry in the category of ‘traditional’ punishments.9 Thus, while we
____________________________________________

9
Probation was not known as a form of punishment when the ex post facto
clauses of the Federal and Pennsylvania Constitutions were written.

[T]he modern probation system is said to have begun in the
United States in 1841, when a Boston boot maker named John
Augustus offered to take charge of a drunk who had come before
a police court. See David C. Anderson, Sensible Justice,
Alternatives to Prison 4 (1998). Augustus returned the man to
court three weeks later, sober and gainfully employed, at which
time the judge fined him a penny plus costs and let him go. Id.
This pioneer began bailing out likely rehabilitative risks on a
regular basis, and was soon joined by volunteers. Id. His
community-service efforts were so successful that in 1878, the
Massachusetts legislature formalized release under court
supervision, and before long other states followed. Id.
Probation became the most widely imposed criminal sanction.
Id.

(Footnote Continued Next Page)

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conclude that this factor weighs in favor of finding SORNA’s effects to be

punitive, we assign this factor less weight than if the punitive measures at-

issue were more akin to incarceration.

3) whether it comes into play only on a finding of scienter

Appellant concedes that the third Mendoza–Martinez factor does not

weigh in favor of deeming the effects of SORNA to be punitive.

Nevertheless, in Smith, the United States Supreme Court pronounced that

this factor is entitled to little weight when evaluating Megan’s Law

registration and reporting requirements. See Smith, 538 U.S. at 105.

Thus, we also conclude that the third Mendoza–Martinez factor weighs

against finding SORNA’s effects to be punitive, but assign that factor little

weight.

4) whether its operation will promote the traditional aims of punishment—

retribution and deterrence

In Smith, the High Court stated: “Any number of governmental

programs might deter crime without imposing punishment. To hold that the

mere presence of a deterrent purpose renders such sanctions ‘criminal’ ...

would severely undermine the Government's ability to engage in effective

_______________________
(Footnote Continued)

United States v. K, 160 F. Supp. 2d 421, 430 (E.D.N.Y. 2001).

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regulation.” Smith, 538 U.S. at 102 (internal citation and quotation marks

omitted). In Perez, this Court noted:

[T]here is much in this statute designed for deterrence, as well
as some aspects of retribution given the new length of
registration. However, taking into account the high risk of
recidivism, the General Assembly is permitted to have some
deterrent and retributive effects in its legislation as long as they
are “consistent with ... regulatory objectives [and are]
reasonably related to the danger of recidivism.” Id. We
conclude that the effects of this statute are so reasonably
related.

Perez, 97 A.3d at 756.

Appellant argues, however, that the Majority in Perez “failed to

consider the drastic overall change in SORNA when compared to previous

versions of Megan’s Law.” Appellant’s Brief, at 16 (citing Judge Donahue’s

reasoning in her concurrence in Perez, indicating that she would have ruled

the fourth Mendoza–Martinez factor weighs in favor of finding SORNA’s

effects to be punitive). Appellant also cites this Court’s decision in

Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2014), where

we acknowledged what might be considered both the deterrent and

retributive effects of SORNA:

“[R]egistration obviously has serious and restrictive
consequences for the offender, including prosecution if the
requirement is violated. Registration can also affect the
offender's ability to earn a livelihood, his housing arrangements
and options, and his reputation.” Commonwealth v. Gehris, –
––Pa. –––, 54 A.3d 862, 878 (2012) (Castille, C.J., Opinion in
Support of Reversal). In fact, the requirements of registration
are so rigorously enforced, even “[t]he occurrence of a natural
disaster or other event requiring evacuation of residences shall

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not relieve the sexual offender of the duty to register.” 42
Pa.C.S. § 9799.25(e).

Hainesworth, 82 A.3d at 449.

Combining with his own the thoughts of Judge Donahue in Perez, and

Justice Castille in Gehris (as quoted by the Hainesworth Majority),

Appellant argues that “because an individual may be affected dramatically

by such consequences, he or she might find themselves under circumstances

which make it impossible to comply with SORNA, yet they are barred from

seeking relief from the courts until the circumstances may be rectified,

because a duty has been placed upon the registrant which is not dissimilar

to strict liability. Appellant’s Brief, at 17 (citing 42 Pa.C.S. § 9799.23(b)(2)

(“Except as provided in section 9799.17 (relating to termination of period of

registration for juvenile offenders), the court shall have no authority to

relieve a sexual offender from the duty to register under this subchapter or

to modify the requirements of this subchapter as they relate to the sexual

offender.”)). Thus, Appellant contends that, “[f]aced with the major

changes of lifetime registration, reporting on a quarterly basis, and the

increase in the acquisition and dissemination of information, which is

retributive in nature, this Court should conclude that [the fourth Mendoza–

Martinez factor] weighs in favor of holding” SORNA’s effects to be punitive.

Id.

We are not convinced by Appellant’s attempts to distinguish this

matter from Smith and Perez. First, neither Judge Donahue’s comments in

Perez, nor Justice Castille comments in Gehris, appear within a majority

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opinion. In any event, substantively speaking, Appellant’s argument

appears to be that because the consequences of violating the terms of

SORNA are akin to strict liability, they promote the traditional aims of

punishment—retribution and deterrence. However, strict liability, whether or

not it has a deterrent or retributive effect in the criminal context, has

traditionally been applied in civil law. Thus, putting aside the

appropriateness of using strict liability principles in the context of criminal

law, strict liability has not at all been historically considered a hallmark of

criminal law or criminal punishment. Moreover, in both civil and criminal

contexts, strict liability speaks to what constitutes a violation of the law, and

not to what the appropriate punishment should be for that violation. Thus,

we conclude that the fourth Mendoza–Martinez factor weighs against

finding SORNA’s effects to be punitive.

5) whether the behavior to which it applies is already a crime

It is beyond obvious that the behavior to which SORNA applies is a

crime: the statute is triggered by a criminal conviction. However, in Smith,

the United States Supreme Court assigned the fifth Mendoza–Martinez

factor little weight because ASORA’s regulations applied “only to past

conduct, which was, and is, a crime.” Smith, 538 U.S. at 105. SORNA is no

different in this regard.

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Appellant invokes Justice Souter’s concurrence in Smith to argue

otherwise. See Smith, 538 U.S. at 109 (Souter, J., Concurring) (noting that

ASORA “serves to feed suspicion that something more than regulation of

safety is going on” because “there is room for serious argument that the

alternative purpose is to revisit past crimes, not prevent future ones”).

However, we are constrained by the Majority in Smith to conclude this

factor is to be afforded little weight, and Appellant fails to distinguish the

instant matter other than by simply relying on the non-binding comments of

Justice Souter. Accordingly, while the fifth Mendoza–Martinez factor

clearly weighs in favor of finding SORNA’s effects to be punitive, it cannot

bear significant weight in our analysis.

6) whether the alternative purpose to which it may rationally be
connected is assignable for it

The sixth Mendoza–Martinez factor was assigned significant weight

in the Smith Court’s analysis of ASORA’s punitive effects. In Perez, the

appellant had conceded in his brief that the statute “is rationally connected

to the Commonwealth's compelling interest in seeking to prevent crimes of a

sexual nature, particularly those committed against children.” Perez, 97

A.3d at 757. Instantly, Appellant only makes a qualified or partial

concession. See Appellant’s Brief, at 18 (“Though [Appellant] does not

disagree that the enactment of SORNA is connected to a compelling state

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interest of seeking to prevent sexual crimes, [Appellant] does not concede

that the connection is rational.”).

Essentially, Appellant argues that SORNA’s restrictions are not

rationally related to its non-punitive purpose(s). For instance, Appellant

points to the fact that he is now placed “in the same Tier as those convicted

of kidnapping, rape, involuntary deviate sexual intercourse[,] and

aggravated assault, and subject to the same reporting requirements as a[n]

[SVP], with no real or empirical proof that he pose[s] the same threat or

level of recidivism.” Appellant’s Brief, at 18. This is despite the fact that

Appellant was not categorized as such under the previous version of Megan’s

Law, and despite the fact that “in the past 13 years, while reporting

annually, he as not re-offended.” Id.

Additionally, Appellant contends that his re-categorization into the top

tier of offenders under SORNA undermines the purpose of publically

disseminating information about sexual offenders to the public. He argues

that his re-categorization was enacted “[w]ithout distinction of who may

pose a real threat,” and, consequently, “it is impossible for the public to

know who the real threat is.” Id. at 19.

Appellant’s argument seems misplaced, as it appears more attuned to

address the seventh Mendoza–Martinez factor, given that he is essentially

arguing that SORNA’s new categorizations are over-inclusive (i.e., excessive)

in relation to SORNA’s ostensibly non-punitive purposes. That is not the

same issue as whether there is a rational relationship between the non-

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punitive purposes and the regulations imposed to serve those purposes. A

rational relationship may exist whether the rules are over- or under-

inclusive.

Indeed, as a practical matter, perfect precision is unrealistic. It may

be the case that an individual sex offender, who appears most likely to

reoffend, might never commit another offense even in the absence of any

Megan’s Law regime. Similarly, an individual registrant, who appears least

likely to reoffend, might reoffend despite the most onerous Megan’s Law

sanctions. Simply put, it is impossible to predict future behavior with perfect

accuracy; thus, no regime designed to prevent future behavior can be held

to such exacting standards of rationality. It is enough that the statute will

sometimes fulfill its non-punitive purpose to demonstrate the rationality of

the measures imposed. As the Smith Court stated, “A statute is not

deemed punitive simply because it lacks a close or perfect fit with the

nonpunitive aims it seeks to advance.” Smith, 538 U.S. at 103. Thus, we

conclude that the sixth Mendoza–Martinez factor weighs against finding

SORNA’s effects to be punitive.

7) whether it appears excessive in relation to the alternative
purpose assigned

Finally, and not surprisingly, Appellant “incorporates his argument set

forth under the sixth factor” to argue that SORNA is excessive in relation to

its non-punitive purposes. Appellant’s Brief, at 20. He supports that

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argument by drawing our attention to the fact that our Supreme Court in

Williams II addressed an incarnation of Megan’s Law that was generally

less onerous than SORNA and, more specifically, the most onerous

provisions in those prior statutes attached only to the most serious

offenders, such as those determined to be SVPs.

In Smith, the United States Supreme Court advised that: “The

excessiveness inquiry of our ex post facto jurisprudence is not an exercise in

determining whether the legislature has made the best choice possible to

address the problem it seeks to remedy. The question is whether the

regulatory means chosen are reasonable in light of the nonpunitive

objective.” Smith, 538 U.S. at 105. Here, the relevant legislative

objectives underlying Appellant’s registration and reporting requirements

are:

(5) To provide a mechanism for members of the general public
to obtain information about certain sexual offenders from a
public Internet website and to include on that Internet website a
feature which will allow a member of the public to enter a zip
code or a geographic radius and determine whether a sexual
offender resides within that zip code or radius.

(6) To provide a mechanism for law enforcement entities within
this Commonwealth to obtain information about certain sexual
offenders and to allow law enforcement entities outside this
Commonwealth, including those within the Federal Government,
to obtain current information about certain sexual offenders.

42 Pa.C.S. § 9799.10.

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In arguing that SORNA’s lifetime registration and quarterly reporting

requirements are excessive in light of these non-punitive purposes,

Appellant points to the following passage from Williams II:

[I]f the Act's imprecision is likely to result in individuals being
deemed [SVPs] who in fact do not pose the type of risk to the
community that the General Assembly sought to guard against,
then the Act's provisions could be demonstrated to be excessive
in relation to the remedial purposes served.

Williams II, 832 A.2d at 983.

Appellant interprets this passage from Williams II as suggesting that

similar provisions, now applied to non-SVPs such as himself under SORNA,

are excessive under the presumption that the restrictions placed on SVPs in

Williams II were only justified in light of the greater threat presented by

those individuals. However, Appellant misses a key distinction between his

present argument and the issue being discussed in his quotation from

Williams II. The above-quoted language concerned excessiveness in the

SVP determination process, not a challenge to excessiveness of the

conditions themselves. This is clear when one reads the above-quoted

passage in the full context in which it was made. After concluding that the

restrictions placed on SVPs were not excessive in their own right, the

Williams II Court stated:

Amicus Defender Association of Philadelphia … additionally
maintains that the statute is impermissibly vague, in that it fails
to allow for a sufficiently precise understanding of who is or is
not a sexually violent predator. As [the a]ppellees' void for
vagueness challenge was not addressed by the trial court, and
the matter will be remanded for consideration of this claim, any
imprecision in the Act's provisions must presently be evaluated

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in terms of whether it renders the statute unconstitutionally
punitive through excessiveness. Primarily, if the Act's
imprecision is likely to result in individuals being deemed
sexually violent predators who in fact do not pose the type of
risk to the community that the General Assembly sought to
guard against, then the Act's provisions could be demonstrated
to be excessive in relation to the remedial purposes served. This
could be accomplished in multiple ways. For example, [the
a]ppellees could show that it is not sufficiently clear which
predicate offenses are intended to lead to a sexually violent
predator assessment in the first instance. Alternatively, [the
a]ppellees could establish that the offender assessment process
is so unreliable that there will be little correlation between those
ultimately deemed sexually violent predators and the class of
individuals who pose the greatest risk of predation.

Id.

However, before this passage, when discussing the excessiveness of

the restrictions under Megan’s Law II, the Williams II Court stated: “In

general, and with due deference to the legislative findings and recognition of

the present state of the record, measures requiring registration, notification,

and counseling appear reasonably designed to serve the government's

legitimate goal of enhancing public awareness and ensuring that offenders

do not relapse into harmful behavior.” Williams II, 832 A.2d at 981. With

regard to the more severe restrictions placed upon SVPs, the Williams II

Court concluded that “the duties imposed upon the [SVP] with regard to

registration, verification, and counseling, are not in themselves sufficiently

onerous to qualify as punishment based upon alleged excessiveness.” Id. at

982 (emphasis added). Thus, the Williams II Court found that the most

severe restraints under Megan’s Law II, those placed on SVPs, were not

onerous enough to qualify as punishment independent of the separate issue

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of whether the process by which those greater restraints were imposed was

over-inclusive.

Under SORNA, the Legislature has not sought to justify registration

and reporting requirements for Tier III offenders, such as Appellant, based

on criteria for determining who is or who is not an SVP. Instead, the

Legislature has based Appellant’s registration and reporting requirements

solely on his conviction for a Tier III sexual offense. Thus, the language

Appellant relies upon from Williams II does not support his argument.

Appellant does argue that his inclusion in Tier III under SORNA is

“arbitrary” because his conviction was not subject to the most severe

restriction under the prior version of Megan’s Law. Appellant’s Brief, at 20.

However, it could just as easily be said that his particular offense’s exclusion

under the prior regime was itself arbitrary, and the new categorization has

remedied that prior oversight. In any event, Appellant does not develop this

argument sufficiently for us to consider it proof of excessiveness.

Appellant does not appear to be suggesting that SORNA cannot

differentiate between minor and major sexual offenses for purposes of

determining the severity of Megan’s Law restrictions. Instead, he argues

that his offense, indecent assault, should not be subject to the same

restrictions set forth for other Tier III offenses. However, Appellant’s Tier III

offense, 18 Pa.C.S. § 3126(a)(7), is not a minor sexual offense in our view,

and Appellant does not offer any argument to the contrary, other than to

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present the bare assertion that his offense is substantially different from

more serious sexual crimes, such as rape.

However, the offense of indecent assault encompasses a wide range

of prohibited conduct. See 18 Pa.C.S. § 3126(a)(1)-(8). Indecent assault

can be graded as low as a second-degree misdemeanor, or as high as a

felony of the third degree. See 18 Pa.C.S. § 3126(b). Appellant’s offense

was graded as a first-degree misdemeanor. Thus, although his offense did

not receive the most severe grading for indecent assault, it was not the least

severe grading, either. Indeed, Appellant was convicted of the only form of

indecent assault that could be graded as a felony, 18 Pa.C.S. § 3126(a)(7),

which occurs when an indecent assault is committed against a minor under

the age of 13. See 18 Pa.C.S. § 3126(b)(3). Clearly, even prior to SORNA,

the legislature determined that an indecent assault committed under Section

3126(a)(7) is the most severe form of indecent assault. That Appellant was

not subject to the harshest possible grading of that offense does not alter

this reality.

Moreover, Appellant was convicted of committing an indecent assault

against a mentally challenged 12-year-old. See N.T., 1/31/03, at 12. As

such, Appellant’s attempt to downplay the severity of his offense by

contending that “indecent assault is arbitrarily included within Tier III with

such crimes as rape, involuntary deviate sexual intercourse[,] and

aggravated indecent assault” rings hollow. Only Section 3126(a)(7)-based

indecent assaults are now included in Tier III. See 42 Pa.C.S. §

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9799.14(d)(8). Nevertheless, Appellant is still not subject to the more

severe restrictions imposed on individuals deemed to be SVPs, despite his

implicit suggestion that he is being treated as such under SORNA. See 42

Pa.C.S. § 9799.36(a) (requiring, inter alia, SVPs “to attend at least monthly

counseling sessions” which must be paid for by the SVP, and mandating

monitoring by the State Sexual Offenders Assessment Board); 42 Pa.C.S §

9799.27 (enumerating, inter alia, additional public notification procedures

applicable exclusively to SVPs (and sexually violent delinquent children),

such as direct notification to the SVP’s neighbors and nearby schools, day-

care centers, colleges, and universities); 42 Pa.C.S § 9799.28 (requiring,

inter alia, additional information to be displayed on the Megan’s Law website

for SVPs; including information regarding where a transient SVP “eats,

frequents[,] and engages in leisure activities”).

For these reasons, we conclude, at least as applied to Appellant, the

lifetime registration and quarterly, in-person reporting requirements at issue

are not excessive in light of SORNA’s non-punitive legislative purposes.

Balancing of factors

In sum, we conclude that the first, second, and fifth Mendoza–

Martinez factors weigh in favor of finding SORNA’s effects to be punitive.

However, we assign diminished weight to the second factor because

SORNA’s effects are more akin to probation than to incarceration, and, in

accordance with Smith, we assign minimal value to the fifth factor. By

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contrast, we conclude that the third, fourth, sixth, and seventh Mendoza–

Martinez factors all weigh against finding SORNA’s effects to be punitive.

We also follow Smith’s direction that the sixth factor is of significant weight,

and that the third factor is not.

Given that the balance of these factors weighs against finding SORNA’s

effects to be punitive, we are constrained to conclude that Appellant has not

demonstrated by the “clearest proof” that SORNA’s effects are punitive,

despite the Legislature’s non-punitive intent. Lehman, 839 A.2d at 272.

Accordingly, we hold that SORNA’s retroactive imposition of lifetime

registration and quarterly, in-person reporting requirements on Appellant

does not violate the ex post facto clauses of the United States and

Pennsylvania Constitutions.

Order affirmed.

Judge Shogan joins this opinion.

Judge Platt concurs in the result of this opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2016

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