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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES HUNTER SPENCE
Appellant No. 1859 MDA 2015
Appeal from the Order October 5, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-MD-0001832-2015
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED JULY 05, 2016
Appellant, James Hunter Spence, appeals from the October 5, 2015
order denying his Petition to Terminate Sexual Offender Registration. We
affirm.
The trial court summarized the history of this case as follows.
[Appellant] pleaded guilty to Statutory Rape in the
Commonwealth of Virginia. As part of his negotiated plea
agreement[,] he was sentenced to 90 days[’] incarceration and
was to register as a sex offender for a period of 10 years.
[Appellant’s] registration period began on October 29, 2003, and
was set to expire on October 29, 2013. Shortly after his release
from incarceration in Virginia, [Appellant] moved to the
Commonwealth of Pennsylvania. Upon moving to York,
Pennsylvania, [Appellant] submitted the proper forms to
Interstate Parole Services in order to have his supervision
transferred to Pennsylvania. Approximately a month after
moving to Pennsylvania, [Appellant] received notice from
Virginia that he was to submit a Sexual Offender Registration
Notification to Pennsylvania authorities. [Appellant] did so on
December 10, 2003.
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On December 3, 2012, [Appellant] received notice that
there were significant changes to the law regarding sexual
offender registration periods. On April 22, 2013, [Appellant] was
designated as a Tier 3 sexual offender, and he was informed that
instead of having to register for 10 years, he was now required
to register for life pursuant to 42 Pa.C.S.A. § 9799.4.
On June 2, 2015, [Appellant], through counsel, filed a
motion requesting that [the lower court] terminate [his]
registration requirements. [Appellant] argued that the
Commonwealth’s retroactive application of SORNA to the Petition
violated the ex post facto clause of both the federal and state
constitutions. Upon receiving [Appellant’s] motion [the court]
scheduled a hearing for August 6, 2015. …
Trial Court Opinion, 10/5/15 at 1-2. Following the hearing, the trial court
ordered the parties to submit briefs in support of their respective positions.
The trial court subsequently entered an opinion and order denying
Appellant’s motion to terminate sexual offender registration. This timely
appeal followed.
Appellant raises this issue for our review.
Whether the honorable trial court erred in denying the
Appellant’s petition in that the effects of SORNA violated the ex
post facto clause in that the effects are not collateral and are
punitive and therefore may not be applied retroactively.
Appellant’s Brief at 4 (italics added and unnecessary capitalization omitted).
Initially, we note this issue presents a question of law, and therefore,
our standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Britton, 134 A.3d 83, 87 (Pa. Super. 2016).
This Court previously addressed whether SORNA constitutes an ex post
facto law under the federal constitution in Commonwealth v. Perez, 97
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A.3d 747 (Pa. Super. 2014). We recently summarized our analysis in Perez
as follows.
We observed that such a challenge must be evaluated under a
two-step test, which was established by the U.S. Supreme Court
in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164
(2003). Perez, 97 A.3d at 751 (indicating that under Smith the
two-step test requires the court to determine (1) whether the
legislature intended the statutory scheme to be punitive, and (2)
if not, whether the statutory scheme is so punitive in either its
purpose or effect so as to negate the legislature's intention).
With regard to the first step under Smith, we held the
legislature specifically indicated that SORNA “shall not be
construed as punitive[,]” and, therefore, the legislative intent in
enacting the law was not to impose punishment. Perez, 97 A.3d
at 751 (citing 42 Pa.C.S.A. § 9799.11(b)(2) (emphasis
omitted)). Turning to the second step under Smith, this Court
addressed whether SORNA constitutes “punishment” under the
multi-factor test articulated in Mendoza–Martinez. After a
thorough review, we concluded SORNA does not constitute
“punishment.” Perez, supra. Specifically upon balancing the
Mendoza–Martinez factors, this Court held the following:
Based on all of the[ ] considerations, we ultimately
conclude that [the appellant] has not shown by the
“clearest proof” that the effects of SORNA are sufficiently
punitive to overcome the General Assembly's preferred
categorization. Therefore, we further conclude that the
retroactive application of SORNA to [the appellant] does
not violate the Ex Post Facto Clause of the Federal
Constitution.
Britton, 134 A.3d at 87-88 (citing Perez, 97 A.3d at 757).
Here, Appellant does not actually refute the analysis in Perez, so
much as he contends that the decision was wrongly decided. We find no
reason to revisit the sound reasoning of that decision. In any event, absent
the existence of contrary, intervening United States or Pennsylvania
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Supreme Court precedent, Superior Court panels are bound by prior panel
decisions of the Superior Court.1 See Commonwealth v. Prout, 814 A.2d
693, 695 n. 2 (Pa. Super. 2002) (per curiam). Accordingly, based on our
decision in Perez, we find Appellant is not entitled to relief on his federal ex
post facto claim.2
Order affirmed.
____________________________________________
1
We note that our Supreme Court has granted allocatur in Commonwealth
v. Gilbert, --- A.3d ---, 2016 WL 1615797 (Pa., filed April 22, 2016), to
determine, inter alia, whether SORNA violates the Ex Post Facto Clause of
the United States and Pennsylvania Constitutions. While that decision is
pending, Perez remains controlling.
2
Although Appellant alludes in his brief to the fact that the both the United
States and Pennsylvania Constitutions afford separate bases for proscribing
ex post facto laws, see Appellant’s Brief at 16, he does not set forth a
separate analysis that retroactive application of SORNA violates the
Pennsylvania Constitution’s Ex Post Facto Clause. We therefore need not
address this averment further.
We further note that although Appellant averred in his Petition to
Terminate Sexual Offender Registration that the lifetime registration
requirement under SORNA constituted a violation of the plea agreement
negotiated in Virginia, see Petition, 6/2/15 at ¶ 20, he does not develop this
argument on appeal. We therefore presume Appellant has abandoned this
issue. See Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super.
2013) (finding undeveloped claim to be waived).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2016
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