J. A10004/17
2017 PA Super 228
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
SHAWN CHRISTOPHER WILLIAMS, :
:
APPELLANT :
: No. 2191 EDA 2016
Appeal from the Judgment of Sentence June 24, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003673-2015
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.: FILED JULY 18, 2017
Appellant, Shawn Christopher Williams, appeals from the June 24,
2016 Judgment of Sentence entered in the Northampton County Court of
Common Pleas. Appellant was convicted of three offenses arising from his
failure to comply with the registration and verification requirements of the
Sexual Offender Registration and Notification Act (“SORNA”). On appeal, he
challenges the penalty provisions enacted to enforce SORNA, averring that
they violate the Ex Post Facto Clauses of the United States and Pennsylvania
Constitutions. After careful review, we find that the penalty provisions of
SORNA do not themselves violate ex post facto protections because
Appellant failed to register and committed the instant offenses more than
two years after SORNA made it a crime to fail to register. Moreover,
although Appellant urges us to reconsider whether the registration
requirements of SORNA are punitive, with a greater focus on the penalty
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provisions, we are bound by our recent holding in Commonwealth v.
Woodruff, 135 A.3d 1045 (Pa. Super. 2016). We, therefore, affirm.
We will only summarize the facts of the case briefly because our
decision is based upon a matter of law and not an interpretation of the
facts.1 On December 4, 1998, a jury found Appellant guilty of Sexual
Assault, graded as a felony of the second degree. The trial court sentenced
Appellant to 4 to 10 years of imprisonment.
Following Appellant’s sentencing, the General Assembly passed
Megan’s Law II, which required Appellant to register as a sex offender for
ten years. Our General Assembly subsequently passed two more versions of
Megan’s Law, the most recent being SORNA.2 Under SORNA, Appellant is
now deemed a Tier III offender and subject to a lifetime registration
requirement.
1
The Certified Record for Appellant’s underlying conviction, which triggered
his registration requirement under SORNA, is not before this Court. The
facts discussed infra are as gleaned from the testimony adduced at trial in
the instant case, as well as the facts as agreed to by the Commonwealth and
Appellant in their respective Briefs.
2
In 2003, our Supreme Court struck down a portion of Megan’s Law II in
Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (Williams II). In
response, in 2004 the General Assembly passed Megan’s Law III, which our
Supreme Court struck down in Commonwealth v. Neiman, 84 A.3d 603
(Pa. 2013), as violative of the single subject rule of Article III, Section 3 of
the Pennsylvania Constitution.
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In late 2013, and again in late 2015, Appellant violated SORNA’s
registration requirements. The 2015 violation is the subject of the instant
appeal.3
On October 25, 2015, Appellant was arrested and charged with three
counts related to his failure to complete his quarterly registration
requirement with the Pennsylvania State Police: Failure to Register, Failure
to Verify Address, and Failure to File Accurate Registration Information.4
Appellant elected to proceed to a jury trial, and on June 1, 2016, the jury
convicted Appellant of all counts. On June 24, 2016, the trial court
sentenced Appellant to three consecutive terms of 33 to 120 months in
prison.
Appellant filed a timely Notice of Appeal. Appellant and the trial court
both complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue: “[i]s SORNA
unconstitutional because the penalties imposed for failing to comply are
punitive and therefore violate ex post facto laws?” Appellant’s Brief at 4.
3
On June 2, 2014, Appellant pled nolo contendere to charges that he failed
to register as required in late 2013. The trial court sentenced Appellant to
five years of probation.
4
18 Pa.C.S. §§ 4915.1(a)(1), 4915.1(a)(2), and 4915.1(a)(3), respectively.
As Appellant was subject to a lifetime registration requirement and had
previously pled nolo contendere to charges that he failed to register, each of
the three charges were graded as first-degree felonies. The Commonwealth
later amended the Information to change the grading of all charges to
second-degree felonies.
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An ex post facto challenge to application of a statute presents a
question of law, and our standard of review is de novo. Commonwealth v.
Perez, 97 A.3d 747, 750 (Pa. Super. 2014).
As a prefatory matter, we note that Appellant challenges the
application of the statute under the Constitutions of both this
Commonwealth and the United States. As our Supreme Court recently
stated in Commonwealth v. Rose, 127 A.3d 794 (Pa. 2015), the Ex Post
Facto Clauses in the respective documents are virtually identical and the
standards applied are comparable. Id. at 798 n.11. The federal ex post
facto prohibition forbids the legislature, inter alia, from enacting any law that
imposes a punishment for act that was legal when the defendant committed
the act:
[The Ex Post Facto Clause] forbids the Congress and the
States to enact any law “which imposes a punishment for
an act which was not punishable at the time it was
committed; or imposes additional punishment to that then
prescribed.” Through this prohibition, the Framers sought to
assure that legislative Acts give fair warning of their effect and
permit individuals to rely on their meaning until explicitly
changed. The ban also restricts governmental power by
restraining arbitrary and potentially vindictive legislation.
Rose, 127 A.3d at 798 (citations omitted) (emphasis added).
Sex-offender registration statutes can generally be divided into two
main components: the registration and verification requirements, and the
punishments imposed for failing to comply with the registration and
verification requirements. See generally Williams II (separately
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analyzing the registration requirements and enforcement provisions of
Megan’s Law II).
The constitutionality of registration requirements for sex offenders, as
applied retroactively, is well-trod ground in Pennsylvania. Courts have
routinely held that registration and reporting requirements are part of a civil
regulatory scheme and, therefore, may be applied retroactively without
running afoul of the Ex Post Facto Clause. See Williams II (finding the
registration, notification, and counseling requirements of Megan’s Law II
non-punitive); Woodruff, supra at 1061 (holding that SORNA’s lifetime
registration requirements are non-punitive and, therefore, do not violate the
Ex Post Facto Clause when applied retroactively). See also
Commonwealth v. Giannantonio, 114 A.3d 429 (Pa. Super. 2015)
(finding SORNA registration requirements are non-punitive collateral
consequence of a conviction, and do not violate the Ex Post Facto Clause
when applied retroactively); Perez, supra at 759 (same).
Appellant asks this Court to “ignore” the registration requirements of
SORNA, and instead focus on the penalty provisions of SORNA and whether
they violate the Ex Post Facto Clause, an issue of first impression.
The General Assembly enacted SORNA on December 20, 2011. The
enforcement provision, codified in 18 Pa.C.S. § 4915.1, makes it a crime for
individuals subject to the registration requirements to knowingly fail to
register as required, verify their addresses, or provide accurate information
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to the Pennsylvania State Police. The registration requirements and
enforcement provision both became effective on December 20, 2012.
Two years later, on August 23, 2014, November 23, 2014, and again
on February 23, 2015, Appellant reported a false place of employment to the
Pennsylvania State Police. Moreover, Appellant failed to notify the
Pennsylvania State Police of a change in address, and failed to complete his
quarterly registration in May of 2015. On July 21, 2015, the Commonwealth
charged Appellant with three counts of failing to comply with SORNA’s
registration requirements.
Even though the penalty provisions of SORNA are punitive, they do not
violate the Ex Post Facto Clause. The Ex Post Facto Clause only prohibits
“punishment for an act which was not punishable at the time it was
committed[.]” Rose, 127 A.3d at 798. It does not prohibit punishment for
acts that the legislature determined to be illegal at the time the defendant
committed the act.
In this case, Appellant failed to comply with the registration
requirements after the registration requirements became effective. In other
words, the legislature enacted SORNA in 2011, and it became effective in
2012. Appellant violated SORNA’s registration requirements in 2014 and
2015. Thus, the legislature had already criminalized the failure to register
when Appellant failed to do so. Therefore, the penalty provisions of SORNA
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do not violate the Ex Post Facto Clause, regardless of whether or not they
are punitive.
Appellant also urges this Court to reconsider whether the registration
requirements of SORNA, which do apply retroactively, violate the Ex Post
Facto Clause. Appellant avers that previous courts analyzing the issue have
ignored the enforcement provisions when considering whether the
registration requirements are punitive. Appellant’s Brief at 12.
Although we agree that earlier courts have not specifically considered
the severity of the specific sentencing schemes for failing to register, we are
bound by earlier decisions that have held that the registration requirements
do not violate the Ex Post Facto Clauses. We do, however, encourage a
reviewing court in the future to consider the severity of the the entire
sentencing scheme for failing to register.5
5
For example, the Sentencing Guidelines assigns the failure to comply with
SORNA with Offense Gravity Scores of 6, 8, or 10. Similarly harsh is the Pa.
Code that grades a first offense for failure to meet the quarterly reporting
requirements as a second-degree felony and a second or subsequent offense
as a first degree felony with a maximum sentence of life in prison. 204 Pa.
Code § 303.15. These Offense Gravity Scores are in line with those
assigned to violent crimes that result in bodily injury or death. For example,
an individual who violates SORNA’s civil regulatory scheme will be given the
same Offense Gravity Score as a defendant who commits: Arson
Endangering Person, creating a danger of death causing bodily injury (10);
all forms of Kidnapping (10); Robbery with threats to cause serious bodily
injury (10); Aggravated Assault causing bodily injury with a deadly weapon
(8); Involuntary Manslaughter (6); Involuntary Manslaughter, victim less
than 12-years-old (8); Aggravated Assault, using noxious gas or an
electronic incapacitation device against an officer (6); and Robbery by force,
drug related (6). Id.
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However, as discussed supra, this Court has already held that the
registration requirements of SORNA, when applied retroactively, are not
punitive and, therefore, do not violate the Ex Post Facto Clause. See, e.g.,
Woodruff, supra at 1061. Our Supreme Court has not yet called into
question these prior rulings. Therefore, we are bound by the holdings of
prior panels of this Court. See Commonwealth v. Pepe, 897 A.2d 463,
465 (Pa. Super. 2006) (“It is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court, except in circumstances
where intervening authority by our Supreme Court calls into question a
previous decision of this Court.” (internal citation omitted)).
Having found that the penalty provisions of SORNA do not violate the
Ex Post Facto Clause, and precluded from reconsidering whether the
registration requirements are punitive, we affirm the Judgment of Sentence.
Judgment of Sentence affirmed.
In fact, in certain cases a registered sex offender could commit a new sexual
offense and face an Offense Gravity Score comparable to that for failing to
comply with the registration requirements. See id. (Aggravated Indecent
Assault by forcible compulsion (10); Aggravated Indecent Assault, threat of
forcible compulsion (10); Aggravated Indecent Assault, victim less than 13-
years-old (10); Statutory Sexual Assault, victim less than 16-years-old (7,
8, or 9); Possession of Child Pornography (6, 7, 8, 9, or 10); Institutional
Sexual Assault, including Institutional Sexual Assault of a minor victim (6)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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