J-S35041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL ZOOK :
:
Appellant : No. 1354 MDA 2017
Appeal from the Judgment of Sentence July 18, 2017
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004634-2016
BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED JULY 06, 2018
Daniel Zook (Appellant) appeals from the judgment of sentence imposed
following his guilty plea to indecent assault and unlawful contact with a minor.1
For the reasons that follow, we vacate Appellant’s judgment of sentence as it
pertains to his registration under SORNA.
On July 20, 2016, Appellant was charged with one count of indecent
assault of a person less than 13 years of age and one count of unlawful contact
with a minor. These charges stem from a series of sexual assaults that
occurred in 2005. At the time offenses, Appellant was 17 years old and the
victim was 11 years old. The victim did not disclose the criminal conduct until
2016, at which time Appellant was 28 years old.
____________________________________________
1 18 Pa.C.S.A. §§ 3126(a)(7), 6318(a)(1).
J-S35041-18
On March 23, 2017, Appellant entered a negotiated guilty plea on all
charges. On July 18, 2017, pursuant to the terms of the negotiated plea
agreement, the trial court sentenced Appellant to five years of probation. The
trial court classified Appellant as a Tier III sexual offender pursuant to
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S.A. §§ 9799.10-9799.42, which required Appellant to register as a
sexual offender for the remainder of his life.
On July 27, 2017, Appellant filed a post-sentence motion in which he
sought exclusion from SORNA’s lifetime registration and reporting
requirements. On August 8, 2017, the trial court denied Appellant’s motion.
On August 29, 2017, Appellant filed a timely notice of appeal to this Court.
The same day, the trial court ordered Appellant to file a concise statement of
the errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. On September 19, 2017,
Appellant timely filed his Rule 1925(b) statement.
On appeal, Appellant presents the following issue for review:
WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
POST SENTENCE MOTION TO STRIKE THE IMPOSITION OF THE
REGISTRATION AND VERIFICATION REQUIREMENTS UNDER 42
PA.C.S.A. 9979.10, ET SEQ.
Appellant’s Brief at 6.
Appellant argues that he should not be subject to SORNA’s registration
requirements, which became effective in December 2012 and were not in
effect at the time he committed his crimes in 2005. Although Appellant
-2-
J-S35041-18
acknowledges that SORNA was in effect when he pled guilty to those crimes,
he asserts that application of SORNA to his case violates the ex post facto
clause of the Pennsylvania Constitution under Commonwealth v. Muniz, 164
A.2d 1189 (Pa. 2017). Appellant further asserts that SORNA is inapplicable
to him because he was a minor at the time he committed his offenses.
Because this issue presents a question of law, our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Lee, 935 A.2d
865, 876 (Pa. 2007).
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA),
42 Pa.C.S.A. §§ 9799.10-9799.42, establishes a statewide registry of sexual
offenders. 42 Pa.C.S.A. § 9799.16(a). On December 20, 2012, SORNA
replaced the then-existing sexual offender registration statutory provisions,
commonly known as Megan’s Law III, 42 Pa.C.S.A. §§ 9791-9799.9 (expired).
The General Assembly implemented SORNA to bring Pennsylvania’s sexual
offender reporting system in line with the federal mandates of the federal
Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 42
U.S.C. §§ 16901–16991, which requires a tier-based registration and
notification scheme. Muniz, 164 A.3d at 1203-04.
For purposes of registration, SORNA classifies sexual offenders into the
following three tiers:
Those convicted of Tier I offenses are subject to registration for a
period of fifteen years and are required to verify their registration
information and be photographed, in person at an approved
registration site, annually. 42 Pa.C.S.[A.] § 9799.15(a)(1),
-3-
J-S35041-18
(e)(1). Those convicted of Tier II offenses are subject to
registration for a period of twenty-five years and are required to
verify their registration information and be photographed, in
person at an approved registration site, semi-annually. 42
Pa.C.S.[A.] § 9799.15(a)(2), (e)(2).
Those convicted of Tier III offenses are subject to lifetime
registration and are required to verify their registration
information and be photographed, in person at an approved
registration site, quarterly. 42 Pa.C.S.[A.] § 9799.15(a)(3),
(e)(3).
Id. at 1206-1207 (footnotes omitted).
The offenses that constitute Tier I, II, and III offenses are set forth in
42 Pa.C.S.A. § 9799.14(b)-(d). Here, there is no dispute that Appellant is a
Tier III sexual offender due to his conviction of indecent assault of a person
less than 13 years of age. See 42 Pa.C.S.A. § 9799.14(d)(8). As a Tier III
offender under SORNA, Appellant is subject to lifetime registration and
quarterly reporting requirements. See 42 Pa.C.S.A. § 9799.15(a)(3), (e)(3).
Because he committed these offenses prior to when SORNA became effective,
Appellant argues that under Muniz, the application of SORNA to his sentence
violates the ex post facto clause of the Pennsylvania Constitution.
In Muniz, the defendant was convicted in February 2007 of two counts
of indecent assault of a person less than 13 years of age, with sentencing
scheduled for May 2007. Id. at 1193. At the time of his conviction, Muniz
“would have been ordered to register as a sex offender with the Pennsylvania
State Police for a period of ten years pursuant to then-effective Megan’s Law
III.” Id. at 1192 (citing 42 Pa.C.S.A. § 9795.1 (expired)). Muniz, however,
-4-
J-S35041-18
never appeared for sentencing and absconded until he was later apprehended
in September 2014. Id. When Muniz was finally sentenced in 2014, the trial
court ordered him to comply with the lifetime registration provisions under the
then-effective SORNA, pursuant to which he was a Tier III sexual offender.
Id. Muniz appealed.
On appeal to our Supreme Court, five of the six participating justices
held that even though the General Assembly identified SORNA’s enhanced
registration provisions as non-punitive, they nonetheless constituted
punishment. Id. at 1218. The Supreme Court further determined that the
retroactive application of SORNA’s registration requirements to Muniz violated
the ex post facto clause of the Pennsylvania Constitution. Id. at 1218-19.
Our Supreme Court explained:
Critical to relief under the ex post facto clause is not an individual’s
right to less punishment, but the lack of fair notice and
governmental restraint when the legislature increases punishment
beyond what was prescribed when the crime was consummated.
Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),]
Chief Justice Chase set out four categories of laws that violate
such prohibitions:
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 offense,
in order to convict the offender.
-5-
J-S35041-18
Furthermore, two critical elements must be met for a criminal or
penal law to be deemed ex post facto: it must be retrospective,
that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it. As such,
[o]nly those laws which disadvantage a defendant and fall within
a Calder category are ex post facto laws and constitutionally
infirm. The ex post facto clauses of the United States and
Pennsylvania Constitutions are implicated here because a holding
rendering the effects of SORNA’s registration requirements
punitive would place the statute into the third Calder category:
application of the statute would inflict greater punishment on
appellant than the law in effect at the time he committed his
crimes.
Id. at 1195-1196 (quotation marks omitted, some citations omitted or
modified).
Because Muniz committed his crimes prior to the existence of SORNA,
the Supreme Court determined that application of that statute would inflict
greater punishment than the law (Megan’s Law III) in effect at the time he
committed his crimes. Consequently, our Supreme Court concluded that the
retroactive application of SORNA’s registration and reporting requirements to
Muniz violated the ex post facto clauses of the United States and Pennsylvania
Constitutions. Id. at 1223.
Like Muniz, this case implicates the ex post facto clause of the
Pennsylvania Constitution because application of SORNA’s registration
requirements would impose greater punishment on Appellant than the law in
effect at the time he committed his crimes. See id. at 1195-1196. Appellant
committed the crimes of indecent assault of a person less than 13 years of
age and unlawful contact with a minor in 2005. At that time, Megan’s Law III
-6-
J-S35041-18
was in effect. On December 20, 2011, the General Assembly enacted SORNA,
which became effective on December 20, 2012, prior to Appellant’s guilty plea
and sentencing, but well after he committed the offenses. Although SORNA
increased the registration period for some crimes, Appellant, based on his
convictions of indecent assault of a person less than 13 years of age and
unlawful contact with a minor, would be subject to lifetime registration under
either SORNA or Megan’s Law III. See 42 Pa.C.S.A §§ 9795.1(a)(1) and
(b)(1) (expired), 9799.14(d)(8), 9799.15(a)(3). While application of SORNA
would not alter Appellant’s registration period, it would add quarterly in-
person reporting requirements and the posting of his personal information on
the Pennsylvania State Police website. See Muniz, 164 A.3d at 1210-11. As
our Supreme Court recognized in Muniz, the increased registration period and
additional reporting requirements constitute a greater punishment than what
Megan’s Law would have imposed and consequently, their retroactive
application violates the ex post facto clause of the Pennsylvania Constitution.
Id. at 1193-1196, 1216.
The Commonwealth contends that Muniz is inapplicable to this case
because the defendant in Muniz was convicted prior to when SORNA became
effective, and sentenced after, whereas Appellant was not convicted of his
crimes until after SORNA became effective. We reject this argument. While
the Commonwealth is correct that the defendant in Muniz was convicted prior
to when SORNA became effective, its argument disregards our Supreme
-7-
J-S35041-18
Court’s analysis of the constitutional ex post facto prohibitions. The Supreme
Court made clear that “the ex post facto clauses of the United States and
Pennsylvania Constitutions are implicated” by SORNA where “application of
the statute would inflict greater punishment on appellant than the law in effect
at the time he committed his crimes.” Id. at 1196. This is what happened in
Appellant’s case.
Appellant pled guilty after SORNA became effective, and the trial court
retroactively imposed the new registration requirements and other provisions
of SORNA for crimes he committed when Megan’s Law III was in effect.
Because Appellant committed his crimes at a time when registration and
reporting requirements were less burdensome and stringent, we conclude that
the retroactive application of SORNA to Appellant violated the ex post facto
clause of the Pennsylvania constitution. See Muniz, 164 A.3d at 1192-1196,
1223. Accordingly, we vacate Appellant’s judgment of sentence to the extent
it requires Appellant to register as a sexual offender pursuant to SORNA.2
Because we have determined that application of SORNA to Appellant’s case is
unconstitutional under the Pennsylvania ex post facto clause, we need not
address his argument regarding whether SORNA is applicable to him as a
juvenile offender.
____________________________________________
2 We note that this does not preclude Appellant from having to register as a
sexual offender under Megan’s Law III.
-8-
J-S35041-18
Judgment of sentence vacated in part. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/06/2018
-9-