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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD ANTHONY ZIFF :
:
Appellant : No. 1154 MDA 2021
Appeal from the Judgment of Sentence Entered August 10, 2021
In the Court of Common Pleas of Schuylkill County
Criminal Division at No CP-54-CR-0000883-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED APRIL 01, 2022
Richard Anthony Ziff (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of two counts of failure to comply with the
requirements of Pennsylvania’s Sexual Offender Registration and Notification
Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.42. The jury found Appellant
guilty of failing to register with the Pennsylvania State Police, 18 Pa.C.S.A. §
4915.2(a)(1), and failing to provide accurate registration information, 18
Pa.C.S.A. § 4915.2(a)(3). Relying on the Pennsylvania Supreme Court’s
recent decision in Commonwealth v. Santana, 266 A.3d 528 (Pa. 2021),
Appellant argues his convictions violate the ex post facto clauses of the United
States and Pennsylvania Constitutions. After careful consideration, we agree.
The trial court explained,
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* Retired Senior Judge assigned to the Superior Court.
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[Appellant] was charged with one count of Failure to Register with
the Pennsylvania State Police; 18 Pa.C.S. § 4915.2(a)(1), and one
count of Failure to Provide Accurate Registration Information, 18
Pa.C.S. § 4915.2(a)(3). On May 27, 1994, [Appellant] pled guilty
in the New Jersey Superior Court . . . to Sexual Assault of a Minor,
pursuant to N.J.S.A. 2C:14-2b, for an offense that was committed
by [Appellant] on or about January 1, 1991. The New Jersey
Superior Court sentenced [Appellant] to eight (8) years’
incarceration in a New Jersey state prison. [Appellant] committed
his New Jersey offense prior to the enactment of [SORNA].
However, [Appellant] was later required to register in New Jersey
as a sexual offender for a lifetime period [in accordance with New
Jersey law].
On or about May 8, 2018, [Appellant] relocated to
Shenandoah, Pennsylvania, from the State of Florida. Prior to the
relocation, [Appellant] was required to register as a sexual
offender in Florida. [Appellant] completed his initial registration
with the Pennsylvania State Police (“PSP”) on May 17, 2018. Since
that time, [Appellant] executed additional PSP Sexual Offender
Registration forms, in which he acknowledged that he was
required to register as a sexual offender, that he had to report
new employment within three (3) business days, and that failure
to provide complete and accurate information when registering
would subject him to arrest and felony prosecution pursuant to
pursuant to 18 Pa.C.S. § 4915.1 and 4915.2. On or about May
16, 2020, [Appellant] submitted a “Change of Information Update
Form – Covid-19” to the PSP, in which he reported that he became
employed by Lee’s Oriental Gourmet Foods, Inc., . . . on April 1,
2019. As a result, the PSP Megan’s Law Section contacted the
Shenandoah Police Department to request that an investigation
be initiated to determine if [Appellant] had failed to comply with
SORNA’s reporting requirements. Officer Leo Luciani of the
Shenandoah Police Department investigated [Appellant’s]
unreported employment, and as part of this investigation, he
obtained employment records from Lee’s Oriental Gourmet Foods,
Inc. These records demonstrate that [Appellant] began
employment at Lee’s Oriental Gourmet Foods, Inc. on February
20, 2020. [Appellant’s] employment ended on May 21, 2020.
After a jury trial was held on June 14, 2021, [Appellant] was
found guilty of both offenses. On August 10, 2021, [the trial
c]ourt sentenced [Appellant] to six (6) to twelve (12) years’
incarceration in a State Correctional Institution on Count 1 –
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Failure to Register with PSP. [The court] imposed a concurrent
sentence of 6 to 12 years’ incarceration on Count 2 – Failure to
Provide Accurate Registration Information.
Trial Court Opinion, 10/20/21, at 1-2 (footnotes omitted).
On August 19, 2021, Appellant filed a timely post-sentence motion
seeking to vacate his sentence. Appellant argued that retroactive application
of SORNA’s registration requirements in this case violated the ex post facto
clauses of the United States and Pennsylvania Constitutions. Accordingly,
Appellant asserted that he was not subject to SORNA, and his 2021 convictions
were improper. The trial court denied the motion, relying on the Pennsylvania
Supreme Court’s decisions in Commonwealth v. Lacombe, 234 A.3d 602
(Pa. 2020), and T.S. v. Pennsylvania State Police, 241 A.3d 1091 (Pa.
2020). See Trial Court Opinion, 10/20/21, at 7. In Lacombe, the Court
determined Subchapter I of SORNA (requiring registration by sex offenders
convicted after April 22, 1996 and before December 20, 2012) was not
punitive and constitutional. In T.S., the Court reversed the order of the
Commonwealth Court based on Lacombe.
Here, although Appellant was convicted in 1994 — before April 22, 1996
— the trial court concluded:
In Lacombe, our [Supreme] Court already determined that
Subchapter I [of SORNA] does not constitute criminal punishment
and is not an ex post facto law. Additionally, through Court Order,
our Supreme Court reversed the Commonwealth Court’s
determination in [T.S.] that the application of Subchapter I to
individuals who committed, were convicted of, and were
sentenced on sexual offenses prior to the existence of a
registration or notification requirement was punitive and an ex
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post facto law. As such, we find that the retroactive application
of Subchapter I to [Appellant] is not unconstitutional.
Id. at 7-8 (citations omitted).
Appellant timely appealed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925. Appellant presents the following question for
review:
Are the registration requirements of SORNA applicable to a
defendant who was convicted of a sexual offense prior to the
enactment of Megan’s Law or any sexual offender registration
requirement?
Appellant’s Brief at 4.
As both parties recognize, the Pennsylvania Supreme Court decided
Santana during the pendency of this appeal.1 “[A] party whose case is
pending on direct appeal is entitled to the benefit of changes in the law which
occur before the judgment becomes final.” Commonwealth v. Chesney,
196 A.3d 253, 257 (Pa. Super. 2018) (citations omitted). Notably, the
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1However, prior to Appellant’s trial and sentencing, the Pennsylvania Supreme
Court, on April 12, 2021, granted allowance of appeal of this Court’s en banc
decision in Santana, discussed infra, where we determined that the defendant
was “impermissibly penalized . . . under SORNA’s registration requirement for
a crime that pre-dated SORNA by 30 years.” Commonwealth v. Santana,
241 A.3d 660, 670 (Pa. Super. 2020) (en banc). We concluded that the ex
post facto clause “forbids this state action[, and the defendant’s] registration
requirement under SORNA was an after-the-fact punishment and, therefore,
unconstitutional.” Id. We held the defendant “had no duty to comply with
th[e registration] requirements and his conviction for ignoring them, under 18
Pa.C.S.A. § 4915.1(a)(3), was a manifest injustice and must be overturned.”
Id.
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Commonwealth states it “is constrained to recognize that an ex post facto
violation did occur in the instant matter.” Commonwealth Brief at 5.
The Pennsylvania Supreme Court decided Santana on December 22,
2021. The Court held that its decision in Commonwealth v. Muniz, 164
A.3d 1189, 1193 (Pa. 2017) — finding SORNA to be an ex post facto
constitutional violation when imposed retroactively to sex offenders who
committed offenses prior to SORNA’s enactment — applied “with equal
force to offenders whose triggering offenses occurred in another state.”
Santana, 266 A.3d at 529–30.
In 1983, the defendant in Santana was convicted of rape in New York.
At that time, neither Pennsylvania nor New York had a sexual offender
registration law. Id. at 530.
However, as time passed—and prompted by federal law—states
began enacting statutory schemes aimed at monitoring sexual
offenders by requiring them to comply with strict registration and
notification requirements. In 1995, New York passed the “Sex
Offender Registration Act” (“SORA”), which became effective in
January 1996. Pennsylvania followed suit, enacting the first
version of Megan’s Law in 1995.
Like Megan’s Law and SORNA, New York’s SORA applied
retroactively, enveloping, among others, those offenders who had
been convicted of certain triggering offenses (including rape) and
who were on probation or parole at the time of its enactment.
[The defendant] met these criteria. Because [he] was designated
a level three offender, he was required to comply with SORA’s
terms and conditions for the remainder of his life.
Santana, 266 A.3d at 530–31 (emphasis added).
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In 2015, the defendant relocated from New York to Pennsylvania and
immediately complied with SORNA. Eventually, PSP learned that he failed to
report certain contact and employment information. Id. at 531. As a result,
the Commonwealth charged the defendant with failure to provide accurate
information under 18 Pa.C.S.A. § 4915.1(a)(3), to which he pled guilty. Id.
The day after the court sentenced the defendant, the Pennsylvania Supreme
Court decided Muniz. The defendant then filed a motion to withdraw his plea,
arguing that retroactive application of SORNA to his 1983 New York conviction
was unconstitutional. The trial court denied the motion and the defendant
appealed.
An en banc panel of this Court reversed. We concluded that the trial
court improperly focused on the “locality and not chronology” of SORNA’s
registration requirement. Commonwealth v. Santana, 241 A.3d 660, 662
(Pa. Super. 2020) (en banc). We stated that under Muniz, “Pennsylvania
could not apply SORNA to [the defendant] if he had committed his 1983 crime
in this Commonwealth. Likewise, it may not apply SORNA to the 1983 crime
he committed outside this Commonwealth.” Id. at 669. The ex post facto
clauses of both of the United States and Pennsylvania Constitutions “do not
focus on where crimes occurred; they focus on when crimes occurred.” Id.
(emphasis in original). We reasoned that an individual “has as much of a
constitutional right to be free from ex post facto laws that penalize him for
pre-existing crimes that occurred outside this Commonwealth as he does from
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ex post facto laws that penalize him for pre-existing crimes that occurred
inside this Commonwealth.” Id.
On April 21, 2021, the Pennsylvania Supreme Court granted the
Commonwealth’s petition for allowance of appeal. In affirming this Court, the
Supreme Court explained the framework for determining whether a law is ex
post facto:
First, a court must ask when the initial offense was committed.
Second, the court must ask whether the challenged law was
enacted after the occurrence of the triggering offense and was
then applied retroactively. If so, the final question is whether that
retroactive law is punitive or increases the penalty for the existing
crime.
Santana, 266 A.3d at 537. Regarding “a law that changes the punishment,
and inflicts a greater punishment, than the law annexed to the crime,” the
Supreme Court observed that the “relevant comparative date” is “the date
upon which the offender committed the offense.” Id. (citing Calder v. Bull,
3 U.S. 386, 390, 1 L. Ed. 648 (1798)).
The Supreme Court further opined,
[o]bviously, SORNA is being applied retroactively. All that remains
is the question of whether SORNA is punitive. In 1983, there were
no sexual offender registration laws in New York or in
Pennsylvania, and, thus, [the defendant] faced no punishment
beyond his imposed sentence. The same cannot be said for 2015.
Because rape is classified under SORNA as a Tier III offense,
Santana was subjected to the same SORNA requirements as was
Muniz. We already have ruled in Muniz that those requirements
are punitive in nature.
Santana, 266 A.3d at 538.
The Court concluded:
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SORNA’s application to [the defendant] is an ex post facto law.
Indeed, a comparison of the correct dates in this case — 1983 and
2015 — reveals a dramatic increase in the punishment imposed
upon [the defendant]. He went from no punishment arising under
a sexual offender registration scheme to being subjected to a
patently punitive statutory scheme. Because that punishment
was inflicted retroactively to his 1983 offense, it was
unconstitutional.
Id. at 539.2
Like the defendant in Santana, Appellant committed his offense (in
1991), prior to Pennsylvania enacting a sexual registration law. See id. at
530 (observing that Pennsylvania enacted the first version of Megan’s Law in
1995). On June 14, 2021, a jury convicted Appellant of two first-degree
felonies for failing to comply with SORNA’s registration requirements. The
jury found Appellant guilty of failing to register with the PSP and failing to
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2 Consistent with Santana, this Court issued an unpublished decision in
Commonwealth v. Dreakford, 249 A.3d 1139 (Pa. Super. Ct. 2021) (en
banc) (Table), appeal denied, 68 WAL 2021 (Pa. Mar. 14, 2022). In
Dreakford, the appellant was convicted of rape in 1996. We explained:
At the time of his conviction, Pennsylvania had enacted non-
punitive registration requirements for those convicted of certain
sexually violent crimes, including Rape. In 2012, however, the
General Assembly enacted SORNA, a constitutionally punitive
regime. Because [a]ppellant’s crime preceded the effective date
of SORNA, the Commonwealth could not apply SORNA’s provisions
retroactively to him. Thus, because [a]ppellant could not be
subject to SORNA’s registration requirements, the Commonwealth
could not hold [him] criminally liable for violating Section 4915 of
the Crimes Code.
Id. (footnotes omitted).
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provide accurate registration information under subsections (1) and (3), as
follows:
(a) Offense defined.--An individual who is subject to
registration under 42 Pa.C.S. § 9799.55(a), (a.1) or (b)
(relating to registration) or who was subject to registration
under former 42 Pa.C.S. § 9793 (relating to registration of
certain offenders for ten years) commits an offense if the
individual knowingly fails to:
(1) register with the Pennsylvania State Police as required
under 42 Pa.C.S. § 9799.56 (relating to registration
procedures and applicability);
(2) verify the individual’s residence or be photographed as
required under 42 Pa.C.S. § 9799.60 (relating to verification
of residence); or
(3) provide accurate information when registering under 42
Pa.C.S. § 9799.56 or verifying a residence under 42 Pa.C.S.
§ 9799.60.
18 Pa.C.S.A. § 4915.2(a).
The statute further addresses applicability, stating,
(f) Applicability.—This section applies to:
(1) An individual who committed an offense set forth in 42
Pa.C.S. § 9799.55 on or after April 22, 1996, but before
December 20, 2012, and whose period of registration under 42
Pa.C.S. § 9799.55 has not expired.
(2) An individual who was required to register with the
Pennsylvania State Police under a former sexual offender
registration law of this Commonwealth on or after April 22,
1996, but before December 20, 2012, whose period of
registration has not expired.
(3) An individual who, before February 21, 2018:
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(i) commits an offense subject to 42 Pa.C.S. Ch. 97 Subch. H
(relating to registration of sexual offenders); but
(ii) because of a judicial determination on or after February
21, 2018, of the invalidity of 42 Pa.C.S. Ch. 97 Subch. H, is
not subject to registration as a sexual offender.
18 Pa.C.S.A. § 4915.2(f) (footnote omitted).
The Pennsylvania General Assembly amended SORNA by enacting Act
10 on February 21, 2018, and Act 29 on June 12, 2018. See Act of Feb. 21,
2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L. 140, No. 29 (Act
29). SORNA now divides sex offenders into two subchapters: (1) Subchapter
H, which applies to someone who committed a sexually violent offense on or
after December 20, 2012 (the date SORNA I became effective); and (2)
Subchapter I, which applies to someone who committed a sexually violent
offense on or after April 22, 1996, but before December 20, 2012, whose
period of registration has not expired, or whose registration requirements
under a former sexual offender registration law have not expired. Neither
subchapter applies to Appellant, who committed his offense in 1991.
Accordingly, Appellant’s convictions under 18 Pa.C.S.A. § 4915.2(a)
were illegal. We are therefore constrained to reverse the convictions and
vacate the judgment of sentence.
Convictions reversed. Judgment of sentence vacated. Appellant
discharged. Superior Court jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2022
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