Commonwealth v. Muniz

164 A.3d 1189

COMMONWEALTH of Pennsylvania, Appellee

v.Jose M. MUNIZ, Appellant

No. 47 MAP 2016

Supreme Court of Pennsylvania.

ARGUED: December 6, 2016

DECIDED: July 19, 2017

Timothy Lee Clawges, Esq., Michael Halkias, Esq., Linda S. Hollinger, Esq., Cumberland County Public Defender's Office, Joshua Merrill Yohe, Esq., for Appellant.

David James Freed, Esq., Matthew Peter Smith, Esq., Charles John Volkert Jr., Esq., Cumberland County District Attorney's Office, for Appellee.

William Joseph Conyngham, Esq., Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., for Collateral Consequences Resource Center, Amicus Curiae.

Philip Gelso, Esq., for PA Association of Criminal Defense Lawyers, Amicus Curiae.

Jason A. Leckerman, Esq., Ballard Spahr LLP, for Assoc. for the Treatment of Sexual Abusers, Assessment & Treatment Alternatives, Joseph Peters Inst., Amicus Curiae.

Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, for Defender Association of Philadelphia, Amicus Curiae.

John Jacob Hare, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, P.C., for Social Science Scholars, Appellant Amicus Curiae.

Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, for Pennsylvania District Attorney's Association, Appellee Amicus Curiae.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

Justice Dougherty delivers the Opinion of the Court with respect to Parts I through IV and VII, and announces the Judgment of the Court. The Opinion is joined in full by Justices Baer and Donohue, and by Justices Todd and Wecht with the exception of Parts V and VI. Justice Wecht files a concurring opinion in which Justice Todd joins. Chief Justice Saylor files a dissenting opinion.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

JUSTICE DOUGHERTY

We granted discretionary review to determine whether Pennsylvania's Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10 – 9799.41, as applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.¹ The Superior Court held SORNA's registration provisions are not punishment, and therefore retroactive application to appellant, who was convicted of sex offenses prior to SORNA's effective date but sentenced afterwards, does not violate either the federal or state ex post facto clauses. For the following reasons, we reverse and hold: 1) SORNA's registration provisions constitute punishment notwithstanding the General Assembly's identification of the provisions as nonpunitive; 2) retroactive application of SORNA's registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA's registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

I. Procedural History Related to Current Appeal

On February 7, 2007, after a bench trial in Cumberland County, appellant was convicted of two counts of indecent assault arising out of an incident where he touched the breasts of his girlfriend's twelve-year old daughter.² Sentencing was scheduled for May 8, 2007, at which time appellant 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. See 42 Pa.C.S. § 9795.1 (expired). However, appellant failed to appear for his sentencing hearing and absconded until he was apprehended on unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his absence, the General Assembly had replaced Megan's Law III with SORNA. Under SORNA, persons convicted of indecent assault of a person less than thirteen years of age, 18 Pa.C.S. § 3126(a)(7), are categorized as Tier III offenders and are required to register as sex offenders for the remainder of their lives.³ Accordingly, appellant was sentenced to four to fourteen months' imprisonment and ordered to comply with lifetime registration requirements under SORNA. Appellant filed a post-sentence motion seeking application of the ten-year registration period under Megan's Law III, which was the law in place at the time of his offense and conviction, instead of lifetime registration under SORNA. The court denied appellant's motion and he appealed to the Superior Court, claiming retroactive application of SORNA violates the ex post facto clauses of the United States and Pennsylvania Constitutions, and the reputation clause of the Pennsylvania Constitution.⁴

The Superior Court affirmed the ruling of the trial court in a three-page unpublished memorandum opinion. Commonwealth v. Muniz , No. 2169 MDA 2014, unpublished memorandum, 2015 WL 6737686 (Pa. Super. filed August 7, 2015). The panel opined Commonwealth v. Perez , 97 A.3d 747 (Pa. Super. 2014), directed its holding "the new registration regime pursuant to SORNA is constitutional under the Federal and State Ex Post Facto Clauses." Muniz , slip op. at 3, quoting Perez , 97 A.3d at 760 (SORNA is not punitive; retroactive application does not violate federal ex post facto clause).⁵ The panel further held appellant waived his reputation clause claim by failing to raise it in his post-sentence motion.

Appellant filed a petition for allowance of appeal raising two questions regarding SORNA's "sexual offenses and tier system" provisions set forth at 42 Pa.C.S. § 9799.14 :

1) Does applying [ 42 Pa.C.S. § 9799.14 ] retroactively violate the Federal Constitution?

2) Does applying [ 42 Pa.C.S. § 9799.14 ] retroactively violate the Pennsylvania Constitution?

This Court granted review of both questions. Commonwealth v. Muniz , 635 Pa. 260, 135 A.3d 178 (Pa. 2016).

II. Summary of Arguments and Applicable Standards of Review

Briefly, appellant argues SORNA unconstitutionally increases the length of registration and notification requirements for sex offenders subject to its retroactive application. Appellant claims despite the General Assembly's declaration SORNA is not to be construed as punitive, the statute's text and structure make clear the legislative objective was to punish. Appellant asserts SORNA is so punitive in purpose and effect that the General Assembly's intent to deem it civil is undermined. Thus, appellant claims, SORNA increases punishment for conduct which occurred before its enactment and such retroactive application violates both federal and state constitutional bans on ex post facto laws; in doing so, appellant argues the Pennsylvania Constitution provides greater protection than the United States Constitution. Appellant argues SORNA is therefore unconstitutional as applied to someone like him whose conviction predated its enactment.⁶

In response, the Commonwealth argues the decision of the United States Supreme Court in Smith v. Doe , 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and an analysis of the factors set forth in Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), both direct SORNA is not punishment, and thus there can be no ex post facto violation. The Commonwealth focuses on the General Assembly's aim to address the "major public concern" of recidivism among adult sex offenders and indicates SORNA's terms are not excessive given this legislative purpose.⁷

As we consider the parties' arguments in more detail below, we recognize there is a general presumption that all lawfully enacted statutes are constitutional. Commonwealth v. Lee , 594 Pa. 266, 935 A.2d 865, 876 (2007). In addition, as this case presents questions of law, our scope of review is plenary and we review the lower courts' legal determinations de novo . Id .

III. Ex Post Facto Laws Generally

Before turning to the history of Pennsylvania sex offender laws and the specific provisions of SORNA at issue in this appeal, we first explain the general purpose of ex post facto prohibitions. The central concern in incorporating ex post facto clauses in both federal and state constitutions was to "assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation" following the American Revolution. Miller v. Florida , 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), citing Calder v. Bull , 3 U.S. 386, 391, 3 Dall. 386, 1 L.Ed. 648 (1798). However, as noted by Chief Justice Chase in Calder , the term ex post facto "had been in use long before the Revolution." Calder , 3 U.S. at 391. The clauses were thus also directed at the separate concern, relevant here, that individuals are entitled to "fair warning" about what constitutes criminal conduct, and what the punishments for that conduct entail. Miller , 482 U.S. at 430, 107 S.Ct. 2446 ; see also Commonwealth v. Rose , 633 Pa. 659, 127 A.3d 794, 805 (2015), quoting WAYNE R. LAFAVE, CRIMINAL LAW 116, 121 (5th ed. 2010). The United States Supreme Court, in Weaver v. Graham , 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), succinctly articulated this idea in stating, "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." Id . at 30, 101 S.Ct. 960. Based on both these concerns, 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.

Calder , 3 U.S. at 390. Furthermore, "two critical elements" must be met for a criminal or...