Commonwealth v. Perez

97 A.3d 747

2014 PA Super 142

COMMONWEALTH of Pennsylvania, Appellee

v.Miguel Angel PEREZ, II, Appellant.

Superior Court of Pennsylvania.

Argued April 2, 2014.

Filed July 9, 2014.

Reargument Denied Sept. 15, 2014.

Craig E. Kauzlarich, Carlisle, for appellant.

Charles Volkert, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

BEFORE: DONOHUE, J., ALLEN, J., and MUNDY, J.

OPINION BY MUNDY, J.:

Appellant, Miguel Angel Perez, II, appeals from the July 24, 2013 judgment of sentence of nine to 23 months' imprisonment plus two years' probation after he pled nolo contendere to one count of indecent assault. ¹ Relevant to this appeal, the trial court also ordered Appellant to register as a sex offender for a period of 25 years pursuant to the newly enacted registration requirements under Pennsylvania's Sex Offender Registration and Notification Act (SORNA). See42 Pa.C.S.A. §§ 9799.14, 9799.15. After careful review, we affirm.

We summarize the relevant facts and procedural history of this case as follows. On January 23, 2013, the Commonwealth filed an information charging Appellant with one count each of rape and sexual assault, four counts of aggravated indecent assault, and four counts of indecent assault.² On March 15, 2013, pursuant to a plea agreement with the Commonwealth, Appellant pled nolo contendere to one count of indecent assault as a first-degree misdemeanor. On July 23, 2013, Appellant filed a “Motion to find 42 Pa.C.S. § 9799.14 Unconstitutional as Applied and Apply Law Existing at the Time of the Offense.” The trial court denied the motion on the same day and imposed a sentence of nine to 23 months' imprisonment to be followed by two years' probation. The trial court also directed Appellant to register as a sex offender for the next 25 years, pursuant to the new registration requirements under SORNA. See42 Pa.C.S.A. §§ 9799.14(c)(1.2), 9799.15(a)(2). On August 2, 2013, Appellant filed a timely notice of appeal.³

On appeal, Appellant presents one issue for our review.

Did the [s]entencing [c]ourt err when it denied Appellant's [m]otion to find [ ] 42 Pa.C.S. § 9799.14 unconstitutional as retroactively applied in this case and ordered Appellant to comply with sexual offender registration for a period of twenty-five (25) years rather than ten (10) years?

Appellant's Brief at 4.

Essentially, Appellant argues that the Ex Post Facto Clauses of the federal and state constitutions prohibit the retroactive application of the 25–year registration requirement to him. Appellant's Brief at 8, 17. As this issue solely presents a question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Elia, 83 A.3d 254, 266 (Pa.Super.2013) (citation omitted). We elect to address Appellant's federal constitutional claim first.⁴

Article I, Section 10 of the Federal Constitution prohibits the several States from enacting any “ ex post facto Law[.]” ⁵ U.S. Const. Art. I, § 10. As the Supreme Court recently pointed out, “[t]he phrase ‘ex post facto law’ was a term of art with an established meaning at the time of the framing.” Peugh v. United States, ––– U.S. ––––, 133 S.Ct. 2072, 2081, 186 L.Ed.2d 84 (2013). As identified by Justice Samuel Chase in Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798), the SupremeCourt has historically analyzed challenges under the Ex Post Facto Clause pursuant to four distinct categories.

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. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. 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 offence, in order to convict the offender.

Id. at 390. The instant case deals with the third category in Calder, a law “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed[.]” Id. “The touchstone of this Court's inquiry is whether a given change in law presents a ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Peugh, supra at 2082, quoting Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). We conduct our analysis in two steps. First, we must look to the legislature's subjective purpose. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (internal quotations marks and citations omitted). “If the intention of the legislature was to impose punishment, that ends the inquiry.” Id. However, if the legislature prefers to refer to the statute as imposing a civil regulatory scheme, a more searching inquiry in the second step is required. Id. In conducting this second step inquiry, “we must [ ] examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil.” Id. The Supreme Court has held that only the “clearest proof” will suffice to override the legislature's preferred classification of the statute. Id.

As noted by the trial court, the General Assembly stated in its policy declarations that the provisions of SORNA were not criminal.

§ 9799.11. Legislative findings and declaration of policy

...

(b) Declaration of policy.—The General Assembly declares as follows:

...

(2) It is the policy of the Commonwealth to require the exchange of relevant information about sexual offenders among public agencies and officials and to authorize the release of necessary and relevant information about sexual offenders to members of the general public as a means of assuring public protection and shall not be construed as punitive.

42 Pa.C.S.A. § 9799.11(b)(2) (emphasis added).

Appellant concedes that this statement from the General Assembly satisfies the first prong of the Smith framework as to the legislature's subjective intent, and Appellant does not argue to the contrary. See Appellant's Brief at 9 n. 3. We will therefore proceed to the second prong and more searching inquiry required by Smith.⁶

In analyzing the second prong of Smith, the Supreme Court in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), mandated a seven-factor test to determine whether the effects of a statute are sufficiently punitive to override the legislature's preferred categorization.

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

Id. at 168–169, 83 S.Ct. 554. Having concluded above that the General Assembly intended this statute to be considered non-punitive, in analyzing the Kennedy factors “we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects.” Smith, supra at 107, 123 S.Ct. 1140 (Souter, J., concurring in the judgment) (emphasis added). This analysis is not one of mathematics, as the Supreme Court has since clarified that “[t]his list of considerations is, however, ‘neither exhaustive nor dispositive.’ ” United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 n. 7, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). Accordingly, no one factor controls the analysis in either direction. Id.

Turning to the first factor, Appellant argues that the new registration requirements impose an affirmative restraint by the very language of the statute. Specifically, Appellant notes that “[t]he statute at issue requires periodic, in-person verification of a registrant's personal information in addition to ad hoc appearances to update information as changes occur and appearances to disclose intended international travel at least twenty-one (21) days prior.” Appellant's Brief at 18. The relevant sections of the Act described above by Appellant, provide in part, as follows.

§ 9799.15. Period of registration

...

(e) Periodic in-person appearance required.—Except as provided in subsection (f) and subject to subsections (g) and (h), an individual specified in section 9799.13 shall appear in person at an approved registration site to provide or verify the information set forth in section 9799.16(b) (relating to registry) and to be photographed as follows:

(1) An individual convicted of a Tier I sexual offense shall appear annually.

(2) An individual convicted of a Tier II sexual offense shall appear semiannually.

(3) An individual convicted of a Tier III sexual offense shall appear quarterly.

(4) An individual required to register pursuant to section 9799.13(7.1) shall appear annually.

...

(g) In-person appearance to update information.—In addition to the periodic in-person appearance required in subsections (e), (f) and (h), an individual specified in section 9799.13 shall appear in person at an approved registration site within three business days to provide current information relating to:

(1) A change in name, including an alias.

(2) A commencement of residence, change in residence, termination of residence or failure to maintain a residence,thus making the individual a transient.

(3) Commencement of employment, a change in the location or entity in which the individual is employed or a termination of employment.

(4) Initial enrollment as a student, a change in enrollment as a student or termination as a student.

(5) An addition and a change in...