Com.. v. Moore, L. ( 2019 )

J-A12038-19
2019 Pa. Super. 320
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE ANDREW MOORE :
:
Appellant : No. 1566 WDA 2018
Appeal from the Judgment of Sentence Entered March 26, 2018
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000378-2012
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.: FILED OCTOBER 23, 2019
Appellant, Lee Andrew Moore, appeals from the Judgment of Sentence
entered on March 26, 2018. At issue in this case is whether Acts 10 and 29
of 2018 (“SORNA II”)1, which require the Pennsylvania State Police (“PSP”) to
disseminate via the Internet registration information about sex offenders,
violate the Ex Post Facto Clause of the U.S. Constitution. In light of our
Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), we conclude that the Internet dissemination provision of SORNA II
violates the federal prohibition against ex post facto laws. Accordingly, we
affirm Appellant’s Judgment of Sentence, but direct the removal of his entry
from the state police sex offender website.
We need only state briefly the underlying facts and procedural history
in order to analyze properly the constitutionality of the public dissemination
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1Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29).
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provisions of SORNA II. Between 2004 and 2008, Appellant sexually abused
his former stepson. See Commonwealth v. Moore, 2009 WDA 2013, at 1
(Pa. Super. filed Dec. 8, 2014) (unpublished memorandum), appeal denied,
117 A.3d 296 (Pa. 2015). In July 2013, following a jury trial, Appellant was
convicted of Involuntary Deviate Sexual Intercourse, Unlawful Contact with
Minor, Statutory Sexual Assault, Corruption of Minors, and Indecent Assault.2
Id. at 2. The trial court sentenced Appellant to an aggregate term of nine to
twenty-five years of imprisonment. Id. Appellant timely appealed, but this
Court denied relief. Id. at 12.
Thereafter, Appellant sought collateral relief, challenging the legality of
his sentence. In February 2018, the lower court granted Appellant relief and
vacated his Judgment of Sentence. See PCRA Ct. Order, 2/2/18. Following a
hearing, the lower court imposed a new aggregate sentence of five and one-
half to seventeen years of incarceration followed by twelve years of probation.
N.T. Sentencing, 3/26/18, at 40-42. The trial court also notified Appellant
that SORNA II required that after he is released from prison, he must register
as a convicted sexual offender with the PSP for the remainder of his life.
Appellant timely filed a Post-Sentence Motion, challenging his obligation
to register as a convicted sexual offender. Post-Sentence Motion, 4/4/18.
According to Appellant, the registration requirements set forth in SORNA II
include several punitive elements not in effect at the time he committed his
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2 18 Pa.C.S. §§ 3123(a)(7), 6318(a)(1), 3122.1(a), 6301(a)(1), and
3126(a)(8), respectively.
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crimes. Id. at 2 (unpaginated). Thus, according to Appellant, the
requirements violated the federal constitutional ban on ex post facto laws.
See id. Following argument, the lower court denied relief. Sentencing Ct.
Order, 10/3/18.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. In its responsive Opinion, the lower court rejected Appellant’s
constitutional claim, concluding that SORNA II was not punitive in either intent
or effect. See Sentencing Ct. Op., 12/12/18, at 7-12.
Appellant raises the following issues on appeal:
1. [Whether] the sex offender registration provisions established
by Acts 10 and 29 of 2018 [are] unconstitutional as applied to
an individual whose offense dates pre-dated SORNA[II; and]
2. [Whether] the punitive registration and publication provisions
established by Acts 10 and 29 of 2018 [are] severable[.]
Appellant’s Br. at 6.
Although broadly worded, Appellant’s first issue presents a narrow
challenge to the manner in which SORNA II requires the PSP to disseminate
the information that a sex offender provides to the PSP pursuant to 42 Pa.C.S.
§ 9799.63 (“Section 9799.63”).3 Appellant’s Br. at 10. Section 9799.63
provides in relevant part:
The Commissioner of the [PSP] shall . . . [d]evelop and maintain a
system for making the information described in subsection (c) publicly
____________________________________________
3 To be clear, Appellant does not challenge the registration and reporting
obligations required by SORNA II.
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available by electronic means so that the public may, without limitation,
obtain access to the information via an Internet website to view an
individual record or the records of all sexually violent predators, lifetime
registrants and other offenders who are registered with the [PSP].
42 Pa.C.S. 9799.63(b).
Essentially, Appellant asserts that Section 9799.63 is punitive because
the provision is akin to traditional forms of punishment, adversely affects his
reputation, and is excessive in relation to the General Assembly’s remedial
intentions. See Appellant’s Br. at 9-15. This punitive impact, according to
Appellant, renders Section 9799.63 unconstitutional when applied
retroactively to offenders such as Appellant, whose criminal conduct preceded
the enactment of Section 9799.63. See id.
We consider Appellant’s claim, mindful that lawfully enacted statutes are
presumptively constitutional. Commonwealth v. Lee, 935 A.2d 865, 876
(Pa. 2007); Commonwealth v. Williams, 832 A.2d 962, 973 (Pa. 2003). A
constitutional challenge presents a question of law. Commonwealth v.
Molina, 104 A.3d 430, 441 (Pa. 2014). Thus, our standard of review is de
novo, and our scope of review is plenary. Id.; Lee, 935 A.2d at 876.
Federal Ex Post Facto Claim
The constitutional prohibition against ex post facto laws ensures “‘fair
warning’ about what constitutes criminal conduct, and what the punishments
for that conduct entail.” Muniz, 164 A.3d at 1195. Thus, “[c]ritical to relief
under the Ex Post Facto Clause is not an individual's right to less punishment,
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but the lack of fair notice and governmental restraint when the legislature
increases punishment beyond what was prescribed when the crime was
consummated.” Id. (quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)).
To determine whether Section 9799.63 constitutes retroactive
punishment, we employ a two-step inquiry. Smith v. Doe, 538 U.S. 84, 92
(2003); Muniz, 164 A.3d at 1208; Williams, 832 A.2d at 971. Initially, we
must ascertain whether the legislative intent was to enact a civil, remedial
scheme or impose punishment. Smith, 538 U.S. at 92. If the intent was non-
punitive, then we proceed to the second step and consider whether the
provision is “so punitive either in purpose or effect as to negate the
legislature’s non-punitive intent.” Muniz, 164 A.3d at 1208 (quoting
Williams, 832 A.2d at 971). “[O]nly the clearest proof will suffice to override
legislative intent and transform what has been denominated a civil remedy
into a criminal penalty.” Smith, 538 U.S. at 92 (internal quotation marks and
citation omitted).
Legislative Intent of Section 9799.63
In 2011, the Pennsylvania General Assembly passed the Sex Offender
Registration and Notification Act (“SORNA I”), Act of Dec. 20, 2011, P.L. 446,
No. 111, as amended, 42 Pa.C.S. §§ 9799.10 to 9799.41 (effective Dec. 20,
2012) in order to comply with the Adam Walsh Child Protection and Safety Act
of 2006 (Adam Walsh Act), Pub. L. 109-248, as amended, 34 U.S.C. §§ 20911,
et seq. In 2017, our Supreme Court determined that the retroactive
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application of SORNA I violated the federal Ex Post Facto Clause.
Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017).
In response, the General Assembly passed SORNA II, dividing SORNA II
into two distinct subchapters—Subchapter H, which applies to “individuals who
committed a sexually violent offense on or after December 20, 2012, for which
the individual was convicted[,]” 42 Pa.C.S. § 9799.11(c), and Subchapter I,
which applies to individuals who committed a sexually violent offense “on or
after April 22, 1996, but before December 20, 2012,” and whose period of
registration has not yet expired or whose registration requirements under a
former sexual offender registration law have not expired. 42 Pa.C.S. §
9799.52.
With respect to the provisions that require the PSP to disseminate
information about the sex offender via the Internet, the legislature expressed
its intention that “public safety will be enhanced by making information about
. . . [various sex offenders] available to the public through the Internet and
electronic notification.” 42 Pa.C.S. §9799.63(a). The legislature further found
that “[k]nowledge of whether a person is a . . . [convicted sex offender] could
be a significant factor in protecting oneself and one’s family members . . .
from recidivist acts by [sex offenders.]” Id. The legislature concluded that
the “technology afforded by the Internet and electronic notification would
make this information readily accessible to parents and private entities,
enabling them to undertake appropriate remedial precautions to prevent or
avoid placing potential victims at risk.” Id. Most importantly to our analysis
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of the legislative purpose in mandating dissemination via the Internet, the
legislature stated that public access to the information that the sex offender
provides to PSP “is intended solely as a means of public protection and shall
not be construed as punitive.” Id.
We accord a legislature considerable deference to the intent stated in
its legislative proclamation. Smith, 538 U.S. at 93. The statutory text set
forth above is clear and defines a non-punitive objective—assure public safety
by disseminating information about sexual offenders. Moreover, our Supreme
Court has interpreted similar language as indicative of the General Assembly’s
remedial intent. See Muniz, 164 A.3d at 1209-10 (addressing similar
declaration of policy in SORNA I, Subchapter H)4; Williams, 832 A.2d at 971-
72 (Megan’s Law II); Commonwealth v. Gaffney, 733 A.2d 616, 619 (Pa.
1999) (Megan’s Law I). For these reasons, we conclude the General
Assembly’s intent was to create a civil, remedial scheme.
Legislative Effect
We now consider whether the Section 9799.63 is sufficiently punitive
in effect to overcome the General Assembly’s non-punitive purpose. See
Muniz, 164 A.3d at 1210. This analysis involves examining factors identified
by the United States Supreme Court. See Williams, 832 A.2d at 972-73
____________________________________________
4 Ultimately, the Muniz Court determined that SORNA I was punitive in effect.
164 A.3d at 1218. In its legislative response in SORNA II, the General
Assembly declared its intention to address the Muniz holding. See 42 Pa.C.S.
§ 9799.51(b)(4). We view this effort to address the punitive effect of its prior
legislation as further evidence of the General Assembly’s remedial intent.
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(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). The
Mendoza-Martinez factors include whether:
1. The sanction involves an affirmative disability or restraint;
2. The sanction has historically been regarded as punishment;
3. The sanction comes into play only on a finding of scienter;
4. The operation of the sanction will promote the traditional aims
of punishment—retribution and deterrence;
5. The behavior to which the sanction applies is already a crime;
6. An alternative purpose to which the sanction may rationally be
connected is assignable for it; and
7. The sanction appears excessive in relation to the alternative
purpose assigned.
Id. at 973 (citation omitted). While this list is not exhaustive, and no one
factor is dispositive, the factors provide “useful guideposts” in determining
whether a remedial provision is nonetheless punitive in effect. Id. at 972
(citation omitted).
We will analyze these seven factors in terms of the effect that the
mandate of Section 9799.63, requiring dissemination of the sex offender’s
registration information via the Internet, has on the sex offender. For ease of
analysis, we first address the second factor.
Whether the Sanction has Been Historically Treated as Punishment
We first examine whether the dissemination via the Internet of the sex
offender’s registration information, which includes his convictions and other
personal information, has the effect that a traditional punishment would have
on an offender.
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In Muniz, the Pennsylvania Supreme Court specifically addressed the
provision in SORNA I that directs the PSP to disseminate via the Internet the
sex offender’s registration information. 164 A.3d at 1208 (citing Subchapter
H, 42 Pa.C.S. § 9799.28). The Pennsylvania Supreme Court reasoned that
the dissemination of the registration information via the Internet is equivalent
to public shaming because it exposes offenders to ostracism and harassment
without any mechanism to prove rehabilitation:
Yesterday's face-to-face shaming punishment can now be
accomplished online, and an individual's presence in cyberspace
is omnipresent. The public [I]nternet website utilized by the
Pennsylvania State Police broadcasts worldwide, for an extended
period of time, the personal identification information of
individuals who have served their “sentences.” This exposes
registrants to ostracism and harassment without any
mechanism to prove rehabilitation—even through the
clearest proof.
Id. at 1212 (quoting Commonwealth v. Perez, 97 A.3d 747, 765-66
(Donohue, J., concurring))(emphasis added). Thus, the Court concluded,
“SORNA’s publication provisions—when viewed in the context of our current
[I]nternet-based world—[are] comparable to shaming punishments.” Id. at
1213 (distinguishing Smith, 538 U.S. at 101); contra Williams, 832 A.2d at
976-77 (rejecting analogy between public dissemination of offender
information and colonial-era shaming punishments).5
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5 We note that the United States Supreme Court in Smith concluded that
dissemination via the Internet is not equivalent to public shaming, but rather
“more analogous to a visit to an official archive of criminal records than it is
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Section 9799.63 is nearly identical to the Internet dissemination
provision in SORNA I. Both Subchapters direct the PSP to develop and
maintain a system to disseminate via an Internet website registration
information about sexual offenders to the public. 42 Pa.C.S. §§
9799.28(a)(1), 9799.63(b)(1). Additionally, the information compiled and
disseminated is the same, including name and aliases, year of birth, residential
and employment addresses, photographs and physical descriptions, license
plate and description of the offender’s vehicle, compliance with registration
provisions, and details of the sex offender’s crimes. 42 Pa.C.S. §§ 9799.28(b),
9799.63(c). Both Subchapters require the website to include a searchable
database of this information. Thus, for example, a member of the public can
query the website database to obtain offender information in any zip code or
geographic radius. 42 Pa.C.S. §§ 9799.28(a)(1)(i), 9799.63(b)(1). Finally,
both Subchapters require that the information shall continue to be available
for the entirety of an offender’s registration. 42 Pa.C.S. §§ 9799.28(e),
9799.63(d).
In light of these similarities, especially in terms of the broad method of
dissemination, we conclude that Muniz requires a finding that the
____________________________________________
to a scheme forcing an offender to appear in public with some visible badge
of past criminality.” 538 U.S. at 99. The Pennsylvania Supreme Court in
Muniz, however, recognized that “Smith was decided in an earlier
technological environment.” 164 A.3d at 1212. We are bound by this finding
of the Pennsylvania Supreme Court in Muniz.
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dissemination provision of Section 9799.63 is analogous to traditional public
shaming, a historic form of punishment. Thus, we conclude that this factor
weighs in favor of finding the effect of the dissemination provision of
Subchapter I to be punitive. See Muniz, 164 A.3d at 1213.6
Affirmative Disability or Restraint
We next address whether the dissemination via the Internet of the sex
offender’s registration information imposes an affirmative disability or
restraint that adversely affects a sex offender’s reputation. See, e.g.,
Appellant’s Br. at 12 (asserting Section 9799.63 punishes his reputation), 14
(asserting the provisions “infringe upon [his] right to reputation”).
It is clear that criminal punishment imposes a restraint on an individual’s
liberty interests. In Williams, our Supreme Court suggested that “an
affirmative disability or restraint is some sanction approaching the infamous
punishment of imprisonment.” 832 A.2d at 974 (internal quotation marks and
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6 The Supreme Court in Muniz applied the Mendoza-Martinez factors to
SORNA I as a whole while we are applying the Mendoza-Martinez factors
solely to the dissemination provision of SORNA II. When the Supreme Court
in Muniz analyzed whether the “sanction” SORNA I imposed had been
historically considered a punishment, the Supreme Court considered the effect
of the entire statute, concluding that (1) the dissemination provisions were
comparable to shaming punishments, and (2) the registration provisions were
“akin to probation.” 164 A.3d at 1213. Because we are analyzing only the
constitutionality of the dissemination provision of SORNA II, we need not
address whether the registration provisions in SORNA II are “akin to
probation.” Thus, for example, we do not consider the duration of an
offender’s registration, or whether SORNA II requires in-person reporting and
how often, or other provisions not required by Section 9799.63.
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citation omitted). However, punishment requires no physically restrictive
component. For example, criminal fines are punitive even though the fines
impose an economic, not a physical, restraint. See, e.g., Commonwealth
v. Church, 522 A.2d 30, 34 (Pa. 1987) (“[T]he primary purpose of a fine or
a penalty is twofold; to punish violators and to deter future or continued
violations[.]”); see also, e.g., United States v. Lovett, 328 U.S. 303, 315-
18 (1946) (restraint on compensation earned through federal employment
deemed punitive).
Previously, our Supreme Court has deemed restraints imposed on an
offender’s reputation by public notice provisions to be insignificant or merely
collateral. See, e.g., Williams, 832 A.2d 973-74 (recognizing that public
notice provisions of Megan’s Law II “temper” an offender’s liberty interest but
declining to credit this “secondary effect” as punitive). This analysis was
rooted firmly in United States Supreme Court precedent. See Smith, 538
U.S. at 101 (“Although the public availability of the information may have a
lasting and painful impact on the convicted sex offender, these consequences
flow not from the Act's registration and dissemination provisions, but from the
fact of conviction, already a matter of public record.”); but see id. at 115
(Ginsburg, J., dissenting) (concluding that the impact on reputation is a
significant restraint because public notification exposes the offender to
“profound humiliation and community-wide ostracism”).
Again, we are bound by our Supreme Court’s decision in Muniz. The
Supreme Court, in analyzing SORNA I, analogized the dissemination via the
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Internet of a sex offender’s registration information to public shaming and
concluded that such dissemination was a punishment. 164 A.3d at 1213.
Because this dissemination is a punishment, and punishment is a restraint,
the Internet dissemination provision of SORNA II constitutes an affirmative
restraint.
In so doing, the Muniz Court has brought Pennsylvania law in
accordance with other states that have expressly found public dissemination
provisions of sexual offender registration laws to constitute an affirmative
disability or restraint. See, e.g., Wallace v. State, 905 N.E.2d 371, 380
(Ind. 2009) (concluding that the practical effects of the notification provisions
impose substantial disabilities on registrants); Doe v. State, 189 P.3d 999,
1009-12 (Alaska 2008) (suggesting that public dissemination of offender
status exposes registrants to “community obloquy and scorn”).
We note further that the adverse impact to a sex offender’s reputation,
imposed purposefully as a consequence of conduct deemed criminal, is
widespread. It is not limited to those individuals who would benefit from this
information because they might reside or work in close proximity to the
offender. Rather, the effect of this affirmative restraint extends to any person
who has access to the Internet and who may obtain the registration
information solely for gratuitous purposes. Thus, such harm is not merely
collateral or incidental, but rather consequential and far-reaching.
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Thus, we conclude that the effect of the dissemination via the Internet
of the sex offender’s registration information weighs in favor of finding that
Section 9799.63 is punitive.
Finding of Scienter
The parties suggest that this factor should receive little weight in our
analysis. See Appellant’s Br. at 11; Commonwealth’s Br. at 14; Intervenor’s
Br. at 31-32.7 The Supreme Court in Muniz found this “factor is of little
significance in our inquiry.” 164 A.3d at 1214. We agree.
Traditional Aims of Punishment
Appellant asserts that Section 9799.63 serves the traditional aims of
retribution and deterrence. Appellant’s Br. at 11. For reasons discussed
below, we agree.8
In Muniz, the Supreme Court specifically found that “the prospect of
being labeled a sex offender accompanied by registration requirements and
the public dissemination of an offender’s personal information over the
[I]nternet has a deterrent effect.” 164 A.3d at 1215. The Supreme Court
____________________________________________
7In light of Appellant’s constitutional challenge, the Pennsylvania Office of the
Attorney General (“Intervenor”) intervened in this matter. See Notice of
Intervention, 3/21/2019 (citing Pa.R.A.P. 521).
8 Intervenor notes that the Adam Walsh Act requires states to maintain a sex
offender registry and publish otherwise personal information about offenders
on a publicly accessible website. Intervenor’s Br. at 34. Thus, Intervenor
suggests, Section 9799.63 is necessary to comply with this federal mandate,
and we should infer no punitive effect. See id. Intervenor cites no legal
authority for this proposition, and we reject it. The constitutionality of a
federal mandate does not hinge upon the government’s funding decisions.
Rather, we rely upon the holding in Muniz.
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further concluded that SORNA I had a retributive effect because “the
information SORNA allows to be released over the [I]nternet goes beyond
otherwise publicly accessible conviction data[.]” Id.
Since the Supreme Court concluded that the Internet dissemination
provision of SORNA I has both a deterrent and retributive effect, and the
Internet dissemination provision of SORNA II is identical to the one in SORNA
I, we must conclude that the Internet dissemination provision of SORNA II has
both a deterrent and retributive effect. Thus, we conclude that this factor
weighs in favor of finding the effect of Section 9799.33 to be punitive. See
Muniz, 164 A.3d at 1216.
Application to Criminal Behavior
This factor suggests that we consider “whether the behavior to which
[the challenged legislation] applies [was] already a crime” prior to its passage.
Williams, 832 A.2d at 973. It is apparent that this factor is relevant where
a claimant asserts that new legislation has criminalized his previously innocent
behavior, thus evoking the first category of ex post facto laws recognized by
Justice Chase in his authoritative discussion. See Calder v. Bull, 3 U.S. 386,
390-91 (1798) (defining four categories of ex post facto laws, including “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.”).
Section 9799.6 does not criminalize previously innocent behavior. Thus,
we agree with the parties that this factor carries little weight in our analysis.
See Appellant’s Br. at 11; Commonwealth’s Br. at 16; Intervenor’s Br. at 35.
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Non-punitive Alternate Purpose of Section 9799.33
We agree with the parties that there is a non-punitive, alternate purpose
for Section 9799.33. In Williams, for example, our Supreme Court noted the
“grave concerns over the high rate of recidivism among convicted sex
offenders.” 832 A.2d at 979. The Court then reasoned that public “awareness
that a particular sexual predator lives near a home or school frequented by
children will make a practical difference in avoiding predation.” Id. (finding
that Megan’s Law II had a non-punitive purpose to which its provisions were
rationally connected).
In Muniz, the Court recognized that “policy regarding such complex
societal issues . . . is ordinarily a matter for the General Assembly.” 164 A.3d
at 1217. The Court highlighted the lack of scientific consensus on sexual
offender recidivism rates, possibly portending an erosion in its usual
deference. See id. Nevertheless, despite this ambivalence, the Court
accepted the legislature’s findings, concluded that the registration and
reporting provisions of SORNA were aimed rationally at addressing the
legislature’s recidivism concerns, and therefore found that this factor weighed
in favor of finding SORNA to be non-punitive. Id.
The General Assembly in SORNA II reiterated its finding that sexual
offenders “pose a high risk of engaging in further offenses[.]” 42 Pa.C.S. §
9799.51(a)(2). Further, the legislature found that sexual offenders “have a
reduced expectation of privacy because of the public’s interest in public safety
and in the effective operation of government.” 42 Pa.C.S. § 9799.51(a)(5).
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Most important to our analysis is the General Assembly’s intent to
“[p]rotect the safety and general welfare of the people of this Commonwealth
by providing for registration, community notification[,] and access to
information regarding sexually violent predators and offenders who are about
to be released from custody and will live in or near their neighborhood.” 42
Pa.C.S. § 9799.51(b)(1). The legislature further determined to utilize a
“publicly accessible Internet website” as a means of disseminating this
relevant information. 42 Pa.C.S. § 9799.51(b)(2). According to the
legislature, dissemination of this information via the Internet “could be a
significant factor in protecting oneself and one’s family members, or those in
care of a group or community organization[.]” 42 Pa.C.S. § 9799.63(a).
We find that the public dissemination via the Internet of the sex
offender’s registration information is rationally related to the General
Assembly’s remedial goal of informing individuals about the identity and
location of sex offenders in order to protect oneself and one’s family members
from the risk that the sex offender will recidivate. Absent new evidence
sufficient to undermine our usual deference to the legislature’s findings
regarding recidivism rates, we conclude that this alternate purpose of the
SORNA II favors finding the Internet dissemination provisions non-punitive.
Sanction is Excessive in Relation to Alternate Purpose
Appellant asserts that Section 9799.63 appears excessive in relation to
its remedial purpose. Appellant’s Br. at 12-15. Notably, Appellant contrasts
the General Assembly’s intent to disseminate relevant information to
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individuals regarding sexual offenders “who are about to be released from
custody and will live in or near their neighborhood” with its directive to the
PSP to develop and maintain an openly accessible Internet website that
publishes otherwise non-public information globally. See id. at 12.9
By posting information about offenders on the Internet, the information
would be readily accessible to parents and private entities, “enabling them to
undertake appropriate remedial precautions to prevent or avoid placing
potential victims at risk.” 42 Pa.C.S. 9799.63(a). While we share the
legislature’s concern about the importance of providing adequate information
about sex offenders to individuals who may have contact with the offender,
the effect of disseminating this information through the Internet means that
individuals who do not “live in or near” the offender’s neighborhood will have
access to information about the offender.
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9 In response, Intervenor notes that our inquiry “is not an exercise in
determining whether the legislature has made the best choice possible to
address the problem it seeks to remedy.” Intervenor’s Br. at 37 (quoting
Smith, 538 U.S. at 105). Thus, while conceding that certain offender
information is not readily available from public sources, Intervenor
nonetheless asserts that access to personal information, such as an offender’s
choice of vehicle or other descriptive information, such as an offender’s scars
or tattoos, is reasonable and will enable “citizens to identify sex offenders in
their community.” Id. at 38. However, we find Intervenor’s reliance on
Smith to be misplaced because the United States Supreme Court determined
that the Alaska registration and notification provisions were not punitive. Id.
The Pennsylvania Supreme Court has determined, however, that the public
dissemination provision to SORNA I, which is identical to the public
dissemination provision of SORNA II, to be punitive, and we are bound by that
determination.
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In fact, the statutory language mandating the creation of the PSP
website demonstrates that the legislature intended that as many people as
possible would have access to the offender’s information. Section
9799.63(b)(1) requires the Commissioner of the PSP to develop a publicly
accessible website “so that the public, without limitation, [can] obtain
access to the information . . . to view an individual record or the records
of all sexually violent predators, lifetime registrants and other offenders who
are registered with the Pennsylvania State Police.” Id. (emphasis added).
Because the dissemination of the sex offender’s registration information
is not limited to those individuals who could benefit from the information, but
rather is expanded to any person who has Internet access, the open and
readily accessible website is incongruous with the targeted purpose of
protecting a community or neighborhood. SORNA II does not limit access to
offender information within a certain geographical area, a community, or
neighborhood. Any user of the website can obtain information about any
offender regardless of the user’s geographical proximity to the offender. Thus,
if a person is not in proximity to an offender, the user’s use of the information
is beyond the legislative purpose of providing the information to protect
individuals who might encounter the offender.
In contrast, when dealing with a Sexual Violent Predator (SVP), the
legislature has crafted a targeted method requiring law enforcement to send
a written notification with information about the SVP to those individuals who
might encounter the SVP. 42 Pa.C.S. § 9799.62. In particular, law
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enforcement must notify neighbors, child and youth agencies, school
superintendents, day care centers and colleges and universities that a sexually
violent offender is living in close proximity to the individuals or entity. Id.
This is a much more tailored and effective means of achieving the legislative
goals of SORNA II.
Similarly, Megan’s Law II limited dissemination of the offender’s
information to those individuals who could possibly have contact with the
offender and, thus, had a use for the information. Megan’s Law directed law
enforcement to disseminate information to those individuals who might come
into contact with the offender, such as an offender’s neighbors, the children
and youth services director within the offender’s county of residence, school
officials within the offender’s area school district, and licensed child care
centers located in the offenders municipality. 42 Pa.C.S. § 9798(b) (effective
Jan. 24, 2005 to Feb. 20, 2012).
For this reason, in light of the fact that SORNA II disseminates
registration information about sex offenders to those individuals who do not
need the information to protect themselves from the sex offender, we find
that Section 9799.63 is excessive when compared to the alternative purpose
of SORNA II to protect individuals from sex offenders who might recidivate.
We conclude that the effect of this factor weighs towards finding Section
9799.63 punitive.
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Balancing of Factors
In summary, the General Assembly in SORNA II reinstated many of the
sex offender registration and reporting provisions that the courts previously
found to be remedial and constitutional. The General Assembly, however,
retained the Internet dissemination provisions that the Supreme Court in
Muniz found to be punitive. Informed by the Supreme Court’s analysis and
cognizant of its binding force, we conclude that Section 9799.63 is punitive in
effect. The Internet dissemination provision mandated by Section 9799.63 is
reminisicent of traditional forms of punishment, will adversely impact
Appellant’s reputation, and the global and unrestricted dissemination of his
personal information is excessive when compared with the legislature’s
targeted purpose of ensuring the safety of any community or neighborhood in
which a sex offender resides. For these reasons, we conclude the Section
9799.63 violates the federal Ex Post Facto Clause.
Severability
Appellant contends that the Internet provisions of SORNA II are
severable from the rest of the statutory scheme. We agree.
“Severance is precluded only where, after the void provisions are
excised, the remainder of the statute is incapable of execution in accordance
with the legislative intent.” Williams, 832 A.2d at 986. In response to
Muniz, the General Assembly enacted SORNA II, largely reinstating the
registration and reporting requirements required of pre-SORNA offenders to
those prescribed by Megan’s Law II, a remedial scheme that operated
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successfully in furtherance of the General Assembly’s intent and within
constitutional limits. We perceive no obstacles to the continued execution of
SORNA II, absent its Internet dissemination provisions. Thus, we conclude
that the Internet provisions of SORNA II are severable.
Accordingly, we affirm Appellant’s Judgment of Sentence but direct the
removal of his entry from the Pennsylvania State Police Megan’s Law Website.
Judgment of Sentence affirmed. 42 Pa.C.S. § 9799.63 unconstitutional
and severable.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2019
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