Com. v. Dreakford, C. ( 2021 )

J-E02006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CHAD LAMAR DREAKFORD
Appellant No. 365 WDA 2018
Appeal from the PCRA Order February 13, 2018
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000024-2016
BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J.,
DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.
DISSENTING MEMORANDUM BY STABILE, J. FILED FEBRUARY 09, 2021
I respectfully dissent. The Majority concludes that Appellant’s conviction
under 18 Pa.C.S.A. § 4915.1 violates ex post facto principles because (1)
Section 4915.1 requires proof that Appellant violated SORNA,1 (2) Appellant’s
crime preceded the effective date of SORNA, and therefore, (3) SORNA cannot
apply retroactively to him. Under our Supreme Court’s analysis in
Commonwealth v. Muniz, 164 A.3d 1198 (Pa. 2017), proper analysis of the
ex post facto question requires examination of whether the relevant provisions
of SORNA disadvantage Appellant more than Maryland’s sexual offender laws.
I would remand this case to the trial court with instructions to perform this
analysis.
____________________________________________
1SORNA is an acronym for the Sexual Offender Registration and Notification
Act, 42 Pa.C.S.A. §§ 9799.10 to 9799.41 (effective Dec. 20, 2012).
J-E02006-19
On October 3, 1996, Appellant was convicted of rape in Maryland.
Appellant concedes that under Maryland law, this conviction required him to
register as a sex offender for life. Appellant’s Brief at 5.
Effective April 22, 1996, the legislature expanded Pennsylvania’s
Sentencing Code to include Subchapter H, “Registration of Sexual Offenders,”
under which sex offenders had to register for no more than ten years. 42
Pa.C.S.A. §§ 9791-9799 (repealed). The legislature subsequently amended
subchapter H several times, including the passage of SORNA in 2011. SORNA
became effective in Pennsylvania on December 20, 2012, and under its
provisions, many sex offenders, including rapists such as Appellant, were
required to register for life.
In 2013, Appellant was convicted in Virginia for failing to register as a
sex offender under the laws of that state. Subsequently, Appellant moved to
Pennsylvania. In 2015, while in Pennsylvania, Appellant was charged with
one count2 of failing to comply with SORNA’s requirement to “verify his
address or be photographed as required under 42 Pa.C.S. § 9799.15, 9799.19
or 9799.25.”3 18 Pa.C.S.A. § 4915.1(a)(2). Appellant pleaded guilty and
ultimately was sentenced to six to twenty years’ imprisonment.
____________________________________________
2The information against Appellant originally had two counts, but one was
nolle prossed.
3 It is unclear whether Appellant failed to verify his address or be
photographed when he initially moved into Pennsylvania, or whether he
initially performed these steps but failed to update them later. Either one of
these omissions constitutes a violation of Section 4915.1(a)(2).
-2-
J-E02006-19
Appellant raises a single argument: application of SORNA to his case
violates ex post facto principles because his conviction for a sexual offense in
Maryland took place in 1996, sixteen years before SORNA became effective.
Appellant’s Brief at 15. Citing Muniz and this Court’s recent decision in
Commonwealth v. Santana, —A.3d—, 2020 WL 6145155 (Pa. Super., Oct.
20, 2020) (en banc), the Majority agrees with Appellant. I dissented in
Santana and, based on my interpretation of Muniz, dissent in this case as
well.
Our Supreme Court stated in Muniz that two conditions are essential
for a criminal or punitive law4 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.” Id., 164 A.3d at
1195-96 (emphasis added).
In Santana, the defendant was convicted of violating 18 Pa.C.S.A. §
4915.1(a)(3), a different subsection than Section 4915.1(a)(2), the
subsection to which Appellant pled guilty. Section 4915.1(a)(3) provides that
a defendant who is subject to registration under SORNA commits an offense
if he “knowingly fails to . . . provide accurate information when registering
under 42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.” Id. This Court held en
banc that SORNA’s registration requirements are ex post facto punishments
____________________________________________
4 Muniz held that SORNA is punitive in effect even though it expressly claimed
to have a civil and remedial purpose. Id. 164 A.3d at 1218.
-3-
J-E02006-19
for a defendant who failed to register in Pennsylvania for a pre-SORNA crime
that he committed in New York.
My dissent in Santana pointed out that a proper approach is not just to
perform the first step of the test articulated in Muniz (whether SORNA applies
to events preceding its enactment) but to perform the second step as well
(whether Section 4915.1(a)(3)’s registration requirements impose a greater
disadvantage upon the defendant than New York’s sexual offender law). I
further wrote that proper second-step analysis of Section 4915.1(a)(3)
required analysis of the provisions referenced therein, 42 Pa.C.S.A. §§
9799.15, 9799.19 and 9799.25. I emphasized that the Majority painted with
too broad a brush. At issue, like here, was only whether the convictions for
violating specific provisions of SORNA registration violated ex post facto
considerations. Resolution of that question did not require that we compare
New York’s and Pennsylvania’s registration laws in their entirety. Rather, the
second part analysis only required that we examine whether the Pennsylvania
registration requirements offended by a defendant and that led to his
convictions were more onerous than the registration requirements of the state
under which a defendant already must register.5 Based on my review of all of
those provisions, I concluded in Santana that SORNA did not disadvantage
____________________________________________
5 I believe it is appropriate only to examine whether the discrete registration
violations resulting in convictions implicate ex post facto concerns regardless
of whether other provisions of our law may be more onerous if applied to a
defendant, since the various registration provisions under SORNA should be
deemed severable. See 1 Pa.C.S.A. § 1925 (“[t]he provisions of every statute
shall be deemed severable…..).
-4-
J-E02006-19
the defendant more than New York’s sexual offender registration laws, and
thus, there was no ex post facto violation. Id., 2020 WL at 6145155, *13.
In the present case, as it did in Santana, the Majority performs the first
step of the Muniz test but not the second. In addition, it appears from the
record that the trial court did not perform the second step either. Accordingly,
I would remand this case to the trial court for the comprehensive second-step
analysis required under Muniz. I take the opportunity below to define
precisely what I believe this analysis entails.
Section 4915.1(a)(2) provides that an individual who is required to
register as a sexual offender in Pennsylvania commits an offense if he
knowingly fails to “verify his address or be photographed as required under
42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.” Id.
SORNA is applicable to Appellant under section 9799.13(7), which
provides:
§ 9799.13. Applicability.
The following individuals shall register with the Pennsylvania State
Police as provided in sections 9799.15 (relating to period of
registration), 9799.19 (relating to initial registration) and 9799.25
(relating to verification by sexual offenders and Pennsylvania
State Police) and otherwise comply with the provisions of this
subchapter:
***
(7) A sexual offender required to register in a sexual offender
registry in another jurisdiction or in a foreign country based upon
a conviction for a sexually violent offense or under a sexual
offender statute in the jurisdiction where the individual is
convicted and:
-5-
J-E02006-19
(i) has a residence in this Commonwealth or is a transient;
(ii) is employed within this Commonwealth; or
(iii) is a student within this Commonwealth.
42 Pa.C.S.A. § 4799.13.
In pertinent parts, sections 4799.15, 4799.19, and 4799.25, referenced
in Section 4915.1(a)(2), provide:
§ 9799.15. Period of registration.
(a) Period of registration.--Subject to subsection (c), an individual
specified in section 9799.13 (relating to applicability) shall register
with the Pennsylvania State Police as follows:
***
(3) An individual convicted of a Tier III sexual offense shall
register for the life of the individual.
***
(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:
***
(3) An individual convicted of a Tier III sexual offense shall appear
quarterly.
42 Pa.C.S.A. § 9799.15.
§ 9799.19. Initial registration.
(a) General rule.--An individual set forth in section 9799.13
(relating to applicability) shall initially register with the
Pennsylvania State Police as set forth in this section.
***
-6-
J-E02006-19
(i) Initial registration if convicted or adjudicated delinquent
outside Commonwealth.--
(1) An individual subject to registration under section 9799.13(7),
(7.1) or (7.2) shall appear in person at an approved registration
site to provide the information set forth in section 9799.16(b) to
the Pennsylvania State Police within three business days of
establishing residence, commencing employment or commencing
enrollment as a student within this Commonwealth. In addition,
the individual shall comply with the other provisions of this
subchapter, including section 9799.15 (relating to period of
registration).
42 Pa.C.S.A. § 9799.19.
§ 9799.25. Verification by sexual offenders and Pennsylvania
State Police.
(a) Periodic verification.--Except for initial registration as provided
in section 9799.19 (relating to initial registration) and in
accordance with section 9799.15(a) (relating to period of
registration), sexual offenders shall verify the information
provided in section 9799.16(b) (relating to registry) and be
photographed as follows:
***
(3) An individual convicted of a Tier III sexual offense shall appear
in person at an approved registration site quarterly.
42 Pa.C.S.A. § 9799.25.
Section 9755.16(b), relating to the registration information to be
provided by a sexual offender, referenced in all three of the above provisions,
provides in pertinent part:
§ 9799.16. Registry.
(b) Information provided by sexual offender.--An individual
specified in section 9799.13 (relating to applicability) shall provide
the following information which shall be included in the registry:
-7-
J-E02006-19
(1) Primary or given name, including an alias used by the
individual, nickname, pseudonym, ethnic or tribal name,
regardless of the context used and any designations or monikers
used for self-identification in Internet communications or
postings.
(2) Designation used by the individual for purposes of routing or
self-identification in Internet communications or postings.
(3) Telephone number, including cell phone number, and any
other designation used by the individual for purposes of routing or
self-identification in telephonic communications.
***
(9) Name and address where the individual is employed or will be
employed. In order to fulfill the requirements of this paragraph, if
the individual is not employed in a fixed workplace, the individual
shall provide information regarding general travel routes and
general areas where the individual works.
42 Pa.C.S.A. § 9799.16(b).
Assuming for the moment Appellant is subject to SORNA's registration
requirements, Appellant qualifies as a Tier III sex offender. As such, he had
an initial and continuing duty to verify his address or be photographed under
the above-cited provisions of SORNA, and his failure to do so on a quarterly
basis constitutes a violation of Section 4915.1(a)(2).
The next step required under Muniz, which I would have the trial court
perform, is to determine whether the above cited provisions of Sections
4799.15, 4799.19, and 4799.25 disadvantage Appellant more than Maryland’s
sexual offender registration laws. If they do, I would conclude that there is
an ex post facto violation. If they do not, I would conclude that there is no ex
post facto violation. See Santana, 2020 WL 6145155, *13 (concluding, after
comparison of relevant provisions of SORNA with relevant provisions of New
-8-
J-E02006-19
York sexual offender registration law, that there was no ex post facto
violation).
Accordingly, I would remand this case for the trial court to carry out the
analysis I have outlined above.
-9-