Commonwealth, Aplt. v. Witmayer, M.

[J-103A-2019 and J-103B-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 35 MAP 2018
:
Appellant : Appeal from the Order of the
: Montgomery County Court of
: Common Pleas, Criminal Division,
v. : at No. CP-46-CR-1445-1997. dated
: June 21, 2018
:
CLAUDE LACOMBE, : ARGUED: November 20, 2019
:
Appellee :
COMMONWEALTH OF PENNSYLVANIA, : No. 64 MAP 2018
:
Appellant : Appeal from the Order of
: Montgomery County Court of
: Common Pleas, Criminal Division,
v. : at No. CP-46-CR-0004935-2013
: dated October 26, 2018.
:
MICHAEL WITMAYER, : ARGUED: November 20, 2019
:
Appellee :
OPINION
JUSTICE DOUGHERTY1 DECIDED: July 21, 2020
In these consolidated appeals, the Commonwealth challenges orders of the
Montgomery County Court of Common Pleas relieving appellees, Claude Lacombe and
Michael Witmayer, of their duty to comply with Subchapter I of the Sex Offender
Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.51-9799.75, based upon
1 The matter was reassigned to this author.
the court’s finding Subchapter I, as retroactively applied to appellees, is a punitive and
unconstitutional ex post facto law.2 For the reasons set forth below, we now hold this
was error, Subchapter I is nonpunitive and does not violate the constitutional prohibition
against ex post facto laws.
I. Procedural History of the Present Appeals
A. Claude Lacombe
In 1997, Lacombe was convicted of involuntary deviate sexual intercourse (IDSI),
sexual assault, indecent assault, official oppression, and unsworn falsification to
authorities and sentenced to a term of six to twenty years’ imprisonment. Lacombe was
not found to be a sexually violent predator (SVP), but was required to comply with the
then-applicable version of Megan’s Law for a period of ten years upon his release from
prison due to his IDSI conviction; Lacombe was released from prison in April of 2005 and
his period of registration would have ended in April of 2015. In the meantime, however,
the General Assembly enacted the first version of SORNA, under which Lacombe was
designated as a Tier III offender and required to comply with the mandates of the statute
for the remainder of his life.
2 The prohibition of ex post facto laws appears in the United States Constitution in Article
I, Section 9, which is a limitation on Congress’ authority to pass laws, and in Article I,
Section 10, which is a limitation on the power of the states. Article I, Section 9 provides:
“No Bill of Attainder or ex post facto Law shall be passed.” U.S. CONST. art. I, §9. Article
I, Section 10 similarly provides: “No State shall . . . pass any Bill of Attainder, ex post
facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
U.S. CONST. art. I, §10.
Pennsylvania’s ex post facto provision is found in Article I, Section 17 of our Constitution,
which states that: “No ex post facto law, nor any law impairing the obligation of contracts,
or making irrevocable any grant of special privileges or immunities, shall be passed.”
PA. CONST. art I, §17.
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Lacombe did not challenge the corresponding changes to his reporting obligations
until February 20, 2018, after we decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (plurality) (SORNA requirements have punitive effect pursuant to Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963),3 and retroactive application thus constitutes ex
post facto violation). Relying upon that decision, Lacombe filed in common pleas court
a petition to terminate his sexual offender registration requirements. On June 1, 2018,
the Commonwealth replied to Lacombe’s petition, countering Lacombe’s reliance upon
Muniz, and noting Muniz addressed a former version of SORNA. By that point, the
General Assembly had enacted Subchapter I, which is markedly different from the
version of SORNA invalidated in Muniz. In response, Lacombe, still relying upon Muniz,
maintained Subchapter I also is punitive and constitutionally infirm. On June 21, 2018,
following oral argument, the court granted Lacombe’s petition, finding Subchapter I to be
a punitive and unconstitutional ex post facto law, and relieved him of any duty to comply
with Subchapter I.
The Commonwealth filed a motion for reconsideration, wherein it maintained its
position that Subchapter I is not punitive. The Commonwealth also argued for the first
time that, if Subchapter I is punitive, then any challenge thereto had to be raised in a
timely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46.
Because Lacombe’s challenge to Subchapter I was facially untimely for purposes of the
3 In Mendoza-Martinez, the United States Supreme Court listed the following seven
factors as a framework for determining whether a statutory sanction is so punitive as to
negate a legislature’s expressed intention to identify the scheme as civil or regulatory:
“[w]hether 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[.]”
372 U.S. at 168-69 (footnotes omitted).
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PCRA, according to the Commonwealth, the court lacked jurisdiction to afford any relief.
The court denied the petition for reconsideration, and the Commonwealth appealed the
order directly to this Court. See 42 Pa.C.S. §722(7) (“The Supreme Court shall have
exclusive jurisdiction of appeals from final orders . . . [in m]atters where the court of
common pleas has held invalid as repugnant to the Constitution, treaties or laws of the
United States, or to the Constitution of this Commonwealth, any treaty or law of the
United States or any provision of the Constitution of, or of any statute of, this
Commonwealth, or any provision of any home rule charter.”).
B. Michael Witmayer
In 2014, Witmayer was convicted of IDSI with a child who is less than sixteen
years of age, indecent assault of a child who is less than sixteen years of age, corruption
of the morals of a minor, and endangering the welfare of children due to a pattern of
sexual abuse which occurred between January of 2006 and December of 2012.
Before sentencing, the trial court held an SVP hearing, after which the court
determined that the Commonwealth had failed to demonstrate Witmayer met the criteria
to be deemed an SVP. Nonetheless, because the IDSI conviction constituted a Tier III
offense under the original version of SORNA, the trial court informed Witmayer that he
was obliged to register as a sexual offender and comply with SORNA’s terms and
conditions for the remainder of his life. The trial court then sentenced Witmayer to five
and one-half to twenty years in prison. Witmayer appealed, the Superior Court affirmed
his judgment of sentence, see Commonwealth v. Witmayer, 144 A.3d 939 (Pa. Super.
2016), and this Court denied review. See Commonwealth v. Witmayer, 169 A.3d 27 (Pa.
2017) (per curiam).
On January 17, 2018, Witmayer filed a timely, pro se PCRA petition. The PCRA
court appointed counsel, who filed an amended petition. Therein, Witmayer contended
[J-103A-2019 and J-103B-2019] - 4
that, because his offenses were completed before SORNA took effect, retroactive
application of SORNA constituted an ex post facto violation, an argument based on
Muniz. As it did in Lacombe’s post-conviction proceedings, the Commonwealth alerted
the PCRA court to the fact that, before Witmayer filed his amended petition, Subchapter
I had been enacted and taken effect, replacing SORNA as the governing statutory
scheme with which Witmayer had to comply. Thus, the Commonwealth posited, the
constitutional deficiencies identified in Muniz effectively were remedied, and any claim
relying upon Muniz was moot. The PCRA court directed Witmayer to file a response to
the Commonwealth’s position.
On September 20, 2018, Witmayer filed a second amended PCRA petition. In
that filing, Witmayer highlighted the fact that none of the conduct for which he was
convicted occurred after December 20, 2012, the date that determines whether
Subchapter H or Subchapter I applies.4 Because his conduct occurred before that date,
Whitmayer argued if the new scheme of Subchapter I applied to him, it had to apply
retroactively. Witmayer maintained that, because the changes to SORNA effectuated
by Subchapter I were minor, the scheme remained punitive in nature, and its retroactive
4 To address this Court’s decision in Muniz and the Superior Court’s decision in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (invalidating SORNA’s
mechanism for determining SVP status, see 42 Pa.C.S. §9799.51(b)(4)) (reversed by
Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020)), the General Assembly divided
SORNA into two subchapters. Subchapter H is based on the original SORNA statute
and is applicable to offenders who committed their offenses after the December 20, 2012
effective date of SORNA, 42 Pa.C.S. §9799.11(c); Subchapter I is applicable to
offenders, like appellees, who committed their offenses between April 22, 1996 and the
effective date of SORNA. Subchapter H is not at issue in this case. We considered a
challenge to the constitutionality of Subchapter H in Commonwealth v. Torsilieri, ___
A.3d ____, 2020 WL 3241625 (Pa. filed June 16, 2020). However, we remanded to the
trial court for further development of the record and a determination on Torsilieri’s claim
that there is now a consensus that calls into question the General Assembly’s finding
that sexual offenders pose a high risk of re-offense. Id. at *22; see also 42 Pa.C.S.
§9799.11(a)(4).
[J-103A-2019 and J-103B-2019] - 5
application necessarily constituted an ex post facto violation. The PCRA court, which
had already ruled Subchapter I is punitive and unconstitutional during Lacombe’s
proceedings, held a hearing and subsequently granted Witmayer’s PCRA petition. The
Commonwealth appealed directly to this Court. See 42 Pa.C.S. §722(7).
C. Summary of the Arguments and Applicable Standards of Review
Briefly, the parties dispute whether Subchapter I is punitive and its retroactive
application to Lacombe and Witmayer is thus unconstitutional under an ex post facto
analysis, notwithstanding the significant differences between Subchapter I and the
original SORNA statute at issue in Muniz. In the case of Lacombe, the parties also
dispute whether the PCRA is the sole avenue for challenging sexual offender statutes
and, if so, whether Lacombe was required to establish an exception to the PCRA’s
timeliness requirements.5 As we consider the parties’ arguments in greater detail below,6
“we recognize there is a general presumption that all lawfully enacted statutes are
constitutional. 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.” Muniz, 164 A.3d
at 1195 (internal citation omitted).
5 Witmayer additionally claims Subchapter I violates: 1) the separation of powers
doctrine by unconstitutionally usurping judicial sentencing authority; 2) due process
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States,
570 U.S. 99 (2013); and 3) double jeopardy protections. We do not address these
claims, however, because they were not addressed by the common pleas court in the
first instance and are thus not properly before us, and, in any event, the Commonwealth,
as appellant, has appealed only from the determination Subchapter I is unconstitutional
as an ex post facto law. See Commonwealth’s Brief at 1. Each of these claims, however,
is predicated upon Witmayer’s argument that Subchapter I is punitive and, given our
ultimate holding that Subchapter I is nonpunitive, the claims would fail in any event.
6This Court also received argument briefs from the Office of the Attorney General (OAG)
as intervenor, and amici curiae Pennsylvania District Attorneys Association, the
Pennsylvania Office of the Victim Advocate, the Pennsylvania Coalition Against Rape,
Crimewatch Technologies, Inc., in support of the Commonwealth, and the Pennsylvania
Association for Rational Sexual Offense Laws in support of appellees.
[J-103A-2019 and J-103B-2019] - 6
II. Relevant Legal History
As we consider the constitutional validity of Subchapter I, we first review the
original SORNA statute, the Muniz decision, and the new requirements of Subchapter I.
A. Original SORNA Statute
We provided a detailed description of the original SORNA statute in Muniz and
we reproduce that description here:
The General Assembly enacted SORNA in response to the federal Adam
Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 42
U.S.C. §§16901-16991, which mandates that states impose on sex
offenders certain tier-based registration and notification requirements in
order to avoid being subject to a penalty, i.e., the loss of federal grant
funding. In re J.B., 107 A.3d 1, 3 (Pa. 2014). Accordingly, Pennsylvania’s
General Assembly sought to comply with this federal legislation by
providing for “the expiration of prior registration requirements, commonly
referred to as Megan’s Law [III], 42 Pa.C.S. §§9791-9799.9, as of
December 20, 2012, and for the effectiveness of SORNA on the same
date.” Id.
The purposes of SORNA, as stated by the General Assembly, are as
follows:
(1) To bring the Commonwealth into substantial compliance
with the Adam Walsh Child Protection and Safety Act of 2006
...
(2) To require individuals convicted or adjudicated delinquent
of certain sexual offenses to register with the Pennsylvania
State Police and to otherwise comply with this subchapter if
those individuals reside within this Commonwealth, intend to
reside within this Commonwealth, attend an educational
institution inside this Commonwealth or are employed or
conduct volunteer work within this Commonwealth.
(3) To require individuals convicted or adjudicated delinquent
of certain sexual offenses who fail to maintain a residence
and are therefore homeless but can still be found within the
borders of this Commonwealth to register with the
Pennsylvania State Police.
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(4) To require individuals who are currently subject to the
criminal justice system of this Commonwealth as inmates,
supervised with respect to probation or parole or registrants
under this subchapter to register with the Pennsylvania State
Police and to otherwise comply with this subchapter. To the
extent practicable and consistent with the requirements of
the Adam Walsh Child Protection and Safety Act of 2006, this
subchapter shall be construed to maintain existing
procedures regarding registration of sexual offenders who
are subject to the criminal justice system of this
Commonwealth.
(5) To provide a mechanism for members of the general
public to obtain information about certain sexual offenders
from a public Internet website and to include on that Internet
website a feature which will allow a member of the public to
enter a zip code or geographic radius and determine whether
a sexual offender resides within that zip code or radius.
(6) To provide a mechanism for law enforcement entities
within this Commonwealth to obtain information about certain
sexual offenders and to allow law enforcement entities
outside this Commonwealth, including those within the
Federal Government, to obtain current information about
certain sexual offenders.
42 Pa.C.S. §9799.10. Furthermore, the General Assembly expressed the
legislative findings and declaration of policy supporting SORNA as follows:
(a) Legislative findings.— The General Assembly finds as
follows:
(1) In 1995 the General Assembly enacted the act of October
24, 1995 (1st Sp. Sess. P.L. 1079, No. 24), commonly
referred to as Megan’s Law. Through this enactment, the
General Assembly intended to comply with legislation
enacted by Congress requiring that states provide for the
registration of sexual offenders. The Federal statute, the
Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act (Public Law 103-322, 42
U.S.C. 14071 et seq.), has been superseded by the Adam
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Walsh Child Protection and Safety Act of 2006 (Public Law
190-248, 120 Stat. 587).
(2) This Commonwealth’s laws regarding registration of
sexual offenders need to be strengthened. The Adam Walsh
Child Protection and Safety Act of 2006 provides a
mechanism for the Commonwealth to increase its regulation
of sexual offenders in a manner which is nonpunitive but
offers an increased measure of protection to the citizens of
this Commonwealth.
(3) If the public is provided adequate notice and information
about sexual offenders, the community can develop
constructive plans to prepare for the presence of sexual
offenders in the community. This allows communities to
meet with law enforcement to prepare and obtain information
about the rights and responsibilities of the community and to
provide education and counseling to residents, particularly
children.
(4) Sexual offenders pose a high risk of committing additional
sexual offenses and protection of the public from this type of
offender is a paramount governmental interest.
(5) Sexual offenders have a reduced expectation of privacy
because of the public’s interest in public safety and in the
effective operation of government.
(6) Release of information about sexual offenders to public
agencies and the general public will further the governmental
interests of public safety and public scrutiny of the criminal
and mental health systems so long as the information
released is rationally related to the furtherance of those
goals.
(7) Knowledge of whether a person is a sexual offender could
be a significant factor in protecting oneself and one’s family
members, or those in care of a group or community
organization, from recidivist acts by such offenders.
(8) The technology afforded by the Internet and other modern
electronic communication methods makes this information
readily accessible to parents, minors, and private entities,
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enabling them to undertake appropriate remedial precautions
to prevent or avoid placing potential victims at risk.
(b) Declaration of policy.— The General Assembly
declares as follows:
(1) It is the intention of the General Assembly to substantially
comply with the Adam Walsh Child Protection and Safety Act
of 2006 and to further protect the safety and general welfare
of the citizens of this Commonwealth by providing for
increased regulation of sexual offenders, specifically as that
regulation relates to registration of sexual offenders and
community notification about sexual offenders.
(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.
(3) It is the intention of the General Assembly to address the
Pennsylvania Supreme Court’s decision in Commonwealth v.
Neiman, [84 A.3d 603] (Pa. 2013), by amending this
subchapter in the act of March 14, 2014 (P.L. 41, No. 19).
42 Pa.C.S. §9799.11(a)-(b).
SORNA’s registration provisions are applicable to, inter alia, the following
individuals: (1) those convicted of a sexually violent offense, on or after the
effective date of SORNA, who are residents of Pennsylvania, employed in
Pennsylvania, students in Pennsylvania or transients; (2) those who are
inmates, on or after the effective date of SORNA, in state or county prisons
as a result of a conviction for a sexually violent offense; (3) those who, on
or after the effective date of SORNA, are inmates in a federal prison or are
supervised by federal probation authorities as a result of a sexually violent
offense and have a residence in Pennsylvania, are employed in
Pennsylvania, are students in Pennsylvania or transients; and, pertinent to
this appeal, (4) those who were required to register under previous
versions of Megan’s Law and had not yet fulfilled their registration period
as of the effective date of SORNA. 42 Pa.C.S. §9799.13.
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SORNA classifies offenders and their offenses into three tiers. 42 Pa.C.S.
§9799.14. Those convicted of Tier I offenses are subject to registration for
a period of fifteen years and are required to verify their registration
information and be photographed, in person at an approved registration
site, annually. 42 Pa.C.S. §9799.15(a)(1), (e)(1).16 Those convicted of
Tier II offenses are subject to registration for a period of twenty-five years
and are required to verify their registration information and be
photographed, in person at an approved registration site, semi-annually.
42 Pa.C.S. §9799.15(a)(2), (e)(2).17
______________
16 The Tier I offenses enumerated in SORNA are as follows:
18 Pa.C.S. §2902(b) (relating to unlawful restraint); 18
Pa.C.S. §2903(b) (relating to false imprisonment); 18 Pa.C.S.
§2904 (relating to interference with custody of children); 18
Pa.C.S. §2910 (relating to luring a child into a motor vehicle
or structure); 18 Pa.C.S. §3124.2(a) (relating to institutional
sexual assault); 18 Pa.C.S. §3126(a)(1) (relating to indecent
assault); 18 Pa.C.S. §6301(a)(1)(ii) (relating to corruption of
minors); 18 Pa.C.S. §6312(d) (relating to sexual abuse of
children); 18 Pa.C.S. §7507.1 (relating to invasion of privacy);
18 U.S.C. §1801 (relating to video voyeurism); 18 U.S.C.
§2252(a)(4) (relating to certain activities relating to material
involving the sexual exploitation of minors); 18 U.S.C. §2252A
(relating to certain activities relating to material constituting or
containing child pornography); 18 U.S.C. §2252B (relating to
misleading domain names on the internet); 18 U.S.C. §2252C
(relating to misleading words or digital images on the internet);
18 U.S.C. §2422(a) (relating to coercion and enticement); 18
U.S.C. §2423(b) (relating to transportation of minors); 18
U.S.C. §2423(c) (relating to engaging in illicit sexual conduct
in foreign places); 18 U.S.C. §2424 (relating to filing factual
statement about alien individual); 18 U.S.C. §2425 (relating to
use of interstate facilities to transmit information about a
minor); a comparable military offense or similar offense under
the laws of another jurisdiction or foreign country or under a
former law of this Commonwealth; an attempt, conspiracy or
solicitation to commit any of the above offenses; and a
conviction for a sexual offense in another jurisdiction or
foreign country that is not set forth in this section, but
nevertheless requires registration under a sexual offender
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statute in the jurisdiction or foreign country. 42 Pa.C.S.
§9799.14(b).
17 The Tier II offenses enumerated in SORNA are as follows:
18 Pa.C.S. §3011(b) (relating to trafficking in individuals); 18
Pa.C.S. §3122.1(a)(2) (relating to statutory sexual assault);
18 Pa.C.S. §3124.2(a.2) and (a.3) (relating to institutional
sexual assault in schools or child care centers); 18 Pa.C.S.
§3126(a)(2), (3), (4), (5), (6) or (8) (relating to indecent assault
when victim is over 13 years of age); 18 Pa.C.S. §5902(b.1)
(relating to prostitution and related offenses); 18 Pa.C.S.
§5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to obscene and
other sexual materials and performances); 18 Pa.C.S.
§6312(b) and (c); 18 Pa.C.S. §6318 (relating to unlawful
contact with minor); 18 Pa.C.S. §6320 (relating to sexual
exploitation of children); 18 U.S.C. §1591 (relating to sex
trafficking of children by force, fraud or coercion); 18 U.S.C.
§2243 (relating to sexual abuse of a minor or ward); 18 U.S.C.
§2244 (relating to abusive sexual conduct) where the victim is
13 years of age or older but under 18 years of age; 18 U.S.C.
§2251 (relating to sexual exploitation of children); 18 U.S.C.
§2251A (relating to selling or buying children); 18 U.S.C.
§2252(a)(1), (2) or (3); 18 U.S.C. §2260 (relating to production
of sexually explicit depictions of a minor for importation into
the United States); 18 U.S.C. §2421 (relating to transportation
generally); 18 U.S.C. §2422(b); 18 U.S.C. §2423(a); a
comparable military offense or similar offense under the laws
of another jurisdiction or foreign country or under a former law
of this Commonwealth; and an attempt, conspiracy or
solicitation to commit any of the above offenses. 42 Pa.C.S.
§9799.14(c).
Those convicted of Tier III offenses are subject to lifetime registration and
are required to verify their registration information and be photographed, in
person at an approved registration site, quarterly. 42 Pa.C.S.
§9799.15(a)(3), (e)(3). The Tier III offenses enumerated in SORNA—
including the crime of which appellant was convicted, indecent assault
where the individual is less than thirteen years of age—are as follows:
(1) 18 Pa.C.S. §2901(a.1) (relating to kidnapping).
(2) 18 Pa.C.S. §3121 (relating to rape).
(3) 18 Pa.C.S. §3122.1(b) (relating to statutory sexual
assault).
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(4) 18 Pa.C.S. §3123 (relating to involuntary deviate sexual
intercourse).
(5) 18 Pa.C.S. §3124.1 (relating to sexual assault).
(6) 18 Pa.C.S. §3124.2(a.1) [relating to institutional sexual
assault].
(7) 18 Pa.C.S. §3125 (relating to aggravated indecent
assault).
(8) 18 Pa.C.S. §3126(a)(7) (relating to indecent assault [of
victim under 13 years of age]).
(9) 18 Pa.C.S. §4302(b) (relating to incest).
(10) 18 U.S.C. §2241 (relating to aggravated sexual abuse).
(11) 18 U.S.C. §2242 (relating to sexual abuse).
(12) 18 U.S.C. §2244 [abusive sexual contact] where the
victim is under 13 years of age.
(13) A comparable military offense or similar offense under
the laws of another jurisdiction or foreign country or under a
former law of this Commonwealth.
(14) An attempt, conspiracy or solicitation to commit an
offense listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8),
(9), (10), (11), (12) or (13).
(15) (Reserved).
(16) Two or more convictions of offenses listed as Tier I or
Tier II sexual offenses.
42 Pa.C.S. §9799.14(d).
SORNA also establishes a statewide registry of sexual offenders to be
created and maintained by the state police. 42 Pa.C.S. §9799.16(a). The
registry contains information provided by the sexual offender, including:
names and aliases, designations used by the offender for purposes of
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routing or self-identification in internet communications, telephone
numbers, social security number, addresses, temporary habitat if a
transient, temporary lodging information, passport and documents
establishing immigration status, employment information, occupational and
professional licensing information, student enrollment information, motor
vehicle information, and date of birth. 42 Pa.C.S. §9799.16(b). The
registry also contains information from the state police, including the
following: physical description of the offender, including a general physical
description, tattoos, scars and other identifying marks, text of the statute
defining the offense for which the offender is registered, criminal history
information, current photograph, fingerprints, palm prints and a DNA
sample from the offender, and a photocopy of the offender’s driver’s
license or identification card. 42 Pa.C.S. §9799.16(c).
Not only does SORNA establish a registry of sexual offenders, but it also
directs the state police to make information available to the public through
the internet. 42 Pa.C.S. §9799.28. The resulting website “[c]ontains a
feature to permit a member of the public to obtain relevant information for
an [offender] by a query of the internet website based on search criteria
including searches for any given zip code or geographic radius set by the
user.” 42 Pa.C.S. §9799.28(a)(1)(i). The website also “[c]ontains a feature
to allow a member of the public to receive electronic notification when [an
offender] provides [updated] information [and also allows] a member of the
public to receive electronic notification when [an offender] moves into or
out of a geographic area chosen by the user.” 42 Pa.C.S.
§9799.28(a)(1)(ii). The Pennsylvania website must coordinate with the Dru
Sjodin National Sex Offender Public Internet Website
(https://www.nsopw.gov) and must be updated within three business days
of receipt of required information. 42 Pa.C.S. §9799.28(a)(1)(iii), (iv).
In addition to the offender’s duty to appear at an approved registration site
annually, semi-annually, or quarterly, depending upon the tier of their
offense, all offenders are also required to appear in person at an approved
registration site within three business days of any changes to their
registration information including a change of name, residence,
employment, student status, telephone number, ownership of a motor
vehicle, temporary lodging, e-mail address, and information related to
professional licensing. 42 Pa.C.S. §9799.15(g). Offenders must also
appear in person at an approved registration site within twenty-one days in
advance of traveling outside the United States and must provide dates of
travel, destinations, and temporary lodging. 42 Pa.C.S. §9799.15(i).
Furthermore, transients, i.e. homeless individuals, must appear in person
monthly until a residence is established. 42 Pa.C.S. §9799.15(h)(1).
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Offenders who fail to register, verify their information at the appropriate
time, or provide accurate information are subject to prosecution and
incarceration under 18 Pa.C.S. §4915.1 (failure to comply with registration
requirements). 42 Pa.C.S. §9799.21(a).
Muniz, 164 A.3d at 1203-08 (additional internal footnotes omitted).
B. Muniz
In Muniz, we considered a constitutional challenge to the retroactive application
of SORNA to those offenders who committed their offenses prior to its effective date of
December 20, 2012. We began by examining the history of the ex post facto clause,
see Muniz, 164 A.3d at 1195-96, and explained that SORNA’s retroactive application
could only result in an ex post facto violation if the statute constituted criminal
punishment. Accordingly, we applied a two-part test, first determining whether the
expressed statutory purpose is to impose punishment, and if not, whether the statutory
scheme is so punitive in effect as to negate the legislature’s stated non-punitive intent.
See Kansas v. Hendricks, 521 U.S. 346, 361 (1997). We also reviewed the decisions in
Smith v. Doe, 538 U.S. 84 (2003),7 and Commonwealth v. Williams, 832 A.2d 962 (Pa.
2003) (Williams II),8 which applied this same framework.
We recently summarized the Muniz Court’s analysis regarding the punitive nature
of SORNA in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (Butler II):
In Muniz, we . . . first determined “the General Assembly’s intent in enacting
SORNA apparently was twofold: to comply with federal law; and . . . ‘not to
punish, but to promote public safety through a civil, regulatory scheme.’” Id.
at 1209-10, quoting Williams II, 832 A.2d at 972.
7 In Smith, the United States Supreme Court upheld an Alaska sex offender registration
statute, finding it was nonpunitive following an analysis of the Mendoza-Martinez factors.
538 U.S. at 105-06.
8 Relevant here, the Williams II Court found the registration, notification, and counseling
requirements imposed upon SVPs pursuant to Megan’s Law II were nonpunitive. 832
A.2d at 984.
[J-103A-2019 and J-103B-2019] - 15
Moreover, in Muniz, we considered the Mendoza-Martinez factors and
found SORNA imposed an affirmative disability or restraint upon offenders
due to the onerous in-person reporting requirements for both verification
and changes to an offender’s registration. Id. at 1211. . . . We also
determined in Muniz that SORNA’s requirements were analogous to
historical forms of punishment, specifically holding the statute’s “publication
provisions — when viewed in the context of our current internet-based world
— to be comparable to shaming punishments” and the mandatory
conditions placed on registrants to be akin to probation. Id. at 1213.
The Muniz Court next determined the fact SORNA comes into play only
upon a finding of scienter was of little significance to our inquiry because
“past criminal conduct is ‘a necessary beginning point’” for statutes that are
intended to protect the public. Id. at 1214, quoting Smith, 538 U.S. at 105.
We further held in Muniz that SORNA promotes the traditional aims of
punishment as “the prospect of being labeled a sex offender accompanied
by registration requirements and the public dissemination of an offender’s
personal information over the internet has a deterrent effect.” Id. at 1215.
In so holding, we distinguished Williams II, stating there was a clear
deterrent effect since, “[c]ontrary to Megan’s Law II, as analyzed in Williams
II, there is not a ‘substantial period of incarceration attached to’ many of the
predicate offenses requiring registration under SORNA, many of which are
misdemeanors or carry relatively short maximum terms of incarceration.”
Id., quoting Williams II, 832 A.2d at 978 (internal footnotes omitted). Muniz
also stated the General Assembly increased the retributive effect of SORNA
as compared to Megan’s Law II by “increas[ing] the length of registration,
[adding] mandatory in-person reporting requirements, and allow[ing] for
more private information to be displayed online.” Id. at 1216 (citation
omitted). We also determined in Muniz that whether or not the behavior to
which SORNA applies is already a crime carries little weight, stating “where
SORNA is aimed at protecting the public against recidivism, past criminal
conduct is ‘a necessary beginning point.’” Id., quoting Smith, 538 U.S. at
105.
Although recognizing “there are studies which find the majority of sexual
offenders will not re-offend, and that sex offender registration laws are
ineffective in preventing re-offense[,]” we deferred in Muniz to the General
Assembly’s policy determination and concluded the protection of the public
from sex offenders “is a purpose other than punishment to which the statute
may be rationally connected and this factor weighs in favor of finding
SORNA to be nonpunitive.” Id. at 1217. Lastly, we determined SORNA’s
registration requirements were excessive and over-inclusive in relation to
the statute’s intended purpose of protecting the public; it “categorize[d] a
[J-103A-2019 and J-103B-2019] - 16
broad range of individuals as sex offenders subject to its provisions,
including those convicted of offenses that do not specifically relate to a
sexual act.” Id. at 1218. Accordingly, we held in Muniz that SORNA’s
registration requirements constituted punishment and their retroactive
application constituted a violation of the constitutional prohibition against ex
post facto laws. Id.
Butler II, 226 A.3d at 980-81.
C. Subchapter I
In response to Muniz and the Superior Court’s decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I) (invalidating SORNA’s mechanism for
determining SVP status, see 42 Pa.C.S. §9799.51(b)(4)), rev’d 226 A.3d 972 (Pa. 2020),
the General Assembly enacted Subchapter I, the retroactive application of which became
the operative version of SORNA for those sexual offenders whose crimes occurred
between April 22, 1996 and December 20, 2012. In this new statutory scheme, the
General Assembly, inter alia, eliminated a number of crimes that previously triggered
application of SORNA and reduced the frequency with which an offender must report in
person to the Pennsylvania State Police (PSP). With regard to Subchapter I, the General
Assembly declared its intent that the statute “shall not be considered as punitive.” 42
Pa.C.S. §9799.51(b)(2).
To achieve its dual goals of ensuring public safety without creating another
unconstitutionally punitive scheme, the General Assembly made a number of material
changes to the operation of SORNA. The provisions of Subchapter I most relevant to
our present analysis follow:
• Subchapter I applies to those convicted of a sexually violent offense
after April 22, 1996, but before December 20, 2012. 42 Pa.C.S.
§9799.52(1), (2).
• Those convicted of one of the triggering offenses must register
either for a period of ten years or for life. 42 Pa.C.S. §9799.55(a),
(b). Those offenders designated as SVPs must register for life. Id.
§9799.55(b)(3).
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• Persons convicted of the following crimes are subjected to a ten-
year registration period: kidnapping, indecent assault, incest,
prostitution, obscene and sexual materials, sexual abuse of
children, unlawful contact with a minor, sexual exploitation of
children, luring a child into a motor vehicle, and institutional sexual
assault. 42 Pa.C.S. §9799.55(a).
• Persons convicted of the following crimes, SVPs, and offenders
convicted of two or more of the ten-year reporting crimes are subject
to lifetime registration: rape, IDSI, sexual assault, aggravated
indecent assault, and incest with a child under the age of twelve. 42
Pa.C.S. §9799.55(b).
• A number of crimes, which were included in SORNA, and are not
necessarily sexually related, were removed from the list of triggering
offenses in Subchapter I, including, but not limited to, the following:
unlawful restraint, false imprisonment, interference with custody of
children, and invasion of privacy.
• A non-SVP must report in person once per year at an approved
facility to verify their residence and be photographed. 42 Pa.C.S.
§§9799.60(b), 9799.54(b). An SVP must report in person four times
per year. Id. §9799.60(a).
• All offenders must contact the PSP within three days of any change
to their registration information, including changes to residence,
employment, or education. However, Subchapter I does not require
that the offender must appear in person to satisfy this obligation. 42
Pa.C.S. §9799.56(a)(2).
• Generally, failure to comply with the registration requirements
results in a felony prosecution. 42 Pa.C.S. §9799.60(e); 18 Pa.C.S.
§4915.2(b), (c).
• The subchapter also establishes a website to be operated in
conjunction with the statewide registry. The website will publish the
following information as to each offender: (1) name and known
aliases; (2) year of birth; (3) the address, municipality, county, and
zip code of any residence at which the offender lives; (4) the location
of any schools attended by the offender; (5) the address of any
employment location; (6) a photograph of the offender that must be
updated at least once per year; (7) a physical description of the
offender, including sex, height, weight, eye color, hair color, and
race; (8) any identifying marks, including tattoos, scars, or
birthmarks; (9) the license plate number and a description for any
vehicle owned or registered to the offender; (10) a status report
regarding whether the offender is compliant with the terms of
[J-103A-2019 and J-103B-2019] - 18
SORNA; (11) an indication of whether the offender’s victim was a
minor; (12) a description of the offense committed by the offender;
(13) the dates of the offense and conviction; and (14) the location of
the offender’s temporary shelter and where the offender receives
mail, if the offender is homeless. 42 Pa.C.S. §9799.63(c).
• If a member of the public so desires, the website will alert that
person by electronic notification if an offender moves in or out of the
geographic area designated by the person. 42 Pa.C.S.
§9799.63(b)(7).
• Finally, an SVP or lifetime reporter can petition a court to be removed
from the statewide registry. At the time of the petition, the SVP must
not have been convicted of any crime punishable by one year or
longer after being released from prison or after registering for the first
time, whichever is later, for a period of twenty-five years. Also, the
offender must be reviewed by a member of the Sexual Offender
Assessment Board. The SVP or lifetime reporter must demonstrate
by clear and convincing evidence that he or she no longer poses a
risk, or a threat of risk, to the public or any individual person. 42
Pa.C.S. §9799.59(a).
III. Preliminary Procedural Issues
As we have stated, unlike Witmayer, Lacombe did not challenge the propriety of
his sex offender registration status in a timely filed PCRA petition, but instead filed a
“Petition to Terminate His Sexual Offender Registration Requirements.” The
Commonwealth and OAG contend Lacombe was required to challenge his sex offender
registration status within the confines of the PCRA. See Commonwealth’s Brief at 56-
59; OAG’s Brief at 46. Due to Lacombe’s failure to file a PCRA petition, and his
concomitant failure to satisfy one of the exceptions to the PCRA’s timeliness
requirements, see 42 Pa.C.S. §9545(b), the Commonwealth and OAG argue the trial
court lacked jurisdiction to consider Lacombe’s petition. Commonwealth’s Brief at 56-
62; OAG’s Brief at 46-48. In response, Lacombe claims “the fundamental flaw with the
Commonwealth’s argument is that it relies on circular logic[;]” “the court’s determination
of whether it has jurisdiction to decide the merits of the claim, would depend upon the
court’s determination of the merits of the claim.” Lacombe’s Brief at 36. Lacombe further
[J-103A-2019 and J-103B-2019] - 19
claims that, “under the Commonwealth’s argument, the General Assembly could enact
legislation ten (10) years after a defendant’s sentence became final which required all
persons convicted of a sexually violent offense to be confined to an institution for an
additional thirty (30) days, and the defendant would have no judicial recourse.” Id.
Lastly, Lacombe contends his petition was timely because it should be considered a
challenge to the judgment of sentence, and thus “the one-year filing limitation applicable
to PCRA[ petitions] would begin to run from the effective date of the legislation that
imposed the challenged registration requirements[.]” Id. at 36-37.
This Court has not yet required that sexual offender registration statutes be
challenged through the PCRA or some other procedural mechanism. Indeed, we have
consistently decided cases regarding sexual offender registration statutes that were
challenged via different types of filings. See Muniz, supra (successful challenge to
constitutionality of SORNA via direct appeal), Commonwealth v. Martinez, 147 A.3d 517,
523 (Pa. 2016) (successful challenge to increase of registration term through “Petition to
Enforce Plea Agreement or for a Writ of Habeas Corpus” where PCRA petition would
have been untimely), A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7 (Pa. 2016)
(successful challenge to registration term through mandamus action against PSP),
Williams II, supra (unsuccessful challenge to constitutionality of Megan’s Law II through
“Motion for Extraordinary Relief” and “Motion for Relief”). Our approach in this regard
takes into account the fact that frequent changes to sexual offender registration statutes,
along with more onerous requirements and retroactive application, complicate
registrants’ ability to challenge new requirements imposed years after their sentences
become final.
This is especially so under the PCRA as many registrants, Lacombe included,
would be ineligible for relief on timeliness grounds. See 42 Pa.C.S. §9545(b)(1) (PCRA
[J-103A-2019 and J-103B-2019] - 20
petition must be filed within one year of judgment of sentence becoming final unless
exception applies). Other registrants may be ineligible because their sentence has
expired while their registration requirements continue. See 42 Pa.C.S. §9543(a)(1)
(PCRA petitioner must be serving sentence to be eligible for relief). Both situations arise
from the fact that the registration period does not begin until registrants are released
from prison, which may be well after their sentence has become final or may signal the
completion of their sentence. Accordingly, we decline to find the PCRA, or any other
procedural mechanism, is the exclusive method for challenging sexual offender
registration statutes and we thus conclude the trial court had jurisdiction to consider
Lacombe’s “Petition to Terminate His Sexual Offender Registration Requirements.”
IV. Ex Post Facto Analysis
As stated above, the threshold question for determining whether the retroactive
application of Subchapter I to appellees violates the constitutional prohibition against ex
post facto laws is whether the requirements of Subchapter I constitute criminal
punishment. See Muniz, 164 A.3d at 1208 (“Our decision regarding violation of [the ex
post facto] clause depends on the determination of whether SORNA’s retroactive
application to [Muniz] constitutes punishment.”). Accordingly, we apply the two-part
analysis employed in Muniz and previous cases:
We first consider whether the General Assembly’s “intent was to impose
punishment, and, if not, whether the statutory scheme is nonetheless so
punitive either in purpose or effect as to negate the legislature’s non-
punitive intent.” Williams II, 832 A.2d at 971. If we find the General
Assembly intended to enact a civil scheme, we then must determine
whether the law is punitive in effect by considering the Mendoza-Martinez
factors. Id. at 972. We recognize only the “clearest proof” may establish
that a law is punitive in effect. [Commonwealth v. Lee, 935 A.2d 865, 876-
77 (Pa. 2007)]. Furthermore, in determining whether a statute is civil or
punitive, we must examine the law’s entire statutory scheme. Smith, 538
U.S. at 92.
[J-103A-2019 and J-103B-2019] - 21
Id.
A. Intent of General Assembly
The parties do not dispute that the General Assembly’s purpose in enacting
Subchapter I was non-punitive, that is, it intended to enact a civil regulatory scheme.
The General Assembly stated the purpose of Subchapter I is 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). Further, the General Assembly expressly
declared that Subchapter I “shall not be construed as punitive.” Id. §9799.51(b)(2). We
therefore proceed to the second part of our ex post facto analysis.
B. Mendoza-Martinez Factors
i. Whether Subchapter I Involves an Affirmative Disability or Restraint
The Commonwealth argues Subchapter I does not involve an affirmative disability
or restraint because its requirements are minimal and much less onerous than those
imposed by SORNA. Commonwealth’s Brief at 28, 33.9 The Commonwealth specifically
points out the fact that Subchapter I reduces in-person reporting requirements, the length
of registration, and the list of registerable offenses as compared to SORNA, and adds a
removal mechanism. Id. at 30-31.
Lacombe argues Subchapter I’s reduction of in-person reporting is minimal and
the removal mechanism is illusory as it is nearly impossible to comply with and achieve.
Lacombe’s Brief at 17. Lacombe ultimately contends the “slight reduction in the
9 The briefs filed by the Commonwealth in the present appeals are nearly identical with
regard to the Commonwealth’s Mendoza-Martinez analysis; we use the brief filed in
Lacombe’s case to summarize the Commonwealth’s arguments. We also provide
arguments of the OAG, where necessary, using the brief it filed in Lacombe’s case.
[J-103A-2019 and J-103B-2019] - 22
frequency of in-person reporting for non-SVPs and the illusory procedure for removal
from the registry fall[ ] woefully short of alleviating the affirmative disabilities and
restraints that so concerned this Court in . . . Muniz.” Id. at 18. Witmayer adds that
Subchapter I also imposes secondary disabilities and restraints impacting “a person’s
social and psychological well-being, his ability to find and keep housing, employment
and schooling, the likelihood he will be subject to violence, and his ability to travel out of
state[,]” all of which “flow directly and inevitably from registration.” Witmayer’s Brief at
35.
We agree with Commonwealth as to this factor. Subchapter I has significantly
reduced in-person reporting requirements that alleviate many of the concerns expressed
in Muniz, and we thus conclude Subchapter I does not impose an affirmative disability
or restraint. Although in Muniz we distinguished SORNA from the statute at issue in
Smith10 due to SORNA’s in-person reporting requirements, see Muniz, 164 A.3d at 1210,
we focused on the frequency of in-person reporting required under SORNA. In Muniz,
we specifically stated as follows: “[Muniz] . . . is now required to appear in person at a
registration site four times a year, a minimum of 100 times over the next twenty-five
years, extending for the remainder of his life. In fact, this is the minimum number of
times [Muniz] will have to appear in person, and does not account for the times he must
appear due to his ‘free’ choices including moving to a new address or changing his
appearance.” Id. at 1210-11 (internal citations, quotations, and footnote omitted).
Subchapter I offenders are now required to report in person annually rather than
quarterly, 42 Pa.C.S. §9799.60(b), which limits the in-person appearances of lifetime
registrants to twenty-five times over a twenty-five year period as compared to 100 times
10 The Alaska statute, which did not require in-person reporting, was determined not to
involve an affirmative disability or restraint. Smith, 538 U.S. at 99-101.
[J-103A-2019 and J-103B-2019] - 23
over a twenty-five year period, which was determined to be an affirmative disability or
restraint in Muniz. The currently-required annual appearance is necessary to maintain
a useful updated photograph on the Megan’s Law website. Furthermore, Subchapter I
offenders are no longer required to appear in person to report changes to registration-
related information. 42 Pa.C.S. §9799.56(a)(2).11 As well, the majority of these
offenders are subject only to a ten-year reporting requirement rather than the fifteen or
twenty-five year periods considered in Muniz, compare 42 Pa.C.S. §9799.55 with 42
Pa.C.S. §9799.15(a) (effective Dec. 20, 2012 through Feb. 20, 2018), and lifetime
registrants may now petition for removal from the registry after twenty-five years. 42
Pa.C.S. §9799.59. The in-person reporting requirements that remain in Subchapter I
are minimal and clearly necessary, and we thus find Subchapter I does not impose any
direct affirmative disability or restraint.12 Additionally, “minor and indirect” restraints and
disabilities, such as those cited by Witmayer, are nonpunitive. See Smith, 538 U.S. at
100 (“If the disability or restraint is minor and indirect, its effects are unlikely to be
11 Although the statute does not include any mandatory method for reporting changes to
registration-related information, it is clear that Subchapter I offenders may report such
changes by mail using a change of information form provided by the PSP on the Megan’s
Law Website, which includes instructions; the form states it is only for use by Subchapter
I offenders as those subject to Subchapter H must appear in person to update their
registration-related information. See Sexual Offender Update Form,
https://www.pameganslaw.state.pa.us/Documents/Sexual%20Offender%20Registratio
n %20-%20SP%204-218%20Public.pdf (last visited May 13, 2020).
12The dissent suggests the fact that yearly in-person reports are necessary to maintain
a current registry is irrelevant to the “prior assessment of whether the statute imposes a
disability or restraint,” and requires a “complicated and elusive line-drawing exercise.”
Dissenting Opinion, slip op at 32-33. We disagree with this characterization and
emphasize that the benefit of the annual reporting requirement, and its infrequency,
combine to distinguish our analysis in this case from Muniz, and a sexual offender
registration statute requiring “two” or “three” in-person appearances per year is simply
not before this Court. Id. at 33.
[J-103A-2019 and J-103B-2019] - 24
punitive.”). Accordingly, we conclude this factor weighs in favor of finding Subchapter I
nonpunitive.
ii. Whether Subchapter I’s Requirements Have Been Historically Regarded as
Punishment
The Commonwealth argues “Subchapter I’s requirements are nothing like colonial
era punishments” as they do not “involve physical pain or direct public confrontation, nor
are they meant to stigmatize offenders.” Commonwealth’s Brief at 34. Noting the Muniz
Court came to a different conclusion regarding the statutory requirements considered
therein, the Commonwealth contends Subchapter I is distinguishable from SORNA as to
this factor because the number of offenders subject to registration has been reduced,
less disclosure of information about offenders is required, see 42 Pa.C.S. §9799.63(c),13
and offenders can now prove rehabilitation by way of the removal mechanism.
Commonwealth’s Brief at 36-37. With regard to probation, the Commonwealth argues
the Muniz Court disregarded “critical procedural differences between violations of
probation and violations for non-compliance” such as the fact that “because non-
compliance with registration requirements is its own offense, it comes with all the
safeguards attendant to the criminal process[.]” Id. at 38-39.
In response, Lacombe contends “[t]he internet registry prescribed by Subchapter
I at [Section] 9799.63, is indistinguishable from the internet registry under SORNA” as
Section 9799.63(c), by using the word “shall,” still mandates that registration information
be posted on the internet. Lacombe’s Brief at 20-21. As such, Lacombe argues “this
13 Section 9799.63(c) is titled “Information permitted to be disclosed regarding
individuals[,]” 42 Pa.C.S. §9799.63(c) (emphasis added), as compared with Section
9799.28(b) which is titled “Required information.” 42 Pa.C.S. §9799.28(b) (emphasis
added). However, as discussed below, Section 9799.63(c) states “the Internet website
shall contain the following information . . .[,]” which requires such information be posted
on the internet just as in Section 9799.28(b). 42 Pa.C.S. §9799.63(c) (emphasis added).
[J-103A-2019 and J-103B-2019] - 25
Court’s analysis of [SORNA’s similarity to public shaming due to] the internet registry in
Muniz applies with equal force and effect to Subchapter I.” Id. at 20. With respect to
probation, Lacombe contends Subchapter I still requires reporting and other conditions
which are similar to probation and the Muniz analysis should control. Id. at 24-25.14
We reject the Commonwealth’s argument on this factor and find no reason to
deviate from our corresponding analysis in Muniz. In Muniz, we stated:
The United States Supreme Court has distinguished colonial-era public
shaming punishments from sex offender registration laws by noting public
shaming “involved more than the dissemination of information” but also
“held the person up before his fellow citizens for face-to-face shaming or
expelled him from the community.” Smith, 538 U.S. at 98. The Smith Court
found the sex offender information disseminated through the Alaska statute
is accurate and, for the most part, already public. Id. The Court noted the
publicity may cause embarrassment or ostracism for the convicted, but
found “the publicity and resulting stigma [is not] an integral part of the
objective of the regulatory scheme.” Id. at 99. The Court also stated the
fact the information is posted on the internet did not alter its conclusion since
the intent of the posting is to inform the public for its own safety, the website
itself does not provide the public with a means to shame the offender, and
members of the public must affirmatively seek out the information. Id.
As stated above, we recognize the significance of the Smith Court’s
decision with regard to its analysis of the Alaska statute. However, Smith
was decided in an earlier technological environment. The concurring
expression by now-Justice Donohue in [Commonwealth v. Perez, 97 A.3d
747 (Pa. Super. 2014)] has particular force on this point:
The environment has changed significantly with the
advancements in technology since the Supreme Court’s 2003
decision in Smith. As of the most recent report by the United
States Census Bureau, approximately 75 percent of
households in the United States have internet access.
Yesterday’s face-to-face shaming punishment can now be
accomplished online, and an individual’s presence in
cyberspace is omnipresent. The public internet website
14Witmayer’s arguments regarding this factor are substantially similar to those of
Lacombe.
[J-103A-2019 and J-103B-2019] - 26
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. In my opinion, the extended
registration period and the worldwide dissemination of
registrants’ information authorized by SORNA now outweighs
the public safety interest of the government so as to disallow
a finding that it is merely regulatory.
Perez, 97 A.3d at 765-66 (Donohue, J., concurring).
Furthermore, although the Smith Court ultimately rejected the argument
Alaska’s registration system was like probation because it did not impose
mandatory conditions, the High Court nevertheless recognized the
argument has “some force” and the argument is therefore even more
compelling where SORNA does impose such conditions. See Id. at 763
(Donohue, J. concurring), citing Smith, 538 U.S. at 101. It is clear the
Alaska statute at issue in Smith and SORNA are materially different in this
regard. As our analysis of the similarity to probation would be nearly
identical to Justice Donohue’s analysis of the issue in Perez, we again quote
from her concurring opinion with minimal, bracketed, differences arising out
of appellant’s status as a Tier III offender:
In contrast, the mandatory in-person verification requirement
in Section 9799.15(e) not only creates an affirmative restraint
upon [appellant], requiring him to appear at a designated
facility a minimum of [100] times over the next 25 years[,
extending for the remainder of his life,] as a Tier [III] offender,
but also greatly resembles the periodic meetings with
probation officers imposed on probationers. … [B]ecause
SORNA differs significantly from the statute at issue in Smith,
these disparities must be considered.
In [Williams II,] the Pennsylvania Supreme Court found that
probation has historically been considered a traditional form
of punishment. Williams [II], 832 A.2d at 977. Probation
entails a set of mandatory conditions imposed on an individual
who has either been released after serving a prison sentence,
or has been sentenced to probation in lieu of prison time. 42
Pa.C.S. §9754. These conditions can include psychiatric
treatment, limitations on travel, and notifying a probation
[J-103A-2019 and J-103B-2019] - 27
officer when any change of employment or residency occurs.
42 Pa.C.S. §9754(c). Probationers are also subject to
incarceration for a violation of any condition of their probation.
42 Pa.C.S. §9771.
Like the conditions imposed on probationers, registrants
under SORNA must notify the state police of a change in
residence or employment. 42 Pa.C.S. §9799.15(g).
Offenders also face incarceration for any non-compliance with
the registration requirements. 42 Pa.C.S. §9799.22(a).
Furthermore, SORNA requires registrants who do not have a
fixed place of work to provide “general travel routes and
general areas where the individual works” in order to be in
compliance. 42 Pa.C.S. §9799.16. The Supreme Court in
Smith stated that “[a] sex offender who fails to comply with the
reporting requirement may be subjected to criminal
prosecution for that failure, but any prosecution is a
proceeding separate from the individual’s original offense.”
Smith, 538 U.S. at 101-02. However, violations for
noncompliance with both probation and SORNA registration
requirements are procedurally parallel. Both require further
factual findings to determine whether a violation has actually
occurred. 42 Pa.C.S. §§9771(d), 9799.21. Similarly, but for
the original underlying offense, neither would be subject to the
mandatory conditions from which the potential violation
stems. The parallels between the SORNA registration
requirements and probation lead me to conclude that factor
two of the [Mendoza-Martinez] test leans towards a finding
that SORNA is punitive.
See Perez, 97 A.3d at 763-64 (Donohue, J. concurring).
We conclude the weighing process with regard to this Mendoza-Martinez
factor presents a much closer case than the Smith Court’s analysis of
Alaska’s registration statute in 2003. We consider SORNA’s publication
provisions—when viewed in the context of our current internet-based
world—to be comparable to shaming punishments. We also find SORNA
and the Alaska statute are materially different in their mandatory conditions
such that SORNA is more akin to probation. We therefore hold this factor
weighs in favor of finding SORNA’s effect to be punitive.
Muniz, 164 A.3d at 1212-13.
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Similar to SORNA, Subchapter I directs the PSP “shall” operate and maintain a
publicly accessible internet website and upload a plethora of information about each
offender. 42 Pa.C.S. §9799.63(b), (c). Subchapter I further directs the PSP to “develop,
implement and maintain a process which allows members of the public to receive
electronic notification when an individual required to register under [Subchapter I] moves
into or out of a user-designated location.” Id. §9799.63(b)(7). As such, we are
constrained to find the requirements of Subchapter I are akin to public shaming. We are
also persuaded the requirements of Subchapter I are akin to probation; just as with
SORNA, Subchapter I imposes mandatory conditions such as the in-person verification
requirements, 42 Pa.C.S. §9799.60, a requirement that offenders notify the PSP of
changes to their registration information, 42 Pa.C.S. §9799.56(a)(2), and penalties for
noncompliance, 42 Pa.C.S. §9799.60(e); 18 Pa.C.S. §4915.2(b), (c). Accordingly, we
find this factor weighs in favor of finding Subchapter I punitive.
iii. Whether Subchapter I Comes into Play Only on a Finding of Scienter
The parties agree, as do we, that “this factor is of little significance to our inquiry.”
Muniz, 164 A.3d at 1214 (citation omitted). As stated in Muniz, “where the concern of a
sex offender registration statute like SORNA is protecting the public against recidivism,
past criminal conduct is ‘a necessary beginning point.’” Id., quoting Smith, 538 U.S. at
105. As the changes effected by Subchapter I provide no reason to depart from Muniz
with regard to this factor, we accordingly assign it little weight.
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iv. Whether the Operation of Subchapter I Promotes the Traditional Aims of
Punishment
The Commonwealth contends Subchapter I does not promote deterrence and
claims this case is distinguishable from Muniz since “Subchapter I mandates a ten-year
period of registration for twelve offenses, many of which are felonies carrying maximum
sentences of as much as seven to twenty years[,]” which makes it “unlikely that the
prospect of subsequent registration for a limited period of time would have a significant
deterrent effect on a sexual offender.” Commonwealth’s Brief at 44. Regarding
retribution, the Commonwealth argues Subchapter I does not operate to affix culpability
for prior criminal conduct, but instead “serves the remedial purpose of protecting
innocent persons from victimization[.]” Id. at 46 (internal citation and quotation omitted).
The OAG adds that the criminal penalty for failure to comply with Subchapter I’s
registration requirements is not relevant to determining whether Subchapter I promotes
the traditional aims of punishment because “[t]he mere fact that a statute makes failure
to comply with a civil requirement — such as paying one’s taxes — criminal, does not
transform the underlying civil component into criminal punishment.” OAG’s Brief at 38.
Lacombe argues the Muniz Court’s concerns regarding deterrence and retribution
have not been alleviated with the passage of Subchapter I because those convicted of
certain registerable offenses “might very well receive a probationary sentence, but would
be required to register as a sex offender for ten [ ] years.” Lacombe’s Brief at 26-27.
Witmayer adds that “disproportionate retribution is an obvious goal served by
[Subchapter I]” as “[t]he underlying conviction is the necessary and the sufficient trigger
for registration; the individual cannot avoid retribution by doing nothing further.”
Witmayer’s Brief at 41. However, Witmayer concedes that Subchapter I “cannot seek
deterrence as a rationale for the law as the law is exclusively retroactive.” Id.
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We agree with appellees that Subchapter I promotes retribution just as we found
SORNA to promote retribution in Muniz. 164 A.3d at 1216. However, we also agree
with Witmayer that Subchapter I “cannot seek deterrence as a rationale for the law as
the law is exclusively retroactive.” Witmayer’s Brief at 41. In other words, Subchapter I
registrants cannot be deterred from committing the criminal activity for which they are
required to register since those crimes have already occurred.15
The same can be said for the removal mechanism. Although the removal
mechanism provides an incentive to refrain from commission of new criminal offenses,
this provision clearly does not deter the initial criminal activity. Furthermore, we agree
with the OAG that the penalties for failure to comply with registration, 18 Pa.C.S.
15 Further, even if Subchapter I was applied prospectively only, it would still be
distinguishable from SORNA; Subchapter I includes only the “mere presence” of a
deterrent purpose. See Smith, 538 U.S. at 102 (“the mere presence of a deterrent
purpose” does not “render[ ] such sanctions criminal”) (citation and quotation omitted).
The Muniz Court focused on (and found problematic) SORNA’s application to offenders
convicted of a multitude of minor crimes, including many having no sexual component at
all. 164 A.3d at 1215. In Subchapter I, however, the General Assembly removed these
minor, non-sexual crimes. See id. at 1218. Although there remains some imbalance
between the registration terms and the maximum penalties prescribed to each predicate
offense covered by Subchapter I (for example, persons convicted of indecent assault
graded as a first-degree misdemeanor, 18 Pa.C.S. §3126, must register for a period of
ten years pursuant to 42 Pa.C.S. §9799.55(a), but only face a maximum prison term of
five years under 18 Pa.C.S. §106(b)(6)), this imbalance is minimal and the problems
exposed in Muniz have been resolved. For instance, the predicate offenses under
Subchapter I no longer include federal crimes that have a maximum penalty of two years
of incarceration, see Muniz, 164 A.3d at 1215 n.20, and most predicate offenses in
Subchapter I are felonies. See OAG’s Brief at 36 n.26 (“Fourteen registerable crimes
are felony offenses. 18 Pa.C.S. §§2901(b), 4302(a), 4302(b)(1), 4302(b)(2), 5902(b.1),
6312(d.1), 6318(b), 6320(b), 3121, 3123, 3124.1, 3124.2, 3125(c), 3126(b)(3). Two
registerable crimes have the potential to be either a misdemeanor or a felony. Id. at
§§2910(a.1), 5902(c). Two registerable crimes are misdemeanors of the first degree,
which carry a potential of five years’ imprisonment. Id. at §§3126, 5903(h)(1); see also
id. at §1104(1).”). Moreover, the registration term for these offenses is only ten years,
42 Pa.C.S. §9799.55, as opposed to fifteen or twenty-five years in SORNA. 42 Pa.C.S.
§§9799.14(b)-(c) (effective Sept. 2, 2014 through Feb. 20, 2018), 9799.15(a) (effective
Dec. 20, 2012 through Feb. 20, 2018).
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§4915.2, do not promote deterrence. See OAG’s Brief at 38 (fact that statute criminalizes
failure to comply with civil requirement does not transform underlying civil component
into criminal punishment). Accordingly, we weigh this factor in favor of finding
Subchapter I punitive but give it much less weight than in Muniz because Subchapter I
is not aimed at deterrence.16
v. Whether the Behavior to which Subchapter I Applies is Already a Crime
Although Lacombe and Witmayer argue this factor should weigh in favor of finding
Subchapter I punitive, they concede it is of little weight in our analysis. In Muniz, we
stated “[a]s with the third Mendoza-Martinez factor discussed above, this factor carries
little weigh in the balance. We again recognize where SORNA is aimed at protecting the
public against recidivism, past criminal conduct is ‘a necessary beginning point.’” 164
A.3d at 1216, quoting Smith, 538 U.S. at 105. As stated in our discussion of the third
Mendoza-Martinez factor in the present matter, Subchapter I provides no reason to
depart from our analysis in Muniz and thus, we assign little weight to this factor.
vi. Whether there is an Alternative Purpose to which Subchapter I may be
Rationally Connected
The parties do not dispute that there is an alternative purpose, other than
punishment, to which Subchapter I is rationally connected. As stated above, the General
Assembly declared that the purpose of Subchapter I is to “[p]rotect the safety and general
welfare of the people of this Commonwealth by providing for registration, community
16 In his dissent, Justice Wecht criticizes what he deems an unsupported “limited view of
deterrence[,]” Dissenting Opinion, slip op. at 38, but his reliance on our statement in
Muniz 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
internet has a deterrent effect’” actually undermines his more expansive view. Id.,
quoting Muniz, 164 A.3d at 1215. The reference in Muniz to the “prospect” of becoming
a registered sex offender speaks specifically to individuals who have not yet committed
the initial criminal activity and may thus be deterred by the statute from engaging in such
activity.
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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). Such purpose is based on the General Assembly’s finding
that “sexually violent predators and offenders pose a high risk of engaging in further
offenses even after being released from incarceration or commitments, and protection
of the public from this type of offender is a paramount government interest.” Id.
§9799.51(a)(2). As we stated in Muniz, “[a]lthough there are contrary scientific studies,
we note there is by no means a consensus, and as such, we defer to the General
Assembly’s findings on this issue.” 164 A.3d at 1217.17 Accordingly, we conclude there
is a purpose other than punishment to which Subchapter I may be rationally connected
— protecting and informing the public regarding sexual offenders the General Assembly
considers dangerous — and this factor clearly weighs in favor of finding Subchapter I
nonpunitive.
vii. Whether Subchapter I is Excessive in Relation to the Alternative Purpose
Assigned
The Commonwealth argues Subchapter I is not excessive, but reasonable in light
of its stated purpose, “given that Subchapter I has slashed its list of registerable offenses,
the majority of which contain a sexual component, along with the reduced in-person
reporting, and the mechanism for removal from the registry[.]” Commonwealth’s Brief at
53-54. As such, the Commonwealth contends “Subchapter I’s requirements are not so
extremely onerous in relation to their purpose as to constitute punishment.” Id. at 54
(internal citation and quotation omitted).
17These findings by the General Assembly were not challenged by appellees here as
they were in Torsilieri.
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Lacombe claims “Subchapter I is sweepingly over broad” as it “still requires the
blanket registration of all offenders convicted of a predicate enumerated offense
regardless of that individual’s actual likelihood, or continued likelihood of reoffending”
and, “with the exception of the illusory process . . . for being removed from the registry
after twenty-five [ ] years, Subchapter I offers no procedure by which [an offender] can
show, in the first instance, that he or she does not pose an actual risk of re-offense.”
Lacombe’s Brief at 29-30.18
We are substantially aligned with the Commonwealth as to this factor. The
General Assembly removed a plethora of previously qualifying offenses when it enacted
Subchapter I, compare 42 Pa.C.S. §9799.59 with 42 Pa.C.S. §§9799.14(b)-(d) (effective
Sept. 2, 2014 through Feb. 20, 2018), and thus, made the new enactment much less
likely to “result in individuals . . . who in fact do not pose the type of risk to the community
that the General Assembly sought to guard against” being labeled as sex offenders.
Williams II, 832 A.2d at 983. The General Assembly also lowered the registration term
for many offenses from fifteen and twenty-five years to ten years, compare 42 Pa.C.S.
§9799.55 with 42 Pa.C.S. §9799.15(a) (effective Dec. 20, 2012 through Feb. 20, 2018),
and significantly reduced the in-person reporting requirements so that Subchapter I
offenders must only report in person annually, compare 42 Pa.C.S. §9799.60(b) with 42
Pa.C.S. §9799.15(e) (effective Dec. 20, 2012 through Feb. 20, 2018). And, as stated
previously, this latter requirement is necessary to capture and upload a current
photograph on the Megan’s Law website. Also necessary for public protection is the
prompt reporting of any changes to the Subchapter I offender’s registration information,
see 42 Pa.C.S. §9799.56(a)(2), and prosecution for failure to comply under 18 Pa.C.S
18Witmayer’s arguments regarding this factor are substantially similar to those of
Lacombe.
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§4915.1 is also necessary to ensure compliance with the mandates of Subchapter I.
Moreover, Subchapter I provides a removal mechanism for lifetime registrants, the
absence of which has created excessiveness concerns for this Court. See Williams II,
832 A.2d at 982-83 (“A reasonable argument could be made that, to avoid
excessiveness, the Legislature was required to provide some means . . . to invoke judicial
review[.] . . . This aspect of the statute may be particularly problematic[.]”). For these
reasons, we find the Subchapter I requirements are necessary, rather than excessive, in
relation to the statute’s alternative assigned purpose of protecting the public from sex
offenders. Accordingly, this factor weighs heavily in favor of finding Subchapter I
nonpunitive.
viii. Balancing of the Factors
As the above Mendoza-Martinez analysis clearly reflects, Subchapter I effected
significant changes from the original version of SORNA, retroactive application of which
we found unconstitutional in Muniz. To summarize, we find three of the five factors weigh
in favor of finding Subchapter I nonpunitive. Additionally, we give little weight to the fact
Subchapter I promotes the traditional aims of punishment and give significant weight to
the fact Subchapter I is narrowly tailored to its nonpunitive purpose of protecting the
public. As we have not found the requisite “clearest proof” Subchapter I is punitive, we
may not “override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty[.]” Hudson v. United States, 522 U.S. 93, 100 (1997),
quoting United States v. Ward, 448 U.S. 242, 249 (1980) (internal quotations omitted).
V. Conclusion
We hold Subchapter I does not constitute criminal punishment, and the ex post
facto claims forwarded by appellees necessarily fail. See Muniz, 164 A.3d at 1208 (“Our
decision regarding violation of [the ex post facto] clause depends on a determination of
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whether SORNA’s retroactive application to [Muniz] constitutes punishment.”).
Accordingly, we reverse the orders of the Montgomery County Court of Common Pleas
relieving appellees of their duty to comply with Subchapter I.
Chief Justice Saylor and Justices Baer and Todd join the opinion.
Justice Mundy files a concurring opinion.
Justice Wecht files a concurring and dissenting opinion in which Justice Donohue
joins.
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