T.S. v. PSP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
T.S., :
Petitioner :
:
v. : No. 129 M.D. 2019
: Argued: February 12, 2020
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: May 11, 2020
Presently before the Court is T.S.’s (Petitioner) Application for Summary
Relief (Application) on his Petition for Review (Petition) filed in our original
jurisdiction. Petitioner seeks mandamus and declaratory relief against the
Pennsylvania State Police (PSP), challenging as unconstitutional as applied
subchapter I of the most recent enactment of a sexual offender registration scheme,
Act of February 21, 2018, P.L. 27 (Act 10), 42 Pa.C.S. §§ 9799.10-9799.75, as
amended by the Act of June 12, 2018, P.L. 140 (Act 29) (collectively, Act 29 1). In
1
As the parties, for simplicity, refer in their briefs to the current law as “Act 29,” we will
do the same.
this case of first impression in our Court, Petitioner, who committed and was
convicted and sentenced for his offenses before any sexual offender registration
scheme existed, argues that the provisions of subchapter I of Act 29 governing his
lifetime registration are punitive as applied in violation of the ex post facto clauses
of the United States and Pennsylvania Constitutions.2 Relying upon the
Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), cert. denied, __ U.S. __, 136 S. Ct. 925 (2019), in which the
Supreme Court determined Act 29’s predecessor, the Sexual Offender Registration
and Notification Act3 (SORNA), violated the federal and state ex post facto
clauses, Petitioner contends subchapter I of Act 29 raises the same constitutional
concerns. Upon review, and following the analysis and reasoning set forth by our
Supreme Court in Muniz, we conclude that although the General Assembly had a
nonpunitive purpose, subchapter I of Act 29 as applied to Petitioner, who
committed his offenses before any registration scheme was enacted, is punitive.
We grant in part and deny in part the Application, and order PSP not to apply
subchapter I of Act 29 to Petitioner, which will result in his removal from the
sexual offender registry (Registry).
2
“No . . . ex post facto Law shall be passed.” U.S. CONST. art. I, § 9, cl. 3. “No ex post
facto law . . . shall be passed.” PA. CONST. art. I, § 17.
3
Former 42 Pa.C.S. §§ 9799.10-9799.41.
2
I. History of Sexual Offender Laws in Pennsylvania
A. Development of the Law
A brief overview of the history of sexual offender registration schemes in
the Commonwealth and the relevant provisions of Act 29 is necessary before
addressing Petitioner’s ex post facto claims. Act 29 is the fifth iteration of the law
commonly referred to as Megan’s Law. The prior iterations have all been struck
down, or struck down in part, as previously explained by this Court:
Megan’s Law I,[4] the Act of October 24, 1995, P.L. 1079 (Spec. Sess.
No. 1), was enacted on October 24, 1995, and became effective 180
days thereafter. Megan’s Law II[5] was enacted on May 10, 2000[,] in
response to Megan’s Law I being ruled unconstitutional by our
Supreme Court in Commonwealth v. Williams, . . . 733 A.2d 593([Pa.] 1999) [(Williams I)]. Our Supreme Court held that some
portions of Megan’s Law II were unconstitutional in Commonwealth
v. Gomer Williams, . . . 832 A.2d 962 ([Pa.] 2003) [(Williams II)], and
the General Assembly responded by enacting Megan’s Law III[6] on
November 24, 2004. The United States Congress expanded the public
notification requirements of state sexual offender registries in the
Adam Walsh Child Protection and Safety Act of 2006, [(Adam Walsh
Act)7] . . . , and the Pennsylvania General Assembly responded by
passing SORNA on December 20, 2011[,] with the stated purpose of
“bring[ing] the Commonwealth into substantial compliance with the
4
Former 42 Pa.C.S. §§ 9791-9799.6.
5
Former 42 Pa.C.S. §§ 9791-9799.7.
6
Former 42 Pa.C.S. §§ 9791-9799.75.
7
34 U.S.C. §§ 20901-20991, as amended. Congress enacted the Adam Walsh Act “[i]n
order to protect the public from sex offenders and offenders against children, and in response to
the vicious attacks by violent predators,” by “establish[ing] a comprehensive national system for
the registration of those offenders.” 34 U.S.C. § 20901. The Adam Walsh Act requires each
state to maintain a state-wide registry that complies with the Adam Walsh Act’s minimum
requirements for registration information and duration, as well as notification and dissemination
of information to the public. A state must substantially comply with the Adam Walsh Act in
order to receive certain federal funding; however, a state’s inability to implement certain
provisions due to violation of the state’s constitution is a factor to be considered when
determining substantial compliance. 34 U.S.C. § 20927.
3
[Adam Walsh Act].” [Section 9799.10(1) of SORNA, former] 42
Pa.C.S. § 9799.10(1). SORNA went into effect a year later on
December 20, 2012. Megan’s Law III was also struck down by our
Supreme Court for violating the single subject rule of Article III,
Section 3 of the Pennsylvania Constitution. Commonwealth v.
Neiman, . . . 84 A.3d 603, 616 ([Pa.] 2013). However, by the time it
was struck down, Megan’s Law III had been replaced by SORNA.
Taylor v. Pa. State Police, 132 A.3d 590, 595 n.7 (Pa. Cmwlth. 2016). The
Supreme Court in Muniz explained the evolution of the provisions of these laws
and the bases for their being struck down, in whole or in part, as follows:
Among other things, Megan’s Law I established a procedure for
adjudicating certain offenders—namely, those that committed one of
the predicate offenses listed in the statute—as sexually violent
predators [(SVPs)]. The mandated procedure included a
postconviction, presentence assessment by the [State Sexual Offender
Board (Board)], followed by a hearing before the trial court. . . . If the
individual was adjudicated a [SVP], he was subjected to an enhanced
maximum sentence of life imprisonment for the predicate offense, as
well as registration and community notification requirements that
were more extensive than those applicable to an offender who was not
adjudicated a [SVP].
In [Williams I], this Court struck down the [SVP] provisions of
Megan’s Law I based upon the conclusion that a finding of [SVP]
status under that enactment entailed a separate factual determination,
the end result of which is the imposition of criminal punishment . . . .
Notably, in view of the punitive nature of the increased maximum
prison sentence, the Williams I Court invalidated the challenged
provisions without reaching the question of whether the enhanced
registration and notification requirements constituted criminal
punishment. . . .
After Williams I was decided, the General Assembly passed Megan’s
Law II . . . . [T]he General Assembly altered the manner in which an
individual convicted of a predicate offense was adjudicated a [SVP]
. . . . [U]nder Megan’s Law II an offender convicted of an enumerated
predicate offense [was] no longer presumed to be a [SVP] . . . .
Additionally, persons adjudicated to be [SVPs were] no longer
subjected to an automatic increased maximum term of imprisonment
4
for the predicate offense. Instead, they [were] required to undergo
lifetime registration, notification, and counseling procedures; failure
to comply with such procedures [was] penalized by a term of
probation or imprisonment.
Under Megan’s Law II, any offender convicted of a predicate offense,
whether or not he is deemed a [SVP], must: (1) register his current
residence or intended residence with [PSP] upon release from
incarceration, parole from a correctional institution, or
commencement of an intermediate punishment or probation; (2)
inform [PSP] within ten days of a change in residence; and (3) register
within ten days with a new law enforcement agency after establishing
residence in another state.
Muniz, 164 A.3d at 1196-97 (quoting Williams II, 832 A.2d at 965-68) (internal
quotations and citations omitted). The Supreme Court determined in Williams II
that the SVP provisions, with the exception of the punishments for failure to
comply, were constitutional. The General Assembly then enacted amendments,
commonly known as Megan’s Law III, in which it made the following relevant
changes:8
added the offenses of luring and institutional sexual assault to the list
of enumerated offenses which require a 10-year period of
registration . . . ; [] directed the creation of a searchable computerized
database of all registered sexual offenders . . . ; [] allowed a
sentencing court to exempt a lifetime sex offender registrant, or [SVP]
registrant, from inclusion in the database after 20 years if certain
conditions are met; [] established mandatory registration and
community notification procedures for [SVPs]; . . . and [] mandated
the Pennsylvania Attorney General to conduct annual performance
audits of state or local agencies [that] participate in the administration
of Megan’s Law, and, also, required registered sex offenders to
submit to fingerprinting and being photographed when registering at
approved registration sites.
8
We have omitted from this list the amendments to provisions that do not relate to an
offender’s registration requirements.
5
Id. at 1198 (quoting Neiman, 84 A.3d at 606-07). By the time the Supreme Court
struck down Megan’s Law III in Neiman, SORNA had already been enacted.
SORNA classified offenders and offenses into three tiers, with each tier
corresponding to an offender’s duration of registration and the frequency with
which the offender must appear in person to verify the offender’s residence,
anywhere from quarterly to annually. Section 9799.15 of SORNA, former 42
Pa.C.S. § 9799.15. As the Supreme Court explained in Muniz:
Those convicted of Tier I offenses [were] subject to registration for a
period of fifteen years and [were] required to verify their registration
information and be photographed, in person at an approved
registration site, annually. [Former] 42 Pa.C.S. § 9799.15(a)(1),
(e)(1). Those convicted of Tier II offenses [were] subject to
registration for a period of twenty-five years and [were] required to
verify their registration information and be photographed, in person at
an approved registration site, semi-annually. [Former] 42 Pa.C.S. §
9799.15(a)(2), (e)(2).
....
SORNA also establishe[d] a statewide registry of sexual offenders to
be created and maintained by [PSP]. [Section 9799.16(a) of SORNA,
former] 42 Pa.C.S. § 9799.16(a). The [R]egistry contains information
provided by the sexual offender, including: names and aliases,
designations used by the offender for purposes of routing or self-
identification in [I]nternet 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. [Former] 42 Pa.C.S. §
9799.16(b). The [R]egistry also contains information from [PSP],
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
6
offender, and a photocopy of the offender’s driver’s license or
identification card. [Former] 42 Pa.C.S. § 9799.16(c).
....
In addition to the offender’s duty to appear at an approved registration
site . . . all offenders [were] 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. [Former] 42 Pa.C.S. § 9799.15(g). . . .
Muniz, 164 A.3d at 1206-08.
B. Muniz
The Supreme Court struck down SORNA as unconstitutional in Muniz. Id.
at 1218. In Muniz, the petitioner committed and was convicted and sentenced for
his offense in 2007, when Megan’s Law III was in place. The petitioner absconded
and, at the time of his capture in 2014, SORNA dictated his registration
requirements. The petitioner’s triggering offense carried a 10-year registration
requirement under Megan’s Law III but a lifetime registration under SORNA. The
petitioner challenged the retroactive application of SORNA’s provisions to him as
ex post facto. The Supreme Court agreed with the petitioner, concluding that the
increased registration period and the other registration requirements of SORNA,
including quarterly in-person registration, in-person verification of registration
information, and the dissemination of offenders’ personal information online, were
punitive provisions. Id.. After reaching this conclusion, Justice Dougherty,
announcing the judgment of the Court, joined by Justices Baer and Donohue, also
7
determined that “Pennsylvania’s ex post facto clause provides even greater
protections than its federal counterpart.”9 Id. at 1223.
C. Act 29
In response to Muniz, the General Assembly enacted Act 29. As the
Supreme Court recently explained in Commonwealth v. Butler, __ A.3d __, __ n.11
(Pa., No. 25 WAP 2018, filed March 26, 2020), slip op. at 10 n.11 (Butler II),
through subchapter I of Act 29, 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; Subchapter I is applicable to offenders who committed
their offenses prior to the effective date of SORNA and to whom the
Muniz decision directly applied.[10]
In the present case, our focus is on the provisions of subchapter I.11
9
Justice Wecht, joined by Justice Todd, filed a concurring opinion with respect to this
analysis, reasoning that while SORNA was unconstitutional under both the federal and state ex
post facto clauses, Pennsylvania’s ex post facto clause did not provide greater protection than its
federal counterpart. Muniz, 164 A.3d at 1224 (Wecht, J., concurring). Chief Justice Saylor
dissented, reasoning that SORNA did not impose punishment or violate either the federal or state
ex post facto clauses. Id. at 1233 (Saylor, C.J., dissenting).
10
Currently pending before the Supreme Court are Commonwealth v. Lacombe (Pa., No.
35 MAP 2018), and Commonwealth v. Torsilieri (Pa., No. 37 MAP 2018), on direct appeals from
courts of common pleas, which challenge, respectively, the constitutionality of subchapter I and
subchapter H of Act 29.
11
Specifically, subchapter I applies to individuals who were:
(1) convicted of a sexually violent offense committed on or after April 22, 1996,
but before December 20, 2012, whose period of registration with the [PSP], as
described in section 9799.55 (relating to registration), has not expired; or
(Footnote continued on next page…)
8
As set forth in the legislative findings and declaration of policy of
subchapter I, the General Assembly has determined that sexual offenders pose a
high risk of reoffending after release from incarceration and “[i]f the public is
provided adequate notice and information” about offenders, “the community can
develop constructive plans to prepare itself.” Section 9799.51(a)(1) of Act 29, 42
Pa.C.S. § 9799.51(a)(1). The General Assembly’s intent through subchapter I of
Act 29 is to respond to Muniz, “[p]rotect the safety and general welfare of the
people of the Commonwealth,” and to “[r]equire the exchange of relevant
information about” sexual offenders through registration and community
notification provisions. 42 Pa.C.S. § 9799.51(b)(1), (2).
In order to achieve these purposes, subchapter I of Act 29 requires that, upon
release from incarceration, offenders provide PSP with information for current or
intended residences, employment, and enrollment as a student. Section
9799.56(a)(1) of Act 29, 42 Pa.C.S. § 9799.56(a)(1). Offenders “shall inform
[PSP] within three business days of” changes in: residence,
employment/employment location, and institution or location where the individual
is enrolled as a student. 42 Pa.C.S. § 9799.56(a)(2). Offenders are also required to
verify their residence and “shall appear within 10 days before each annual
anniversary date of the offender’s initial registration . . . at an approved registration
site to complete a verification form and to be photographed.” Section 9799.60(b)
of Act 29, 42 Pa.C.S. § 9799.60(b). Offenders who fail to comply with the
_____________________________
(continued…)
(2) required to register with the [PSP] under a former sexual offender registration
law of this Commonwealth on or after April 22, 1996, but before December 20,
2012, whose period of registration has not expired.
Section 9799.52 of Act 29, 42 Pa.C.S. § 9799.52.
9
registration and verification provisions “may be subject to prosecution under
[Section 4915.2 of the Crimes Code,] 18 Pa.C.S. § 4915.2[12] (relating to failure to
comply with 42 Pa.C.S. Ch. 97 Subch. I registration requirements).” 42 Pa.C.S. §§
9799.56(d), 9799.60(e).
As with former iterations of the statutory scheme, subchapter I of Act 29
maintains the distinction between offenders who have committed a sexual offense
and SVPs. As in prior versions of the statute, SVPs are those individuals convicted
of certain statutorily enumerated sexually violent offenses who are also assessed
by the Board and determined in a separate proceeding to be SVPs “due to a mental
abnormality or personality disorder that makes the person likely to engage in
predatory sexually violent offenses.” Section 9799.53 of Act 29, 42 Pa.C.S.
§ 9799.53; see also Section 9799.58 of Act 29, 42 Pa.C.S. § 9799.58. SVPs are
subject to different and more intensive registration requirements than non-SVP
sexual offenders. For example, under subchapter I of Act 29, SVPs are still
required to verify their residence and appear for registration quarterly. 42 Pa.C.S.
§ 9799.60(a).
12
Specifically, Section 4915.2(a) of the Crimes Code provides:
(a) Offense defined.--An individual who is subject to registration under 42
Pa.C.S. § 9799.55(a), (a.1) or (b) (relating to registration) or who was subject to
registration under former 42 Pa.C.S. § 9793 (relating to registration of certain
offenders for ten years) commits an offense if the individual knowingly fails to:
(1) register with [PSP] as required under 42 Pa.C.S. § 9799.56 (relating to
registration procedures and applicability);
(2) verify the individual’s residence or be photographed as required under
42 Pa.C.S. § 9799.60 (relating to verification of residence); or
(3) provide accurate information when registering under 42 Pa.C.S.
§ 9799.60.
18 Pa.C.S. § 4915.2(a).
10
For all offenders, including SVPs, Section 9799.63(b)(1) of Act 29 (Internet
dissemination provision) requires PSP to “[d]evelop and maintain a system for
making publicly available by electronic means” specified information about
offenders “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 [SVPs], lifetime registrants, and other offenders who are registered with [PSP].”
42 Pa.C.S. § 9799.63(b)(1). The General Assembly set forth specific legislative
findings for the Internet dissemination provision. Specifically, the General
Assembly concluded public safety will be enhanced by making information about
sexual offenders available through the Internet, which allows the information to be
“readily accessible” to the public so that it may “undertake appropriate remedial
precautions . . . .” 42 Pa.C.S. § 9799.63(a). The General Assembly intends the
Internet dissemination provision “solely as a means of public protection” that
“shall not be construed as punitive.” Id.
The Internet dissemination provision requires PSP to maintain and
disseminate the following information about each offender:
(i) name and all known aliases; (ii) year of birth; (iii) . . . the street
address, municipality, county and zip code of all residences,
including, where applicable, the name of the prison or other place of
confinement; (iv) the street address, municipality, county, zip code
and name of an institution or location at which the person is enrolled
as a student; (v) the municipality, county and zip code of an
employment location; (vi) a photograph of the individual, which shall
be updated not less than annually; (vii) a physical description of the
offender, including sex, height, weight, eye color, hair color, and race;
(viii) identifying marks, including scars, birthmarks and tattoos; (ix)
the license plate number and description of a vehicle owned or
registered to the offender; (x) whether the offender is currently
compliant with registration requirements; (xi) whether the victim is a
minor; (xii) a description of the offense or offenses which triggered
11
the application of this subchapter; [and] (xiii) the date of the offense
and conviction, if available . . . .
42 Pa.C.S. § 9799.63(c)(1); see also 42 Pa.C.S. § 9799.63(c)(2) (requiring that all
of this information shall be posted for all offenders). This information remains
available on the Internet for the lifetime of SVPs and lifetime registrants and the
duration of the registration period for all other offenders. 42 Pa.C.S. § 9799.63(d).
Subchapter I of Act 29 also contains provisions relating to PSP’s duty to inform
and notify victims, local police departments, municipalities, and other enumerated
individuals of changes in an offender’s or SVP’s registration information. Sections
9799.61 and 9799.62 of Act 29, 42 Pa.C.S. §§ 9799.61, 9799.62.
Finally, Section 9799.59(a)(1) of Act 29 allows offenders to request an
exemption from all of the aforementioned registration requirements if:
[a]t least 25 years have elapsed prior to filing a petition [for
exemption] with the sentencing court to be exempt from the
requirements of this subchapter, during which time the [offender] has
not been convicted in this Commonwealth or any other jurisdiction or
foreign country of an offense punishable by imprisonment of more
than one year, or the [offender’s] release from custody following the
[offender’s] most recent conviction for an offense, whichever is later.
42 Pa.C.S. § 9799.59(a)(1). In such cases, the offender may file a petition for
exemption, and the sentencing court shall order the offender be assessed by the
Board. The Board shall issue a written report, and the sentencing court, after
conducting a hearing,
shall exempt the [offender] from any or all of the requirements of this
subchapter, at the discretion of the court, only upon a finding of clear
and convincing evidence that exempting the [offender] from . . . the
requirements of this subchapter is not likely to pose a threat to the
safety of any other person.
12
42 Pa.C.S. § 9799.59(a)(5).
D. Key Cases
Along with Muniz, the following cases are instructive for our analysis of Act
29, as they apply ex post facto principles to sexual offender registration laws.
First, we are guided by the United States Supreme Court’s decision in Smith v.
Doe, 538 U.S. 84 (2003), upon which the Supreme Court relied in Muniz.
Throughout Muniz, the Supreme Court compared SORNA to the Alaska sexual
offender registration statute that the United States Supreme Court determined in
Smith did not violate the prohibition against ex post facto laws. Smith, 538 U.S. at
92. The Alaska statute in Smith was retroactively applied to the respondents, who
had committed their crimes before there was a registration scheme. Id. at 91.
However, the Supreme Court did not strike down the mere registration of such
offenders retroactively, analyzing instead the provisions governing registration,
which included an online database with information about offenders’ criminal
convictions and requirements for periodic updates by offenders, and determining
these provisions were nonpunitive. Id. at 105.
Along with Smith, our Supreme Court’s decision in Williams II, analyzing an
ex post facto challenge to certain Megan’s Law II provisions, is also instructive.
The appellees in Williams II committed their sexual offenses in 2000 and 2001,
were determined by the Board to be SVPs, and challenged the SVP registration,
notification, and counseling provisions of Megan’s Law II as punitive. 832 A.2d at
965. The appellees argued that the requirements for registering current addresses,
notifying PSP within 10 days of change in residence, and mandatory monthly
counseling were punitive. Relying in part upon the analytic framework set forth in
Smith, the Court in Williams II concluded that the General Assembly had a
13
nonpunitive intent and the “registration, notification, and counseling provisions
constitute[d] non[]punitive, regulatory measures supporting a legitimate
governmental purpose.” Id. at 986. The Court also determined “[t]he prescribed
penalties for failure to register and verify one’s residence as required [were]
unconstitutionally punitive, but severable.” Id.
Along with Smith and Williams II, our analysis is guided by two recent cases
analyzing Act 29. Most recently, in Butler II, the Supreme Court examined
whether SVP registration requirements in subchapter H of Act 29 constitute
criminal punishment, and, relying upon Muniz and Williams II, concluded that they
do not. Butler II, __ A.3d at __, slip op. at 30. The appellee in Butler II committed
his crimes while SORNA was in effect and, prior to sentencing, was assessed and
designated a SVP. On appeal following the appellee’s post-sentence motions, the
Superior Court determined, based upon Muniz, that the SVP registration
requirements of subchapter H are punitive and unconstitutional. Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I), rev’d, Butler II, __ A.3d __,
(2020). The Supreme Court disagreed that the lifetime registration, notification,
and counseling requirements (RNC requirements) for SVPs constituted
punishment. The Supreme Court concluded:
Although we recognize the RNC requirements impose affirmative
disabilities or restraints upon SVPs, and those requirements have been
historically regarded as punishment, our conclusions in this regard are
not dispositive on the larger question of whether the statutory
requirements constitute criminal punishment. This is especially so
where the government in this case is concerned with protecting the
public, through counseling and public notification rather than
deterrent threats, not from those who have been convicted of
enumerated crimes, but instead from those who have been found to be
dangerously mentally ill. . . . Under the circumstances, and also
because we do not find the RNC requirements to be excessive in light
of the heightened public safety concerns attendant to SVPs, we
14
conclude the RNC requirements do not constitute criminal
punishment.
Butler II, __ A.3d at __, slip op. at 30 (citations omitted).13
Last, the Superior Court recently analyzed the constitutionality of the
Internet dissemination provision of subchapter I of Act 29 in Commonwealth v.
Moore, 222 A.3d 16 (Pa. Super. 2019).14 The appellant in Moore appealed to the
Superior Court from a judgment of sentence, challenging his obligation to register
under subchapter I of Act 29 for offenses committed between 2004 and 2008 and
asserting that subchapter I of Act 29 “include[d] several punitive elements not in
effect at the time he committed his crimes.” Id. at 18. The Superior Court
determined the appellant’s arguments were a narrow challenge to the Internet
dissemination provision. Evaluating the appellant’s arguments under an ex post
facto analysis, the Superior Court agreed with the appellant, determining that the
Internet dissemination provision was nearly identical to the SORNA website
provision and, therefore, punitive but severable. Id. at 27.
With the relevant statutory history and case law as a foundation, we turn to
Petitioner’s challenge to his registration obligation under subchapter I as an
offender who commited his triggering offenses before the enactment of any
registration scheme.
13
Justice Mundy authored a concurring opinion in Butler II, disagreeing that the
provisions of subchapter H constituted an affirmative disability or restraint and were sanctions
historically regarded as punishment. See Butler II, __A.3d __ (Pa., No. 25 WAP 2018, filed
March 26, 2020) (Mundy, J., concurring).
14
While not binding, Superior Court decisions “offer persuasive precedent where they
address analogous issues.” Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550
(Pa. Cmwlth. 2018).
15
II. Background
A. Petition
Petitioner avers as follows in his Petition. Petitioner was convicted on June
23, 1992, of aggravated indecent assault and attempted rape, offenses that he
committed in 1990. (Petition ¶¶ 6-8.) Petitioner was sentenced to 3 to 10 years’
imprisonment followed by probation. (Id. ¶ 9.) There was no sexual offender
registration and notification scheme in existence at the time Petitioner committed
the offenses or was convicted and sentenced. (Id. ¶ 11.) Petitioner “maxed out his
sentence” and was released from incarceration in 2002, began registering with PSP
that same year, and is still currently registering as a sexual offender. (Id. ¶¶ 5, 10,
11.) Under the current registration scheme, Petitioner is classified as a lifetime
registrant. (Id. ¶ 13.) Through the Internet dissemination provision of subchapter I
of Act 29, Petitioner’s registration with PSP makes available to anyone with
Internet access Petitioner’s current picture, prior pictures dating back to 2016,
physical description, residential address, general employment/employer location,
vehicle description, and description of the offenses for which he was convicted.
(Id. ¶ 14.)
Following the Pennsylvania Supreme Court’s decision in Muniz, Petitioner,
through counsel, mailed a letter on December 12, 2018, to PSP regarding
Petitioner’s registration status (Letter). Relying upon Muniz and the statutory
language of subchapter I of Act 29, Petitioner asserted in the Letter that he was not
subject to registration as a sexual offender or a SVP, and requested that PSP
remove him from the Registry and “extinguish any further need on his part from
registering in the future.” (Letter, Ex. A; see also Petition ¶ 16.) Petitioner further
requested that if PSP could not comply with these requests, it “reply as to the
16
reasons why and the statutory basis [PSP] believe[d] require[d] [Petitioner’s]
continued registration under [Act 29].” (Letter, Ex. A; see also Petition ¶ 17.)
Counsel for PSP called Petitioner’s counsel in response to the “[L]etter, notifying
Petitioner’s counsel that PSP could not comply with the demands” set forth in the
Letter and explaining PSP’s basis for concluding Petitioner was still subject to
registration requirements. (Petition ¶ 18.) Petitioner asserts that subchapter I of
Act 29, governing continued registration of sexual offenders, is ex post facto as
applied to him and filed the instant Petition.
In Count I of the Petition, Petitioner seeks declaratory relief from this Court,
averring that pursuant to Muniz, “[s]ubchapter I of [Act 29] does not apply to him
under any reasonable construction of the statute,” and “any iteration of
Pennsylvania’s sex[ual ]offender[ ]registration scheme is an unconstitutional ex
post fact[o] law as applied to him.” (Id. ¶¶ 23-24.) In Count II, Petitioner seeks
mandamus relief on the basis that: Act 29, which post-dates his offenses, does not
apply to him; PSP has a duty to create and maintain the Registry; and there is no
other adequate and appropriate remedy to challenge the alleged unlawful
application of Act 29 to Petitioner. (Id. ¶ 29.) Petitioner asks this Court to
“declare [Act 29] unconstitutional . . . as applied to him” and issue a writ of
mandamus “to compel PSP to permanently remove Petitioner from the . . .
[R]egistry.”15 (Petition, Wherefore Clause.)
15
Although Petitioner characterizes the relief he seeks as declaratory and mandamus, it
sounds in declaratory and injunctive relief. In Taylor v. Pennsylvania State Police, 132 A.3d 590(Pa. Cmwlth. 2016), the petitioner filed a petition sounding in mandamus seeking to have
SORNA declared unconstitutional as applied and his registration requirements thereunder
relieved. This Court held that while mandamus was not the proper form of the action, we would
treat it as a request for declaratory and injunctive relief, as “[f]orm must not be exalted over
substance.” Id. at 600 (quoting In re Tax Claim Bureau, 436 A.2d 144, 146 (Pa. 1981)).
(Footnote continued on next page…)
17
B. Answer and New Matter and Petitioner’s Reply
PSP filed an Answer and New Matter, admitting the factual allegations as to
Petitioner’s convictions, sentencing,16 and status as a lifetime registrant, and PSP’s
receipt of the Letter and response thereto. PSP also admits that there was no
sexual offender registration scheme in place at the time Petitioner committed his
crimes or was convicted and sentenced. (Answer & New Matter ¶ 11.) PSP denies
any conclusions of law relating to Petitioner’s contention that he should not be
subject to the registration requirements of subchapter I of Act 29.17
In New Matter, PSP asserts that subchapter I of Act 29 is not a criminal
punishment but “a civil registration system,” and neither PSP nor this Court can
alter Petitioner’s registration obligations. (Id. ¶¶ 31-33.) PSP further asserts that,
upon information and belief, Petitioner poses a threat to society due to the high
rates of recidivism among adult sexual offenders like Petitioner, and subchapter I
of Act 29 is narrowly tailored to protect the public, which is a compelling state
interest. (Id. ¶ 34.) Subchapter I of Act 29 also is narrowly tailored to serve a
compelling state interest of “notifying and protecting the public” through the
registration of offenders and Internet dissemination of offenders’ information, PSP
asserts. (Id. ¶ 42.) PSP alleges that it is required by the Adam Walsh Act to create
_____________________________
(continued…)
Accordingly, as we did in Taylor, we will treat the Petition as a request for declaratory and
injunctive relief.
16
PSP denied that Petitioner “maxed out his sentence,” as it could neither confirm nor
deny that averment. (Answer & New Matter ¶ 10.)
17
PSP also denies that Petitioner’s registration under Act 29 requires him to provide his
vehicle information. (Id. ¶ 14.) However, our review of the provisions of Act 29 demonstrate
that the Internet dissemination provision requires dissemination of Petitioner’s “license plate
number and description of a vehicle owned or registered” to him. 42 Pa.C.S. §
9799.63(c)(1)(ix).
18
and maintain the Registry and share the information on the Registry with law
enforcement and the public. (Id. ¶¶ 36-40.) PSP further contends that the
minimum registration requirements set forth by the Adam Walsh Act are
retroactive for offenders convicted prior to its enactment. Subchapter I of Act 29 is
not a reenactment of SORNA, PSP alleges, as it differs from SORNA. (Id. ¶¶ 49-
50.) Finally, PSP asserts that Petitioner has always been classified as a lifetime
offender under every iteration of the sexual offender registration schemes and,
therefore, there is no ex post facto violation. (Id. ¶ 51.)
Petitioner filed a Reply to New Matter denying all of PSP’s conclusions of
law.
C. Application
After the pleadings closed, Petitioner filed the instant Application.
Petitioner emphasizes that PSP admits: the crimes for which Petitioner was
convicted; the sentence he served; the nonexistence of a sexual offender
registration scheme at the time of commission of, or conviction for, the crimes;
Petitioner’s current status as a lifetime registrant; and the breadth of Petitioner’s
personal information publicly available because of the Internet dissemination
provision. Petitioner contends the only dispute between the parties is purely legal:
whether Petitioner is required to continue registering under subchapter I.
Petitioner asserts he is entitled to relief because his registration under subchapter I
of Act 29 violates the prohibition against ex post facto laws, particularly in light of
Muniz. Petitioner asks that this Court grant the Application and “enter judgment . .
. in favor of Petitioner, declaring [Act 29] (and [s]ubchapter I thereof) an
unconstitutional ex post facto law as applied and thereafter compelling [PSP] to
permanently remove Petitioner from the . . . [R]egistry.” (Application, Wherefore
19
Clause.) None of our prior case law has addressed the application of subchapter I
of Act 29 in the wake of Muniz to offenders who committed offenses prior to the
enactment of any sexual offender registration scheme.
III. Ex Post Facto Considerations
This Court “may grant summary relief where the dispute is legal rather than
factual,” there are no facts in dispute, and the “right to relief is clear.” Phantom
Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1220 (Pa. Cmwlth. 2018). In
reviewing the record, we do so “in the light most favorable to the opposing party.”
Id. “Even if the facts are undisputed, the moving party has the burden of proving
that its right to relief is so clear as a matter of law that summary relief is
warranted.” Naylor v. Dep’t of Pub. Welfare, 54 A.3d 429, 431 n.4 (Pa. Cmwlth.
2012), aff’d, 76 A.3d 536 (Pa. 2013).
The prohibition on ex post facto laws “ensures that individuals have fair
warning of applicable laws and guards against vindictive legislative action.”
Peugh v. United States, 569 U.S. 530, 544 (2013). Therefore, the ex post facto
clause “safeguards ‘a fundamental fairness interest . . . in having the government
abide by the rules of law it establishes to govern the circumstances under which it
can deprive a person of his or her liberty or life.’” Id. (quoting Carmell v. Texas,
529 U.S. 513, 533 (2000)). There are traditionally four categories of laws that
violate the prohibition on ex post facto laws, including laws that: (1) make
criminal and punish actions that were innocent at the time they were committed
before the law was passed; (2) aggravate a crime to something greater than it was
at the time it was committed; (3) “change[] the punishment” and “inflict[] a greater
punishment[] than the law annexed to the crime at the time it was committed”; or
(4) alter the rules of evidence from that required at the time the crime was
20
committed. Carmell, 529 U.S. at 522 (emphasis omitted) (quoting Calder v. Bull,
3 U.S. 386, 390 (1798)). As in Muniz, Petitioner’s claims here implicate the third
category, as he asserts subchapter I of Act 29 “inflicts a greater punishment” than
was linked to his crime at the time it was committed. Carmell, 529 U.S. at 522;
see also Muniz, 164 A.3d at 1196 (same). Where a law falls within the
aforementioned categories and disadvantages the offender, it is “ex post facto . . .
and constitutionally infirm.” Muniz, 164 A.3d at 1196 (quoting Commonwealth v.
Young, 637 A.2d 1313, 1318 (Pa. 1993)). We note that “[c]ritical to relief under
the [e]x [p]ost [f]acto [c]lause is not an individual’s right to less punishment, but
the lack of fair notice and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was consummated.”
Weaver v. Graham, 450 U.S. 24, 30 (1981) (emphasis added). Thus, we are
cognizant that the crucial “inquiry for determining whether the application of
[subchapter I of Act 29] to a convicted sex offender violates ex post facto
prohibitions is the date of the offense.” Commonwealth v. Wood, 208 A.3d 131,
136 (Pa. Super. 2019) (emphasis added).
As set forth by our Supreme Court in Muniz, we follow the established
framework for approaching and analyzing the constitutionality of a law under the
Ex Post Facto clause of the United States Constitution. Like our Supreme Court
and the United States Supreme Court, we apply a two-prong analysis to determine
whether a law inflicts a greater punishment. First, we look to see whether the
General Assembly’s intent is “to impose punishment.” Smith, 538 U.S. at 92. If
so, the law is punitive. Id. If the General Assembly’s intent is to enact a
nonpunitive civil regulatory scheme, we proceed to the second prong to determine
whether the statute “is so punitive either in purpose or effect as to negate the
21
[General Assembly’s] intention to deem it civil.” Id. (internal quotations omitted).
In order to determine whether the statute is so punitive as to negate the General
Assembly’s intent, our review is guided by the factors set forth by the United
States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
Commonly known as the Mendoza-Martinez factors, these seven factors are
“applied to determine whether an Act of Congress is penal or regulatory in
character”:
[1.] whether the sanction involves an affirmative disability or
restraint, [2.] whether it has historically been regarded as punishment,
[3.] whether it comes into play only on a finding of scienter, [4.]
whether its operation will promote the traditional aims of punishment
– retribution and deterrence, [5.] whether the behavior to which it
applies is already a crime, [6.] whether an alternative purpose to
which it may rationally be connected is assignable for it, and [7.]
whether it appears excessive in relation to the alternative purpose
assigned.
Id. at 168-69 (footnotes omitted). The Mendoza-Martinez factors are intended to
be “useful guideposts” that are “neither exhaustive nor dispositive.” Smith, 538
U.S. at 97. “[O]nly the clearest proof may establish that a law is punitive in
effect,” and “in determining whether a statute is civil or punitive, we must examine
the law’s entire statutory scheme.” Muniz, 164 A.3d at 1208 (emphasis added)
(quotation omitted) (citing Smith, 538 U.S. at 92).
IV. Discussion
As we analyze the parties’ arguments, we are mindful of the “general
presumption that all lawfully enacted statutes are constitutional.” Muniz, 164 A.3d
at 1195. Petitioner argues that subchapter I of Act 29, as applied to him, is an ex
post facto law containing the same characteristics of SORNA that the Pennsylvania
22
Supreme Court determined in Muniz to be punitive in violation of the prohibition
against ex post facto laws. Pursuant to subchapter I of Act 29, Petitioner notes that
he must: register for life; notify PSP within three business days of a change in
residency or employment; appear annually to verify residence and be
photographed; be subject to criminal sanction if he fails to verify his residence or
notify PSP of changes; and “[b]e subject to display on the [I]nternet for life”
through the Internet dissemination provision. (Petitioner’s Brief (Br.) at 9-10.)
These provisions, Petitioner asserts, are punitive under a Mendoza-Martinez
analysis and our Supreme Court’s reasoning in Muniz. Before we reach the
Mendoza-Martinez analysis, however, we must begin with the first prong of the ex
post facto analysis, which is to determine whether the General Assembly’s intent is
punitive. Smith, 538 U.S. at 92.
A. General Assembly’s Intent
PSP asserts that based upon the General Assembly’s declaration of policy in
Act 29, subchapter I “shall not be construed as punitive” and is intended to
“[a]ddress the Pennsylvania Supreme Court’s decision in . . . Muniz.” 42 Pa.C.S.
§ 9799.51(b)(2), (4). Relying on the principle that “[t]here is a strong presumption
[that] legislative enactments are constitutional,” Commonwealth v. McMullen, 961
A.2d 842, 846 (Pa. 2008), PSP argues that the General Assembly’s intent was not
to punish and, therefore, subchapter I of Act 29 can only be found unconstitutional
upon a weighing of the Mendoza-Martinez factors. Petitioner apparently does not
dispute this, as he argues only the merits of his case under the Mendoza-Martinez
factors, an analysis which is implicated only if it is determined that the General
Assembly’s intent was nonpunitive.
23
Guided by the Supreme Court’s reasoning and analysis in Muniz, we
conclude that General Assembly had a nonpunitive intent in enacting subchapter I
of Act 29. When determining whether the General Assembly intended to punish,
we look to the text and structure of the statute, with “considerable deference . . .
accorded to the intent as the legislature has stated it.” Smith, 538 U.S. at 93. The
General Assembly sets out a number of legislative findings and corresponding
declarations of policy in subchapter I of Act 29 and expressly states that it “shall
not be construed as punitive.” 42 Pa.C.S. § 9799.51(b)(2). Through subchapter I
of Act 29, the General Assembly seeks to “[p]rotect the safety and general welfare
of the people of this Commonwealth,” “[r]equire the exchange of relevant
information . . . as a means of assuring public protection,” and address the
Supreme Court’s decision in Muniz. 42 Pa.C.S. § 9799.51(b)(1), (2), (4). As the
Supreme Court recently explained in Butler II with regard to subchapter H, much
of the legislative intent and declaration of policy of Act 29 is similar to that in
SORNA, which the Supreme Court found, in Muniz, did not demonstrate a
legislative intent to punish. Butler II, __ A.3d at __, slip op. at 21-22. In both
SORNA and Act 29, respectively, the General Assembly explained “[i]f the public
is provided adequate notice and information about sexual offenders,” then “the
community can develop constructive plans to prepare itself . . . .” Section
9799.11(a)(3) of SORNA, former 42 Pa.C.S. § 9799.11(a)(3); 42 Pa.C.S.
§ 9799.51(a)(1). The General Assembly also made legislative findings in both
iterations of the law that sexual offenders pose a high risk of reoffending and have
a reduced expectation of privacy, and the release of information about sexual
offenders to agencies and the public will further public safety. Former 42 Pa.C.S.
§ 9799.11(a)(4)-(6); 42 Pa.C.S. § 9799.51(a)(2), (4)-(6). With regard to its
24
declaration of policy, the General Assembly declared in both SORNA and
subchapter I of Act 29 its intent to protect the safety and welfare of people of the
Commonwealth and require the exchange of relevant information about sexual
offenders for that purpose. Former 42 Pa.C.S. § 9799.11(b)(1)-(2); Section
9799.51(b)(1)-(2) of Act 29, 42 Pa.C.S. § 9799.51(b)(1)-(2).
As the Supreme Court did in Muniz with regard to SORNA and Butler II
with regard to subchapter H, we discern nothing in the express legislative intent of
subchapter I of Act 29, to which we afford “considerable deference,” Smith, 538
U.S. at 93-94, demonstrating that the General Assembly intended punishment as
its aim. This is also consistent with the Superior Court’s recent decision in Moore,
222 A.3d at 20-21. Subchapter I of Act 29, like its predecessors, is intended by the
General Assembly “to create a civil, remedial scheme.” Id. at 21 (citing Muniz,
164 A.3d at 1209-10; Williams II, 832 A.2d at 971-72; Commonwealth v. Gaffney,
733 A.2d 616, 619 (Pa. 1999)). Because the General Assembly’s intent is
nonpunitive, we move to the Mendoza-Martinez factors to determine whether
subchapter I of Act 29 is punitive in nature such that it overcomes, or negates, the
General Assembly’s nonpunitive purpose.
B. Mendoza-Martinez Factors
We next analyze the Mendoza-Martinez factors for purposes of determining
whether the provisions of subchapter I of Act 29 are penal in nature. We reiterate
that the factors are intended to be “useful guideposts” that are “neither exhaustive
nor dispositive.” Smith, 538 U.S. at 97. Further. “only the clearest proof may
establish that a law is punitive in effect,” and “in determining whether a statute is
civil or punitive, we must examine the law’s entire statutory scheme.” Muniz, 164
A.3d at 1208 (citing Smith, 538 U.S. at 92) (quotation omitted).
25
1. Whether the sanction involves an affirmative disability or restraint.
Petitioner argues that subchapter I of Act 29 acts as an affirmative disability
or restraint on him that was not in place at the time of his offense or conviction.
Subchapter I of Act 29 imposes requirements for notification to PSP of changes in
residence or employment and in-person annual registration. Petitioner contends
that these requirements are “the same restraint[s]” as those in SORNA, which
included quarterly in-person registration, in-person appearances for changes in
employment or residence, and “secondary disabilities,” such as “finding and
keeping housing and employment,” and an increased “likelihood that an offender
may be subject to violence and adverse social and psychological impacts.”
(Petitioner’s Br. at 11.) The Supreme Court determined these requirements
weighed in favor of finding SORNA punitive in Muniz, Petitioner argues, and
“there[ is] little appreciable difference in the restraint that Act 29 imposes when
compared to [SORNA]”; thus, this factor weighs in favor of subchapter I of Act 29
being punitive. (Id. at 12.)
PSP responds that subchapter I of Act 29 does not impose an affirmative
disability or restraint. PSP argues that the Supreme Court held otherwise in Muniz
because SORNA required quarterly in-person reporting and in-person verification
requirements for updates in information. PSP asserts that the General Assembly
responded to these concerns in Act 29 by: requiring in-person reporting only once
a year, with the exception of transient individuals and SVPs, of which Petitioner is
not; eliminating in-person reporting requirements for changes in residence,
employment, or education; reducing the duration of registration for certain
offenses; eliminating certain offenses entirely from registration requirements; and
providing offenders the opportunity to petition for removal from registration
26
requirements after 25 years. Given these changes between SORNA and subchapter
I of Act 29, PSP argues this factor weighs in favor of finding subchapter I of Act
29 to be nonpunitive.
In Muniz, the petitioner committed his offenses when Megan’s Law III
governed, mandating a 10-year registration. The petitioner absconded, and
SORNA governed his registration at the time of his capture, mandating a lifetime
registration. Thus, the basis of the Supreme Court’s review of the petitioner’s
challenge was that SORNA placed registration requirements on the petitioner that
were not in place at the time he committed the offense. With regard to the first
Mendoza-Martinez factor, our Supreme Court compared SORNA to the Alaska
registration statute at issue in Smith. The United States Supreme Court in Smith
determined that while offenders subject to the Alaska statute were required to
notify authorities of changes in residence and other information, they were not
required to do so in person; thus, there was no affirmative disability or restraint.
Id. at 101-02. Our Supreme Court in Muniz concluded that this was an important
distinction, as SORNA required quarterly in-person registration for the petitioner,
and in-person verification of changes to information. Muniz, 164 A.3d at 1210.
Our Supreme Court also acknowledged it determined in Williams II that the
counseling requirements for SVPs under Megan’s Law II, an arguably more
onerous requirement, were not a disability or restraint. The Court in Muniz
distinguished the in-person reporting requirements for all offenders under SORNA
from counseling sessions intended to help offenders independently determined to
be SVPs under Megan’s Law II. 164 A.3d at 1211 (citing Williams II, 832 A.2d at
975).
27
The Supreme Court in Muniz explained that, for the petitioner’s Tier III
sexual offense, SORNA required the petitioner 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,” without “account[ing] for the
times he must appear due to his ‘free’ choices including ‘moving to a new address
or changing his appearance.’” Muniz, 164 A.3d at 1210-11 (quoting former 42
Pa.C.S. § 9799.15(g)). While our Supreme Court in Muniz emphasized the
multiple times per year and over a lifetime that an offender was required to appear
in person under SORNA, it also more generally stated that it found “the in-person
reporting requirements, for both verification and changes to an offender’s
registration, to be a direct restraint upon [the petitioner] and hold this factor weighs
in favor of finding SORNA’s effect to be punitive.” Id. at 1211. Accordingly,
SORNA’s in-person reporting and verification requirements were “a direct
restraint” on the petitioner, the Supreme Court stated, and weighed in favor of
finding SORNA to be punitive. Id.
Subsequently, in Butler II, the Supreme Court provided further analysis in
determining that the RNC requirements for SVPs under subchapter H of Act 29
were a restraint and affirmative disability on SVPs, noting the reporting
requirements were identical to those for Tier III offenders under SORNA and
require SVPs to appear in person for changes to information and quarterly
registration. Butler II, __ A.3d at __, slip op. at 23. The Supreme Court, relying
on Muniz, therefore concluded this factor weighed in favor of finding subchapter H
to be punitive. The Supreme Court cautioned “[i]t is important to note, however,
that merely placing affirmative disabilities on SVPs does not inexorably lead to the
conclusion that the government has imposed punishment” because the state can
28
restrict the freedom of the “dangerously mentally ill.” Id. (emphasis added)
(quotation omitted). SVPs, who have undergone subsequent evaluation, are
subject to the RNC requirements not because of their convictions, but because they
have been found to be dangerously mentally ill, similar to mental health
commitments. This is a legitimate nonpunitive interest.
We note that Petitioner in this matter is not a SVP or subject to subchapter
H, and committed his crimes prior to the existence of a registration scheme.
However, the Supreme Court’s interpretation and explanation of Muniz in Butler II
is instructive as to what provisions should be considered punitive and whether a
legitimate interest underlies those provisions. Under subchapter I of Act 29,
Petitioner, who is not a SVP, is required to appear for in-person registration
annually. 42 Pa.C.S. § 9799.60(b). While Petitioner is still required under
subchapter I of Act 29 to notify PSP of any changes in residence, employment, or
education enrollment, he is not required to personally appear for verification of
those changes as he would have been under SORNA. Compare former 42 Pa.C.S.
§ 9799.15(g), with 42 Pa.C.S. § 9799.56(a)(2). To this extent, subchapter I of
Act 29 is reminiscent of the requirements in place for offenders under Megan’s
Law II and Megan’s Law III, both of which required offenders to register current
residences with PSP and notify PSP within 10 days of a change in residence. See
Section 9795.2(a)(2) of Megan’s Law III, former 42 Pa.C.S. § 9795.2(a)(2).
However, “Muniz was a sea change in the longstanding law of this Commonwealth
. . . .” Butler I, 173 A.3d at 1215. Distinguishing Smith and Williams II, the
Supreme Court in Muniz disapproved of in-person registration and verification
provisions that mandated the offender’s appearance multiple times over the course
of the offender’s lifetime, emphasizing the onerous nature of such requirements to
29
a petitioner to whom the statute was retroactively applied. Muniz, 164 A.3d at
1211. The Supreme Court reaffirmed this position in Butler II, concluding that
onerous in-person registration requirements for SVPs in subchapter H, like those in
SORNA, weigh in favor of finding this factor punitive. Butler II, __ A.3d at __,
slip op. at 23.
The Supreme Court disapproved not only of in-person appearances, but the
frequency of those appearances for the petitioner in Muniz. Under SORNA, Tier I
and Tier II offenders were subject to annual and semi-annual in-person
registration, respectively. Given the petitioner’s status as a Tier III offender with
quarterly in-person registration, the Supreme Court in Muniz did not address
whether the lesser in-person registrations under SORNA still constituted an
affirmative disability or restraint. Nonetheless, the Supreme Court did not sever
portions of SORNA, such as the quarterly in-person registration, instead
determining that the entire statutory scheme was unconstitutional. Therefore,
while the Supreme Court in Muniz and Butler II emphasized the sheer number of
in-person appearances that come with quarterly in-person registration and in-
person verification provisions, which are admittedly lessened for offenders like
Petitioner under subchapter I of Act 29, the Supreme Court did not endorse or
reject annual in-person registration as constitutional or unconstitutional. Given
how the Supreme Court in Muniz distinguished Smith on the basis of in-person
appearances and disapproved of increased registration requirements for individuals
who committed their crimes before the current enactment of the registration
scheme, it appears annual in-person registration for offenders like Petitioner is an
affirmative disability or restraint.
30
Further, examining subchapter I of Act 29’s statutory scheme on the whole
as applied to Petitioner, we find the Internet dissemination provision also
constitutes an affirmative disability or restraint, as the Superior Court recently
found in Moore, 222 A.3d at 23. With regard to the first factor, the Superior Court
determined that the Internet dissemination provision is nearly identical to the
SORNA website provision. Because the Internet dissemination provision, like the
SORNA website provision, constitutes a punishment, “and punishment is a
restraint,” the Superior Court explained, “the Internet dissemination provision of
[Act 29] constitutes an affirmative restraint.” Id. In determining that this factor
weighed in favor of finding Act 29 to be punitive, the Superior Court noted “the
adverse impact to a sex offender’s reputation, imposed purposefully as a
consequence of conduct deemed criminal, is widespread,” making the harm
“consequential and far-reaching.” Id. at 23-24. We agree with the Superior
Court’s reasoning and conclusion on this point.
In reaching this conclusion, we reiterate that for an ex post facto analysis, the
entire statutory scheme as applied to Petitioner must be viewed in relation to
what he had notice of at the time he committed his crimes. The petitioner in Muniz
was convicted and sentenced in 2007, and there was no dispute that, at the times he
committed and was convicted for his crimes, he would have been required to
register as a sexual offender. However, as the Supreme Court found, the in-person
quarterly registration, in-person updates, and SORNA website provision were more
onerous than that which governed the petitioner’s registration at the time he
committed his crimes. Here, it bears emphasis that there was no registration
requirement at all when Petitioner committed his crimes. Therefore, while annual
in-person registration may be less onerous than quarterly in-person registration, the
31
statutory scheme of subchapter I of Act 29 as a whole as applied to Petitioner is a
restraint in comparison to that which existed at the time he committed his crimes.
While some form of registration for offenders like Petitioner may be
constitutionally permissible, see Smith, 538 U.S. at 105, subchapter I of Act 29 in
its entirety as applied imposes more than mere registration. Now, approximately
30 years after the commission of his crimes, Petitioner is required not only to
register but to appear in person annually, notify PSP of any changes as a
requirement of that registration, be at risk of additional criminal punishment if he
does not comply, and be subject to posting of his information on the Internet for
the rest of his life. Applying the Supreme Court’s analysis in Muniz, and keeping
at the forefront of our analysis the purpose of the Ex Post Facto clause, which is to
“ensure[] that individuals have fair warning of applicable laws” at the time an
offense is committed, Peugh, 569 U.S. at 544, we are constrained to conclude that
this factor weighs in favor of finding subchapter I of Act 29 to be punitive as
applied to Petitioner.
2. Whether the sanction has historically been regarded as punishment.
Petitioner argues that the annual in-person reporting requirements and the
Internet dissemination provision are similar to traditional shaming punishments.
Petitioner asserts that, as in Muniz, these provisions of subchapter I of Act 29 are
“more akin to probation.” (Petitioner’s Br. at 13 (quoting Muniz, 164 A.3d at
1213).) Therefore, Petitioner contends that subchapter I of Act 29 “retains the
same features” of SORNA that the Supreme Court determined were sanctions
regarded as punishment. Petitioner argues that this factor weighs in favor of
finding Act 29 to be punitive.
32
PSP disagrees, noting that the Supreme Court in Muniz found the
registration requirements of SORNA resembled punishments due to their similarity
to probation and the shaming nature of the SORNA website provision. PSP
responds that subchapter I of Act 29 addresses these concerns. Specifically, PSP
asserts that subchapter I of Act 29 makes registration requirements less onerous
and, therefore, less similar to probation reporting requirements. With regard to the
Internet dissemination provision, PSP contends the information required to be
posted “is already public information or, at the very least, easily obtainable.”
(PSP’s Br. at 6.) Further, the consequences for failure to comply with subchapter I
of Act 29 are not similar to probation reporting requirements, PSP asserts, because
probation violations are determined at a hearing, typically without involving
police, whereas noncompliance with Act 29 resembles more traditional criminal
prosecution with all the rights required thereunder. Moreover, PSP contends the
General Assembly did not intend the Internet dissemination provision to be
punitive and Petitioner’s criminal conviction, not Act 29 requirements, causes any
shaming effect that may exist from posting his information on the Internet.
In Muniz, the Supreme Court determined that the SORNA website provision
and the in-person reporting requirements were sanctions historically regarded as
punishments. 164 A.3d at 1212-13. The Supreme Court acknowledged that the
United States Supreme Court in Smith concluded otherwise with regard to the
Alaska statute on the basis that historic shaming was more than simple
dissemination of public information and the information posted online was for the
purpose of public safety rather than a means to shame the offender. Id. at 1212
(citing Smith, 538 U.S. at 98-99). “Smith was decided in an earlier technological
environment,” the Supreme Court in Muniz explained, and “[y]esterday’s face-to-
33
face shaming punishment can now be accomplished online, and an individual’s
presence in cyberspace is omnipresent.” Id. (quoting Commonwealth v. Perez, 97
A.3d 747, 765 (Pa. Super. 2014) (Donohue, J., concurring)). Further, the Supreme
Court explained that SORNA and the Alaska statute at issue in Smith were
“materially different” because the Alaska statute did not impose mandatory
conditions like SORNA did. Id. Because the petitioner in Muniz would be
required to register quarterly in person, notify PSP in person of changes in
residence or employment, and face possible incarceration for noncompliance, the
Supreme Court reasoned that SORNA’s requirements resembled probation, a
traditional form of punishment. Id. at 1213. Due to SORNA’s similarity to
probation requirements and the shaming nature of the SORNA website provision,
the Supreme Court concluded that this factor weighed in favor of finding SORNA
to be punitive. Id.
In Butler II, the Supreme Court further explained that “SVPs under
[s]ubchapter H are subject to the same in-person reporting requirements as the
Tier III offenders at issue in Muniz and SVPs also face incarceration for failure to
comply with the RNC requirements.” __ A.3d at __, slip op. at 25. Therefore, the
Supreme Court found the RNC requirements similar to probation. Id. With regard
to the dissemination of information about SVP registrants online, however, the
Supreme Court distinguished “heightened public safety concerns applicable to
SVPs that were not at issue in Muniz,” and recognized that subchapter H provides a
mechanism through which SVPs can seek removal from the Registry after 25
years. Id. at __, slip op. at 26. Therefore, with regard to the online registry and
notification requirements imposed on SVPs, the Supreme Court determined they
were not similar to traditional shaming punishments. Given this, the Supreme
34
Court found in Butler II that this factor did not weigh as heavily toward finding the
provisions punitive for SVPs as it had in Muniz for offenders that are not SVPs.
Id.
Our Supreme Court has recognized “probation itself may be a form of
punishment.” Williams II, 832 A.2d at 977. Individuals on probation are subject
to the imposition of conditions, including “be[ing] subject to intensive supervision
. . . and to notify the court or designated person of any change in address or
employment,” and having “[t]o report as directed to the court or the designated
person and to permit the designated person to visit the [offender’s] home.”
Sections 9754(b) and 9763(b)(11), (12) of the Sentencing Code, 42 Pa.C.S. §§
9754(b), 9763(b)(11), (12). If an individual on probation violates probation
conditions, the individual may be subject to incarceration. 42 Pa.C.S. § 9754(d).
Pursuant to subchapter I of Act 29, Petitioner is required to appear annually in
person for registration in order to verify residence information and to be
photographed, 42 Pa.C.S. § 9799.60(b). Petitioner is required to notify PSP within
three days of any change to his residence or employment information, 42 Pa.C.S.
§ 9799.56(a)(2). Petitioner is subject to arrest and criminal sanction if he does
not verify his residence, notify PSP of changes, or appear for in-person
registration, 42 Pa.C.S. § 9799.56(d). Consistent with our Supreme Court’s
precedent, and following Muniz, we discern no material difference between the
conditions imposed in probation and the conditions imposed upon Petitioner under
subchapter I of Act 29.
PSP contends that the imposition of criminal sanctions for failure to comply
with the registration requirements is distinguishable from probation conditions, as
a violation of probation is determined without the full panoply of rights attached to
35
criminal proceedings, such as those that would be commenced for failure to
comply with subchapter I of Act 29. We are not persuaded that this distinction
makes subchapter I of Act 29 as applied to Petitioner any less onerous or any less
like a sanction that has historically been regarded as punishment. As the Supreme
Court noted in Muniz, for either violations of probation conditions or sexual
offender registration requirements, there is the need for a separate factual
determination as to whether a violation has occurred. 164 A.3d at 1213.
Moreover, the potential to be subject to incarceration for a violation of probation
conditions or sexual offender registration requirements arises from the original
underlying offense. Id. But for Petitioner’s conviction, he would not be subject to
the possibility of prosecution for failure to comply with subchapter I of Act 29,
similar to an individual subject to incarceration for a failure to comply with
probation conditions.
This distinction is highlighted by the Supreme Court’s recent decision in
Butler II. The Supreme Court distinguished the SVP provisions of subchapter H
and the SORNA provisions at issue in Muniz, reasoning that this factor weighed
less heavily towards being punitive where SVPs were concerned, as there was a
heightened public safety concern. Butler II, __ A.3d at __, slip op. at 25-26. An
offender who is categorized as a SVP is subject to the myriad of registration
requirements because of a post conviction determination that the offender suffers
from a mental abnormality, not because of the conviction. Id. at __, slip op. at 26.
In contrast, Petitioner’s requirements attendant to his registration under
subchapter I derive from his conviction alone, a conviction which occurred before
a registration scheme existed. Therefore, unlike a SVP, we examine Petitioner’s
36
sanctions under Muniz, and they resemble probation and are of the nature
historically regarded as punishment.
Petitioner also specifically challenges the Internet dissemination provision of
subchapter I of Act 29 as applied to him, contending it is comparable to historical
shaming punishments. As explained above, at the time Petitioner committed his
triggering offense, there was no sexual offender registration scheme. At the time
of Petitioner’s release, Megan’s Law II governed Petitioner’s registration
requirements and had no Internet dissemination provision. Under the amendments
that constituted Megan’s Law III, Petitioner was first subject to the dissemination
of his information on the Internet, including his name, year of birth, residential
address, the city and county of employment, his photograph, and a description and
the date of his triggering offense. Section 9798.1(c) of Megan’s Law III, former
42 Pa.C.S. § 9798.1(c). SORNA authorized Internet dissemination of, inter alia,
Petitioner’s name, aliases, year of birth, residence, address of employment,
photograph, physical description, license plate number and vehicle registrations,
triggering offense, and a statement regarding his SORNA registration compliance.
Section 9799.28(b) of SORNA, former 42 Pa.C.S. § 9799.28(b). In Muniz, the
Supreme Court concluded that the SORNA website provision was comparable to
historic shaming punishments and advanced the traditional aims of punishment
given the broad reach of the Internet and the extended amount of time during
which it authorized dissemination of an offender’s personal information. Muniz,
164 A.3d at 1212, 1215.
Subchapter I of Act 29 continues the SORNA website provision nearly
identically. Pursuant to the Internet dissemination provision of subchapter I of Act
29, PSP must disseminate online Petitioner’s:
37
(i) name and all known aliases; (ii) year of birth; (iii) . . . the street
address, municipality, county and zip code of all residences,
including, where applicable, the name of the prison or other place of
confinement; (iv) the street address, municipality, county, zip code
and name of an institution or location at which the person is enrolled
as a student; (v) the municipality, county and zip code of an
employment location; (vi) a photograph of the individual, which shall
be updated not less than annually; (vii) a physical description of the
offender, including sex, height, weight, eye color, hair color, and race;
(viii) identifying marks, including scars, birthmarks and tattoos; (ix)
the license plate number and description of a vehicle owned or
registered to the offender; (x) whether the offender is currently
compliant with registration requirements; (xi) whether the victim is a
minor; (xii) a description of the offense or offenses which triggered
the application of this subchapter; [and] (xiii) the date of the offense
and conviction, if available . . . .
42 Pa.C.S. § 9799.63(c)(1). As the Supreme Court explained in Muniz, the public
dissemination of this information online resembles historic shaming punishments
and “exposes [Petitioner] to ostracism and harassment.” 164 A.3d at 1212
(quoting Perez, 97 A.3d at 766 (Donohue, J., concurring)).
The Superior Court relied on Muniz in its recent decision in Moore. With
regard to this factor, the Superior Court also noted that the Internet dissemination
provision of subchapter I of Act 29 “is nearly identical” to that in SORNA. Moore,
222 A.3d at 22. Therefore, “[i]n light of these similarities, especially in terms of
the broad method of dissemination,” the Superior Court “conclude[d] that Muniz
requires a finding that the [Internet] dissemination provision of [Act 29] is
analogous to traditional public shaming, a historic form of punishment,” and the
factor weighed in favor of finding subchapter I punitive. Id. We believe the
Superior Court’s determination in Moore is correct, that there is no discernable
difference between the SORNA website provision and the Internet dissemination
provision of subchapter I of Act 29. Therefore, the Supreme Court’s reasoning
38
underlying its determination in Muniz that the SORNA website provision was
similar to a historic shaming punishment remains applicable to subchapter I of Act
29 as applied to Petitioner. Moreover, if the application of the Internet
dissemination provision to an offender who was on notice of registration at the
time the crimes were committed is punitive as a form of shaming punishment, such
as in Moore, then the application of such provisions to Petitioner, who committed
his crimes when there was no registration requirement, must also be punitive.
In consideration of the fact that the registration and verification requirements
of subchapter I of Act 29 resemble probation, a form of punishment, and the
Internet dissemination provision resembles historic shaming punishments, we find
this factor weighs in favor of finding subchapter I of Act 29 to be punitive as
applied to Petitioner.
3. Whether the sanction comes into play only on a finding of scienter.
Petitioner and PSP acknowledge that this factor did not carry much weight
in the analysis in Muniz and, therefore, do not address this factor in detail.
(Petitioner’s Br. at 16 n.9; PSP’s Br. at 3.) Although our Supreme Court found
differently with regard to this factor in Butler II, that was because “the RNC
requirements are not triggered on the basis of a finding of scienter,” but rather on a
determination of an offender’s “mental abnormality or personality disorder.”
Butler II, __ A.3d at __, slip. op. at 26-27. Because Petitioner is not a SVP, like
the appellee in Butler II was, we follow the reasoning in Muniz. As the Supreme
Court has recognized with regard to non-SVP offenders, “where the concern of a
sex offender registration statute . . . is protecting the public against recidivism, past
criminal conduct is ‘a necessary beginning point.’” Muniz, 164 A.3d at 1214
39
(quoting Smith, 585 U.S. at 105). Accordingly, “this factor is of little significance
in our inquiry.” Id.
4. Whether the operation of the sanction will promote the traditional aims of
punishment – retribution and deterrence.
Petitioner argues that subchapter I of Act 29 promotes retribution and
deterrence because it authorizes the dissemination “to anyone with [I]nternet
access all the same private information” that was authorized for disclosure under
SORNA. (Petitioner’s Br. at 15 (emphasis omitted).) Further, Petitioner asserts,
Act 29 imposes punishment when an offender fails to register or provide accurate
information. Petitioner contends that subchapter I of Act 29 is no different from
the SORNA website provision, which the Supreme Court found to be more
retributive than prior versions of sexual offender registration statutes in
Pennsylvania. Petitioner argues this factor weighs in favor of finding subchapter I
of Act 29 to be punitive.
PSP responds that subchapter I of Act 29 does not promote traditional aims
of punishment like SORNA. PSP argues the Supreme Court in Muniz concluded
that SORNA promoted the traditional aims of punishment because several
triggering offenses were misdemeanors, and some triggering offenses did not have
a sexual component, and due to the quarterly in-person reporting requirements and
breadth of information available on the Internet. The General Assembly addressed
these concerns through subchapter I of Act 29, PSP asserts, as subchapter I:
contains fewer triggering offenses; eliminates triggering offenses that do not have a
sexual component; ensures nearly all triggering offenses are felonies rather than
misdemeanors; and reduces registration durations and the in-person reporting
requirements.
40
The Supreme Court in Muniz determined that SORNA operated to promote
traditional aims of punishment due to the SORNA website provision and the large
breadth of triggering offenses, some of which were not felonies or did not have a
sexual component. 164 A.3d at 1215. Although the petitioner in Muniz asserted
that the application of SORNA to him was unconstitutional, the Supreme Court
considered the statutory scheme on the whole when it discussed whether SORNA
promoted traditional aims of punishment. Thus, the Supreme Court analyzed
SORNA with regard to the offenders subject to its provisions as a result of the
offenses they committed. The Supreme Court concluded in Butler II that the RNC
requirements and counseling requirements for SVPs did not promote retribution
because for SVPs “recidivism is obviated through” such provisions; a “distinction
[that] responds to the understanding that SVPs, who cannot control their behavior
due to a mental abnormality or personality disorder, are unlikely to be deterred
from re-offending even by threats of confinement.” __ A.3d at __, slip op. at 27.
This was in contrast to Muniz, the Supreme Court explained, where SORNA
requirements were “applicable only upon a conviction for a predicate offense.” Id.
(quoting Muniz, 164 A.3d at 1215). Because the RNC requirements of subchapter
H are not imposed on conviction, but rather after a determination of SVP status by
the Board, the Supreme Court found this factor to weigh in favor of finding these
requirements to be nonpunitive. Id.
PSP asserts that subchapter I of Act 29 on the whole does not promote
traditional aims of punishment like SORNA did because of its discernable
differences from SORNA. As PSP notes, subchapter I of Act 29 is different from
SORNA in terms of the triggering offenses. SORNA included triggering offenses
that lacked a sexual component, including those related to unlawful restraint, false
41
imprisonment, and interference with custody of children in violation of Sections
2902(b), 2903(b) and 2904 of the Crimes Code, respectively, 18 Pa.C.S. §§
2902(b), 2903(b), 2904. Section 9799.14 of SORNA, former 42 Pa.C.S. §
9799.14. These offenses, along with others that were present in SORNA, are not
included in subchapter I of Act 29, subchapter I includes only two offenses without
a sexual component.18 Section 9799.55 of Act 29, 42 Pa.C.S. § 9799.55. The
General Assembly also reduced the duration of registration attached to certain
triggering offenses, such as those relating to sexual exploitation of children and
unlawful contact with a minor, offenses that carried a 25-year registration period
under SORNA and carry a 10-year registration period under subchapter I of Act
29. Compare former 42 Pa.C.S. §9799.14(c), with 42 Pa.C.S. § 9799.55(a).
However, the existence of fewer triggering offenses or offenses without a
sexual component in subchapter I of Act 29 as compared to SORNA is immaterial
as applied to Petitioner here who faced no obligation of registration at the time he
committed his offenses. We note that the Supreme Court’s analysis in Muniz of
the entire statutory scheme of SORNA was in relation to former versions of the
statute and that the petitioner in Muniz committed his crimes when a prior version
of a registration scheme was in existence. Again, we emphasize that here, there
was no registration scheme for Petitioner when he committed his crimes and was
convicted and sentenced. Therefore, the critical inquiry here is not whether
subchapter I of Act 29 is less punitive than SORNA on the whole but, rather,
whether the entire statutory scheme of subchapter I of Act 29 is punitive as applied
18
These offenses are kidnapping a minor and luring a child into a motor vehicle or
structure in violation of Sections 2901 and 2910 of the Crimes Code, respectively, 18 Pa.C.S. §§
2901, 2910.
42
to an offender like Petitioner who committed his offense when there was no
registration scheme. See, e.g., Weaver, 450 U.S. at 30; Wood, 208 A.3d at 136.
Further, Petitioner’s obligations under subchapter I of Act 29 arise not from
a separate determination that he possesses an abnormality that makes him
dangerous, like a SVP, such as in Butler II, but because of an offense he committed
prior to the enactment of a registration scheme. As the Supreme Court explained
in Butler II, registration provisions in the nature of those in SORNA can be
retributive in effect when they are based on the conviction for the predicate
offense. __ A.3d at __, slip op. at 27. Here, the provisions governing Petitioner’s
registration are based alone upon his conviction for the predicate offense. Because
Petitioner did not have fair warning at the time of commission of the offenses that
he would have multifaceted registration requirements for his lifetime, and his
registration requirements derive from his conviction alone, we agree with
Petitioner that this factor weighs in favor of finding subchapter I of Act 29 to be
punitive as applied to him, regardless of any discernable differences between
SORNA and subchapter I of Act 29 with regard to offenses requiring registration.
Petitioner additionally relies upon the Internet dissemination provision to
argue that subchapter I of Act 29 as applied to him promotes traditional aims of
punishment. In Muniz, the Supreme Court concluded 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. Although acknowledging that the mere
presence of a deterrent effect alone did not render the sanctions of SORNA
criminal, the Supreme Court found, after a thorough review of SORNA, that there
was more than a mere presence of deterrent effect. The Supreme Court reasoned
43
that SORNA was unlike the SVP provisions of Megan’s Law II, which the
Supreme Court concluded in Williams II did not have a deterrent or retributive
effect. Nor was SORNA like the Alaska statute at issue in Smith, where the United
States Supreme Court reasoned that the dissemination of accurate information of
public record did not have a punitive effect. Rather, in Muniz, the Supreme Court
stated, “the information SORNA allows to be released over the [I]nternet goes
beyond publicly accessible conviction data,” to include addresses of residence and
employment, physical description, and vehicle information. Id. at 1215-16. The
Supreme Court further explained while it found in Williams II that the
dissemination provisions of Megan’s Law II were necessary for public safety, it
also stated that Megan’s Law II “need not be read to authorize [the] public display
of the information, as on the Internet,” which was not the case under SORNA.
Muniz, 164 A.3d at 1216 (quoting Williams II, 832 A.2d at 980). On the whole,
SORNA was an “increase in retributive effect,” from that in Megan’s Law II, and
the Supreme Court weighed this factor in favor of finding SORNA to be punitive.
Id.
We agree with Petitioner that this factor weighs in favor of finding
subchapter I of Act 29 to be punitive as applied to him. As previously explained,
the Internet dissemination provision of subchapter I of Act 29 retains all the same
features that the Supreme Court disapproved of in Muniz with regard to SORNA.
Subchapter I of Act 29 authorizes the dissemination of Petitioner’s personal
information online for his lifetime. Although PSP asserts that the information
subject to dissemination is already of public record, this argument was already
rejected by the Supreme Court in Muniz. Id. at 1215-16. As with SORNA,
subchapter I of Act 29 requires dissemination of more than the mere fact of
44
conviction, which is public record. It includes, inter alia, Petitioner’s work and
home addresses, physical description, photograph, and vehicles he owns. 42
Pa.C.S. § 9799.63(c)(1). The dissemination of this information advances a
retributive purpose, as it “affix[es] culpability for prior criminal conduct.” Muniz,
164 A.3d at 1215 (alteration in original) (citation omitted). As the Superior Court
in Moore stated with regard to this factor,
[s]ince the Supreme Court concluded that the Internet dissemination
provision of SORNA [] has both a deterrent and retributive effect, and
the Internet dissemination provision of [Act 29] is identical to the one
in SORNA [], we must conclude that the Internet dissemination
provision of [Act 29] has both a deterrent and retributive effect.
Moore, 222 A.3d at 24. Accordingly, consistent with Muniz, we conclude that the
entire statutory scheme on the whole as applied to Petitioner promotes traditional
aims of punishment and this factor weighs in favor of finding subchapter I of Act
29 to be punitive as applied to Petitioner.
5. Whether the behavior to which the sanction applies is already a crime.
Petitioner concedes that the behavior to which subchapter I of Act 29 applies
is already a crime, noting that the Supreme Court in Muniz acknowledged the same
with regard to SORNA. Because this factor did not carry much weight in the
analysis in Muniz, PSP does not address this factor in detail. Similar to the third
Mendoza-Martinez factor, the Supreme Court concluded in Muniz that “this factor
carries little weight in the balance,” “recognizing 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, 583 U.S. at 105). The
Supreme Court concluded otherwise in Butler II, again on the basis that RNC
requirements in subchapter H “are not applied to conduct at all, but to an
45
individual’s status as suffering from a serious psychological defect,” that increases
the likelihood that an individual will engage in a sexual offense again. __ A.3d at
__, slip op. at 28. Because Petitioner’s requirements flow from his conviction
rather than a SVP determination, we again follow Muniz and do not give much
weight to this factor in our analysis of subchapter I of Act 29 as applied to
Petitioner.
6. Whether an alternative purpose to which the sanction may rationally be
connected is assignable for it.
Petitioner concedes that subchapter I of Act 29 has a “rational connection to
‘protect[ing] the safety and general welfare of the people of this Commonwealth.’”
(Petitioner’s Br. at 17 (alteration in original) (quoting 42 Pa.C.S. § 9799.51(b)(1)).)
Therefore, Petitioner admits that this factor weighs in favor of finding subchapter I
of Act 29 nonpunitive. PSP agrees that there is an alternative purpose to which
subchapter I of Act 29 may be rationally connected. Relying upon the Supreme
Court’s reasoning in Muniz that such policy considerations are within the purview
of the General Assembly, PSP asserts the purpose of Act 29 is public safety and
this factor weighs in favor of subchapter I being nonpunitive.
The Supreme Court has consistently recognized the nonpunitive purpose of
sexual offender registration laws in the Commonwealth. With regard to Megan’s
Law I, our Supreme Court in Gaffney explained “the legislature’s intent in
requiring offenders to register with [PSP] regarding their whereabouts was not
retribution; rather the . . . intent was to provide a system of registration and
notification” for the purpose of promoting public safety. 733 A.2d at 619. In
Williams II, the Supreme Court stated “the legislative findings” underlying
Megan’s Law II “are consistent with grave concerns over the high rate of
recidivism among convicted sex offenders.” 832 A.2d at 979 (internal quotations
46
omitted). With regard to Megan’s Law III, the Supreme Court again
acknowledged the legislative purpose of addressing the high risk of recidivism in
sexual offenders and ensuring public safety. Commonwealth v. Wilgus, 40 A.3d
1201, 1205 (Pa. 2012). In Muniz, the Supreme Court reiterated the same for
SORNA. While noting conflicting studies regarding the effectiveness of sexual
offender registration laws and the likelihood of recidivism among sexual offenders,
the Supreme Court determined “policy regarding such complex societal issues,
especially when there are studies with contrary conclusions, is ordinarily a matter
for the General Assembly.” Muniz, 164 A.3d at 1217. Because the General
Assembly made the legislative finding that sexual offenders pose a high risk of
reoffending and protection of the public from these types of offenders is a
government interest, the Supreme Court “defer[red] to the General Assembly’s
findings on this issue.” Id. The Supreme Court reiterated again that there was an
alternative nonpunitive purpose of subchapter H of Act 29 in Butler II, although it
reasoned that the conflict in any studies with regard to the high risk of recidivism
among sex offenders was not relevant as it was in Muniz because SVPs “underwent
individual assessments that led to a finding [that] they are highly likely to reoffend
due to a mental abnormality or personality disorder.” Butler II, __ A.3d at __, slip
op. at 28.
There is no dispute that subchapter I of Act 29, like its predecessors, has a
rational nonpunitive purpose. The General Assembly has made extensive
legislative findings that:
(1) If the public is provided adequate notice and information about
[SVPs] and offenders . . . , the community can develop constructive
plans to prepare itself for the release of [SVPs] and offenders. . . .
47
(2) These [SVPs] 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
governmental interest.
(3) The penal and mental health components of our justice system are
largely hidden from public view, and lack of information from either
may result in failure of both systems to meet this paramount concern
of public safety.
(4) Overly restrictive confidentiality and liability laws governing the
release of information about [SVPs] and offenders have reduced the
willingness to release information that could be appropriately released
under the public disclosure laws and have increased risks to public
safety.
(5) Persons found to have committed a sexual offense 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 [SVPs] and 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.
42 Pa.C.S. § 9799.51(a). Based upon these findings, the General Assembly has set
forth that its policy in subchapter I of Act 29 is to:
(1) Protect the safety and general welfare of the people of this
Commonwealth by providing for registration, community notification
and access to information regarding [SVPs] and offenders who are
about to be released from custody and will live in or near their
neighborhood.
(2) Require the exchange of relevant information about [SVPs] and
offenders among public agencies and officials and to authorize the
release of necessary and relevant information about sexually violent
predators and offenders to members of the general public, including
information available through the publicly accessible Internet website
48
of the [PSP], as a means of assuring public protection and shall not be
construed as punitive.
....
(4) Address the Pennsylvania Supreme Court’s decision in . . . Muniz,
. . . and the Pennsylvania Superior Court’s decision in . . . Butler
[I] . . . .
42 Pa.C.S. § 9799.51(b). In consideration of the General Assembly’s stated
findings and intent and the precedent in this Commonwealth acknowledging the
nonpunitive purpose of the various iterations of sexual offender laws, we also
“defer to the General Assembly’s findings on this issue,” Muniz, 164 A.3d at 1217.
Because Act 29 clearly has a purpose beyond punishment, this factor weighs in
favor of finding subchapter I of Act 29 to be nonpunitive as applied to Petitioner.
7. Whether the sanction appears excessive in relation to the alternative purpose
assigned.
Although Petitioner agrees that subchapter I of Act 29 has an alternative
purpose to which it may be rationally connected, Petitioner argues that it is
excessive in relation to that purpose. Specifically, Petitioner argues subchapter I of
Act 29 could achieve its purpose of protecting the public without annual in-person
reporting requirements or public dissemination of information online. Rather,
Petitioner contends that subchapter I of Act 29 could achieve its intended purpose
by requiring: yearly information updates by mail, in-person reporting requirements
every four years, and/or limiting registration to a county-based publicly accessible
registry where the registrant lives and works. While acknowledging that
subchapter I is an improvement from SORNA because it provides the opportunity
to petition for exemption from registration requirements under certain
49
circumstances, Petitioner argues that it nonetheless “still does more to shame,
restrain, and harm offenders, like Petitioner, than is necessary for protecting the
public.” (Petitioner’s Br. at 19.) Despite the General Assembly’s intent to address
the concerns of the Supreme Court in Muniz through subchapter I of Act 29,
Petitioner asserts this factor and the Mendoza-Martinez factors on the whole still
weigh in favor of finding subchapter I of Act 29 punitive. At the time of
commission of his offenses and convictions, Petitioner argues, he could not have
anticipated that his conduct “would[] subject[] him to the . . . sanctions imposed by
[Act 29].” (Petitioner’s Br. at 20.) Therefore, Petitioner asks this Court to grant
the Application and conclude that subchapter I of Act 29 is unconstitutional as
applied to him.
PSP disagrees, responding that subchapter I of Act 29 is not excessive
compared to its purpose of promoting public safety. PSP notes that the Supreme
Court in Muniz determined SORNA was excessive in relation to its purpose
because it categorized a broad range of individuals as sexual offenders, including
those convicted of offenses that lacked a sexual component, without allowing a
mechanism for being relieved from lifetime reporting requirements. PSP argues
that subchapter I of Act 29 responds to this problem by including only two
triggering offenses without a sexual component; reducing the registration period
for many offenses; and providing a mechanism to petition for removal from the
Registry and registration requirements after 25 years. PSP asserts these
distinguishing features between SORNA and Act 29 demonstrate that subchapter I
of Act 29 is not excessive and this factor should weigh in favor of it being
nonpunitive. Moreover, PSP contends Petitioner’s suggestions for alternative
provisions that would make subchapter I of Act 29 less excessive in comparison to
50
its purpose are not relevant. The question before this Court “is not whether a
‘better’ law could be created,” but “whether Act 29 is nonpunitive when
considering the concerns the Supreme Court expressed in Muniz.” (PSP’s Br. at
8.)
In Muniz, the Supreme Court analyzed SORNA’s excessiveness in terms of
its “entire statutory scheme,” rather than only as applied to the petitioner or a class
of registrants, such as SVPs. 164 A.3d at 1218. In Muniz, our Supreme Court
noted its acknowledgment in Williams II of the possibility that Megan’s Law II
could be excessive if it resulted in individuals who do not pose the type of risk
contemplated by the General Assembly being classified as SVPs. The Supreme
Court also emphasized the societal interest in ensuring a sex offender registration
law is not “over-inclusive.” Id. (quotation omitted). Because SORNA
“categorize[d] a broad range of individuals as sexual offenders subject to its broad
provisions, including those convicted of offenses that do not specifically relate to a
sexual act,” the Supreme Court “conclude[d] SORNA’s requirements [were]
excessive and over-inclusive in relation to the statute’s alternative assigned
purpose of protecting the public from sexual offenders.” Id.
The Supreme Court recounted this reasoning in Butler II and explained that,
in contrast to SORNA, “[o]ver-inclusiveness [wa]s not at issue” in Butler II
“because the RNC requirements apply only to SVPs who have been individually
determined to suffer from a mental abnormality or personality disorder.” __ A.3d
at __, slip op. at 29. Given this difference from Muniz, the Supreme Court
reasoned that the RNC requirements for SVPs were reasonably related to serving
the government’s legitimate goal of reducing recidivism and protecting the public.
Id. Further, because SVPs can now petition for removal from the Registry after 25
51
years, a provision that did not exist previously, the Supreme Court determined “the
statutory scheme of [s]ubchapter H is even less problematic than the scheme [of
Megan’s Law II that it] deemed not excessive in Williams II . . . .” Id. Thus, the
Supreme Court concluded in Butler II that this factor weighed in favor of finding
subchapter H to be nonpunitive.
Although Petitioner asserts an as applied challenge to subchapter I of Act 29,
because the Supreme Court in Muniz looked to the statutory scheme on the whole
to determine excessiveness in relation to the rational purpose, we will begin our
analysis the same way. As explained above, we recognize that subchapter I of Act
29 is different from SORNA in terms of the triggering offenses. Further,
subchapter I of Act 29 has a provision for exemption from registration
requirements, allowing an offender to petition for exemption after 25 years have
elapsed during which the offender has not been convicted of a crime punishable by
imprisonment of more than 1 year. 42 Pa.C.S. § 9799.59(a). SORNA contained
no such provision. However, unlike in Butler II, these provisions do not weigh in
favor of finding subchapter I Act 29 to be nonpunitive in the present case as
applied to an offender like Petitioner who committed his crimes before a
registration statute existed and who is not determined to possess a mental
abnormality that makes him dangerous or increases his likelihood of reoffending.
Again, Petitioner, at the time he committed his offense, was not aware that he
would ever be subject to registration following a period of incarceration. Petitioner
asserts that his registration under Act 29, with requirements such as annual in-
person registration and the Internet dissemination provision, make subchapter I of
Act 29 excessive in relation to its purpose, and he could not have anticipated these
sanctions at the time of his crime. We are constrained to agree.
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Our analysis requires that we examine the application of the entire statutory
scheme of subchapter I of Act 29 to Petitioner in relation to the obligations that
existed at the time he committed his offenses. Even if subchapter I of Act 29
differs from SORNA in terms of triggering offenses, it is still excessive in relation
to its purpose where it imposes requirements that are punitive in nature upon
offenders who committed their crimes prior to Megan’s Law I. Petitioner, and
similarly situated offenders, are subject to more than mere registration under
subchapter I of Act 29, as their registration imposes affirmative restraints and
probation-like conditions by requiring annual in-person appearances, updates
within three days for changes to information, and publication on the Internet of
personal information. Therefore, subchapter I of Act 29, on the whole as applied
to Petitioner, is over-inclusive not simply because it captures offenders who
committed their crimes before the existence of a statutory registration scheme, but
because the registration requirements are, in their entirety, excessive for such
offenders, particularly in relation to the General Assembly’s purpose.
With regard to this factor, Petitioner again emphasizes the Internet
dissemination provision as excessive in relation to the purpose of subchapter I of
Act 29. We agree that the Internet dissemination provision in and of itself is
excessive in relation to the purpose as applied to Petitioner. Although the General
Assembly set forth its intent to protect the public by disseminating relevant
information about “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) (emphasis
added), and facilitating and authorizing the release of “necessary and relevant
information” to the public and public agencies, 42 Pa.C.S. § 9799.51(b)(2), the
Internet dissemination provision goes beyond this. Subchapter I of Act 29
53
mandates dissemination of a breadth of an offender’s information to “the
public . . . , without limitation, . . . to view an individual record or the records of
all . . . offenders.” 42 Pa.C.S. § 9799.63(b)(1) (emphasis added). The scope of
information and access thereto authorized under subchapter I of Act 29 is
excessive in relation to the assigned purposes of protecting the public in the
immediate vicinity where the offender resides. As the Superior Court explained in
Moore:
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.
[Act 29] 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.
222 A.3d at 26. Further, by requiring dissemination of an offender’s information
other than that which directly relates to the triggering crime is beyond the scope of
“necessary and relevant information” for the public and public agencies. 42
Pa.C.S. § 9799.51(b)(2). Given this, and the fact that Petitioner had no notice that
he would be subject to such registration requirements at the time he committed his
offenses, we agree that the Superior Court’s thoughtful and careful analysis is
consistent with Muniz.
Petitioner committed his crimes in 1990 and, therefore, he had no notice that
he would be subject to any registration requirements, let alone a variety of
increasing registration requirements, for his lifetime, including dissemination of his
54
personal information on the Internet. Accordingly, consistent with Muniz and
Moore, we must conclude that subchapter I of Act 29 is excessive in relation to its
purpose, such that this factor weighs in favor of finding it punitive as applied to
Petitioner.
C. Balance of the Mendoza-Martinez Factors
On the whole, balancing the factors in accordance with the analysis used by
our Supreme Court in Muniz, we must find that five of the seven weigh in favor of
finding subchapter I of Act 29 to be punitive when applied to Petitioner. PSP’s
arguments to the contrary focus on the differences between SORNA and
subchapter I of Act 29 that were intended to address the Supreme Court’s decision
in Muniz. However, these arguments overlook the fact that the requirements of
SORNA or any prior registration scheme did not exist at the time of Petitioner’s
offense. While some form of retroactive registration requirements may be
constitutional, see Smith, 538 U.S. at 105, applying the analysis in Muniz, we must
find the cumulative effect of the registration requirements of subchapter I of Act 29
on Petitioner goes beyond imposing mere registration and is punishment.
Petitioner, who committed the crimes giving rise to his present obligation to
register in 1990, could not “have fair warning” of the applicable law that now
mandates his registration and the terms thereof. Peugh, 569 U.S. at 544. His right
to relief on these ex post facto claims is not premised in a “right to less
punishment, but the lack of fair notice and governmental restraint” that occurred
when the General Assembly “increase[d] punishment beyond what was prescribed
when the crime was consummated.” Weaver, 450 U.S. at 30. Accordingly, we
determine that the Mendoza-Martinez factors weigh in favor of finding subchapter
55
I of Act 29 to be punitive as applied to Petitioner under the Ex Post Facto clause of
the United States Constitution.19, 20
V. Conclusion
We recognize the General Assembly made changes in Act 29 in an effort to
correct the deficiencies the Supreme Court had found in Muniz. However, when
we apply the Supreme Court’s analyses in Muniz and Butler II, these changes do
not sufficiently alter the balance of the Mendoza-Martinez factors as applied to
Petitioner. These factors weigh in favor of finding subchapter I of Act 29 to be
punitive as applied to Petitioner, who committed his offense before there was any
registration or notification requirement, such that it outweighs the legislative intent
to be nonpunitive.
In addition to declaring subchapter I of Act 29 unconstitutional as applied to
him, Petitioner requests the Court “compel PSP to permanently remove Petitioner
from the . . . [R]egistry.” (Petition, Wherefore Clause (emphasis added).)
However, this Court decides only the issue before us, which is whether subchapter
I of Act 29 violates the Ex Post Facto clause as applied to Petitioner, and thus
19
The Supreme Court in Muniz did not analyze the severability of the provisions of
SORNA that it emphasized as punitive in its analysis of the Mendoza-Martinez factors, but
determined the entire statute as applied to the petitioner was unconstitutional. Here, we do not
attempt to sever pieces of subchapter I of Act 29 but, as the Supreme Court did in Muniz,
examine subchapter I of Act 29 in its entirety as applied to Petitioner.
20
In reaching this conclusion, we note that this decision is aligned with various other
state appellate courts that have similarly concluded an ex post facto violation exists where the
offender to whom the sexual offender registration statute is applied committed the triggering
offense before a registration statute was enacted. See, e.g., Starkey v. Okla. Dep’t of Corr., 305
P.3d 1004, 1030 (Okla. 2013); Nebraska v. Siminick, 779 N.W.2d 334, 342 (Neb. 2010); Wallace
v. Indiana, 905 N.E.2d 371, 384 (Ind. 2009); Doe v. Dep’t of Pub. Safety & Corr. Servs., 62 A.3d
123, 133-34 (Md. Ct. App. 2013). But see R.W. v. Sanders, 168 S.W.3d 65, 71 (Mo. 2005);
Oregon v. MacNab, 51 P.3d 1249, 1256 (Or. 2002).
56
whether his registration under that legislation is permissible. Based on Muniz, we
find that it is not, and therefore will order PSP not to apply subchapter I of Act 29
to Petitioner, which will result in his removal from the Registry. Accordingly, we
grant in part and deny in part Petitioner’s Application.
_____________________________________
RENÉE COHN JUBELIRER, Judge
57
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
T.S., :
Petitioner :
:
v. : No. 129 M.D. 2019
:
Pennsylvania State Police, :
Respondent :
ORDER
NOW, May 11, 2020, T.S.’s (Petitioner) Application for Summary Relief
(Application) is hereby GRANTED in part. Judgment is entered in favor of
Petitioner declaring the application of subchapter I of the Act of February 21,
2018, P.L. 27, 42 Pa.C.S. §§ 9799.10-9799.75, as amended by the Act of June 12,
2018, P.L. 140, as applied to Petitioner is unconstitutional as it is in violation of the
ex post facto clauses of the United States and Pennsylvania Constitutions when
applied to Petitioner. The Pennsylvania State Police is, therefore, hereby
ORDERED not to apply subchapter I of Act 29 to Petitioner, which will result in
his removal from the sexual offender registry. To the extent Petitioner seeks relief
in the form of permanent removal from the sexual offender registry, the
Application is DENIED.
_____________________________________
RENÉE COHN JUBELIRER, Judge