Com. v. Kukday, K.

J-A15033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAUSTUBH KUKDAY
Appellant No. 2403 EDA 2013
Appeal from the Judgment of Sentence February 21, 2013
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001527-2012
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 23, 2014
Kaustubh Kukday appeals from the judgment of sentence imposed by
the Court of Common Pleas of Monroe County on July 17, 2013, following his
guilty plea to attempted statutory sexual assault.1 After careful review, we
affirm.
The trial court set forth the facts of this case as follows:
On June 8, 2012, [Kukday], age 29 at the time, was charged
with six different crimes after he used the Internet to arrange a
sexual encounter with “Kim,” whom he believed to be a 15-year-
old girl. [Kukday] arranged a meeting with “Kim” and arrived at
the prearranged location at the set time. “Kim” was, in fact, the
undercover Internet alias of detective Brian Webbe of the
Monroe County Office of the District Attorney. On December 6,
2012, [Kukday] pled guilty to one count of attempted statutory
sexual assault. On February 21, 2013, [Kukday], a resident
alien married to a U.S. citizen, was sentenced to a period of
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18 Pa.C.S. § 3122.1
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incarceration for not less than two hundred fifty-eight days to no
more than twenty-three months. He was also directed to
undergo a sexual offenders evaluation, and he was classified as
a Tier III offender subject to the lifetime registration and
reporting requirements under Pennsylvania’s Registration of
Sexual Offenders Law, 42 Pa.C.S. §[§] 9799.10 [- 9799.41]
(hereinafter “Megan’s Law IV”).
Trial Court Opinion, 7/17/13, at 1-2.
Megan’s Law IV was created by Act 111 of 2011, which was adopted
on December 20, 2011, and later amended by Act 91 of 2012. Megan’s Law
IV became effective on December 20, 2012, and, inter alia, required
registration for additional offenses including statutory sexual assault; revised
the penalties for failure to comply with registration requirements; imposed
more frequent registration, reporting, notification and compliance
requirements; and provided that Megan’s Law IV would apply retroactively.
On March 4, 2013, Kukday moved for modification of sentence
contending that the court should not have applied the registration and
reporting requirements of Megan’s Law IV that became effective fourteen
days after he entered his guilty plea. Rather, Kukday contended that the
court should have applied the requirements in place at the time of his guilty
plea, which did not include registration or reporting for individuals convicted
of attempted statutory sexual assault.
On March 22, 2013, the court heard arguments from three defendants,
including Kukday, challenging Megan’s Law IV. By order dated July 2, 2013,
the court denied Kukday’s motion, and on July 17, 2013, issued an opinion
in support of the order. On August 9, 2013, Kukday filed a motion to file a
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notice of appeal nunc pro tunc, which the trial court granted on August 14,
2013. Kukday filed a notice of appeal nunc pro tunc on August 20, 2013,
and filed his Pa.R.A.P. 1925(b) statement of errors complained of on appeal
on September 9, 2013. In lieu of filing a separate Rule 1925(a) opinion, the
trial court submitted its July 17, 2013 opinion in support of denial of
Kukday’s post-sentence motions.
Kukday raises the following issue for our review:
Whether the retroactive application of the sexual offender law to
[Kukday] violates the constitutional prohibitions against ex post
facto laws.
Appellant’s Brief, at 4.
In Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003), our
Supreme Court noted that the proper framework for analyzing whether
legislation is unconstitutionally punitive is the United States Supreme Court’s
“traditional two-pronged test [see Smith v. Doe I, 538 U.S. 84 (2003)], in
which the Court first inquires whether the legislature’s intent was to impose
punishment, and, if not, whether the statutory scheme is nonetheless so
punitive either in purpose or effect as to negate the legislature’s non-
punitive intent.” Williams, 832 A.2d at 972.
With respect to whether the intent of the legislature was punitive, we
look to the statute itself, which provides in relevant part:
(b) Declaration of policy. – The General Assembly declares as
follows:
(1) It is the intention of the General Assembly to substantially
comply with the Adam Walsh Child Protection and Safety Act of
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2006 and to further protect the safety and general welfare of the
citizens of this Commonwealth by providing for increased
regulation of sexual offenders, specifically as that regulation
relates to registration of sexual offenders and community
notification about sexual offenders.
(2) It is the policy of the Commonwealth to require the
exchange of relevant information about sexual offenders among
public agencies and officials and to authorize the release of
necessary and relevant information about sexual offenders to
members of the general public as a means of assuring public
protection and shall not be considered as punitive.
42 Pa.C.S. § 9799.11(b)(2).
It is clear that the plain language of section 9799.11(b)(2) expresses a
legislative intent to protect the public, rather than to punish offenders.
Where, as here, the Legislature’s express intent was to provide a civil
remedial mechanism, courts will consider whether the remedy “provide[s]
for sanctions so punitive as to transform what was clearly intended as a civil
remedy into a criminal penalty.” United States v. Ward, 448 U.S. 242,
249 (1980). In reaching this determination, courts employ the following
seven-factor test:
(1) [W]hether 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 as
assignable for it; and (7) whether it appears excessive in relation
to the alternative purpose assigned.
Commonwealth v. Lee, 935 A.2d 865, 873-74 (Pa. 2007) (quoting
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)).
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In Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014), this
Court addressed a similar challenge to the constitutionality of Megan’s Law
IV. Perez committed indecent assault at a time when the version of Megan’s
Law in effect required an individual convicted of that offense to register as a
sex offender for 10 years. However, under Megan’s Law IV, which went into
effect after the commission of the offense, but before Perez pled nolo
contendere to indecent assault, the registration period increased to 25
years. Accordingly, the trial court ordered Perez to register as a sex
offender for 25 years.
Perez filed an appeal to this Court, which determined that the
Legislature did not intend Megan’s Law IV to be punitive. Applying the
Mendoza-Martinez factors, the Court then considered whether the
sanctions were actually a criminal penalty.
With respect to the first factor, this Court held that requiring Perez to
appear in person 50 times over the next 25 years to verify personal
information was an affirmative restraint that weighed in favor of finding
Megan’s Law IV punitive. Perez, supra at 752-54.2 However, it concluded
that the remaining Mendoza-Martinez factors weighed against such a
finding. Specifically, it held that registration requirements are not
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2
As a Tier III offender, Kukday is subject to the stricter requirements of
appearing “in person at an approved registration site quarterly.” 42 Pa.C.S.
§ 9799.25(a)(3).
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historically regarded as punishment, id. at 754; Megan’s Law IV does not
come into play only on a finding of scienter, id. at 754-55; Megan’s Law IV
has some aspects of retribution, but they are reasonably related to the
regulatory objective of reducing recidivism, id. at 755-56; the statute’s
consideration of past conduct is proper because of the concern about
recidivism, id. at 756-57; Megan’s Law IV is rationally connected to the
Commonwealth’s compelling interest in preventing crimes of a sexual
nature, id. at 757; and the registration requirements are not excessive in
light of the importance of protecting the public from sexual offenders, id. at
757-58.
The Perez Court further explained:
After considering all seven factors, as analyzed above, we
conclude that one factor weighing in favor of finding [Megan’s
Law IV] punitive does not ultimately make the statute’s
retroactive application unconstitutional. Although, we conclude
the mandatory in-person appearance requirement imposes an
affirmative constraint on Appellant, we nevertheless conclude
that the restraint is relatively minor when balanced against the
remaining factors.
Id. at 758.
Accordingly, Perez held that Megan’s Law IV is “constitutional under
the Federal and State Ex Post Facto clauses.” Id. at 760. In light of Perez,
we conclude that the trial court did not err or abuse its discretion by
requiring Kukday to conform to the requirements of Megan’s Law IV, which
became effective fourteen days after he pled guilty to attempted statutory
sexual assault.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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