Com. v. Jackson, L.

J-A04029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LATOYA JACKSON, :
:
Appellant. : No. 954 EDA 2018
Appeal from the Judgment of Sentence, March 16, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003297-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 10, 2019
Latoya Jackson (Appellant) appeals from the order designating her a
Tier III sex offender pursuant to the Pennsylvania Sex Offender Registration
and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10 – 9799.41. The court
sentenced Jackson under SORNA for crimes she committed prior to SORNA’s
effective date. The challenge she presents is whether the sentence constitutes
a violation of the ex post facto clauses of the state and federal constitutions.
After careful consideration, we vacate the order and remand to the trial court
for further proceedings consistent with this decision.
The trial court aptly summarized the relevant factual history as follows:
From 2005 to 2008, [Jackson] would occasionally babysit
her half-sisters K.Q. and T.Q. On one such occasion,
[Jackson] was approximately fifteen or sixteen years old,
K.Q. was six or seven years old, and T.Q. was approximately
eleven or twelve years old. On that occasion, [Jackson]
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* Retired Senior Judge assigned to the Superior Court.
J-A04029-19
forced K.Q. and T.Q. to perform oral sex on one another and
on [Jackson], in their mother’s room of the family home in
Philadelphia, Pennsylvania. [Jackson] gave specific
instructions to K.Q. and T.Q. on what to do. K.Q.’s tongue
penetrated [Jackson’s] vagina. [Jackson] also performed
oral sex on K.Q. and T.Q.
On another day when [Jackson] was left in charge of her
siblings, she encouraged K.Q., who was six or seven years
old, to have sex with “Sammy,” a visiting neighbor who was
six, seven, or eight years old. [Jackson] placed K.Q. and
“Sammy” in the middle of the room of the same family
home, shut the door, and told them that they could not
leave the room until they had sex.
On yet another day, in the same family home in the rear
room, [Jackson] forced T.Q. to have sex with an unknown
male aged 17 or 18, and forced K.Q. to observe. K.Q. was
six or seven years old at the time. [Jackson] also
simultaneously orchestrated a series of events where an
unknown male, aged 17 or 18, was laying on the floor
between [Jackson] and K.Q., who were also on the floor.
[Jackson] took K.Q.’s hand and made her touch the male’s
genitals inside of his pants, with skin-to-skin contact.
On January 19, 2018, after a waiver trial, [Jackson] was
found guilty of Rape of a Child[1], Indecent Exposure[2],
Indecent Assault of a Person Less Than 13[3], Incest[4], and
Unlawful Contact with a Minor[5].
Trial Court Opinion, 7/30/18, at 1-2 (citations to the record omitted).
Jackson does not appeal the convictions, nor her two to four year term
of incarceration. She only appeals the registration and reporting aspects of
her sentence. Although the court determined Jackson was not a “sexually
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1 18 Pa.C.S.A. § 3121(c)
2 18 Pa.C.S.A. § 3127(a)
3 18 Pa.C.S.A. § 3126(a)(7)
4 18 Pa.C.S.A. § 4302(a)
5 18 Pa.C.S.A. § 6318(a)(1)
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violent predator,” the court deemed Jackson a Tier III sex offender and
ordered her to comply with all Tier III requirements, including lifetime
registration.
In her timely appeal, Jackson raises the following issues, which we
reorder for ease of disposition:
1. Whether 42 Pa.C.S.A. § 6302 as applied to Jackson
violates the ex post facto clause of the Pennsylvania
and United States Constitutions in that the definition
of “child” has the effect of authorizing the trial court
to impose greater penalties now than could have been
imposed at the time of the offenses were committed?
2. Whether the judgment of sentence is illegal insomuch
as there was no statutory authority for the court to
impose lifetime reporting pursuant to SORNA?
3. Whether the court erred in imposing lifetime reporting
insomuch as the current version of SORNA is an ex
post facto law as applied to Jackson and criminal acts
that occurred on unknown dates that were
indisputably prior to the statute’s enactment?
See Jackson’s Brief at 7.
These issues present questions of law; our standard of review is de novo
and our scope is plenary. Commonwealth v. Lee, 935 A.2d 865, 876 (Pa.
2007).
We begin with Jackson’s argument that, because she could have been
tried as a juvenile (had the authorities been immediately aware of her crimes),
the Commonwealth’s prosecution of Jackson – as an adult – violates the ex
post facto clause of both the state and federal constitutions. See Jackson’s
Brief at 18. She reasons that her adult prosecution equates the authorization
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of greater punishment than she would have otherwise received if a juvenile
court adjudicated her delinquent when she was a minor. See, e.g.,
Commonwealth v. Rose, 127 A.3d 794, 798 (Pa. 2015) (holding that an ex
post facto law is, inter alia, one that inflicts greater punishment than the law
annexed to the crime when committed.) Although the difference between the
two adjudications is disparate, the Commonwealth’s criminal prosecution of
Jackson did not constitute an ex post facto application.
For one thing, Jackson seems certain that she would have only faced
delinquency charges in juvenile court had she been prosecuted at the time of
her crimes. This is not necessarily so. Jackson concedes that she was 17 at
the time of her last offending act. Even though Jackson would have likely
began her case in juvenile court, the Commonwealth could have certified the
matter and pursued her transfer to criminal court under 42 Pa.C.S.A. § 6355
(“Transfer to criminal proceedings”). In other words, the result could have
been the same. It is simply not the case that Jackson faced greater
punishment now than she otherwise would have faced been had she been
immediately charged.
Perhaps more to the point, this case presents facts similar to those in
Commonwealth v. Monaco, 869 A.2d 1026 (Pa. Super. 2005), appeal
denied, 880 A.2d 1338 (Pa. 2005). In Monaco, the defendant was a minor
when he perpetrated sex crimes against three victims, also minors, over a
series of years. Monaco, 869 A.2d at 1027-1028. The defendant was not
charged until several years later, when he was 22. The defendant claimed
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that the trial court lacked jurisdiction over him because he was a minor when
he committed the offenses; he argued that his case should have been
transferred to juvenile court pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301
et seq. See id. at 1028 (footnote omitted).
This Court stated that the right to be treated as a juvenile offender is
statutory rather than constitutional. Id. at 1029 (citing Commonwealth v.
Cotto, 753 A.2d (Pa. 2000)). We explained that the Juvenile Act expressly
affords protections to a child, which it defines in pertinent part as an individual
who “is under the age of 21 years who committed an act of delinquency before
reaching the age of 18 years.” Id. (quoting 42 Pa.C.S.A. § 6302). The Juvenile
Act is tailored to a child’s special needs, the purpose of the Act cannot be
extended to adult offenders. Id. at 1030; see also Commonwealth v.
Iafrate, 594 A.2d 293 (Pa. 1991). We ruled the Commonwealth may pursue
adult charges against an individual who committed the offenses as a minor,
so long as there was no improper motivation for the delay. Id.; see also
Commonwealth v. Anderson, 630 A.2d 47, 50 (Pa. Super. 1993).
Instantly, Jackson does not contend that the Commonwealth improperly
waited until she was an adult to level charges against her. Here, the delayed
charges merely followed the delayed disclosure. Instead, Jackson attempts
to distinguish her case by arguing that, although Monaco and Anderson
considered the constitutional implications of charging defendants as adults for
crimes they committed as minors, those cases did not specifically consider the
implication of the ex post facto clause. See Jackson’s Brief at 19.
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Even so, it is beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court, except of course, in circumstances where
intervening authority by our Supreme Court calls into question a previous
decision of this Court. See Commonwealth v. Postie, 200 A.3d 1015 (Pa.
Super. 2018) (en banc) (citing Commonwealth v. Pepe, 897 A.2d 463, 465
(Pa. Super. 2006)), appeal denied, 946 A.2d 686 (Pa. 2008). Jackson does
not allege any intervening authority, and we discern none. Jackson’s first
argument fails.
Next, Jackson puts forth separate argument why her sentence
constitutes an ex post facto violation. She contends that because she
committed her offenses prior to SORNA’s effective date (December 20, 2012),
the court’s application of SORNA to her sentence is a violation of the ex post
facto clauses under both the state and federal constitutions. See Jackson’s
Brief, at 11. On this point, we agree.
“The Pennsylvania General Assembly passed SORNA as Act 111 of 2011,
signed December 20, 2011. In so doing, it provided for the expiration of prior
registration requirements, commonly referred to as Megan’s Law, 42 Pa.C.S.A.
§§ 9791 – 9799.9, as of December 20, 2012, and for the effectiveness of
SORNA on the same date.” In re J.B., 107 A.3d a, 3 (Pa. 2014). SORNA
classifies sex offenders into three tiers. Those convicted of Tier III offenses
are subject to lifetime registration and are required to verify their registration
information and be photographed, in person at an approved registration site,
quarterly. See 42 PA.C.S.A. § 9799.15(a)(3), (e)(3).
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In a recent plurality decision, our Supreme Court concluded that SORNA
retroactive application of the registration and reporting requirements of
SORNA violated the ex post facto clauses of the United States and
Pennsylvania Constitutions. See Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017). An en banc panel of this Court recently addressed the intricacies
of the Muniz holding. See Commonwealth v. Lippincott, -- A.3d --, 2019
Pa. Super. 118 (Pa. Super. April 15, 2019). There, we explained:
In Muniz, our Supreme Court in a plurality decision
explained that the ex post facto clauses of both the United
States and Pennsylvania Constitutions ensure “that
individuals are entitled to fair warning about what
constitutes criminal conduct, and what the punishments for
that conduct entail.” Muniz, 164 A.3d at 1195 (citations
omitted). “Critical to relief under the Ex Post Facto Clause 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.” Id. (quoting Weaver v.
Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17
(1981)).
Muniz identified the four types of laws that deny the
protections that the ex post facto prohibitions seek to
afford: (1) Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action; (2) Every law that
aggravates a crime, or makes it greater than it was, when
committed; (3) Every law that changes the
punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed; and
(4) Every law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law required
at the time of the commission of the offense, in order to
convict the offender. Muniz, 164 A.3d at 1195 (citing
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798)
(emphasis added). The Court explained that laws that fall
within any of the above four Calder designations and which
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disadvantage a defendant are ex post facto laws and
constitutionally infirm. Id. at 1196.
The Supreme Court in Muniz then addressed the
constitutionality of SORNA. The Court concluded that
SORNA violated ex post facto prohibitions under both the
United States and Pennsylvania Constitutions. Id. at 1223.
The Muniz Court reasoned that despite the legislature's
designation of SORNA as a civil remedy, it was punitive in
nature, and consequently, SORNA, as a criminal penalty, fell
within the third Calder category (i.e., application of the
statute would inflict greater punishment than the law in
effect at the time the defendant committed his crimes). Id.
at 1196, 1218. Accordingly, the Supreme Court vacated the
portion of the judgment of sentence that required the
appellant to comply with SORNA. While Muniz is not a
majority decision, the concurring opinion joins the Supreme
Court's lead opinion to the extent it concludes that SORNA
is punitive and that it was unconstitutional as applied to the
appellant, in violation of both state and federal ex post facto
prohibitions.
Lippincott, at *3-4 (footnote omitted) (emphasis in original).
The Lippincott court then concluded that its appellant’s sentence was
illegal under Muniz. Jason Allen Lippincott committed his offenses prior to
SORNA’s effective date, but he pleaded guilty afterward and was sentenced
under SORNA’s Subchapter H. Id., at *5, 8. He argued that when he
committed his offenses, he would have been subject to the previous Megan’s
Law, under which the lifetime registration and reporting requirements were
less stringent. Lippincott was correct. While SORNA did not enhance the
registration period for Lippincott’s offense – he was still facing a lifetime
registration – SORNA did augment the registration and reporting requirements
for Tier III offenders, which included the addition of quarterly in-person
reporting and the posting of personal information on the Pennsylvania State
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Police website. Id. at *4. “As our Supreme Court pointed out in Muniz, these
additional registration and reporting requirements constitute a greater
punishment than what Megan’s Law would have imposed, and consequently,
their application violates the ex post facto clauses of the United States and
Pennsylvania Constitutions.” Id. (Citation omitted). We remanded for
resentencing.
In the case at bar, Jackson – like Lippincott – faced a lifetime registration
under either statute. Compare, e.g., 42 Pa.C.S.A. § 9795.1(b)(2) (expired)
with 42 Pa.C.S.A. § 9799.14(d)(2). But also like Lippincott, Jackson was
burdened with greater registration and reporting requirements under SORNA,
and thus greater punishment, than she otherwise should have received.
Consequently, Jackson’s sentence constitutes an ex post facto violation. We
observe that the trial court did not have the benefit of Lippincott, which we
decided after the court issued its judgment of sentence. Nevertheless, the
trial court made the same error here. We remand to the trial court to
determine the appropriate registration and reporting requirements for
Jackson.
Because Jackson’s second issue is dispositive, we need not address her
remaining issue. We recognize that the parties’ briefs (including their reply
brief and surreply brief) discuss the constitutionality of Act 10 generally and
the applicability of Subchapter I specifically. Because the lower court
sentenced Jackson under Subchapter H and not Subchapter I, we decline to
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offer what would be tantamount to an advisory opinion.6 We also mindful that
our Supreme Court recently granted review to determine the issue of whether
Acts 10 and 29 are constitutional. See Commonwealth v. Lacombe, 35
MAP 2018 (Pa. 2018).
Judgment of sentence affirmed. Order vacated. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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6 The order of sentence imposes on Jackson Subchapter H’s Tier III
requirements, which include quarterly reporting. Compare 42 Pa.C.S.A.
9799.60 with 42 Pa.C.S.A. § 9799.15. Contrary to the Commonwealth’s
apparent position, Jackson was sentenced under Subchapter H, not
Subchapter I.
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