Com. v. Haenig, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDMUND L. HAENIG
Appellant No. 2269 EDA 2013
Appeal from the Order July 15, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000743-1996
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 07, 2014
This is an appeal from an order denying Edmund Haenig’s motion to
declare certain provisions of the Sexual Offender Registration and
Notification Act (“SORNA”)1 unconstitutional. Although Haenig’s
circumstances are unfortunate, we are constrained to affirm.
In August 1996, Haenig pled guilty to two counts of corrupting the
morals of a minor (“corruption of minors”)2, a first degree misdemeanor, and
one count of indecent assault without consent3, a second degree
misdemeanor, based on crimes that he committed on December 31, 1993.
The court imposed consecutive sentences of 1½-5 years’ imprisonment on
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1
42 Pa.C.S. § 9799 et seq.
2
18 Pa.C.S.A. 6301(a).
3
18 Pa.C.S.A. 3126(a)(1).
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each count of corruption of minors plus a consecutive term of 6 months–2
years’ imprisonment for indecent assault, a total of 3½-12 years’
imprisonment. At the time Haenig pled guilty, there was no sexual offender
registration requirement for corruption of minors or indecent assault4.
In May 2007, Haenig pled nolo contendere in Florida to a misdemeanor
charge of disorderly conduct and was sentenced to 60 days of incarceration.
Due to this conviction, on August 30, 2007, the Pennsylvania Board of
Probation and Parole found him in violation of parole in his 1996 case and
sentenced him to nine months’ imprisonment. He was subsequently
released, but his maximum parole date was extended to August 25, 2016.
In December 2011, the legislature enacted SORNA, which became
effective in December 2012. Pursuant to SORNA, certain individuals under
the Parole Board’s supervision must register as sexual offenders. 42 Pa.C.S.
§ 9799.13(2). Moreover, SORNA provides that individuals convicted of, inter
alia, indecent assault and one form of corruption of minors 5 must register as
sexual offenders. 42 Pa.C.S. 9799.14.
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4
See 42 Pa.C.S. § 9793 (enacted October 24, 1995 and repealed effective
July 9, 2000).
5
An individual convicted of corruption of minors under 18 Pa.C.S. §
6301(a)(1)(ii) must register as a sexual offender. 42 Pa.C.S. § 9799.14.
Individuals convicted under other subsections of section 6301 are not
required to register. Id. Haenig asserts that SORNA does not apply to his
convictions under section 6301. Neither the trial court nor the
(Footnote Continued Next Page)
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Near the end of 2012, sixteen years after sentencing, Haenig’s parole
officer informed him that SORNA required him to register as a sex offender.
Haenig filed a motion to declare SORNA unconstitutional, which the court
denied after oral argument. Haenig filed a timely appeal and timely
Pa.R.A.P. 1925(b) statement contending that SORNA is unconstitutional
under (1) the Ex Post Facto Clause of the Pennsylvania Constitution 6, (2) the
Due Process Clause of the United States Constitution, and (3) the separation
of powers doctrine embodied in the Pennsylvania Constitution. These
arguments involve questions of law for which our standard of review is
plenary. Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa.Super.2014).
Building upon this Court’s recent decision in Commonwealth v.
Perez, 97 A.3d 747 (Pa.Super.2014), as well as decisions cited in Perez, we
find no merit in Haenig’s ex post facto argument.
In Perez, as in the present case, the defendant committed the offense
of indecent assault prior to SORNA’s enactment. At the time of his offense,
the version of Megan’s Law then in effect required him to register as a sex
offender for 10 years. Under SORNA, which went into effect several months
_______________________
(Footnote Continued)
Commonwealth disputes this assertion; nor is it germane to the issues of
constitutionality raised in this appeal. Therefore, we will assume, without
deciding, that Haenig’s convictions under section 6301 are not subject to
SORNA.
6
Haenig does not contend that SORNA is unconstitutional under the Ex Post
Facto Clause of the United States Constitution.
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before he plead guilty to indecent assault, his registration period increased
to 25 years. The defendant filed a motion to declare SORNA unconstitutional
on the ground that the Ex Post Facto Clauses in the federal and state
constitutions prohibited retroactive application of the 25-year registration
requirement to him. The trial court denied his motion and ordered him to
register as a sex offender for the next 25 years. Perez, 97 A.3d at 749.
This Court affirmed. We held, after extensive analysis, that SORNA
does not constitute “punishment” under the multi-factor test articulated in
Kennedy v. Mendoza–Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d
644 (1963), and therefore was valid under the Ex Post Facto Clause of the
United States Constitution. Id. at 750-59. Most of the Kennedy factors,
we reasoned, weighed against finding SORNA punitive. We stated: (1)
registration requirements historically are not regarded as punishment,
because individuals subject to SORNA could live and work where they
wished, without supervision; (2) SORNA did not come into play only on a
finding of scienter; (3) although SORNA carries some element of retribution
for past conduct, it primarily is regulatory, in that its goal is to reduce future
misconduct (recidivism); (4) SORNA was rationally related to an alternative
purpose other than punishment, namely the Commonwealth's interest in
preventing crimes of a sexual nature; and (5) it is reasonable to impose
particular regulatory consequences to individuals convicted of specified
crimes. Id. On the other hand, we acknowledged that one factor weighed
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in favor of finding SORNA punitive: it imposed an affirmative restraint by
requiring the defendant to appear 50 times over the next 25 years for in-
person verifications of his personal information. Id. at 752-54. This single
factor, however, did not render SORNA punitive, since
the restraint is relatively minor when balanced
against the remaining factors. . .[T]he greater
restraints imposed by sex offender registration stem
from the public's benefit of said registration and the
consequences that flow therefrom. . .[T]hose effects,
while not insignificant, are merely secondary and
collateral to the requirements themselves.
Id. at 758-59.
Next, Perez rejected the defendant’s ex post facto claim under the
Pennsylvania Constitution:
Article I, Section 17 of the Pennsylvania Constitution
states that ‘[n]o ex post facto law, nor any law
impairing the obligation of contracts, or making
irrevocable any grant of special privileges or
immunities, shall be passed.’ Pa. Const. Art. I, § 17.
This Court has recently held that ‘the standards
applied to determine an ex post facto violation under
the Pennsylvania Constitution and the United States
Constitution are comparable.’ Commonwealth v.
Rose, 81 A.3d 123, 127 (Pa.Super.2013) (en banc).
Our Supreme Court has previously declined to hold
that the Ex Post Facto Clause of the Pennsylvania
Constitution imposes greater protections than Article
I, Section 10 of the Federal Constitution. See
Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d
616, 622 (1999) (stating that Gaffney ‘failed to
present any compelling reason for our departure
from the standards appropriate for determining
whether an ex post facto violation pursuant to the
federal constitution has occurred and we find no
independent reasons for doing so[ ]’).
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It is axiomatic that when presenting a claim for
higher protections under the Pennsylvania
Constitution, the Appellant must discuss the
following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania
case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of
state and local concern, and applicability within
modern Pennsylvania jurisprudence.
Commonwealth v. Edmunds, 526 Pa. 374, 586
A.2d 887, 895 (1991). The Edmunds analysis is
mandatory and a failure to provide it precludes the
consideration of a state constitutional claim
independent of its federal counterpart. See, e.g.,
Commonwealth v. Baker, 621 Pa. 401, 78 A.3d
1044, 1048 (2013) (concluding that Baker's failure
to provide an Edmunds analysis precluded
considering whether Article I, Section 13 of the
Pennsylvania Constitution provided higher
protections that the Eighth Amendment of the
Federal Constitution on cruel and unusual
punishments). . .Here, Appellant's brief does not
include the required Edmunds analysis to consider
whether under this specific statute, the Pennsylvania
Constitution would provide higher ex post facto
protections than Article I, Section 10 of the Federal
Constitution. . .Because we have already resolved his
federal ex post facto claim using framework
promulgated by the United States Supreme Court,
and Appellant does not argue that the Pennsylvania
Constitution provides higher protection, his claim
under the Pennsylvania Constitution likewise fails.
Id. at 759-60.
Since the appellant in Perez failed to provide the required Edmunds
analysis, Perez did not reach the issue of whether SORNA is unconstitutional
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under an Edmunds analysis. In this case, Haenig’s brief is rather loosely
organized, but he does manage to address all four parts of the Edmunds
test. Therefore, we reach the merits of Haenig’s argument that SORNA is
unconstitutional under Pennsylvania’s Ex Post Facto Clause.
Edmunds’ first two steps require analysis of the relevant language of
the Pennsylvania Constitution and the history of this text. In Rose, supra,
this Court analyzed the language and history of Pennsylvania’s Ex Post Facto
Clause as follows:
Article I, Section 17 of the Pennsylvania Constitution
is Pennsylvania's ex post facto clause. The
prohibition against ex post facto laws has been part
of Pennsylvania's Constitution since 1790. The clause
reads, ‘No ex post facto law, nor any law impairing
the obligation of contracts, or making irrevocable
any grant of special privileges or immunities, shall be
passed.’ Pa. Const. Art. I, § 17. Similarly, the federal
constitution provides that ‘No State shall ... pass any
Bill of Attainder, ex post facto Law, or Law impairing
the obligation of contracts....’ U.S. Const. Article I, §
10. Our Supreme Court has opined that the ‘same
pre-revolutionary-war concerns shaped the ex post
facto provision of the constitutions of Pennsylvania
and the United States.’ Commonwealth v.
Gaffney, 557 Pa. 327, 733 A.2d 616, 621 (1999).
Accordingly, ‘the standards applied to determine an
ex post facto violation under the Pennsylvania
Constitution and the United States Constitution are
comparable.’ Commonwealth v. Young, 536 Pa.
57, 637 A.2d 1313, 1317 n. 7 (1993);
Commonwealth v. Allshouse, 614 Pa. 229, 36
A.3d 163, 184 (2012).
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Id., 81 A.3d at 127. Since the text and history of Pennsylvania’s Ex Post
Facto Clause is much the same as the federal Ex Post Facto Clause, these
factors do not counsel in favor of providing greater protection to defendants
under Pennsylvania’s Ex Post Facto Clause.
The third Edmunds prong requires us to address ex post facto
decisions from other states. We recognize, as did Perez, that several other
jurisdictions have held that retroactive application of their own SORNA
statutes violates the federal and/or state Ex Post Facto Clauses. See Doe v.
State, 189 P.3d 999, 1018 (Alaska 2008); Wallace v. State, 905 N.E.2d
371, 384 (Ind.2009); State v. Letalien, 985 A.2d 4, 24 (Me.2009); Doe v.
Dep't of Pub. Safety and Corr. Servs., 430 Md. 535, 62 A.3d 123, 139
(2013); State v. Williams, 129 Ohio St. 3d 344, 952 N.E.2d 1108, 1113
(2011); Starkey v. Dep't of Corr., 305 P.3d 1004, 1030 (Okla.2013).
These courts, however, applied the Kennedy factors to their own SORNA
statutes in a vastly different manner than Perez applied them to
Pennsylvania’s version of SORNA. See, e.g., Wallace, supra (concluding
that six of seven Kennedy factors weighed in favor of finding Indiana’s
SORNA statute punitive). Since we are bound by Perez’s analysis of the
Kennedy factors, the opinions from other jurisdictions on this subject are
only of academic interest.
The fourth and final Edmunds prong requires assessment of policy
considerations that bear upon the question of SORNA’s constitutionality.
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Haenig’s discussion of policy considerations boils down to editorial remarks
about the Kennedy factors that fly in the face of this Court’s conclusions in
Perez. For example, Haenig argues that SORNA’s effects are “retribution
and deterrence”. Brief For Appellant, p. 24. Perez, however, holds that
SORNA’s primary purpose is regulatory. Perez, 97 A.3d at 756. At another
point, while acknowledging that SORNA has a rational purpose of protecting
citizens from repeat sexual offenders, Haenig argues that SORNA is overly
punitive because of its tendency to shame sexual offenders by placing their
names on the Internet and to ruin their employment and residency
prospects. Brief For Appellant, p. 25. Perez holds, however, that SORNA is
not overly punitive, because it is “rationally connected to the
Commonwealth's compelling interest in seeking to prevent crimes of a
sexual nature.” Perez, 97 A.3d at 757. Finally, Haenig argues that
SORNA’s measures are “excessive”, Brief For Appellant, p. 26, but Perez
holds that SORNA is not excessive in effectuating its non-punitive objective
of reducing recidivism. Perez, 97 A.3d at 757-58. In short, we do not find
Haenig’s discussion of policy considerations persuasive, since Haenig
repeatedly contradicts Perez’s analysis of the Kennedy factors.
Having reviewed all four Edmunds factors, we conclude that none of
them weigh in favor of finding SORNA unconstitutional under Pennsylvania’s
Ex Post Facto Clause. Thus, Haenig’s first argument on appeal is devoid of
merit.
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Haenig’s second argument in this appeal is that SORNA violates his
procedural due process rights. We disagree.
Haenig admits that his procedural due process claim rises or falls on
whether SORNA is primarily punitive in nature. Brief For Appellant, pp. 36-
37. Since Perez clearly holds that SORNA is non-punitive, Haenig’s due
process argument collapses7.
In his third and final argument, Haenig contends that SORNA violates
the separation of powers doctrine embodied in the Pennsylvania
Constitution, because the legislature interfered in SORNA with the judiciary’s
power to sentence defendants. As Perez suggests, SORNA is not a
condition of sentence but is a non-punitive measure that is collateral to the
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7
Haenig’s due process argument refers to Commonwealth v.
Hainesworth, 82 A.3d 444 (Pa.Super.2013) (en banc). Hainesworth held
that the defendant is not required to register as a sex offender when the
Commonwealth makes an explicit promise in a plea agreement that the
defendant need not register. Hainesworth does not apply if there is no
mention in the plea agreement as to whether Megan’s Law requirements
apply. The certified record does not include the notes of testimony from
Haenig’s guilty plea or sentencing hearings, so we cannot tell what, if
anything, was said about Megan’s Law. Consequently, Haenig has waived
his Hainesworth argument. Commonwealth v. Hallock, 722 A.2d 180,
182 (Pa.Super.1999) (it was defendant's responsibility to supply Superior
Court with complete record for purposes of defendant's appeal, and court
could not consider any information which was not contained in certified
record); see generally Pa.R.A.P. 1911, 1921, 1922 (requirements for
composition of record on appeal and inclusion of transcripts in record).
Furthermore, we doubt that anyone mentioned Megan’s Law during Haenig’s
guilty plea or sentencing hearings, since Megan’s Law did not apply to
indecent assault or corruption of minors in 1996.
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defendant’s sentence. Thus, SORNA does not impede the judiciary’s power
of sentencing.
We understand Haenig’s chagrin at having to register as a sex offender
even though sixteen years elapsed between the date of sentencing and the
date he received notice of his requirement to register. Nevertheless, we find
that the trial court’s order denying his constitutional challenges is correct
under the law.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2014
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