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Commonwealth v. Moore

Superior Court of Pennsylvania

October 23, 2019


          Appeal from the Judgment of Sentence Entered March 26, 2018 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000378-2012



          DUBOW, J.

         Appellant, Lee Andrew Moore, appeals from the Judgment of Sentence entered on March 26, 2018. At issue in this case is whether Acts 10 and 29 of 2018 ("SORNA II")[1], which require the Pennsylvania State Police ("PSP") to disseminate via the Internet registration information about sex offenders, violate the Ex Post Facto Clause of the U.S. Constitution. In light of our Supreme Court's decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), we conclude that the Internet dissemination provision of SORNA II violates the federal prohibition against ex post facto laws. Accordingly, we affirm Appellant's Judgment of Sentence, but direct the removal of his entry from the state police sex offender website.

         We need only state briefly the underlying facts and procedural history in order to analyze properly the constitutionality of the public dissemination provisions of SORNA II. Between 2004 and 2008, Appellant sexually abused his former stepson. See Commonwealth v. Moore, 2009 WDA 2013, at 1 (Pa. Super. filed Dec. 8, 2014) (unpublished memorandum), appeal denied, 117 A.3d 296 (Pa. 2015). In July 2013, following a jury trial, Appellant was convicted of Involuntary Deviate Sexual Intercourse, Unlawful Contact with Minor, Statutory Sexual Assault, Corruption of Minors, and Indecent Assault.[2]Id. at 2. The trial court sentenced Appellant to an aggregate term of nine to twenty-five years of imprisonment. Id. Appellant timely appealed, but this Court denied relief. Id. at 12.

         Thereafter, Appellant sought collateral relief, challenging the legality of his sentence. In February 2018, the lower court granted Appellant relief and vacated his Judgment of Sentence. See PCRA Ct. Order, 2/2/18. Following a hearing, the lower court imposed a new aggregate sentence of five and one-half to seventeen years of incarceration followed by twelve years of probation. N.T. Sentencing, 3/26/18, at 40-42. The trial court also notified Appellant that SORNA II required that after he is released from prison, he must register as a convicted sexual offender with the PSP for the remainder of his life.

         Appellant timely filed a Post-Sentence Motion, challenging his obligation to register as a convicted sexual offender. Post-Sentence Motion, 4/4/18. According to Appellant, the registration requirements set forth in SORNA II include several punitive elements not in effect at the time he committed his crimes. Id. at 2 (unpaginated). Thus, according to Appellant, the requirements violated the federal constitutional ban on ex post facto laws. See id. Following argument, the lower court denied relief. Sentencing Ct. Order, 10/3/18.

         Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. In its responsive Opinion, the lower court rejected Appellant's constitutional claim, concluding that SORNA II was not punitive in either intent or effect. See Sentencing Ct. Op., 12/12/18, at 7-12.

Appellant raises the following issues on appeal:
1. [Whether] the sex offender registration provisions established by Acts 10 and 29 of 2018 [are] unconstitutional as applied to an individual whose offense dates pre-dated SORNA[II; and]
2. [Whether] the punitive registration and publication provisions established by Acts 10 and 29 of 2018 [are] severable[.]

Appellant's Br. at 6.

         Although broadly worded, Appellant's first issue presents a narrow challenge to the manner in which SORNA II requires the PSP to disseminate the information that a sex offender provides to the PSP pursuant to 42 Pa.C.S. § 9799.63 ("Section 9799.63").[3] Appellant's Br. at 10. Section 9799.63 provides in relevant part:

The Commissioner of the [PSP] shall . . . [d]evelop and maintain a system for making the information described in subsection (c) publicly available by electronic means 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 sexually violent predators, lifetime registrants and other offenders who are registered with the [PSP].

42 Pa.C.S. 9799.63(b).

         Essentially, Appellant asserts that Section 9799.63 is punitive because the provision is akin to traditional forms of punishment, adversely affects his reputation, and is excessive in relation to the General Assembly's remedial intentions. See Appellant's Br. at 9-15. This punitive impact, according to Appellant, renders Section 9799.63 unconstitutional when applied retroactively to offenders such as Appellant, whose criminal conduct preceded the enactment of Section 9799.63. See id.

         We consider Appellant's claim, mindful that lawfully enacted statutes are presumptively constitutional. Commonwealth v. Lee, 935 A.2d 865, 876 (Pa. 2007); Commonwealth v. Williams, 832 A.2d 962, 973 (Pa. 2003). A constitutional challenge presents a question of law. Commonwealth v. Molina, 104 A.3d 430, 441 (Pa. 2014). Thus, our standard of review is de novo, and our scope of review is plenary. Id.; Lee, 935 A.2d at 876.

         Federal Ex Post Facto Claim

         The constitutional prohibition against ex post facto laws ensures "'fair warning' about what constitutes criminal conduct, and what the punishments for that conduct entail." Muniz, 164 A.3d at 1195. Thus, "[c]ritical 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, 30 (1981)).

         To determine whether Section 9799.63 constitutes retroactive punishment, we employ a two-step inquiry. Smith v. Doe, 538 U.S. 84, 92 (2003); Muniz, 164 A.3d at 1208; Williams, 832 A.2d at 971. Initially, we must ascertain whether the legislative intent was to enact a civil, remedial scheme or impose punishment. Smith, 538 U.S. at 92. If the intent was non-punitive, then we proceed to the second step and consider whether the provision is "so punitive either in purpose or effect as to negate the legislature's non-punitive intent." Muniz, 164 A.3d at 1208 (quoting Williams, 832 A.2d at 971). "[O]nly the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Smith, 538 U.S. at 92 (internal quotation marks and citation omitted).

         Legislative Intent of Section 9799.63

         In 2011, the Pennsylvania General Assembly passed the Sex Offender Registration and Notification Act ("SORNA I"), Act of Dec. 20, 2011, P.L. 446, No. 111, as amended, 42 Pa.C.S. §§ 9799.10 to 9799.41 (effective Dec. 20, 2012) in order to comply with the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act), Pub. L. 109-248, as amended, 34 U.S.C. §§ 20911, et seq. In 2017, our Supreme Court determined that the retroactive application of SORNA I violated the federal Ex Post Facto Clause. Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017).

         In response, the General Assembly passed SORNA II, dividing SORNA II into two distinct subchapters-Subchapter H, which applies to "individuals who committed a sexually violent offense on or after December 20, 2012, for which the individual was convicted[, ]" 42 Pa.C.S. § 9799.11(c), and Subchapter I, which applies to individuals who committed a sexually violent offense "on or after April 22, 1996, but before December 20, 2012," and whose period of registration has not yet expired or whose registration requirements under a former sexual offender registration law have not expired. 42 Pa.C.S. § 9799.52.

         With respect to the provisions that require the PSP to disseminate information about the sex offender via the Internet, the legislature expressed its intention that "public safety will be enhanced by making information about . . . [various sex offenders] available to the public through the Internet and electronic notification." 42 Pa.C.S. §9799.63(a). The legislature further found that "[k]nowledge of whether a person is a . . . [convicted sex offender] could be a significant factor in protecting oneself and one's family members . . . from recidivist acts by [sex offenders.]" Id. The legislature concluded that the "technology afforded by the Internet and electronic notification would make this information readily accessible to parents and private entities, enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk." Id. Most importantly to our analysis of the legislative purpose in mandating dissemination via the Internet, the legislature stated that public access to the information that the sex offender provides to PSP "is intended solely as a means of public protection and shall not be construed as punitive." Id.

         We accord a legislature considerable deference to the intent stated in its legislative proclamation. Smith, 538 U.S. at 93. The statutory text set forth above is clear and defines a non-punitive objective-assure public safety by disseminating information about sexual offenders. Moreover, our Supreme Court has interpreted similar language as indicative of the General Assembly's remedial intent. See Muniz, 164 A.3d at 1209-10 (addressing similar declaration of policy in SORNA I, Subchapter H)[4]; Williams, 832 A.2d at 971-72 (Megan's Law II); Commonwealth v. Gaffney, 733 A.2d 616, 619 (Pa. 1999) (Megan's Law I). For these reasons, we conclude the General Assembly's intent was to create a civil, remedial scheme.

         Legislative Effect

         We now consider whether the Section 9799.63 is sufficiently punitive in effect to overcome the General Assembly's non-punitive purpose. See Muniz, 164 A.3d at 1210. This analysis involves examining factors identified by the United States Supreme Court. See Williams, 832 A.2d at 972-73 (citing Kennedy v. ...

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