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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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]
____________________________________
* 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

____________________________________________


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




____________________________________________


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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