J. A10004/17
                               2017 PA Super 228

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                  v.                        :
                                            :
SHAWN CHRISTOPHER WILLIAMS,                 :
                                            :
                        APPELLANT           :
                                            :     No. 2191 EDA 2016

           Appeal from the Judgment of Sentence June 24, 2016
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0003673-2015

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                                    FILED JULY 18, 2017

      Appellant, Shawn Christopher Williams, appeals from the June 24,

2016 Judgment of Sentence entered in the Northampton County Court of

Common Pleas. Appellant was convicted of three offenses arising from his

failure to comply with the registration and verification requirements of the

Sexual Offender Registration and Notification Act (“SORNA”). On appeal, he

challenges the penalty provisions enacted to enforce SORNA, averring that

they violate the Ex Post Facto Clauses of the United States and Pennsylvania

Constitutions.   After careful review, we find that the penalty provisions of

SORNA do not themselves violate ex post facto protections because

Appellant failed to register and committed the instant offenses more than

two years after SORNA made it a crime to fail to register.             Moreover,

although   Appellant   urges   us   to   reconsider   whether   the   registration

requirements of SORNA are punitive, with a greater focus on the penalty
J. A10004/17


provisions, we are bound by our recent holding in Commonwealth v.

Woodruff, 135 A.3d 1045 (Pa. Super. 2016). We, therefore, affirm.

      We will only summarize the facts of the case briefly because our

decision is based upon a matter of law and not an interpretation of the

facts.1   On December 4, 1998, a jury found Appellant guilty of Sexual

Assault, graded as a felony of the second degree. The trial court sentenced

Appellant to 4 to 10 years of imprisonment.

      Following   Appellant’s   sentencing,   the   General   Assembly   passed

Megan’s Law II, which required Appellant to register as a sex offender for

ten years. Our General Assembly subsequently passed two more versions of

Megan’s Law, the most recent being SORNA.2          Under SORNA, Appellant is

now deemed a Tier III offender and subject to a lifetime registration

requirement.




1
  The Certified Record for Appellant’s underlying conviction, which triggered
his registration requirement under SORNA, is not before this Court. The
facts discussed infra are as gleaned from the testimony adduced at trial in
the instant case, as well as the facts as agreed to by the Commonwealth and
Appellant in their respective Briefs.
2
  In 2003, our Supreme Court struck down a portion of Megan’s Law II in
Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (Williams II). In
response, in 2004 the General Assembly passed Megan’s Law III, which our
Supreme Court struck down in Commonwealth v. Neiman, 84 A.3d 603
(Pa. 2013), as violative of the single subject rule of Article III, Section 3 of
the Pennsylvania Constitution.




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J. A10004/17


      In late 2013, and again in late 2015, Appellant violated SORNA’s

registration requirements. The 2015 violation is the subject of the instant

appeal.3

      On October 25, 2015, Appellant was arrested and charged with three

counts     related   to   his   failure    to   complete     his   quarterly   registration

requirement with the Pennsylvania State Police: Failure to Register, Failure

to Verify Address, and Failure to File Accurate Registration Information.4

Appellant elected to proceed to a jury trial, and on June 1, 2016, the jury

convicted Appellant of all counts.                 On June 24, 2016, the trial court

sentenced Appellant to three consecutive terms of 33 to 120 months in

prison.

      Appellant filed a timely Notice of Appeal. Appellant and the trial court

both complied with Pa.R.A.P. 1925.

      On     appeal,      Appellant       raises     a   single    issue:   “[i]s   SORNA

unconstitutional because the penalties imposed for failing to comply are

punitive and therefore violate ex post facto laws?” Appellant’s Brief at 4.


3
  On June 2, 2014, Appellant pled nolo contendere to charges that he failed
to register as required in late 2013. The trial court sentenced Appellant to
five years of probation.
4
  18 Pa.C.S. §§ 4915.1(a)(1), 4915.1(a)(2), and 4915.1(a)(3), respectively.
As Appellant was subject to a lifetime registration requirement and had
previously pled nolo contendere to charges that he failed to register, each of
the three charges were graded as first-degree felonies. The Commonwealth
later amended the Information to change the grading of all charges to
second-degree felonies.



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      An ex post facto challenge to application of a statute presents a

question of law, and our standard of review is de novo. Commonwealth v.

Perez, 97 A.3d 747, 750 (Pa. Super. 2014).

      As a prefatory matter, we note that Appellant challenges the

application    of   the   statute    under      the   Constitutions   of   both   this

Commonwealth and the United States.               As our Supreme Court recently

stated in Commonwealth v. Rose, 127 A.3d 794 (Pa. 2015), the Ex Post

Facto Clauses in the respective documents are virtually identical and the

standards applied are comparable.         Id. at 798 n.11.      The federal ex post

facto prohibition forbids the legislature, inter alia, from enacting any law that

imposes a punishment for act that was legal when the defendant committed

the act:

      [The Ex Post Facto Clause] forbids the Congress and the
      States to enact any law “which imposes a punishment for
      an act which was not punishable at the time it was
      committed; or imposes additional punishment to that then
      prescribed.” Through this prohibition, the Framers sought to
      assure that legislative Acts give fair warning of their effect and
      permit individuals to rely on their meaning until explicitly
      changed. The ban also restricts governmental power by
      restraining arbitrary and potentially vindictive legislation.

Rose, 127 A.3d at 798 (citations omitted) (emphasis added).

      Sex-offender registration statutes can generally be divided into two

main components: the registration and verification requirements, and the

punishments imposed for failing to comply with the registration and

verification   requirements.        See   generally      Williams     II   (separately



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J. A10004/17


analyzing the registration requirements and enforcement provisions of

Megan’s Law II).

      The constitutionality of registration requirements for sex offenders, as

applied retroactively, is well-trod ground in Pennsylvania.          Courts have

routinely held that registration and reporting requirements are part of a civil

regulatory scheme and, therefore, may be applied retroactively without

running afoul of the Ex Post Facto Clause.         See Williams II (finding the

registration, notification, and counseling requirements of Megan’s Law II

non-punitive); Woodruff, supra at 1061 (holding that SORNA’s lifetime

registration requirements are non-punitive and, therefore, do not violate the

Ex   Post    Facto   Clause    when    applied     retroactively).       See   also

Commonwealth v. Giannantonio, 114 A.3d 429 (Pa. Super. 2015)

(finding    SORNA    registration   requirements    are   non-punitive    collateral

consequence of a conviction, and do not violate the Ex Post Facto Clause

when applied retroactively); Perez, supra at 759 (same).

      Appellant asks this Court to “ignore” the registration requirements of

SORNA, and instead focus on the penalty provisions of SORNA and whether

they violate the Ex Post Facto Clause, an issue of first impression.

      The General Assembly enacted SORNA on December 20, 2011.                 The

enforcement provision, codified in 18 Pa.C.S. § 4915.1, makes it a crime for

individuals subject to the registration requirements to knowingly fail to

register as required, verify their addresses, or provide accurate information



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to the Pennsylvania State Police.        The registration requirements and

enforcement provision both became effective on December 20, 2012.

        Two years later, on August 23, 2014, November 23, 2014, and again

on February 23, 2015, Appellant reported a false place of employment to the

Pennsylvania State Police.       Moreover, Appellant failed to notify the

Pennsylvania State Police of a change in address, and failed to complete his

quarterly registration in May of 2015. On July 21, 2015, the Commonwealth

charged Appellant with three counts of failing to comply with SORNA’s

registration requirements.

        Even though the penalty provisions of SORNA are punitive, they do not

violate the Ex Post Facto Clause.    The Ex Post Facto Clause only prohibits

“punishment for an act which was not punishable at the time it was

committed[.]” Rose, 127 A.3d at 798. It does not prohibit punishment for

acts that the legislature determined to be illegal at the time the defendant

committed the act.

        In this case, Appellant failed to     comply with the    registration

requirements after the registration requirements became effective. In other

words, the legislature enacted SORNA in 2011, and it became effective in

2012.     Appellant violated SORNA’s registration requirements in 2014 and

2015. Thus, the legislature had already criminalized the failure to register

when Appellant failed to do so. Therefore, the penalty provisions of SORNA




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J. A10004/17


do not violate the Ex Post Facto Clause, regardless of whether or not they

are punitive.

      Appellant also urges this Court to reconsider whether the registration

requirements of SORNA, which do apply retroactively, violate the Ex Post

Facto Clause. Appellant avers that previous courts analyzing the issue have

ignored   the   enforcement   provisions      when   considering   whether   the

registration requirements are punitive. Appellant’s Brief at 12.

      Although we agree that earlier courts have not specifically considered

the severity of the specific sentencing schemes for failing to register, we are

bound by earlier decisions that have held that the registration requirements

do not violate the Ex Post Facto Clauses. We do, however, encourage a

reviewing court in the future to consider the severity of the the entire

sentencing scheme for failing to register.5


5
  For example, the Sentencing Guidelines assigns the failure to comply with
SORNA with Offense Gravity Scores of 6, 8, or 10. Similarly harsh is the Pa.
Code that grades a first offense for failure to meet the quarterly reporting
requirements as a second-degree felony and a second or subsequent offense
as a first degree felony with a maximum sentence of life in prison. 204 Pa.
Code § 303.15. These Offense Gravity Scores are in line with those
assigned to violent crimes that result in bodily injury or death. For example,
an individual who violates SORNA’s civil regulatory scheme will be given the
same Offense Gravity Score as a defendant who commits: Arson
Endangering Person, creating a danger of death causing bodily injury (10);
all forms of Kidnapping (10); Robbery with threats to cause serious bodily
injury (10); Aggravated Assault causing bodily injury with a deadly weapon
(8); Involuntary Manslaughter (6); Involuntary Manslaughter, victim less
than 12-years-old (8); Aggravated Assault, using noxious gas or an
electronic incapacitation device against an officer (6); and Robbery by force,
drug related (6). Id.



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J. A10004/17


      However, as discussed supra, this Court has already held that the

registration requirements of SORNA, when applied retroactively, are not

punitive and, therefore, do not violate the Ex Post Facto Clause. See, e.g.,

Woodruff, supra at 1061.        Our Supreme Court has not yet called into

question these prior rulings.   Therefore, we are bound by the holdings of

prior panels of this Court.   See Commonwealth v. Pepe, 897 A.2d 463,

465 (Pa. Super. 2006) (“It is beyond the power of a Superior Court panel to

overrule a prior decision of the Superior Court, except in circumstances

where intervening authority by our Supreme Court calls into question a

previous decision of this Court.” (internal citation omitted)).

      Having found that the penalty provisions of SORNA do not violate the

Ex Post Facto Clause, and precluded from reconsidering whether the

registration requirements are punitive, we affirm the Judgment of Sentence.

      Judgment of Sentence affirmed.




In fact, in certain cases a registered sex offender could commit a new sexual
offense and face an Offense Gravity Score comparable to that for failing to
comply with the registration requirements. See id. (Aggravated Indecent
Assault by forcible compulsion (10); Aggravated Indecent Assault, threat of
forcible compulsion (10); Aggravated Indecent Assault, victim less than 13-
years-old (10); Statutory Sexual Assault, victim less than 16-years-old (7,
8, or 9); Possession of Child Pornography (6, 7, 8, 9, or 10); Institutional
Sexual Assault, including Institutional Sexual Assault of a minor victim (6)).



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J. A10004/17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017




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