                                 [J-121B-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                :   No. 47 MAP 2016
                                             :
                    Appellee                 :   Appeal from the Order of the Superior
                                             :   Court at No. 2169 MDA 2014 dated
                                             :   August 7, 2015 Affirming the Order of
             v.                              :   the Court of Common Pleas of
                                             :   Cumberland County, Criminal Division,
                                             :   at No. CP-21-CR-0000903-2006 dated
JOSE M. MUNIZ,                               :   October 14, 2014.
                                             :
                    Appellant                :   ARGUED: December 6, 2016


      Justice Dougherty delivers the Opinion of the Court with respect to Parts I
      through IV and VII, and announces the Judgment of the Court. The
      Opinion is joined in full by Justices Baer and Donohue, and by Justices
      Todd and Wecht with the exception of Parts V and VI. Justice Wecht files
      a concurring opinion in which Justice Todd joins. Chief Justice Saylor files
      a dissenting opinion.

             OPINION ANNOUNCING THE JUDGMENT OF THE COURT


JUSTICE DOUGHERTY                                      DECIDED: July 19, 2017
      We granted discretionary review to determine whether Pennsylvania’s Sex

Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.10-9799.41, as

applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post

facto clauses of the United States and Pennsylvania Constitutions.1 The Superior Court



1
 Article I, Section 10 of the United States Constitution provides, in pertinent part: “No
State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility.” U.S. CONST., art. I, §10.
(continued…)
held SORNA’s registration provisions are not punishment, and therefore retroactive

application to appellant, who was convicted of sex offenses prior to SORNA’s effective

date but sentenced afterwards, does not violate either the federal or state ex post facto

clauses.   For the following reasons, we reverse and hold: 1) SORNA’s registration

provisions constitute punishment notwithstanding the General Assembly’s identification

of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration

provisions violates the federal ex post facto clause; and 3) retroactive application of

SORNA’s registration provisions also violates the ex post facto clause of the

Pennsylvania Constitution.



                      I. Procedural History Related to Current Appeal

      On February 7, 2007, after a bench trial in Cumberland County, appellant was

convicted of two counts of indecent assault arising out of an incident where he touched

the breasts of his girlfriend’s twelve-year old daughter.2 Sentencing was scheduled for

May 8, 2007, at which time appellant would have been ordered to register as a sex

offender with the Pennsylvania State Police for a period of ten years pursuant to then-

effective Megan’s Law III. See 42 Pa.C.S. §9795.1 (expired). However, appellant failed

to appear for his sentencing hearing and absconded until he was apprehended on

unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his


(…continued)
Article I, Section 17 of the Pennsylvania Constitution provides: “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.
2
 See 18 Pa.C.S. §§3126(a)(1) (person is guilty of indecent assault if he has indecent
contact with the complainant for purpose of arousing sexual desire in himself or
complainant, without complainant’s consent), 3126(a)(7) (complainant less than 13
years of age).



                                   [J-121B-2016] - 2
absence, the General Assembly had replaced Megan’s Law III with SORNA. Under

SORNA, persons convicted of indecent assault of a person less than thirteen years of

age, 18 Pa.C.S. §3126(a)(7), are categorized as Tier III offenders and are required to

register as sex offenders for the remainder of their lives.3 Accordingly, appellant was

sentenced to four to fourteen months’ imprisonment and ordered to comply with lifetime

registration requirements under SORNA.          Appellant filed a post-sentence motion

seeking application of the ten-year registration period under Megan’s Law III, which was

the law in place at the time of his offense and conviction, instead of lifetime registration

under SORNA. The court denied appellant’s motion and he appealed to the Superior

Court, claiming retroactive application of SORNA violates the ex post facto clauses of

the United States and Pennsylvania Constitutions, and the reputation clause of the

Pennsylvania Constitution.4

       The Superior Court affirmed the ruling of the trial court in a three-page

unpublished memorandum opinion. Commonwealth v. Muniz, No. 2169 MDA 2014,

unpublished memorandum (Pa. Super. filed August 7, 2015).               The panel opined

Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014), directed its holding “the new

registration regime pursuant to SORNA is constitutional under the Federal and State Ex

Post Facto Clauses.” Muniz, slip op. at 3, quoting Perez, 97 A.3d at 760 (SORNA is not


3
   Appellant’s seven year absence from the Commonwealth is of no moment. SORNA
applies retroactively to any individual serving a sentence for a sexual offense or any
individual who had not completed their registration period under prior registration
statutes as of SORNA’s effective date of December 20, 2012. 42 Pa.C.S. §9799.13.
Had appellant been sentenced in 2007 and subject to registration under Megan’s Law
III, he would not have completed his ten-year registration period when SORNA became
effective and thus his ten-year registration period would have been converted to a term
of lifetime registration.
4
 PA. CONST. art. I §1 (“All men … have certain inherent and indefeasible rights, among
which are those of … protecting property and reputation. ...”).



                                    [J-121B-2016] - 3
punitive; retroactive application does not violate federal ex post facto clause).5 The

panel further held appellant waived his reputation clause claim by failing to raise it in his

post-sentence motion.

       Appellant filed a petition for allowance of appeal raising two questions regarding

SORNA’s “sexual offenses and tier system” provisions set forth at 42 Pa.C.S. §9799.14:

       1) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Federal
       Constitution?

       2) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the
       Pennsylvania Constitution?
This Court granted review of both questions. Commonwealth v. Muniz, 135 A.3d 178

(Pa. 2016).



          II. Summary of Arguments and Applicable Standards of Review

       Briefly, appellant argues SORNA unconstitutionally increases the length of

registration and notification requirements for sex offenders subject to its retroactive

application. Appellant claims despite the General Assembly’s declaration SORNA is not

to be construed as punitive, the statute’s text and structure make clear the legislative

objective was to punish. Appellant asserts SORNA is so punitive in purpose and effect

that the General Assembly’s intent to deem it civil is undermined.          Thus, appellant

claims, SORNA increases punishment for conduct which occurred before its enactment

and such retroactive application violates both federal and state constitutional bans on ex

post facto laws; in doing so, appellant argues the Pennsylvania Constitution provides


5
 The panel did not explain that, in Perez, the Superior Court did not actually reach the
merits of the state constitutional claim, holding instead it was waived for failure to
present an analysis under Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). See
Perez, 97 A.3d at 760.



                                     [J-121B-2016] - 4
greater protection than the United States Constitution. Appellant argues SORNA is

therefore unconstitutional as applied to someone like him whose conviction predated its

enactment.6

       In response, the Commonwealth argues the decision of the United States

Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and an analysis of the factors set

forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), both direct SORNA is not

punishment, and thus there can be no ex post facto violation. The Commonwealth

focuses on the General Assembly’s aim to address the “major public concern” of

recidivism among adult sex offenders and indicates SORNA’s terms are not excessive

given this legislative purpose.7

       As we consider the parties’ arguments in more detail below, we recognize there

is a general presumption that all lawfully enacted statutes are constitutional.

6
  The Defender Association of Philadelphia and the Pennsylvania Association of
Criminal Defense Lawyers (hereinafter referred to jointly as PACDL) filed an amicus
curiae brief supporting appellant. Amicus briefs in support of appellant were also filed
by The Association for the Treatment of Sexual Abusers, Assessment and Treatment
Alternatives and the Joseph J. Peters Institute, The Collateral Consequences Resource
Center, and The Social Science Scholars; these policy based briefs focused on studies
which opined recidivism by sex offenders is overstated and sex offender registration is
ineffective and may also be counterproductive. The Pennsylvania District Attorneys
Association (PDAA) filed an amicus brief in support of the Commonwealth.
7
  The Commonwealth also claims appellant waived his argument that SORNA violates
the reputation clause of the Pennsylvania Constitution. We note the Superior Court
correctly concluded the issue was waived because it was not raised in appellant’s post-
sentence motion, and appellant has not raised an independent reputation clause claim
before this Court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”). However, appellant does
include reputation-based concerns in his analysis of Pennsylvania’s ex post facto
clause, and whether it provides greater protection than its federal counterpart; appellant
presented almost identical reputation-based arguments in his Edmunds analysis before
the Superior Court as well. To the extent reputation-based concerns support appellant’s
claim that SORNA’s provisions are punishment and retroactive application is a violation
of Pennsylvania’s ex post facto clause, we consider them only in that limited context.



                                    [J-121B-2016] - 5
Commonwealth v. Lee, 935 A.2d 865, 876 (Pa. 2007).                In addition, as this case

presents questions of law, our scope of review is plenary and we review the lower

courts’ legal determinations de novo. Id.

                               III. Ex Post Facto Laws Generally

       Before turning to the history of Pennsylvania sex offender laws and the specific

provisions of SORNA at issue in this appeal, we first explain the general purpose of ex

post facto prohibitions. The central concern in incorporating ex post facto clauses in

both federal and state constitutions was to “assure that federal and state legislatures

were restrained from enacting arbitrary or vindictive legislation” following the American

Revolution. Miller v. Florida, 482 U.S. 423, 429 (1987), citing Calder v. Bull, 3 U.S. 386,

391 (1798). However, as noted by Chief Justice Chase in Calder, the term ex post facto

“had been in use long before the Revolution.” Calder, 3 U.S. at 391. The clauses were

thus also directed at the separate concern, relevant here, that individuals are entitled to

“fair warning” about what constitutes criminal conduct, and what the punishments for

that conduct entail. Miller, 482 U.S. at 430; see also Commonwealth v. Rose, 127 A.3d

794, 805 (Pa. 2015), quoting W AYNE R. LAFAVE, CRIMINAL LAW 116, 121 (5th ed. 2010).

The United States Supreme Court, in Weaver v. Graham, 450 U.S. 24 (1981), succinctly

articulated this idea in stating, “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. at 30. Based on both these concerns, Chief Justice

Chase set out four categories of laws that violate such prohibitions:

       1st. Every law that makes an action done before the passing of the law,
       and which was innocent when done, criminal; and punishes such action.
       2nd. Every law that aggravates a crime, or makes it greater than it was,
       when committed. 3rd. Every law that changes the punishment, and inflicts
       a greater punishment, than the law annexed to the crime, when
       committed. 4th. Every law that alters the legal rules of evidence, and


                                     [J-121B-2016] - 6
       receives less, or different, testimony, than the law required at the time of
       the commission of the offense, in order to convict the offender.
Calder, 3 U.S. at 390. Furthermore, “two critical elements” must be met for a criminal or

penal law to be deemed ex post facto: “it must be retrospective, that is, it must apply to

events occurring before its enactment, and it must disadvantage the offender affected

by it.” Weaver, 450 U.S. at 29 (footnote omitted). As such, “[o]nly those laws which

disadvantage a defendant and fall within a Calder category are ex post facto laws and

constitutionally infirm.”   Commonwealth v. Young, 637 A.2d 1313, 1318 (Pa. 1993)

(emphasis in original). The ex post facto clauses of the United States and Pennsylvania

Constitutions are implicated here because a holding rendering the effects of SORNA’s

registration requirements punitive would place the statute into the third Calder category:

application of the statute would inflict greater punishment on appellant than the law in

effect at the time he committed his crimes.



IV. History of Pennsylvania Sex Offender Laws, Applicable Case Law, and SORNA

           A. History of Pennsylvania Sex Offender Laws Prior to SORNA

       In Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (Williams II), this Court

provided a history of Pennsylvania’s sex offender registration laws up until the time of

that decision:

          In 1995, the General Assembly amended the Sentencing Code by
       adding Subchapter H, entitled “Registration of Sexual Offenders,” codified
       at 42 Pa.C.S. §§9791-9799, and generally referred to as “Megan’s Law”
       (hereinafter, “Megan’s Law I”). Among other things, Megan’s Law I
       established a procedure for adjudicating certain offenders—namely, those
       that committed one of the predicate offenses listed in the statute—as
       “sexually violent predators.” The mandated procedure included a post-
       conviction, pre-sentence assessment by the Board, followed by a hearing
       before the trial court. At the hearing, the offender was presumed to be a
       sexually violent predator and bore the burden of rebutting such
       presumption by clear and convincing evidence. If the individual was
       adjudicated a sexually violent predator, he was subjected to an enhanced
       maximum sentence of life imprisonment for the predicate offense, as well


                                    [J-121B-2016] - 7
as registration and community notification requirements that were more
extensive than those applicable to an offender who was not adjudicated a
sexually violent predator.

    In Commonwealth v. Williams, … 733 A.2d 593 ([Pa.] 1999) (Williams
I), this Court struck down the sexually violent predator provisions of
Megan’s Law I based upon the conclusion that a finding of sexually violent
predator status under that enactment entailed a “separate factual
determination, the end result of which is the imposition of criminal
punishment,” i.e., increasing the offender’s maximum term of confinement
above the statutory maximum for the underlying offense. See id. … at
603. ... Notably, in view of the punitive nature of the increased maximum
prison sentence, the Williams I Court invalidated the challenged provisions
without reaching the question of whether the enhanced registration and
notification requirements constituted criminal punishment. See id. … at
602 n.10.

    After Williams I was decided, the General Assembly passed Megan’s
Law II, which was signed into law on May 10, 2000. Although the stated
legislative policy remained the same as in Megan’s Law I, the General
Assembly altered the manner in which an individual convicted of a
predicate offense was adjudicated a sexually violent predator. The critical
distinction, for present purposes, is that, under Megan’s Law II an offender
convicted of an enumerated predicate offense is no longer presumed to be
a sexually violent predator. ... Additionally, persons adjudicated to be
sexually violent predators are no longer subjected to an automatic
increased maximum term of imprisonment for the predicate offense.
Instead, they are required to undergo lifetime registration, notification, and
counseling procedures; failure to comply with such procedures is
penalized by a term of probation or imprisonment.

    Under Megan’s Law II, any offender convicted of a predicate offense,
whether or not he is deemed a sexually violent predator, must: (1) register
his current residence or intended residence with the state police upon
release from incarceration, parole from a correctional institution, or
commencement of an intermediate punishment or probation; (2) inform the
state police within ten days of a change in residence; and (3) register
within ten days with a new law enforcement agency after establishing
residence in another state. State police officials then forward this data,
together with fingerprint and photographic information obtained from the
sentencing court to the chief of police of the locality where the offender will
reside following his change of address or release from prison. For
sexually violent predators, the police chief in turn notifies the individual’s
neighbors, as well as day care operators and school officials within the
municipality. The data sent to these recipients includes the offender’s
name, address, offense, and photograph (if available), as well as the fact



                              [J-121B-2016] - 8
       that he has been determined by a court to be a sexually violent predator,
       “which determination has or has not been terminated as of a date certain.”
       The sexually violent predator’s name and address, including any
       subsequent change of address, is also sent to the victim of the offense,
       until the victim requests that such notification be terminated.

                                     *    *   *

           In addition to registration upon release from prison and upon changes
       of address, sexually violent predators must periodically verify their address
       with the state police. To accomplish this, the state police send a
       verification form once every three months to the last residence reported.
       Upon receipt of this form, the sexually violent predator must appear within
       ten days at any state police station to submit the completed form and be
       photographed. The Act also requires a sexually violent predator to attend
       “at least monthly” counseling sessions in a program approved by the
       Board, and to pay all fees assessed from such sessions, unless he cannot
       afford them, in which case they are paid by the parole office. The Board
       monitors compliance with this requirement; the sexually violent predator
       must also verify such compliance with the state police as part of the
       quarterly verification process discussed above.
Williams II, 832 A.2d at 965-68 (internal citations and footnotes omitted).

       The General Assembly made further amendments to Megan’s Law II with the

passage of Act 152 of 2004, commonly referred to as Megan’s Law III, which was

signed into law on November 24, 2004. Commonwealth v. Neiman, 84 A.3d 603, 607

(Pa. 2013).   Although this Court struck down that statute on the basis its passage

violated the single subject rule, we recognized Megan’s Law III made the following

substantive legal changes:

       (1) established a two-year limitation for asbestos actions[8]; (2) amended
       the Crimes Code to create various criminal offenses for individuals subject
       to sexual offender registration requirements who fail to comply; (3)
       amended the provisions of the Sentencing Code which govern
       “Registration of Sexual Offenders”; (4) added the offenses of luring and
       institutional sexual assault to the list of enumerated offenses which require

8
  The inclusion of this subsection provided the basis for the Neiman Court’s decision to
strike down the statute as being in violation of the single subject rule. Neiman, 84 A.3d
at 610-13.



                                    [J-121B-2016] - 9
       a 10-year period of registration and established local police notification
       procedures for out-of state sexual offenders who move to Pennsylvania;
       (5) directed the creation of a searchable computerized database of all
       registered sexual offenders (“database”); (6) amended the duties of the
       Sexual Offenders Assessment Board (“SOAB”); (7) allowed a sentencing
       court to exempt a lifetime sex offender registrant, or a sexually violent
       predator registrant, from inclusion in the database after 20 years if certain
       conditions are met; (8) established mandatory registration and community
       notification procedures for sexually violent predators; (9) established
       community notification requirements for a “common interest community”—
       such as a condominium or cooperative—of the presence of a registered
       sexually violent predator; (10) conferred immunity on unit owners’
       associations of a common interest community for good faith distribution of
       information obtained from the database; (11) directed the Pennsylvania
       State Police to publish a list of approved registration sites to collect and
       transmit fingerprints and photographs of all sex offenders who register at
       those sites; and (12) mandated the Pennsylvania Attorney General to
       conduct annual performance audits of state or local agencies who
       participate in the administration of Megan’s Law, and, also, required
       registered sex offenders to submit to fingerprinting and being
       photographed when registering at approved registration sites.
Id., 84 A.3d at 606-07 (footnotes omitted), citing 18 Pa.C.S. §4915; 42 Pa.C.S. §§

5524.1, 9792, 9795.1(a)(1), 9795.4, 9795.5, 9796, 9798, 9798.1, 9799, 9799.1, 9799.8.

Megan’s Law III was replaced by SORNA.



         B. Case Law Regarding the Constitutionality of Sex Offender Laws

       Before reaching the specific provisions of SORNA at issue here, we summarize

the reasoning in two pivotal cases, the analysis of which will frame our discussion

below: the United States Supreme Court’s decision in Smith, and this Court’s decision in

Williams II.



                                        i. Smith v. Doe

        In Smith, the United States Supreme Court determined the registration

requirements of Alaska’s Sex Offender Registration Act (the Act), which applied to the

sex-offender plaintiffs despite the fact they were convicted, sentenced, and released



                                   [J-121B-2016] - 10
from prison before its passage, were not retroactive punishment prohibited by the

federal ex post facto clause. Smith, 538 U.S. at 105-06.9 The High Court summarized

the Alaska statute as follows:

          The Alaska law, which is our concern in this case, contains two
      components: a registration requirement and a notification system. Both
      are retroactive. The Act requires any “sex offender or child kidnapper who
      is physically present in the state” to register, either with the Department of
      Corrections (if the individual is incarcerated) or with the local law
      enforcement authorities (if the individual is at liberty). Prompt registration
      is mandated. If still in prison, a covered sex offender must register within
      30 days before release; otherwise he must do so within a working day of
      his conviction or of entering the State. The sex offender must provide his
      name, aliases, identifying features, address, place of employment, date of
      birth, conviction information, driver’s license number, information about
      vehicles to which he has access, and postconviction treatment history.
      He must permit the authorities to photograph and fingerprint him.

          If the offender is convicted of a single, nonaggravated sex crime, he
      must provide annual verification of the submitted information for 15 years.
      If he was convicted of an aggravated sex offense or of two or more sex
      offenses, he must register for life and verify the information quarterly.
      The offender must notify his local police department if he moves. A sex
      offender who knowingly fails to comply with the Act is subject to criminal
      prosecution.

         The information is forwarded to the Alaska Department of Public
      Safety, which maintains a central registry of sex offenders. Some of the
      data, such as fingerprints, driver’s license number, anticipated change of
      address, and whether the offender has had medical treatment afterwards
      are kept confidential. The following information is made available to the
      public: “the sex offender’s or child kidnapper’s name, aliases, address,
      photograph, physical description, description[,] license [and] identification
      numbers of motor vehicles, place of employment, date of birth, crime for
      which convicted, date of conviction, place and court of conviction, length
      and conditions of sentence, and a statement as to whether the offender or
      kidnapper is in compliance with [the update] requirements … or cannot be
      located.” The Act does not specify the means by which the registry

9
  The Supreme Court of Alaska later found the retroactive application of the Act
unconstitutional under the ex post facto clause of the Alaska state constitution. See
Doe v. State, 189 P.3d 999 (Ak. 2008).



                                   [J-121B-2016] - 11
       information must be made public. Alaska has chosen to make most of the
       nonconfidential information available on the Internet.

Smith, 538 U.S. at 90-91 (internal citations omitted).       The High Court noted that,

although it had not previously considered whether a sex offender statute constituted

retroactive punishment forbidden by the federal ex post facto clause, the framework for

the inquiry was well established. Id. at 92.

       We must “ascertain whether the legislature meant the statute to establish
       ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361 … (1997). If
       the intention of the legislature was to impose punishment, that ends the
       inquiry. If, however, the intention was to enact a regulatory scheme that is
       civil and nonpunitive, we must further examine whether the statutory
       scheme is “‘so punitive either in purpose or effect as to negate [the
       State’s] intention’ to deem it ‘civil.’” Ibid., quoting United States v. Ward,
       448 U.S. 242, 248-49 … (1980). Because we “ordinarily defer to the
       legislature’s stated intent,” Hendricks, supra, at 361, “‘only the clearest
       proof’ will suffice to override legislative intent and transform what has been
       denominated a civil remedy into a criminal penalty.” Hudson v. United
       States, 522 U.S. 93, 100 (1997), quoting Ward, supra, at 249.
Smith, 538 U.S. at 92.

       In determining Alaska’s legislature intended to establish a civil, nonpunitive

scheme, the Court looked to the text of the statute where the legislature found “‘sex

offenders pose a high risk of re-offending,’ and identified ‘protecting the public from sex

offenders’ as the ‘primary governmental interest’ of the law.” Id., at 93, citing 1994

Alaska Sess. Laws ch. 41, §1. The Court also looked to Hendricks where it previously

held “an imposition of restrictive measures on sex offenders adjudged to be dangerous

is ‘a legitimate nonpunitive governmental objective and has been historically so

regarded.’” Smith, 538 U.S. at 93, quoting Hendricks, 521 U.S. at 363. The Court

noted the location of the Act’s notification provisions in the state’s health, safety, and

housing code suggested a civil scheme, while the location of the Act’s registration

provisions in the state’s criminal procedure code suggested a penal intent; the Court

stated neither factor was dispositive. Smith, 538 U.S. at 94. The Court concluded the


                                    [J-121B-2016] - 12
Act “does not require the procedures adopted to contain any safeguards associated with

the criminal process,” and led the Court to “infer that the legislature envisioned the Act’s

implementation to be civil and administrative.” Id. at 96. The High Court determined the

statute utilized “distinctly civil procedures” and the Alaska legislature therefore “intended

a civil, not a criminal sanction.” Id. (internal quotations and citations omitted).

       The High Court then looked to the factors listed in Mendoza-Martinez as a

framework for determining whether the provisions of the Alaska statute were so punitive

in effect as to negate the legislature’s intention to identify the scheme as civil. Id. at 97.

The Mendoza-Martinez factors are as follows: “[w]hether the sanction involves an

affirmative disability or restraint, whether it has historically been regarded as a

punishment, whether it comes into play only on a finding of scienter, whether its

operation will promote the traditional aims of punishment—retribution and deterrence,

whether the behavior to which it applies is already a crime, whether an alternative

purpose to which it may rationally be connected is assignable for it, and whether it

appears excessive in relation to the alternative purpose assigned[.]”                 Mendoza-

Martinez, 372 U.S. at 168-69 (footnotes omitted).

       The High Court first determined the Alaska statute’s notification provisions did

not resemble shaming punishments of the colonial era, which involved more than the

dissemination of information, and included either face-to-face shaming in view of other

citizens or expulsion from the community. Smith, 538 U.S. at 97-98. The Court further

found the Alaska statute involved only the dissemination of accurate information about

an offender’s criminal record, which is already public. Id. The Court noted the fact the

information is available on the internet did not alter its conclusion, as the purpose of the

internet posting was to inform the public rather than shame the offender, and the

website did not allow the public to shame offenders by posting comments. Id. at 99.




                                     [J-121B-2016] - 13
       The Court also determined the Act did not impose a physical restraint. Id. at 100.

The Court found the Act did not make offenders unemployable; even in the absence of

this statute, employers could conduct criminal record checks and exclude offenders

from employment and those consequences flowed from the offender’s conviction rather

than the Act’s registration and notification provisions. Id. at 100-01. The Court noted

the argument Alaska’s registration system was parallel to the restraint imposed on those

on probation or supervised release “has some force,” but ultimately rejected it, holding

offenders are “free to move where they wish and to live and work as other citizens, with

no supervision.” Id. at 101. Furthermore, the Court noted although offenders were

required to inform authorities of changes to their registration information, they did not

need to seek permission to make such changes. Id.

       Although the State of Alaska conceded its registration statute might deter future

crimes, the Smith Court held this was not enough to find the law punitive because

holding a deterrent purpose automatically renders such sanctions criminal “would

severely undermine the Government’s ability to engage in effective regulation.” Id. at

102, quoting Hudson, 522 U.S. at 105.            The Court further held the registration

provisions were not retributive because the duration of the reporting requirement

depended on the crime rather than the risk posed by the offender. Id. The Court

concluded the broad registration categories and corresponding reporting requirements

“are reasonably related to the danger of recidivism, and this is consistent with the

regulatory objective.” Smith, 538 U.S. at 102.

       The Court then held “[t]he Act’s rational connection to a nonpunitive purpose is a

‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.”

Id., quoting United States v. Ursery, 518 U.S. 267, 290 (1996).                   The Court

acknowledged both the lower court and Doe conceded the nonpunitive purpose of




                                     [J-121B-2016] - 14
public safety was valid and rational. Id. at 103. The Court further stated even though

the Act may not have been narrowly drawn to accomplish that public safety purpose, a

“statute is not deemed punitive simply because it lacks a close perfect fit with the

nonpunitive aims it seeks to advance.” Id.

       The Court further held the Act was not excessive in its application to all offenders

regardless of their future dangerousness as the registration requirements were minor

and allowed the public to assess risk based on accurate, public information about

offenders’ convictions. Id. at 104. The Court also held the wide dissemination of the

information over the internet was not excessive as the notification system was passive

in that an individual must seek out the information, the website warned against using the

information in a criminal manner, and making the registry available on the internet was

necessary based on the general mobility of the population. Id. at 104-05.

       The Court also stated two factors—whether the regulation comes into play only

on a finding of scienter and whether the behavior to which it applies is already a crime—

are of little weight as the Act applied only to past criminal conduct, which is a necessary

starting point for targeting the statutory concern of recidivism. Id. at 105. The Smith

Court then concluded the plaintiffs were unable to show the effects of the Alaska statute

negated the legislature’s intent to establish a civil scheme. The Court held “[t]he Act is

nonpunitive, and its retroactive application does not violate the [federal] Ex Post Facto

Clause.” Id. at 105-06.



                                          ii. Williams II

       In Williams II, this Court considered whether the registration, notification, and

counseling requirements of Megan’s Law II, applicable to sexually violent predators,

constituted criminal punishment such that their imposition on the defendants violated




                                   [J-121B-2016] - 15
their rights to due process under the United States and Pennsylvania Constitutions.10

Williams, 832 A.2d at 964. This Court analyzed the statute’s provisions under the same

two-level inquiry used by the U.S. Supreme Court in Smith. Id. at 971. As to the first

question, whether the General Assembly’s intent was to punish, the Williams II Court

determined the statute’s statement of purpose was clear in that its intent was to identify

potential recidivists and avoid recidivism by providing awareness of particular risks to

members of the public and providing treatment to offenders. Id. at 971-72. The Court

stated the statute’s purpose was therefore “not to punish, but to promote public safety

through a civil, regulatory scheme.” Id. at 972.

       The Williams II Court then examined the Mendoza-Martinez factors to determine

whether the sanctions are “so punitive as to transform what was clearly intended as a

civil remedy into a criminal penalty.” Id., quoting Ward, 448 U.S. at 249. The Court first

found the registration requirements of Megan’s Law II did not directly impose a

deprivation or restraint upon sexually violent predators as they “remain free to live

where they choose, come and go as they please, and seek whatever employment they

may desire.” Id. at 973, quoting Femedeer v. Haun, 227 F.3d 1244, 1250 (10th Cir.

2000). Thus, the Court held it could not find the clearest proof the requirements were

“so onerous as to constitute an affirmative disability or restraint.” Williams, 832 A.2d at

975. The Court further found it was not clear the notification requirements of Megan’s

Law II were analogous to public shaming, or other historical forms of punishment, as

“the disclosure of factual information concerning the local presence of a potentially

10
    Williams II arose out of the Commonwealth’s appeal from two orders of the Court of
Common Pleas of Erie County, which struck down certain portions of Megan’s Law II as
violative of the due process clauses of the United States and Pennsylvania
Constitutions; the ex post facto clauses were not at issue. However, the central
question in Williams II, as in this appeal, was whether certain provisions of Megan’s Law
II constituted punishment. Williams II, 832 A.2d at 968-69.



                                   [J-121B-2016] - 16
harmful individual is aimed, not at stigmatizing that individual, but allowing potentially

vulnerable members of the public to avoid being victimized.” Id. at 976.

         The Court then found applicability of Megan’s Law II does not depend only upon

a finding of scienter since some predicate offenses can be committed whether or not the

defendant is aware his conduct is criminal, e.g., the statute applies to the crime of

sexual abuse of children, where the defendant may be convicted despite the good faith

belief the child was over eighteen years of age. Id. at 977-78. The Williams II Court

further found since there was a substantial period of incarceration attached to the

predicate offenses of rape and involuntary deviate sexual intercourse,11 the prospects of

registration and notification would have little deterrent effect upon a sexually violent

predator. Id. at 978. The Court also found the measures were not retributive as they do

not “require [a sexually violent predator to] ‘pay his debt to society,’ through the

impositions of fines, restitution, or confinement.” Id., quoting Williams v. Illinois, 399

U.S. 235, 261 (1970) (Harlan, J., concurring).

         The Williams II Court found the crucial determination of sexually violent predator

status under Megan’s Law II was not based upon the particular criminal conduct or

crime at issue, but instead upon a separate finding of mental abnormality or personality

disorder. Williams II, 823 A.2d at 978. The Court recognized, however, that whether

the behavior to which Megan’s Law II applies is already a crime is of little significance in

evaluating whether or not the statute is punitive because “application to past criminal

conduct is ‘a necessary beginning point [where] recidivism is the statutory concern.’” Id.

at 979, citing Smith, 538 U.S. at 105.




11
     18 Pa.C.S. §§3121, 3123.



                                     [J-121B-2016] - 17
       Additionally the Court found the sixth Mendoza-Martinez factor, whether the act

has a rational connection to a nonpunitive purpose, “is a ‘[m]ost significant’ factor in our

determination that the statute’s effects are not punitive.” Id. at 979, quoting Smith, 538

U.S. at 102. The Court noted there are “grave concerns over the high risk of recidivism

among convicted sex offenders,” id. at 979, quoting Smith, 538 U.S. at 103, and it was

significant that most of the notification provisions in Megan’s Law II pertained to

neighbors of sexually violent predators, social service agencies, schools, and day care

centers. Id. The Court found concerns about information being placed on the internet

to be unwarranted because Megan’s Law II information was available to the public only

upon request. Id. at 980. The Court distinguished Megan’s Law II from New Jersey’s

sex offender statute which specifically authorized online dissemination of offender

information. Id., citing NJ. STAT. ANN. §§2C:7-12-2C:7-14. The Court concluded the

“dissemination of sexually violent predator information to individual members of the

public, upon request, appear[ed] to be a reasonable means chosen by the Legislature to

serve the legitimate government interest in providing persons who may be affected by

the presence of a sexually violent predator with the information they need to protect

themselves[.]” Id. at 981.

       Finally, the Court determined Megan’s Law II’s registration, verification, and

counseling requirements were not sufficiently onerous to be considered punishment

based upon alleged excessiveness. Id. at 982. Although the Court conceded it was

“troubling” that the requirements last for the entire lifetime of the sexually violent

predator, and the legislature could avoid excessiveness claims by allowing a sexually

violent predator to invoke judicial review to demonstrate he no longer poses a

substantial risk, the Court recognized the record did not include any information

concerning the successful treatment of sexually violent predators.          Id. at 982-83.




                                    [J-121B-2016] - 18
Accordingly, the Williams II Court established the registration, notification, and

counseling requirements imposed on sexually violent predators under Megan’s Law II

were not punitive; thus their imposition did not violate the offenders’ due process rights.

Id. at 984.12



                                       C. SORNA

       The General Assembly enacted SORNA in response to the federal Adam Walsh

Child Protection and Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§16901-

16991,13 which mandates that states impose on sex offenders certain tier-based

registration and notification requirements in order to avoid being subject to a penalty,

i.e., the loss of federal grant funding.14     In re J.B., 107 A.3d 1, 3 (Pa. 2014).

Accordingly, Pennsylvania’s General Assembly sought to comply with this federal

legislation by providing for “the expiration of prior registration requirements, commonly


12
   The Williams II Court also weighed whether Megan’s Law II’s penalties for non-
compliance, which subjected sexually violent predators to a possible term of life
imprisonment, constituted punishment. Williams II, 832 A.2d at 985. The Court found
these penalties must be considered punitive and unconstitutional as the new offense
proceeds “directly from the Act’s enforcement provisions” and “such measures are
manifestly in excess of what is needed to ensure compliance[.]” Id. at 985-86.
13
   The federal regime is also referred to as the “Jacob Wetterling, Megan Nicole Kanka,
and Pam Lychner Sex Offender Registration and Notification Program,” 42 U.S.C.
§16902, or more simply as “federal SORNA.” See, e.g., United States v. Roberson, 752
F. 3d 517, 518 (1st Cir. 2014); Commonwealth v. Nase, 104 A.3d 528, 532 (Pa. Super.
2014).
14
  The federal statute provides: “For any fiscal year after the end of the period for
implementation, a jurisdiction that fails, as determined by the Attorney General, to
substantially implement this subchapter shall not receive 10 percent of the funds that
would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of
part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3750 et seq.).” 42 U.S.C. §16925(a).




                                   [J-121B-2016] - 19
referred to as Megan’s Law [III], 42 Pa.C.S. §§9791-9799.9, as of December 20, 2012,

and for the effectiveness of SORNA on the same date.” Id.

      The purposes of SORNA, as stated by the General Assembly, are as follows:

                (1) To bring the Commonwealth into substantial compliance with
             the Adam Walsh Child Protection and Safety Act of 2006 …

                 (2) To require individuals convicted or adjudicated delinquent of
             certain sexual offenses to register with the Pennsylvania State
             Police and to otherwise comply with this subchapter if those
             individuals reside within this Commonwealth, intend to reside within
             this Commonwealth, attend an educational institution inside this
             Commonwealth or are employed or conduct volunteer work within
             this Commonwealth.

                (3) To require individuals convicted or adjudicated delinquent of
             certain sexual offenses who fail to maintain a residence and are
             therefore homeless but can still be found within the borders of this
             Commonwealth to register with the Pennsylvania State Police.

                 (4) To require individuals who are currently subject to the
             criminal justice system of this Commonwealth as inmates,
             supervised with respect to probation or parole or registrants under
             this subchapter to register with the Pennsylvania State Police and
             to otherwise comply with this subchapter. To the extent practicable
             and consistent with the requirements of the Adam Walsh Child
             Protection and Safety Act of 2006, this subchapter shall be
             construed to maintain existing procedures regarding registration of
             sexual offenders who are subject to the criminal justice system of
             this Commonwealth.

                 (5) To provide a mechanism for members of the general public
             to obtain information about certain sexual offenders from a public
             Internet website and to include on that Internet website a feature
             which will allow a member of the public to enter a zip code or
             geographic radius and determine whether a sexual offender resides
             within that zip code or radius.

                 (6) To provide a mechanism for law enforcement entities within
             this Commonwealth to obtain information about certain sexual
             offenders and to allow law enforcement entities outside this
             Commonwealth, including those within the Federal Government, to
             obtain current information about certain sexual offenders.



                                  [J-121B-2016] - 20
42 Pa.C.S. §9799.10. Furthermore, the General Assembly expressed the legislative

findings and declaration of policy supporting SORNA as follows:

      (a) Legislative findings.— The General Assembly finds as follows:

                 (1) In 1995 the General Assembly enacted the act of October
             24, 1995 (1st Sp. Sess. P.L. 1079, No. 24), commonly referred to
             as Megan’s Law. Through this enactment, the General Assembly
             intended to comply with legislation enacted by Congress requiring
             that states provide for the registration of sexual offenders. The
             Federal statute, the Jacob Wetterling Crimes Against Children and
             Sexually Violent Offender Registration Act (Public Law 103-322, 42
             U.S.C. 14071 et seq.), has been superseded by the Adam Walsh
             Child Protection and Safety Act of 2006 (Public Law 190-248, 120
             Stat. 587).

                 (2) This Commonwealth’s laws regarding registration of sexual
             offenders need to be strengthened. The Adam Walsh Child
             Protection and Safety Act of 2006 provides a mechanism for the
             Commonwealth to increase its regulation of sexual offenders in a
             manner which is nonpunitive but offers an increased measure of
             protection to the citizens of this Commonwealth.

                (3) If the public is provided adequate notice and information
             about sexual offenders, the community can develop constructive
             plans to prepare for the presence of sexual offenders in the
             community. This allows communities to meet with law enforcement
             to prepare and obtain information about the rights and
             responsibilities of the community and to provide education and
             counseling to residents, particularly children.

                 (4) Sexual offenders pose a high risk of committing additional
             sexual offenses and protection of the public from this type of
             offender is a paramount governmental interest.

                (5) Sexual offenders have a reduced expectation of privacy
             because of the public’s interest in public safety and in the effective
             operation of government.

                 (6) Release of information about sexual offenders to public
             agencies and the general public will further the governmental
             interests of public safety and public scrutiny of the criminal and
             mental health systems so long as the information released is
             rationally related to the furtherance of those goals.



                                  [J-121B-2016] - 21
                 (7) Knowledge of whether a person is a sexual offender could
              be a significant factor in protecting oneself and one’s family
              members, or those in care of a group or community organization,
              from recidivist acts by such offenders.

                 (8) The technology afforded by the Internet and other modern
              electronic communication methods makes this information readily
              accessible to parents, minors, and private entities, enabling them to
              undertake appropriate remedial precautions to prevent or avoid
              placing potential victims at risk.

       (b) Declaration of policy.— The General Assembly declares as follows:

                   (1) It is the intention of the General Assembly to substantially
              comply with the Adam Walsh Child Protection and Safety Act of
              2006 and to further protect the safety and general welfare of the
              citizens of this Commonwealth by providing for increased regulation
              of sexual offenders, specifically as that regulation relates to
              registration of sexual offenders and community notification about
              sexual offenders.

                 (2) It is the policy of the Commonwealth to require the exchange
              of relevant information about sexual offenders among public
              agencies and officials and to authorize the release of necessary
              and relevant information about sexual offenders to members of the
              general public as a means of assuring public protection and shall
              not be construed as punitive.

                 (3) It is the intention of the General Assembly to address the
              Pennsylvania Supreme Court’s decision in Commonwealth v.
              Neiman, [84 A.3d 603] (Pa. 2013), by amending this subchapter in
              the act of March 14, 2014 (P.L. 41, No. 19).
42 Pa.C.S. §9799.11(a)-(b).

       SORNA’s registration provisions are applicable to, inter alia, the following

individuals: (1) those convicted of a sexually violent offense,15 on or after the effective

date of SORNA, who are residents of Pennsylvania, employed in Pennsylvania,

students in Pennsylvania or transients; (2) those who are inmates, on or after the

15
   A sexually violent offense is defined as “[a]n offense specified in section 9799.14
(relating to sexual offenses and tier system) as a Tier I, Tier II or Tier III sexual offense.”
42 Pa.C.S. §9799.12.



                                     [J-121B-2016] - 22
effective date of SORNA, in state or county prisons as a result of a conviction for a

sexually violent offense; (3) those who, on or after the effective date of SORNA, are

inmates in a federal prison or are supervised by federal probation authorities as a result

of a sexually violent offense and have a residence in Pennsylvania, are employed in

Pennsylvania, are students in Pennsylvania or transients; and, pertinent to this appeal,

(4) those who were required to register under previous versions of Megan’s Law and

had not yet fulfilled their registration period as of the effective date of SORNA. 42

Pa.C.S. §9799.13.

      SORNA classifies offenders and their offenses into three tiers.         42 Pa.C.S.

§9799.14. Those convicted of Tier I offenses are subject to registration for a period of

fifteen years and are required to verify their registration information and be

photographed, in person at an approved registration site, annually.           42 Pa.C.S.

§9799.15(a)(1), (e)(1).16 Those convicted of Tier II offenses are subject to registration


16
   The Tier I offenses enumerated in SORNA are as follows: 18 Pa.C.S. §2902(b)
(relating to unlawful restraint); 18 Pa.C.S. §2903(b) (relating to false imprisonment); 18
Pa.C.S. §2904 (relating to interference with custody of children); 18 Pa.C.S. §2910
(relating to luring a child into a motor vehicle or structure); 18 Pa.C.S. §3124.2(a)
(relating to institutional sexual assault); 18 Pa.C.S. §3126(a)(1) (relating to indecent
assault); 18 Pa.C.S. §6301(a)(1)(ii) (relating to corruption of minors); 18 Pa.C.S.
§6312(d) (relating to sexual abuse of children); 18 Pa.C.S. §7507.1 (relating to invasion
of privacy); 18 U.S.C. §1801 (relating to video voyeurism); 18 U.S.C. §2252(a)(4)
(relating to certain activities relating to material involving the sexual exploitation of
minors); 18 U.S.C. §2252A (relating to certain activities relating to material constituting
or containing child pornography); 18 U.S.C. §2252B (relating to misleading domain
names on the internet); 18 U.S.C. §2252C (relating to misleading words or digital
images on the internet); 18 U.S.C. §2422(a) (relating to coercion and enticement); 18
U.S.C. §2423(b) (relating to transportation of minors); 18 U.S.C. §2423(c) (relating to
engaging in illicit sexual conduct in foreign places); 18 U.S.C. §2424 (relating to filing
factual statement about alien individual); 18 U.S.C. §2425 (relating to use of interstate
facilities to transmit information about a minor); a comparable military offense or similar
offense under the laws of another jurisdiction or foreign country or under a former law of
this Commonwealth; an attempt, conspiracy or solicitation to commit any of the above
offenses; and a conviction for a sexual offense in another jurisdiction or foreign country
(continued…)

                                   [J-121B-2016] - 23
for a period of twenty-five years and are required to verify their registration information

and be photographed, in person at an approved registration site, semi-annually. 42

Pa.C.S. §9799.15(a)(2), (e)(2).17

       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. 42 Pa.C.S. §9799.15(a)(3), (e)(3). The Tier III

offenses enumerated in SORNA—including the crime of which appellant was convicted,

indecent assault where the individual is less than thirteen years of age—are as follows:

       (1) 18 Pa.C.S. §2901(a.1) (relating to kidnapping).

       (2) 18 Pa.C.S. §3121 (relating to rape).

       (3) 18 Pa.C.S. §3122.1(b) (relating to statutory sexual assault).

(…continued)
that is not set forth in this section, but nevertheless requires registration under a sexual
offender statute in the jurisdiction or foreign country. 42 Pa.C.S. §9799.14(b).
17
   The Tier II offenses enumerated in SORNA are as follows: 18 Pa.C.S. §3011(b)
(relating to trafficking in individuals); 18 Pa.C.S. §3122.1(a)(2) (relating to statutory
sexual assault); 18 Pa.C.S. §3124.2(a.2) and (a.3) (relating to institutional sexual
assault in schools or child care centers); 18 Pa.C.S. §3126(a)(2), (3), (4), (5), (6) or (8)
(relating to indecent assault when victim is over 13 years of age); 18 Pa.C.S. §5902(b.1)
(relating to prostitution and related offenses); 18 Pa.C.S. §5903(a)(3)(ii), (4)(ii), (5)(ii) or
(6) (relating to obscene and other sexual materials and performances); 18 Pa.C.S.
§6312(b) and (c); 18 Pa.C.S. §6318 (relating to unlawful contact with minor); 18 Pa.C.S.
§6320 (relating to sexual exploitation of children); 18 U.S.C. §1591 (relating to sex
trafficking of children by force, fraud or coercion); 18 U.S.C. §2243 (relating to sexual
abuse of a minor or ward); 18 U.S.C. §2244 (relating to abusive sexual conduct) where
the victim is 13 years of age or older but under 18 years of age; 18 U.S.C. §2251
(relating to sexual exploitation of children); 18 U.S.C. §2251A (relating to selling or
buying children); 18 U.S.C. §2252(a)(1), (2) or (3); 18 U.S.C. §2260 (relating to
production of sexually explicit depictions of a minor for importation into the United
States); 18 U.S.C. §2421 (relating to transportation generally); 18 U.S.C. §2422(b); 18
U.S.C. §2423(a); a comparable military offense or similar offense under the laws of
another jurisdiction or foreign country or under a former law of this Commonwealth; and
an attempt, conspiracy or solicitation to commit any of the above offenses. 42 Pa.C.S.
§9799.14(c).



                                     [J-121B-2016] - 24
      (4) 18 Pa.C.S. §3123 (relating to involuntary deviate sexual intercourse).

      (5) 18 Pa.C.S. §3124.1 (relating to sexual assault).

      (6) 18 Pa.C.S. §3124.2(a.1) [relating to institutional sexual assault].

      (7) 18 Pa.C.S. §3125 (relating to aggravated indecent assault).

      (8) 18 Pa.C.S. §3126(a)(7) (relating to indecent assault [of victim under 13
      years of age]).

      (9) 18 Pa.C.S. §4302(b) (relating to incest).

      (10) 18 U.S.C. §2241 (relating to aggravated sexual abuse).

      (11) 18 U.S.C. §2242 (relating to sexual abuse).

      (12) 18 U.S.C. §2244 [abusive sexual contact] where the victim is under
      13 years of age.

      (13) A comparable military offense or similar offense under the laws of
      another jurisdiction or foreign country or under a former law of this
      Commonwealth.

      (14) An attempt, conspiracy or solicitation to commit an offense listed in
      paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13).

      (15) (Reserved).

      (16) Two or more convictions of offenses listed as Tier I or Tier II sexual
      offenses.
42 Pa.C.S. §§9799.14(d).

      SORNA also establishes a statewide registry of sexual offenders to be created

and maintained by the state police. 42 Pa.C.S. §9799.16(a). The registry contains

information provided by the sexual offender, including: names and aliases, designations

used by the offender for purposes of routing or self-identification in internet

communications, telephone numbers, social security number, addresses, temporary

habitat if a transient, temporary lodging information, passport and documents

establishing immigration status, employment information, occupational and professional


                                   [J-121B-2016] - 25
licensing information, student enrollment information, motor vehicle information, and

date of birth. 42 Pa.C.S. §9799.16(b). The registry also contains information from the

state police, including the following: physical description of the offender, including a

general physical description, tattoos, scars and other identifying marks, text of the

statute defining the offense for which the offender is registered, criminal history

information, current photograph, fingerprints, palm prints and a DNA sample from the

offender, and a photocopy of the offender’s driver’s license or identification card. 42

Pa.C.S. §9799.16(c).

       Not only does SORNA establish a registry of sexual offenders, but it also directs

the state police to make information available to the public through the internet. 42

Pa.C.S. §9799.28. The resulting website “[c]ontains a feature to permit a member of

the public to obtain relevant information for an [offender] by a query of the internet

website based on search criteria including searches for any given zip code or

geographic radius set by the user.” 42 Pa.C.S. §9799.28(a)(1)(i). The website also

“[c]ontains a feature to allow a member of the public to receive electronic notification

when [an offender] provides [updated] information [and also allows] a member of the

public to receive electronic notification when [an offender] moves into or out of a

geographic area chosen by the user.” 42 Pa.C.S. §9799.28(a)(1)(ii). The Pennsylvania

website must coordinate with the Dru Sjodin National Sex Offender Public Internet

Website (https://www.nsopw.gov) and must be updated within three business days of

receipt of required information. 42 Pa.C.S. §9799.28(a)(1)(iii), (iv).

       In addition to the offender’s duty to appear at an approved registration site

annually, semi-annually, or quarterly, depending upon the tier of their offense, all

offenders are also required to appear in person at an approved registration site within

three business days of any changes to their registration information including a change




                                    [J-121B-2016] - 26
of name, residence, employment, student status, telephone number, ownership of a

motor vehicle, temporary lodging, e-mail address, and information related to

professional licensing. 42 Pa.C.S. §9799.15(g). Offenders must also appear in person

at an approved registration site within twenty-one days in advance of traveling outside

the United States and must provide dates of travel, destinations, and temporary lodging.

42 Pa.C.S. §9799.15(i). Furthermore, transients, i.e. homeless individuals, must appear

in person monthly until a residence is established.          42 Pa.C.S. §9799.15(h)(1).

Offenders who fail to register, verify their information at the appropriate time, or provide

accurate information are subject to prosecution and incarceration under 18 Pa.C.S.

§4915.1 (failure to comply with registration requirements). 42 Pa.C.S. §9799.21(a).


                                V. Federal Ex Post Facto Claim

       We lead with appellant’s federal claim in part because we recognize the General

Assembly enacted SORNA in response to federal legislation. We also recognize the

United States Supreme Court’s decision in Smith—which arose out of a federal ex post

facto challenge—guides our analysis. The United States Constitution provides: “No

State shall ... pass any … ex post facto Law. ...” U.S. CONST. art I §10. Our decision

regarding violation of this clause depends on a determination of whether SORNA’s

retroactive application to appellant constitutes punishment. Accordingly, we apply the

two-part analysis employed in Smith and Williams II. We first consider whether the

General Assembly’s “intent was to impose punishment, and, if not, whether the statutory

scheme is nonetheless so punitive either in purpose or effect as to negate the

legislature’s non-punitive intent.” Williams II, 832 A.2d at 971. If we find the General

Assembly intended to enact a civil scheme, we then must determine whether the law is

punitive in effect by considering the Mendoza-Martinez factors.          Id. at 972.    We

recognize only the “clearest proof” may establish that a law is punitive in effect. Lee,


                                    [J-121B-2016] - 27
935 A.2d at 876-77. Furthermore, in determining whether a statute is civil or punitive,

we must examine the law’s entire statutory scheme. Smith, 538 U.S. at 92.



                                   A. Intent of General Assembly

       Appellant contends although SORNA’s stated purpose is to protect the public,

the real intent of the General Assembly is to punish offenders. Appellant’s Brief at 9.

Appellant buttresses this argument by claiming SORNA’s statement of purpose

implicates “sexual offenders” who are classified solely by their criminal record rather

than the class of “sexually violent predators” to whom the former Megan’s Law statutes

applied, and which required an individualized determination of SVP status. Id. at 11.

Appellant also points out SORNA is entirely codified under the sentencing section of

Pennsylvania’s Crimes Code. Id. at 12-13. Finally, appellant argues, SORNA vests

administrative authority, not with a public safety department, but with the Pennsylvania

State Police, a traditional enforcer of criminal laws, and failure to comply with SORNA

results in arrest. Id. at 13-14.

       The Commonwealth concedes SORNA is broader in application than previous

Megan’s Law statutes, but nevertheless insists the statutes do not differ in purpose, as

SORNA explicitly provides the registration requirements shall not be construed as

punitive.   Commonwealth’s Brief at 15-16, citing 42 Pa.C.S. §9799.11(b)(2).             The

Commonwealth further contends since the statutory language regarding purpose is

unambiguous further interpretation of legislative intent should be avoided. Id. at 16.

       “In applying the first element of this test, the sole question is whether the General

Assembly’s intent was to punish.” Williams II, 823 A.2d at 971. This is a question of

statutory construction and “[w]e must consider the statute’s text and its structure to

determine the legislative objective.” Smith, 538 U.S. at 92, citing Flemming v. Nestor,




                                     [J-121B-2016] - 28
363 U.S. 603, 617 (1960). Furthermore, “considerable deference must be afforded to

the intent as the legislature has stated it.” Id. at 93. The General Assembly specifically

stated SORNA “provides a mechanism for the Commonwealth to increase its regulation

of sexual offenders in a manner which is nonpunitive but offers an increased measure of

protection to the citizens of this Commonwealth.”         42 Pa.C.S §9799.11(a)(2).   The

statute further states “the exchange of relevant information about sexual offenders ...

[is] a means of assuring public protection and shall not be construed as punitive.” 42

Pa.C.S. §9799.11(b)(2). Furthermore, the first listed purpose of SORNA is “[t]o bring

the Commonwealth into substantial compliance with the [federal] Adam Walsh Child

Protection and Safety Act of 2006.” 42 Pa.C.S. §9799.10(1). Nothing in the expressed

purpose, legislative findings, or declaration of policy of SORNA explicitly states the

legislature intended the law to do anything other than create a remedial civil scheme to

comply with federal legislation and protect the public.

       At the same time, we recognize the following aspects of SORNA are troubling

and actually cast doubt on the stated legislative intent: the act encompasses a much

broader class of offenders than Megan’s Law II, and includes relatively minor offenses

within its net; the act is codified within the sentencing section of the Crimes Code; and

the acts vests regulatory authority with the state police. However, we note the fact

SORNA encompasses a broad class of offenders is a reflection of the legislature’s

intent to comply with federal sex offender laws for funding purposes. Furthermore,

Megan’s Law II was also codified completely within the Crimes Code and also vested

regulatory authority in the state police. As such, we recognize the General Assembly’s

intent in enacting SORNA apparently was twofold: to comply with federal law; and, as

we stated in Williams II, “not to punish, but to promote public safety through a civil,

regulatory scheme.” Williams II, 832 A.2d at 972.




                                    [J-121B-2016] - 29
                                B. Mendoza-Martinez Factors

      As we have determined the intent of the General Assembly was to enact a civil

scheme, we now conduct an analysis of the Mendoza-Martinez factors to determine

whether SORNA is sufficiently punitive in effect to overcome the General Assembly’s

stated nonpunitive purpose. Williams II, 832 A.2d at 971.



           i. Whether the Statute Involves an Affirmative Disability or Restraint

      Appellant argues this factor weighs in favor of finding SORNA punitive as

SORNA differs from the Alaska statute upheld in Smith by requiring quarterly in-person

appearances and in-person appearances for any updates to an offender’s information.

Appellant contends even if he never changes his name, residence, employment, phone

number, car, or e-mail address, or goes on vacation, he still must appear a minimum of

100 times over twenty-five years, and for the rest of his life. Appellant’s Brief at 18,

citing 42 Pa.C.S. §9799.15. PACDL contends not only does SORNA impose major,

direct disabilities and restraints such as in-person reporting and updating requirements

that were not present in the statutes analyzed in Smith or Williams II, but it also imposes

extraordinary secondary disabilities in finding and keeping housing, employment, and

schooling, traveling out of state, and increases the likelihood the offender may be

subject to violence and adverse social and psychological impacts. PACDL’s Brief at 43-

45.

      The Commonwealth responds by arguing although it is true the Alaska statute

did not contain in-person reporting requirements, the Smith Court gave great weight to

the fact Alaska’s statute did “not restrain activities sex offenders may pursue but leaves

them free to change jobs or residences.” Commonwealth’s Brief at 19, quoting Smith,

538 U.S. at 100.       The Commonwealth further argues our Superior Court, in




                                   [J-121B-2016] - 30
Commonwealth v. Woodruff, 135 A.3d 1045 (Pa. Super. 2016), noted the Williams II

Court found monthly counseling sessions, which seem more onerous than SORNA’s

quarterly in-person reporting requirements, did not impose an affirmative disability or

restraint under Megan’s Law II. Commonwealth’s Brief at 20, citing Woodruff, 135 A.3d

at 1052-53. Although the Commonwealth acknowledges the Woodruff panel ultimately

found this factor weighed in favor of finding SORNA’s scheme to be punitive, the

Commonwealth nevertheless contends this Court, in light of its prior holding regarding

monthly counseling sessions in Williams II, should find this factor to weigh in favor of

determining SORNA is nonpunitive. Commonwealth’s Brief at 22.

       We are substantially aligned with appellant as to this factor. The Smith Court

found the Alaska statute did not involve an affirmative disability or restraint partly due to

the fact it does not require in-person updates. Smith, 538 U.S. at 102. We hold this

distinction from SORNA is important.       See, e.g., Perez, 97 A.3d at 753-54 (noting

Alaska statute did not require in-person updates and distinguishing SORNA where

Perez, a Tier II SORNA offender, was affirmatively required to report fifty times over

twenty-five-year period). As stated, appellant, who was retroactively required to register

as a Tier III offender under SORNA, is now required to appear in person at a

registration site four times a year, a minimum of 100 times over the next twenty-five

years, extending for the remainder of his life. See 42 Pa.C.S §9799.15(e)(3). In fact,

this is the minimum number of times appellant will have to appear in person, and does

not account for the times he must appear due to his “free” choices including “moving to

a new address or changing his appearance[.]”18 See 42 Pa.C.S. §9799.15(g); Perez, 97


18
   We are cognizant that restrictions on housing also arise from different statutes, such
as 42 U.S.C. §13663(a), which prohibits Tier III offenders, like appellant, from residing
in federally subsidized housing.



                                    [J-121B-2016] - 31
A.3d at 754.     Furthermore, a homeless offender, referred to in the statute as a

“transient,” is required to appear in person monthly, a minimum of 300 times over

twenty-five years. See 42 Pa.C.S. §9799.15(h)(1). The Commonwealth’s argument the

Williams II Court found more onerous monthly counseling sessions for sexually violent

predators were not an affirmative disability or restraint is unpersuasive. The Williams II

Court based its decision partly on the fact the counseling sessions requirement was

designed to “assist the sexually violent predator, who is likely to be impulsive,

irresponsible and burdened with poor behavioral controls, from relapsing into sexually

predatory behavior.” Williams II, 832 A.2d at 975 (footnote omitted). Under SORNA,

where there has been no finding that individuals subject to the in-person registration

requirements are sexually violent predators, subject to needed counseling, the in-

person appearances do not constitute counseling in any event. Thus, the reasoning on

this point in Williams II simply does not apply. As such, we find the in-person reporting

requirements, for both verification and changes to an offender’s registration, to be a

direct restraint upon appellant and hold this factor weighs in favor of finding SORNA’s

effect to be punitive.



         ii. Whether the Sanction Has Been Historically Regarded as Punishment

       Appellant also contends the requirements of SORNA closely parallel historical

forms of punishment such as probation and parole since the in-person reporting

requirements are similar to meeting with a probation officer, and sex offenders also

have a reduced expectation of privacy under the statute. Appellant’s Brief at 19-20,

citing 42 Pa.C.S. §9799.11(a)(5). Appellant notes this is a distinct difference from the

Alaska statute at issue in Smith where the High Court rejected such an argument on the

basis the Alaska statute contained no mandatory conditions comparable to probation.




                                   [J-121B-2016] - 32
Appellant’s Brief at 19, citing Smith, 538 U.S. at 101. PACDL posits the stated purpose

of both probation and SORNA is to promote public safety, both rest on the assumption

the individual requires supervision, both are imposed by the trial court at the time of

sentencing and are part of the Sentencing Code, both require regular, in-person

appearances, and both probationers and registrants must comply or face sanctions.

PACDL’s Brief at 46-47.19      PACDL also contends SORNA is similar to shaming

punishments and has been recognized as such by other jurisdictions. PACDL argues

historical shaming punishments involved the public disclosure of similar information

about offenders and SORNA’s declaration that all registrants are “sex offenders” and

“high risk” is akin to a scarlet letter which the offender has no mechanism to dispute. Id.

at 47-48.

         The Commonwealth contends although SORNA registration may be like some

probationary terms, probation takes many forms and can be much more burdensome

than SORNA’s requirements. Commonwealth’s Brief at 24. The Commonwealth also

argues should the Court find this factor weighs in favor of finding SORNA punitive, the

factor should be given little weight as probation is the least onerous and newest form of

traditional punishment.    Id. at 23-25, citing Woodruff, 135 A.3d at 1055.           The

Commonwealth also contends registration is not similar to shaming as the public display

is not for the purpose of ridicule, but instead to inform the public for its own safety.

Commonwealth’s Brief at 25-26, citing Kammerer v. State, 322 P.3d 827, 835-36 (Wyo.

2014).



19
   PACDL also notes other jurisdictions have held sex offender registration laws are
similar to probation. PACDL’s Brief at 46, citing Doe v. Dep’t of Pub. Safety & Corr.
Serv., 62 A.3d 123 (Md. 2013); Wallace v. State, 905 N.E.2d 371 (Ind. 2009); Doe, 189
P.3d 999.



                                   [J-121B-2016] - 33
       The United States Supreme Court has distinguished colonial-era public shaming

punishments from sex offender registration laws by noting public shaming “involved

more than the dissemination of information” but also “held the person up before his

fellow citizens for face-to-face shaming or expelled him from the community.” Smith,

538 U.S. at 98. The Smith Court found the sex offender information disseminated

through the Alaska statute is accurate and, for the most part, already public. Id. The

Court noted the publicity may cause embarrassment or ostracism for the convicted, but

found “the publicity and resulting stigma [is not] an integral part of the objective of the

regulatory scheme.” Id. at 99. The Court also stated the fact the information is posted

on the internet did not alter its conclusion since the intent of the posting is to inform the

public for its own safety, the website itself does not provide the public with a means to

shame the offender, and members of the public must affirmatively seek out the

information. Id.

       As stated above, we recognize the significance of the Smith Court’s decision with

regard to its analysis of the Alaska statute. However, Smith was decided in an earlier

technological environment.     The concurring expression by now-Justice Donohue in

Perez has particular force on this point:
       The environment has changed significantly with the advancements in
       technology since the Supreme Court’s 2003 decision in Smith. As of the
       most recent report by the United States Census Bureau, approximately 75
       percent of households in the United States have internet access.
       Yesterday’s face-to-face shaming punishment can now be accomplished
       online, and an individual’s presence in cyberspace is omnipresent. The
       public internet website utilized by the Pennsylvania State Police
       broadcasts worldwide, for an extended period of time, the personal
       identification information of individuals who have served their “sentences.”
       This exposes registrants to ostracism and harassment without any
       mechanism to prove rehabilitation—even through the clearest proof. In
       my opinion, the extended registration period and the worldwide
       dissemination of registrants’ information authorized by SORNA now
       outweighs the public safety interest of the government so as to disallow a
       finding that it is merely regulatory.


                                    [J-121B-2016] - 34
Perez, 97 A.3d at 765-66 (Donohue, J., concurring).

       Furthermore, although the Smith Court ultimately rejected the argument Alaska’s

registration system was like probation because it did not impose mandatory conditions,

the High Court nevertheless recognized the argument has “some force” and the

argument is therefore even more compelling where SORNA does impose such

conditions. See Id. at 763 (Donohue, J. concurring), citing Smith, 538 U.S. at 101. It is

clear the Alaska statute at issue in Smith and SORNA are materially different in this

regard. As our analysis of the similarity to probation would be nearly identical to Justice

Donohue’s analysis of the issue in Perez, we again quote from her concurring opinion

with minimal, bracketed, differences arising out of appellant’s status as a Tier III

offender:
       In contrast, the mandatory in-person verification requirement in Section
       9799.15(e) not only creates an affirmative restraint upon [appellant],
       requiring him to appear at a designated facility a minimum of [100] times
       over the next 25 years[, extending for the remainder of his life,] as a Tier
       [III] offender, but also greatly resembles the periodic meetings with
       probation officers imposed on probationers. … [B]ecause SORNA differs
       significantly from the statute at issue in Smith, these disparities must be
       considered.
           In [Williams II,] the Pennsylvania Supreme Court found that probation
       has historically been considered a traditional form of punishment.
       Williams [II], 832 A.2d at 977. Probation entails a set of mandatory
       conditions imposed on an individual who has either been released after
       serving a prison sentence, or has been sentenced to probation in lieu of
       prison time. 42 Pa.C.S. §9754. These conditions can include psychiatric
       treatment, limitations on travel, and notifying a probation officer when any
       change of employment or residency occurs. 42 Pa.C.S. §9754(c).
       Probationers are also subject to incarceration for a violation of any
       condition of their probation. 42 Pa.C.S. §9771.
           Like the conditions imposed on probationers, registrants under SORNA
       must notify the state police of a change in residence or employment. 42
       Pa.C.S. §9799.15(g). Offenders also face incarceration for any non-
       compliance with the registration requirements. 42 Pa.C.S. §9799.22(a).
       Furthermore, SORNA requires registrants who do not have a fixed place
       of work to provide “general travel routes and general areas where the
       individual works” in order to be in compliance. 42 Pa.C.S. §9799.16. The


                                   [J-121B-2016] - 35
       Supreme Court in Smith stated that “[a] sex offender who fails to comply
       with the reporting requirement may be subjected to criminal prosecution
       for that failure, but any prosecution is a proceeding separate from the
       individual’s original offense.” Smith, 538 U.S. at 101-02. However,
       violations for noncompliance with both probation and SORNA registration
       requirements are procedurally parallel. Both require further factual
       findings to determine whether a violation has actually occurred. 42
       Pa.C.S. §§9771(d), 9799.21. Similarly, but for the original underlying
       offense, neither would be subject to the mandatory conditions from which
       the potential violation stems.      The parallels between the SORNA
       registration requirements and probation lead me to conclude that factor
       two of the [Mendoza-Martinez] test leans towards a finding that SORNA is
       punitive.

See Perez, 97 A.3d at 763-64 (Donohue, J. concurring).

       We conclude the weighing process with regard to this Mendoza-Martinez factor

presents a much closer case than the Smith Court’s analysis of Alaska’s registration

statute in 2003. We consider SORNA’s publication provisions—when viewed in the

context of our current internet-based world—to be comparable to shaming punishments.

We also find SORNA and the Alaska statute are materially different in their mandatory

conditions such that SORNA is more akin to probation. We therefore hold this factor

weighs in favor of finding SORNA’s effect to be punitive.



          iii. Whether the Statute Comes into Play Only on a Finding of Scienter

       Appellant presents no argument on this factor, noting the Smith Court did not

analyze it because it carried little weight in determining the punitive nature of the Alaska

statute. Appellant’s Brief at 20, citing Smith, 538 U.S. at 105. The Commonwealth

agrees with appellant. On the other hand, PACDL argues the question of scienter does

weigh in favor of finding SORNA is punitive because registration flows directly from a

finding of guilt, which requires a particular mental state. PACDL’s Brief at 49, citing

Smith, 538 U.S. at 105.      We recognize that where the concern of a sex offender

registration statute like SORNA is protecting the public against recidivism, past criminal



                                    [J-121B-2016] - 36
conduct is “a necessary beginning point.” Smith, 538 U.S. at 105. As such, we agree

with the Smith Court in finding this factor is of little significance in our inquiry. See id.


         iv. Whether the Operation of the Statute Promotes the Traditional Aims of
                                    Punishment
       Appellant next argues SORNA operates to promote the traditional aims of

punishment—retribution and deterrence.          Appellant’s Brief at 20.     Appellant argues

SORNA promotes deterrence much like incarceration and probation do; the prospect of

being labeled a sex offender accompanied by registration requirements and the public

dissemination of personal information on the internet will deter the commission of sex

offenses. Id. Appellant further argues SORNA has retributive aspects since it applies

only after an individual commits a crime, and the additional punishment for failure to

register or provide accurate information, see 18 Pa.C.S. §4915.1, is also related to

retribution.   Appellant’s Brief at 21.        Appellant contends distribution of private

information online also exacts retribution.        Id. at 21-23.     To this point, appellant

recognizes the Smith Court stated the dissemination of accurate information may

properly flow from an offender’s conviction, which is a matter of public record. Id. at 22.

However, appellant notes the information disseminated under SORNA goes beyond

conviction data and includes sufficient information to allow members of the public to

harass an offender, and thus endanger public safety. Id. at 22-23.

       PACDL posits SORNA is designed to have deterrent and retributive effects.

PACDL notes deterrence is an obvious goal of sex offender registration laws. PACDL’s

Brief at 50, citing Commonwealth v. Gehris, 54 A.3d 862, 878 (Pa. 2012) (Castille, C.J.,

opinion in support of reversal). PACDL also contends the analysis here is different from

that in Williams II as SORNA is different from Megan’s Law II in significant ways; many

SORNA offenses are misdemeanors where lengthy incarceration is unlikely and often



                                      [J-121B-2016] - 37
impossible, and thus SORNA is the greatest form of deterrence for those crimes.

PACDL’s Brief at 50-51.       As to retribution, PACDL posits registration is imposed

automatically upon a conviction regardless of the underlying circumstances or the actual

risk an offender may offend again. PACDL’s Brief at 49-50. Thus, PACDL argues,

SORNA exacts retribution for past crimes without regard to public safety interests. Id. at

50.

       The Commonwealth acknowledges SORNA has a deterrent purpose and effect.

Commonwealth’s Brief at 28-29. However, the Commonwealth argues finding SORNA

punitive (and thus incapable of retroactive application) would undermine the state’s

ability to regulate offenders and the risk of recidivism is too great a price to pay. Id. at

29, citing Smith, 538 U.S. at 102. The Commonwealth cites several studies which state

sex offender recidivism rates are difficult to measure and are likely underreported, and

as such, recidivism remains a valid legislative concern. Commonwealth’s Brief at 29-

30. The Commonwealth further contends results of studies may vary because the area

is vast and complex; thus courts and legislatures have consistently relied on information

demonstrating recidivism is a significant concern for adult offenders. Id. at 31, citing

United States v. Irey, 612 F.3d 1160, 1214-15 (11th Cir. 2010) (citing cases raising

concerns over sex offender recidivism).      The Commonwealth contends, because of

contrasting studies and real recidivism concerns, this Court should be wary of PACDL’s

contrary conclusions. Commonwealth’s Brief at 33.

       We are substantially aligned with appellant as to this factor, especially in light of

the Commonwealth’s concession that SORNA is meant to have a deterrent effect. We

agree that the prospect of being labeled a sex offender accompanied by registration

requirements and the public dissemination of an offender’s personal information over

the internet has a deterrent effect. We are also cognizant that “the mere presence of a




                                    [J-121B-2016] - 38
deterrent purpose” does not “render such sanctions ‘criminal’.” Smith, 538 U.S. at 102.

On careful consideration, however, we cannot say there is only a “mere presence” of a

deterrent effect embodied in SORNA. See id. (emphasis added). Contrary to Megan’s

Law II, as analyzed in Williams II, there is not a “substantial period of incarceration

attached to” many of the predicate offenses requiring registration under SORNA, many

of which are misdemeanors or carry relatively short maximum terms of incarceration.20

Williams II, 832 A.2d at 978. This includes interference with custody of children, 18

Pa.C.S. §2904, a misdemeanor of the second degree which does not have a sexual

component, and yet is a Tier I offense under SORNA. See 42 Pa.C.S. §9799.14(b)(3).

A conviction under this subsection may not lead to incarceration, but would

nevertheless require registration as a sex offender for a fifteen year period. In such a

case, and for many other predicate offenses listed in the tier system, SORNA clearly

aims at deterrence.21

      Although we recognize both the High Court in Smith and this Court in Williams II

found sex offender laws generally do not have a retributive purpose, we note there was


20
    SORNA predicate offenses that may be graded as misdemeanors under
Pennsylvania law are as follows: interference with custody of children, 18 Pa.C.S.
§2904; luring a child into a motor vehicle or structure, 18 Pa.C.S. §2910; indecent
assault, 18 Pa.C.S. §3126(a)(1)-(6), (8); invasion of privacy, 18 Pa.C.S. §7507.1(b); and
obscene and other sexual materials and performances, 18 Pa.C.S. §5903(a)(3)(ii),
(4)(ii), (5)(ii), (6). SORNA predicate offenses that may have a maximum incarceration
term of two years or less under federal law are as follows: video voyeurism, 18 U.S.C.
§1801; misleading domain names on the internet, 18 U.S.C. §2252B; and abusive
sexual conduct, 18 U.S.C. §2244.
21
  We recognize interference with custody of children is not an example on all fours with
the present situation, as appellant is a Tier III offender and, in any event, many of the
other minor offenses listed in the tier system do include sexual components. However,
the Smith Court made clear we must examine the law’s entire statutory scheme when
determining whether a statute is truly civil or creates instead a punitive effect. Smith,
538 U.S. at 92. Thus, each and every predicate offense is relevant to our analysis.



                                   [J-121B-2016] - 39
minimal analysis on this point in either decision.     Retribution, in its simplest terms,

“affix[es] culpability for prior criminal conduct,” Hendricks, 521 U.S. at 362, and in fact,

SORNA is applicable only upon a conviction for a predicate offense. We recognize the

Smith Court stated the dissemination of accurate, public record information, even over

the internet, did not alter its conclusion that the Alaska statute did not have a punitive

effect. However, the information SORNA allows to be released over the internet goes

beyond otherwise publicly accessible conviction data and includes: name, year of birth,

residence address, school address, work address, photograph, physical description,

vehicle license plate number and description of vehicles.               See 42 Pa.C.S.

§9799.28(b)(1)-(8).    Moreover, although the Williams II Court determined the

dissemination of registration information provided by sexually violent predators under

Megan’s Law II was necessary to protect the public, the Court expressly stated the

public notification and electronic dissemination provisions of that statute “need not be

read to authorize public display of the information, as on the Internet.” Williams II, 832

A.2d at 980. SORNA has increased the length of registration, contains mandatory in-

person reporting requirements, and allows for more private information to be displayed

online. Perez, 97 A.3d at 765 (Donohue, J. concurring). Under the circumstances, we

conclude SORNA is much more retributive than Megan’s Law II and the Alaska statute

at issue in Smith, and this increase in retributive effect, along with the fact SORNA’s

provisions act as deterrents for a number of predicate offenses, all weigh in favor of

finding SORNA punitive.



         v. Whether the Behavior to which the Statute applies is Already a Crime

       Appellant concedes this factor does not carry much weight, but suggests it does

weigh in favor of finding the statute punitive. Appellant’s Brief at 23, citing Smith, 538




                                    [J-121B-2016] - 40
U.S. at 105. PACDL notes SORNA applies only after an individual has been convicted

of a predicate crime and the registration requirements cannot be waived if the offender

poses little or no risk; PACDL concludes this means the factor weighs in favor of finding

SORNA is punitive. PACDL’s Brief at 51. The Commonwealth responds by contending

Smith should control here and this factor is of little weight. Commonwealth’s Brief at 35,

citing Smith, 538 U.S. at 105. As with the third Mendoza-Martinez factor discussed

above, this factor carries little weight in the balance.    We again recognize where

SORNA is aimed at protecting the public against recidivism, past criminal conduct is “a

necessary beginning point.” See Smith, 538 U.S. at 105.


           vi. Whether there is an Alternative Purpose to which the Statute may be
                                 Rationally Connected
         Appellant concedes this factor weighs in favor of finding SORNA to be

nonpunitive as there is a rational connection to public safety and health. Appellant’s

Brief at 24. PACDL, however, submits SORNA is not rationally related to a nonpunitive

purpose. PACDL contends most offenders will not commit another sexual offense, and

SORNA therefore produces an illusion of security from stranger perpetrators when the

majority of sexual crimes are committed by someone known to the victim. PACDL

further argues SORNA diverts law enforcement efforts away from the most serious

offenders and from effective methods of crime control and treatment. PACDL’s Brief at

51-53.

         The Commonwealth reiterates its recidivism-based arguments to conclude

SORNA is rationally connected to the goals of public safety and health.

Commonwealth’s Brief at 35-37. Amicus PDAA posits appellant is misguided in asking

this Court to second-guess legislative judgment since there is no absolute truth when it

comes to the risk posed by sexual offenders. PDAA’s Brief at 11-12. PDAA cites



                                   [J-121B-2016] - 41
studies that have found nearly forty percent of sexual offenders released from prison

return to prison within three years for sexual offenses. Id. at 12. PDAA also contends

any attempt to measure recidivism greatly understates the problem as the wide majority

of sexual offenses are never reported. Id. at 13-15. PDAA concludes although there is

no perfect solution to this problem, as with most policy problems, the General Assembly

should be afforded deference in its judgment regarding a complex issue of social policy.

Id. at 16-17.

       We recognize there are studies which find the majority of sexual offenders will

not re-offend, and that sex offender registration laws are ineffective in preventing re-

offense; we also recognize there are studies that reach contrary conclusions. In this

context, we find persuasive PDAA’s argument that policy regarding such complex

societal issues, especially when there are studies with contrary conclusions, is ordinarily

a matter for the General Assembly. See e.g., Commonwealth v. Hale, 128 A.3d 781,

785 (Pa. 2015) (where “substantial policy considerations” are involved “such matters are

generally reserved … to the General Assembly”).           The General Assembly made

legislative findings that “[s]exual offenders pose a high risk of committing additional

sexual offenses and protection of the public from this type of offender is a paramount

governmental interest.”    42 Pa.C.S. §9799.11(a)(4).       Although there are contrary

scientific studies, we note there is by no means a consensus, and as such, we defer to

the General Assembly’s findings on this issue. We are also cognizant that the General

Assembly legislated in response to a federal mandate based on the expressed purpose

of protection from sex offenders. See 42 U.S.C. §16901 (“In order to protect the public

from sex offenders and offenders against children, and in response to the vicious

attacks by violent predators against the victims listed below, Congress in this chapter

establishes a comprehensive national system for the registration of those offenders




                                   [J-121B-2016] - 42
.…”). We therefore conclude there is a purpose other than punishment to which the

statute may be rationally connected and this factor weighs in favor of finding SORNA to

be nonpunitive.


       vii. Whether the Statute is Excessive in Relation to the Alternative Purpose
                                     Assigned
      Appellant notes the Williams II Court considered the fact there was no means

under Megan’s Law II for a judicially-determined sexually violent predator to

demonstrate he no longer posed a substantial risk to the community—and thus escape

lifetime registration—to be “troubling.” Appellant’s Brief at 25, quoting Williams II, 832

A.2d at 982-83. However, the Williams II Court ultimately found the record in that case

did not include any information concerning the successful treatment of sexually violent

predators to support a finding this effectively permanent requirement was excessive,

given the presumption Megan’s Law II was constitutional. Williams, 832 A.2d at 983.

Appellant distinguishes SORNA because it does not require any judicial determination

that offenders are sexually violent predators before applying its most severe

requirements, and instead subjects all offenders within Tier III to the same reporting

requirements as a sexually violent predator under Megan’s Law II. Appellant’s Brief at

25-26, citing Williams II, 832 A.2d at 983.    Appellant contends SORNA’s terms are

excessive in this regard and he will never be able to overcome the presumption there is

a high risk he will commit another sexual offense. Appellant’s Brief at 25-26.

      PACDL also contends SORNA is excessive and significantly over-inclusive as it

casts a global net which sweeps into the sex offender registry many minor and non-

sexual offenses.    PACDL’s Brief at 53.      PACDL asserts SORNA is ineffective in

determining risk as it does not even require a risk assessment; PACDL notes this Court

has found imprecision even in risk assessments. Id. at 54, citing Lee, 935 A.2d at 885.



                                   [J-121B-2016] - 43
       The   Commonwealth responds by contending appellant’s excessiveness

argument lacks merit as his registration requirements are not as severe as those of a

sexually violent predator under SORNA, who must attend monthly counseling sessions

and be monitored by the State Sexual Offenders Assessment Board. Commonwealth’s

Brief at 37-38, citing Woodruff, 135 A.3d at 1061. The Commonwealth further notes

sexually violent predators are subject to additional public notification procedures and

publication on the internet of even more private information, including where they eat,

spend time, and engage in leisure activities. Commonwealth’s Brief at 38, citing 42

Pa.C.S. §§9799.27, 9799.28. The Commonwealth further notes the Williams II Court

was concerned with excessiveness in the process by which courts determine whether or

not an offender is a sexually violent predator rather than the excessiveness of the

reporting conditions per se. Commonwealth’s Brief at 39, citing Williams II, 832 A.2d at

982.

       Once again, we are aligned with the arguments of appellant and PACDL. The

Williams II Court observed with regard to Megan’s Law II, “if the Act’s imprecision is

likely to result in individuals being deemed sexually violent predators who in fact do not

pose the type of risk to the community that the General Assembly sought to guard

against, then the Act’s provisions could be demonstrated to be excessive .…” Williams

II, 832 A.2d at 983. Furthermore, “‘society has a significant interest in assuring that the

classification scheme [of a sex offender registration law] is not over-inclusive.’” Lee,

935 A.2d at 883, quoting Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003).

We apply this reasoning here, and we do not analyze excessiveness as applied only to

appellant or sexually violent predators, but instead we examine SORNA’s entire

statutory scheme.    Smith, 538 U.S. at 92.     Moreover, we have already recognized

SORNA categorizes a broad range of individuals as sex offenders subject to its




                                   [J-121B-2016] - 44
provisions, including those convicted of offenses that do not specifically relate to a

sexual act.   See, e.g., 42 Pa.C.S. §9799.14(b)(1)-(3), (19) (pertaining to: unlawful

restraint, 18 Pa.C.S. §2902(b); false imprisonment, 18 Pa.C.S. §2903(b); interference

with custody of a child, 18 Pa.C.S. §2904; filing factual statement about alien individual,

18 U.S.C. §2424). Accordingly, we conclude SORNA’s requirements are excessive and

over-inclusive in relation to the statute’s alternative assigned purpose of protecting the

public from sexual offenders.



                                   viii. Balancing of Factors

       Our review of SORNA under the Mendoza-Martinez factors reveals significant

differences between Pennsylvania’s most recent attempt at a sex offender registration

statute and the statutes upheld in Williams II and Smith. As stated, we have determined

four of the five factors to which we have given weight—all except for whether there is an

alternative purpose to which the statute may be rationally connected—weigh in favor of

finding SORNA to be punitive in effect despite its expressed civil remedial purpose. We

conclude SORNA involves affirmative disabilities or restraints, its sanctions have been

historically regarded as punishment, its operation promotes the traditional aims of

punishment, including deterrence and retribution, and its registration requirements are

excessive in relation to its stated nonpunitive purpose.        Accordingly, we hold the

retroactive application of SORNA to appellant violates the ex post facto clause of the

United States Constitution.




                                   [J-121B-2016] - 45
                               VI. State Ex Post Facto Claim

      Having found retroactive application of SORNA violates the federal ex post facto

clause, we might end our analysis here.      See, e.g., Rose, 127 A.3d at 798 n.11

(standards applied to determine ex post facto violations under state and federal clauses

are comparable; law that violates federal ex post facto clause will be held to violate

state clause such that Court “need not separately consider” it); Commonwealth v.

Gaffney, 733 A.2d 616, 621 (Pa. 1999) (language of federal and state ex post facto

clauses “virtually identical,” same concerns shaped them, and “virtually identical

standards have applied to determining whether” ex post facto violation has occurred

under the two provisions).     However, appellant presented a state constitutional

challenge, of which we expressly granted review, and the parties and amici forwarded

developed arguments on this claim. But see Perez, 97 A.3d at 766 (state ex post facto

claim waived). Moreover, we are cognizant of the difficulties arising in the wake of a

decision from this Court based exclusively on federal grounds, which is subsequently

appealed to the United States Supreme Court and remanded after a contrary decision

regarding the federal constitution; inevitably, a state claim follows and a decision

rendered by this Court only after intervening uncertainty and delay. Compare Pap’s

A.M. t/d/b/a Kandyland v. City of Erie, 719 A.2d 273 (Pa. 1998) (striking down nude

dancing ordinance on basis of federal First Amendment protections; state constitutional

claim not reached), reversed by City of Erie v. Pap’s A.M. t/d/b/a Kandyland, 529 U.S.

277 (2000) (upholding nude dancing ordinance as content-neutral and not violative of

federal free speech protections) with Pap’s A.M. t/d/b/a Kandyland v. City of Erie, 812

A.2d 591 (Pa. 2002) (nude dancing ordinance violates Pennsylvania Constitution free

speech provision). See also Doe, 189 P.3d 999 (upon remand from United States




                                  [J-121B-2016] - 46
Supreme Court, retroactive application of Alaska’s sex offender registration law held

unconstitutional under state ex post facto clause).

      We are also aware our decision that SORNA violates the federal ex post facto

clause is a departure from federal case law which has upheld the Adam Walsh Act

against federal ex post facto challenges. See, e.g., United States v. Young, 585 F.3d

199, 203-06 (5th Circ. 2009) (retroactive application of federal SORNA does not violate

federal ex post facto clause); United States v. May, 535 F.3d 912, 919-20 (8th Circ.

2008) (same), cert denied, May v. United States, 556 U.S. 1258 (2009), abrogated on

other grounds by Reynolds v. United States, 565 U.S. 432 (2012).               Under the

circumstances, we consider it salutary to decide appellant’s state constitutional

challenge, and our approach is not unprecedented. See Commonwealth v. Kohl, 615

A.2d 308, 315 (Pa. 1992) (“While we have held that the searches authorized by

§1547(a)(2) violate the Federal Constitution, the constitutionality of the searches under

Article I, section 8 must be addressed also.          We conclude that the searches are

impermissible under the Pennsylvania Constitution. The analysis underlying our holding

is separate and independent from the analysis undertaken under the Federal

Constitution. Therefore, our holding under the Pennsylvania Constitution would remain

unchanged should the U.S. Supreme Court resolve the issue contrary to our analysis of

the federal constitutional question.”). Accordingly, we proceed to determine whether the

Pennsylvania Constitution provides even greater ex post facto protections than its

federal counterpart by analyzing 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; and 4) policy considerations, including unique issues




                                   [J-121B-2016] - 47
of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Edmunds, 586 A.2d at 894-95 (Pa. 1991).22




22
   We note the Adam Walsh Act—pursuant to which SORNA was enacted — anticipates
the possibility that state compliance with the federal mandate might violate a state’s
constitution, and provides for the possibility that a penalty for noncompliance might not
apply in such situations. See 42 U.S.C. §16925(b)(1) (“When evaluating whether a
jurisdiction has substantially implemented this subchapter, the Attorney General shall
consider whether the jurisdiction is unable to substantially implement this subchapter
because of a demonstrated inability to implement certain provisions that would place the
jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction’s
highest court.”). Our analysis on state grounds averts the “consultation” procedure
intended to determine whether compliance with the federal legislation might violate a
state’s own constitution: “In considering whether compliance with the requirements of
this subchapter would likely violate the jurisdiction’s constitution or an interpretation
thereof by the jurisdiction’s highest court, the Attorney General shall consult with the
chief executive and chief legal officer of the jurisdiction concerning the jurisdiction’s
interpretation of the jurisdiction’s constitution and rulings thereon by the jurisdiction’s
highest court.” See 42 U.S.C. §16925(b)(2). In the event the state’s constitution is
violated by compliance, the federal statute allows for “reasonable alternative procedures
or accommodations” such that the state might avoid reduced federal funding. 42 U.S.C.
at §16925(b)(3). Parenthetically, we recognize the federal statute does not expressly
require retroactivity but instead authorizes the Attorney General to specify such
applicability. See 42 U.S.C. §16913(d) (“The Attorney General shall have the authority
to specify the applicability of the requirements of this subchapter to sex offenders
convicted before the enactment of this chapter[.]”). We further note the Attorney
General has promulgated national guidelines which require states to include retroactive
application as part of the federal SORNA requirements; thus the noncompliance
provisions are implicated here. See 73 FR 38030-01 at 38046-47 (July 2, 2008)
(“Accordingly, a jurisdiction will be deemed to have substantially implemented the
SORNA standards with respect to sex offenders whose predicate convictions predate
the enactment of SORNA or the implementation of SORNA in the jurisdiction’s program
if it registers these sex offenders, when they fall within any of the three classes
described above, in conformity with the SORNA standards”.)




                                     [J-121B-2016] - 48
                                             A. Text

       The Pennsylvania Constitution provides, in pertinent part: “No ex post facto law

... shall be passed.” PA. CONST. art. I §17. It is clear, as the Commonwealth argues, the

text of the federal and state constitutions are nearly identical and we have recognized

“the same pre-revolutionary-war concerns shaped the ex post facto provisions of the

constitutions of Pennsylvania and the United States.” See Young, 637 A.2d at 1317

n.7. However, “we are not bound to interpret the two provisions as if they were mirror

images, even where the text is similar or identical.” Edmunds, 586 A.2d at 895-96.

Moreover, as amicus PACDL contends, the different location of the clauses within each

document “speaks volumes.” PACDL’s Brief at 37. The location of Pennsylvania’s

clause within the Declaration of Rights lends considerable force to the argument it

provides even more protection than its federal counterpart.          See Gondelman v.

Commonwealth, 554 A.2d 896, 904 (Pa. 1989) (“those rights enumerated in the

Declaration of Rights are deemed to be inviolate and may not be transgressed by

government”); see also PA. CONST. art. 1, §25 (“To guard against transgressions of the

high powers which we have delegated, we declare that everything in this article is

excepted out of the general powers of government and shall forever remain inviolate.”).



                                           B. History

       Appellant next argues the history of Pennsylvania’s ex post facto clause,

including relevant case law, also weighs in favor of finding it provides greater protection

than its federal counterpart, despite the fact this Court declined to make this distinction

in Gaffney, 733 A.2d at 616. In Gaffney, this Court held the retroactive application of

Megan’s Law I did not violate the state or federal ex post facto clauses. Id. at 621-22.

Appellant distinguishes Gaffney by noting reputation interests were not at issue




                                   [J-121B-2016] - 49
because Gaffney’s sexual offender registration information was not to be disseminated

to the public under that statute. Appellant’s Brief at 29, citing Gaffney, 733 A.2d at 621.

Appellant argues this Court has recognized reputation as a protected interest in other

contexts under state law, see, e.g., Hatchard v. Westinghouse Broadcasting Co., 532

A.2d 346, 350 (Pa. 1987), and although the federal constitution does not provide such

express protection of reputation rights, this Court recently recognized an individual’s

right to reputation may be encroached by sex offender registration laws that brand

offenders with the “indelible mark of a dangerous recidivist.” Appellant’s Brief at 29,

quoting J.B., 107 A.3d at 17, 19 (“SORNA registration requirements, premised upon the

presumption that all sexual offenders pose a high risk of recidivating, impinge upon

juvenile offenders’ fundamental right to reputation as protected under the Pennsylvania

Constitution.”).

       Moreover, PACDL notes, the Pennsylvania ex post facto clause was adopted ten

years prior to its federal counterpart, and Pennsylvania historically took a different

approach towards punishment, diverting away from the nationally accepted view of

corporal punishment as the norm much earlier than other jurisdictions. PACDL’s Brief

at 38-39, citing Robert R. Tyson, Essay on the Penal Law of Pennsylvania, Law

Academy of Philadelphia 9-13 (1827).        PACDL further argues the most significant

difference between federal and state ex post facto case law is this Court has stated the

two constitutions “afford separate bases for proscribing ex post facto laws.” Id. at 39,

citing Lehman v. Pa. State Police, 839 A.2d 265, 270 n.4 (Pa. 2003) (denial of firearm

application based on prior conviction was not punishment and did not violate state or

federal ex post facto clauses).    Finally, PACDL asserts this Court, in its decisions

discussing the ex post facto clause, has stated the seventh Mendoza-Martinez factor,

excessiveness, may alone be dispositive of a punitive finding in Pennsylvania.




                                   [J-121B-2016] - 50
PACDL’s Brief at 39, citing Lee, 935 A.2d at 876 n.24 (excessiveness alone might

warrant finding Megan’s Law II requirements are punitive); Williams II, 832 A.2d at 982-

83 (leaving open possibility of excessiveness as determinative factor).

         The Commonwealth responds by arguing historical considerations do not

distinguish the state clause from its federal counterpart, and that this Court’s statements

regarding excessiveness standing alone to support a finding a statute has punitive

effect do not undermine the United States Supreme Court’s expression that no single

Mendoza-Martinez factor is exhaustive or dispositive. See Hudson, 522 U.S. at 101.

The Commonwealth also rejects appellant’s reputation-based argument by noting J.B.

was confined to the unique reputation concerns for juvenile offenders and does not

apply to adults who have a higher likelihood of recidivating. Commonwealth’s Brief at

46-47.

         Although we acknowledge both the state and federal ex post facto clauses were

shaped from the same pre-revolutionary war concerns, this Court has nevertheless

noted divergence between the clauses in the past, particularly with regard to defining

punishment on the basis of excessiveness.        See, e.g., Lee, 935 A.2d at 876 n.24

(“There is some tension between the Hudson language [that no Mendoza-Martinez

factor is controlling] and our own suggestion in [Williams II], which postdated Hudson

by over five years, that the last Mendoza-Martinez factor alone might render Megan's

Law unconstitutional provided an adequate showing. We nonetheless suggested in

[Williams II] and maintain now, if only arguendo, that a showing of sufficient

excessiveness in Megan's Law II’s [Registration, Notification, and Counseling]

provisions might warrant a finding that those provisions are punitive.”). We further find

persuasive in our comparison of the history of the two ex post facto clauses the fact that

the Pennsylvania Constitution includes reputation as a fundamental right, see Hatchard,




                                   [J-121B-2016] - 51
532 A.2d at 350, and conclude this factor militates in favor of holding the Pennsylvania

clause is even more protective than its federal counterpart.



                                C. Case Law from Other States

       Appellant argues courts in Maryland, Indiana, and Alaska have considered the

public’s perception and treatment of sex offenders when holding such statutes are

unconstitutional under their respective state constitutions, even in the absence of a

reputation clause like Pennsylvania’s which categorizes reputation as an inherent right.

Appellant’s Brief at 30-31, citing Doe v. Dept. of Public Safety & Correctional Services,

62 A.3d 123, 140 (Md. 2013) (sex offender statute’s information dissemination

provisions have same effect as public shaming); Wallace v. State, 905 N.E.2d 371, 380

(Ind. 2009) (aggressive notification provisions expose registrants to humiliation and

ostracism); Doe, 189 P.3d at 1011-12 (offenders lost employment and moved out of

marital homes due to fear of publication). The Commonwealth responds by arguing the

majority of states have adopted the High Court’s reasoning in Smith to uphold the

retroactivity of their registration laws and only seven states have found such retroactive

application to be unconstitutional under the ex post facto clauses of their state

constitutions. Commonwealth’s Brief at 47-48.

       Although many states have adopted the reasoning of the Smith Court in

upholding their sex offender registration statutes under both state and federal ex post

facto clauses, we do not find this controlling. The Pennsylvania Constitution differs from

the constitutions in those states—as well as the United States Constitution — in its

treatment of, inter alia, the right to reputation. See J.B., 107 A.3d at 16 (“This Court has

recognized that the right to reputation, although absent from the federal constitution, is a

fundamental right under the Pennsylvania Constitution.”) (citations omitted). We further




                                    [J-121B-2016] - 52
find persuasive the fact that courts in Maryland, Indiana and Alaska, which have held

retroactive application of sex offender registration laws violate ex post facto clauses

under their state constitutions, have also found harm to the reputations of offenders to

be a factor in their constitutional analysis, even in the absence of a constitutional

provision like Pennsylvania’s to give special protection to that interest. See Doe v.

Dept. of Public Safety, 62 A.3d at 140; Wallace, 905 N.E.2d at 380; Doe v. State, 189

P.3d at 1011-12.      We conclude this Edmunds prong weighs in favor of holding

Pennsylvania’s ex post facto clause provides more protection than the federal clause.



                                   D. Policy Considerations

       Appellant argues policy considerations weigh in favor of finding greater

protections in the Pennsylvania Constitution as the state has an interest in the finality of

sentencing and individuals have an interest in understanding the regulatory outcome of

guilty pleas and criminal convictions. Appellant’s Brief at 31. Appellant further argues

adult sex offenders have been found to recidivate at a rate of only 13% and public policy

should favor the 87% of sex offenders who will never offend again, and provide security

in the knowledge that no new penalties or regulations will be imposed after they have

been convicted and sentenced. Id. at 31, citing J.B., 107 A.3d at 17. In addition,

PACDL again forwards reputation-based arguments to support the position public policy

weighs in favor of finding greater protection in Pennsylvania’s ex post facto clause.

PACDL’s Brief at 40-41. The Commonwealth contends appellant’s argument regarding

low recidivism rates relies on statements from J.B. regarding adult recidivism rates

which have been rebutted. Commonwealth’s Brief at 29-30, 49. The Commonwealth

further argues although reputation is a constitutionally protected right in Pennsylvania, it




                                    [J-121B-2016] - 53
may be constrained, just like other rights, upon a qualifying criminal conviction and

policy factors weigh in favor of protecting the public from sex offenders. Id. at 50-51.

       As previously stated, we recognize there is conflicting evidence regarding

recidivism rates of adult sex offenders, and therefore we do not base our determination

regarding this prong of the Edmunds analysis on this aspect of the relevant policy

considerations.    See e.g., Hale, 128 A.3d at 785 (where “substantial policy

considerations” are involved “such matters are generally reserved … to the General

Assembly”). However, we do find persuasive appellant’s argument that both the state

and offenders have an interest in the finality of sentencing, as well as the claim the

Pennsylvania Constitution’s special treatment of the right to reputation justifies greater

protections under the Pennsylvania ex post facto clause.          See Commonwealth v.

Russo, 934 A.2d 1199, 1212 (Pa. 2007) (public policy considerations unique to

Pennsylvania may suggest federal doctrines are inconsistent with Pennsylvania

Constitution).



                              E. Summary of Edmunds Analysis

       To summarize, we find the following to be consequential to our analysis of the

relative protections afforded by the state and federal ex post facto clauses: the right to

be free from ex post facto laws is an “inherent” and fundamental Article I right under the

Pennsylvania Constitution; this Court has previously recognized, in Lee, Lehman, and

Williams II, there is some divergence between the state and federal ex post facto

clauses; SORNA’s registration and online publication provisions place a unique burden

on the right to reputation, which is particularly protected in Pennsylvania; other states

have also found the retroactivity of registration laws unconstitutional under their state

constitutions, partly due to reputation concerns; and both the state and offender have an




                                    [J-121B-2016] - 54
interest in the finality of sentencing that is undermined by the enactment of ever-more

severe registration laws.    For those reasons, we find Pennsylvania’s ex post facto

clause provides even greater protections than its federal counterpart, and as we have

concluded SORNA’s registration provisions violate the federal clause, we hold they are

also unconstitutional under the state clause.



                                         VII. Conclusion

       We reverse the Superior Court’s decision affirming appellant’s judgment of

sentence, and vacate that portion of the sentence requiring appellant to comply with

SORNA.

       Jurisdiction relinquished.



       Justices Baer and Donohue join the opinion and Justices Todd and Wecht join

Parts I through IV and VII of the opinion.

       Justice Wecht files a concurring opinion in which Justice Todd joins.

       Chief Justice Saylor files a dissenting opinion.

       Justice Mundy did not participate in the consideration or decision of this case.




                                    [J-121B-2016] - 55
