J-S24041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
GARY THOMAS SNYDER,                       :
                                          :
                   Appellant              :          No. 3299 EDA 2014

              Appeal from the Order entered on October 29, 2014
               in the Court of Common Pleas of Chester County,
                Criminal Division, No. CP-15-CR-0004049-2002

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MAY 11, 2015

        Gary Thomas Snyder (“Snyder”) appeals from the Order denying his

Petition (hereinafter “the Petition for Relief”) seeking exemption from being

required to register with the Pennsylvania State Police (“PSP”) as a sex

offender for his lifetime, pursuant to the Sex Offender Registration and

Notification Act (“SORNA”),1 and challenging SORNA’s constitutionality

concerning its retroactive application. We affirm.

        Between July 1994 and August 1995, Snyder sexually assaulted a

seven-year-old girl, A.G., on several occasions.     Snyder, inter alia, (1)

fondled A.G.’s chest; (2) kissed her on the mouth after removing both of

their clothes; (3) inserted his finger into her vagina; and (4) forced her to

touch his penis with her hand. A.G. stated that after each assault, Snyder



1
    See 42 Pa.C.S.A. § 9799, et seq.
J-S24041-15

threatened that he would harm her family if she told anyone about what had

happened.

        A.G. reported the sexual assaults to the police several years later,

when she was fifteen-years-old.      In September 2002, the Commonwealth

charged Snyder with several offenses, including four counts each of indecent

assault of a minor less than thirteen years of age and corruption of minors.2

On February 13, 2003, Snyder pled guilty to two counts each of indecent

assault of a minor less than thirteen years of age and corruption of minors.

Snyder’s guilty plea was the result of a negotiated agreement, wherein the

Commonwealth agreed that it would withdraw the remaining charges and

recommend a sentence of eight years of probation, the first nine months of

which would be under electronic home monitoring. Notably, at the time of

Snyder’s plea, the offense of indecent assault of a minor less than thirteen

years of age required a ten-year period of sex offender registration under

Megan’s Law II.3

        In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth what

transpired thereafter as follows:

              [Snyder] was sentenced on June 9, 2003[, pursuant to the
        negotiated plea agreement,] … [to] an aggregate sentence of 8
        years [of] probation. He was also ordered to undergo 9 months
        of electronic home confinement, undergo [a] sex offender
        evaluation, a psychological evaluation, to complete a Sex

2
    See 18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1).
3
  See 42 Pa.C.S.A. § 9795.1(a)(1). This statutory provision was replaced by
the provisions of SORNA, which became effective in December 2012. See
42 Pa.C.S.A. § 9799.41.

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J-S24041-15

      Offender Program, and have no unsupervised contact with
      minors. As sentenced, his probation extended through June 9,
      2011. [Snyder] did not file a direct appeal from [his] judgment
      of sentence.

             On June 25, 2008, the Chester County Probation
      Department sought a bench warrant for [Snyder’s] arrest[,]
      [based] upon allegations of [his] probation violation, alleging he
      had failed to complete the Sex Offender Program and had
      unsupervised contact with minors on multiple occasions.
      [Snyder] was taken into custody and imprisoned on September
      9, 2008, and following [a] hearing …, [Snyder] was found in
      violation of his probation. He was sentenced to 3 to 23 months
      [of] incarceration, subject to conditions, given credit for time
      served, and made eligible for parole after serving his minimum
      sentence. … He was paroled on December 3, 2008, and
      completed probation supervision on February 12, 2011. He was
      not on probation when he filed the instant [P]etition [for Relief]
      seeking relief from the lifetime registration requirement.
      [Snyder] began registering as a sex offender on June 12, 2003.
      Under Megan’s Law II[,] he was required to register through
      mid-June 2013.

            On December 3, 2012, the Commander of the Megan’s Law
      Section of the [PSP] notified [Snyder] in writing that [pursuant
      to SORNA,] he was required to register as a sexual offender with
      the [PSP] for [his l]ifetime as a Tier III sexual offender,[4] and to
      verify his registration information in person every 3 months at
      an approved registration site. He was further advised that he
      now appeared on the Megan’s Law Registry as a sexual offender.
      … SORNA increased [Snyder’s] reporting requirements by a
      multiple of four. Under Megan’s Law III, he was required to
      appear only once each year[,] at a location designated by the
      [PSP,] to verify his residence and be photographed. Under
      SORNA, Snyder must register a wider array of information with
      the PSP, including aliases, nicknames, internet identifiers under
      which he communicates or posts, date of birth, social security

4
  Under SORNA, a conviction for indecent assault of a minor less than
thirteen years of age is designated as a “Tier III sexual offense,” subjecting
an individual convicted of this offense to a lifetime registration requirement.
See 42 Pa.C.S.A. § 9799.14(d)(8); id. § 9799.15(a)(3). Pursuant to 42
Pa.C.S.A. § 9799.13(3)(i), Snyder was required to register for his lifetime
because he had not yet fulfilled his ten-year period of registration under
Megan’s Law when SORNA became effective in December 2012.

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      number, telephone number, passport, driver’s license,
      professional licenses, and license plate or motor vehicle
      registration numbers.

             On September 23, 2013, [Snyder] filed the [Petition for
      Relief, wherein he] essentially contends that the effects upon
      him of SORNA are punitive in nature, and not mere collateral
      consequences of his conviction, thereby rendering its ex post
      facto application to him unconstitutional. He further contends
      that he is legally entitled to the benefit of the bargain made in
      his plea agreement with the Commonwealth, which included the
      limitation that he register as a sexual offender for not more than
      ten years.[5]

Trial Court Opinion, 10/29/14, at 2-5 (footnotes added, citations omitted).

      By an Order entered on October 29, 2014, the trial court denied the

Petition for Relief.6 Snyder timely filed a Notice of Appeal. The trial court



5
  Snyder has abandoned on appeal his claim that he is entitled to specific
enforcement of the ten-year sex offender registration period because it was
part of his negotiated plea agreement.        Indeed, this Court previously
rejected such a claim in Commonwealth v. Partee, 86 A.3d 245 (Pa.
Super. 2014). In Partee, the defendant had (1) entered a negotiated nolo
contendere plea to a sexual offense that required a ten-year period of
registration under Megan’s Law II; (2) subsequently violated his probation;
and (3) thereafter received notification following the enactment of SORNA
that he was now required to register with the PSP as a sex offender for life.
Id. at 246. This Court held that the defendant was not entitled to specific
performance of the negotiated plea agreement because, “having failed to
abide by the terms of the plea bargain, that agreement [was] no longer in
effect[.]” Id. at 250. Like the situation in Partee, Snyder’s violation of his
probation abrogated the plea agreement.
6
  The trial court properly determined that the Petition for Relief does not fall
under the provisions of the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546.       See Trial Court Opinion, 10/29/14, at 7; see also
Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa. Super. 2014) (collecting
cases and holding that “the statutory and rule-based requirements
governing a PCRA petition do not apply to a challenge to the retroactive
application of [SORNA], but [] this Court has jurisdiction to review orders
confirming or rejecting a retroactive registration requirement.”).

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did not order Snyder to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.

      Snyder presents the following issues for our review:

        Whether the Court of Common Pleas committed error:

         I.   In failing to grant [the P]etition [for Relief] because the
              Court failed to consider that [Snyder] should only be
              required to register for ten (10) years[,] as his
              offenses were part of a single criminal episode or
              course of conduct[?]

        II.   In failing to grant [the P]etition [for Relief] because the
              Court failed to consider that changing, or expanding
              and extending, [Snyder’s] registration and reporting
              requirements is a form of punishment and thus,
              [retroactive] application of SORNA violates the Ex Post
              Facto clauses of the United States and Pennsylvania
              Constitutions[?]

Brief for Appellant at 4.

      Because Snyder’s issues implicate a pure question of law, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Raban, 85 A.3d 467, 468 (Pa. 2014); see also In the Interest of J.B.,

107 A.3d 1, 14 (Pa. 2014) (addressing a challenge to the constitutionality of

the retroactive application of SORNA and observing that “a party challenging

a statute must meet the high burden of demonstrating that the statute

clearly, palpably, and plainly violates the Constitution.” (citation and

quotation marks omitted)).

      Snyder first argues that the trial court erred by denying the Petition for

Relief because his offenses were part of a single criminal episode or course

of conduct, and, therefore, he should only be required to register as a sex

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J-S24041-15

offender for ten years, as opposed to his lifetime. Brief for Appellant at 8, 9.

Specifically, Snyder contends as follows:

      When SORNA became the effective law, part of the reason that
      [Snyder] was reclassified as a lifetime registrant (Tier III) … was
      due to the language in 42 Pa.C.S. § 9799.14(d)(16)[,] which
      states that an individual is subject to lifetime registration if he or
      she has “[t]wo or more convictions of offenses listed as Tier I or
      Tier II sexual offenses.”       42 Pa.C.S. § 9799.14(d)(16)[].
      [Snyder is] of the opinion that this provision requiring lifetime
      registration only applies to repeat offenders and recidivists who
      are convicted of separate acts of misconduct that lead to
      separate and multiple convictions. This provision should not
      apply to individuals who engage in misconduct that results in
      one conviction with multiple criminal charges/offenses.

Brief for Appellant at 9.

      This claim is waived because Snyder failed to preserve it for our

review, having never raised it in the trial court.        See Pa.R.A.P. 302(a)

(stating that an issue cannot be raised for the first time on appeal); see

also Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013)

(stating that “[b]y requiring that an issue be considered waived if raised for

the first time on appeal, our [appellate C]ourts ensure that the trial court

that initially hears a dispute has had an opportunity to consider the issue.

This jurisprudential mandate is also grounded upon the principle that a trial

court must be given the opportunity to correct its errors as early as

possible.” (citation and ellipses omitted));7 see also Commonwealth v.

Colavita, 993 A.2d 874, 891 (Pa. 2010) (stating that “[w]here the parties


7
  The trial court did not address Snyder’s instant claim in its Pa.R.A.P.
1925(a) Opinion.


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J-S24041-15

fail to preserve an issue for appeal, the Superior Court may not address that

issue sua sponte.” (citation omitted)).8

      Next, Snyder argues that SORNA is punitive, and that the retroactive

application of SORNA to him violates the Ex Post Facto Clauses of Article 1,

§ 10 of the United States Constitution and Article 1, § 17 of the Pennsylvania

Constitution. See Brief for Appellant at 21-38.

      A panel of this Court recently addressed this precise issue in

Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014).                 Snyder

acknowledges Perez in a footnote, but argues that its holding does not

apply to his particular circumstances.       Brief for Appellant at 21 n.12.

Contrary to Snyder’s assertion, we determine that Perez is directly

applicable and requires rejection of his constitutional challenge.

      In Perez, the defendant committed the offense of indecent assault

prior to SORNA’s enactment, and entered a negotiated nolo contendere plea

to this charge.   Perez, 97 A.3d at 749.      At the time of his offense, the

version of Megan’s Law then in effect required him to register as a sex

offender for 10 years.    Id.   Under SORNA, which went into effect shortly

before the defendant’s plea, he was required to register for 25 years. Id.

Prior to sentencing, the defendant filed a motion to declare SORNA

unconstitutional on the ground that the Ex Post Facto Clauses in the federal

and state constitutions prohibited retroactive application of the 25-year

8
  Nevertheless, we observe that Snyder’s crimes did not constitute a single
criminal episode, as he had sexually assaulted A.G. on multiple separate
occasions.

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registration requirement to him. Id. The trial court denied the motion and

ordered the defendant to register for the next 25 years. Id.

      On appeal, this Court observed that the defendant’s challenge to the

constitutionality of the retroactive application of SORNA must be evaluated

under a two-step test, established by the United States Supreme Court in

Smith v. Doe, 538 U.S. 84 (2003). Perez, 97 A.3d at 751 (citing Smith,

538 U.S. at 92 (stating that the two-step test for determining whether a civil

remedy is punitive in nature requires an inquiry into (1) whether the

legislature intended the statutory scheme to be punitive; and (2) only if the

first step is met, “whether the statutory scheme is so punitive either in

purpose or effect as to negate [the State’s] intention to deem it civil.”)); see

also Perez, 97 A.3d at 750 n.4 (stating that “[a]lthough the [United States]

Supreme Court has addressed the federal version of SORNA on prior

occasions, it has never had the occasion to address its constitutionality vis-

à-vis the Ex Post Facto Clause[,]” but acknowledging that most of the Courts

of Appeals have concluded that SORNA does not violate the federal Ex Post

Facto Clause).

      Concerning the first step under Smith, the Perez Court declared that

the General Assembly did not intend SORNA to be punitive in nature.

Perez, 97 A.3d at 751 (citing 42 Pa.C.S.A. § 9799.11(b)(2), which sets forth

legislative findings and a declaration of policy instructing that SORNA shall

not be construed as punitive).      Turning to the second step, the Court

addressed whether SORNA constitutes “punishment” under the multi-factor

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test articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

Perez, 97 A.3d at 751 (stating that “[t]he Supreme Court has held that only

the ‘clearest proof’ will suffice to override the legislature’s preferred

classification of the statute.” (quoting Smith, 538 U.S. at 92)). The panel

held, after conducting an exhaustive analysis of the seven Kennedy factors,

that SORNA does not constitute punishment, and, therefore, was valid under

the Ex Post Facto Clause of the United States Constitution. Id. at 752-59.

The panel explained that all but one of the Kennedy factors weighed against

finding SORNA punitive, stating, in sum, that (1) registration requirements

historically are not regarded as punishment, unlike probation/parole,

because individuals subject to SORNA are free to live and work where they

wish, without supervision; (2) SORNA does not come into play upon a

finding of scienter; (3) although SORNA has some aspects of retribution for

past conduct, and deterrence of future criminal conduct, the statutory

scheme primarily is regulatory, and the General Assembly is permitted to

have some deterrent and retributive effects in its legislation, particularly

where its goal is to prevent recidivism and protect the public; (4) SORNA is

rationally related to a non-punitive purpose, namely the Commonwealth’s

interest in preventing crimes of a sexual nature; and (5) SORNA is not

excessive in relation to its regulatory purpose of protecting the public from

convicted sexual offenders, who pose a high risk of recidivism. Id. at 752-

58. The Perez Court found that only one factor weighed in favor of finding

SORNA punitive, i.e., SORNA imposed an affirmative restraint on the

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defendant by requiring him to appear in-person at a PSP facility a minimum

of 50 times over the next 25 years.        Id. at 752-54.   However, the panel

concluded that this single factor did not render SORNA punitive because,

inter alia, “the restraint is relatively minor when balanced against the

remaining factors.” Id. at 758.

      The Perez Court then proceeded to address the defendant’s ex post

facto claim under the Pennsylvania Constitution, and determined that it did

not entitle him to relief:

             Article I, Section 17 of the Pennsylvania Constitution states
      that “[n]o ex post facto law, nor any law impairing the obligation
      of contracts, or making irrevocable any grant of special
      privileges or immunities, shall be passed.” Pa. Const. Art. I,
      § 17. This Court has recently held that “the standards applied to
      determine an ex post facto violation under the Pennsylvania
      Constitution and the United States Constitution are comparable.”
      Commonwealth v. Rose, 2013 PA Super 305, 81 A.3d 123,
      127 (Pa. Super. 2013) (en banc). Our Supreme Court has
      previously declined to hold that the Ex Post Facto Clause of the
      Pennsylvania Constitution imposes greater protections than
      Article I, Section 10 of the Federal Constitution.              See
      Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616, 622
      (Pa. 1999) (stating that Gaffney “failed to present any
      compelling reason for our departure from the standards
      appropriate for determining whether an ex post facto violation
      pursuant to the federal constitution has occurred[,] and we find
      no independent reasons for doing so[]”).

            It is axiomatic that when presenting a claim for higher
      protections under the Pennsylvania Constitution, the [a]ppellant
      must discuss the following four factors:

           1) text of the Pennsylvania constitutional provision;

           2) history of the provision, including Pennsylvania case-
              law;

           3) related case-law from other states;

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           4) policy considerations, including unique issues of state
           and local concern, and applicability within modern
           Pennsylvania jurisprudence.

      Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 895
      (Pa. 1991). The Edmunds analysis is mandatory and a failure
      to provide it precludes the consideration of a state constitutional
      claim independent of its federal counterpart.          See, e.g.,
      Commonwealth v. Baker, 621 Pa. 401, 78 A.3d 1044, 1048
      (Pa. 2013) (concluding that Baker’s failure to provide an
      Edmunds analysis precluded considering whether Article I,
      Section 13 of the Pennsylvania Constitution provided higher
      protections that the Eighth Amendment of the Federal
      Constitution on cruel and unusual punishments).

            Here, [a]ppellant’s brief does not include the required
      Edmunds analysis to consider whether under this specific
      statute, the Pennsylvania Constitution would provide higher ex
      post facto protections than Article I, Section 10 of the Federal
      Constitution.   …    Because we have already resolved [the
      appellant’s] federal ex post facto claim using [the] framework
      promulgated by the United States Supreme Court, and
      [a]ppellant does not argue that the Pennsylvania Constitution
      provides higher protection, his claim under the Pennsylvania
      Constitution likewise fails.   See Baker, supra; Edmunds,
      supra.

Perez, 97 A.3d at 759-60.

      In the instant case, although Snyder (1) argues that the retroactive

application of SORNA’s provisions violates the Pennsylvania Constitution’s Ex

Post Facto Clause; and (2) exhaustively discusses all seven Kennedy

factors, related case law from other states, and policy considerations, like

the   situation   in   Perez,   he   does     not   argue   that   the   Pennsylvania

Constitution’s Ex Post Facto Clause provides greater protection than its

federal counterpart.     See, e.g., Brief for Appellant at 21 (wherein Snyder

sets forth the respective language of both Ex Post Facto Clauses, but does

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not assert that Pennsylvania’s clause provides greater protection); see also

Perez, 97 A.3d at 760 (rejecting the appellant’s challenge to the

constitutionality of SORNA under the Pennsylvania Constitution where he did

not argue that the state constitution provided greater protection than its

federal counterpart).   Accordingly, we are compelled to apply the Perez

decision in rejecting Snyder’s constitutional challenge.9

      In conclusion, we understand Snyder’s displeasure at having to

register for his lifetime as a sex offender, even though approximately nine

years had elapsed between the date of sentencing and the date he received

notice of his requirement to register for his lifetime under SORNA.

Nevertheless, the trial court’s Order denying his constitutional challenge is




9
  In its Pa.R.A.P. 1925(a) Opinion, the trial court in the instant case points
out that at least two other states have ruled contrary to Perez, holding that,
under their respective state constitutions, the retroactive application of
longer    sexual    offender   registration  periods    under   SORNA     was
unconstitutional.    See Trial Court Opinion, 10/29/14, at 11-12 (citing
Gonzalez v. State of Indiana, 980 N.E.2d 312 (Ind. 2013), and State v.
Williams, 952 N.E.2d 1108 (Ohio 2011), as well as Judge Donohue’s
concurring opinion in Perez, Perez, 97 A.3d at 760-67). The trial court also
suggests that further appellate consideration of the constitutional issues
presented in the instant case is appropriate. See Trial Court Opinion,
10/29/14, at 12. However, it is axiomatic that a three-judge panel is bound
by previous panel opinions unless overruled by this Court sitting en banc,
our Supreme Court, or the United States Supreme Court. Commonwealth
v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006); see also Commonwealth
v. Perez, 2014 Pa. Super. LEXIS 2910 (Pa. Super. 2014) (denying Perez’s
petition for reargument). Accordingly, under the particular circumstances of
this case, we are bound by the majority’s holding in Perez, as Perez is
directly on point.

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J-S24041-15

correct under the current law.10

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




10
   To the extent that Snyder argues SORNA violates his federal and state
due process rights because it (1) did not afford him proper notice concerning
his new registration requirement, and an opportunity to challenge the
requirement; and (2) utilizes an irrebuttable presumption about sexual
offenders’ high risk of recidivism and impinges upon offenders’ right to
reputation, see Brief for Appellant at 15-20, 35-36, such claims are waived
because they were not raised in, or fairly suggested by, Snyder’s Statement
of Questions Presented, nor were they preserved in the trial court. See
Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unless it is
stated in the statement of questions involved or is fairly suggested
thereby.”); Pa.R.A.P. 302(a). However, even if these claims were not
waived, we would determine that they are without merit. First, the letter
that the PSP sent Snyder in December 2012 adequately put him on notice
that he was required to register for his lifetime under SORNA, and Snyder
has, in fact, been permitted to challenge SORNA’s registration requirement
in the trial court and this Court. Second, though Snyder cites to our
Supreme Court’s decision in In the Interest of J.B., supra, in support of
his claim that SORNA deprives him of due process by applying an
irrebuttable presumption concerning recidivism, and impinges upon his right
to reputation, he fails to acknowledge that the Supreme Court’s holding in
J.B. was limited to only juveniles. Id. at 2, 19-20 (holding that “SORNA
violates juvenile offenders’ due process rights through the use of an
irrebuttable presumption[,]” where the presumption is not universally true
and a reasonable alternative means exists for determining which juvenile
offenders are likely to reoffend.) (emphasis assed)). Moreover, our research
discloses no cases extending this holding to adult offenders under SORNA.

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