J-S34033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JOHN C. PEOPLES

                            Appellant                    No. 1774 WDA 2013


                    Appeal from the Order October 21, 2013
                 In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0000316-2006


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED SEPTEMBER 19, 2014

        Appellant, John C. Peoples, appeals from the order entered in the Blair

County Court of Common Pleas, denying his request to terminate new

registration requirements imposed by the Sexual Offender Registration and

Notification Act (“SORNA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On April 19, 2006, the Commonwealth charged Appellant with seventy (70)

counts of possession of child pornography.2 Appellant entered a negotiated

guilty plea to one of the counts, and the court sentenced him to seven (7)

years’ probation on July 7, 2006.              Under Megan’s Law, Appellant was
____________________________________________


1
    42 Pa.C.S.A. §§ 9799.10-9799.41.
2
    18 Pa.C.S.A. § 6312(d).
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required to register with the Pennsylvania State Police (“PSP”) as a convicted

sexual offender for a period of ten (10) years.3 On February 3, 2009, the

court issued an order granting early termination of Appellant’s probation.

       Appellant filed a “Petition to Terminate Megan’s Law Reporting

Requirement” on January 16, 2013, alleging that by letter dated December

3, 2012, the PSP advised Appellant that SORNA extended his registration

period to fifteen (15) years.4            Following a hearing, the court denied

Appellant’s petition on October 21, 2013. Appellant filed a timely notice of

appeal on November 4, 2013. The court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

Appellant timely complied.

       Appellant raises a single issue for our review:

          WHETHER   OR    NOT   THE    COURT     ERRED   BY
          DENYING…APPELLANT’S  [PETITION]    TO   TERMINATE
          MEGAN’S  LAW    REQUIREMENT     AS    “SORNA”  IS
          UNCONSTITUTIONAL IN THAT IT IS AN EX POST FACTO
____________________________________________


3
  At the time of Appellant’s plea, the registration of defendants convicted of
sex offenses was governed by Megan’s Law, 42 Pa.C.S.A. §§ 9791-9799.9.
Under Section 9795.1, an individual convicted pursuant to 18 Pa.C.S.A. §
6312(d) was subject to a ten-year registration requirement.
4
  SORNA became effective on December 20, 2012, replacing Megan’s Law as
the statute governing the registration and supervision of sexual offenders.
By its terms, SORNA applies to all individuals who were required to register
under Megan’s Law and who had not fulfilled the required period of
registration as of December 20, 2012. See 42 Pa.C.S.A. § 9799.13(3)(i).
SORNA designates a conviction for possession of child pornography as a
“Tier I” sexual offense, which carries a fifteen-year registration period. See
42 Pa.C.S.A. § 9799.14(b)(9), 9799.15(a)(1).



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          LAW ADDING          ADDITIONAL       PENALTIES   WITHOUT   [A]
          HEARING?

(Appellant’s Brief at 5).

       Appellant argues he was notified in 2006 that he was subject to a ten-

year period of registration as a sexual offender under the Megan’s Law

statute in effect at that time. Appellant asserts SORNA is punitive in nature.

He claims the retroactive application of the increase of the registration

requirement from ten to fifteen years under SORNA for his conviction

violates the prohibitions against ex post facto laws in the United States and

Pennsylvania Constitutions. Appellant concludes the court erred by denying

his petition to terminate the new registration requirements and failing to rule

that the application of SORNA to his conviction is unconstitutional.5      We

disagree.6

____________________________________________


5
  Just to be clear, Appellant pled guilty to one count of child pornography,
which carried a registration requirement of ten years. Nothing in the
certified record indicates that the duration of the registration requirement
was a negotiated term of Appellant’s plea agreement. Further, Appellant
does not argue that the increased registration period violated any term of
the plea agreement.
6
  Preliminarily, the Commonwealth asserts the trial court lacked jurisdiction
over Appellant’s petition to terminate his registration obligations under
SORNA. This Court recently noted that “our case law has yet to adopt a
settled procedure for challenging the retroactive application of a Megan’s
Law’s registration requirement.” Commonwealth v. Bundy, ___ A.3d ___,
___, 2014 PA Super 144, *3 (filed July 10, 2014). Nevertheless, “this Court
has jurisdiction to review orders confirming or rejecting a retroactive
registration requirement.”   Id. at *4.     See also Commonwealth v.
Sampolski, 89 A.3d 1287 (Pa.Super. 2014) (affirming trial court’s order
(Footnote Continued Next Page)


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      “The constitutionality of a statute is a pure question of law; our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Elia, 83 A.3d 254, 266 (Pa.Super. 2013), appeal

denied, ___ Pa. ___, 94 A.3d 1007 (2014).

      The United States Constitution and Pennsylvania Constitution prohibit

the enactment of ex post facto laws.              See U.S. Const. art. I, § 10; Pa.

Const. art. 1, § 17. “A state law violates the ex post facto clause if it was

adopted after the complaining party committed the criminal acts and ‘inflicts

a greater punishment than the law annexed to the crime, when committed.’”

Commonwealth v. Wall, 867 A.2d 578, 580 (Pa.Super. 2005) (quoting

Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa.Super. 2002)).

“[T]he standards applied to determine an ex post facto violation under the

Pennsylvania     Constitution       and    the    United   States   Constitution   are

comparable.”     Commonwealth v. Young, 536 Pa. 57, 65 n.7, 637 A.2d

1313, 1317 n.7 (1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1389, 128

L.Ed.2d 63 (1994).         The test of whether a law violates the Ex Post Facto

Clause of the Federal Constitution is as follows:

                       _______________________
(Footnote Continued)

granting defendant’s petition to enjoin registration requirement on ground
that offense to which defendant pled guilty did not require registration under
SORNA); Commonwealth v. Hainesworth, 82 A.3d 444 (Pa.Super. 2013),
appeal denied, ___ Pa. ___, 95 A.3d 276 (2014) (affirming trial court’s order
granting defendant’s motion to terminate registration requirements of
SORNA on ground that retroactive application of SORNA would offend
negotiated term of defendant’s plea agreement).



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         First, we must look to the legislature’s subjective purpose.
         Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d
         164 (2003). “If the intention of the legislature was to
         impose punishment, that ends the inquiry.” Id. However,
         if the legislature prefers to refer to the statute as imposing
         a civil regulatory scheme, a more searching inquiry in the
         second step is required. Id. In conducting this second
         step inquiry, “we must [] examine whether the statutory
         scheme is so punitive either in purpose or effect as to
         negate [the State’s] intention to deem it civil.” Id. The
         Supreme Court has held that only the “clearest proof” will
         suffice to override the legislature’s preferred classification
         of the statute. Id.

Commonwealth v. Perez, ___ A.3d ___, ___, 2014 PA Super 142, *2

(filed July 9, 2014). With respect to the second step inquiry:

         [T]he Supreme Court in Kennedy v. Mendoza-Martinez,
         372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963),
         mandated a seven factor test to determine whether the
         effects of a statute are sufficiently punitive to override the
         legislature's preferred categorization.

            Whether 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 are all relevant to the
            inquiry, and may often point in differing directions.

Perez, supra at *2-3 (quoting Mendoza-Martinez, supra at 168-69, 83

S.Ct. at 567-68, 9 L.Ed.2d at ___). This list of factors is, however, “neither

exhaustive nor dispositive.” U.S. v. One Assortment of 89 Firearms, 465




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U.S. 354, 365 n.7, 104 S.Ct. 1099, 1106 n.7, 79 L.Ed.2d 361, ___ n.7

(1984).

      Additionally:

          [W]hen presenting a claim for higher protections under the
          Pennsylvania Constitution, the Appellant 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;

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

Perez, supra at *10-11 (quoting Commonwealth v. Edmunds, 526 Pa.

374, 390, 586 A.2d 887, 895 (1991).

      After determining the General Assembly did not intend SORNA to be

punitive, the Perez Court applied the Mendoza-Martinez test and

concluded the effects of SORNA are not “sufficiently punitive to overcome

the General Assembly’s preferred categorization.”     Perez, supra at *10.

This Court explicitly held the retroactive application of SORNA did not violate

the prohibition against ex post facto laws in the United States Constitution.

Id. at *11. The Perez Court also rejected the defendant’s identical claim

under the Ex Post Facto Clause of the Pennsylvania Constitution for failure to

conduct the analysis required by Edmunds, supra.




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         Instantly, Appellant committed and pled guilty to the offense of

possession of child pornography, prior to the enactment of SORNA.      As a

consequence of his conviction, Appellant was required to register as a sex

offender for ten years under the Megan’s Law statute then in effect. While

Appellant was still under registration requirements, SORNA increased

Appellant’s registration period to fifteen years.   The effects of SORNA,

however, are not sufficiently punitive to override the General Assembly’s

classification of the statute as regulatory and non-punitive. See id. Thus,

the retroactive application of SORNA registration requirements to Appellant

does not violate the Ex Post Facto Clause of the United States Constitution.

Id.      Moreover, in his brief, Appellant makes no argument that the

Pennsylvania Constitution provides greater protection against ex post facto

laws, other than to note generally, “Pennsylvania’s Constitution affords

greater protection than federal law where compelling reasons exist.”

(Appellant’s Brief at 11).      Absent more, Appellant’s claim that the

Pennsylvania Constitution bars the retroactive application of SORNA likewise

fails.   See Perez, supra.   Based on the foregoing, we affirm the court’s

decision to deny Appellant’s petition to terminate his new registration

requirements under SORNA on the ground alleged.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2014




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