J-A23010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DONNELL SHIELDS, JR.

                            Appellant                   No. 2004 WDA 2015


                   Appeal from the Order November 19, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013368-2008


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 20, 2016

        Donnell Shields, Jr., appeals from the order, entered in the Court of

Common Pleas of Allegheny County, denying his Motion to Enforce Plea

Agreement. Upon careful review, we affirm.

        On August 10, 2008, Shields was working as a janitor at a shopping

complex when he lured a 13-year-old girl into a secluded maintenance room

and sexually assaulted her.             Shields was initially charged with rape,

statutory sexual assault, false imprisonment, unlawful restraint and indecent

assault. However, pursuant to a plea agreement with the Commonwealth,

the charges of rape, false imprisonment and unlawful restraint were

withdrawn and Shields pled guilty to statutory sexual assault, indecent

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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assault and corruption of minors.      He was sentenced to a term of 2 to 5

years’ imprisonment.        Shields did not file post-sentence motions or an

appeal.

      On November 17, 2015, Shields filed a motion to enforce his plea

agreement, alleging that the new registration requirements imposed upon

him pursuant to the Sexual Offender Registration and Notification Act, 42

Pa.C.S.A. §§ 9791–9799 (“SORNA”), violated the terms of his plea

agreement. The trial court denied Shields’ motion, and the instant appeal

follows, in which Shields raises the following issues for our review:

      1. Did the Commonwealth violate [Shields’] constitutional rights
      and breach the plea contract by retroactively compelling him to
      register as a sexually violent offender?

      2. Did the Commonwealth violate [Shields’] due process rights
      by making SORNA retroactively applicable to him?

      3. Does the retroactive application of SORNA violate the ex post
      facto provisions of the Pennsylvania and United States
      Constitutions?

Brief of Appellant, at 7.

      Shields’ first claim invokes contract principles.       “In determining

whether a particular plea agreement has been breached, we look to ‘what

the parties to this plea agreement reasonably understood to be the terms of

the agreement.’” Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa.

Super. 2013) (en banc), quoting Commonwealth v. Fruehan, 557 A.2d

1093, 1095 (Pa. Super. 1989). Such a determination is made “based on the

totality of the surrounding circumstances,” and “any ambiguities in the terms



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of the plea agreement will be construed against the Commonwealth.” Id.,

quoting Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995)

(brackets omitted).

      Shields asserts that, because a plea agreement is a contract, it must

be interpreted and enforced using the principles of contract law. Applying

such principles, Shields argues that the statutory collateral consequences as

they existed at the time he entered his plea are implied terms of his plea

contract. See Empire Sanitary Landfill v. Dep’t of Envtl. Res., 684 A.2d

1047, 1059 (Pa. 1996) (“The laws that are in force at the time parties enter

into a contract are merged with the other obligations that are specifically set

forth in the agreement.”). Accordingly, Shields argues, the Commonwealth

is bound by those terms, and subsequent changes to sex offender

registration requirements are not applicable to him.      Shields asserts that

application of the new registration requirements would be tantamount to a

unilateral modification of the plea contract by the Commonwealth, and that

unilateral modification of a contract is not permitted.       Shields argues,

without citation to authority, that:

      [u]nder contract law principles, the Commonwealth must
      demonstrate that it had the authority to impose a post-
      conviction sex offender registration requirement. Therefore, in
      the absence of statutory authority showing that Mr. Shields had
      to register at the time of his conviction, the Commonwealth must
      present evidence demonstrating that it 1.) specifically negotiated
      for a sex offender registration or 2.) gave Mr. Shields notice that
      it reserves the right to impose registration obligations in the
      future.



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Brief of Appellant, at 13.   Shields is entitled to no relief.

      Prior to addressing the merits of Shields’ claim, some background

regarding his offenses is in order. As stated above, Shields pled guilty to,

inter alia, indecent assault and statutory sexual assault. At the time of his

plea, indecent assault carried a registration period of ten years under former

section 9793 of the Sentencing Code.           See 42 Pa.C.S.A. § 9793(b)(3),

deleted by 2000, May 10, P.L. 74, No. 18, § 3, effective in 60 days. Under

SORNA, the registration period for that offense was increased to twenty-five

years.

      Shields also pled guilty to statutory sexual assault.       At the time of

Shields’ plea, the offense was not registerable under the then-existing

Megan’s Law II and was defined as follows:

      Except as provided in section 3121 (relating to rape), a person
      commits a felony of the second degree when that person
      engages in sexual intercourse with a complainant under the age
      of 16 years and that person is four or more years older than the
      complainant and the complainant and the person are not married
      to each other.

18 Pa.C.S.A. § 3122.1 (effective to February 20, 2012).            Subsequently,

effective February 21, 2012, the legislature redefined statutory sexual

assault to include two gradations of the offense.           The amended statute

provides as follows:

      (a) Felony of the second degree.--Except as provided in section
      3121 (relating to rape), a person commits a felony of the second
      degree when that person engages in sexual intercourse with a
      complainant to whom the person is not married who is under the
      age of 16 years and that person is either:

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          (1) four years older but less than eight years older than the
           complainant; or

          (2) eight years older but less than 11 years older than the
          complainant.

       (b) Felony of the first degree.--A person commits a felony of the
       first degree when that person engages in sexual intercourse with
       a complainant under the age of 16 years and that person is 11
       or more years older than the complainant and the complainant
       and the person are not married to each other.

18 Pa.C.S.A. § 3122.1, amended 2011, Dec. 20, P.L. 446, No. 111, § 1,

effective in 60 days. At the time he committed the offense, Shields was 27

years old and his victim was 13.           As such, his offense would have fallen

under subsection 3122.1(b) of the amended statute.

       With the enactment of SORNA in 2012, statutory sexual assault

became a registerable offense. Pursuant to the tier system established by

the legislation, an offense under subsection (b) of the statute is classified as

a Tier III offense, which is subject to lifetime registration under 42 Pa.C.S.A.

§ 9799.15(a)(3). Thus, as a result of the enactment of SORNA, Shields is

ostensibly required to register (1) for 25 years – up from 10 years – for

indecent assault and (2) for life – where previously he had not been required

to register at all – for statutory sexual assault.1

____________________________________________


1
  In his brief, Shields asserts without explanation that he was compelled to
register “[o]n February 14, 2013[.]” Brief of Appellant, at 8. Section
9799.13 of SORNA addresses the applicability of the registration
requirements and identifies those individuals required to register under the
Act. The subsections of section 9799.13 set forth various triggering criteria
for registration, based on parameters including residency, supervision status
and criminal convictions.      Shields does not specify his release date;
(Footnote Continued Next Page)


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      We have previously addressed contract principles as they apply to a

defendant who entered a plea agreement prior to the enactment of SORNA.

In Hainesworth, supra, the defendant entered a plea to charges that, at

the time, were not subject to the registration requirements of Megan’s Law.

During Hainesworth’s plea hearing,

      [t]he trial court and Hainesworth were assured no less than
      twice by the Commonwealth that the plea did not obligate
      Hainesworth to register as a sex offender. Moreover, these
      statements were made as part of the Commonwealth’s recitation
      of the terms of the plea agreement, which were laid out carefully
      on the record. It is unambiguous from the record that both
      parties to this appeal, and the trial court, understood that a
      registration requirement was not included as a term of
      Hainesworth’s plea agreement.

Id. at 448.

      Upon SORNA’s enactment in 2012, one of the crimes to which

Hainesworth had pled guilty became a registerable offense.        Accordingly,

prior to the effective date of SORNA, Hainesworth filed a motion seeking a

declaration from the trial court that he was not subject to registration, based

upon the express terms of his plea agreement. The trial court granted relief.
                       _______________________
(Footnote Continued)

however, it appears his obligation to register would be governed by either
subsection (2) or (3.1) of section 9799.13. If subsection (2) controls,
Shields would be subject to a 25-year period of registration for indecent
assault and lifetime registration for statutory sexual assault. If subsection
(3.1) controls, Shields would not be required to register for his statutory
sexual assault conviction, but would be obligated to register for 25 years for
indecent assault.     Shields has asserted that he is subject to lifetime
registration.    Although he offers no substantiation for that claim, for
purposes of this appeal we will assume it to be true, as it does not affect our
disposition of the matter.



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      On appeal, this Court agreed with the trial court, finding that

Hainesworth’s “plea agreement appears to have been precisely structured so

that [he] would not be subjected to a registration requirement.”    Id. The

Court concluded: “In negotiating a plea that will not require him to register

as a sex offender, the defendant trades a non-trivial panoply of rights in

exchange for his not being subject to a non-trivial restriction. Fundamental

fairness dictates that this bargain be enforced.” Id. at 449.

      Unlike in Hainesworth, here, there is no evidence of record to even

suggest that sex offender registration was a term of Shields’ plea

agreement.    Nor does Shields argue that he expressly bargained for non-

registration during the plea negotiation process.      In Hainesworth, the

dispositive question was “whether registration was a term of the bargain

struck by the parties.” Id. at 448. As registration was neither mentioned

during Shields’ plea hearing, nor addressed in his written colloquy,

Hainesworth cannot provide a basis for relief in this matter.

      Moreover, Shields has always been required to register as a sex

offender. SORNA has merely increased his period of registration. We have

previously held that amendments to the law governing the duration of sex

offender registration are enforceable against defendants who entered into

plea bargains under prior registration schemes.     See Commonwealth v.

Benner, 853 A.2d 1068 (Pa. Super. 2004) (where record at guilty plea and

sentencing was silent as to whether defendant was required to register

under Megan’s Law, post-sentence amendment requiring lifetime registration

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applied to defendant, even though version of Megan's Law in effect at

sentencing only required registration for ten years).      Accordingly, the trial

court did not err in denying Shields’ motion.

       In Shields’ last two issues, he challenges the constitutionality of

SORNA. “[T]he constitutionality of a statute presents a pure question of law.

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

Commonwealth v. Wade, 33 A.3d 108, 115–16 (Pa. Super. 2011).

Further, a statute “is presumed to be constitutional and will only be

invalidated as unconstitutional if it clearly, palpably, and plainly violates

constitutional rights.”   Commonwealth v. Brown, 26 A.3d 485, 493 (Pa.

Super. 2011).

      Shields first claims that the Commonwealth violated his right to due

process by making the registration provisions of SORNA retroactively

applicable to him.     However, in his appellate brief, Shields provides no

citation to authority in support of this argument. Accordingly, he has waived

this claim. Commonwealth v. Brougher, 978 A.2d 373 (Pa. Super. 2009)

(claim is waived if there is no citation to authority).

      Shields also asserts that retroactive application of SORNA violates the

ex post facto provisions of the U.S. and Pennsylvania constitutions.         The

U.S. Constitution provides that: “No State shall . . . pass any . . . ex post

facto Law[.]”   U.S. Const. art. I, § 10, cl. 1.     Similarly, the Pennsylvania

Constitution provides that: “No ex post facto law . . . shall be passed.” Pa.

Const. art. I, § 17. Our Supreme Court has interpreted these ex post facto

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clauses to be effectively identical.   See Commonwealth v. Young, 637

A.2d 1313, 1317 (Pa. 1993).

      The Constitution’s explicit prohibition against ex post facto laws applies

only to those laws that inflict criminal punishment.       Commonwealth v.

Kline, 695 A.2d 872, 874 (Pa. Super. 1997), quoting United States Trust

Co. of New York v. New Jersey, 431 U.S. 1, 17 n.13 (1977). Thus, the

key inquiry in ascertaining whether the ex post facto clause applies to the

registration obligations imposed under SORNA is whether they are punitive,

either in intent or in effect.

      We conduct our analysis in two steps. First, we must look to the
      legislature’s subjective purpose. Smith v. Doe, 538 U.S. 84, 92
      [] (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, 97 A.3d 747, 751 (Pa. Super. 2014).

      If we conclude that the legislature’s subjective purpose was non-

punitive, we proceed to the second prong of the Smith inquiry – a

determination as to whether the effects of the statute are sufficiently

punitive to override the legislature’s non-punitive intent.    To this end, the

U.S. Supreme Court, in Kennedy v. Mendoza–Martinez, 372 U.S. 144

(1963), mandated a seven-factor test. Specifically, courts must consider:


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      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.

Id. at 168–169.

      In his brief, Shields fails to engage in any meaningful analysis under

Smith and fails even to mention the Mendoza-Martinez factors. Rather,

he cites a single case and argues that:

      [t]he act of reporting in person is identical to the requirements
      placed on individuals who are subject to probation and parole
      supervision. Commonwealth v. Woodruff, [135 A.3d 1045]
      (Pa. Super. 2016). As applied to parolees and probationers,
      reporting requirements are a restriction on their liberty. This is
      a “traditional method [. . .] of punishment.” Id.

Brief of Appellant, at 24.

      In Woodruff, this Court did conclude that quarterly, in-person

reporting requirements were analogous – although not, as Shields states,

“identical” – to those accompanying probation. As such, we found that the

second Mendoza–Martinez factor – whether the constraints imposed have

historically been regarded as a punishment – weighed in favor of finding

SORNA's effects to be punitive.        However, the Woodruff Court also

ultimately concluded, after weighing all of the Mendoza–Martinez factors,

that SORNA’s requirements were not punitive in effect and, therefore, did

not violate the prohibition against ex post facto laws.     See also Perez,


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supra (finding SORNA registration regime constitutional under federal and

state ex post facto clauses).

       Because Shields has failed to demonstrate that the registration

requirements under SORNA are punitive in either intent or effect, he is

entitled to no relief.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2016




____________________________________________


2
  We note that our Supreme Court has granted allowance of appeal in two
cases to address, inter alia, the question of whether SORNA violates ex post
facto principles. See Commonwealth v. Gilbert, 135 A.3d 178 (Pa.
2016); Commonwealth v. Reed, 135 A.3d 177 (Pa. 2016).



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