J-S35041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL ZOOK                                :
                                               :
                       Appellant               :   No. 1354 MDA 2017

              Appeal from the Judgment of Sentence July 18, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0004634-2016

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 06, 2018

       Daniel Zook (Appellant) appeals from the judgment of sentence imposed

following his guilty plea to indecent assault and unlawful contact with a minor.1

For the reasons that follow, we vacate Appellant’s judgment of sentence as it

pertains to his registration under SORNA.

       On July 20, 2016, Appellant was charged with one count of indecent

assault of a person less than 13 years of age and one count of unlawful contact

with a minor.        These charges stem from a series of sexual assaults that

occurred in 2005. At the time offenses, Appellant was 17 years old and the

victim was 11 years old. The victim did not disclose the criminal conduct until

2016, at which time Appellant was 28 years old.




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1   18 Pa.C.S.A. §§ 3126(a)(7), 6318(a)(1).
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      On March 23, 2017, Appellant entered a negotiated guilty plea on all

charges.    On July 18, 2017, pursuant to the terms of the negotiated plea

agreement, the trial court sentenced Appellant to five years of probation. The

trial court classified Appellant as a Tier III sexual offender pursuant to

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42

Pa.C.S.A. §§ 9799.10-9799.42, which required Appellant to register as a

sexual offender for the remainder of his life.

      On July 27, 2017, Appellant filed a post-sentence motion in which he

sought     exclusion   from   SORNA’s    lifetime   registration   and   reporting

requirements. On August 8, 2017, the trial court denied Appellant’s motion.

On August 29, 2017, Appellant filed a timely notice of appeal to this Court.

The same day, the trial court ordered Appellant to file a concise statement of

the errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure.           On September 19, 2017,

Appellant timely filed his Rule 1925(b) statement.

      On appeal, Appellant presents the following issue for review:

      WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
      POST SENTENCE MOTION TO STRIKE THE IMPOSITION OF THE
      REGISTRATION AND VERIFICATION REQUIREMENTS UNDER 42
      PA.C.S.A. 9979.10, ET SEQ.

Appellant’s Brief at 6.

      Appellant argues that he should not be subject to SORNA’s registration

requirements, which became effective in December 2012 and were not in

effect at the time he committed his crimes in 2005.           Although Appellant

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acknowledges that SORNA was in effect when he pled guilty to those crimes,

he asserts that application of SORNA to his case violates the ex post facto

clause of the Pennsylvania Constitution under Commonwealth v. Muniz, 164

A.2d 1189 (Pa. 2017). Appellant further asserts that SORNA is inapplicable

to him because he was a minor at the time he committed his offenses.

Because this issue presents a question of law, our standard of review is de

novo and our scope of review is plenary. Commonwealth v. Lee, 935 A.2d

865, 876 (Pa. 2007).

      Pennsylvania’s Sex Offender Registration and Notification Act (SORNA),

42 Pa.C.S.A. §§ 9799.10-9799.42, establishes a statewide registry of sexual

offenders.   42 Pa.C.S.A. § 9799.16(a).      On December 20, 2012, SORNA

replaced the then-existing sexual offender registration statutory provisions,

commonly known as Megan’s Law III, 42 Pa.C.S.A. §§ 9791-9799.9 (expired).

The General Assembly implemented SORNA to bring Pennsylvania’s sexual

offender reporting system in line with the federal mandates of the federal

Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 42

U.S.C. §§ 16901–16991, which requires a tier-based registration and

notification scheme. Muniz, 164 A.3d at 1203-04.

      For purposes of registration, SORNA classifies sexual offenders into the

following three tiers:

      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.[A.] § 9799.15(a)(1),

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      (e)(1).    Those convicted of Tier II offenses are subject to
      registration 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.[A.] § 9799.15(a)(2), (e)(2).

      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.[A.] § 9799.15(a)(3),
      (e)(3).

Id. at 1206-1207 (footnotes omitted).

      The offenses that constitute Tier I, II, and III offenses are set forth in

42 Pa.C.S.A. § 9799.14(b)-(d). Here, there is no dispute that Appellant is a

Tier III sexual offender due to his conviction of indecent assault of a person

less than 13 years of age. See 42 Pa.C.S.A. § 9799.14(d)(8). As a Tier III

offender under SORNA, Appellant is subject to lifetime registration and

quarterly reporting requirements. See 42 Pa.C.S.A. § 9799.15(a)(3), (e)(3).

Because he committed these offenses prior to when SORNA became effective,

Appellant argues that under Muniz, the application of SORNA to his sentence

violates the ex post facto clause of the Pennsylvania Constitution.

      In Muniz, the defendant was convicted in February 2007 of two counts

of indecent assault of a person less than 13 years of age, with sentencing

scheduled for May 2007. Id. at 1193. At the time of his conviction, Muniz

“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.” Id. at 1192 (citing 42 Pa.C.S.A. § 9795.1 (expired)). Muniz, however,


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never appeared for sentencing and absconded until he was later apprehended

in September 2014. Id. When Muniz was finally sentenced in 2014, the trial

court ordered him to comply with the lifetime registration provisions under the

then-effective SORNA, pursuant to which he was a Tier III sexual offender.

Id. Muniz appealed.

      On appeal to our Supreme Court, five of the six participating justices

held that even though the General Assembly identified SORNA’s enhanced

registration    provisions   as   non-punitive,   they   nonetheless      constituted

punishment. Id. at 1218. The Supreme Court further determined that the

retroactive application of SORNA’s registration requirements to Muniz violated

the ex post facto clause of the Pennsylvania Constitution. Id. at 1218-19.

Our Supreme Court explained:

      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.
      Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),]
      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 receives less, or different, testimony, than the law
               required at the time of the commission of the offense,
               in order to convict the offender.


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      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. As such,
      [o]nly those laws which disadvantage a defendant and fall within
      a Calder category are ex post facto laws and constitutionally
      infirm. 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.

Id. at 1195-1196 (quotation marks omitted, some citations omitted or

modified).

      Because Muniz committed his crimes prior to the existence of SORNA,

the Supreme Court determined that application of that statute would inflict

greater punishment than the law (Megan’s Law III) in effect at the time he

committed his crimes. Consequently, our Supreme Court concluded that the

retroactive application of SORNA’s registration and reporting requirements to

Muniz violated the ex post facto clauses of the United States and Pennsylvania

Constitutions. Id. at 1223.

      Like Muniz, this case implicates the ex post facto clause of the

Pennsylvania Constitution because application of SORNA’s registration

requirements would impose greater punishment on Appellant than the law in

effect at the time he committed his crimes. See id. at 1195-1196. Appellant

committed the crimes of indecent assault of a person less than 13 years of

age and unlawful contact with a minor in 2005. At that time, Megan’s Law III


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was in effect. On December 20, 2011, the General Assembly enacted SORNA,

which became effective on December 20, 2012, prior to Appellant’s guilty plea

and sentencing, but well after he committed the offenses. Although SORNA

increased the registration period for some crimes, Appellant, based on his

convictions of indecent assault of a person less than 13 years of age and

unlawful contact with a minor, would be subject to lifetime registration under

either SORNA or Megan’s Law III.      See 42 Pa.C.S.A §§ 9795.1(a)(1) and

(b)(1) (expired), 9799.14(d)(8), 9799.15(a)(3). While application of SORNA

would not alter Appellant’s registration period, it would add quarterly in-

person reporting requirements and the posting of his personal information on

the Pennsylvania State Police website. See Muniz, 164 A.3d at 1210-11. As

our Supreme Court recognized in Muniz, the increased registration period and

additional reporting requirements constitute a greater punishment than what

Megan’s Law would have imposed and consequently, their retroactive

application violates the ex post facto clause of the Pennsylvania Constitution.

Id. at 1193-1196, 1216.

      The Commonwealth contends that Muniz is inapplicable to this case

because the defendant in Muniz was convicted prior to when SORNA became

effective, and sentenced after, whereas Appellant was not convicted of his

crimes until after SORNA became effective. We reject this argument. While

the Commonwealth is correct that the defendant in Muniz was convicted prior

to when SORNA became effective, its argument disregards our Supreme


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Court’s analysis of the constitutional ex post facto prohibitions. The Supreme

Court made clear that “the ex post facto clauses of the United States and

Pennsylvania Constitutions are implicated” by SORNA where “application of

the statute would inflict greater punishment on appellant than the law in effect

at the time he committed his crimes.” Id. at 1196. This is what happened in

Appellant’s case.

       Appellant pled guilty after SORNA became effective, and the trial court

retroactively imposed the new registration requirements and other provisions

of SORNA for crimes he committed when Megan’s Law III was in effect.

Because Appellant committed his crimes at a time when registration and

reporting requirements were less burdensome and stringent, we conclude that

the retroactive application of SORNA to Appellant violated the ex post facto

clause of the Pennsylvania constitution. See Muniz, 164 A.3d at 1192-1196,

1223. Accordingly, we vacate Appellant’s judgment of sentence to the extent

it requires Appellant to register as a sexual offender pursuant to SORNA.2

Because we have determined that application of SORNA to Appellant’s case is

unconstitutional under the Pennsylvania ex post facto clause, we need not

address his argument regarding whether SORNA is applicable to him as a

juvenile offender.




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2 We note that this does not preclude Appellant from having to register as a
sexual offender under Megan’s Law III.

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      Judgment of sentence vacated in part. Case remanded. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/06/2018




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