J-A15033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KAUSTUBH KUKDAY

                            Appellant                    No. 2403 EDA 2013


           Appeal from the Judgment of Sentence February 21, 2013
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001527-2012


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 23, 2014

        Kaustubh Kukday appeals from the judgment of sentence imposed by

the Court of Common Pleas of Monroe County on July 17, 2013, following his

guilty plea to attempted statutory sexual assault.1 After careful review, we

affirm.

        The trial court set forth the facts of this case as follows:

        On June 8, 2012, [Kukday], age 29 at the time, was charged
        with six different crimes after he used the Internet to arrange a
        sexual encounter with “Kim,” whom he believed to be a 15-year-
        old girl. [Kukday] arranged a meeting with “Kim” and arrived at
        the prearranged location at the set time. “Kim” was, in fact, the
        undercover Internet alias of detective Brian Webbe of the
        Monroe County Office of the District Attorney. On December 6,
        2012, [Kukday] pled guilty to one count of attempted statutory
        sexual assault. On February 21, 2013, [Kukday], a resident
        alien married to a U.S. citizen, was sentenced to a period of
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1
    18 Pa.C.S. § 3122.1
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       incarceration for not less than two hundred fifty-eight days to no
       more than twenty-three months.         He was also directed to
       undergo a sexual offenders evaluation, and he was classified as
       a Tier III offender subject to the lifetime registration and
       reporting requirements under Pennsylvania’s Registration of
       Sexual Offenders Law, 42 Pa.C.S. §[§] 9799.10 [- 9799.41]
       (hereinafter “Megan’s Law IV”).

Trial Court Opinion, 7/17/13, at 1-2.

       Megan’s Law IV was created by Act 111 of 2011, which was adopted

on December 20, 2011, and later amended by Act 91 of 2012. Megan’s Law

IV became effective on December 20, 2012, and, inter alia, required

registration for additional offenses including statutory sexual assault; revised

the penalties for failure to comply with registration requirements; imposed

more    frequent    registration,   reporting,   notification   and   compliance

requirements; and provided that Megan’s Law IV would apply retroactively.

       On March 4, 2013, Kukday moved for modification of sentence

contending that the court should not have applied the registration and

reporting requirements of Megan’s Law IV that became effective fourteen

days after he entered his guilty plea.     Rather, Kukday contended that the

court should have applied the requirements in place at the time of his guilty

plea, which did not include registration or reporting for individuals convicted

of attempted statutory sexual assault.

       On March 22, 2013, the court heard arguments from three defendants,

including Kukday, challenging Megan’s Law IV. By order dated July 2, 2013,

the court denied Kukday’s motion, and on July 17, 2013, issued an opinion

in support of the order. On August 9, 2013, Kukday filed a motion to file a


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notice of appeal nunc pro tunc, which the trial court granted on August 14,

2013. Kukday filed a notice of appeal nunc pro tunc on August 20, 2013,

and filed his Pa.R.A.P. 1925(b) statement of errors complained of on appeal

on September 9, 2013. In lieu of filing a separate Rule 1925(a) opinion, the

trial court submitted its July 17, 2013 opinion in support of denial of

Kukday’s post-sentence motions.

      Kukday raises the following issue for our review:

      Whether the retroactive application of the sexual offender law to
      [Kukday] violates the constitutional prohibitions against ex post
      facto laws.

Appellant’s Brief, at 4.

      In Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003), our

Supreme Court noted that the proper framework for analyzing whether

legislation is unconstitutionally punitive is the United States Supreme Court’s

“traditional two-pronged test [see Smith v. Doe I, 538 U.S. 84 (2003)], in

which the Court first inquires whether the legislature’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, 832 A.2d at 972.

      With respect to whether the intent of the legislature was punitive, we

look to the statute itself, which provides in relevant part:

      (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

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      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 considered as punitive.

42 Pa.C.S. § 9799.11(b)(2).

      It is clear that the plain language of section 9799.11(b)(2) expresses a

legislative intent to protect the public, rather than to punish offenders.

      Where, as here, the Legislature’s express intent was to provide a civil

remedial mechanism, courts will consider whether the remedy “provide[s]

for sanctions so punitive as to transform what was clearly intended as a civil

remedy into a criminal penalty.”     United States v. Ward, 448 U.S. 242,

249 (1980).    In reaching this determination, courts employ the following

seven-factor test:

      (1) [W]hether the sanction involves an affirmative disability or
      restraint; (2) whether it has historically been regarded as
      punishment; (3) whether it comes into play only on a finding of
      scienter; (4) whether its operation will promote the traditional
      aims of punishment-retribution and deterrence; (5) whether the
      behavior to which it applies is already a crime; (6) whether an
      alternative purpose to which it may rationally be connected as
      assignable for it; and (7) whether it appears excessive in relation
      to the alternative purpose assigned.

Commonwealth v. Lee, 935 A.2d 865, 873-74 (Pa. 2007) (quoting

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



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

Court addressed a similar challenge to the constitutionality of Megan’s Law

IV. Perez committed indecent assault at a time when the version of Megan’s

Law in effect required an individual convicted of that offense to register as a

sex offender for 10 years. However, under Megan’s Law IV, which went into

effect after the commission of the offense, but before Perez pled nolo

contendere to indecent assault, the registration period increased to 25

years.     Accordingly, the trial court ordered Perez to register as a sex

offender for 25 years.

       Perez filed an appeal to this Court, which determined that the

Legislature did not intend Megan’s Law IV to be punitive.                  Applying the

Mendoza-Martinez          factors,    the      Court   then   considered   whether   the

sanctions were actually a criminal penalty.

       With respect to the first factor, this Court held that requiring Perez to

appear in person 50 times over the next 25 years to verify personal

information was an affirmative restraint that weighed in favor of finding

Megan’s Law IV punitive. Perez, supra at 752-54.2 However, it concluded

that the remaining Mendoza-Martinez factors weighed against such a

finding.     Specifically, it held that registration requirements are not


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2
  As a Tier III offender, Kukday is subject to the stricter requirements of
appearing “in person at an approved registration site quarterly.” 42 Pa.C.S.
§ 9799.25(a)(3).



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historically regarded as punishment, id. at 754; Megan’s Law IV does not

come into play only on a finding of scienter, id. at 754-55; Megan’s Law IV

has some aspects of retribution, but they are reasonably related to the

regulatory objective of reducing recidivism, id. at 755-56; the statute’s

consideration of past conduct is proper because of the concern about

recidivism, id. at 756-57; Megan’s Law IV is rationally connected to the

Commonwealth’s compelling interest in preventing crimes of a sexual

nature, id. at 757; and the registration requirements are not excessive in

light of the importance of protecting the public from sexual offenders, id. at

757-58.

      The Perez Court further explained:

      After considering all seven factors, as analyzed above, we
      conclude that one factor weighing in favor of finding [Megan’s
      Law IV] punitive does not ultimately make the statute’s
      retroactive application unconstitutional. Although, we conclude
      the mandatory in-person appearance requirement imposes an
      affirmative constraint on Appellant, we nevertheless conclude
      that the restraint is relatively minor when balanced against the
      remaining factors.

Id. at 758.

      Accordingly, Perez held that Megan’s Law IV is “constitutional under

the Federal and State Ex Post Facto clauses.” Id. at 760. In light of Perez,

we conclude that the trial court did not err or abuse its discretion by

requiring Kukday to conform to the requirements of Megan’s Law IV, which

became effective fourteen days after he pled guilty to attempted statutory

sexual assault.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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