J-S34014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES HUNTER SPENCE

                         Appellant                  No. 1859 MDA 2015


                   Appeal from the Order October 5, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-MD-0001832-2015


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

MEMORANDUM BY PANELLA, J.                              FILED JULY 05, 2016

      Appellant, James Hunter Spence, appeals from the October 5, 2015

order denying his Petition to Terminate Sexual Offender Registration. We

affirm.

      The trial court summarized the history of this case as follows.

             [Appellant] pleaded guilty to Statutory Rape in the
      Commonwealth of Virginia. As part of his negotiated plea
      agreement[,] he was sentenced to 90 days[’] incarceration and
      was to register as a sex offender for a period of 10 years.
      [Appellant’s] registration period began on October 29, 2003, and
      was set to expire on October 29, 2013. Shortly after his release
      from incarceration in Virginia, [Appellant] moved to the
      Commonwealth of Pennsylvania. Upon moving to York,
      Pennsylvania, [Appellant] submitted the proper forms to
      Interstate Parole Services in order to have his supervision
      transferred to Pennsylvania. Approximately a month after
      moving to Pennsylvania, [Appellant] received notice from
      Virginia that he was to submit a Sexual Offender Registration
      Notification to Pennsylvania authorities. [Appellant] did so on
      December 10, 2003.
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            On December 3, 2012, [Appellant] received notice that
      there were significant changes to the law regarding sexual
      offender registration periods. On April 22, 2013, [Appellant] was
      designated as a Tier 3 sexual offender, and he was informed that
      instead of having to register for 10 years, he was now required
      to register for life pursuant to 42 Pa.C.S.A. § 9799.4.

            On June 2, 2015, [Appellant], through counsel, filed a
      motion requesting that [the lower court] terminate [his]
      registration requirements. [Appellant] argued that the
      Commonwealth’s retroactive application of SORNA to the Petition
      violated the ex post facto clause of both the federal and state
      constitutions. Upon receiving [Appellant’s] motion [the court]
      scheduled a hearing for August 6, 2015. …

Trial Court Opinion, 10/5/15 at 1-2. Following the hearing, the trial court

ordered the parties to submit briefs in support of their respective positions.

The trial court subsequently entered an opinion and order denying

Appellant’s motion to terminate sexual offender registration. This timely

appeal followed.

      Appellant raises this issue for our review.

      Whether the honorable trial court erred in denying the
      Appellant’s petition in that the effects of SORNA violated the ex
      post facto clause in that the effects are not collateral and are
      punitive and therefore may not be applied retroactively.

Appellant’s Brief at 4 (italics added and unnecessary capitalization omitted).

      Initially, we note this issue presents a question of law, and therefore,

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

Commonwealth v. Britton, 134 A.3d 83, 87 (Pa. Super. 2016).

      This Court previously addressed whether SORNA constitutes an ex post

facto law under the federal constitution in Commonwealth v. Perez, 97




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A.3d 747 (Pa. Super. 2014). We recently summarized our analysis in Perez

as follows.

      We observed that such a challenge must be evaluated under a
      two-step test, which was established by the U.S. Supreme Court
      in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164
      (2003). Perez, 97 A.3d at 751 (indicating that under Smith the
      two-step test requires the court to determine (1) whether the
      legislature intended the statutory scheme to be punitive, and (2)
      if not, whether the statutory scheme is so punitive in either its
      purpose or effect so as to negate the legislature's intention).

      With regard to the first step under Smith, we held the
      legislature specifically indicated that SORNA “shall not be
      construed as punitive[,]” and, therefore, the legislative intent in
      enacting the law was not to impose punishment. Perez, 97 A.3d
      at 751 (citing 42 Pa.C.S.A. § 9799.11(b)(2) (emphasis
      omitted)). Turning to the second step under Smith, this Court
      addressed whether SORNA constitutes “punishment” under the
      multi-factor test articulated in Mendoza–Martinez. After a
      thorough review, we concluded SORNA does not constitute
      “punishment.” Perez, supra. Specifically upon balancing the
      Mendoza–Martinez factors, this Court held the following:

         Based on all of the[ ] considerations, we ultimately
         conclude that [the appellant] has not shown by the
         “clearest proof” that the effects of SORNA are sufficiently
         punitive to overcome the General Assembly's preferred
         categorization. Therefore, we further conclude that the
         retroactive application of SORNA to [the appellant] does
         not violate the Ex Post Facto Clause of the Federal
         Constitution.

Britton, 134 A.3d at 87-88 (citing Perez, 97 A.3d at 757).

      Here, Appellant does not actually refute the analysis in Perez, so

much as he contends that the decision was wrongly decided. We find no

reason to revisit the sound reasoning of that decision. In any event, absent

the existence of contrary, intervening United States or Pennsylvania



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Supreme Court precedent, Superior Court panels are bound by prior panel

decisions of the Superior Court.1 See Commonwealth v. Prout, 814 A.2d

693, 695 n. 2 (Pa. Super. 2002) (per curiam). Accordingly, based on our

decision in Perez, we find Appellant is not entitled to relief on his federal ex

post facto claim.2

       Order affirmed.




____________________________________________


1
  We note that our Supreme Court has granted allocatur in Commonwealth
v. Gilbert, --- A.3d ---, 2016 WL 1615797 (Pa., filed April 22, 2016), to
determine, inter alia, whether SORNA violates the Ex Post Facto Clause of
the United States and Pennsylvania Constitutions. While that decision is
pending, Perez remains controlling.
2
  Although Appellant alludes in his brief to the fact that both the United
States and Pennsylvania Constitutions afford separate bases for proscribing
ex post facto laws, see Appellant’s Brief at 16, he does not set forth a
separate analysis that retroactive application of SORNA violates the
Pennsylvania Constitution’s Ex Post Facto Clause. We therefore need not
address this averment further.

      We further note that although Appellant averred in his Petition to
Terminate Sexual Offender Registration that the lifetime registration
requirement under SORNA constituted a violation of the plea agreement
negotiated in Virginia, see Petition, 6/2/15 at ¶ 20, he does not develop this
argument on appeal. We therefore presume Appellant has abandoned this
issue. See Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super.
2013) (finding undeveloped claim to be waived).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2016




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