J-A15038-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LEONID ZELDICH,

                            Appellant               No. 2641 EDA 2014


                      Appeal from the Order August 14, 2014
                  In the Court of Common Pleas of Bucks County
               Criminal Division at No(s): CP-09-CR-0006495-2008


BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY BOWES, J.:            FILED DECEMBER 07, 2015

        Today, the learned majority upholds retroactive application of a

statute, SORNA,1 to an individual who unquestionably had no notice of the

new law at the time he pled guilty, or that a non-existent law would apply to

him, or that he would have no ability or opportunity to escape its

application.    In doing so, the majority must set aside seemingly every

principle of contract law and overlook the serious constitutional problems

with applying the statute to cases such as this.     If not for the fact that

SORNA applies to sex offenders, a class of individuals which rightly deserves

punishment and scorn, this Court’s continued diminishment of constitutional

____________________________________________


1
    42 Pa.C.S. § 9799.10-9799.41.



* Former Justice specially assigned to the Superior Court.
J-A15038-15



protections and lackluster application of contract law could not withstand

scrutiny.     For the reasons that follow, I respectfully dissent from the

holding that Appellant must register as a sex offender for life where the trial

court previously determined he was not a sexually violent predator (“SVP”)

subject to lifetime registration and the law at the time he entered his plea

agreement only mandated ten years of registration.

      Initially, I agree with Appellant that his contractual plea bargain was

violated by the addition of material terms to the agreement that were not

contemplated by the parties when it was entered. This Court continues to

ignore that in virtually no other setting, aside from retroactive application of

SORNA, does a court authorize material terms to be added to a contract

after the fact.    Rather than engage in an analysis of what terms were

agreed upon by the parties when the agreement was entered, we have

instead considered the absence of express evidence regarding a registration

requirement as proof that the individual acquiesced to non-existent terms

being imposed at a later date. See Commonwealth v. Giannantonio, 114

A.3d 429 (Pa.Super. 2015).     Such an interpretation of the law is not only

untenable, but it turns contractual analysis on its head.        If we are to

continue to construe plea bargains in a contractual manner as required by

applicable precedent, see Commonwealth v. Anderson, 996 A.2d 1184,

1191 (Pa.Super. 2010), we should do so faithfully and not to achieve a

desired result due to the nature of the offenders involved.

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      Instantly, the question is not only whether a ten-year period of

registration was a material element of the plea agreement, but whether

retroactive addition of lifetime registration adds a material element to the

agreement. In Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.Super.

1995), this Court set forth that “[a]lthough a plea agreement occurs in a

criminal context, it remains contractual in nature and is to be analyzed

under contract-law standards.”      Consistent with this approach, the Kroh

Court opined that ambiguities in the terms of the plea agreement are to be

construed against the Commonwealth. Id.

      Under ordinary contract principles, the terms of a contract are those

agreed to by the parties.     Indeed, a contract requires six elements:      (1)

mutual assent; (2) consideration; (3) contracting parties; (4) an agreement

that is sufficiently definite; (5) parties that have the legal capacity to make a

contract; and (6) an absence of any legal prohibition to the formation of the

agreement. John E. Murray Jr., Murray on Contracts, at 59 (4th Ed. 2001).

In deciding the terms of a plea agreement, as with other contracts, we

resolve any dispute by applying objective standards. Kroh, supra at 1172.

Contracts may be oral or written, and conduct or acts may evidence an

agreement. Additional material terms generally do not become part of an

agreement unless those terms are agreed upon either through a writing, an

express oral agreement, or a course of performance, including the conduct

of the parties.

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       Here, the actual terms of the agreement are relatively straightforward.

The Commonwealth agreed to nol pros charges of involuntary deviate sexual

intercourse (“IDSI”), attempted IDSI, burglary, criminal trespass, unlawful

restraint, and harassment and amend its charge of attempted sexual assault

to   attempted aggravated indecent             assault.   In   exchange,   Appellant

consented to plead guilty to attempted aggravated indecent assault, simple

assault, and terroristic threats.        The aggravated indecent assault charge

mandated a ten-year period of registration. However, a plea to IDSI would

have required lifetime reporting.          In addition, Appellant may have been

subject to lifetime reporting had his plea resulted in two separate

adjudications of guilt for the following crimes: IDSI, attempted IDSI, or

either attempted sexual assault or attempted aggravated indecent assault.

See Commonwealth v. Merolla, 909 A.2d 337 (Pa.Super. 2006) (holding

that multiple findings of guilt during one proceeding triggered lifetime

registration).2

____________________________________________


2
  The decision in Merolla has been questioned by a plurality of our Supreme
Court, Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012) (OISR), and
rejected by the Commonwealth Court. A.S. v. Pennsylvania State Police,
87 A.3d 917 (Pa.Cmwlth. 2014) (en banc). The Pennsylvania Supreme
Court also granted allowance of appeal in Commonwealth v. Mielnicki, 71
A.3d 245 (Pa. 2013), to determine if Merolla was properly decided.
However, the Supreme Court subsequently dismissed that appeal as
improvidently granted. Commonwealth v. Mielnicki, 105 A.3d 1256 (Pa.
2014). At the time of the Merolla decision, and Appellant’s plea, the term
“convicted” was not defined in the Megan’s Law statute. See former 42
(Footnote Continued Next Page)


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      The    Commonwealth           stipulated    that   it   was   “fully   aware   that

[Appellant’s] registration period under Megan’s Law would only be 10 years

unless he was determined to be a Sexually Violent Predator.”                     Parties

Stipulation, 8/11/14, at ¶ 2(a).          Admittedly, it averred that Megan’s Law

registration was not a focus of the plea negotiations and that the prosecutor

did not have a recollection of discussing registration with Appellant’s plea

counsel.

      Nonetheless, it is evident that Appellant negotiated to remove a

lifetime registration requirement. The IDSI charge, which mandated lifetime

reporting, was nol prossed.            Further, Appellant did not plead guilty to

multiple crimes that would have potentially subjected him to lifetime

registration.   It beggars belief to claim that avoiding lifetime registration,

absent a finding that he was an SVP, was not part of his plea agreement.

The majority’s claim that the “structure of plea does not evince an express

or implied agreement upon a registration period[,] Majority Memorandum, at

13, is unsupported by the facts. Appellant did not plead guilty to crimes that

would require lifetime registration or to multiple sex offenses.
                       _______________________
(Footnote Continued)

Pa.C.S. § 9792. I have opined on the differing usages and meaning of the
words “convicted” and “conviction” in legal matters. See Commonwealth
v. Thompson, 106 A.3d 742 (Pa.Super. 2014) (Bowes, J., concurring). The
term “convicted” is currently defined under SORNA and “[i]ncludes
conviction by entry of plea of guilty or nolo contendere, conviction after trial
or court martial and a finding of not guilty due to insanity or of guilty but
mentally ill.” 42 Pa.C.S. § 9799.12.



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      Further, the majority’s attempted distinction of our decision in Nase,

supra, on the grounds that defense counsel made statements therein

regarding the defendant being subject to ten-years registration and no such

comments were made herein is unpersuasive. In the present case, during

Appellant’s plea, he confirmed that unless he was determined to be an SVP,

he would only be subject to a ten-year period of registration. At sentencing,

after he was determined not to be an SVP, the Commonwealth posited,

“[Appellant] would be subject to a ten-year reporting requirement.”      N.T.,

9/22/09, at 5. Nase, therefore, is highly analogous. While defense counsel

did not place on the record that a ten-year registration was at issue, both

Appellant and the Commonwealth acknowledged that fact. Moreover, Nase

recognized that the law existing at the time of the entry of a contract

merges into that contract.

      Appellant and the Commonwealth did not mutually assent to lifetime

registration in exchange for Appellant’s plea. Lifetime registration was not a

term of the initial plea nor is it a term over which a reasonable person would

not have negotiated. Were this any other contractual scenario, it would be

beyond cavil that the Commonwealth could not retroactively add a material

term to the plea bargain and require Appellant to register beyond ten years.

Cf. First National Bank of Pennsylvania v. Flanagan, 528 a.2d 134, 137

(Pa. 1987) (“Any law which enlarges, abridges, or in any manner changes

the intention of the parties as evidence by their contract, imposing

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conditions not expressed therein or dispensing with the performance of

those which are a part of it, impairs its obligation[.]”).

       In this respect, I add that retroactive application of any law, except

ameliorative criminal law, has long been disfavored precisely because it is

perceived as fundamentally unfair.              William Blackstone, in his influential

Commentaries on the Laws of England, posited, “All laws should be therefore

made      to   commence         in   futuro,       and   be        notified   before    their

commencement[.]”           1   Tucker’s        Blackstone,    46     (Philadelphia,    1803).

“[S]ince the beginning of the Republic and indeed since the early days of the

common law: absent specific indication to the contrary, the operation of

nonpenal legislation is prospective only.”           Kaiser Aluminum & Chemical

Corp. v. Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring).

Similarly, this Court in Anderson v. Sunray Elec. Inc., 98 A.2d 374,

375 (Pa.Super. 1953) (emphasis added), has recognized, “Unless the

legislature clearly manifests its intention otherwise, no law may be

construed to be retroactive, and then only where it does not destroy

vested rights or impair the obligations of contracts.”                         See also 1

Pa.C.S. § 1926.3

       While the legislature here did expressly indicate that this law would

apply retroactively, that does not alter the fact that from the early days of
____________________________________________


3
    1 Pa.C.S. § 1926 codified Pennsylvania common law.



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this Commonwealth, our courts have recognized the odious nature of

retroactive civil laws.   In Commonwealth v. Duane, 1 Binn. 601 (Pa.

1809),   the   Pennsylvania   Supreme    Court   distinguished   between   the

prohibition against civil retroactive laws and ameliorative retrospective

criminal legislation. There, the defendant was indicted and found guilty of

committing a libel against Pennsylvania’s governor in his official capacity.

However, prior to his judgment of sentence, the legislature passed a law

stating that no person was to be prosecuted by indictment for publication of

papers or for investigating the official conduct of men in a public capacity.

Counsel for Duane argued that the law interfered with no vested right, did

not violate any right of property, and effectively terminated his prosecution.

      The Pennsylvania Supreme Court agreed, with Chief Justice Tilghman

stating, “If the same expression had been used, as applied to a civil action, I

should have thought myself warranted in giving it a different construction,

because then it would have operated in a retrospective manner, so as to

take away from a citizen a vested right.      But there is a wide difference

between a civil and a criminal action.” Id. at 608-609.

      Justice Joseph Story, writing while on circuit, offered a concise

summary of retroactive civil laws, which has been utilized by courts in this

Commonwealth.      He opined, “every statute, which takes away or impairs

vested rights acquired under existing laws, or creates a new obligation,

imposes a new duty, or attaches a new disability, in respect to transactions

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or considerations already past, must be deemed retrospective[.]”      Society

for the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756, 767

(1814).4    Justice Duncan of the Pennsylvania Supreme Court echoed this

definition, cited Justice Story’s opinion in his own opinion in Eakin v. Raub,

12 Serg. & Rawle 330 (Pa. 1825), and recognized the distinction between

the prohibition against civil retroactive law and ameliorative criminal

legislation. Id. at 362.5

       A number of other state courts have construed their versions of

SORNA as violating constitutional retroactivity clauses or that state’s ex post

facto prohibition. Starkey v. Oklahoma Dept. of Corrections, 305 P.3d

1004 (Okla. 2013) (SORNA statute violated ex post facto clause of state

constitution); Doe v. Department of Public Safety and Correctional
____________________________________________


4
   This Court has defined a vested right as one that “so completely and
definitely belongs to a person that it cannot be impaired or taken away
without the person's consent.” In re R.T., 778 A.2d 670, 679 (Pa.Super.
2001).    In Eakin v. Raub, 12 Serg. & Rawle 330, 360 (Pa. 1825),
Justice Duncan opined, “a vested right is where a man has power to do
certain actions, or to possess certain things, according to the laws of the
land.” One’s liberty interest is unquestionably a vested right, which is
supposed to only be deprived via due process.
5
    Civil retrospective law was also permissible where the law “does not
violate the constitutional prohibitions” and provided “to a party a remedy
which he did not previously possess, or modify an existing remedy, or
remove an impediment in the way of recovering redress by legal
proceedings.” Hepburn v. Curts, 7 Watts 300, 301 (Pa. 1838). Thus,
statutory law that benefitted individuals without invading the vested rights of
another was lawful.




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Services, 62 A.3d 123 (Md. 2013) (Maryland sex offender statute violated

ex post facto clause of state constitution); State v. Williams, 952 N.E.2d

1108, 1113 (Ohio 2011) (Ohio SORNA statute violated state constitutional

prohibition against retroactive laws); cf. State v. Bodyke, 933 N.E.2d 753

(Ohio 2010) (Ohio SORNA violated separation of powers) State v.

Letalien,      985 A.2d 4 (Me. 2009) (ex post facto violation to apply

retroactively the enhanced requirements of SORNA of 1999 when, by so

doing, the application revises and enhances sex offender registration

requirements that were a part of the offender's original sentence); but see

Doe I v. Williams, 61 A.3d 718 (Me. 2013) (SORNA statute at issue did not

violate substantive or procedural due process or ex post facto clause).

        Conversely, several states have upheld retroactive sex offender

registration changes under ex post facto and due process challenges. Doe I

v. Williams, supra; Roe v. Replogle, 408 S.W.3d 759 (Mo. 2013) (federal

SORNA law, applicable to residents of Missouri, did not violate substantive

due process); Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013). This

Court    has   rejected    a     federal   ex   post   facto   challenge   to   SORNA.

Commonwealth v. Perez, 97 A.3d 747 (Pa.Super. 2014).6

____________________________________________


6
   The Commonwealth Court in Coppolino v. Noonan, 102 A.3d 1254
(Pa.Cmwlth. 2014), affirmed, 132 MAP 2014 (November 20, 2015), did hold
that retroactive in-person registration under SORNA was unconstitutionally
punitive. It severed that provision from the remainder of the law.
(Footnote Continued Next Page)


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      I acknowledge that this Court is bound by Perez and its conclusion

that SORNA is not an ex post facto law since our courts do not consider

SORNA to be punitive.7 Indeed, Appellant does not even attempt to advance

such a position nor does he argue that under an originalist interpretation of

the Pennsylvania Constitution’s ex post facto clause, such a law should be

classified as penal. Of course, I note that even before the adoption of the

Pennsylvania Constitution, the Magna Carta exclaimed, “No Freeman shall be

taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free

Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we

not pass upon him, nor condemn him, but by lawful Judgment of his Peers,

or by Law of the Land.”           See In re Winship, 397 U.S. 358, 378-379,

(1970) (Black, J., dissenting).

      As far back as 1642, Lord Edward Coke, in his influential Institutes,

opined that “due process of law” is synonymous with “law of the land.” Id.

at 379; Hoboken Land, supra at 276.8 Justice Curtis, writing in 1855 for

the United States Supreme Court, opined,

                       _______________________
(Footnote Continued)


7
   I recognize that SORNA’s requirements only occur as a direct result of a
criminal conviction, are generally imposed at sentencing, except in cases
where the defendant has already been sentenced, and are often more
onerous than traditional probation and parole requirements.
8
  Appellant does argue that as a matter of due process he should only be
required to register for ten years.



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       The constitutions which had been adopted by the several States
       before the formation of the federal constitution, following the
       language of the great charter more closely, generally contained
       the words, ‘but by the judgment of his peers, or the law of the
       land.’ The ordinance of congress of July 13, 1787, for the
       government of the territory of the United States northwest of the
       River Ohio, used the same words.

Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855).                  He

continued by acknowledging that the federal constitution “contains no

description of those processes which it was intended to allow or forbid. It

does not even declare what principles are to be applied to ascertain whether

it be due process.” Id. However, the High Court set forth, “It is manifest

that it was not left to the legislative power to enact any process which might

be devised. The article is a restraint on the legislative as well as on the

executive and judicial powers of the government, and cannot be so

construed as to leave congress free to make any process ‘due process of

law,’ by its mere will.”         Id.    Even before Justice Curtis’ opinion, the

Pennsylvania Supreme Court recognized that due process is not satisfied by

the mere passage of legislation.9

____________________________________________


9
  Although the Pennsylvania Constitution does not utilize the term “due
process,” the phrase “law of the land,” used in Article I, § 9, is synonymous
with that term. Craig v. Kline, 65 Pa. 399, 413 (1870); Murray v.
Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855); see also
Commonwealth v. Kratsas, 764 A.2d 20, 49 n.5 (2001); Commonwealth
v. Rose, 81 A.3d 123, 126 n.2 (Pa.Super. 2013), allowance of appeal
granted on other ground, 95 A.3d 274 (Pa. 2014); Commonwealth v.
Harrell, 65 A.3d 420, 448 n.10 (Pa.Super. 2013) (Donohue, J., dissenting)).
(Footnote Continued Next Page)


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      In Norman v. Heist, 5 Watts & Serg. 171 (Pa. 1843), the Court held

that Pennsylvania’s law of the land provision was designed “to exclude

arbitrary power from every branch of the government; and there would be

no exclusion of it, if such rescripts or decrees were allowed to take effect in

the form of a statute.” Heist, supra at 173. There, the Pennsylvania High

Court ruled that a statute that retroactively deprived a party of property

violated due process. The “law of the land” had to be “a pre-existent rule of

conduct[.]” Id. In Brown v. Hummel, 6 Pa. 86 (1847), the Pennsylvania

Supreme Court eloquently stated,

      What, then, is the law of the land, as it relates to the protection
      of private rights? Does it mean bills of attainder in the shape of
      an act of Assembly, whereby a man's property is swept away
      from him without hearing trial, or judgment, or the opportunity
      of making known his rights or producing his evidence? It
      certainly does not. It was to guard against such things which had
      been common in the reign of the Stuarts and their predecessors,
      and with which our forefathers of the Anglo-Saxon race were
      familiar, that these irrevocable and unassailable provisions were
      introduced into the constitution. The law of the land does not
      mean acts of Assembly in regard to private rights, franchises,
      and interests, which are the subject of property and individual
      dominion. But it means what is clearly indicated by the other
      provisions of the bill of rights, to wit: the law of the individual
      case, as established in a fair and open trial, or an opportunity
      given for one in court, and by due course and process of law. "I
      am a Roman citizen," were once words of power, which brought
                       _______________________
(Footnote Continued)

Accordingly, Article I, § 9 of the Pennsylvania Constitution guarantees due
process protections. That provision reads in relevant part, “nor can he be
deprived of his life, liberty or property, unless by the judgment of his peers
or the law of the land.” Pa.Const. Art. I, § 9.




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      the proudest proconsul to a pause, when he was about to
      commit oppression: and the talismanic words, I am a citizen of
      Pennsylvania, secures to the individual his private rights, unless
      they are taken from him by a trial, where he has an opportunity
      of being heard by himself, his counsel, and his testimony, more
      majorum, according to the laws and customs of our fathers, and
      the securities and safeguards of the constitution.

Hummel, supra at 91.

      Counsel in Menges v. Dentler, 33 Pa. 495 (1859), also argued that

“law of the land” did not merely mean legislative acts.         Rather, they

maintained that laws that impaired or destroyed vested rights were in

violation of due process. The Dentler Court considered both Article I, § 9

and Article I, § 11 of the Pennsylvania Constitution, and accepted that

position. In doing so, it set forth,

      These provisions are taken from Magna Charta; but they have
      higher value here than in England, just as a constitution adopted
      by the people is of higher value than a mere act of Parliament.
      Parliament may disregard Magna Charta, but our legislature
      must obey the constitution. These provisions are, therefore,
      imperative limitations of legislative authority, and imperative
      impositions of judicial duty.

Dentler, supra at 498.     The Court continued,

      The law which gives character to a case, and by which it is to be
      decided (excluding the forms of coming to a decision), is the law
      that is inherent in the case, and constitutes part of it when it
      arises as a complete transaction between the parties. If this law
      be changed or annulled, the case is changed, and justice denied,
      and the due course of law violated.

Id.   These principles should apply no less than when the vested right in

question is not a property right but a liberty right against lifetime sex



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offender registration where the defendant had no notice of increased

registration requirements.10

       In this regard, I add that the majority neglects to confront Appellant’s

constitutional argument relative to the Contract Clause of the United States

and the Pennsylvania Constitution’s sister provision.         Since I believe

Appellant is entitled to relief on other grounds, I will not explore this aspect

of Appellant’s argument.

       In my view it is abundantly clear that increased registration violates

Appellant’s plea bargain, deprives him of procedural due process, and even

implicates the separation of powers doctrine. Pursuant to this doctrine, “the

legislature cannot invade the province of the judiciary by interfering with
____________________________________________


10
    The only Pennsylvania Supreme Court opinion to address SORNA and
procedural due process held that SORNA violated the rights of juveniles.
See In re J.B., 107 A.3d 1 (Pa. 2014). Therein, the High Court ruled that
registration for juvenile offenders, all of whom were previously not subject
to sex offender registration, violated due process. The juveniles in that case
each had been adjudicated delinquent before SORNA’s effective date, but
were still subject to juvenile court supervision on that date. Thus, unlike
Appellant herein, the juveniles were still under court supervision. Pursuant
to SORNA, juveniles who were subject to the jurisdiction of the juvenile
court, on the basis of certain sex offense adjudications, were required to
register as sex offenders. Juveniles required to register for life, contrary to
adults, were to be afforded a hearing twenty-five years after the completion
of court supervision. At that hearing, the juvenile offender would be able to
have registration terminated if he or she met certain criteria. The juvenile
offender would have to show by clear and convincing evidence that he or she
met the statutory criteria. The Supreme Court focused extensively on the
difference between juveniles and adults and concluded that creating an
irrebuttable presumption that the juveniles, based solely on their
adjudication, demonstrated a high risk of recidivism, was unconstitutional.



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judgments or decrees previously rendered.”            Pennsylvania Co. for

Insurances on Lives and Granting Annuities v. Scott, 29 A.2d 328,

329-330 (Pa. 1942).      Phrased differently, “even though the legislature

possesses the power to promulgate the substantive law, judicial judgments

and decrees entered pursuant to those laws may not be affected by

subsequent legislative changes after those judgments and decrees have

become final.” Commonwealth v. Sutley, 378 A.2d 780, 784 (Pa. 1977)

(footnote omitted).   Our Supreme Court, writing in 1862, has opined that

“the power of the legislature to prescribe a general rule of law[,]”

inconsistent with a prior judicial decree, is legitimate “when it operates on

future cases and not retrospectively[.]” Commonwealth ex rel. Johnson

v. Halloway, 42 Pa. 446, 448 (1862).

      For adult defendants who were not subject to lifetime registration

based solely on their convictions at the time, the court was required to

conduct an individualized assessment at a classification hearing and perform

independent fact-finding to impose lifetime registration.     This allowed the

court to determine whether the person was so dangerous as to mandate that

he register as a sex offender for life. To the extent that lifetime registration

is automatically retroactively statutorily imposed, based on convictions or

adjudications that did not result in such registration before, it could

potentially, in certain instances, violate the separation of powers doctrine.

This is because the court has already entered a judgment that the defendant

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is not subject to lifetime registration.      Here, a court determined Appellant

was not required to register for life.

      I repeat what the learned Professor Thomas Raeburn White so

eloquently stated over a century ago: “Any law which relates to past events

and alters the status of the parties with respect to them is unjust and

unwise, and this has been universally recognized by the American people.”

Thomas Raeburn White, Commentaries on the Constitution of Pennsylvania,

134 (1907).    Retroactively requiring an individual to have to register as a

sex offender for the remainder of his life, when he was initially subject to a

ten-year registration period, deprives the individual of notice and an

opportunity to be heard, and impairs his original plea bargain. For the

aforementioned reasons, I respectfully register this dissent.




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