J-A02031-15


                                   2015 PA Super 89

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JAMES GIANNANTONIO

                            Appellant                    No. 1669 EDA 2014


                     Appeal from the Order May 7, 2014
              In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-MD-000712-2013

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

OPINION BY PANELLA, J.                                    FILED APRIL 20, 2015

       In   June   2005,     Appellant,    James   Giannantonio,   entered   into   a

negotiated plea agreement in federal court to child pornography charges,

and served a term of incarceration. Because of his conviction, Giannantonio

was required to comply with applicable state laws regarding sex offender

registration after his release from prison. At the time of his release in 2007,

Pennsylvania’s Megan’s Law III required Giannantonio to register with the

Pennsylvania State Police (“PSP”) for ten years.              In 2012, however,

Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”)1
____________________________________________


1
 SORNA, codified at 42 Pa.C.S.A. §§ 9799.10-9799.41, became effective on
December 20, 2012. In this Opinion, we refer to this statute as “SORNA.”
Pennsylvania courts have also referred to the current statute as “Megan’s
Law IV,” “Act 111 of 2011,” “Adam Walsh Child Protection and Safety Act,”
and the “Adam Walsh Act.” See, e.g., Commonwealth v. M.W., 39 A.3d
958, 968 (Pa. 2012) (Baer, J., concurring); Coppolino v. Noonan, 102
(Footnote Continued Next Page)
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became effective and Giannantonio’s required registration period changed

from ten years to fifteen years. He commenced the instant action in June

2013, requesting that the trial court enter an order barring application of

SORNA to his case, arguing that it was not in effect at the time of his

release. The trial court denied his petition and this timely appeal followed.

      Giannantonio raises two primary issues on appeal. First, whether an

implied contract existed between Giannantonio and the Commonwealth as a

result of his federal plea agreement that bars the application of SORNA to

his conviction; and, second, whether SORNA, as applied to Giannantonio,

violates the ex post facto provision of the United States Constitution.2 We

affirm.

      Our legal discussion necessitates a more detailed procedural history of

the case and a review of the relevant provisions of SORNA. In June 2005,

with the assistance of counsel, Giannantonio pled guilty in federal court to

one count of the crime of possession of child pornography, 18 U.S.C.A. §

                       _______________________
(Footnote Continued)

A.3d 1254 (Pa. Cmwlth. 2014); Commonwealth v. Partee, 86 A.3d 245,
246 (Pa. Super. 2014); Commonwealth v. Hainesworth, 82 A.3d 444,
445 (Pa. Super. 2013), appeal denied, 95 A.3d 276 (Pa. 2014).
2
  Giannantonio makes no argument with regard to Article I, Section 17 of the
Pennsylvania Constitution, which also prohibits ex post facto laws. This is of
no significance because our Supreme Court has previously declined to hold
that this provision of the Pennsylvania Constitution imposes any greater
protections than Article I, Section 10 of the United States Constitution. See
Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa. 1999).




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2252A(a)(4)(b). The United States District Court subsequently sentenced

Giannantonio to incarceration in a federal penitentiary for a period of one

year and one day, to be followed by three years of supervised release. The

federal court’s judgment order included a standard list of five requirements

for    supervised    release,    each    followed   by   a   box   to   be   checked.

Giannantonio’s judgment order contained the following standard paragraph,

which was not checked:

        The defendant shall register with the state sex offender
        registration agency in the state where the defendant resides,
        works, or is a student, as directed by the probation officer.
        (Check here).

Id., at 3.

        The federal order is devoid of any reference to an agreement with

either federal prosecutors or the Commonwealth of Pennsylvania regarding

state registration following release from prison.

        After his release from prison in May 2007, Giannantonio re-established

residency in Pennsylvania. On June 20, 2007, he began registering with the

PSP as required by Megan’s Law III, then in effect.3 The relevant provisions

of Megan’s Law III required Giannantonio to register annually as a sex-

offender for ten years.4



____________________________________________


3
    42 Pa.C.S.A. § 9795.2(b)(4) (expired).
4
    42 Pa.C.S.A. § 9795.2(b)(4)(iii) (expired).



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      The Pennsylvania General Assembly passed SORNA in 2011 and the

governor signed it into law on December 20, 2011. The passage of SORNA

brought Pennsylvania into compliance with the Adam Walsh Child Protection

and Safety Act of 2006, 42 U.S.C. §§ 16901-16991, and provides a means

for the public and law enforcement officials to obtain information on sex

offenders. SORNA includes legislative findings and a declaration of policy. It

explains that the “Commonwealth’s laws regarding registration of sexual

offenders need to be strengthened.”     42 Pa.C.S.A. § 9799.11(a)(2).     “The

Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism

for the Commonwealth to increase its regulation of sexual offenders in a

manner which is nonpunitive but offers an increased measure of protection

to the citizens of this Commonwealth.” Id.

      SORNA expanded the list of offenses requiring registration, and

grouped offenders into one of three “Tiers,” depending on the severity of the

offense. See 42 Pa.C.S.A. § 9799.14(a)-(d). The legislation changed the

mandatory registration periods for adults to fifteen years, twenty-five years,

and lifetime, depending upon the offense and Tier classification.      See 42

Pa.C.S.A. § 9799.15(a). Offenders classified in Tier I are required to register

in person annually with the PSP, see 42 Pa.C.S.A. § 9799.15(e)(1), and

provide the information listed in 42 Pa.C.S.A. § 9799.16(b).          When it

became effective, SORNA applied to individuals already required to register,

and anyone who was already subject to registration was to “receive credit


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for any time registered with the PSP prior to December 20, 2012.” 42

Pa.C.S.A. § 9799.10(4).    See also 42 Pa.C.S.A. § 9799.15(a.1)(1).        The

prior registration requirements of Megan’s Law III expired when SORNA

became effective on December 20, 2012.

      On December 3, 2012, because Giannantonio was already subject to

registration, the PSP notified him of the applicable changes and, pursuant to

SORNA, classified him as a Tier I sex-offender.         See 42 Pa.C.S.A. §

9799.14(b)(13).     This classification requires Giannantonio to register

annually for a period of fifteen years, see 42 Pa.C.S.A. § 9799.15(a)(1) and

(e), thus changing his registration end date from June 2017 to June 2022.

      In response to the notification, Giannantonio filed, through counsel, a

“Petition to Enforce Implied Contract and/or For Writ of Habeas Corpus

and/or For Exemption from Applicability to Continue to Re-Register Under

Pennsylvania’s ‘New’ Megan’s Law as a 15-year Registrant,” in the Court of

Common Pleas of Delaware County.        The petition requested an exemption

from SORNA’s registration requirements. The trial court held a hearing on

January 7, 2014, during which Giannantonio testified that he had pled guilty

in exchange for a term of one and a half years’ incarceration followed by

three years’ supervision. He acknowledged that he had been aware when he

entered the plea that upon his release from prison, he would be required to

register as a sex offender pursuant to the applicable law then in effect in the

state in which he chose to reside. See Notes of Testimony Hearing (“N.T.”),


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1/7/14, at 7-8. Giannantonio was the sole witness to testify at the hearing.

Significantly, he did not offer into evidence a written plea agreement, the

notes of testimony from the federal proceedings, or evidence from the

attorney who had assisted him in negotiating the federal plea. See Trial

Court Opinion, dated 7/14/14, at 14.      The trial court denied the petition.

This timely appeal followed.

     We will reverse a denial or grant of a habeas corpus petition only for a

“manifest abuse of discretion.” Commonwealth v. Miller, 787 A.2d 1036,

1038 (Pa. Super. 2001).

     Giannantonio argues that when he entered into the plea agreement in

2006 with the federal prosecutor, it was with the understanding “easily

inferred from the surrounding circumstances,” that he would be required to

register as a sex offender in the Commonwealth of Pennsylvania for ten

years.   Appellant’s Brief at 10.     He maintains that because of this

agreement, the Commonwealth entered into an implied contract with him.

Alternatively, he argues that the Commonwealth was a “quasi party or third-

party beneficiary to the [federal] plea agreement.”       Id.   Giannantonio

further contends that the Commonwealth breached that alleged agreement

in 2012 by requiring him to register under the new requirements of SORNA,

and asserts that this Court “should enforce the implied contract as is

required by fundamental fairness and contract law, and the Contracts




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Clauses” of the Constitutions of the United States and Pennsylvania. Id., at

9.

      The Commonwealth responds that it does not owe a contractual duty

to Giannantonio because it was not a party to the plea in federal court, and

the record contains no evidence that the Commonwealth took any action

whatsoever with respect to his federal guilty plea.             Therefore, the

Commonwealth      argues,   it   cannot   be   seriously   contended   that   the

Commonwealth acted in any way that would create an inference that it

entered into an agreement, express or implied, with Giannantonio regarding

sexual offender registration.

      Giannantonio’s argument that the Commonwealth entered into an

implied contract with him is untenable.           “An implied contract is an

agreement which legitimately can be inferred from the intention of the

parties as evidenced by the circumstances and the ordinary course of dealing

and the common understanding of men.” Martin v. Little, Brown and Co.,

450 A.2d 984, 987 (Pa. Super. 1981) (citation and internal quotation marks

omitted).

      Nowhere in the record is there any indication that the Commonwealth

was a party to Giannantonio’s plea agreement. In fact, there is absolutely

nothing in the record demonstrating that state prosecutors or the PSP

participated in Giannantonio’s plea agreement in any way. The record

indicates that Giannantonio entered into a plea agreement with a federal


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prosecutor after being charged with federal offenses stemming from his

possession of child pornography. There is no indication of any involvement

by Commonwealth representatives. Because the Commonwealth had no

involvement or participation in the plea negotiation there is no implied

contract between Giannantonio and the Commonwealth.

      To circumvent this deficiency, Giannantonio alternatively argues that

the “Commonwealth, though not a direct party to the plea agreement, is a

quasi-party or third party beneficiary to all Megan’s Law cases involving plea

agreements.” Appellant’s Brief at 10. No case law or other authority is cited

in support of this contention.

      In Guy v. Liederbach, 459 A.2d 744 (Pa. 1983), our Supreme Court

explained that Section 302 of the Restatement (Second) of Contracts

(1979), mandates the following two-part test to determine whether one is a

third-party beneficiary to a contract:

      (1) the recognition of the beneficiary’s right must be appropriate
      to effectuate the intention of the parties, and (2) … the
      circumstances indicate that the promisee intends to give the
      beneficiary the benefit of the promised performance.

Id., at 751.

      Of course, in the instant case, there is no express contract. See, e.g.,

Appellant’s Brief at 10 (noting “[e]ven though the parties did not create an

express written agreement…”).      Under the aforementioned test, however,

even when there is no express contractual clause, an entity may still be a

third-party beneficiary. However, “Guy did not alter the requirement that in

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order for one to achieve third-party beneficiary status, that party must show

that both parties to the contract so intended, and that such intent was within

the parties’ contemplation at the time the contract was formed.” Burks v.

Federal Ins. Co., 883 A.2d 1086, 1088 (Pa.Super. 2005) (emphasis in

original).

      We agree with the trial court that there was no intent here to create

any   contractual   obligations   on   the   Commonwealth       of   Pennsylvania.

Pennsylvania was not a party to the agreement in any manner, thereby

negating any notion of a “quasi-party.” Furthermore, there is no evidence

that Pennsylvania was a third-party beneficiary.       Not only was there no

intent to benefit Pennsylvania, no benefit at all inured to Pennsylvania

because of the guilty plea. The statutorily mandated burden to supervise

Giannantonio passed to Pennsylvania once he resumed residency here

following his release, but certainly no benefit was realized.

      Giannantonio also argues that SORNA cannot apply to him because his

plea deal was structured around the 10-year Megan’s Law III registration

period then in effect. In support, he relies on Commonwealth v.

Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en banc), appeal denied, 95

A.3d 276 (Pa. 2014), and Commonwealth v. Partee, 86 A.3d 245 (Pa.

Super. 2014), appeal denied, 97 A.3d 744 (Pa. 2014). The Commonwealth

responds that Giannantonio mistakenly relies on Hainesworth and Partee

because the evidence of record does not even demonstrate that the ten-year


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registration period was a negotiated term of the federal plea, let alone

something to which the Commonwealth acquiesced. The Commonwealth is

correct; Hainesworth and Partee are inapplicable.         Hainesworth and

Partee stand for the proposition that this Court will specifically enforce

parties’ plea bargains.

       In Hainesworth, this Court affirmed the trial court’s decision that the

retroactive application of SORNA would offend a negotiated term in the plea

agreement between the Commonwealth and Hainesworth. See 82 A.3d at

450.    In Partee, the panel found that Partee’s negotiated plea “was

structured so that he would only be subject to a ten-year rather than a

lifetime reporting requirement[.]” 86 A.3d at 249. The panel explained that,

“[u]nder our reasoning in Hainesworth, [Partee] arguably would be entitled

to the benefit of that bargain.” Id. The panel nevertheless rejected Partee’s

challenge because he had violated his initial plea agreement by violating the

terms of his probation, holding that, “having failed to abide by the terms of

the plea bargain, that agreement is no longer in effect, and hence, [Partee]

is not entitled to specific performance.” Id., at 250.

       Unlike in Hainesworth and Partee, there is no evidence here that

Giannantonio’s guilty plea was negotiated or structured to insure that he

would register for only a ten-year period.     The record contains neither a

colloquy from the federal guilty plea or sentencing hearings nor testimony or

any other evidence demonstrating that counsel negotiated a specific ten-


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year registration period. Rather, the guilty plea required Giannantonio to

register and report pursuant to the law of the state in which he would reside

following his release (not necessarily Pennsylvania). We agree with the trial

court’s conclusion that “because [Giannantonio] has failed to demonstrate

through credible evidence that registration for a ten-year period was a

bargained[-]for element of his negotiated plea, the petition for relief from

SORNA’s requirements for an additional [five] years was properly denied.”

Trial Court Opinion, dated 7/14/14, at 13.

      Giannantonio next avers that “SORNA is unconstitutional as enacted

and applied to him because it substantially impairs the implied contract in

violation of the contract clauses of the U.S. and Pennsylvania Constitutions.”

Appellant’s Brief at 16. As we have already found that there was no contract

between Giannantonio and the Commonwealth, we need not address this

contention further.

      Giannantonio’s final contention also lacks merit. In this argument,

Giannantonio concedes that prior versions of Pennsylvania’s Megan’s Law

have been determined to be collateral consequences of a conviction, and

therefore, the laws were deemed constitutional.     However, he argues that

the aggregated requirements of SORNA are much more restrictive than the

prior versions and are accordingly “punitive in nature as applied to [him],”

thus violating the ex post facto clause of the United States constitution.

Appellant’s Brief at 25. He blames SORNA for requiring that he disclose


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personal information that was not required under Megan’s Law III, which he

alleges led the Border Patrol to conduct an intrusive search of his person and

property upon his return from Bermuda.             He also emphasizes the

embarrassment and inconvenience he feels for having to appear in-person to

register for an additional five years. Giannantonio also claims that, because

SORNA did not afford him a hearing before he was classified as a Tier I

offender, his right to due process was violated. See Appellant’s Brief at 39.5,
6



       The Commonwealth responds that the legislature’s express intent in

enacting SORNA was “to provide a non-punitive statutory scheme to protect
____________________________________________


5
  Giannantonio also summarily argues that “SORNA has no rational basis in
law” and “SORNA is unconstitutional as it lacks due process.” Appellant’s
Brief at 29 and 38. He provides no discussion of, or citation to, authority
pertaining to substantive and procedural due process. He also fails to cite to
or analyze any case law pertaining to the test used to determine whether a
statute has a “rational basis” to pass constitutional muster. Because his “due
process position is underdeveloped, … we will not determine whether
SORNA’s retroactive increase of registration requirements can withstand
either strict scrutiny or the rational basis test.” Commonwealth v. Nase,
104 A.3d 528, 530 (Pa. Super. 2014). This undeveloped claim is waived.
6
  Gionnantonio also contends that SORNA violates due process because
SORNA does not provide notice for an end date for registration, nor does it
provide a hearing for offenders “to challenge the requirements imposed upon
him.” Appellant’s Brief at 39. A simple calculation of adding the number of
years of required registration onto the year of release quickly provides an
end date. As demonstrated by the filing of his petition for habeas corpus,
his participation in the hearing before the trial court, and the filing of the
instant appeal, Giannantonio has been provided, and taken full advantage
of, all available processes to challenge the requirements imposed on him.
Accordingly, his due process claim is without merit.




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the general public” and our Supreme Court has twice held that substantially

similar language in previous versions of SORNA demonstrates a non-punitive

intent.   Appellee’s Brief at 27 (citing Commonwealth v. Williams, 832

A.2d 962, 971 (Pa. 2003), and Commonwealth v. Gaffney, 733 A.2d 616,

619 (Pa. 1999)). The Commonwealth asserts that SORNA is a non-punitive,

collateral consequence and, therefore, retroactive enforcement does not

violate the federal ex post facto clause. Both parties analyze SORNA using

the seven factors provided in Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168-69 (1963), a test used to determine whether the effects of a

statute are punitive or civil in nature.

       An issue involving a constitutional challenge presents a question of

law.   Thus, our standard of review is de novo and our scope of review is

plenary. See Commonwealth v. Molina, 104 A.3d 430, 441 (Pa. 2014).

       This Court recently reviewed, analyzed, and rejected an ex post facto

argument nearly identical to the one raised here.    In Commonwealth v.

Perez, 97 A.3d 747 (Pa. Super. 2014), the appellant pled nolo contendere

to one count of indecent assault. The trial court sentenced him to a term of

nine to twelve months’ imprisonment, plus two years’ probation, and

ordered him to register as a sex offender for a period of twenty-five years

pursuant to the requirements under SORNA. On appeal, Perez argued that

the application of SORNA’s registration requirement period was prohibited

under the ex post facto clauses of the U.S. and Pennsylvania Constitutions


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because Megan’s Law III was the law in effect when he committed his

offenses.

       After observing that Pennsylvania courts apply the two-prong test

articulated in Smith v. Doe, 538 U.S. 84 (2003), to determine if a law

inflicts punishment,7 a panel of this Court thoroughly analyzed SORNA

utilizing the seven Mendoza-Martinez factors8 before concluding that the

retroactive application of SORNA did not violate the ex post facto clauses of

the federal or state constitutions. See id., at 752-759.


____________________________________________


7
  The first prong of the Smith test requires examination of legislature’s
intent in enacting the law. If the intent is punitive, the statute constitutes
punishment and that is the end of the analysis. If the intent is civil and non-
punitive, however, the second prong of the test applies, requiring an
examination of “whether the statutory scheme is so punitive either in
purpose or effect as to negate [the legislature’s] intent to deem it civil.”
Perez, 97 A.3d at 751 (citing Smith, 538 U.S. at 92).
8
  The United States Supreme Court in Kennedy v. Mendoza–Martinez,
372 U.S. 144 (1963), mandated a seven-factor test to be applied in
determining whether the effects of a statute are sufficiently punitive to
override the legislature's preferred categorization. Courts were directed to
consider: (1) whether the sanction involves an affirmative disability or
restraint; (2) whether it has historically been regarded as a 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
is assignable for it; and (7) whether it appears excessive in relation to the
alternative purpose assigned. See id., at 168–169. The Supreme Court
recognized that each factors’ review may result in different conclusions
which were to be balanced in making an overall determination of whether
the statute was punitive. See id.




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      In a case decided less than two weeks after Perez, a different panel of

this Court specifically held that SORNA’s requirement of 15 years registration

for a Tier I offender was not unconstitutional.      In Commonwealth v.

McDonough, 96 A.3d 1067 (Pa. Super. 2014), appeal denied, 108 A.3d 34

(Pa. 2015), the appellant was found guilty after a jury trial of indecent

assault and sentenced to a term of one to two years’ incarceration. He was

classified as a Tier I sexual offender under SORNA, subject to a 15-year

registration period.   On appeal, McDonough argued, as does Giannantonio

here, that the 15-year registration requirements of SORNA for a Tier I

offense are not civil in nature because they impose restrictions and

requirements which, if violated, can result in imprisonment.       This Court

rejected that contention, stating:

      While [Commonwealth v.] Gaffney[, 733 A.2d 616 (Pa. 1999)]
      and [Commonwealth v.] Benner[, 853 A.2d 1068 (Pa. Super.
      2004)] were decided prior to the effective date of SORNA, the
      same principles behind the registration requirements for sexual
      offenders under Megan’s Law apply to those subject to SORNA.
      Namely, to effectuate, through remedial legislation, the non-
      punitive goal of public safety. Gaffney, 733 A.2d at 619; see 42
      Pa.C.S. § 9791(a) (legislative findings and declaration of policy
      behind registration of sexual offenders). In fact, one of the main
      purposes behind SORNA is to fortify the registration provisions
      applicable to such offenders. See 42 Pa.C.S. § 9799.10 (purpose
      of registration of sexual offenders under SORNA); see also H.R.
      75, 195th Gen. Assemb. Reg. Sess. (Pa.2012). With this purpose
      in mind, we cannot find that the law is unconstitutional as it
      applies to McDonough. He has offered neither competent nor
      credible evidence to undermine the legislative findings behind
      SORNA’s registration provisions. Accordingly, we find no error.

96 A.3d at 1071.



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      Similar to the case presented in McDonough, Giannantonio has not

offered any evidence to “undermine” the Legislature’s remedial justification

in enacting SORNA. Accordingly, his claim that the application of SORNA in

the instant case violates the ex post facto clause of the United States

Constitution fails.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion in denying Giannantonio’s habeas corpus petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2015




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