Com. v. Snyder, G.

J-S24041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

GARY THOMAS SNYDER, :

:

Appellant : No. 3299 EDA 2014

Appeal from the Order entered on October 29, 2014

in the Court of Common Pleas of Chester County,

Criminal Division, No. CP-15-CR-0004049-2002

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 11, 2015

Gary Thomas Snyder (“Snyder”) appeals from the Order denying his

Petition (hereinafter “the Petition for Relief”) seeking exemption from being

required to register with the Pennsylvania State Police (“PSP”) as a sex

offender for his lifetime, pursuant to the Sex Offender Registration and

Notification Act (“SORNA”),1 and challenging SORNA’s constitutionality

concerning its retroactive application. We affirm.

Between July 1994 and August 1995, Snyder sexually assaulted a

seven-year-old girl, A.G., on several occasions. Snyder, inter alia, (1)

fondled A.G.’s chest; (2) kissed her on the mouth after removing both of

their clothes; (3) inserted his finger into her vagina; and (4) forced her to

touch his penis with her hand. A.G. stated that after each assault, Snyder

1

See 42 Pa.C.S.A. § 9799, et seq.

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threatened that he would harm her family if she told anyone about what had

happened.

A.G. reported the sexual assaults to the police several years later,

when she was fifteen-years-old. In September 2002, the Commonwealth

charged Snyder with several offenses, including four counts each of indecent

assault of a minor less than thirteen years of age and corruption of minors.2

On February 13, 2003, Snyder pled guilty to two counts each of indecent

assault of a minor less than thirteen years of age and corruption of minors.

Snyder’s guilty plea was the result of a negotiated agreement, wherein the

Commonwealth agreed that it would withdraw the remaining charges and

recommend a sentence of eight years of probation, the first nine months of

which would be under electronic home monitoring. Notably, at the time of

Snyder’s plea, the offense of indecent assault of a minor less than thirteen

years of age required a ten-year period of sex offender registration under

Megan’s Law II.3

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth what

transpired thereafter as follows:

[Snyder] was sentenced on June 9, 2003[, pursuant to the

negotiated plea agreement,] … [to] an aggregate sentence of 8

years [of] probation. He was also ordered to undergo 9 months

of electronic home confinement, undergo [a] sex offender

evaluation, a psychological evaluation, to complete a Sex

2

See 18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1).

3

See 42 Pa.C.S.A. § 9795.1(a)(1). This statutory provision was replaced by

the provisions of SORNA, which became effective in December 2012. See

42 Pa.C.S.A. § 9799.41.

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Offender Program, and have no unsupervised contact with

minors. As sentenced, his probation extended through June 9,

2011. [Snyder] did not file a direct appeal from [his] judgment

of sentence.

On June 25, 2008, the Chester County Probation

Department sought a bench warrant for [Snyder’s] arrest[,]

[based] upon allegations of [his] probation violation, alleging he

had failed to complete the Sex Offender Program and had

unsupervised contact with minors on multiple occasions.

[Snyder] was taken into custody and imprisoned on September

9, 2008, and following [a] hearing …, [Snyder] was found in

violation of his probation. He was sentenced to 3 to 23 months

[of] incarceration, subject to conditions, given credit for time

served, and made eligible for parole after serving his minimum

sentence. … He was paroled on December 3, 2008, and

completed probation supervision on February 12, 2011. He was

not on probation when he filed the instant [P]etition [for Relief]

seeking relief from the lifetime registration requirement.

[Snyder] began registering as a sex offender on June 12, 2003.

Under Megan’s Law II[,] he was required to register through

mid-June 2013.

On December 3, 2012, the Commander of the Megan’s Law

Section of the [PSP] notified [Snyder] in writing that [pursuant

to SORNA,] he was required to register as a sexual offender with

the [PSP] for [his l]ifetime as a Tier III sexual offender,[4] and to

verify his registration information in person every 3 months at

an approved registration site. He was further advised that he

now appeared on the Megan’s Law Registry as a sexual offender.

… SORNA increased [Snyder’s] reporting requirements by a

multiple of four. Under Megan’s Law III, he was required to

appear only once each year[,] at a location designated by the

[PSP,] to verify his residence and be photographed. Under

SORNA, Snyder must register a wider array of information with

the PSP, including aliases, nicknames, internet identifiers under

which he communicates or posts, date of birth, social security

4

Under SORNA, a conviction for indecent assault of a minor less than

thirteen years of age is designated as a “Tier III sexual offense,” subjecting

an individual convicted of this offense to a lifetime registration requirement.

See 42 Pa.C.S.A. § 9799.14(d)(8); id. § 9799.15(a)(3). Pursuant to 42

Pa.C.S.A. § 9799.13(3)(i), Snyder was required to register for his lifetime

because he had not yet fulfilled his ten-year period of registration under

Megan’s Law when SORNA became effective in December 2012.

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number, telephone number, passport, driver’s license,

professional licenses, and license plate or motor vehicle

registration numbers.

On September 23, 2013, [Snyder] filed the [Petition for

Relief, wherein he] essentially contends that the effects upon

him of SORNA are punitive in nature, and not mere collateral

consequences of his conviction, thereby rendering its ex post

facto application to him unconstitutional. He further contends

that he is legally entitled to the benefit of the bargain made in

his plea agreement with the Commonwealth, which included the

limitation that he register as a sexual offender for not more than

ten years.[5]

Trial Court Opinion, 10/29/14, at 2-5 (footnotes added, citations omitted).

By an Order entered on October 29, 2014, the trial court denied the

Petition for Relief.6 Snyder timely filed a Notice of Appeal. The trial court

5

Snyder has abandoned on appeal his claim that he is entitled to specific

enforcement of the ten-year sex offender registration period because it was

part of his negotiated plea agreement. Indeed, this Court previously

rejected such a claim in Commonwealth v. Partee, 86 A.3d 245 (Pa.

Super. 2014). In Partee, the defendant had (1) entered a negotiated nolo

contendere plea to a sexual offense that required a ten-year period of

registration under Megan’s Law II; (2) subsequently violated his probation;

and (3) thereafter received notification following the enactment of SORNA

that he was now required to register with the PSP as a sex offender for life.

Id. at 246. This Court held that the defendant was not entitled to specific

performance of the negotiated plea agreement because, “having failed to

abide by the terms of the plea bargain, that agreement [was] no longer in

effect[.]” Id. at 250. Like the situation in Partee, Snyder’s violation of his

probation abrogated the plea agreement.

6

The trial court properly determined that the Petition for Relief does not fall

under the provisions of the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. See Trial Court Opinion, 10/29/14, at 7; see also

Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa. Super. 2014) (collecting

cases and holding that “the statutory and rule-based requirements

governing a PCRA petition do not apply to a challenge to the retroactive

application of [SORNA], but [] this Court has jurisdiction to review orders

confirming or rejecting a retroactive registration requirement.”).

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did not order Snyder to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.

Snyder presents the following issues for our review:

Whether the Court of Common Pleas committed error:

I. In failing to grant [the P]etition [for Relief] because the

Court failed to consider that [Snyder] should only be

required to register for ten (10) years[,] as his

offenses were part of a single criminal episode or

course of conduct[?]

II. In failing to grant [the P]etition [for Relief] because the

Court failed to consider that changing, or expanding

and extending, [Snyder’s] registration and reporting

requirements is a form of punishment and thus,

[retroactive] application of SORNA violates the Ex Post

Facto clauses of the United States and Pennsylvania

Constitutions[?]

Brief for Appellant at 4.

Because Snyder’s issues implicate a pure question of law, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Raban, 85 A.3d 467, 468 (Pa. 2014); see also In the Interest of J.B.,

107 A.3d 1, 14 (Pa. 2014) (addressing a challenge to the constitutionality of

the retroactive application of SORNA and observing that “a party challenging

a statute must meet the high burden of demonstrating that the statute

clearly, palpably, and plainly violates the Constitution.” (citation and

quotation marks omitted)).

Snyder first argues that the trial court erred by denying the Petition for

Relief because his offenses were part of a single criminal episode or course

of conduct, and, therefore, he should only be required to register as a sex

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offender for ten years, as opposed to his lifetime. Brief for Appellant at 8, 9.

Specifically, Snyder contends as follows:

When SORNA became the effective law, part of the reason that

[Snyder] was reclassified as a lifetime registrant (Tier III) … was

due to the language in 42 Pa.C.S. § 9799.14(d)(16)[,] which

states that an individual is subject to lifetime registration if he or

she has “[t]wo or more convictions of offenses listed as Tier I or

Tier II sexual offenses.” 42 Pa.C.S. § 9799.14(d)(16)[].

[Snyder is] of the opinion that this provision requiring lifetime

registration only applies to repeat offenders and recidivists who

are convicted of separate acts of misconduct that lead to

separate and multiple convictions. This provision should not

apply to individuals who engage in misconduct that results in

one conviction with multiple criminal charges/offenses.

Brief for Appellant at 9.

This claim is waived because Snyder failed to preserve it for our

review, having never raised it in the trial court. See Pa.R.A.P. 302(a)

(stating that an issue cannot be raised for the first time on appeal); see

also Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013)

(stating that “[b]y requiring that an issue be considered waived if raised for

the first time on appeal, our [appellate C]ourts ensure that the trial court

that initially hears a dispute has had an opportunity to consider the issue.

This jurisprudential mandate is also grounded upon the principle that a trial

court must be given the opportunity to correct its errors as early as

possible.” (citation and ellipses omitted));7 see also Commonwealth v.

Colavita, 993 A.2d 874, 891 (Pa. 2010) (stating that “[w]here the parties

7

The trial court did not address Snyder’s instant claim in its Pa.R.A.P.

1925(a) Opinion.

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fail to preserve an issue for appeal, the Superior Court may not address that

issue sua sponte.” (citation omitted)).8

Next, Snyder argues that SORNA is punitive, and that the retroactive

application of SORNA to him violates the Ex Post Facto Clauses of Article 1,

§ 10 of the United States Constitution and Article 1, § 17 of the Pennsylvania

Constitution. See Brief for Appellant at 21-38.

A panel of this Court recently addressed this precise issue in

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

acknowledges Perez in a footnote, but argues that its holding does not

apply to his particular circumstances. Brief for Appellant at 21 n.12.

Contrary to Snyder’s assertion, we determine that Perez is directly

applicable and requires rejection of his constitutional challenge.

In Perez, the defendant committed the offense of indecent assault

prior to SORNA’s enactment, and entered a negotiated nolo contendere plea

to this charge. Perez, 97 A.3d at 749. At the time of his offense, the

version of Megan’s Law then in effect required him to register as a sex

offender for 10 years. Id. Under SORNA, which went into effect shortly

before the defendant’s plea, he was required to register for 25 years. Id.

Prior to sentencing, the defendant filed a motion to declare SORNA

unconstitutional on the ground that the Ex Post Facto Clauses in the federal

and state constitutions prohibited retroactive application of the 25-year

8

Nevertheless, we observe that Snyder’s crimes did not constitute a single

criminal episode, as he had sexually assaulted A.G. on multiple separate

occasions.

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registration requirement to him. Id. The trial court denied the motion and

ordered the defendant to register for the next 25 years. Id.

On appeal, this Court observed that the defendant’s challenge to the

constitutionality of the retroactive application of SORNA must be evaluated

under a two-step test, established by the United States Supreme Court in

Smith v. Doe, 538 U.S. 84 (2003). Perez, 97 A.3d at 751 (citing Smith,

538 U.S. at 92 (stating that the two-step test for determining whether a civil

remedy is punitive in nature requires an inquiry into (1) whether the

legislature intended the statutory scheme to be punitive; and (2) only if the

first step is met, “whether the statutory scheme is so punitive either in

purpose or effect as to negate [the State’s] intention to deem it civil.”)); see

also Perez, 97 A.3d at 750 n.4 (stating that “[a]lthough the [United States]

Supreme Court has addressed the federal version of SORNA on prior

occasions, it has never had the occasion to address its constitutionality vis-

à-vis the Ex Post Facto Clause[,]” but acknowledging that most of the Courts

of Appeals have concluded that SORNA does not violate the federal Ex Post

Facto Clause).

Concerning the first step under Smith, the Perez Court declared that

the General Assembly did not intend SORNA to be punitive in nature.

Perez, 97 A.3d at 751 (citing 42 Pa.C.S.A. § 9799.11(b)(2), which sets forth

legislative findings and a declaration of policy instructing that SORNA shall

not be construed as punitive). Turning to the second step, the Court

addressed whether SORNA constitutes “punishment” under the multi-factor

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

Perez, 97 A.3d at 751 (stating that “[t]he Supreme Court has held that only

the ‘clearest proof’ will suffice to override the legislature’s preferred

classification of the statute.” (quoting Smith, 538 U.S. at 92)). The panel

held, after conducting an exhaustive analysis of the seven Kennedy factors,

that SORNA does not constitute punishment, and, therefore, was valid under

the Ex Post Facto Clause of the United States Constitution. Id. at 752-59.

The panel explained that all but one of the Kennedy factors weighed against

finding SORNA punitive, stating, in sum, that (1) registration requirements

historically are not regarded as punishment, unlike probation/parole,

because individuals subject to SORNA are free to live and work where they

wish, without supervision; (2) SORNA does not come into play upon a

finding of scienter; (3) although SORNA has some aspects of retribution for

past conduct, and deterrence of future criminal conduct, the statutory

scheme primarily is regulatory, and the General Assembly is permitted to

have some deterrent and retributive effects in its legislation, particularly

where its goal is to prevent recidivism and protect the public; (4) SORNA is

rationally related to a non-punitive purpose, namely the Commonwealth’s

interest in preventing crimes of a sexual nature; and (5) SORNA is not

excessive in relation to its regulatory purpose of protecting the public from

convicted sexual offenders, who pose a high risk of recidivism. Id. at 752-

58. The Perez Court found that only one factor weighed in favor of finding

SORNA punitive, i.e., SORNA imposed an affirmative restraint on the

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defendant by requiring him to appear in-person at a PSP facility a minimum

of 50 times over the next 25 years. Id. at 752-54. However, the panel

concluded that this single factor did not render SORNA punitive because,

inter alia, “the restraint is relatively minor when balanced against the

remaining factors.” Id. at 758.

The Perez Court then proceeded to address the defendant’s ex post

facto claim under the Pennsylvania Constitution, and determined that it did

not entitle him to relief:

Article I, Section 17 of the Pennsylvania Constitution states

that “[n]o ex post facto law, nor any law impairing the obligation

of contracts, or making irrevocable any grant of special

privileges or immunities, shall be passed.” Pa. Const. Art. I,

§ 17. This Court has recently held that “the standards applied to

determine an ex post facto violation under the Pennsylvania

Constitution and the United States Constitution are comparable.”

Commonwealth v. Rose, 2013 PA Super 305, 81 A.3d 123,

127 (Pa. Super. 2013) (en banc). Our Supreme Court has

previously declined to hold that the Ex Post Facto Clause of the

Pennsylvania Constitution imposes greater protections than

Article I, Section 10 of the Federal Constitution. See

Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616, 622

(Pa. 1999) (stating that Gaffney “failed to present any

compelling reason for our departure from the standards

appropriate for determining whether an ex post facto violation

pursuant to the federal constitution has occurred[,] and we find

no independent reasons for doing so[]”).

It is axiomatic that when presenting a claim for higher

protections under the Pennsylvania Constitution, the [a]ppellant

must discuss the following four factors:

1) text of the Pennsylvania constitutional provision;

2) history of the provision, including Pennsylvania case-

law;

3) related case-law from other states;

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4) policy considerations, including unique issues of state

and local concern, and applicability within modern

Pennsylvania jurisprudence.

Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 895

(Pa. 1991). The Edmunds analysis is mandatory and a failure

to provide it precludes the consideration of a state constitutional

claim independent of its federal counterpart. See, e.g.,

Commonwealth v. Baker, 621 Pa. 401, 78 A.3d 1044, 1048

(Pa. 2013) (concluding that Baker’s failure to provide an

Edmunds analysis precluded considering whether Article I,

Section 13 of the Pennsylvania Constitution provided higher

protections that the Eighth Amendment of the Federal

Constitution on cruel and unusual punishments).

Here, [a]ppellant’s brief does not include the required

Edmunds analysis to consider whether under this specific

statute, the Pennsylvania Constitution would provide higher ex

post facto protections than Article I, Section 10 of the Federal

Constitution. … Because we have already resolved [the

appellant’s] federal ex post facto claim using [the] framework

promulgated by the United States Supreme Court, and

[a]ppellant does not argue that the Pennsylvania Constitution

provides higher protection, his claim under the Pennsylvania

Constitution likewise fails. See Baker, supra; Edmunds,

supra.

Perez, 97 A.3d at 759-60.

In the instant case, although Snyder (1) argues that the retroactive

application of SORNA’s provisions violates the Pennsylvania Constitution’s Ex

Post Facto Clause; and (2) exhaustively discusses all seven Kennedy

factors, related case law from other states, and policy considerations, like

the situation in Perez, he does not argue that the Pennsylvania

Constitution’s Ex Post Facto Clause provides greater protection than its

federal counterpart. See, e.g., Brief for Appellant at 21 (wherein Snyder

sets forth the respective language of both Ex Post Facto Clauses, but does

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not assert that Pennsylvania’s clause provides greater protection); see also

Perez, 97 A.3d at 760 (rejecting the appellant’s challenge to the

constitutionality of SORNA under the Pennsylvania Constitution where he did

not argue that the state constitution provided greater protection than its

federal counterpart). Accordingly, we are compelled to apply the Perez

decision in rejecting Snyder’s constitutional challenge.9

In conclusion, we understand Snyder’s displeasure at having to

register for his lifetime as a sex offender, even though approximately nine

years had elapsed between the date of sentencing and the date he received

notice of his requirement to register for his lifetime under SORNA.

Nevertheless, the trial court’s Order denying his constitutional challenge is

9

In its Pa.R.A.P. 1925(a) Opinion, the trial court in the instant case points

out that at least two other states have ruled contrary to Perez, holding that,

under their respective state constitutions, the retroactive application of

longer sexual offender registration periods under SORNA was

unconstitutional. See Trial Court Opinion, 10/29/14, at 11-12 (citing

Gonzalez v. State of Indiana, 980 N.E.2d 312 (Ind. 2013), and State v.

Williams, 952 N.E.2d 1108 (Ohio 2011), as well as Judge Donohue’s

concurring opinion in Perez, Perez, 97 A.3d at 760-67). The trial court also

suggests that further appellate consideration of the constitutional issues

presented in the instant case is appropriate. See Trial Court Opinion,

10/29/14, at 12. However, it is axiomatic that a three-judge panel is bound

by previous panel opinions unless overruled by this Court sitting en banc,

our Supreme Court, or the United States Supreme Court. Commonwealth

v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006); see also Commonwealth

v. Perez, 2014 Pa. Super. LEXIS 2910 (Pa. Super. 2014) (denying Perez’s

petition for reargument). Accordingly, under the particular circumstances of

this case, we are bound by the majority’s holding in Perez, as Perez is

directly on point.

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correct under the current law.10

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2015

10

To the extent that Snyder argues SORNA violates his federal and state

due process rights because it (1) did not afford him proper notice concerning

his new registration requirement, and an opportunity to challenge the

requirement; and (2) utilizes an irrebuttable presumption about sexual

offenders’ high risk of recidivism and impinges upon offenders’ right to

reputation, see Brief for Appellant at 15-20, 35-36, such claims are waived

because they were not raised in, or fairly suggested by, Snyder’s Statement

of Questions Presented, nor were they preserved in the trial court. See

Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unless it is

stated in the statement of questions involved or is fairly suggested

thereby.”); Pa.R.A.P. 302(a). However, even if these claims were not

waived, we would determine that they are without merit. First, the letter

that the PSP sent Snyder in December 2012 adequately put him on notice

that he was required to register for his lifetime under SORNA, and Snyder

has, in fact, been permitted to challenge SORNA’s registration requirement

in the trial court and this Court. Second, though Snyder cites to our

Supreme Court’s decision in In the Interest of J.B., supra, in support of

his claim that SORNA deprives him of due process by applying an

irrebuttable presumption concerning recidivism, and impinges upon his right

to reputation, he fails to acknowledge that the Supreme Court’s holding in

J.B. was limited to only juveniles. Id. at 2, 19-20 (holding that “SORNA

violates juvenile offenders’ due process rights through the use of an

irrebuttable presumption[,]” where the presumption is not universally true

and a reasonable alternative means exists for determining which juvenile

offenders are likely to reoffend.) (emphasis assed)). Moreover, our research

discloses no cases extending this holding to adult offenders under SORNA.

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