Commonwealth v. Wood

J-E03004-18

2019 PA Super 117

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DANIEL C. WOOD :

:

Appellant : No. 1193 MDA 2017

Appeal from the Judgment of Sentence June 29, 2017

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-CR-0001382-2013

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DANIEL C. WOOD :

:

Appellant : No. 1194 MDA 2017

Appeal from the Judgment of Sentence June 29, 2017

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-CR-0001758-2017

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,

LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED APRIL 15, 2019

Daniel C. Wood (Appellant) appeals from the judgment of sentence

entered at Docket Number CP-06-CR-0001758-2017 (1758-2017) for failure

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to comply with registration requirements1 as required under Pennsylvania’s

Sexual Offender Registration and Notification Act (SORNA),2 and the judgment

of sentence entered at Docket Number CP-06-CR-0001382-2013 (1382-2013)

following the revocation of his probation for failing to register pursuant to

SORNA. Appellant argues that the application of SORNA to his case

constituted an unconstitutional ex post facto punishment because he

committed the sex offense to which he pled guilty at Docket Number 1382-

2013 prior to SORNA’s effective date. After careful consideration, we reverse

Appellant’s conviction for failure to comply with registration requirements and

vacate his judgment of sentence at Docket Number 1758-2017. Additionally,

we reverse the trial court’s order finding Appellant in violation of probation

and vacate the judgment of sentence imposed after the trial court revoked his

probation at Docket Number 1382-2013.

On June 13, 2013, Appellant entered a negotiated guilty plea at Docket

Number 1382-2013 to one count of statutory sexual assault3 after his

stepdaughter, who was under 14 years of age, reported that Appellant

sexually abused her on three to four occasions in 2012, with the final incident

occurring near the end of August of that year.

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1 18 Pa.C.S.A. § 4915.1(a)(1).

2 42 Pa.C.S.A. §§ 9799.10–9799.41.

3 18 Pa.C.S.A. § 3122.1(b).

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Following Appellant’s guilty plea, the trial court ordered Appellant to

submit to an evaluation by the Sexual Offenders Assessment Board (SOAB).

The SOAB determined that Appellant was not a sexually violent predator.

Appellant, however, was classified as a Tier III sex offender under SORNA.4

See 42 Pa.C.S.A. § 9799.14(d)(3). On October 29, 2013, the trial court

sentenced Appellant to 9 to 23 months of imprisonment followed by five years

of probation. Additionally, as a Tier III offender, the trial court directed

Appellant to register with the Pennsylvania State Police as a sex offender for

the remainder of his life. See 42 Pa.C.S.A. § 9799.15(a)(3). Appellant did

not file a direct appeal from his judgment of sentence at Docket Number 1382-

2013.

On January 31, 2017, while Appellant was still serving his sentence of

probation at Docket Number 1382-2013, the trial court issued a bench warrant

for Appellant’s arrest for failing to comply with the conditions of his probation,

namely, by failing to register as a sex offender pursuant to SORNA. Appellant

was subsequently arrested and charged at Docket Number 1758-2017 with

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4 “For adult sexual offenders, SORNA classifies sexual offenses into three

tiers, with different levels of registration requirements. … Tier I offenses

require registration for fifteen years, and Tier II mandates twenty-five years

of reporting. Id. § 9799.15(a). Lifetime registration is reserved for those

convicted of a Tier III sexual offense, those determined to be sexual violent

predators under 42 Pa.C.S.A. § 9799.24, sexually violent delinquent children,

and [certain juvenile offenders[.]” In re J.B., 107 A.3d 1, 5 (Pa. 2014).

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one count of failure to comply with registration requirements and one count

of failure to verify his address, 18 Pa.C.S.A. § 4915.1(a)(1), (2).

On June 29, 2017, Appellant entered a negotiated plea of guilty at

Docket Number 1758-2017 to a single count of failure to comply with

registration requirements. The same day, the trial court sentenced Appellant

to 18 months to 5 years of imprisonment.5 The trial court proceeded

immediately to a hearing on Appellant’s violation of probation on the

underlying statutory sexual assault conviction at Docket Number 1382-2013,

triggered by his failure to register under SORNA. Appellant waived his right

to a formal Gagnon II6 hearing, and admitted to violating his probation by

failing to register and by incurring a new conviction. The trial court entered

an order finding him in violation of his probation. See N.T., 6/29/17, at 7-8.

The trial court revoked Appellant’s probation and re-sentenced him to 18 to

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5 Section 4915.1(a)(1) states:

(a) Offense defined.--An individual who is subject to

registration under 42 Pa.C.S. § 9799.13 (relating to applicability)

commits an offense if he knowingly fails to:

* * *

(1) register with the Pennsylvania State Police as required

under 42 Pa.C.S. § 9799.15 (relating to period of registration),

9799.19 (relating to initial registration) or 9799.25 (relating to

verification by sexual offenders and Pennsylvania State Police)

18 Pa.C.S.A. § 4915.1(a)(1).

6 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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60 months of imprisonment, concurrent with the sentence imposed for his

conviction of failure to comply with registration requirements at Docket

Number 1758-2017.

On July 19, 2017, the Pennsylvania Supreme Court issued its Opinion

Announcing the Judgment of the Court in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), cert. denied sub nom., Pennsylvania v. Muniz, (U.S.

Jan. 22, 2018), which found SORNA to be punitive in nature and held that

retroactive application of the registration and reporting requirements of

SORNA violated the ex post facto clauses of the United States and

Pennsylvania Constitutions. Id. at 1223.

On July 31, 2017, Appellant filed notices of appeal at both Docket

Number 1382-2013 and Docket Number 1758-2017, which we consolidated

sua sponte. On appeal, Appellant argued that his sentences at Docket Number

1758-2017, for failure to comply with registration requirements, and at Docket

Number 1382-2013, for violation of his probation by failing to register under

SORNA, were illegal in light of Muniz. Appellant asserted that Muniz declared

SORNA’s registration provisions punitive, and thus, the retroactive application

of SORNA’s registration provisions to Appellant when he committed sexual

offenses prior to December 20, 2012 – SORNA’s effective date – violated the

ex post facto clause of both the United States and Pennsylvania Constitutions.

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On April 20, 2018, this Court certified this case for en banc review7 on

the following issues:

(1) In consideration of Appellant’s having committed the relevant

crimes in 2012, all prior to December 2012, whether the

enactment date or the effective date of the Sex Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S.[A.] §§

9799.10-9799.41, controls for purposes of offenses committed

between the enactment date and the effective date?

(2) Whether there is an ex post facto violation to a defendant who

is sentenced under SORNA for criminal acts committed after the

enactment date of SORNA (December 20, 2011) but before the

effective date of SORNA (December 20, 2012)?

(3) Whether this Court must address if the Act of Feb. 21, 2018,

P.L. 27, No. 10 (HB 631 of 2017; “Act 10”), applies in the instant

case and all cases governed by SORNA and, if so, whether Act 10

renders the registration provisions of SORNA non-punitive?

(4) If Act 10 applies in the instant matter, whether Act 10’s

potential effects on Appellant, as a result of the crimes having

been committed in 2012, but all before December 2012, violate

the ex post facto clause of the United States or Pennsylvania

Constitutions?

Order Directing En Banc Certification, 4/20/18.

We begin by addressing the first two issues, as they are dispositive of

this appeal. Appellant argues that he should not be subject to SORNA’s

registration and reporting requirements. Appellant asserts that although the

General Assembly enacted SORNA on December 20, 2011, prior to the time

he committed his crimes in August 2012, SORNA did not go into effect until

____________________________________________

7 This Court also certified Commonwealth v. Lippincott, 2057 EDA 2014,

for en banc review, which involves the same issues.

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December 20, 2012. Therefore, Appellant contends that the application of

SORNA to his case violates the ex post facto clause of the Pennsylvania

Constitution under Muniz. Because this issue presents a question of law, our

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

Commonwealth v. Lee, 935 A.2d 865, 876 (Pa. 2007).

“The Pennsylvania General Assembly passed SORNA as Act 111 of 2011,

signed December 20, 2011. In so doing, it provided for the expiration of prior

registration requirements, commonly referred to as Megan’s Law, 42 Pa.C.S.A

§§ 9791–9799.9, as of December 20, 2012, and for the effectiveness of

SORNA on the same date.” In re J.B., 107 A.3d 1, 3 (Pa. 2014).

For purposes of registration, SORNA classifies sexual offenders into the

following three tiers:

Those convicted of Tier I offenses are subject to registration

for a period of fifteen years and are required to verify their

registration information and be photographed, in person at an

approved registration site, annually. 42 Pa.C.S.[A.] §

9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are

subject to registration for a period of twenty-five years and are

required to verify their registration information and be

photographed, in person at an approved registration site, semi-

annually. 42 Pa.C.S.[A.] § 9799.15(a)(2), (e)(2).

Those convicted of Tier III offenses are subject to lifetime

registration and are required to verify their registration

information and be photographed, in person at an approved

registration site, quarterly. 42 Pa.C.S.[A.] § 9799.15(a)(3),

(e)(3).

Muniz, 164 A.3d at 1206-07 (footnotes omitted).

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The offenses that constitute Tier I, II, and III offenses are set forth in

42 Pa.C.S.A. § 9799.14(b)-(d). Here, there is no dispute that Appellant would

be a Tier III sex offender under SORNA due to his conviction of statutory

sexual assault. See 42 Pa.C.S.A. § 9799.14(d)(3). As a Tier III offender,

Appellant would be subject to lifetime registration and quarterly reporting

requirements. See 42 Pa.C.S.A. § 9799.15(a)(3), (e)(3). Because he

committed these offenses prior to when SORNA became effective, Appellant

argues that under Muniz, the application of SORNA to his sentence violates

the ex post facto clause of the Pennsylvania Constitution.

In Muniz, our Supreme Court in a plurality decision explained that the

ex post facto clauses of both the United States and Pennsylvania Constitutions

ensure “that individuals are entitled to fair warning about what constitutes

criminal conduct, and what the punishments for that conduct entail.” Muniz,

164 A.3d at 1195 (internal citations omitted). “Critical to relief under the Ex

Post Facto Clause is not an individual’s right to less punishment, but the lack

of fair notice and governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime was consummated.”

Id. (quoting Weaver v. Graham, 450 U.S. 24 (1981)).

Muniz identified the four types of laws that deny the protections that

the ex post facto prohibitions seek to afford: (1) Every law that makes an

action done before the passing of the law, and which was innocent when done,

criminal; and punishes such action; (2) Every law that aggravates a crime, or

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makes it greater than it was, when committed; (3) Every law that changes

the punishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed; and (4) Every law that alters the

legal rules of evidence, and receives less, or different, testimony, than the law

required at the time of the commission of the offense, in order to convict the

offender. Muniz, 164 A.3d at 1195 (citing Calder v. Bull, 3 U.S. 386, 390

(1798)). The Court explained that laws that fall within any of the above four

Calder designations and which disadvantage the defendant are ex post facto

laws and constitutionally infirm. Id. at 1196.

The Supreme Court in Muniz then addressed the constitutionality of

SORNA. The Court concluded that SORNA violated ex post facto prohibitions

under both the United States and Pennsylvania constitutions. Id. at 1223.

The Muniz Court reasoned that despite the legislature’s designation of SORNA

as a civil remedy, it was punitive in nature, and consequently, SORNA, as a

criminal penalty, fell within the third Calder category (i.e., application of the

statute would inflict greater punishment on the appellant than the law in effect

at the time he committed his crimes). Id. at 1196, 1218. Accordingly, the

Supreme Court vacated the portion of the judgment of sentence that required

the appellant to comply with SORNA. While Muniz is not a majority decision,

the concurring opinion joins the Supreme Court’s lead opinion to the extent it

concludes that SORNA is punitive and that it was unconstitutional as applied

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to the appellant, in violation of both state and federal ex post facto

prohibitions.8

Like Muniz, this case implicates the ex post facto clauses of the United

States and Pennsylvania Constitutions because application of SORNA’s

registration requirements would impose greater punishment on Appellant than

the law in effect at the time he committed his crimes. See id. at 1195-96.

Specifically, Appellant argues that his sentence for failure to comply with

____________________________________________

8 Justice Wecht’s concurrence, joined by Justice Todd, agrees with the lead

opinion that retroactive application of SORNA violates the ex post facto

provision of the Pennsylvania Constitution. However, the concurrence takes

issue with the lead opinion’s position that Pennsylvania’s ex post facto clause

grants greater protection than the federal ex post facto clause. The concurring

opinion asserts instead that “the United States Supreme Court’s interpretation

of the federal ex post facto clause is entirely consistent with our understanding

of Pennsylvania’s clause,” and that the Pennsylvania Supreme Court “has gone

to great lengths to align our own ex post facto jurisprudence with decisions

from the United States Supreme Court.” Muniz, 164 A.3d at 1225, 1228.

The concurrence finds no justification for a departure from federal ex post

facto precedent when interpreting the Pennsylvania ex post facto clause.

Nevertheless, the concurrence concludes that even “applying federal ex post

facto standards . . . SORNA is punitive and cannot be applied retroactively.”

Id. at 1232-33. Thus, the concurrence agrees with the holding of the lead

opinion that SORNA violates federal and state ex post facto prohibitions. See

MacPherson v. Magee Memorial Hosp. for Convalescence, 128 A.3d

1209, 1229 (Pa. Super. 2015), (quoting Commonwealth v. Brown, 23 A.3d

544, 556 (Pa. Super. 2011) (“[i]n cases where a concurring opinion

enumerates the portions of the plurality’s opinion in which the author joins or

[]agrees, those portions of agreement gain precedential value . . . .

[H]owever, [if] the concurrence does not explicitly state its agreement or

disagreement with the plurality, we must look to the substance of the

concurrence to determine the extent to which it provides precedential value

to points of agreement.”).

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registration requirements was illegal pursuant to Muniz.9 He contends that

at the time he committed the underlying offense of statutory sexual assault in

August 2012, he would have been subject to then-effective Megan’s Law III

under which statutory sexual assault was not a registerable offense, rather

than the lifetime registration and reporting requirements of SORNA. See 42

Pa.C.S.A § 9795.1 (expired). Appellant asserts that the application of SORNA

retroactively inflicted upon him a punishment greater than what he would have

been subjected to under the law in effect at the time he committed the crime.

Further, although his guilty plea and sentence for statutory sexual

assault occurred after SORNA’s effective date, Appellant contends that for

purposes of an ex post facto analysis, the date upon which the crime was

committed is dispositive, and not the date of conviction, entry of a guilty plea,

or sentencing. While his subsequent offense of failure to comply with

registration requirements occurred after SORNA’s effective date, he asserts

that he cannot be found guilty of the offense of failure to register because the

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9 See Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (citation

omitted) (“A challenge to the legality of a particular sentence may be reviewed

by any court on direct appeal; it need not be preserved in the lower courts to

be reviewable and may even be raised by an appellate court sua sponte.”);

see also Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013)

(quotations and internal citations omitted) (“Following probation violation

proceedings, this Court’s scope of review is limited to verifying the validity of

the proceeding and the legality of the sentence imposed. The defendant or

the Commonwealth may appeal as of right the legality of the sentence. 42

Pa.C.S.A. § 9781(a). As long as the reviewing court has jurisdiction, a

challenge to the legality of the sentence is non-waivable and the court can

even raise and address it sua sponte.”).

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registration requirement itself was unconstitutional under Muniz.

Consequently, he further argues that his sentence for violating his probation

for failing to register is likewise illegal.

The Commonwealth counters that although SORNA became effective on

December 20, 2012 (after Appellant committed his offenses), SORNA was

enacted one year earlier on December 20, 2011 (before Appellant committed

his offenses). Thus, the Commonwealth asserts that Appellant had sufficient

notice of SORNA’s impending registration requirements at the time he

committed his offenses, and consequently, there was no ex post facto

violation.

As Appellant argues, this Court has held that the critical inquiry for

determining whether the application of SORNA to a convicted sex offender

violates ex post facto prohibitions is the date of the offense. Commonwealth

v. Horning, 193 A.3d 411, 417 (Pa. Super. 2018). Additionally, the parties

do not dispute that the application of SORNA to a sex offender for offenses

committed prior to SORNA’s enactment constitutes an ex post facto violation

in light of Muniz. Instead, the parties dispute whether it is also an ex post

facto violation to apply SORNA to an individual who committed sex offenses

prior to its effective date.

In support of his argument, Appellant relies on the United States

Supreme Court’s decision in Weaver v. Graham, 450 U.S. 24 (1981), in

which the Court expounded on the ex post facto prohibitions. In that case,

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the Supreme Court stated that “[t]he ex post facto prohibition forbids the

Congress and the States to enact any law which imposes a punishment for an

act which was not punishable at the time it was committed; or imposes

additional punishment to that then prescribed.” Id. at 28 (quotations and

citations omitted). With the ex post facto prohibition, “the Framers sought to

assure that legislative Acts give fair warning of their effect and permit

individuals to rely on their meaning until explicitly changed.” Id. at 28-29.

Importantly, “the ex post facto prohibition . . . forbids the imposition of

punishment more severe than the punishment assigned by law when the act

to be punished occurred.” Id. at 30. “Critical to relief under the Ex Post Facto

Clause is not an individual’s right to less punishment, but the lack of fair notice

and governmental restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated.” Id.

Based on the United States Supreme Court’s decision in Weaver, we

hold that, for purposes of our ex post facto analysis, it is SORNA’s effective

date, not its enactment date, which triggers its application. Although the

Supreme Court in Weaver, at times, used the concepts of “effective date”

and “enactment date” interchangeably, a review of the decision in its entirety

reveals that the Court intended for the effective date of a statute to be the

relevant date for ex post facto determinations. See id. at 31 (stating that

“[t]he critical question is whether the law changes the legal consequences of

acts completed before its effective date”). The Supreme Court made clear

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in Weaver that the framers designed the ex post facto clause to preclude

legislatures from passing laws that increased the punishment beyond what

was in effect at the time the crime was committed. See id. To conclude

otherwise would render a statute’s effective date meaningless. As our

Supreme Court has explained, “[i]t is presumed that every word, sentence or

provision of a statute is intended for some purpose and accordingly must be

given effect[.]” Commonwealth v. Lobiondo, 462 A.2d 662, 664 (Pa.

1983). We decline to interpret SORNA in a manner that does not give effect

to the statute’s effective date.

Moreover, reliance on the enactment date as the triggering date would

result in disparate treatment for convicted sex offenders. If we relied on the

enactment date as the trigger for application of SORNA, it could potentially

result in different registration and reporting requirements for sex offenders

who committed the exact same crime on the exact same day. If one of those

offenders committed a sex offense in early 2012 and was convicted and

sentenced prior to December 20, 2012, SORNA could not apply because it was

not yet effective. If another offender committed the same crime on the same

day, but was not convicted and sentenced until after December 20, 2012,

under the Commonwealth’s position, that offender would be subject to

SORNA’s registration and reporting provisions. This improperly gives effect

only to the dates of the offenders’ convictions and sentencing when we have

explicitly held that the date of the offense is the relevant inquiry when

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determining whether an ex post facto violation has occurred. See Horning,

193 A.3d at 417.

To apply SORNA to offenders whose crimes were committed before its

effective date would increase punishment for sexual offenses from the

punishment which existed at the time of the offense. Therefore, we hold that

application of SORNA to sexual offenders for offenses committed before its

effective date violates the ex post facto clauses of the United States and

Pennsylvania Constitution.

This conclusion comports with other persuasive authority on the issue.

See U.S. v. Tykarsky, 446 F.3d 458, 480 (3d Cir. 2006) (“if a defendant

completes a crime before an increased penalty takes effect, it would violate

his right not to be subject to ex post facto legislation to impose the increased

penalty upon him”); Coady v. Vaughn, 770 A.2d 287, 289 (Pa. 2001) opinion

after certified question answered, 251 F.3d 480 (3d Cir. 2001) (“A state law

violates the ex post facto clause if it was adopted after the complaining party

committed the criminal acts and inflicts a greater punishment than the law

annexed to the crime, when committed”); Commonwealth v. Quintanilla-

Pineda, 736 MDA 2017 (January 23, 2018) (unpublished memorandum)

(vacating portion of sentence requiring the defendant to comply with SORNA

for offenses committed when Megan’s Law III was still applicable, even though

defendant’s guilty plea and sentence occurred after SORNA’s effective date);

1 Pa.C.S.A. § 1701 (Statutory Construction Act) (“except as otherwise

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provided in this chapter all statutes enacted finally at any regular session of

the General Assembly not containing a specified effective date shall be

effective on the date specified by that one of the following rules of construction

in effect on the date of final enactment of the statute”) (emphasis added); 1

Pa.C.S.A § 1926 (Statutory Construction Act) (“no statute shall be construed

to be retroactive unless clearly and manifestly so intended by the General

Assembly”); Commonwealth v. Johnson, 553 A.2d 897, 899 (Pa. 1989)

(“The principle embodied in the Statutory Construction Act, that the legislature

must clearly manifest an intent to apply an act retroactively, is also recognized

in case law”); Witmer v. Exxon Corp., 394 A.2d 1276, 1284 (Pa. 1978) aff’d

434 A.2d 1222 (1981) (a court cannot accelerate the date chosen by the

legislature for a statute to become effective).

Instantly, Appellant committed statutory sexual assault no later than

August 2012. The General Assembly explicitly stated that SORNA became

effective on December 20, 2012. See Commonwealth v. Martinez, 147

A.3d 517, 522 (Pa. 2016) (reiterating that “SORNA provided for the expiration

of Megan’s Law as of December 20, 2012, and for the effectiveness of SORNA

on the same date.”). Thus, Appellant committed his crime approximately four

months prior to SORNA’s effective date. Given the foregoing, and in reliance

on our Supreme Court’s decision in Muniz, we agree with Appellant that

application of SORNA’s registration and reporting requirements in his case

violated ex post facto prohibitions, as it inflicted a greater punishment upon

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him than the law in effect at the time he committed the crime of statutory

sexual assault.

In support of its argument, the Commonwealth relies on

Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016). Kizak was

arrested for DUI on two separate occasions in three months – on September

24, 2014 and on December 10, 2014. Id. at 855. During that time period,

the General Assembly amended Section 3806 of the Motor Vehicle Code,

“which addresses the calculation of prior DUI offenses to determine whether

a defendant is a repeat offender for sentencing purposes.” Id. at 858-59.

The amendment to Section 3806 was enacted on October 27, 2014 and took

effect on December 26, 2014.10 Id. at 859. “[U]nder the 2014 amendment,

the ten-year ‘look back’ period for determining prior offenses became the date

of sentencing and was no longer the date that the offense occurred.” Id.

“Also, Section 2 of Act 2014-189 provides that the amendment of [S]ection

3806(b) shall apply to persons sentenced on or after [December 26,

2014,] the effective date of this section.” Id. (citation omitted, emphasis in

original). Kizak argued the trial court’s treatment of her December 10, 2014

DUI as a second DUI offense violated ex post facto prohibitions when the

amendment of Section 3806 did not become effective until December 26,

2014, which was after her offense occurred. Id. at 856.

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10 Section 3806 has since been amended again. See 75 Pa.C.S.A. § 3806

(S.B. 290, 200 Gen. Assemb., Reg. Sess. (Pa. 2016), Act 33 of 2016).

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In rejecting Kizak’s ex post facto claim, this Court explained:

The amendment to the law in question was signed by the

Governor of Pennsylvania on October 27, 2014. Over six weeks

later, on December 10, 2014, Appellant committed the instant DUI

offense. The amendment to [S]ection 3806(b) took effect on

December 26, 2014. Furthermore, the legislature specified in the

statute that the amendment of section 3806(b) “shall apply to

persons sentenced on or after [December 26, 2014,] the

effective date of this section.” Act 2014-189 § 2 (emphasis

added).

Appellant was charged with the instant DUI offense on January

23, 2015. On May 20, 2015, Appellant entered her guilty plea.

Thereafter, on July 14, 2015, the trial court, applying the

amendment to section 3806(b), imposed Appellant's judgment of

sentence.

Here, the new law was not applied to events occurring before

its enactment, that being October 27, 2014, because the instant

offense was committed on December 10, 2014. Moreover,

Appellant had fair notice of the change in the statute as her

offense occurred more than six weeks after the amendment to the

statute was signed into law. Accordingly, we are satisfied that

there was no ex post facto violation in the instant matter.

Id. at 860; see also Commonwealth v. McGarry, 172 A.3d 60 (Pa. Super.

2017) (applying the Kizak holding to an identical ex post facto claim involving

the 2014 amendment to Section 3806).

We find Kizak distinguishable. In Kizak, the DUI statute at issue,

Section 3806, expressly stated that it applied to persons sentenced after its

effective date. Kizak, 148 A.3d at 859. This Court therefore elected in

Kizak to honor the expressly stated intent of the General Assembly and apply

the statute to sentences imposed after its enactment date, even for crimes

committed before the effective date. SORNA, however, does not include

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language such as that contained in Section 3806 (i.e., that SORNA is to apply

to any sexual offender convicted after its effective date, regardless of the date

the offense was committed). Thus, we decline to extend our holding in Kizak

to matters arising under SORNA. Further, to the extent Kizak would hold that

the relevant date in conducting an ex post facto analysis is always the

enactment date of the statute, as opposed to the effective date, we overrule

such a holding.

Because Appellant’s conviction for failure to register is based on his

violation of retroactively applied registration requirements under SORNA, and

because such retroactive application of SORNA is unconstitutional under

Muniz, we reverse the conviction for failure to register, and vacate that

judgment of sentence. In addition, we reverse the trial court’s order finding

Appellant in violation of probation and vacate the judgment of sentence

imposed following revocation of Appellant’s probation.

Finally, we acknowledge that in our order directing en banc certification

of this case, we asked the parties to brief whether Act of Feb. 21, 2018, P.L.

27, No. 10 (HB 631 of 2017; “Act 10”) renders the registration provisions of

SORNA non-punitive, and if so, whether application of Act 10 to Appellant

would violate the ex post facto clauses of the United States and Pennsylvania

Constitutions. We decline, however, in this instance to address the

constitutional implications of Act 10.

As this Court recently explained:

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In response to our Supreme Court’s decision in Muniz and this

Court’s later decision in Commonwealth v. Butler, 173 A.3d

1212 (Pa. Super. 2017), appeal granted, 190 A.3d 581 [] (Pa.

July 31, 2018) (holding certain sexually violent predator

provisions of SORNA were constitutionally infirm), the

Pennsylvania General Assembly passed Acts 10 and 29 of 2018.

The express purpose of these legislative enactments was, inter

alia, to “[p]rotect the safety and general welfare of the people of

this Commonwealth by providing for registration, community

notification and access to information regarding sexually violent

predators and offenders who are about to be released from

custody and will live in or near their neighborhood[,]” and to cure

SORNA’s constitutional defects by “address[ing] [Muniz and

Butler].” See 42 Pa.C.S.A. § 9799.51(b)(1),(4).

Specifically, our General Assembly modified Subchapter H’s

registration requirements for those offenders convicted of

committing offenses that occurred on or after SORNA’s effective

date of December 20, 2012. The General Assembly also added

Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets

forth the registration requirements that apply to all offenders

convicted of committing offenses on or after Megan’s Law I’s

effective date (April 22, 1996), but prior to SORNA's effective

date.

Commonwealth v. Bricker, --- A.3d ---, 2018 WL 5093265 at *4 (Pa. Super.

2018).

Appellant originally pled guilty at Docket Number 1382-2013 to one

count of statutory sexual assault, 18 Pa.C.S.A. § 3122.1(b). As Appellant

points out, however, statutory sexual assault is not an enumerated offense

necessitating registration in Act 10’s Subchapter I. See 42 Pa.C.S.A. §

9799.55. Thus, Appellant would not have to register as sex offender under

Act 10 and consequently, the constitutionality of that legislation is not at issue

in this appeal. Additionally, we recognize that our Supreme Court recently

granted review to determine the issue of whether Acts 10 and 29 are

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constitutional. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018).

Accordingly, we decline to address those issues in this appeal.

Judgments of sentence vacated. Jurisdiction relinquished.

President Judge Gantman, President Judge Emeritus Bender and Judges

Bowes, Panella, Lazarus, Ott, and Dubow join the Opinion.

Judge Stabile files a concurring opinion in which President Judge Emeritus

Bender and Judge Bowes join.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/15/2019

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