Commonwealth, Aplt. v. Witmayer, M.

[J-103A-2019 and J-103B-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 35 MAP 2018

:

Appellant : Appeal from the Order of the

: Montgomery County Court of

: Common Pleas, Criminal Division,

v. : at No. CP-46-CR-1445-1997. dated

: June 21, 2018

:

CLAUDE LACOMBE, : ARGUED: November 20, 2019

:

Appellee :

COMMONWEALTH OF PENNSYLVANIA, : No. 64 MAP 2018

:

Appellant : Appeal from the Order of

: Montgomery County Court of

: Common Pleas, Criminal Division,

v. : at No. CP-46-CR-0004935-2013

: dated October 26, 2018.

:

MICHAEL WITMAYER, : ARGUED: November 20, 2019

:

Appellee :

OPINION

JUSTICE DOUGHERTY1 DECIDED: July 21, 2020

In these consolidated appeals, the Commonwealth challenges orders of the

Montgomery County Court of Common Pleas relieving appellees, Claude Lacombe and

Michael Witmayer, of their duty to comply with Subchapter I of the Sex Offender

Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.51-9799.75, based upon

1 The matter was reassigned to this author.

the court’s finding Subchapter I, as retroactively applied to appellees, is a punitive and

unconstitutional ex post facto law.2 For the reasons set forth below, we now hold this

was error, Subchapter I is nonpunitive and does not violate the constitutional prohibition

against ex post facto laws.

I. Procedural History of the Present Appeals

A. Claude Lacombe

In 1997, Lacombe was convicted of involuntary deviate sexual intercourse (IDSI),

sexual assault, indecent assault, official oppression, and unsworn falsification to

authorities and sentenced to a term of six to twenty years’ imprisonment. Lacombe was

not found to be a sexually violent predator (SVP), but was required to comply with the

then-applicable version of Megan’s Law for a period of ten years upon his release from

prison due to his IDSI conviction; Lacombe was released from prison in April of 2005 and

his period of registration would have ended in April of 2015. In the meantime, however,

the General Assembly enacted the first version of SORNA, under which Lacombe was

designated as a Tier III offender and required to comply with the mandates of the statute

for the remainder of his life.

2 The prohibition of ex post facto laws appears in the United States Constitution in Article

I, Section 9, which is a limitation on Congress’ authority to pass laws, and in Article I,

Section 10, which is a limitation on the power of the states. Article I, Section 9 provides:

“No Bill of Attainder or ex post facto Law shall be passed.” U.S. CONST. art. I, §9. Article

I, Section 10 similarly provides: “No State shall . . . pass any Bill of Attainder, ex post

facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

U.S. CONST. art. I, §10.

Pennsylvania’s ex post facto provision is found in Article I, Section 17 of our Constitution,

which states that: “No 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.

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Lacombe did not challenge the corresponding changes to his reporting obligations

until February 20, 2018, after we decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017) (plurality) (SORNA requirements have punitive effect pursuant to Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963),3 and retroactive application thus constitutes ex

post facto violation). Relying upon that decision, Lacombe filed in common pleas court

a petition to terminate his sexual offender registration requirements. On June 1, 2018,

the Commonwealth replied to Lacombe’s petition, countering Lacombe’s reliance upon

Muniz, and noting Muniz addressed a former version of SORNA. By that point, the

General Assembly had enacted Subchapter I, which is markedly different from the

version of SORNA invalidated in Muniz. In response, Lacombe, still relying upon Muniz,

maintained Subchapter I also is punitive and constitutionally infirm. On June 21, 2018,

following oral argument, the court granted Lacombe’s petition, finding Subchapter I to be

a punitive and unconstitutional ex post facto law, and relieved him of any duty to comply

with Subchapter I.

The Commonwealth filed a motion for reconsideration, wherein it maintained its

position that Subchapter I is not punitive. The Commonwealth also argued for the first

time that, if Subchapter I is punitive, then any challenge thereto had to be raised in a

timely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46.

Because Lacombe’s challenge to Subchapter I was facially untimely for purposes of the

3 In Mendoza-Martinez, the United States Supreme Court listed the following seven

factors as a framework for determining whether a statutory sanction is so punitive as to

negate a legislature’s expressed intention to identify the scheme as civil or regulatory:

“[w]hether the sanction involves an affirmative disability or restraint, whether it has

historically been regarded as a punishment, whether it comes into play only on a finding

of scienter, whether its operation will promote the traditional aims of punishment—

retribution and deterrence, whether the behavior to which it applies is already a crime,

whether an alternative purpose to which it may rationally be connected is assignable for

it, and whether it appears excessive in relation to the alternative purpose assigned[.]”

372 U.S. at 168-69 (footnotes omitted).

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PCRA, according to the Commonwealth, the court lacked jurisdiction to afford any relief.

The court denied the petition for reconsideration, and the Commonwealth appealed the

order directly to this Court. See 42 Pa.C.S. §722(7) (“The Supreme Court shall have

exclusive jurisdiction of appeals from final orders . . . [in m]atters where the court of

common pleas has held invalid as repugnant to the Constitution, treaties or laws of the

United States, or to the Constitution of this Commonwealth, any treaty or law of the

United States or any provision of the Constitution of, or of any statute of, this

Commonwealth, or any provision of any home rule charter.”).

B. Michael Witmayer

In 2014, Witmayer was convicted of IDSI with a child who is less than sixteen

years of age, indecent assault of a child who is less than sixteen years of age, corruption

of the morals of a minor, and endangering the welfare of children due to a pattern of

sexual abuse which occurred between January of 2006 and December of 2012.

Before sentencing, the trial court held an SVP hearing, after which the court

determined that the Commonwealth had failed to demonstrate Witmayer met the criteria

to be deemed an SVP. Nonetheless, because the IDSI conviction constituted a Tier III

offense under the original version of SORNA, the trial court informed Witmayer that he

was obliged to register as a sexual offender and comply with SORNA’s terms and

conditions for the remainder of his life. The trial court then sentenced Witmayer to five

and one-half to twenty years in prison. Witmayer appealed, the Superior Court affirmed

his judgment of sentence, see Commonwealth v. Witmayer, 144 A.3d 939 (Pa. Super.

2016), and this Court denied review. See Commonwealth v. Witmayer, 169 A.3d 27 (Pa.

2017) (per curiam).

On January 17, 2018, Witmayer filed a timely, pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended petition. Therein, Witmayer contended

[J-103A-2019 and J-103B-2019] - 4

that, because his offenses were completed before SORNA took effect, retroactive

application of SORNA constituted an ex post facto violation, an argument based on

Muniz. As it did in Lacombe’s post-conviction proceedings, the Commonwealth alerted

the PCRA court to the fact that, before Witmayer filed his amended petition, Subchapter

I had been enacted and taken effect, replacing SORNA as the governing statutory

scheme with which Witmayer had to comply. Thus, the Commonwealth posited, the

constitutional deficiencies identified in Muniz effectively were remedied, and any claim

relying upon Muniz was moot. The PCRA court directed Witmayer to file a response to

the Commonwealth’s position.

On September 20, 2018, Witmayer filed a second amended PCRA petition. In

that filing, Witmayer highlighted the fact that none of the conduct for which he was

convicted occurred after December 20, 2012, the date that determines whether

Subchapter H or Subchapter I applies.4 Because his conduct occurred before that date,

Whitmayer argued if the new scheme of Subchapter I applied to him, it had to apply

retroactively. Witmayer maintained that, because the changes to SORNA effectuated

by Subchapter I were minor, the scheme remained punitive in nature, and its retroactive

4 To address this Court’s decision in Muniz and the Superior Court’s decision in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (invalidating SORNA’s

mechanism for determining SVP status, see 42 Pa.C.S. §9799.51(b)(4)) (reversed by

Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020)), the General Assembly divided

SORNA into two subchapters. Subchapter H is based on the original SORNA statute

and is applicable to offenders who committed their offenses after the December 20, 2012

effective date of SORNA, 42 Pa.C.S. §9799.11(c); Subchapter I is applicable to

offenders, like appellees, who committed their offenses between April 22, 1996 and the

effective date of SORNA. Subchapter H is not at issue in this case. We considered a

challenge to the constitutionality of Subchapter H in Commonwealth v. Torsilieri, ___

A.3d ____, 2020 WL 3241625 (Pa. filed June 16, 2020). However, we remanded to the

trial court for further development of the record and a determination on Torsilieri’s claim

that there is now a consensus that calls into question the General Assembly’s finding

that sexual offenders pose a high risk of re-offense. Id. at *22; see also 42 Pa.C.S.

§9799.11(a)(4).

[J-103A-2019 and J-103B-2019] - 5

application necessarily constituted an ex post facto violation. The PCRA court, which

had already ruled Subchapter I is punitive and unconstitutional during Lacombe’s

proceedings, held a hearing and subsequently granted Witmayer’s PCRA petition. The

Commonwealth appealed directly to this Court. See 42 Pa.C.S. §722(7).

C. Summary of the Arguments and Applicable Standards of Review

Briefly, the parties dispute whether Subchapter I is punitive and its retroactive

application to Lacombe and Witmayer is thus unconstitutional under an ex post facto

analysis, notwithstanding the significant differences between Subchapter I and the

original SORNA statute at issue in Muniz. In the case of Lacombe, the parties also

dispute whether the PCRA is the sole avenue for challenging sexual offender statutes

and, if so, whether Lacombe was required to establish an exception to the PCRA’s

timeliness requirements.5 As we consider the parties’ arguments in greater detail below,6

“we recognize there is a general presumption that all lawfully enacted statutes are

constitutional. In addition, as this case presents questions of law, our scope of review is

plenary and we review the lower courts’ legal determinations de novo.” Muniz, 164 A.3d

at 1195 (internal citation omitted).

5 Witmayer additionally claims Subchapter I violates: 1) the separation of powers

doctrine by unconstitutionally usurping judicial sentencing authority; 2) due process

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States,

570 U.S. 99 (2013); and 3) double jeopardy protections. We do not address these

claims, however, because they were not addressed by the common pleas court in the

first instance and are thus not properly before us, and, in any event, the Commonwealth,

as appellant, has appealed only from the determination Subchapter I is unconstitutional

as an ex post facto law. See Commonwealth’s Brief at 1. Each of these claims, however,

is predicated upon Witmayer’s argument that Subchapter I is punitive and, given our

ultimate holding that Subchapter I is nonpunitive, the claims would fail in any event.

6This Court also received argument briefs from the Office of the Attorney General (OAG)

as intervenor, and amici curiae Pennsylvania District Attorneys Association, the

Pennsylvania Office of the Victim Advocate, the Pennsylvania Coalition Against Rape,

Crimewatch Technologies, Inc., in support of the Commonwealth, and the Pennsylvania

Association for Rational Sexual Offense Laws in support of appellees.

[J-103A-2019 and J-103B-2019] - 6

II. Relevant Legal History

As we consider the constitutional validity of Subchapter I, we first review the

original SORNA statute, the Muniz decision, and the new requirements of Subchapter I.

A. Original SORNA Statute

We provided a detailed description of the original SORNA statute in Muniz and

we reproduce that description here:

The General Assembly enacted SORNA in response to the federal Adam

Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 42

U.S.C. §§16901-16991, which mandates that states impose on sex

offenders certain tier-based registration and notification requirements in

order to avoid being subject to a penalty, i.e., the loss of federal grant

funding. In re J.B., 107 A.3d 1, 3 (Pa. 2014). Accordingly, Pennsylvania’s

General Assembly sought to comply with this federal legislation by

providing for “the expiration of prior registration requirements, commonly

referred to as Megan’s Law [III], 42 Pa.C.S. §§9791-9799.9, as of

December 20, 2012, and for the effectiveness of SORNA on the same

date.” Id.

The purposes of SORNA, as stated by the General Assembly, are as

follows:

(1) To bring the Commonwealth into substantial compliance

with the Adam Walsh Child Protection and Safety Act of 2006

...

(2) To require individuals convicted or adjudicated delinquent

of certain sexual offenses to register with the Pennsylvania

State Police and to otherwise comply with this subchapter if

those individuals reside within this Commonwealth, intend to

reside within this Commonwealth, attend an educational

institution inside this Commonwealth or are employed or

conduct volunteer work within this Commonwealth.

(3) To require individuals convicted or adjudicated delinquent

of certain sexual offenses who fail to maintain a residence

and are therefore homeless but can still be found within the

borders of this Commonwealth to register with the

Pennsylvania State Police.

[J-103A-2019 and J-103B-2019] - 7

(4) To require individuals who are currently subject to the

criminal justice system of this Commonwealth as inmates,

supervised with respect to probation or parole or registrants

under this subchapter to register with the Pennsylvania State

Police and to otherwise comply with this subchapter. To the

extent practicable and consistent with the requirements of

the Adam Walsh Child Protection and Safety Act of 2006, this

subchapter shall be construed to maintain existing

procedures regarding registration of sexual offenders who

are subject to the criminal justice system of this

Commonwealth.

(5) To provide a mechanism for members of the general

public to obtain information about certain sexual offenders

from a public Internet website and to include on that Internet

website a feature which will allow a member of the public to

enter a zip code or geographic radius and determine whether

a sexual offender resides within that zip code or radius.

(6) To provide a mechanism for law enforcement entities

within this Commonwealth to obtain information about certain

sexual offenders and to allow law enforcement entities

outside this Commonwealth, including those within the

Federal Government, to obtain current information about

certain sexual offenders.

42 Pa.C.S. §9799.10. Furthermore, the General Assembly expressed the

legislative findings and declaration of policy supporting SORNA as follows:

(a) Legislative findings.— The General Assembly finds as

follows:

(1) In 1995 the General Assembly enacted the act of October

24, 1995 (1st Sp. Sess. P.L. 1079, No. 24), commonly

referred to as Megan’s Law. Through this enactment, the

General Assembly intended to comply with legislation

enacted by Congress requiring that states provide for the

registration of sexual offenders. The Federal statute, the

Jacob Wetterling Crimes Against Children and Sexually

Violent Offender Registration Act (Public Law 103-322, 42

U.S.C. 14071 et seq.), has been superseded by the Adam

[J-103A-2019 and J-103B-2019] - 8

Walsh Child Protection and Safety Act of 2006 (Public Law

190-248, 120 Stat. 587).

(2) This Commonwealth’s laws regarding registration of

sexual offenders need to be strengthened. 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.

(3) If the public is provided adequate notice and information

about sexual offenders, the community can develop

constructive plans to prepare for the presence of sexual

offenders in the community. This allows communities to

meet with law enforcement to prepare and obtain information

about the rights and responsibilities of the community and to

provide education and counseling to residents, particularly

children.

(4) Sexual offenders pose a high risk of committing additional

sexual offenses and protection of the public from this type of

offender is a paramount governmental interest.

(5) Sexual offenders have a reduced expectation of privacy

because of the public’s interest in public safety and in the

effective operation of government.

(6) Release of information about sexual offenders to public

agencies and the general public will further the governmental

interests of public safety and public scrutiny of the criminal

and mental health systems so long as the information

released is rationally related to the furtherance of those

goals.

(7) Knowledge of whether a person is a sexual offender could

be a significant factor in protecting oneself and one’s family

members, or those in care of a group or community

organization, from recidivist acts by such offenders.

(8) The technology afforded by the Internet and other modern

electronic communication methods makes this information

readily accessible to parents, minors, and private entities,

[J-103A-2019 and J-103B-2019] - 9

enabling them to undertake appropriate remedial precautions

to prevent or avoid placing potential victims at risk.

(b) Declaration of policy.— The General Assembly

declares as follows:

(1) It is the intention of the General Assembly to substantially

comply with the Adam Walsh Child Protection and Safety Act

of 2006 and to further protect the safety and general welfare

of the citizens of this Commonwealth by providing for

increased regulation of sexual offenders, specifically as that

regulation relates to registration of sexual offenders and

community notification about sexual offenders.

(2) It is the policy of the Commonwealth to require the

exchange of relevant information about sexual offenders

among public agencies and officials and to authorize the

release of necessary and relevant information about sexual

offenders to members of the general public as a means of

assuring public protection and shall not be construed as

punitive.

(3) It is the intention of the General Assembly to address the

Pennsylvania Supreme Court’s decision in Commonwealth v.

Neiman, [84 A.3d 603] (Pa. 2013), by amending this

subchapter in the act of March 14, 2014 (P.L. 41, No. 19).

42 Pa.C.S. §9799.11(a)-(b).

SORNA’s registration provisions are applicable to, inter alia, the following

individuals: (1) those convicted of a sexually violent offense, on or after the

effective date of SORNA, who are residents of Pennsylvania, employed in

Pennsylvania, students in Pennsylvania or transients; (2) those who are

inmates, on or after the effective date of SORNA, in state or county prisons

as a result of a conviction for a sexually violent offense; (3) those who, on

or after the effective date of SORNA, are inmates in a federal prison or are

supervised by federal probation authorities as a result of a sexually violent

offense and have a residence in Pennsylvania, are employed in

Pennsylvania, are students in Pennsylvania or transients; and, pertinent to

this appeal, (4) those who were required to register under previous

versions of Megan’s Law and had not yet fulfilled their registration period

as of the effective date of SORNA. 42 Pa.C.S. §9799.13.

[J-103A-2019 and J-103B-2019] - 10

SORNA classifies offenders and their offenses into three tiers. 42 Pa.C.S.

§9799.14. 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. §9799.15(a)(1), (e)(1).16 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. §9799.15(a)(2), (e)(2).17

______________

16 The Tier I offenses enumerated in SORNA are as follows:

18 Pa.C.S. §2902(b) (relating to unlawful restraint); 18

Pa.C.S. §2903(b) (relating to false imprisonment); 18 Pa.C.S.

§2904 (relating to interference with custody of children); 18

Pa.C.S. §2910 (relating to luring a child into a motor vehicle

or structure); 18 Pa.C.S. §3124.2(a) (relating to institutional

sexual assault); 18 Pa.C.S. §3126(a)(1) (relating to indecent

assault); 18 Pa.C.S. §6301(a)(1)(ii) (relating to corruption of

minors); 18 Pa.C.S. §6312(d) (relating to sexual abuse of

children); 18 Pa.C.S. §7507.1 (relating to invasion of privacy);

18 U.S.C. §1801 (relating to video voyeurism); 18 U.S.C.

§2252(a)(4) (relating to certain activities relating to material

involving the sexual exploitation of minors); 18 U.S.C. §2252A

(relating to certain activities relating to material constituting or

containing child pornography); 18 U.S.C. §2252B (relating to

misleading domain names on the internet); 18 U.S.C. §2252C

(relating to misleading words or digital images on the internet);

18 U.S.C. §2422(a) (relating to coercion and enticement); 18

U.S.C. §2423(b) (relating to transportation of minors); 18

U.S.C. §2423(c) (relating to engaging in illicit sexual conduct

in foreign places); 18 U.S.C. §2424 (relating to filing factual

statement about alien individual); 18 U.S.C. §2425 (relating to

use of interstate facilities to transmit information about a

minor); a comparable military offense or similar offense under

the laws of another jurisdiction or foreign country or under a

former law of this Commonwealth; an attempt, conspiracy or

solicitation to commit any of the above offenses; and a

conviction for a sexual offense in another jurisdiction or

foreign country that is not set forth in this section, but

nevertheless requires registration under a sexual offender

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statute in the jurisdiction or foreign country. 42 Pa.C.S.

§9799.14(b).

17 The Tier II offenses enumerated in SORNA are as follows:

18 Pa.C.S. §3011(b) (relating to trafficking in individuals); 18

Pa.C.S. §3122.1(a)(2) (relating to statutory sexual assault);

18 Pa.C.S. §3124.2(a.2) and (a.3) (relating to institutional

sexual assault in schools or child care centers); 18 Pa.C.S.

§3126(a)(2), (3), (4), (5), (6) or (8) (relating to indecent assault

when victim is over 13 years of age); 18 Pa.C.S. §5902(b.1)

(relating to prostitution and related offenses); 18 Pa.C.S.

§5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to obscene and

other sexual materials and performances); 18 Pa.C.S.

§6312(b) and (c); 18 Pa.C.S. §6318 (relating to unlawful

contact with minor); 18 Pa.C.S. §6320 (relating to sexual

exploitation of children); 18 U.S.C. §1591 (relating to sex

trafficking of children by force, fraud or coercion); 18 U.S.C.

§2243 (relating to sexual abuse of a minor or ward); 18 U.S.C.

§2244 (relating to abusive sexual conduct) where the victim is

13 years of age or older but under 18 years of age; 18 U.S.C.

§2251 (relating to sexual exploitation of children); 18 U.S.C.

§2251A (relating to selling or buying children); 18 U.S.C.

§2252(a)(1), (2) or (3); 18 U.S.C. §2260 (relating to production

of sexually explicit depictions of a minor for importation into

the United States); 18 U.S.C. §2421 (relating to transportation

generally); 18 U.S.C. §2422(b); 18 U.S.C. §2423(a); a

comparable military offense or similar offense under the laws

of another jurisdiction or foreign country or under a former law

of this Commonwealth; and an attempt, conspiracy or

solicitation to commit any of the above offenses. 42 Pa.C.S.

§9799.14(c).

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.

§9799.15(a)(3), (e)(3). The Tier III offenses enumerated in SORNA—

including the crime of which appellant was convicted, indecent assault

where the individual is less than thirteen years of age—are as follows:

(1) 18 Pa.C.S. §2901(a.1) (relating to kidnapping).

(2) 18 Pa.C.S. §3121 (relating to rape).

(3) 18 Pa.C.S. §3122.1(b) (relating to statutory sexual

assault).

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(4) 18 Pa.C.S. §3123 (relating to involuntary deviate sexual

intercourse).

(5) 18 Pa.C.S. §3124.1 (relating to sexual assault).

(6) 18 Pa.C.S. §3124.2(a.1) [relating to institutional sexual

assault].

(7) 18 Pa.C.S. §3125 (relating to aggravated indecent

assault).

(8) 18 Pa.C.S. §3126(a)(7) (relating to indecent assault [of

victim under 13 years of age]).

(9) 18 Pa.C.S. §4302(b) (relating to incest).

(10) 18 U.S.C. §2241 (relating to aggravated sexual abuse).

(11) 18 U.S.C. §2242 (relating to sexual abuse).

(12) 18 U.S.C. §2244 [abusive sexual contact] where the

victim is under 13 years of age.

(13) A comparable military offense or similar offense under

the laws of another jurisdiction or foreign country or under a

former law of this Commonwealth.

(14) An attempt, conspiracy or solicitation to commit an

offense listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8),

(9), (10), (11), (12) or (13).

(15) (Reserved).

(16) Two or more convictions of offenses listed as Tier I or

Tier II sexual offenses.

42 Pa.C.S. §9799.14(d).

SORNA also establishes a statewide registry of sexual offenders to be

created and maintained by the state police. 42 Pa.C.S. §9799.16(a). The

registry contains information provided by the sexual offender, including:

names and aliases, designations used by the offender for purposes of

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routing or self-identification in internet communications, telephone

numbers, social security number, addresses, temporary habitat if a

transient, temporary lodging information, passport and documents

establishing immigration status, employment information, occupational and

professional licensing information, student enrollment information, motor

vehicle information, and date of birth. 42 Pa.C.S. §9799.16(b). The

registry also contains information from the state police, including the

following: physical description of the offender, including a general physical

description, tattoos, scars and other identifying marks, text of the statute

defining the offense for which the offender is registered, criminal history

information, current photograph, fingerprints, palm prints and a DNA

sample from the offender, and a photocopy of the offender’s driver’s

license or identification card. 42 Pa.C.S. §9799.16(c).

Not only does SORNA establish a registry of sexual offenders, but it also

directs the state police to make information available to the public through

the internet. 42 Pa.C.S. §9799.28. The resulting website “[c]ontains a

feature to permit a member of the public to obtain relevant information for

an [offender] by a query of the internet website based on search criteria

including searches for any given zip code or geographic radius set by the

user.” 42 Pa.C.S. §9799.28(a)(1)(i). The website also “[c]ontains a feature

to allow a member of the public to receive electronic notification when [an

offender] provides [updated] information [and also allows] a member of the

public to receive electronic notification when [an offender] moves into or

out of a geographic area chosen by the user.” 42 Pa.C.S.

§9799.28(a)(1)(ii). The Pennsylvania website must coordinate with the Dru

Sjodin National Sex Offender Public Internet Website

(https://www.nsopw.gov) and must be updated within three business days

of receipt of required information. 42 Pa.C.S. §9799.28(a)(1)(iii), (iv).

In addition to the offender’s duty to appear at an approved registration site

annually, semi-annually, or quarterly, depending upon the tier of their

offense, all offenders are also required to appear in person at an approved

registration site within three business days of any changes to their

registration information including a change of name, residence,

employment, student status, telephone number, ownership of a motor

vehicle, temporary lodging, e-mail address, and information related to

professional licensing. 42 Pa.C.S. §9799.15(g). Offenders must also

appear in person at an approved registration site within twenty-one days in

advance of traveling outside the United States and must provide dates of

travel, destinations, and temporary lodging. 42 Pa.C.S. §9799.15(i).

Furthermore, transients, i.e. homeless individuals, must appear in person

monthly until a residence is established. 42 Pa.C.S. §9799.15(h)(1).

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Offenders who fail to register, verify their information at the appropriate

time, or provide accurate information are subject to prosecution and

incarceration under 18 Pa.C.S. §4915.1 (failure to comply with registration

requirements). 42 Pa.C.S. §9799.21(a).

Muniz, 164 A.3d at 1203-08 (additional internal footnotes omitted).

B. Muniz

In Muniz, we considered a constitutional challenge to the retroactive application

of SORNA to those offenders who committed their offenses prior to its effective date of

December 20, 2012. We began by examining the history of the ex post facto clause,

see Muniz, 164 A.3d at 1195-96, and explained that SORNA’s retroactive application

could only result in an ex post facto violation if the statute constituted criminal

punishment. Accordingly, we applied a two-part test, first determining whether the

expressed statutory purpose is to impose punishment, and if not, whether the statutory

scheme is so punitive in effect as to negate the legislature’s stated non-punitive intent.

See Kansas v. Hendricks, 521 U.S. 346, 361 (1997). We also reviewed the decisions in

Smith v. Doe, 538 U.S. 84 (2003),7 and Commonwealth v. Williams, 832 A.2d 962 (Pa.

2003) (Williams II),8 which applied this same framework.

We recently summarized the Muniz Court’s analysis regarding the punitive nature

of SORNA in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (Butler II):

In Muniz, we . . . first determined “the General Assembly’s intent in enacting

SORNA apparently was twofold: to comply with federal law; and . . . ‘not to

punish, but to promote public safety through a civil, regulatory scheme.’” Id.

at 1209-10, quoting Williams II, 832 A.2d at 972.

7 In Smith, the United States Supreme Court upheld an Alaska sex offender registration

statute, finding it was nonpunitive following an analysis of the Mendoza-Martinez factors.

538 U.S. at 105-06.

8 Relevant here, the Williams II Court found the registration, notification, and counseling

requirements imposed upon SVPs pursuant to Megan’s Law II were nonpunitive. 832

A.2d at 984.

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Moreover, in Muniz, we considered the Mendoza-Martinez factors and

found SORNA imposed an affirmative disability or restraint upon offenders

due to the onerous in-person reporting requirements for both verification

and changes to an offender’s registration. Id. at 1211. . . . We also

determined in Muniz that SORNA’s requirements were analogous to

historical forms of punishment, specifically holding the statute’s “publication

provisions — when viewed in the context of our current internet-based world

— to be comparable to shaming punishments” and the mandatory

conditions placed on registrants to be akin to probation. Id. at 1213.

The Muniz Court next determined the fact SORNA comes into play only

upon a finding of scienter was of little significance to our inquiry because

“past criminal conduct is ‘a necessary beginning point’” for statutes that are

intended to protect the public. Id. at 1214, quoting Smith, 538 U.S. at 105.

We further held in Muniz that SORNA promotes the traditional aims of

punishment as “the prospect of being labeled a sex offender accompanied

by registration requirements and the public dissemination of an offender’s

personal information over the internet has a deterrent effect.” Id. at 1215.

In so holding, we distinguished Williams II, stating there was a clear

deterrent effect since, “[c]ontrary to Megan’s Law II, as analyzed in Williams

II, there is not a ‘substantial period of incarceration attached to’ many of the

predicate offenses requiring registration under SORNA, many of which are

misdemeanors or carry relatively short maximum terms of incarceration.”

Id., quoting Williams II, 832 A.2d at 978 (internal footnotes omitted). Muniz

also stated the General Assembly increased the retributive effect of SORNA

as compared to Megan’s Law II by “increas[ing] the length of registration,

[adding] mandatory in-person reporting requirements, and allow[ing] for

more private information to be displayed online.” Id. at 1216 (citation

omitted). We also determined in Muniz that whether or not the behavior to

which SORNA applies is already a crime carries little weight, stating “where

SORNA is aimed at protecting the public against recidivism, past criminal

conduct is ‘a necessary beginning point.’” Id., quoting Smith, 538 U.S. at

105.

Although recognizing “there are studies which find the majority of sexual

offenders will not re-offend, and that sex offender registration laws are

ineffective in preventing re-offense[,]” we deferred in Muniz to the General

Assembly’s policy determination and concluded the protection of the public

from sex offenders “is a purpose other than punishment to which the statute

may be rationally connected and this factor weighs in favor of finding

SORNA to be nonpunitive.” Id. at 1217. Lastly, we determined SORNA’s

registration requirements were excessive and over-inclusive in relation to

the statute’s intended purpose of protecting the public; it “categorize[d] a

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broad range of individuals as sex offenders subject to its provisions,

including those convicted of offenses that do not specifically relate to a

sexual act.” Id. at 1218. Accordingly, we held in Muniz that SORNA’s

registration requirements constituted punishment and their retroactive

application constituted a violation of the constitutional prohibition against ex

post facto laws. Id.

Butler II, 226 A.3d at 980-81.

C. Subchapter I

In response to Muniz and the Superior Court’s decision in Commonwealth v.

Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I) (invalidating SORNA’s mechanism for

determining SVP status, see 42 Pa.C.S. §9799.51(b)(4)), rev’d 226 A.3d 972 (Pa. 2020),

the General Assembly enacted Subchapter I, the retroactive application of which became

the operative version of SORNA for those sexual offenders whose crimes occurred

between April 22, 1996 and December 20, 2012. In this new statutory scheme, the

General Assembly, inter alia, eliminated a number of crimes that previously triggered

application of SORNA and reduced the frequency with which an offender must report in

person to the Pennsylvania State Police (PSP). With regard to Subchapter I, the General

Assembly declared its intent that the statute “shall not be considered as punitive.” 42

Pa.C.S. §9799.51(b)(2).

To achieve its dual goals of ensuring public safety without creating another

unconstitutionally punitive scheme, the General Assembly made a number of material

changes to the operation of SORNA. The provisions of Subchapter I most relevant to

our present analysis follow:

• Subchapter I applies to those convicted of a sexually violent offense

after April 22, 1996, but before December 20, 2012. 42 Pa.C.S.

§9799.52(1), (2).

• Those convicted of one of the triggering offenses must register

either for a period of ten years or for life. 42 Pa.C.S. §9799.55(a),

(b). Those offenders designated as SVPs must register for life. Id.

§9799.55(b)(3).

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• Persons convicted of the following crimes are subjected to a ten-

year registration period: kidnapping, indecent assault, incest,

prostitution, obscene and sexual materials, sexual abuse of

children, unlawful contact with a minor, sexual exploitation of

children, luring a child into a motor vehicle, and institutional sexual

assault. 42 Pa.C.S. §9799.55(a).

• Persons convicted of the following crimes, SVPs, and offenders

convicted of two or more of the ten-year reporting crimes are subject

to lifetime registration: rape, IDSI, sexual assault, aggravated

indecent assault, and incest with a child under the age of twelve. 42

Pa.C.S. §9799.55(b).

• A number of crimes, which were included in SORNA, and are not

necessarily sexually related, were removed from the list of triggering

offenses in Subchapter I, including, but not limited to, the following:

unlawful restraint, false imprisonment, interference with custody of

children, and invasion of privacy.

• A non-SVP must report in person once per year at an approved

facility to verify their residence and be photographed. 42 Pa.C.S.

§§9799.60(b), 9799.54(b). An SVP must report in person four times

per year. Id. §9799.60(a).

• All offenders must contact the PSP within three days of any change

to their registration information, including changes to residence,

employment, or education. However, Subchapter I does not require

that the offender must appear in person to satisfy this obligation. 42

Pa.C.S. §9799.56(a)(2).

• Generally, failure to comply with the registration requirements

results in a felony prosecution. 42 Pa.C.S. §9799.60(e); 18 Pa.C.S.

§4915.2(b), (c).

• The subchapter also establishes a website to be operated in

conjunction with the statewide registry. The website will publish the

following information as to each offender: (1) name and known

aliases; (2) year of birth; (3) the address, municipality, county, and

zip code of any residence at which the offender lives; (4) the location

of any schools attended by the offender; (5) the address of any

employment location; (6) a photograph of the offender that must be

updated at least once per year; (7) a physical description of the

offender, including sex, height, weight, eye color, hair color, and

race; (8) any identifying marks, including tattoos, scars, or

birthmarks; (9) the license plate number and a description for any

vehicle owned or registered to the offender; (10) a status report

regarding whether the offender is compliant with the terms of

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SORNA; (11) an indication of whether the offender’s victim was a

minor; (12) a description of the offense committed by the offender;

(13) the dates of the offense and conviction; and (14) the location of

the offender’s temporary shelter and where the offender receives

mail, if the offender is homeless. 42 Pa.C.S. §9799.63(c).

• If a member of the public so desires, the website will alert that

person by electronic notification if an offender moves in or out of the

geographic area designated by the person. 42 Pa.C.S.

§9799.63(b)(7).

• Finally, an SVP or lifetime reporter can petition a court to be removed

from the statewide registry. At the time of the petition, the SVP must

not have been convicted of any crime punishable by one year or

longer after being released from prison or after registering for the first

time, whichever is later, for a period of twenty-five years. Also, the

offender must be reviewed by a member of the Sexual Offender

Assessment Board. The SVP or lifetime reporter must demonstrate

by clear and convincing evidence that he or she no longer poses a

risk, or a threat of risk, to the public or any individual person. 42

Pa.C.S. §9799.59(a).

III. Preliminary Procedural Issues

As we have stated, unlike Witmayer, Lacombe did not challenge the propriety of

his sex offender registration status in a timely filed PCRA petition, but instead filed a

“Petition to Terminate His Sexual Offender Registration Requirements.” The

Commonwealth and OAG contend Lacombe was required to challenge his sex offender

registration status within the confines of the PCRA. See Commonwealth’s Brief at 56-

59; OAG’s Brief at 46. Due to Lacombe’s failure to file a PCRA petition, and his

concomitant failure to satisfy one of the exceptions to the PCRA’s timeliness

requirements, see 42 Pa.C.S. §9545(b), the Commonwealth and OAG argue the trial

court lacked jurisdiction to consider Lacombe’s petition. Commonwealth’s Brief at 56-

62; OAG’s Brief at 46-48. In response, Lacombe claims “the fundamental flaw with the

Commonwealth’s argument is that it relies on circular logic[;]” “the court’s determination

of whether it has jurisdiction to decide the merits of the claim, would depend upon the

court’s determination of the merits of the claim.” Lacombe’s Brief at 36. Lacombe further

[J-103A-2019 and J-103B-2019] - 19

claims that, “under the Commonwealth’s argument, the General Assembly could enact

legislation ten (10) years after a defendant’s sentence became final which required all

persons convicted of a sexually violent offense to be confined to an institution for an

additional thirty (30) days, and the defendant would have no judicial recourse.” Id.

Lastly, Lacombe contends his petition was timely because it should be considered a

challenge to the judgment of sentence, and thus “the one-year filing limitation applicable

to PCRA[ petitions] would begin to run from the effective date of the legislation that

imposed the challenged registration requirements[.]” Id. at 36-37.

This Court has not yet required that sexual offender registration statutes be

challenged through the PCRA or some other procedural mechanism. Indeed, we have

consistently decided cases regarding sexual offender registration statutes that were

challenged via different types of filings. See Muniz, supra (successful challenge to

constitutionality of SORNA via direct appeal), Commonwealth v. Martinez, 147 A.3d 517,

523 (Pa. 2016) (successful challenge to increase of registration term through “Petition to

Enforce Plea Agreement or for a Writ of Habeas Corpus” where PCRA petition would

have been untimely), A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7 (Pa. 2016)

(successful challenge to registration term through mandamus action against PSP),

Williams II, supra (unsuccessful challenge to constitutionality of Megan’s Law II through

“Motion for Extraordinary Relief” and “Motion for Relief”). Our approach in this regard

takes into account the fact that frequent changes to sexual offender registration statutes,

along with more onerous requirements and retroactive application, complicate

registrants’ ability to challenge new requirements imposed years after their sentences

become final.

This is especially so under the PCRA as many registrants, Lacombe included,

would be ineligible for relief on timeliness grounds. See 42 Pa.C.S. §9545(b)(1) (PCRA

[J-103A-2019 and J-103B-2019] - 20

petition must be filed within one year of judgment of sentence becoming final unless

exception applies). Other registrants may be ineligible because their sentence has

expired while their registration requirements continue. See 42 Pa.C.S. §9543(a)(1)

(PCRA petitioner must be serving sentence to be eligible for relief). Both situations arise

from the fact that the registration period does not begin until registrants are released

from prison, which may be well after their sentence has become final or may signal the

completion of their sentence. Accordingly, we decline to find the PCRA, or any other

procedural mechanism, is the exclusive method for challenging sexual offender

registration statutes and we thus conclude the trial court had jurisdiction to consider

Lacombe’s “Petition to Terminate His Sexual Offender Registration Requirements.”

IV. Ex Post Facto Analysis

As stated above, the threshold question for determining whether the retroactive

application of Subchapter I to appellees violates the constitutional prohibition against ex

post facto laws is whether the requirements of Subchapter I constitute criminal

punishment. See Muniz, 164 A.3d at 1208 (“Our decision regarding violation of [the ex

post facto] clause depends on the determination of whether SORNA’s retroactive

application to [Muniz] constitutes punishment.”). Accordingly, we apply the two-part

analysis employed in Muniz and previous cases:

We first consider whether the General Assembly’s “intent was to impose

punishment, and, if not, whether the statutory scheme is nonetheless so

punitive either in purpose or effect as to negate the legislature’s non-

punitive intent.” Williams II, 832 A.2d at 971. If we find the General

Assembly intended to enact a civil scheme, we then must determine

whether the law is punitive in effect by considering the Mendoza-Martinez

factors. Id. at 972. We recognize only the “clearest proof” may establish

that a law is punitive in effect. [Commonwealth v. Lee, 935 A.2d 865, 876-

77 (Pa. 2007)]. Furthermore, in determining whether a statute is civil or

punitive, we must examine the law’s entire statutory scheme. Smith, 538

U.S. at 92.

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Id.

A. Intent of General Assembly

The parties do not dispute that the General Assembly’s purpose in enacting

Subchapter I was non-punitive, that is, it intended to enact a civil regulatory scheme.

The General Assembly stated the purpose of Subchapter I is 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.” 42 Pa.C.S. §9799.51(b)(1). Further, the General Assembly expressly

declared that Subchapter I “shall not be construed as punitive.” Id. §9799.51(b)(2). We

therefore proceed to the second part of our ex post facto analysis.

B. Mendoza-Martinez Factors

i. Whether Subchapter I Involves an Affirmative Disability or Restraint

The Commonwealth argues Subchapter I does not involve an affirmative disability

or restraint because its requirements are minimal and much less onerous than those

imposed by SORNA. Commonwealth’s Brief at 28, 33.9 The Commonwealth specifically

points out the fact that Subchapter I reduces in-person reporting requirements, the length

of registration, and the list of registerable offenses as compared to SORNA, and adds a

removal mechanism. Id. at 30-31.

Lacombe argues Subchapter I’s reduction of in-person reporting is minimal and

the removal mechanism is illusory as it is nearly impossible to comply with and achieve.

Lacombe’s Brief at 17. Lacombe ultimately contends the “slight reduction in the

9 The briefs filed by the Commonwealth in the present appeals are nearly identical with

regard to the Commonwealth’s Mendoza-Martinez analysis; we use the brief filed in

Lacombe’s case to summarize the Commonwealth’s arguments. We also provide

arguments of the OAG, where necessary, using the brief it filed in Lacombe’s case.

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frequency of in-person reporting for non-SVPs and the illusory procedure for removal

from the registry fall[ ] woefully short of alleviating the affirmative disabilities and

restraints that so concerned this Court in . . . Muniz.” Id. at 18. Witmayer adds that

Subchapter I also imposes secondary disabilities and restraints impacting “a person’s

social and psychological well-being, his ability to find and keep housing, employment

and schooling, the likelihood he will be subject to violence, and his ability to travel out of

state[,]” all of which “flow directly and inevitably from registration.” Witmayer’s Brief at

35.

We agree with Commonwealth as to this factor. Subchapter I has significantly

reduced in-person reporting requirements that alleviate many of the concerns expressed

in Muniz, and we thus conclude Subchapter I does not impose an affirmative disability

or restraint. Although in Muniz we distinguished SORNA from the statute at issue in

Smith10 due to SORNA’s in-person reporting requirements, see Muniz, 164 A.3d at 1210,

we focused on the frequency of in-person reporting required under SORNA. In Muniz,

we specifically stated as follows: “[Muniz] . . . is now required to appear in person at a

registration site four times a year, a minimum of 100 times over the next twenty-five

years, extending for the remainder of his life. In fact, this is the minimum number of

times [Muniz] will have to appear in person, and does not account for the times he must

appear due to his ‘free’ choices including moving to a new address or changing his

appearance.” Id. at 1210-11 (internal citations, quotations, and footnote omitted).

Subchapter I offenders are now required to report in person annually rather than

quarterly, 42 Pa.C.S. §9799.60(b), which limits the in-person appearances of lifetime

registrants to twenty-five times over a twenty-five year period as compared to 100 times

10 The Alaska statute, which did not require in-person reporting, was determined not to

involve an affirmative disability or restraint. Smith, 538 U.S. at 99-101.

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over a twenty-five year period, which was determined to be an affirmative disability or

restraint in Muniz. The currently-required annual appearance is necessary to maintain

a useful updated photograph on the Megan’s Law website. Furthermore, Subchapter I

offenders are no longer required to appear in person to report changes to registration-

related information. 42 Pa.C.S. §9799.56(a)(2).11 As well, the majority of these

offenders are subject only to a ten-year reporting requirement rather than the fifteen or

twenty-five year periods considered in Muniz, compare 42 Pa.C.S. §9799.55 with 42

Pa.C.S. §9799.15(a) (effective Dec. 20, 2012 through Feb. 20, 2018), and lifetime

registrants may now petition for removal from the registry after twenty-five years. 42

Pa.C.S. §9799.59. The in-person reporting requirements that remain in Subchapter I

are minimal and clearly necessary, and we thus find Subchapter I does not impose any

direct affirmative disability or restraint.12 Additionally, “minor and indirect” restraints and

disabilities, such as those cited by Witmayer, are nonpunitive. See Smith, 538 U.S. at

100 (“If the disability or restraint is minor and indirect, its effects are unlikely to be

11 Although the statute does not include any mandatory method for reporting changes to

registration-related information, it is clear that Subchapter I offenders may report such

changes by mail using a change of information form provided by the PSP on the Megan’s

Law Website, which includes instructions; the form states it is only for use by Subchapter

I offenders as those subject to Subchapter H must appear in person to update their

registration-related information. See Sexual Offender Update Form,

https://www.pameganslaw.state.pa.us/Documents/Sexual%20Offender%20Registratio

n %20-%20SP%204-218%20Public.pdf (last visited May 13, 2020).

12The dissent suggests the fact that yearly in-person reports are necessary to maintain

a current registry is irrelevant to the “prior assessment of whether the statute imposes a

disability or restraint,” and requires a “complicated and elusive line-drawing exercise.”

Dissenting Opinion, slip op at 32-33. We disagree with this characterization and

emphasize that the benefit of the annual reporting requirement, and its infrequency,

combine to distinguish our analysis in this case from Muniz, and a sexual offender

registration statute requiring “two” or “three” in-person appearances per year is simply

not before this Court. Id. at 33.

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punitive.”). Accordingly, we conclude this factor weighs in favor of finding Subchapter I

nonpunitive.

ii. Whether Subchapter I’s Requirements Have Been Historically Regarded as

Punishment

The Commonwealth argues “Subchapter I’s requirements are nothing like colonial

era punishments” as they do not “involve physical pain or direct public confrontation, nor

are they meant to stigmatize offenders.” Commonwealth’s Brief at 34. Noting the Muniz

Court came to a different conclusion regarding the statutory requirements considered

therein, the Commonwealth contends Subchapter I is distinguishable from SORNA as to

this factor because the number of offenders subject to registration has been reduced,

less disclosure of information about offenders is required, see 42 Pa.C.S. §9799.63(c),13

and offenders can now prove rehabilitation by way of the removal mechanism.

Commonwealth’s Brief at 36-37. With regard to probation, the Commonwealth argues

the Muniz Court disregarded “critical procedural differences between violations of

probation and violations for non-compliance” such as the fact that “because non-

compliance with registration requirements is its own offense, it comes with all the

safeguards attendant to the criminal process[.]” Id. at 38-39.

In response, Lacombe contends “[t]he internet registry prescribed by Subchapter

I at [Section] 9799.63, is indistinguishable from the internet registry under SORNA” as

Section 9799.63(c), by using the word “shall,” still mandates that registration information

be posted on the internet. Lacombe’s Brief at 20-21. As such, Lacombe argues “this

13 Section 9799.63(c) is titled “Information permitted to be disclosed regarding

individuals[,]” 42 Pa.C.S. §9799.63(c) (emphasis added), as compared with Section

9799.28(b) which is titled “Required information.” 42 Pa.C.S. §9799.28(b) (emphasis

added). However, as discussed below, Section 9799.63(c) states “the Internet website

shall contain the following information . . .[,]” which requires such information be posted

on the internet just as in Section 9799.28(b). 42 Pa.C.S. §9799.63(c) (emphasis added).

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Court’s analysis of [SORNA’s similarity to public shaming due to] the internet registry in

Muniz applies with equal force and effect to Subchapter I.” Id. at 20. With respect to

probation, Lacombe contends Subchapter I still requires reporting and other conditions

which are similar to probation and the Muniz analysis should control. Id. at 24-25.14

We reject the Commonwealth’s argument on this factor and find no reason to

deviate from our corresponding analysis in Muniz. In Muniz, we stated:

The United States Supreme Court has distinguished colonial-era public

shaming punishments from sex offender registration laws by noting public

shaming “involved more than the dissemination of information” but also

“held the person up before his fellow citizens for face-to-face shaming or

expelled him from the community.” Smith, 538 U.S. at 98. The Smith Court

found the sex offender information disseminated through the Alaska statute

is accurate and, for the most part, already public. Id. The Court noted the

publicity may cause embarrassment or ostracism for the convicted, but

found “the publicity and resulting stigma [is not] an integral part of the

objective of the regulatory scheme.” Id. at 99. The Court also stated the

fact the information is posted on the internet did not alter its conclusion since

the intent of the posting is to inform the public for its own safety, the website

itself does not provide the public with a means to shame the offender, and

members of the public must affirmatively seek out the information. Id.

As stated above, we recognize the significance of the Smith Court’s

decision with regard to its analysis of the Alaska statute. However, Smith

was decided in an earlier technological environment. The concurring

expression by now-Justice Donohue in [Commonwealth v. Perez, 97 A.3d

747 (Pa. Super. 2014)] has particular force on this point:

The environment has changed significantly with the

advancements in technology since the Supreme Court’s 2003

decision in Smith. As of the most recent report by the United

States Census Bureau, approximately 75 percent of

households in the United States have internet access.

Yesterday’s face-to-face shaming punishment can now be

accomplished online, and an individual’s presence in

cyberspace is omnipresent. The public internet website

14Witmayer’s arguments regarding this factor are substantially similar to those of

Lacombe.

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utilized by the Pennsylvania State Police broadcasts

worldwide, for an extended period of time, the personal

identification information of individuals who have served their

“sentences.” This exposes registrants to ostracism and

harassment without any mechanism to prove rehabilitation—

even through the clearest proof. In my opinion, the extended

registration period and the worldwide dissemination of

registrants’ information authorized by SORNA now outweighs

the public safety interest of the government so as to disallow

a finding that it is merely regulatory.

Perez, 97 A.3d at 765-66 (Donohue, J., concurring).

Furthermore, although the Smith Court ultimately rejected the argument

Alaska’s registration system was like probation because it did not impose

mandatory conditions, the High Court nevertheless recognized the

argument has “some force” and the argument is therefore even more

compelling where SORNA does impose such conditions. See Id. at 763

(Donohue, J. concurring), citing Smith, 538 U.S. at 101. It is clear the

Alaska statute at issue in Smith and SORNA are materially different in this

regard. As our analysis of the similarity to probation would be nearly

identical to Justice Donohue’s analysis of the issue in Perez, we again quote

from her concurring opinion with minimal, bracketed, differences arising out

of appellant’s status as a Tier III offender:

In contrast, the mandatory in-person verification requirement

in Section 9799.15(e) not only creates an affirmative restraint

upon [appellant], requiring him to appear at a designated

facility a minimum of [100] times over the next 25 years[,

extending for the remainder of his life,] as a Tier [III] offender,

but also greatly resembles the periodic meetings with

probation officers imposed on probationers. … [B]ecause

SORNA differs significantly from the statute at issue in Smith,

these disparities must be considered.

In [Williams II,] the Pennsylvania Supreme Court found that

probation has historically been considered a traditional form

of punishment. Williams [II], 832 A.2d at 977. Probation

entails a set of mandatory conditions imposed on an individual

who has either been released after serving a prison sentence,

or has been sentenced to probation in lieu of prison time. 42

Pa.C.S. §9754. These conditions can include psychiatric

treatment, limitations on travel, and notifying a probation

[J-103A-2019 and J-103B-2019] - 27

officer when any change of employment or residency occurs.

42 Pa.C.S. §9754(c). Probationers are also subject to

incarceration for a violation of any condition of their probation.

42 Pa.C.S. §9771.

Like the conditions imposed on probationers, registrants

under SORNA must notify the state police of a change in

residence or employment. 42 Pa.C.S. §9799.15(g).

Offenders also face incarceration for any non-compliance with

the registration requirements. 42 Pa.C.S. §9799.22(a).

Furthermore, SORNA requires registrants who do not have a

fixed place of work to provide “general travel routes and

general areas where the individual works” in order to be in

compliance. 42 Pa.C.S. §9799.16. The Supreme Court in

Smith stated that “[a] sex offender who fails to comply with the

reporting requirement may be subjected to criminal

prosecution for that failure, but any prosecution is a

proceeding separate from the individual’s original offense.”

Smith, 538 U.S. at 101-02. However, violations for

noncompliance with both probation and SORNA registration

requirements are procedurally parallel. Both require further

factual findings to determine whether a violation has actually

occurred. 42 Pa.C.S. §§9771(d), 9799.21. Similarly, but for

the original underlying offense, neither would be subject to the

mandatory conditions from which the potential violation

stems. The parallels between the SORNA registration

requirements and probation lead me to conclude that factor

two of the [Mendoza-Martinez] test leans towards a finding

that SORNA is punitive.

See Perez, 97 A.3d at 763-64 (Donohue, J. concurring).

We conclude the weighing process with regard to this Mendoza-Martinez

factor presents a much closer case than the Smith Court’s analysis of

Alaska’s registration statute in 2003. We consider SORNA’s publication

provisions—when viewed in the context of our current internet-based

world—to be comparable to shaming punishments. We also find SORNA

and the Alaska statute are materially different in their mandatory conditions

such that SORNA is more akin to probation. We therefore hold this factor

weighs in favor of finding SORNA’s effect to be punitive.

Muniz, 164 A.3d at 1212-13.

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Similar to SORNA, Subchapter I directs the PSP “shall” operate and maintain a

publicly accessible internet website and upload a plethora of information about each

offender. 42 Pa.C.S. §9799.63(b), (c). Subchapter I further directs the PSP to “develop,

implement and maintain a process which allows members of the public to receive

electronic notification when an individual required to register under [Subchapter I] moves

into or out of a user-designated location.” Id. §9799.63(b)(7). As such, we are

constrained to find the requirements of Subchapter I are akin to public shaming. We are

also persuaded the requirements of Subchapter I are akin to probation; just as with

SORNA, Subchapter I imposes mandatory conditions such as the in-person verification

requirements, 42 Pa.C.S. §9799.60, a requirement that offenders notify the PSP of

changes to their registration information, 42 Pa.C.S. §9799.56(a)(2), and penalties for

noncompliance, 42 Pa.C.S. §9799.60(e); 18 Pa.C.S. §4915.2(b), (c). Accordingly, we

find this factor weighs in favor of finding Subchapter I punitive.

iii. Whether Subchapter I Comes into Play Only on a Finding of Scienter

The parties agree, as do we, that “this factor is of little significance to our inquiry.”

Muniz, 164 A.3d at 1214 (citation omitted). As stated in Muniz, “where the concern of a

sex offender registration statute like SORNA is protecting the public against recidivism,

past criminal conduct is ‘a necessary beginning point.’” Id., quoting Smith, 538 U.S. at

105. As the changes effected by Subchapter I provide no reason to depart from Muniz

with regard to this factor, we accordingly assign it little weight.

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iv. Whether the Operation of Subchapter I Promotes the Traditional Aims of

Punishment

The Commonwealth contends Subchapter I does not promote deterrence and

claims this case is distinguishable from Muniz since “Subchapter I mandates a ten-year

period of registration for twelve offenses, many of which are felonies carrying maximum

sentences of as much as seven to twenty years[,]” which makes it “unlikely that the

prospect of subsequent registration for a limited period of time would have a significant

deterrent effect on a sexual offender.” Commonwealth’s Brief at 44. Regarding

retribution, the Commonwealth argues Subchapter I does not operate to affix culpability

for prior criminal conduct, but instead “serves the remedial purpose of protecting

innocent persons from victimization[.]” Id. at 46 (internal citation and quotation omitted).

The OAG adds that the criminal penalty for failure to comply with Subchapter I’s

registration requirements is not relevant to determining whether Subchapter I promotes

the traditional aims of punishment because “[t]he mere fact that a statute makes failure

to comply with a civil requirement — such as paying one’s taxes — criminal, does not

transform the underlying civil component into criminal punishment.” OAG’s Brief at 38.

Lacombe argues the Muniz Court’s concerns regarding deterrence and retribution

have not been alleviated with the passage of Subchapter I because those convicted of

certain registerable offenses “might very well receive a probationary sentence, but would

be required to register as a sex offender for ten [ ] years.” Lacombe’s Brief at 26-27.

Witmayer adds that “disproportionate retribution is an obvious goal served by

[Subchapter I]” as “[t]he underlying conviction is the necessary and the sufficient trigger

for registration; the individual cannot avoid retribution by doing nothing further.”

Witmayer’s Brief at 41. However, Witmayer concedes that Subchapter I “cannot seek

deterrence as a rationale for the law as the law is exclusively retroactive.” Id.

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We agree with appellees that Subchapter I promotes retribution just as we found

SORNA to promote retribution in Muniz. 164 A.3d at 1216. However, we also agree

with Witmayer that Subchapter I “cannot seek deterrence as a rationale for the law as

the law is exclusively retroactive.” Witmayer’s Brief at 41. In other words, Subchapter I

registrants cannot be deterred from committing the criminal activity for which they are

required to register since those crimes have already occurred.15

The same can be said for the removal mechanism. Although the removal

mechanism provides an incentive to refrain from commission of new criminal offenses,

this provision clearly does not deter the initial criminal activity. Furthermore, we agree

with the OAG that the penalties for failure to comply with registration, 18 Pa.C.S.

15 Further, even if Subchapter I was applied prospectively only, it would still be

distinguishable from SORNA; Subchapter I includes only the “mere presence” of a

deterrent purpose. See Smith, 538 U.S. at 102 (“the mere presence of a deterrent

purpose” does not “render[ ] such sanctions criminal”) (citation and quotation omitted).

The Muniz Court focused on (and found problematic) SORNA’s application to offenders

convicted of a multitude of minor crimes, including many having no sexual component at

all. 164 A.3d at 1215. In Subchapter I, however, the General Assembly removed these

minor, non-sexual crimes. See id. at 1218. Although there remains some imbalance

between the registration terms and the maximum penalties prescribed to each predicate

offense covered by Subchapter I (for example, persons convicted of indecent assault

graded as a first-degree misdemeanor, 18 Pa.C.S. §3126, must register for a period of

ten years pursuant to 42 Pa.C.S. §9799.55(a), but only face a maximum prison term of

five years under 18 Pa.C.S. §106(b)(6)), this imbalance is minimal and the problems

exposed in Muniz have been resolved. For instance, the predicate offenses under

Subchapter I no longer include federal crimes that have a maximum penalty of two years

of incarceration, see Muniz, 164 A.3d at 1215 n.20, and most predicate offenses in

Subchapter I are felonies. See OAG’s Brief at 36 n.26 (“Fourteen registerable crimes

are felony offenses. 18 Pa.C.S. §§2901(b), 4302(a), 4302(b)(1), 4302(b)(2), 5902(b.1),

6312(d.1), 6318(b), 6320(b), 3121, 3123, 3124.1, 3124.2, 3125(c), 3126(b)(3). Two

registerable crimes have the potential to be either a misdemeanor or a felony. Id. at

§§2910(a.1), 5902(c). Two registerable crimes are misdemeanors of the first degree,

which carry a potential of five years’ imprisonment. Id. at §§3126, 5903(h)(1); see also

id. at §1104(1).”). Moreover, the registration term for these offenses is only ten years,

42 Pa.C.S. §9799.55, as opposed to fifteen or twenty-five years in SORNA. 42 Pa.C.S.

§§9799.14(b)-(c) (effective Sept. 2, 2014 through Feb. 20, 2018), 9799.15(a) (effective

Dec. 20, 2012 through Feb. 20, 2018).

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§4915.2, do not promote deterrence. See OAG’s Brief at 38 (fact that statute criminalizes

failure to comply with civil requirement does not transform underlying civil component

into criminal punishment). Accordingly, we weigh this factor in favor of finding

Subchapter I punitive but give it much less weight than in Muniz because Subchapter I

is not aimed at deterrence.16

v. Whether the Behavior to which Subchapter I Applies is Already a Crime

Although Lacombe and Witmayer argue this factor should weigh in favor of finding

Subchapter I punitive, they concede it is of little weight in our analysis. In Muniz, we

stated “[a]s with the third Mendoza-Martinez factor discussed above, this factor carries

little weigh in the balance. We again recognize where SORNA is aimed at protecting the

public against recidivism, past criminal conduct is ‘a necessary beginning point.’” 164

A.3d at 1216, quoting Smith, 538 U.S. at 105. As stated in our discussion of the third

Mendoza-Martinez factor in the present matter, Subchapter I provides no reason to

depart from our analysis in Muniz and thus, we assign little weight to this factor.

vi. Whether there is an Alternative Purpose to which Subchapter I may be

Rationally Connected

The parties do not dispute that there is an alternative purpose, other than

punishment, to which Subchapter I is rationally connected. As stated above, the General

Assembly declared that the purpose of Subchapter I is to “[p]rotect the safety and general

welfare of the people of this Commonwealth by providing for registration, community

16 In his dissent, Justice Wecht criticizes what he deems an unsupported “limited view of

deterrence[,]” Dissenting Opinion, slip op. at 38, but his reliance on our statement in

Muniz that “‘the prospect of being labeled a sex offender accompanied by registration

requirements and the public dissemination of an offender’s personal information over the

internet has a deterrent effect’” actually undermines his more expansive view. Id.,

quoting Muniz, 164 A.3d at 1215. The reference in Muniz to the “prospect” of becoming

a registered sex offender speaks specifically to individuals who have not yet committed

the initial criminal activity and may thus be deterred by the statute from engaging in such

activity.

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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.”

42 Pa.C.S. §9799.51(b)(1). Such purpose is based on the General Assembly’s finding

that “sexually violent predators and offenders pose a high risk of engaging in further

offenses even after being released from incarceration or commitments, and protection

of the public from this type of offender is a paramount government interest.” Id.

§9799.51(a)(2). As we stated in Muniz, “[a]lthough there are contrary scientific studies,

we note there is by no means a consensus, and as such, we defer to the General

Assembly’s findings on this issue.” 164 A.3d at 1217.17 Accordingly, we conclude there

is a purpose other than punishment to which Subchapter I may be rationally connected

— protecting and informing the public regarding sexual offenders the General Assembly

considers dangerous — and this factor clearly weighs in favor of finding Subchapter I

nonpunitive.

vii. Whether Subchapter I is Excessive in Relation to the Alternative Purpose

Assigned

The Commonwealth argues Subchapter I is not excessive, but reasonable in light

of its stated purpose, “given that Subchapter I has slashed its list of registerable offenses,

the majority of which contain a sexual component, along with the reduced in-person

reporting, and the mechanism for removal from the registry[.]” Commonwealth’s Brief at

53-54. As such, the Commonwealth contends “Subchapter I’s requirements are not so

extremely onerous in relation to their purpose as to constitute punishment.” Id. at 54

(internal citation and quotation omitted).

17These findings by the General Assembly were not challenged by appellees here as

they were in Torsilieri.

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Lacombe claims “Subchapter I is sweepingly over broad” as it “still requires the

blanket registration of all offenders convicted of a predicate enumerated offense

regardless of that individual’s actual likelihood, or continued likelihood of reoffending”

and, “with the exception of the illusory process . . . for being removed from the registry

after twenty-five [ ] years, Subchapter I offers no procedure by which [an offender] can

show, in the first instance, that he or she does not pose an actual risk of re-offense.”

Lacombe’s Brief at 29-30.18

We are substantially aligned with the Commonwealth as to this factor. The

General Assembly removed a plethora of previously qualifying offenses when it enacted

Subchapter I, compare 42 Pa.C.S. §9799.59 with 42 Pa.C.S. §§9799.14(b)-(d) (effective

Sept. 2, 2014 through Feb. 20, 2018), and thus, made the new enactment much less

likely to “result in individuals . . . who in fact do not pose the type of risk to the community

that the General Assembly sought to guard against” being labeled as sex offenders.

Williams II, 832 A.2d at 983. The General Assembly also lowered the registration term

for many offenses from fifteen and twenty-five years to ten years, compare 42 Pa.C.S.

§9799.55 with 42 Pa.C.S. §9799.15(a) (effective Dec. 20, 2012 through Feb. 20, 2018),

and significantly reduced the in-person reporting requirements so that Subchapter I

offenders must only report in person annually, compare 42 Pa.C.S. §9799.60(b) with 42

Pa.C.S. §9799.15(e) (effective Dec. 20, 2012 through Feb. 20, 2018). And, as stated

previously, this latter requirement is necessary to capture and upload a current

photograph on the Megan’s Law website. Also necessary for public protection is the

prompt reporting of any changes to the Subchapter I offender’s registration information,

see 42 Pa.C.S. §9799.56(a)(2), and prosecution for failure to comply under 18 Pa.C.S

18Witmayer’s arguments regarding this factor are substantially similar to those of

Lacombe.

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§4915.1 is also necessary to ensure compliance with the mandates of Subchapter I.

Moreover, Subchapter I provides a removal mechanism for lifetime registrants, the

absence of which has created excessiveness concerns for this Court. See Williams II,

832 A.2d at 982-83 (“A reasonable argument could be made that, to avoid

excessiveness, the Legislature was required to provide some means . . . to invoke judicial

review[.] . . . This aspect of the statute may be particularly problematic[.]”). For these

reasons, we find the Subchapter I requirements are necessary, rather than excessive, in

relation to the statute’s alternative assigned purpose of protecting the public from sex

offenders. Accordingly, this factor weighs heavily in favor of finding Subchapter I

nonpunitive.

viii. Balancing of the Factors

As the above Mendoza-Martinez analysis clearly reflects, Subchapter I effected

significant changes from the original version of SORNA, retroactive application of which

we found unconstitutional in Muniz. To summarize, we find three of the five factors weigh

in favor of finding Subchapter I nonpunitive. Additionally, we give little weight to the fact

Subchapter I promotes the traditional aims of punishment and give significant weight to

the fact Subchapter I is narrowly tailored to its nonpunitive purpose of protecting the

public. As we have not found the requisite “clearest proof” Subchapter I is punitive, we

may not “override legislative intent and transform what has been denominated a civil

remedy into a criminal penalty[.]” Hudson v. United States, 522 U.S. 93, 100 (1997),

quoting United States v. Ward, 448 U.S. 242, 249 (1980) (internal quotations omitted).

V. Conclusion

We hold Subchapter I does not constitute criminal punishment, and the ex post

facto claims forwarded by appellees necessarily fail. See Muniz, 164 A.3d at 1208 (“Our

decision regarding violation of [the ex post facto] clause depends on a determination of

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whether SORNA’s retroactive application to [Muniz] constitutes punishment.”).

Accordingly, we reverse the orders of the Montgomery County Court of Common Pleas

relieving appellees of their duty to comply with Subchapter I.

Chief Justice Saylor and Justices Baer and Todd join the opinion.

Justice Mundy files a concurring opinion.

Justice Wecht files a concurring and dissenting opinion in which Justice Donohue

joins.

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