J-E02005-19
2020 PA Super 252
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID SANTANA, : : Appellant : No. 3488 EDA 2017
Appeal from the Judgment of Sentence Entered July 18, 2017 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000031-2017
BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.
OPINION BY KUNSELMAN, J.: FILED OCTOBER 20, 2020
I. Introduction
In 2011, the General Assembly of Pennsylvania enacted the Sexual
Offender Registration and Notification Act (“SORNA”), which adopted Title I of
the federal Adam Walsh Act.1 A primary goal of the Adam Walsh Act (and,
therefore, of SORNA) is addressing the inconsistencies that arose when 50
states had 50 unique, registration procedures for sex offenders. Congress
therefore incentivized states to establish a national, coordinated registry. The
federal government thereby hoped to track and to publicize sex offenders’
residences, employment locations, and online identities with improved
accuracy and predictability.
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1 42 Pa.C.S.A. §§ 9799.10-9799.41; 34 U.S.C. §§ 20911-20932. J-E02005-19
However, in 2017, the Supreme Court of Pennsylvania found SORNA’s
registration requirements so injurious to reputation and individual liberty that
they constitute a criminal punishment unto themselves. Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied sub nom. Pennsylvania v.
Muniz, ___ U.S. ___, 138 S.Ct. 925 (2018). Furthermore, Muniz barred
retroactive application of SORNA’s registration, because the General Assembly
violates the federal and Pennsylvania constitutions whenever it increases the
punishment for a crime after that crime has occurred. Hence, the registration
requirements of SORNA are unconstitutional if the Commonwealth applies
them to someone whose underlying sexual offense occurred prior to SORNA’s
effective date.
In this appeal, we granted en banc review to determine whether, in light
of the foregoing, the Commonwealth could constitutionally charge and convict
Appellant David Santana with failing to register in Pennsylvania, under
SORNA, for a pre-SORNA crime that occurred in New York. The trial court
held SORNA’s registration requirements were not ex post facto punishments
for Mr. Santana, because he moved to Pennsylvania after SORNA had taken
effect.2 By basing its decision on locality and not chronology, the trial court
2 Specifically, Mr. Santana enter a negotiated guilty plea to the charge of failing to comply with the registration requirements of SORNA, 18 Pa.C.S.A. § 4915.1(a)(1), and the trial court sentenced him according to the terms of that plea bargain.
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violated the precedents of the Supreme Court of the United States, the
Supreme Court of Pennsylvania, and the federal and state constitutions. We
therefore reverse its order denying Mr. Santana’s post-sentence motions.
II. Factual and Procedural Background
The timeline of events in this case is critical.
In 1983, Mr. Santana committed a rape in New York,3 and a court of
that state convicted and sentenced him for it. When Mr. Santana committed
his crime, Pennsylvania had no law requiring sex offenders to register in this
Commonwealth. Neither did New York.
In January of 1996, New York’s sex-offender registration law took effect.
Around the same time (on October 24, 1995), Pennsylvania’s legislature
expanded our Sentencing Code to include a new Subchapter H, “Registration
of Sexual Offenders.” See Act 24 of 1995; P.L. 24, effective April 22, 1996
(a.k.a., “Megan’s Law I”). Among other things, Megan’s Law I established a
database for compiling data on sex offenders upon their return to society.
Only a few offenses triggered registration, and all registrations were ten years
in duration. See 42 Pa.C.S.A. §§ 9791-9799 (repealed).
In 2000, New York paroled Mr. Santana, and, upon his release from
prison, a New York criminal court ordered him to register as a sex offender for
3 N.Y. Penal Law § 130.35.
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life under that state’s 1996 law.4 Over the next few years, the General
Assembly of Pennsylvania amended our Subchapter H several times. This
included its 2011 adoption of SORNA to implement the Adam Walsh Act.
SORNA took effect in Pennsylvania on December 20, 2012.
Three years later, Mr. Santana moved from New York to Pennsylvania.
Believing he had to register here, Mr. Santana initially did so. Police eventually
discovered that he failed to update some of his registration data in a timely
manner, and they arrested him. He pleaded guilty.
On July 18, 2017, the trial court sentenced Mr. Santana to two years
and nine months to five-and-a-half years’ incarceration for failing to register
under SORNA. The next day, the Supreme Court of Pennsylvania decided
Muniz, supra.
Mr. Santana immediately filed a post-sentence motion to withdraw his
guilty plea and have all charges against him dismissed. He claimed his SORNA
registration requirement was an unconstitutional, ex post facto punishment
for his 1983 crime. Mr. Santana argued that, if SORNA’s registration
requirement was unconstitutional as to him, then the Commonwealth could
4 We note that New York’s registration law differs from Pennsylvania’s SORNA, because, unlike SORNA, New York’s registration requirements do not rise to the level of criminal punishments, in and of themselves. Instead, they are civil, regulatory consequences of the underlying sex offense, and the Ex Post Facto Clause (U.S. Const. art. I, § 10) therefore does not prohibit New York from applying them retroactively. See Devine v. Annuci, 56 N.Y.S.3d 149 (N.Y. App. Div. 2017).
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not convict him for failing to obey that unconstitutional requirement. In other
words, he claimed that, because Muniz exempted him from SORNA, he
unknowingly and erroneously pleaded guilty to the crime of failing to register
– a crime he could not have committed, as a matter of law.
He asked the trial court to vacate his illegal sentence, allow him to
withdraw his plea, and dismiss the case against him. The trial court denied
relief, and Mr. Santana timely appealed.
III. Analysis
Mr. Santana raises one issue in this appeal: “whether the trial court
abused its discretion and erred as a matter of law when it determined [Mr.
Santana’s] registration and conviction under SORNA did not violate the state
and federal Ex Post Facto Clauses.” Santana’s Original Brief at 4. Relying
upon Muniz, he reiterates the arguments from his post-sentence motion. See
id. at 9-13, 18-20.
The Commonwealth generally accepts Mr. Santana’s reading of Muniz,
but it claims SORNA’s registration requirements do not retroactively increase
Mr. Santana’s punishment. It therefore asserts his conviction and sentence
should stand. See Commonwealth’s Original Brief at 7-9. The Commonwealth
says that, because Mr. Santana faced lifetime registration requirements in
New York in 2012 and he knew of SORNA when he moved to Pennsylvania,
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SORNA is not ex post facto as to him.5 See id. at 12. The trial court agreed
with the Commonwealth and denied Mr. Santana’s post-sentence motions to
withdraw his guilty plea.
The law regarding withdraw of a guilty plea following sentence dictates
that a “defendant must demonstrate that manifest injustice would result if the
court were to deny his post-sentence motion to withdraw a guilty plea.”
Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa. Super. 2009) (citations
omitted). Such an injustice arises “if the plea was not tendered knowingly,
intelligently, and voluntarily. In determining whether a plea is valid, the court
must examine the totality of circumstances surrounding the plea.” Id.
Because post-sentence motions to withdraw a plea are disfavored in the law,
5 Also, the Commonwealth tangentially proposes a constitutional argument of its own. It believes the Full Faith and Credit Clause (U.S. Const. art. IV, § 1) of the federal constitution requires this Court to apply New York court’s order that Mr. Santana register with local police. See Commonwealth’s Brief at 11- 12. The Commonwealth sites only a civil case to support its theory: Baker by Thomas v. General Motors Corp., 522 U.S. 222 (1998) (holding that the Full Faith and Credit Clause does not require Missouri to apply a Michigan court’s equitable decree against the plaintiffs in a Missouri-based, federal- diversity lawsuit, who were not parties to the Michigan matter).
The Commonwealth’s reliance upon Baker and the Full Faith and Credit Clause to enforce the criminal judgment from New York against Mr. Santana in Pennsylvania is misplaced. “[T]he Full Faith and Credit Clause does not require that Sister States enforce a foreign, penal judgment.” Nelson v. George, 399 U.S. 224, 229, (1970). See also Commonwealth v. Iverson, 516 A.2d 738, 739 n.2 (Pa. Super. 1986) (recognizing that, in a multistate investigation, the Commonwealth may not rely upon the Full Faith and Credit Clause to import a final judgment from Delaware to conclusively establish, as res judicata, that police constitutionally seized the evidence).
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“the decision whether to permit a defendant to withdraw a guilty plea is within
the sound discretion of the trial court.” Commonwealth v. Hart, 174 A.3d
660, 664 (Pa. Super. 2017).
“Discretion must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary action.”
Commonwealth v. Shaffer, 712 A.2d 749, 751 (Pa. 1998). A court abuses
its discretion if, among other things, “the law is not applied” correctly. Id.
Regarding whether the trial court misapplied constitutional law, “our scope of
review is plenary, and we review [its] legal determinations de novo.”
Commonwealth v. Butler, ___ A.3d ___, ___, 2020 WL 1466299, at *3,
Slip Opinion at 5 (Pa. 2020) (quoting Muniz, 164 A.3d at 1195). Additionally,
all lawfully enacted statutes carry a presumption of constitutionality, which
the party seeking to evade their enforcement must rebut. See id.
With this background in mind, we turn to the criminal statute and the
two constitutional provisions at issue.
Mr. Santana pleaded guilty to violating Section 4915.1(a)(3) of the
Crimes Code, failure to comply with a registration requirements – i.e., SORNA.
The statute provides, in relevant part, “An individual who is subject to
registration under 42 Pa.C.S. § 9799.13 ([SORNA]) commits an offense if he
knowingly fails to . . . provide accurate information when registering under
[SORNA].” 18 Pa.C.S.A. § 4915.1(a)(3). The parties agree that Mr. Santana
knowingly failed to provide the police with accurate information when he did
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not completely and timely update his SORNA-registration data. Thus, the only
element of offense in doubt is the first. Was Mr. Santana, constitutionally
speaking, “subject to registration under 42 Pa.C.S. § 9799.13” of SORNA? Id.
Pursuant to Section 9799.13, someone must register under SORNA if
“on or after the effective date of this section, [he] is required to register in a
sexual offender registry in another jurisdiction . . . under a sexual offender
statute in the jurisdiction where the individual is convicted and . . . [he] has
a residence in this Commonwealth or is a transient.” 42 Pa.C.S.A. §
9799.13(7)(i). The parties agree that Mr. Santana satisfies the language of
Section 9799.13(7)(i). He is someone whom the General Assembly intended
for SORNA’s registration requirements to include. However, he argues the
federal and Pennsylvania constitutions prevent the Commonwealth from
applying that section to him, thereby thwarting the legislature’s intent. If the
constitutions nullify the registration-requirement element of 18 Pa.C.S.A. §
4915.1(a)(3), he claims the Commonwealth cannot sustain his conviction.
We agree that a prerequisite for guilt under 18 Pa.C.S.A. § 4915.1(a)(3)
is that the individual be “subject to registration under 42 Pa.C.S. § 9799.13
([SORNA]).” 18 Pa.C.S.A. § 4915.1(a)(3). If a person is not subject to
register under SORNA, then he cannot be guilty of failing to register under
Section 4915.1(a)(3) of the Crimes Code.
Mr. Santana attacks the applicability of 42 Pa.C.S.A. § 9799.13(7)(i) to
him under the Ex Post Facto Clauses of both the federal and Pennsylvania
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constitutions. The Constitution of the United States dictates that, “No state
shall . . . pass any . . . ex post facto law . . . .” U.S. Const. art. I, § 10.
Similarly, the Constitution of the Commonwealth of Pennsylvania mandates
that “No ex post facto law . . . shall be passed.” Pa. Const., art. I, § 17. The
phrase “ex post facto” is Latin, literally meaning, “from a thing done
afterwards,” or, better stated, “after the fact.”
Although Mr. Santana argues that the Commonwealth has violated both
constitutions, he presents no Edmunds analysis and asserts no heightened
protection under the state constitution. See Commonwealth v. Edmunds,
586 A.2d 887, 895 (Pa. 1991) (stating that, in our “New Federalism,” there
are “certain factors to be briefed and analyzed by litigants in each case
hereafter implicating a provision of the Pennsylvania constitution,” especially
if the litigant asserts novel claims under the Pennsylvania constitution).
Furthermore, in Muniz, only three Justices found Pennsylvania’s Ex Post Facto
Clause to afford greater protections than the federal Ex Post Facto Clause.
Compare Muniz, 164 A.3d at 1223 (Lead Opinion), with Muniz at 1224
(Wecht, J., concurring). Thus, Mr. Santana’s federal and state rights remain
coextensive, and we analyze them together. See, e.g., Commonwealth v.
Rose, 127 A.3d 794, 798 n.11 (Pa. 2015).
Both constitutions restrain the Commonwealth from enforcing a law that
it enacted after the fact, i.e., after the event in question is complete. In other
words, the legislature cannot criminalize or enhance the penalty for conduct
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after that conduct has occurred. Constitutional freedom from after-the-fact
legislation ensures that a person receives “fair warning” about what actions
are criminal and what the punishments will entail, before acting. Muniz, 164
A.3d 1189, 1195.
In Muniz, a Pennsylvania trial judge convicted the defendant of two
counts of indecent assault, which would have required him to register under
Megan’s Law III for ten years. See 42 Pa.C.S.A. § 9795.1 (expired). Muniz
fled the Commonwealth prior to his sentencing, and, while he was outside
Pennsylvania, the legislature replaced Megan’s Law III with SORNA. Following
Muniz’s apprehension and extradition, the Pennsylvania trial judge imposed
lifetime registration under SORNA. On appeal, this Court affirmed.
The Supreme Court of Pennsylvania reversed. It determined SORNA’s
registration requirements were punitive in nature for purposes of an ex post
facto challenge. The High Court found “1) SORNA’s registration provisions
constitute punishment notwithstanding the General Assembly’s identification
of the provisions as nonpunitive; 2) retroactive application of SORNA’s
registration provisions violates the federal Ex Post Facto Clause; and 3)
retroactive application of SORNA’s registration provisions also violates the Ex
Post Facto Clause of the Pennsylvania Constitution.” Muniz at 1193. The
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Court vacated the portion of Muniz’s sentence ordering him to comply with
SORNA’s registration requirement. See Muniz at 1223.6
In the matter at bar, the trial court refused to follow Muniz for several
reasons. First, it believed that Muniz applied only when someone commits a
crime under Megan’s Law III, absconds before sentencing, and then returns
to Pennsylvania after SORNA’s effective date. See Trial Court Opinion,
10/17/17, at 9.
Second, the court emphasized that Muniz had committed a sex offense
in Pennsylvania, while Mr. Santana committed one in New York and was
already required to register for life. As the trial court stated, “SORNA was
already in effect when [Mr. Santana] relocated from New York to
Pennsylvania, therefore providing him with constructive notice that he would
be subject to SORNA upon his relocation to Pennsylvania.” Id. Muniz, the
trial court opined, never received such notice. See id. Thus, the trial court
felt “constrained to narrowly construe Muniz and apply the Supreme Court’s
holding to only those cases where a person is subject to SORNA’s registration
requirements after having been convicted of a sex offense in Pennsylvania
that occurred prior to its enactment.” Id. at 10.
6 After the Muniz Court issued its decision, the Commonwealth sought to appeal that case to the Supreme Court of the United States. That Court denied certiorari. See Pennsylvania v. Muniz, ___ U.S. ___, 138 S.Ct. 925 (2018).
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Finally, it believed applying the Ex Post Facto Clauses as Mr. Santana
asked would encourage sex offenders to relocate to this Commonwealth,
“creating a ‘safe haven’ in Pennsylvania for sex offenders across the country.”
Id. at 11. The court did not “believe that this was the intent of the Supreme
Court when it decided Muniz.” Id.
None of these explanations distinguishes Muniz from the case before
us. The Supreme Court of Pennsylvania recently explained its Muniz decision
and viewed that precedent differently than the trial court did here. The High
Court said, “In Muniz, we considered whether the registration requirements
of SORNA constituted criminal punishment such that their retroactive
application violated the Ex Post Facto Clauses of the United States and
Pennsylvania Constitutions.” Butler, ___ A.3d at ___, 2020 WL 1466299, at
*5, Slip Opinion at 8. “Moreover . . . we considered the [Kennedy v.
Mendoza–Martinez, 372 U.S. 144 (1963),7] factors and found SORNA
7 In Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963), the Supreme Court of the United States announced a seven-factor test to determine whether a statute is so punitive as to negate a legislature’s expressed intent that the statutory scheme be civil or regulatory. Those factors are “[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.” Mendoza-Martinez, 372 U.S. at 168-69 (footnotes omitted).
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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. The Muniz Court determined “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. (quoting Muniz at 1213).
Far from suggesting that Muniz applies only to defendants who commit
their crimes under Megan’s Law III and flee the Commonwealth, the Butler
Court clarified that the result in Muniz stemmed from the text of SORNA and
the punishment that it inflicts upon registrants who are not “sexually violent
predators.”8 The Butler Court’s reading of Muniz coincides with the broader
application that Mr. Santana asserts.
Indeed, this broader application reflects the reality that ex post facto
challenges always prompt an “as applied” analysis. A law can only be ex post
facto “as applied” to a given defendant’s prior action. Otherwise, there would
be no basis for an ex post facto claim. Unlike due-process or equal-protection
challenges, where a litigant may attack a statute as either facially
unconstitutional or unconstitutional as applied, if a litigant raises an ex post
8 The Commonwealth does not argue that Mr. Santana is a “sexually violent predator” under SORNA; therefore, we do not address the issue here.
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facto claim, he necessarily challenges the law “as applied” to himself. Thus,
the trial court placed irrelevant emphasis on the first sentence of Muniz – i.e.,
that the Supreme Court “granted discretionary review to determine whether
Pennsylvania’s SORNA as applied retroactively to appellant Jose M.
Muniz is constitutional under the Ex Post Facto Clauses of the United States
and Pennsylvania Constitutions.” Trial Court Opinion, 10/17/17, at 9 (quoting
Muniz at 1192) (punctuation omitted) (emphasis by trial court). Muniz
challenged SORNA as it applied to him, because that was the only form that
his ex post facto claim could take.
We also find the Commonwealth’s and trial court’s reliance on the facts
that Mr. Santana committed his 1983 sexual offense in New York and that he
had to register there for life to be misplaced. To explain this error, we must
return to the first case to apply the federal Ex Post Facto Clause, Calder v.
Bull, 3 U.S. 386 (1798).
In Calder, Chief Justice Chase identified four categories of laws that
violate the Ex Post Facto Clause. They are:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. 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.
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Calder, 3 U.S. at 390 (emphasis added).
Relying on Calder and its progeny, the Muniz Court observed:
“two critical elements” must be met for a criminal or penal law to be deemed ex post facto: “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29, 101 S.Ct. 960 (footnote omitted). As such, “only those laws which disadvantage a defendant and fall within a Calder category are ex post facto laws and constitutionally infirm.” Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313, 1318 (1993) (emphasis in original).
Muniz, 164 A.3d at 1195-96 (emphasis in original).
As in Muniz, Mr. Santana committed his underlying, sexual offense prior
to SORNA’s 2011 enactment and effective date of December 20, 2012. While
Muniz only faced a civil, collateral consequence of ten years of registration in
Pennsylvania when he committed his 2007 crime, Mr. Santana faced
absolutely no registration requirement in Pennsylvania when he committed
his 1983 crime. Thus, when Mr. Santana acted in 1983, he had no notice that
Pennsylvania would impose the punitive, registration requirements of SORNA
or otherwise punish him for failing to comply.9
Nevertheless, 28 years later, Pennsylvania imposed SORNA’s punitive,
registration requirements upon him, and the trial court upheld this after-the-
fact punishment as constitutional. However, Muniz taught that SORNA’s ____________________________________________
9 Whether Pennsylvania has jurisdiction and/or authority to punish Santana with SORNA’s punitive, registration requirements for a crime that occurred in another state presents another interesting question under the Due Process Clause of the Fourteenth Amendment. Santana did not raise that issue here.
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registration requirements constitute after-the-fact punishment for crimes
committed before December 20, 2012. By increasing Pennsylvania’s penalty
for Mr. Santana’s 1983 crime from nothing to something, the Commonwealth
disadvantaged Mr. Santana in this Commonwealth on December 20, 2012,
when SORNA took effect. Because Mr. Santana’s crime occurred before that
date, under Muniz, Weaver, and Calder, applying SORNA to him violates the
Ex Post Facto Clauses. On the day he committed his underlying rape,
Pennsylvania had no law in effect to punish him, if he had immediately moved
here. Thus, the Commonwealth is forever barred from punishing him for that
offense, notwithstanding his New York sentence, including the imposition of
civil, regulatory consequences.
The trial court found no constitutional violation, because Mr. Santana
had to register for life in New York and, in 2015 when he moved to
Pennsylvania, he had notice of SORNA’s registration requirements. These
were red herrings. The trial court diverted its attention away from the
triggering event of an ex post facto review – when the criminal act occurred.
Instead, the trial court fixated upon a constitutionally irrelevant moment, i.e.,
the date when Mr. Santana moved to Pennsylvania. The trial court’s timeline
violates Supreme Court precedent, dating all the way back to Calder, which
directs us to analyze ex post facto claims from the date “when the crime
was committed.” Muniz, 164 A.3d at 1195 (emphasis added).
Moreover, the trial court’s application of the Ex Post Facto Clauses sets
a dangerous precedent. Under its analysis, the Commonwealth may impose
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any punishment it desires against someone with a criminal record who moves
to Pennsylvania. To illustrate, imagine if the General Assembly enacted the
following statute:
Any person moving to Pennsylvania who has one or more felony convictions in a foreign jurisdiction shall serve one year of incarceration in the county correctional facility where such person now resides, followed by a year of probation. Failure to serve the incarceration term and/or successfully compete probation is a felony of the first degree.
Based on the argument of the Commonwealth and the logic of the trial court,
this statute would constitutionally apply to someone who committed an out-
of-state felony prior to its enactment. After all, the individual would have had
notice that the law “was already in effect when he relocated . . . to
Pennsylvania, therefore providing him with constructive notice that he would
be subject to [the law] upon his relocation to Pennsylvania.” Trial Court
Opinion, 10/17/17, at 9. However, he could not have possibly known about
this additional, Pennsylvania punishment when he committed his felony in
another state.
The state and federal Ex Post Facto Clauses would surely disallow the
retroactive incarceration and probation for out-of-state, criminal acts under
that hypothetical statute. Those same clauses just as surely prohibit the
retroactive imposition of SORNA’s punitive, registration requirements for Mr.
Santana’s out-of-state crime.
Under Muniz, Pennsylvania could not apply SORNA to Mr. Santana if he
had committed his 1983 crime in this Commonwealth. Likewise, it may not
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apply SORNA to the 1983 crime he committed outside this Commonwealth.
Neither the Commonwealth nor the trial court may treat in-state and out-of-
state crimes differently under the Ex Post Facto Clauses. Those clauses do
not focus on where crimes occurred; they focus on when crimes occurred.
Mr. Santana has as much of a constitutional right to be free from ex post facto
laws that penalize him for pre-existing crimes that occurred outside this
Commonwealth as he does from ex post facto laws that penalize him for pre-
existing crimes that occurred inside this Commonwealth.
Finally, neither the trial court’s policy predilections nor its attempt to
divine the intent of the Supreme Court of Pennsylvania supersedes Mr.
Santana’s constitutional liberty in this regard. As mentioned above, the trial
court worried that, if the Ex Post Facto Clauses barred the Commonwealth
from requiring Mr. Santana to register under SORNA, then Pennsylvania would
become a “safe haven” for registered sex offenders from across the nation.
Trial Court Opinion, 10/17/17, at 11.
While the trial court’s concern may be laudable, consequentialism has
no place when interpreting constitutional texts. For it is the will of the Framers
that courts strive to ascertain when construing our foundational documents,
not our own, or even the will of supreme court justices. Whether applying the
Ex Post Facto Clauses in Mr. Santana’s case will benefit out-of-state,
registered sex offenders is irrelevant to the judicial injury. “[S]uch questions
as ‘Who wins?’ . . . ‘Will this decision help future defendants?’ . . . are
appropriately asked by those who write the laws, but not by those who apply
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them . . . In sum, once the meaning is plain, it is not the province of a court
to scan its wisdom or its policy.” Antonin Scalia, J., READING THE LAW: THE
INTERPRETATION OF LEGAL TEXTS § 61 at 352-353 (2012). Hence, the trial court’s
personal worry that enforcing the Ex Post Facto Clauses might invite out-of-
state offenders to move to Pennsylvania is unpersuasive. It is the prerogative
of the legislature and the People to amend the statutory law and/or the
constitutions to rectify any negative consequences of a ruling in favor of Mr.
Santana.10
IV. Conclusion
To recap, the trial court’s ex post facto application has no support in the
language of the two constitutions or precedent. Pennsylvania impermissibly
penalized Mr. Santana under SORNA’s registration requirement for a crime
that pre-dated SORNA by 30 years. The Ex Post Facto Clauses forbids this
state action. Mr. Santana’s registration requirement under SORNA was an
after-the-fact punishment and, therefore, unconstitutional. Accordingly, he
had no duty to comply with those requirements and his conviction for ignoring ____________________________________________
10 The political branches have already responded to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied sub nom. Pennsylvania v. Muniz, ___ U.S. ___, 138 S.Ct. 925 (2018), by amending Pennsylvania’s sex- offender-registration statutes. To address ex post facto concerns, the new law divides the provisions into distinct subchapters — Subchapter H, for offenders whose underlying conduct occurred after December 20, 2012, SORNA’s effective date, and Subchapter I, for offenders required to register under former versions of Megan’s Law. 42 Pa.C.S. §§ 9799.11(c), 9799.52. Whether the Commonwealth may constitutionally subject Mr. Santana to SORNA’s registration provisions under Subchapter I and subsequent criminal prosecution for noncompliance with that subsection is not before us, so we express no opinion on that question.
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them, under 18 Pa.C.S.A. § 4915.1(a)(3), was a manifest injustice and must
be overturned.
Judgment of sentence vacated; conviction reversed; Mr. Santana
discharged from custody.
Judges Bowes, Shogan, Lazarus and Murray join the opinion.
Judges Olson and Nichols concur in result.
Judge Stabile files a dissenting opinion in which Judge Dubow joins.
Judge Dubow notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/20/2020
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