J-S24041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GARY THOMAS SNYDER, : : Appellant : No. 3299 EDA 2014
Appeal from the Order entered on October 29, 2014 in the Court of Common Pleas of Chester County, Criminal Division, No. CP-15-CR-0004049-2002
BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 11, 2015
Gary Thomas Snyder (“Snyder”) appeals from the Order denying his
Petition (hereinafter “the Petition for Relief”) seeking exemption from being
required to register with the Pennsylvania State Police (“PSP”) as a sex
offender for his lifetime, pursuant to the Sex Offender Registration and
Notification Act (“SORNA”),1 and challenging SORNA’s constitutionality
concerning its retroactive application. We affirm.
Between July 1994 and August 1995, Snyder sexually assaulted a
seven-year-old girl, A.G., on several occasions. Snyder, inter alia, (1)
fondled A.G.’s chest; (2) kissed her on the mouth after removing both of
their clothes; (3) inserted his finger into her vagina; and (4) forced her to
touch his penis with her hand. A.G. stated that after each assault, Snyder
1 See 42 Pa.C.S.A. § 9799, et seq. J-S24041-15
threatened that he would harm her family if she told anyone about what had
happened.
A.G. reported the sexual assaults to the police several years later,
when she was fifteen-years-old. In September 2002, the Commonwealth
charged Snyder with several offenses, including four counts each of indecent
assault of a minor less than thirteen years of age and corruption of minors.2
On February 13, 2003, Snyder pled guilty to two counts each of indecent
assault of a minor less than thirteen years of age and corruption of minors.
Snyder’s guilty plea was the result of a negotiated agreement, wherein the
Commonwealth agreed that it would withdraw the remaining charges and
recommend a sentence of eight years of probation, the first nine months of
which would be under electronic home monitoring. Notably, at the time of
Snyder’s plea, the offense of indecent assault of a minor less than thirteen
years of age required a ten-year period of sex offender registration under
Megan’s Law II.3
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth what
transpired thereafter as follows:
[Snyder] was sentenced on June 9, 2003[, pursuant to the negotiated plea agreement,] … [to] an aggregate sentence of 8 years [of] probation. He was also ordered to undergo 9 months of electronic home confinement, undergo [a] sex offender evaluation, a psychological evaluation, to complete a Sex
2 See 18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1). 3 See 42 Pa.C.S.A. § 9795.1(a)(1). This statutory provision was replaced by the provisions of SORNA, which became effective in December 2012. See 42 Pa.C.S.A. § 9799.41.
-2- J-S24041-15
Offender Program, and have no unsupervised contact with minors. As sentenced, his probation extended through June 9, 2011. [Snyder] did not file a direct appeal from [his] judgment of sentence.
On June 25, 2008, the Chester County Probation Department sought a bench warrant for [Snyder’s] arrest[,] [based] upon allegations of [his] probation violation, alleging he had failed to complete the Sex Offender Program and had unsupervised contact with minors on multiple occasions. [Snyder] was taken into custody and imprisoned on September 9, 2008, and following [a] hearing …, [Snyder] was found in violation of his probation. He was sentenced to 3 to 23 months [of] incarceration, subject to conditions, given credit for time served, and made eligible for parole after serving his minimum sentence. … He was paroled on December 3, 2008, and completed probation supervision on February 12, 2011. He was not on probation when he filed the instant [P]etition [for Relief] seeking relief from the lifetime registration requirement. [Snyder] began registering as a sex offender on June 12, 2003. Under Megan’s Law II[,] he was required to register through mid-June 2013.
On December 3, 2012, the Commander of the Megan’s Law Section of the [PSP] notified [Snyder] in writing that [pursuant to SORNA,] he was required to register as a sexual offender with the [PSP] for [his l]ifetime as a Tier III sexual offender,[4] and to verify his registration information in person every 3 months at an approved registration site. He was further advised that he now appeared on the Megan’s Law Registry as a sexual offender. … SORNA increased [Snyder’s] reporting requirements by a multiple of four. Under Megan’s Law III, he was required to appear only once each year[,] at a location designated by the [PSP,] to verify his residence and be photographed. Under SORNA, Snyder must register a wider array of information with the PSP, including aliases, nicknames, internet identifiers under which he communicates or posts, date of birth, social security
4 Under SORNA, a conviction for indecent assault of a minor less than thirteen years of age is designated as a “Tier III sexual offense,” subjecting an individual convicted of this offense to a lifetime registration requirement. See 42 Pa.C.S.A. § 9799.14(d)(8); id. § 9799.15(a)(3). Pursuant to 42 Pa.C.S.A. § 9799.13(3)(i), Snyder was required to register for his lifetime because he had not yet fulfilled his ten-year period of registration under Megan’s Law when SORNA became effective in December 2012.
-3- J-S24041-15
number, telephone number, passport, driver’s license, professional licenses, and license plate or motor vehicle registration numbers.
On September 23, 2013, [Snyder] filed the [Petition for Relief, wherein he] essentially contends that the effects upon him of SORNA are punitive in nature, and not mere collateral consequences of his conviction, thereby rendering its ex post facto application to him unconstitutional. He further contends that he is legally entitled to the benefit of the bargain made in his plea agreement with the Commonwealth, which included the limitation that he register as a sexual offender for not more than ten years.[5]
Trial Court Opinion, 10/29/14, at 2-5 (footnotes added, citations omitted).
By an Order entered on October 29, 2014, the trial court denied the
Petition for Relief.6 Snyder timely filed a Notice of Appeal. The trial court
5 Snyder has abandoned on appeal his claim that he is entitled to specific enforcement of the ten-year sex offender registration period because it was part of his negotiated plea agreement. Indeed, this Court previously rejected such a claim in Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014). In Partee, the defendant had (1) entered a negotiated nolo contendere plea to a sexual offense that required a ten-year period of registration under Megan’s Law II; (2) subsequently violated his probation; and (3) thereafter received notification following the enactment of SORNA that he was now required to register with the PSP as a sex offender for life. Id. at 246. This Court held that the defendant was not entitled to specific performance of the negotiated plea agreement because, “having failed to abide by the terms of the plea bargain, that agreement [was] no longer in effect[.]” Id. at 250. Like the situation in Partee, Snyder’s violation of his probation abrogated the plea agreement. 6 The trial court properly determined that the Petition for Relief does not fall under the provisions of the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. See Trial Court Opinion, 10/29/14, at 7; see also Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa. Super. 2014) (collecting cases and holding that “the statutory and rule-based requirements governing a PCRA petition do not apply to a challenge to the retroactive application of [SORNA], but [] this Court has jurisdiction to review orders confirming or rejecting a retroactive registration requirement.”).
-4- J-S24041-15
did not order Snyder to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.
Snyder presents the following issues for our review:
Whether the Court of Common Pleas committed error:
I. In failing to grant [the P]etition [for Relief] because the Court failed to consider that [Snyder] should only be required to register for ten (10) years[,] as his offenses were part of a single criminal episode or course of conduct[?]
II. In failing to grant [the P]etition [for Relief] because the Court failed to consider that changing, or expanding and extending, [Snyder’s] registration and reporting requirements is a form of punishment and thus, [retroactive] application of SORNA violates the Ex Post Facto clauses of the United States and Pennsylvania Constitutions[?]
Brief for Appellant at 4.
Because Snyder’s issues implicate a pure question of law, our standard
of review is de novo and our scope of review is plenary. Commonwealth v.
Raban, 85 A.3d 467, 468 (Pa. 2014); see also In the Interest of J.B.,
107 A.3d 1, 14 (Pa. 2014) (addressing a challenge to the constitutionality of
the retroactive application of SORNA and observing that “a party challenging
a statute must meet the high burden of demonstrating that the statute
clearly, palpably, and plainly violates the Constitution.” (citation and
quotation marks omitted)).
Snyder first argues that the trial court erred by denying the Petition for
Relief because his offenses were part of a single criminal episode or course
of conduct, and, therefore, he should only be required to register as a sex
-5- J-S24041-15
offender for ten years, as opposed to his lifetime. Brief for Appellant at 8, 9.
Specifically, Snyder contends as follows:
When SORNA became the effective law, part of the reason that [Snyder] was reclassified as a lifetime registrant (Tier III) … was due to the language in 42 Pa.C.S. § 9799.14(d)(16)[,] which states that an individual is subject to lifetime registration if he or she has “[t]wo or more convictions of offenses listed as Tier I or Tier II sexual offenses.” 42 Pa.C.S. § 9799.14(d)(16)[]. [Snyder is] of the opinion that this provision requiring lifetime registration only applies to repeat offenders and recidivists who are convicted of separate acts of misconduct that lead to separate and multiple convictions. This provision should not apply to individuals who engage in misconduct that results in one conviction with multiple criminal charges/offenses.
Brief for Appellant at 9.
This claim is waived because Snyder failed to preserve it for our
review, having never raised it in the trial court. See Pa.R.A.P. 302(a)
(stating that an issue cannot be raised for the first time on appeal); see
also Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013)
(stating that “[b]y requiring that an issue be considered waived if raised for
the first time on appeal, our [appellate C]ourts ensure that the trial court
that initially hears a dispute has had an opportunity to consider the issue.
This jurisprudential mandate is also grounded upon the principle that a trial
court must be given the opportunity to correct its errors as early as
possible.” (citation and ellipses omitted));7 see also Commonwealth v.
Colavita, 993 A.2d 874, 891 (Pa. 2010) (stating that “[w]here the parties
7 The trial court did not address Snyder’s instant claim in its Pa.R.A.P. 1925(a) Opinion.
-6- J-S24041-15
fail to preserve an issue for appeal, the Superior Court may not address that
issue sua sponte.” (citation omitted)).8
Next, Snyder argues that SORNA is punitive, and that the retroactive
application of SORNA to him violates the Ex Post Facto Clauses of Article 1,
§ 10 of the United States Constitution and Article 1, § 17 of the Pennsylvania
Constitution. See Brief for Appellant at 21-38.
A panel of this Court recently addressed this precise issue in
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014). Snyder
acknowledges Perez in a footnote, but argues that its holding does not
apply to his particular circumstances. Brief for Appellant at 21 n.12.
Contrary to Snyder’s assertion, we determine that Perez is directly
applicable and requires rejection of his constitutional challenge.
In Perez, the defendant committed the offense of indecent assault
prior to SORNA’s enactment, and entered a negotiated nolo contendere plea
to this charge. Perez, 97 A.3d at 749. At the time of his offense, the
version of Megan’s Law then in effect required him to register as a sex
offender for 10 years. Id. Under SORNA, which went into effect shortly
before the defendant’s plea, he was required to register for 25 years. Id.
Prior to sentencing, the defendant filed a motion to declare SORNA
unconstitutional on the ground that the Ex Post Facto Clauses in the federal
and state constitutions prohibited retroactive application of the 25-year
8 Nevertheless, we observe that Snyder’s crimes did not constitute a single criminal episode, as he had sexually assaulted A.G. on multiple separate occasions.
-7- J-S24041-15
registration requirement to him. Id. The trial court denied the motion and
ordered the defendant to register for the next 25 years. Id.
On appeal, this Court observed that the defendant’s challenge to the
constitutionality of the retroactive application of SORNA must be evaluated
under a two-step test, established by the United States Supreme Court in
Smith v. Doe, 538 U.S. 84 (2003). Perez, 97 A.3d at 751 (citing Smith,
538 U.S. at 92 (stating that the two-step test for determining whether a civil
remedy is punitive in nature requires an inquiry into (1) whether the
legislature intended the statutory scheme to be punitive; and (2) only if the
first step is met, “whether the statutory scheme is so punitive either in
purpose or effect as to negate [the State’s] intention to deem it civil.”)); see
also Perez, 97 A.3d at 750 n.4 (stating that “[a]lthough the [United States]
Supreme Court has addressed the federal version of SORNA on prior
occasions, it has never had the occasion to address its constitutionality vis-
à-vis the Ex Post Facto Clause[,]” but acknowledging that most of the Courts
of Appeals have concluded that SORNA does not violate the federal Ex Post
Facto Clause).
Concerning the first step under Smith, the Perez Court declared that
the General Assembly did not intend SORNA to be punitive in nature.
Perez, 97 A.3d at 751 (citing 42 Pa.C.S.A. § 9799.11(b)(2), which sets forth
legislative findings and a declaration of policy instructing that SORNA shall
not be construed as punitive). Turning to the second step, the Court
addressed whether SORNA constitutes “punishment” under the multi-factor
-8- J-S24041-15
test articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
Perez, 97 A.3d at 751 (stating that “[t]he Supreme Court has held that only
the ‘clearest proof’ will suffice to override the legislature’s preferred
classification of the statute.” (quoting Smith, 538 U.S. at 92)). The panel
held, after conducting an exhaustive analysis of the seven Kennedy factors,
that SORNA does not constitute punishment, and, therefore, was valid under
the Ex Post Facto Clause of the United States Constitution. Id. at 752-59.
The panel explained that all but one of the Kennedy factors weighed against
finding SORNA punitive, stating, in sum, that (1) registration requirements
historically are not regarded as punishment, unlike probation/parole,
because individuals subject to SORNA are free to live and work where they
wish, without supervision; (2) SORNA does not come into play upon a
finding of scienter; (3) although SORNA has some aspects of retribution for
past conduct, and deterrence of future criminal conduct, the statutory
scheme primarily is regulatory, and the General Assembly is permitted to
have some deterrent and retributive effects in its legislation, particularly
where its goal is to prevent recidivism and protect the public; (4) SORNA is
rationally related to a non-punitive purpose, namely the Commonwealth’s
interest in preventing crimes of a sexual nature; and (5) SORNA is not
excessive in relation to its regulatory purpose of protecting the public from
convicted sexual offenders, who pose a high risk of recidivism. Id. at 752-
58. The Perez Court found that only one factor weighed in favor of finding
SORNA punitive, i.e., SORNA imposed an affirmative restraint on the
-9- J-S24041-15
defendant by requiring him to appear in-person at a PSP facility a minimum
of 50 times over the next 25 years. Id. at 752-54. However, the panel
concluded that this single factor did not render SORNA punitive because,
inter alia, “the restraint is relatively minor when balanced against the
remaining factors.” Id. at 758.
The Perez Court then proceeded to address the defendant’s ex post
facto claim under the Pennsylvania Constitution, and determined that it did
not entitle him to relief:
Article I, Section 17 of the Pennsylvania Constitution states that “[n]o ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.” Pa. Const. Art. I, § 17. This Court has recently held that “the standards applied to determine an ex post facto violation under the Pennsylvania Constitution and the United States Constitution are comparable.” Commonwealth v. Rose, 2013 PA Super 305, 81 A.3d 123, 127 (Pa. Super. 2013) (en banc). Our Supreme Court has previously declined to hold that the Ex Post Facto Clause of the Pennsylvania Constitution imposes greater protections than Article I, Section 10 of the Federal Constitution. See Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616, 622 (Pa. 1999) (stating that Gaffney “failed to present any compelling reason for our departure from the standards appropriate for determining whether an ex post facto violation pursuant to the federal constitution has occurred[,] and we find no independent reasons for doing so[]”).
It is axiomatic that when presenting a claim for higher protections under the Pennsylvania Constitution, the [a]ppellant must discuss the following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case- law;
3) related case-law from other states;
- 10 - J-S24041-15
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 895 (Pa. 1991). The Edmunds analysis is mandatory and a failure to provide it precludes the consideration of a state constitutional claim independent of its federal counterpart. See, e.g., Commonwealth v. Baker, 621 Pa. 401, 78 A.3d 1044, 1048 (Pa. 2013) (concluding that Baker’s failure to provide an Edmunds analysis precluded considering whether Article I, Section 13 of the Pennsylvania Constitution provided higher protections that the Eighth Amendment of the Federal Constitution on cruel and unusual punishments).
Here, [a]ppellant’s brief does not include the required Edmunds analysis to consider whether under this specific statute, the Pennsylvania Constitution would provide higher ex post facto protections than Article I, Section 10 of the Federal Constitution. … Because we have already resolved [the appellant’s] federal ex post facto claim using [the] framework promulgated by the United States Supreme Court, and [a]ppellant does not argue that the Pennsylvania Constitution provides higher protection, his claim under the Pennsylvania Constitution likewise fails. See Baker, supra; Edmunds, supra.
Perez, 97 A.3d at 759-60.
In the instant case, although Snyder (1) argues that the retroactive
application of SORNA’s provisions violates the Pennsylvania Constitution’s Ex
Post Facto Clause; and (2) exhaustively discusses all seven Kennedy
factors, related case law from other states, and policy considerations, like
the situation in Perez, he does not argue that the Pennsylvania
Constitution’s Ex Post Facto Clause provides greater protection than its
federal counterpart. See, e.g., Brief for Appellant at 21 (wherein Snyder
sets forth the respective language of both Ex Post Facto Clauses, but does
- 11 - J-S24041-15
not assert that Pennsylvania’s clause provides greater protection); see also
Perez, 97 A.3d at 760 (rejecting the appellant’s challenge to the
constitutionality of SORNA under the Pennsylvania Constitution where he did
not argue that the state constitution provided greater protection than its
federal counterpart). Accordingly, we are compelled to apply the Perez
decision in rejecting Snyder’s constitutional challenge.9
In conclusion, we understand Snyder’s displeasure at having to
register for his lifetime as a sex offender, even though approximately nine
years had elapsed between the date of sentencing and the date he received
notice of his requirement to register for his lifetime under SORNA.
Nevertheless, the trial court’s Order denying his constitutional challenge is
9 In its Pa.R.A.P. 1925(a) Opinion, the trial court in the instant case points out that at least two other states have ruled contrary to Perez, holding that, under their respective state constitutions, the retroactive application of longer sexual offender registration periods under SORNA was unconstitutional. See Trial Court Opinion, 10/29/14, at 11-12 (citing Gonzalez v. State of Indiana, 980 N.E.2d 312 (Ind. 2013), and State v. Williams, 952 N.E.2d 1108 (Ohio 2011), as well as Judge Donohue’s concurring opinion in Perez, Perez, 97 A.3d at 760-67). The trial court also suggests that further appellate consideration of the constitutional issues presented in the instant case is appropriate. See Trial Court Opinion, 10/29/14, at 12. However, it is axiomatic that a three-judge panel is bound by previous panel opinions unless overruled by this Court sitting en banc, our Supreme Court, or the United States Supreme Court. Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006); see also Commonwealth v. Perez, 2014 Pa. Super. LEXIS 2910 (Pa. Super. 2014) (denying Perez’s petition for reargument). Accordingly, under the particular circumstances of this case, we are bound by the majority’s holding in Perez, as Perez is directly on point.
- 12 - J-S24041-15
correct under the current law.10
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/11/2015
10 To the extent that Snyder argues SORNA violates his federal and state due process rights because it (1) did not afford him proper notice concerning his new registration requirement, and an opportunity to challenge the requirement; and (2) utilizes an irrebuttable presumption about sexual offenders’ high risk of recidivism and impinges upon offenders’ right to reputation, see Brief for Appellant at 15-20, 35-36, such claims are waived because they were not raised in, or fairly suggested by, Snyder’s Statement of Questions Presented, nor were they preserved in the trial court. See Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”); Pa.R.A.P. 302(a). However, even if these claims were not waived, we would determine that they are without merit. First, the letter that the PSP sent Snyder in December 2012 adequately put him on notice that he was required to register for his lifetime under SORNA, and Snyder has, in fact, been permitted to challenge SORNA’s registration requirement in the trial court and this Court. Second, though Snyder cites to our Supreme Court’s decision in In the Interest of J.B., supra, in support of his claim that SORNA deprives him of due process by applying an irrebuttable presumption concerning recidivism, and impinges upon his right to reputation, he fails to acknowledge that the Supreme Court’s holding in J.B. was limited to only juveniles. Id. at 2, 19-20 (holding that “SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption[,]” where the presumption is not universally true and a reasonable alternative means exists for determining which juvenile offenders are likely to reoffend.) (emphasis assed)). Moreover, our research discloses no cases extending this holding to adult offenders under SORNA.
- 13 -