SORNA; Ex Post Facto; Offender Subject to Registration in other Jurisdiction

Commonwealth v. Santana, 241 A.3d 660 (Pa. Super. 2020), allocatur granted Apr. 12, 2021, appeal docket 23 MAP 2021

In 1983, Santana was convicted in New York of Rape in the First Degree, a felony under New York law. Santana became subject to New York’s Sex Offender Registration Act (“SORA”) which was enacted on January 21, 1996 because he was convicted of a registrable offense and was on parole or probation supervision as of the date of the Act’s enactment. New York considers SORA a civil, regulatory consequence of conviction that does not violate the Ex Post Facto Clause (U.S. Const. art. I, § 10) and, therefore, does not prohibit New York from applying the law retroactively. Santana moved to Pennsylvania in November 2015, and, as required under SORNA, registered with the Pennsylvania State Police because his New York conviction for rape qualifies as a Tier III sexual offense under SORNA thus requiring lifetime registration as a sexual offender in Pennsylvania. During a routine investigation, the police uncovered that Santana failed to report in a timely manner the termination of a phone number, the addition of another number, commencement of employment, and the use of two Internet identifiers. Santana was then charged with various registration crimes and eventually pled guilty to failure to comply with registration requirements under Section 4915.1(a)(3).

Following Santana’s guilty plea, the Pennsylvania Supreme Court decided Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), in which it held that SORNA’s registration requirements violated the federal and state constitutions and barred retroactive application of SORNA’s registration, i.e., application to someone whose underlying sexual offense occurred prior to SORNA’s effective date. Following Muniz, Santana moved to withdraw his guilty plea for violating Section 4915.1(a)(3) on the basis that his SORNA registration requirement was an unconstitutional ex post facto punishment for his 1983 crime, therefore, he could not have failed to register, verify, and provide accurate information as required under SORNA.

The Superior Court, en banc, concluded that, based on Muniz, application of SORNA’s registration requirement to Santana was an ex post facto violation:

Pennsylvania impermissibly penalized Mr. Santana under SORNA’s registration requirement for a crime that predated SORNA by 30 years. The Ex Post Facto Clauses forbids [sic] 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 them, under 18 Pa.C.S.A. § 4915.1(a)(3), was a manifest injustice and must be overturned.

Slip op. at 19-20.

In dissent, Judge Stabile joined by Judge Dubow disagreed with the Majority that “the entirety of SORNA’s registration scheme for non-SVP offenders, as in Muniz, was the controlling and relevant issue in this case,” Dissent slip op. at 4-5. The dissent disagreed with the Majority’s reliance on Muniz, explaining that:

Muniz was not a case that addressed whether Appellant was properly convicted under 4915.1(a)(3) for failure to comply with some of SORNA’s registration provisions. The Court’s holding was limited to finding that SORNA’s registration provisions, as a whole to be punitive, could not be applied retroactively to Muniz without violating the Ex Post Facto Clauses because his conviction predated SORNA’s enactment. SORNA however has never been held to be unconstitutional.

Dissent slip op. at 5.  The dissent further emphasized the “critical fact that distinguishes Muniz from the instant appeal” – unlike Santana, Muniz was not subject to any prior registration requirements imposed under Pennsylvania or another state’s law, therefore:

For ex post facto purposes, there were no applicable pre-existing registration requirements in Muniz against which to compare SORNA’s registration scheme to determine if Muniz was further disadvantaged by SORNA. Here, there is a prior and lawful registration scheme, SORA, against which SORNA’s registration requirements may be measured to determine whether Appellant has been further disadvantaged in Pennsylvania in violation of the Ex Post Facto Clauses. In effect, SORA functions as a benchmark against which to measure the retroactive application of SORNA for ex post facto purposes.

Dissent slip op. at 7.  In the dissent’s view, the issue in Santana’s case was “whether the specific registration failures committed by Appellant could serve as a basis for sustaining his conviction for violating Section 4915.1(a)(3).”  Dissent slip op. at 5-6. Thus, the dissent continued:

Our inquiry should be whether SORNA’s requirement to update and verify an offender’s phone numbers, Internet identifiers, and place of employment, could be applied retroactively to Appellant as a result of his 1983 rape conviction in New York without violating the Ex Post Facto Clauses. The answer to this question, as will be discussed infra, depends upon whether SORNA changes or inflicts a greater punishment than SORA to the disadvantage of Appellant.

Id. Following a review of New York’s registration law, the dissent found that there was no ex post facto violation because SORNA’s registration requirements did not further disadvantage Santana from the registration requirements to which he was already subject to under New York’s SORA law. “Consequently,” the dissent concluded, “offenders like Appellant cannot relocate to Pennsylvania and escape the registration requirements imposed under New York’s law.” Dissent slip op. at 15.

The Pennsylvania Supreme Court granted allocatur as to the following issues:

(1) Did the Superior Court err in determining that [Respondent] was not required to register under SORNA even though he was already required to register for life in New York and relocated to Pennsylvania after the effective date of SORNA?

(2) Did the Superior Court err in finding an ex post facto violation even though [Respondent] was not disadvantaged any more than his lifetime registration he was already subject to under New York law?

For more information, contact Kevin McKeon or Dennis Whitaker.

For more information, contact Kevin McKeon or Dennis Whitaker.