Pennsylvania Supreme Court Clarifies Ex Post Facto Analysis Focuses on When, Not Where, Crime Occurred and Does Not Require Showing of Disadvantage to Defendant
by Douglas Ankney
The Supreme Court of Pennsylvania held that the state’s sex-offender registry law constitutes punishment when imposed retroactively to sex offenders who committed their offenses prior to the law’s enactment and whose triggering offenses occurred in another state and thus amounts to an unconstitutional ex post facto law. The Court also clarified that a showing of disadvantage to the defendant is not required, correcting Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
In 1983, David Santana was convicted of rape in New York. In 1995, both New York and Pennsylvania passed sex offender registration laws [Sex Offender Registration Act (“SORA”) in New York and “Megan’s Law” in Pennsylvania]. Because these laws were held to be non-punitive, they were applied retroactively to persons who had been convicted of triggering sexual offenses prior to their enactments. In New York, Santana was deemed a Tier 3 offender and was required to register for life.
In 2012, Pennsylvania replaced Megan’s Law with the Sex Offender Registration and Notification Act (“SORNA”), which contained more restrictive mandates than Megan’s Law. In 2015, Santana moved to Pennsylvania where he was no longer required to abide by SORA, but he was required to comply with SORNA.
Santana immediately registered with the Pennsylvania State Police (“PSP”) and checked in with the PSP six times in 11 months. However, Santana allegedly failed to inform the PSP that he had made changes to his social media account and had changed his phone number. For these “infractions,” he was charged with violating 18 Pa.C.S. § 4915.1(a)(3), a second-degree felony.
Santana pleaded guilty and on July 18, 2017, and was sentenced to two years, nine months to five years, six months in state prison. The following day, the Muniz Court invalidated the statutory scheme that Santana had just pleaded guilty to violating. The Muniz Court determined that the requirements of SORNA were punitive in nature and retroactive application of its terms to crimes committed prior to its enactment violated the Ex Post Facto Clauses of both the U.S. and Pennsylvania Constitutions.
Santana moved to withdraw his guilty plea, arguing that applying SORNA retroactively to his 1983 New York rape offense is an ex post facto violation. Since he couldn’t legally be required to comply with SORNA, he couldn’t be convicted of violating its terms.
The trial court denied Santana’s motion. According to that court, Santana’s case is distinguishable from Muniz. Muniz had committed his offense in Pennsylvania, and at the time his offense was committed, Megan’s Law applied which would’ve required, inter alia, a ten–year period of registration. But at the time of Muniz’s conviction, SORNA had been enacted, which requires a lifetime registration for Muniz—the same registration requirement imposed on him in New York via SORA. As such, the trial court reasoned that Santana didn’t incur any increase in the term of his registration obligations under SORNA. Therefore, the trial court ruled that applying SORNA’s requirements to Muniz doesn’t constitute an ex post facto violation.
The Superior Court stated under “Muniz, Pennsylvania could not apply SORNA to Mr. Santana if he had committed his 1983 crime in this Commonwealth. Likewise, it may not apply SORNA to the 1983 crime he committed outside this Commonwealth.” Commonwealth v. Santana, 241 A.3d 660 (Pa. Super. 2020) (emphasis original). The Ex Post Facto Clauses of both the federal and state constitutions “do not focus on where crimes occurred; they focus on when crimes occurred.” Id. (emphasis original). The Superior Court determined that application of SORNA to Santana was unconstitutional, so he wasn’t required to register under it. He couldn’t be convicted for failing to do so, and thus, the court vacated his judgment of sentence.
The Pennsylvania Supreme Court granted allocatur to the Commonwealth to address whether the Superior Court had erred.
The Commonwealth focused its arguments on the fact that Santana wasn’t subjected to any greater punishment under Pennsylvania’s SORNA than he was already subjected to under New York’s SORA—that is, lifetime registration obligation under both laws. The Court flatly rejected the Commonwealth’s position as failing to understand the most important factor in any ex post facto analysis—when the crime under consideration occurred.
The Court observed in “Calder v. Bull, the Supreme Court of the United States identified four types of laws that traditionally constitute ex post facto violations[:] 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 greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receive less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” 3 U.S. 386 (1798).
Referencing Calder and its progeny, the Muniz Court summarized the ex post facto framework as: “Two critical elements must be met for a criminal or penal law to be deemed ex post facto: [(1)] it must be retroactive, that is, it must apply to events occurring before its enactment, and [(2)] it must disadvantage the offender affected by it. As such, only those laws which disadvantage a defendant and fall within a Calder category are ex post facto laws and constitutionally infirm.”
However, the Court acknowledged that the Muniz Court failed to take into account changes in the substantive law made by the U.S. Supreme Court after the cases relied upon by the Muniz Court in articulating its inaccurate ex post facto framework. In California Department of Corrections v. Morales, 514 U.S. 499 (1995), the U.S. Supreme Court explained that proof of disadvantage to the defendant is no longer a constitutional requirement in an ex post facto inquiry. Instead, the focus is on whether the change in the law altered the definition of criminal conduct or increased the penalty imposed. Id.
The Court stated that sex offender registration laws applied retroactively implicate the third Calder category and explained that the relevant point in time is when the crime is committed. The Commonwealth’s attempt to shift the relevant time to some other event or where the crime occurred has no support in the case law, the Court declared. Santana committed his crime in 1983, SORNA became effective in 2012, and was applied retroactively to the triggering crime in 2015. SORNA is clearly being applied to Santana retroactively. As the Muniz Court ruled, SORNA is punitive in nature. Thus, the Court held that “SORNA’s application to Santana is an ex post facto law.”
Accordingly, the Court affirmed the order of the Superior Court. See: Commonwealth v. Santana, 266 A.3d 528 (Pa. 2021).
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Related legal case
Commonwealth v. Santana
|Cite||266 A.3d 528 (Pa. 2021)|
|Level||State Supreme Court|