JUSTICE WECHT

Elmer D. Christine, Jr., David Nicholas Marra, Monroe County District Attorney's Office, Stroudsburg, PA, for Appellant.

Eric Carl Closs, James Paul Gregor, Monroe County Public Defender's Office, Stroudsburg, PA, for Appellee.

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

OPINION

JUSTICE WECHT

In this case, we must decide whether our decision in Commonwealth v. Muniz —wherein we held that the Sexual Offender Registration and Notification Act ("SORNA") constituted a punitive regulatory scheme that, when imposed retroactively to sex offenders who committed their offenses prior to SORNA's enactment, amounted to an unconstitutional ex post-facto law —applies with equal force to offenders whose triggering offenses occurred in another state. We conclude that it does. Therefore, we affirm the order of the Superior Court.

In 1983, David Santana was convicted of rape in New York. At the time, neither New York nor Pennsylvania had enacted a sex offender registration scheme. However, as time passed—and prompted by federal law —states began enacting statutory schemes aimed at monitoring sexual offenders by requiring them to comply with strict registration and notification requirements. In 1995, New York passed the "Sex Offender Registration Act" ("SORA"), which became effective in January 1996. Pennsylvania followed suit, enacting the first version of Megan's Law in 1995.

Like Megan's Law and SORNA, New York's SORA applied retroactively, enveloping, among others, those offenders who had been convicted of certain triggering offenses (including rape) and who were on probation or parole at the time of its enactment. Santana met these criteria. Because Santana was designated a level three offender, he was required to comply with SORA's terms and conditions for the remainder of his life.

Santana appears to have complied with SORA during his residency in New York. In 2015—the year Santana moved from New York to Pennsylvania—SORNA, which replaced Megan's Law, had been in effect for approximately three years. Upon establishing a residence here, Santana no longer was required to register and report in New York. However, the relocation triggered automatically a duty to register and report in Pennsylvania under SORNA's mandates, which are stricter than those imposed by SORA. Among a litany of new substantive provisions, SORNA created a three-tiered system to categorize offenders. SORNA designated rape as a Tier III offense. Tier III offenses subjected the offender to lifetime registration and reporting. While some of the particulars of Santana's obligations may have changed when his obligations transferred from SORA to SORNA (such as how promptly he was required to report changes in his identifying information) the duration did not. Both statutory schemes required lifetime compliance.

Upon establishing a residence here, Santana immediately registered himself with the Pennsylvania State Police ("PSP") and began complying with SORNA. During his first eleven months of living in Pennsylvania, Santana checked in with the PSP six times. However, he was not entirely forthcoming with the information that he provided to the PSP at the check-ins. After an investigation, the PSP learned that Santana failed to inform them that he had: (1) created a telephone number; (2) terminated a telephone number; (3) started a new job; and (4) registered a telephone number and an email address on a Facebook account. For these infractions, Santana was arrested and charged with failure to provide accurate information under 18 Pa.C.S. § 4915.1(a)(3), a second-degree felony.

Santana pleaded guilty to the offense. On July 18, 2017, the trial court sentenced Santana to two years and nine months to five years and six months in a state penitentiary. Then, on the very next day, this Court issued our decision in Muniz , invalidating the statutory scheme that Santana had just pleaded guilty to violating. Santana immediately filed a motion to withdraw his guilty plea and to have the charges filed against him dismissed. Following Muniz ’ lead, Santana argued that applying SORNA retroactively to his 1983 New York offense constituted an ex post facto violation no different from the one found in Muniz . The trial court denied the motion.

In an opinion issued contemporaneously with its order denying Santana's motion to withdraw his guilty plea, the trial court explained that its decision was predicated upon its determination that Muniz could be differentiated from the instant circumstances, and, thus, did not apply. While it was indisputable that SORNA was punitive and could not apply retroactively without violating our Constitutions, the trial court found that SORNA's application to Santana was not, in fact, a retroactive application. Muniz , the court opined, was limited to its narrow facts. That is, in the trial court's view, Muniz mandated relief only when the offender: (1) was a Pennsylvania resident and committed one of SORNA's triggering offenses within the borders of Pennsylvania; (2) was sentenced to serve a sentence in a Pennsylvania prison; (3) was obliged to comply with a version of Megan's Law upon release from that Pennsylvania prison for a period of ten years; (4) was released from prison and then absconded from Pennsylvania; and (5) was apprehended after SORNA took effect, which, when retroactively imposed, increased the offender's period of registration to the remainder of the offender's lifetime.

The trial court then outlined what it perceived to be the key differences between Muniz and the circumstances of this case. Santana committed his crime and was convicted in New York, not Pennsylvania. He became obligated to comply with New York's SORA requirements only after he completed his New York sentence. Unlike Muniz, he was never incarcerated in Pennsylvania. The court emphasized that, under both SORA and SORNA, Santana was required to register and report for the remainder of his lifetime. Thus, by transferring here, Santana incurred no increase in the duration of his obligations. Because of these deviations from the core factual components of Muniz , the trial court believed Muniz to be wholly distinguishable. The court concluded that "[ Muniz and its progeny] did not address the situation where a registered sex offender, already established under the laws of another state, relocates to Pennsylvania after SORNA's enactment therefore invoking a clause in SORNA pertaining to registered sex offenders from other jurisdictions." Thus, the trial court held that, even though this Court already had deemed the statutory scheme unconstitutional when applied retroactively to sexual offenders whose crimes were committed in Pennsylvania, its application to Santana was not an ex post facto violation because Santana committed an offense in New York, moved here, had notice that SORNA already had taken effect, and already was required to register as a sexual offender.

Santana appealed. On October 20, 2020, an en banc panel of the Superior Court addressed the question of whether "the Commonwealth could constitutionally charge and convict [Santana] with failing to register in Pennsylvania, under SORNA, for a pre-SORNA crime that occurred in New York." Finding that the trial court focused upon "locality and not chronology," the en banc panel reversed.

After setting forth the applicable legal and appellate standards associated with reviewing the denial of a post-sentence motion to withdraw a guilty plea, the court identified the overarching issue in the case: whether, as a matter of law, Santana could be convicted of failing to register as a sexual offender. To convict Santana of that offense, the Commonwealth had to prove that Santana was subject to registration under SORNA. If Muniz governs Santana's unique circumstances, then he never was required to register, and he could not be convicted of the crime. Thus, the task before the en banc panel was ascertaining the reach of our Muniz ruling.

In Muniz , this Court held that: "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 violate the federal Ex Post Facto Clause; and 3) retroactive application of SORNA's registration provision also violates the Ex Post Facto Clause of the Pennsylvania Constitution." Despite the facial breadth of these conclusions, the trial court found that Muniz applies only in the limited situation in which a person commits a Pennsylvania crime during Megan's Law III's tenure, absconds, and then returns after SORNA has taken effect and increased the offender's registration period. The Superior Court rejected this narrow interpretation of Muniz . The panel noted that, in Commonwealth v. Butler , this Court described the issue in Muniz as whether "the registration requirements of SORNA constituted criminal punishment" for purposes of an ex post facto analysis. In no way did we condition the statement of that inquiry upon the unique facts in the case. Nor did we do so in our analysis in Muniz itself. The Superior Court determined, "[f]ar 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."

Having concluded that Muniz was based upon the statutory elements and not the facts of that case, the en banc panel then shifted its attention to the question of whether Muniz nonetheless could be distinguished because Santana's 1983 New York rape conviction already required him to register for life. In other words, the court confronted the trial court's conclusion—and the Commonwealth's argument—that, for purposes of an ex post facto analysis, Santana did not face an increase in punishment when he moved here. The trial court and the Commonwealth emphasized that, because Santana was subject to a lifetime compliance requirement before and after he moved here, there could be no ex post facto violation.

The Superior Court rejected this attempt at distinguishing Muniz as "misplaced." Drawing from the Supreme Court of the United States’ opinion in Calder v. Bull , the en banc panel explained that the relevant date for purposes of an ex post facto analysis is the date that the crime was committed, which, in this case, was in 1983. When Santana committed his offense, he faced no registration requirements in New York; nor would he have faced them in Pennsylvania for that matter. He had no notice, nor could he, that, twenty-eight years later, Pennsylvania would subject him to a punitive statutory regimen. He went from no punishment in 1983 to a lifetime of punishment. That statutorily-mandated escalation amounts to an unconstitutional ex post facto law.

The Superior Court found no salience in the fact that Santana committed the rape in New York. "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." The Ex Post Facto Clauses of both of our Constitutions "do not focus on where crimes occurred; they focus on when crimes occurred." The panel noted that a person "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."

Because Muniz could not be distinguished, and, because application of SORNA to him was thus unconstitutional, the en banc panel concluded that Santana was not required to register as a sexual offender. He could not be convicted for failing to do that which he was not required by law to do. Binding him to a contrary plea bargain would be a manifest injustice. Accordingly, the Superior Court vacated Santana's judgment of sentence.

Judge Stabile dissented. In his view, the majority veered off course by contemplating whether "the entirety of SORNA's registration provisions ... may be retroactively applicable" to Santana. Judge Stabile believed that the court should have focused upon the more narrow question of whether Santana's "registration failures supporting his conviction disadvantage him more than the registration obligations he already is subject to under New York law." Assessing that question only, Judge Stabile would have found that SORNA does not represent an increase in punishment over that which Santana already faced when he moved here; ergo, no ex post facto violation.

Judge Stabile charged the majority (and Santana) with overlooking a critical fact. In Muniz , the defendant failed to appear for his sentencing. Had he done so, he would have been notified that he was required to comply with the then-applicable version of Megan's Law for a period of ten years. Because Muniz absconded, he was never subjected formally to that particular scheme. By the time he was apprehended and formally sentenced, SORNA had taken effect and Muniz was required to register for life. Unlike the circumstances of the case sub judice , the application of SORNA was the first statute with which Muniz had to comply. There was nothing to compare for purposes of ascertaining whether Muniz was disadvantaged by SORNA. To the contrary, in this case, a comparison could be made, because Santana already was mandated to register under SORA. In other words, Judge Stabile maintained, SORA, as a "prior and lawful registration scheme," functions "as a benchmark against which to measure the retroactive application of SORNA for ex post facto purposes."

Judge Stabile then examined the applicable statutory provisions, emphasizing that both SORA and SORNA require lifetime compliance, quarterly in-person appearances to verify certain personal information, and prompt in-person appearances to update the PSP of changes in certain identifying information. Judge Stabile acknowledged that there were some differences between the two statutes. For instance, SORNA requires the in-person updates of changes in information to occur within three days, while SORA affords the offender ten days. Judge Stabile opined that these deviations were minor and did not materially affect the relevant inquiry. In his view, SORA and SORNA were sufficiently similar such that, when Santana transitioned from the former to the latter by moving here, Santana was not disadvantaged for ex post facto purposes. Santana's lifetime of registration did not increase when he moved to Pennsylvania, where he faced the same lifetime burden of registration.

The Commonwealth filed a petition for allowance of appeal. On April 12, 2021, we granted allocatur to address the following two questions:

(1). Did the Superior Court err in determining that Santana 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 a ex post facto violation even though Santana was not disadvantaged any more than his lifetime registration he was already subject to under New York Law?

In its brief, the Commonwealth consolidates in a single discussion the two questions upon which we granted review. We will do the same, as the holding that we reach fully resolves both issues.

The Commonwealth's argument substantially mirrors the centerpiece of Judge Stabile's dissent: the theory that Muniz does not apply here because Santana did not face an increase in punishment when he moved from New York to Pennsylvania. The Commonwealth insists that Muniz was not an all-encompassing constitutional ruling. Rather, the Commonwealth contends, this Court held that SORNA only was unconstitutional when its after-the-fact application increased an offender's reporting and registration obligations from ten years to a lifetime. Only then would SORNA function as an increase in punishment. The Commonwealth maintains that no such increase occurred here, as Santana was not disadvantaged further by virtue of his move. He was subject to a lifetime of registration and reporting in New York. He was subject to the same in Pennsylvania. This came as no surprise to Santana, the Commonwealth notes, as SORNA was on the books long before his relocation.

The Commonwealth's arguments stumble right out of the gate—and fail—because the Commonwealth misapprehends the core aspect of an ex post facto analysis. The question is not whether SORA and SORNA impose the same or different registration periods. The analysis does not examine whether a new resident's crossing of Pennsylvania's borders actually increased the length of Santana's punishment. It does not even matter where Santana committed the triggering offense. For present purposes, what matters most is when that crime occurred. Because the Commonwealth ignores this initial, but most consequential, question, its arguments largely are beside the point.

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 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.

Most recently, drawing upon Calder and its progeny, this Court in Muniz summarized the ex post facto framework as follows:

Two critical elements must be met for a criminal or penal law to be deemed ex post facto : [(1)] it must be retrospective, 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.

Unsurprisingly, after Muniz , the Superior Court in this case—both the majority and the dissent—focused at least in part upon whether, and when, Santana was disadvantaged. However, a closer inspection of the Supreme Court of the United States’ ex post facto decisions reveals that our statement of the law in Muniz was incomplete. The United States Constitution does not require a defendant to prove that he, in fact, was disadvantaged by the retroactively applied law.

In formulating this standard in Muniz , we cited Calder and two earlier opinions, a 1981 case from the Supreme Court, Weaver v. Graham , and a 1993 decision from this Court, Commonwealth v. Young , both of which included a statement of the law that required proof of a concrete disadvantage to the defendant. However, both of those cases preceded the Supreme Court's 1995 decision in California Department of Corrections v. Morales , in which the Court explained that the proof of disadvantage had been eliminated as a constitutional requirement. In a footnote, the Court explained:

Our opinions in [ Lindsey v. Washington , 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), Miller v. Florida , 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), and Weaver ] suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the "disadvantage" of covered offenders. But that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood , 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). After Collins , the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of "disadvantage," nor [ ] on whether an amendment affects a prisoner's opportunity to take advantage of provisions for early release, but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.

Thus, in Muniz , this Court did not expressly recognize alterations to the substantive law that occurred after the cases we relied upon to articulate the standard.

When applied retroactively, sexual offender registration laws implicate the third Calder category of retroactive provisions. An ex post facto analysis concerning the third Calder category of laws distills to the following questions. First, a court must ask when the initial offense was committed. Second, the court must ask whether the challenged law was enacted after the occurrence of the triggering offense and was then applied retroactively. If so, the final question is whether that retroactive law is punitive or increases the penalty for the existing crime. We proceed accordingly.

The Commonwealth's argument that no ex post facto argument occurred here focuses upon when Santana moved to Pennsylvania. But neither Calder nor Muniz supports that position. The third Calder category of ex post facto laws—"a law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime" — establishes the relevant point in time as " when committed ." We said the same in Muniz when we categorized sex offender registration requirements as potentially implicating that third type of problematic ex post facto laws. We noted that "application of the statute would inflict greater punishment on [a sexual offender] than the law in effect at the time he committed his crimes ." Both cases unambiguously set the relevant comparative date as the date upon which the offender committed the offense. The Commonwealth's attempt to shift that date to somewhere further down the timeline finds no support in the governing caselaw. It does not matter that Santana's offense was committed in New York, as SORNA applies just the same to an extra-jurisdictional offense such as rape. Nor does it matter what requirements Santana was bound to follow when he moved here in 2015, or how these may (or may not) have changed.

Santana committed a rape in 1983. SORNA was enacted in 2012, and was applied retroactively to the triggering rape in 2015, when Santana moved here, over thirty years after the commission of that offense. Obviously, SORNA is being applied retroactively. All that remains is the question of whether SORNA is punitive. In 1983, there were no sexual offender registration laws in New York or in Pennsylvania, and, thus, Santana faced no punishment beyond his imposed sentence. The same cannot be said for 2015. Because rape is classified under SORNA as a Tier III offense, Santana was subjected to the same SORNA requirements as was Muniz. We already have ruled in Muniz that those requirements are punitive in nature.

Aside from the slight amplification of the applicable legal standard, we discern no defensible basis to distinguish Muniz from this case. In Muniz , we undertook a Mendoza-Martinez analysis, examining each of the relevant statutory criteria in order to ascertain whether those criteria, working together, demonstrated that the statute was punitive in its effect. The facts of the case established that SORNA was being enforced after Muniz’ triggering offense, and that Muniz was a Tier III offender. Besides directing this Court's review to those criteria imposed upon Tier III offenders, the facts played little to no role in our analysis. Rather, our ex post facto analysis was based upon an objective review of SORNA's statutory elements. We analyzed those elements for the impact that they had on all Tier III offenders. Nothing about our decision implies that the statute was unconstitutional only as to Muniz himself, or based upon his unique circumstances.

Nonetheless, on the most material facts, Santana stands in the same posture as Muniz. Santana, like Muniz, is a Tier III offender whose triggering offense occurred prior to the enactment of SORNA. Both offenders had the same statutory scheme imposed upon them retroactively. The fact that Santana committed his offense in New York is not a distinguishing factor. SORNA treats extra-judicial offenders in the same way that it treats Pennsylvania offenders. SORNA, as it existed in Muniz , is just as unconstitutional for Tier III New Yorkers as it is for Tier III Pennsylvanians. Muniz applies with full force in this case. Accordingly, SORNA's application to Santana is an ex post facto law. Indeed, a comparison of the correct dates in this case—1983 and 2015—reveals a dramatic increase in the punishment imposed upon Santana. He went from no punishment arising under a sexual offender registration scheme to being subjected to a patently punitive statutory scheme. Because that punishment was inflicted retroactively to his 1983 offense, it was unconstitutional.

A contrary result would engender a disparity in our law that cannot be justified. Were we to decline to extend Muniz to the present case, the terms and conditions of SORNA would be unconstitutional as to those who committed their crimes here, but the exact same criteria would be constitutional for one who has committed a crime in a sister state. SORNA does not discriminate based upon geographic borders. Our cases should not do so either. Fortunately, the possibility of such a pernicious result readily is obviated by Muniz ’ clear applicability to all Tier III offenders, including those who committed offenses elsewhere and then relocated here.

The order of the Superior Court is affirmed.

Justices Saylor, Todd, Donohue and Dougherty join the opinion.

Chief Justice Baer files a dissenting opinion.

Justice Mundy files a dissenting opinion. DISSENTING OPINION

CHIEF JUSTICE BAER

I respectfully dissent from the majority opinion because I view the issues presented in this case as distinct from those addressed in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (plurality). Contrary to my colleagues and as explained below, I conclude that application of the General Assembly's 2012 enactment of Section 4915.1(a), entitled "failure to comply with registration requirements," to Appellee David Santana's alleged violation of that statutory provision in 2016 does not constitute an ex post facto violation. Accordingly, I would reverse the order of the Superior Court and reinstate the trial court's judgment of sentence. Our courts have long recognized that the ex post facto clauses of the United States and Pennsylvania Constitutions prohibit, inter alia , "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull , 3 U.S. 3 Dall. 386, 390, 1 L.Ed. 648 (1798). As the majority observes, the United States Supreme Court further explained that "the focus of the ex post facto inquiry" is on whether the relevant change in law "increases the penalty by which a crime is punishable." California Dept. of Corrections v. Morales , 514 U.S. 499, 506 n.3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).

I continue to agree that this standard was met in Muniz. In that case, we held that the 2012 enactment of punitive registration requirements in the Sexual Offender Registration and Notification Act (SORNA) constituted an ex post facto violation when applied to individuals whose relevant sexual offenses occurred prior to 2012. Very simply, application of SORNA registration requirements in Muniz was unconstitutional because it applied 2012 registration requirements to pre-2012 crimes, and it increased the penalty imposed on the offender because it substituted punitive registration requirements for the lesser, non-punitive registration requirements (or, indeed, the lack of registration requirements), which were applicable when the offenses were committed.

I view the issue in Muniz and the question raised in this case as distinguishable based upon the timeline of the relevant criminal conduct. Unlike Muniz, the criminal act involved in this case is not the pre-2012 sexual offense, but rather the distinct crime of "failure to comply with registration requirements" by failing to "provide accurate information when registering," 18 Pa.C.S. § 4915.1(a)(3). As applied to this case, Appellee Santana's failure to register occurred years after the 2012 enactment of Section 4915.1(a)(3). Thus, it does not involve a retroactive application of increased punishment, but instead the prospective application of the statute to acts that were committed subsequent to its passage.

Specifically, while Santana partially complied with the registration provisions between 2015, when he moved to Pennsylvania, and December 2016, when he was charged with violating Section 4915.1(a)(3), he nonetheless failed to provide the requisite accurate information during that time when he did not disclose a change in phone numbers, the commencement of employment, and the use of internet identifiers. As Santana's acts that violated Section 4915.1(a) occurred after its enactment, I conclude that the application of the statute to Santana does not implicate ex post facto protection.

DISSENTING OPINION

JUSTICE MUNDY

I join Chief Justice Baer's dissenting opinion in full, as I agree that the circumstances of this case are distinct from those in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (plurality), and therefore do not warrant the same ex post facto protections. I write separately to underscore an overall policy concern with the Majority's holding in this case as it relates to the purpose of our sexual offender registration laws, namely protection of the public. In exacting the Sexual Offender Registration and Notification Act (SORNA), the General Assembly made clear that its purpose, in part, is to gather information about known sex offenders to better protect the public. See 42 Pa.C.S. § 9799.11(b)(1)-(2). The state of New York has already deemed Santana to be a person about whom the public should be concerned as evidenced by its imposition of lifetime registration requirements. Under the Majority's holding, Santana, and others similarly situated, may circumvent the obligation to register in another state by seeking refuge in Pennsylvania. I do not believe our laws countenance such a result. Therefore, I dissent.