Opinion
No. 71 MAP 2016.
08-16-2017
Leroy SPANN, Appellant v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE and Pennsylvania State Police, Appellees
ORDER
PER CURIAM
AND NOW, this 16th day of August, 2017, the Commonwealth Court's ruling dated June 9, 2016 is affirmed in part and reversed in part:
(1) that portion of the ruling granting the Suggestion of Mootness filed by the Pennsylvania Board of Probation and Parole is hereby AFFIRMED; and
(2) that portion of the ruling granting the Preliminary Objections filed by the Pennsylvania State Police and denying the Motion for Summary Judgment filed by Appellant Leroy Spann is hereby REVERSED. See Commonwealth v. Muniz , –––Pa. ––––, 164 A.3d 1189 (2017).
The case is hereby remanded to the Commonwealth Court for the entry of an appropriate order granting mandamus relief.
Chief Justice Saylor and Justice Mundy file concurring statements.
CHIEF JUSTICE SAYLOR, Concurring
Although I dissented in the controlling case, Commonwealth v. Muniz , –––Pa. ––––, ––––, 164 A.3d 1189 (2017) (Opinion Announcing the Judgment of the Court), I recognize that there was a majority consensus in that decision to the effect that SORNA exacts punishment and retroactive application of the enactment violates constitutional norms. Accordingly, while I have expressed my disagreement with these propositions, see id. at ––––, 164 A.3d at 1232–39 (Saylor, C.J., dissenting), I join the present per curiam order based on the prevailing precedent.
JUSTICE MUNDY, Concurring
I agree that in light of this Court's recent decision in Commonwealth v. Muniz , ––– Pa. ––––, 164 A.3d 1189 (2017), the Commonwealth Court erred in rejecting Appellant's argument that SORNA is an ex post facto law. However, if I were writing on a blank slate, I would conclude that SORNA does not violate the Ex Post Facto Clauses of the Federal and Pennsylvania Constitutions.
I did not participate in Muniz, which was argued with Commonwealth v. Gilbert, 48 MAP 2016, a case in which I participated on the Superior Court.
I have previously expressed my views in this area in Commonwealth v. Perez , 97 A.3d 747 (Pa. Super. 2014). Therein, the Superior Court balanced the factors articulated under Kennedy v. Mendoza–Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The panel concluded that SORNA's requirement that an offender appear physically in person to regularly update his or her information was "an affirmative restraint," weighing in favor of concluding SORNA was punitive, and therefore an ex post facto law. Perez , 97 A.3d at 754. However, the court also concluded that the other six factors did not weigh in favor of concluding SORNA was punitive. See id. 754–58. Balancing these factors, Perez concluded that SORNA was not punitive, and therefore not an ex post facto law under the Federal Constitution. Id. at 758–59.
The panel did not address Perez's claim under the Pennsylvania Constitution, due to his failure to conduct an analysis pursuant to Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) in his brief. See Perez, 97 A.3d at 759–60.
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I continue to believe that Perez was correctly decided and struck the proper balance under controlling cases from the Supreme Court of the United States. I therefore disagree with Muniz 's conclusion that SORNA violates the Ex Post Facto Clause of the Federal Constitution. Even assuming that Muniz 's federal constitutional analysis was correct, its analysis should have properly ended there, since any claim under the Pennsylvania Constitution is moot. See generally Pap's A.M. v. City of Erie , 553 Pa. 348, 719 A.2d 273, 281 n.12 (1998) (concluding that since a local ordinance violated the First Amendment of the Federal Constitution, there was no need to consider whether the ordinance also violated the Pennsylvania Constitution), rev'd , 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Since the Court decided to reach that argument, I agree with Justice Wecht that the Ex Post Facto Clause of the Pennsylvania Constitution does not provide higher protections than its federal counterpart. See Muniz , 164 A.3d at 1218–31 (Wecht, J., concurring).
Although I disagree with Muniz 's conclusions, they are now the law of this Commonwealth. As such, they must be applied in a meaningful way. No sensible reading of Muniz would permit the Commonwealth Court's contrary judgment to stand. I therefore join the Court's order in this case, because it correctly applies Muniz and reverses the Commonwealth Court's order in this regard.