Com. v. Gaffney

• Decision Date: 30 June 1999
• Citation: 557 Pa. 327,733 A.2d 616
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Dennis V. GAFFNEY, Appellant.
• Court: Pennsylvania Supreme Court

557 Pa. 327

733 A.2d 616

COMMONWEALTH of Pennsylvania, Appellee, v. Dennis V. GAFFNEY, Appellant.

Supreme Court of Pennsylvania.

Argued September 16, 1998.

Decided June 30, 1999.

Alan J. Josel, Chief Public Defender, Jeanette D. Dickerson, Asst. Public Defender, for Dennis Gaffney.

Mary MacNeil Killinger, Asst. D.A., Adrienne Duvall, Commonwealth.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, and NEWMAN, JJ.

OPINION

ZAPPALA, Justice.

We granted allowance of appeal in this case limited to the issue of whether application of the registration provisions set forth at Section 9793 of the Registration of Sexual Offenders Act (Act), 42 Pa.C.S. § 9791 et seq., constitutes an ex post facto violation where Appellant pled guilty to the offenses of involuntary deviate sexual intercourse and aggravated indecent assault and where commission of these offenses occurred prior to the effective date of the registration provisions of the Act.¹ For the reasons that follow, we hold that no ex post facto violation occurred.

On the afternoon of December 31, 1995, Appellant invited a nine-year-old neighborhood girl into his home. Once inside, Appellant removed his pants, exposing his genitals. He pulled down the girl's pants and removed her underwear. Appellant then violated her vagina orally and manually.

On October 19, 1996, Appellant pled guilty to the charges of involuntary deviate sexual intercourse, aggravated indecent assault, and corruption of minors and was sentenced to an aggregate term of 6 to 30 years' imprisonment. At the hearing, Appellant admitted to having engaged in sexual conduct with the victim on numerous other occasions over a 1½ to 2 year period. In addition to his prison term, Appellant was subject to the registration requirements found at Section 9793 of the Act, 42 Pa.C.S. § 9793.²

Section 9793(a) provides, in relevant part:

(a) Registration. — A person convicted of any of the offenses set forth in subsection (b) shall be required to register a current address with the Pennsylvania State Police upon release from incarceration, upon parole from a State or county correctional institution, upon the commencement of a sentence of intermediate punishment or probation or where the offender is under the supervision of the Pennsylvania Board of Probation and Parole at the time of enactment of this section. . . .

42 Pa.C.S. § 9793(a).³ An offender, if incarcerated, will not be released until such information is furnished. This information is then turned over to the chief law enforcement officer of the police department of the municipality in which the offender resides. 42 Pa.C.S. § 9793(c). Registrants must verify their address annually to the State Police, 42 Pa.C.S. § 9796(b), and any change of address must be immediately reported. 42 Pa.C.S. § 9796(c). Dissemination of this information beyond local law enforcement officials is not specified. The period of registration under this provision is ten years.

Appellant argued, before the trial court and the Superior Court, that application of the registration provisions to him constituted an ex post facto violation pursuant to both the federal and state constitutions⁴ since these provisions were not in effect at the time he committed the relevant offenses. He maintained that application of the registration requirements impermissibly "chang[ed] the punishment, and inflict[ed] a greater punishment, than the law annexed to the crime, when committed." See Commonwealth v. Gaffney, 702 A.2d 565, 566 (Pa.Super.1997).

Both the trial court and the Superior Court rejected Appellant's assertion. The Superior Court concluded that because the registration provisions do not constitute punishment, no ex post facto violation occurred. Specifically, the Superior Court relied on the Third Circuit's decisions in Artway v. Attorney General, 81 F.3d 1235 (3d Cir.1996), and E.B v. Verniero, 119 F.3d 1077 (3d Cir.1997), cert. denied, ____ U.S. ____, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998), in reaching its decision.

In Artway and Verniero, the Third Circuit, reviewing whether New Jersey's version of Megan's Law⁵ violated the Ex Post Facto Clause, established a three-prong test to determine whether a particular legislative measure constitutes punishment. This test provides that a particular measure will be considered punishment where: (1) the legislature's actual purpose is punishment, (2) the objective purpose is punishment, or (3) the effect of the statute is so harsh that "as a matter of degree" it constitutes punishment. See Verniero, 119 F.3d at 1093.

After applying the foregoing test, the Artway court determined that the registration provisions set forth in New Jersey's Megan's Law do not constitute punishment for purposes of the Ex Post Facto Clause; the Verniero court, in applying the test, concluded that the public notification provisions of New Jersey's Megan's Law do not constitute punishment.⁶ The Superior Court, in reaching its conclusion, held that there was no substantive difference between the registration provisions of our Act and those of New Jersey's, and accordingly held that the registration provisions found in the Act do not violate the Ex Post Facto Clause.⁷

In analyzing Appellant's state constitutional claim, the Superior Court initially recognized that where there is a compelling reason to do so, the Pennsylvania Constitution may be construed as providing greater rights than the United States Constitution. The court, however, concluded that "[i]n light of the relatively unobtrusive nature of the Megan's Law registration provisions, we do not find this case presents any compelling reason to depart from federal standards." Gaffney, 702 A.2d at 569. Accordingly, the court likewise held that no state ex post facto violation occurred. Appellant now argues that the Superior Court's decision was in error.

The test first articulated by the Artway court was derived through an exhaustive consideration of relevant United States Supreme Court precedent.⁸ After Artway was decided, the United States Supreme Court filed two decisions, United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), and Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), where the Court conducted analysis of what constitutes punishment for purposes of the Ex Post Facto and the Double Jeopardy Clauses. In Ursery, the Court concluded that civil forfeitures do not constitute punishment for purposes of the Double Jeopardy Clause. In Hendricks, the Court upheld a Kansas statute that provides for the civil commitment of sexually violent predators when faced with an ex post facto challenge, among others.

The Verniero court considered whether these decisions had any effect on the analysis and test set forth by the Artway court. The Verniero court determined that, to the contrary, these decisions did not require it to abandon or overhaul Artway since the concerns articulated by the Court in Hendricks were identical to those established in Artway. Our independent review leads us to the same conclusion and we, therefore, adopt the Artway/Verniero test.

As noted, the first prong of the test requires an analysis of whether the legislature's actual, subjective purpose in enacting a particular measure is punishment. The Artway court aptly noted:

If the legislature intended Megan's Law to be "punishment," i.e., retribution was one of its actual purposes, then it must fail constitutional scrutiny. If on the other hand, `the restriction of the individual comes about as a relevant incident to a regulation,' the measure will pass this first prong.

Artway, 81 F.3d at 1263 (citations omitted). In gleaning the actual purpose of the Act, it is relevant to examine the declaration of purpose found at Section 9391(b), which provides:

It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection and shall not be construed as punitive.

42 Pa.C.S. § 9791(b).

It is clear from the foregoing passage that the legislature's intent in requiring offenders to register with the State Police regarding their whereabouts was not retribution; rather, the legislature's stated intent was to provide a system of registration and notification so that relevant information would be available to state and local law enforcement officials in order to protect the safety and general welfare of the public. Thus, the legislature's actual purpose in enacting the registration provisions was not punishment; rather its purpose was to effectuate, through remedial legislation, the non-punitive goal of public safety.

Next, we must determine if the objective purpose of the legislature, in requiring offenders to register a current address with the State Police, is punitive. As noted by the Superior Court, the following guidance can be derived from the Verniero court's decision:

The "objective" prong of this test focuses on "whether analogous measures have traditionally been regarded in our society as punishment," and has three subparts: (A) "proportionality — whether the remedial purpose of [the measure]... can explain all the adverse effects on those involved," (B) whether the measure has been historically considered punishment, and (C) whether the measure serves both a remedial and a deterrent purpose. If question (C) is answered in the affirmative, then a measure will be considered

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