Commonwealth v. Snyder

• Decision Date: 11 May 2015
• Docket Number: No. 3299 EDA 2014,J-S24041-15,3299 EDA 2014
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. GARY THOMAS SNYDER, Appellant

COMMONWEALTH OF PENNSYLVANIA, Appellee v. GARY THOMAS SNYDER, Appellant

J-S24041-15

No. 3299 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 11, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order entered on October 29, 2014 in the Court of Common Pleas of Chester County, Criminal Division, No. CP-15-CR-0004049-2002

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:

Gary Thomas Snyder ("Snyder") appeals from the Order denying his Petition (hereinafter "the Petition for Relief") seeking exemption from being required to register with the Pennsylvania State Police ("PSP") as a sex offender for his lifetime, pursuant to the Sex Offender Registration and Notification Act ("SORNA"),¹ and challenging SORNA's constitutionality concerning its retroactive application. We affirm.

Between July 1994 and August 1995, Snyder sexually assaulted a seven-year-old girl, A.G., on several occasions. Snyder, inter alia, (1) fondled A.G.'s chest; (2) kissed her on the mouth after removing both of their clothes; (3) inserted his finger into her vagina; and (4) forced her to touch his penis with her hand. A.G. stated that after each assault, Snyderthreatened that he would harm her family if she told anyone about what had happened.

A.G. reported the sexual assaults to the police several years later, when she was fifteen-years-old. In September 2002, the Commonwealth charged Snyder with several offenses, including four counts each of indecent assault of a minor less than thirteen years of age and corruption of minors.² On February 13, 2003, Snyder pled guilty to two counts each of indecent assault of a minor less than thirteen years of age and corruption of minors. Snyder's guilty plea was the result of a negotiated agreement, wherein the Commonwealth agreed that it would withdraw the remaining charges and recommend a sentence of eight years of probation, the first nine months of which would be under electronic home monitoring. Notably, at the time of Snyder's plea, the offense of indecent assault of a minor less than thirteen years of age required a ten-year period of sex offender registration under Megan's Law II.³

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth what transpired thereafter as follows:

[Snyder] was sentenced on June 9, 2003[, pursuant to the negotiated plea agreement,] ... [to] an aggregate sentence of 8 years [of] probation. He was also ordered to undergo 9 months of electronic home confinement, undergo [a] sex offender evaluation, a psychological evaluation, to complete a Sex Offender Program, and have no unsupervised contact with minors. As sentenced, his probation extended through June 9, 2011. [Snyder] did not file a direct appeal from [his] judgment of sentence.

On June 25, 2008, the Chester County Probation Department sought a bench warrant for [Snyder's] arrest[,] [based] upon allegations of [his] probation violation, alleging he had failed to complete the Sex Offender Program and had unsupervised contact with minors on multiple occasions. [Snyder] was taken into custody and imprisoned on September 9, 2008, and following [a] hearing ..., [Snyder] was found in violation of his probation. He was sentenced to 3 to 23 months [of] incarceration, subject to conditions, given credit for time served, and made eligible for parole after serving his minimum sentence. ... He was paroled on December 3, 2008, and completed probation supervision on February 12, 2011. He was not on probation when he filed the instant [P]etition [for Relief] seeking relief from the lifetime registration requirement. [Snyder] began registering as a sex offender on June 12, 2003. Under Megan's Law II[,] he was required to register through mid-June 2013.

On December 3, 2012, the Commander of the Megan's Law Section of the [PSP] notified [Snyder] in writing that [pursuant to SORNA,] he was required to register as a sexual offender with the [PSP] for [his l]ifetime as a Tier III sexual offender,⁴ and to verify his registration information in person every 3 months at an approved registration site. He was further advised that he now appeared on the Megan's Law Registry as a sexual offender. ... SORNA increased [Snyder's] reporting requirements by a multiple of four. Under Megan's Law III, he was required to appear only once each year[,] at a location designated by the [PSP,] to verify his residence and be photographed. Under SORNA, Snyder must register a wider array of information with the PSP, including aliases, nicknames, internet identifiers under which he communicates or posts, date of birth, social security number, telephone number, passport, driver's license, professional licenses, and license plate or motor vehicle registration numbers.

On September 23, 2013, [Snyder] filed the [Petition for Relief, wherein he] essentially contends that the effects upon him of SORNA are punitive in nature, and not mere collateral consequences of his conviction, thereby rendering its ex post facto application to him unconstitutional. He further contends that he is legally entitled to the benefit of the bargain made in his plea agreement with the Commonwealth, which included the limitation that he register as a sexual offender for not more than ten years.⁵

Trial Court Opinion, 10/29/14, at 2-5 (footnotes added, citations omitted).

By an Order entered on October 29, 2014, the trial court denied the Petition for Relief.⁶ Snyder timely filed a Notice of Appeal. The trial courtdid not order Snyder to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Snyder presents the following issues for our review:

Whether the Court of Common Pleas committed error:

I. In failing to grant [the P]etition [for Relief] because the Court failed to consider that [Snyder] should only be required to register for ten (10) years[,] as his offenses were part of a single criminal episode or course of conduct[?]

II. In failing to grant [the P]etition [for Relief] because the Court failed to consider that changing, or expanding and extending, [Snyder's] registration and reporting requirements is a form of punishment and thus, [retroactive] application of SORNA violates the Ex Post Facto clauses of the United States and Pennsylvania Constitutions[?]

Brief for Appellant at 4.

Because Snyder's issues implicate a pure question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Raban, 85 A.3d 467, 468 (Pa. 2014); see also In the Interest of J.B., 107 A.3d 1, 14 (Pa. 2014) (addressing a challenge to the constitutionality of the retroactive application of SORNA and observing that "a party challenging a statute must meet the high burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution." (citation and quotation marks omitted)).

Snyder first argues that the trial court erred by denying the Petition for Relief because his offenses were part of a single criminal episode or course of conduct, and, therefore, he should only be required to register as a sexoffender for ten years, as opposed to his lifetime. Brief for Appellant at 8, 9. Specifically, Snyder contends as follows:

When SORNA became the effective law, part of the reason that [Snyder] was reclassified as a lifetime registrant (Tier III) ... was due to the language in 42 Pa.C.S. § 9799.14(d)(16)[,] which states that an individual is subject to lifetime registration if he or she has "[t]wo or more convictions of offenses listed as Tier I or Tier II sexual offenses." 42 Pa.C.S. § 9799.14(d)(16)[]. [Snyder is] of the opinion that this provision requiring lifetime registration only applies to repeat offenders and recidivists who are convicted of separate acts of misconduct that lead to separate and multiple convictions. This provision should not apply to individuals who engage in misconduct that results in one conviction with multiple criminal charges/offenses.

Brief for Appellant at 9.

This claim is waived because Snyder failed to preserve it for our review, having never raised it in the trial court. See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time on appeal); see also Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (stating that "[b]y requiring that an issue be considered waived if raised for the first time on appeal, our [appellate C]ourts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue. This jurisprudential mandate is also grounded upon the principle that a trial court must be given the opportunity to correct its errors as early as possible." (citation and ellipses omitted));⁷ see also Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010) (stating that "[w]here the partiesfail to preserve an issue for appeal, the Superior Court may not address that issue sua sponte." (citation omitted)).⁸

Next, Snyder argues that SORNA is punitive, and that the retroactive application of SORNA to him violates the Ex Post Facto Clauses of Article 1, § 10 of the United States Constitution and Article 1, § 17 of the Pennsylvania Constitution. See Brief for Appellant at 21-38.

A panel of this Court recently addressed this precise issue in Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014). Snyder acknowledges Perez in a footnote, but argues that its holding does not apply to his particular circumstances. Brief for Appellant at 21 n.12. Contrary to Snyder's assertion, we determine that Perez is directly applicable and requires rejection of his constitutional challenge.

In Perez, the defendant committed the offense of indecent assault prior to SORNA's enactment, and entered a negotiated nolo contendere plea to this charge. Perez, 97 A.3d at 749. At the time of his offense, the version of Megan's Law then in effect required him to register as a sex offender for 10 years. Id. Under SORNA, which went into effect shortly before the defendant's plea, he was required to register for 25 years. Id. Prior to...