ex post facto clause in Pennsylvania

2024In Muniz, a plurality of our Court was faced with an ex post facto challenge to SORNA and concluded that the registration provisions constituted punishment. 164 A.3d at 1218 .

2024In essence, Revised Subchapter H retained many of the provisions of SORNA, while Subchapter I imposed arguably less onerous requirements on those who committed offenses prior to December 20, 2012, in an attempt to address this Court’s conclusion in [Commonwealth v.] Muniz[, 164 A.3d 1189 (Pa. 2017),] that application of the original provisions of SORNA to these offenders constituted an ex post facto violation.

2025“A state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment than the law annexed to the crime, when committed.’” Commonwealth v. Fleming, 801 A.2d 1234, 1237 (Pa. Super. 2002) (quoting Coady v. Vaughn, 770 A.2d 287 , 289 n.2 (Pa. 2001)). “[T]his Court has held that the critical inquiry for determining whether the application of SORNA to a convicted sex offender violates ex post facto prohibitions is the date of the offense.” Commonwealth v. Lippincott, 208 A.3d 143, 149 (Pa. Super. 2019) (en banc) (

2023Commonwealth v. Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016)[,] citing Commonwealth v. Young, [] 637 A.2d 1313 ([Pa.] 1993)[.] The purpose of this proscription is “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Grady, [] 486 A.2d 962, 964 ([Pa. Super.] 1984)[,] quoting Commonwealth v. Hoetzel, [] 426 A.2d 669, 672 ([Pa. Super.] 1981)[.] We have explained that “a state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment th

2026The United States Supreme Court addressed a similar ex post facto challenge to an amendment to California parole law in California Department of Correction v. Morales, 514 U.S. 499, 511 (1995), finding no ex post facto violation.

2025The ex post facto clause, however, should not be employed for the “micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.” Garner, 529 U.S. at 252 . . . (citing [sic] Morales, 514 U.S. at 508 . . . ).

2026In the context of an alleged ex post facto violation, we have explained that where “actions of the [B]oard taken pursuant to changed statutory requirements are being challenged, an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause.” Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001), opinion after certified question answered, 251 F.3d 480 (3d Cir. 2001).

2026In the context of an alleged ex post facto violation, we have explained that where “actions of the [B]oard taken pursuant to changed statutory requirements are being challenged, an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause.” Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001), opinion after certified question answered, 251 F.3d 480 (3d Cir. 2001).

2025Citing the case of Cimaszewski v. Board of Probation and Parole, 868 A.2d 416, 426-27 (Pa. 2005), Inmate asserts that our Supreme Court has held that retroactive changes in parole laws violate the ex post facto clause if they create a significant risk of prolonging the period of incarceration.

2024In other words, an ex post facto claim can be pursued where the inmate can demonstrate that, in his particular case, the 1996 version of the former Parole Law created a “significant risk of prolonging his incarceration.” Id.

2018Upon Appellant’s release, a counselor informed him that he needed to notify authorities of a change in residence within ten days.4 Appellant left Pennsylvania for Virginia and then moved to New York. ____________________________________________ 2 See 42 Pa.C.S. §§ 9791-9795 (expired); see also Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa. 1999) (rejecting an offender’s ex post facto claim regarding Megan’s Law I). 3 See 42 Pa.C.S. §§ 9791-9799.9 (expired); see also Commonwealth v. Derhammer, 173 A.3d 723, 725 (Pa. 2017) (citing 42 Pa.C.S. § 9795.1(b)(2) (expired)); Commonwealth v. Anthony, 8

2017Gaffney, 733 A.2d at 622 ("Appellant has failed to present any compelling reason for our departure from the standards appropriate for determining whether an ex post facto violation pursuant to the federal constitution has occurred and we find no independent reasons for doing so.”); accord Commonwealth v. McElhenny, 329 Pa.Super. 240 , 478 A.2d 447, 450 (1984) (rejecting the argument that Article I, Section 17 of the Pennsylvania Constitution provides greater protection.than the corresponding federal provision, and noting that Pennsylvania courts "have, generally, interpreted the Pennsylvania c

2025This Court has recognized that these two provisions “are virtually identical, and the standards applied to determine an ex post facto violation are comparable.” Cao v. Pa. State Police, 280 A.3d 1107 , 1108 n.2 (Pa. Cmwlth. 2022) (quoting Evans v. Pa. Bd. of Prob. & Parole, 820 A.2d 904, 909 (Pa. Cmwlth. 2003) (additional quotation marks omitted)). 2 The PSP filed preliminary objections to Petitioner’s Amended Mandamus Petition (Current Preliminary Objections).

2023This Court has recognized that these two provisions “are virtually identical, and the standards applied to determine an ex post facto violation are comparable.” Cao v. Pa. State Police, 280 A.3d 1107 , 1108 n.2 (Pa. Cmwlth. 2022) (quoting Evans v. Pa. Bd. of Prob. & Parole, 820 A.2d 904, 909 (Pa. Cmwlth. 2003) (additional quotation marks omitted)). 4 Formerly 42 Pa. C.S. §§ 9799.10-9799.41. 4 Nevertheless, the petitioner in Cao argued that SORNA II was unconstitutionally retroactive as to him because he committed his offenses before the enactment of any sex offender registration laws.

2019“A law violates the ex post facto clause . . . if it . . . changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.” Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012) (emphasis added); see also Commonwealth v. Rose, 127 A.3d 794, 807 (Pa. 2015) (holding “the imposition of a more severe sentence based on a statute that was amended after the act was committed, but prior to the result of that act, violates the ex post facto prohibition”) (emphasis added).

2019See Groulx v. Pa. State Police (Pa. Cmwlth., No. 121 M.D. 2018, filed January 24, 2019), slip op. at 12-14.6 “Without the infliction of a greater punishment, the ex post facto clause is not violated.” Id., slip op. at 14 (citing Com. v. Rose, 127 A.3d 794 (Pa. 2015), and Com. v. Allshouse, 36 A.3d 163 (Pa. 2012)).

2025“A state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and inflicts a greater punishment than the law annexed to the crime, when committed.” Commonwealth v. Vaughn, 770 A.2d 287 , 289 n.2 (Pa. 2001) (internal quotation marks and citation omitted). “[C]entral to the ex post facto prohibition is a concern for the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Commonwealth v. McGarry, 172 A.3d 60, 68 (Pa.Super. 2017) (citation omit

2015This Court has recently held that “the standards applied to determine an ex post facto violation under the Pennsylvania Constitution and the United States Constitution are comparable.” Commonwealth v. Rose, 2013 PA Super 305 , 81 A.3d 123, 127 (Pa. Super. 2013) (en banc).

2025The ex post facto -7- J-S27010-24 clauses of both the Pennsylvania and U.S. constitutions “are virtually identical and the standards applied to determine an ex post facto violation under the Pennsylvania Constitution and the United States Constitution are comparable.” Commonwealth v. Young, 637 A.2d 1313, 1317 (Pa. 1993).

2023Commonwealth v. Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016)[,] citing Commonwealth v. Young, [] 637 A.2d 1313 ([Pa.] 1993)[.] The purpose of this proscription is “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Grady, [] 486 A.2d 962, 964 ([Pa. Super.] 1984)[,] quoting Commonwealth v. Hoetzel, [] 426 A.2d 669, 672 ([Pa. Super.] 1981)[.] We have explained that “a state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment th

2026In Garner v. Jones, 529 U.S. 244 (2000), the Supreme Court again addressed an ex post facto challenge to an amendment changing the frequency with which a certain class of offenders’ parole applications would be considered and found that the challenged law did not, by its own terms, create a significant risk of increased punishment.8 Garner, 529 U.S. at 255 .

2026In Garner v. Jones, 529 U.S. 244 (2000), the Supreme Court again addressed an ex post facto challenge to an amendment changing the frequency with which a certain class of offenders’ parole applications would be considered and found that the challenged law did not, by its own terms, create a significant risk of increased punishment.8 Garner, 529 U.S. at 255 .

2016See Commonwealth v. Perez, 97 A.3d 747 (Pa.Super.2014) (finding SORNA’s registration requirements are not punitive, and application of the requirements does not violate the ex post facto clause); United States v. Under Seal, 709 F.3d 257, 265 (4th Cir.2013) (finding the federal SORNA statute was not punitive and did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment); United States v. Crews, 496 F. App’x 896, 901 (11th Cir.2012) (finding the federal SORNA statute did not violate the Eighth Amendment); United States v. Davis, 352 F. App’x 270, 272 (10th Cir.2009) (no

2016See also Calder v. Bull, 3 U.S. 386 , 390 (1798). “[T]he standards applied to determine an ex post facto violation under the Pennsylvania Constitution and the United States Constitution are comparable.” Commonwealth v. Perez, 97 A.3d 747, 759 (Pa. Super. 2014) (citation omitted).

2023Indeed, “[a] state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment than the law annexed to the crime, when committed.’” Sherwood v. Pa. Dep’t of Corr., 268 A.3d 528 , 548-49 (Pa. Cmwlth. 2021) (quoting Commonwealth v. Wall, 867 A.2d 578, 580 (Pa. Super. 2005)).

2021(County Respondents’ Br. in Support at 19-25.) “A state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment than the law annexed to the crime, when committed.’” Commonwealth v. Wall, 867 A.2d 578, 580 (Pa. Super. 2005) (quoting Commonwealth v. Fleming, 801 A.2d 1234, 1237 (Pa. Super. 2002)) (internal citations omitted).

2017Kizak, 148 A.3d at 857 (“A state law violates the ex post facto clause if it was adopted after -7- J-S92004-16 the complaining party committed the criminal acts and ‘inflicts a greater punishment than the law annexed to the crime, when committed.’”) (emphasis added).

2017“If there is any doubt as to whether a challenger has met this high burden, then we will resolve that doubt in favor of the statute’s constitutionality.” Id. (citation omitted). “[A] state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and inflicts a greater punishment than the law annexed to the crime, when com-mitted.” Commonwealth v. Fleming, 801 A.2d 1234, 1237 (Pa. Super. 2002) (quotation marks and citation omitted). “[CJentral to the ex post facto prohibition is a concern for the lack of fair notice and governmental restrai

2017Calder, 3 U.S. at 389 (stating that the ex post facto clause “very probably arose from the knowledge . . . that the Parliament of Great Britain claimed and exercised a power to pass such laws”).

2017Calder, 3 U.S. at 389 (stating that the ex post facto clause "very probably arose from the knowledge ... that the Parliament of Great Britain claimed and exercised a power to pass such laws”).

2019“A law violates the ex post facto clause . . . if it . . . changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.” Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012) (emphasis added); see also Commonwealth v. Rose, 127 A.3d 794, 807 (Pa. 2015) (holding “the imposition of a more severe sentence based on a statute that was amended after the act was committed, but prior to the result of that act, violates the ex post facto prohibition”) (emphasis added).

2019Rose, 127 A.3d at 797-98 (footnote omitted).3 Rose involved an ex post facto violation, but concerned the proper sentence for a defendant based on ____________________________________________ 3 The Rose court noted that, because Pennsylvania’s ex post facto law, Article I, § 17, provides the same protections as its federal counterpart, it did not need to conduct a separate analysis.

2025“A state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment than the law annexed to the crime, when committed.’” Commonwealth v. Fleming, 801 A.2d 1234, 1237 (Pa. Super. 2002) (quoting Coady v. Vaughn, 770 A.2d 287 , 289 n.2 (Pa. 2001)). “[T]his Court has held that the critical inquiry for determining whether the application of SORNA to a convicted sex offender violates ex post facto prohibitions is the date of the offense.” Commonwealth v. Lippincott, 208 A.3d 143, 149 (Pa. Super. 2019) (en banc) (

2021See id. at 1223 ; see also Commonwealth v. Lippincott, 208 A.3d 143, 150 (Pa. Super. 2019) (en banc).

2023Commonwealth v. Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016)[,] citing Commonwealth v. Young, [] 637 A.2d 1313 ([Pa.] 1993)[.] The purpose of this proscription is “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Grady, [] 486 A.2d 962, 964 ([Pa. Super.] 1984)[,] quoting Commonwealth v. Hoetzel, [] 426 A.2d 669, 672 ([Pa. Super.] 1981)[.] We have explained that “a state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment th

2023Commonwealth v. Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016)[,] citing Commonwealth v. Young, [] 637 A.2d 1313 ([Pa.] 1993)[.] The purpose of this proscription is “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Grady, [] 486 A.2d 962, 964 ([Pa. Super.] 1984)[,] quoting Commonwealth v. Hoetzel, [] 426 A.2d 669, 672 ([Pa. Super.] 1981)[.] We have explained that “a state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment th

2026“Two critical elements must be present for a criminal or penal law to be violative of the ex post facto clause: ‘It must be retrospective, that is, it must apply to events occurring 8 before its enactment, and it must disadvantage the offender affected by it.’” Cimaszewski [v. Pa. Bd. of Prob. & Parole], 868 A.2d [416,] 423 [(Pa. 2005)] (quoting Weaver, 450 U.S. at 29 . . .).

2025In Cimaszewski, our Supreme Court recognized that: The ex post facto prohibition forbids the Congress and the States from enacting any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24 , 28 . . . (1981), citing [sic] Cummings v. Missouri, . . . 71 U.S. 277 , 326 . . . (1866); see also Collins v. Youngblood, 497 U.S. 37 , 41 . . . (1990) (holding that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the off

2025In Cimaszewski, our Supreme Court recognized that: The ex post facto prohibition forbids the Congress and the States from enacting any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24 , 28 . . . (1981), citing [sic] Cummings v. Missouri, . . . 71 U.S. 277 , 326 . . . (1866); see also Collins v. Youngblood, 497 U.S. 37 , 41 . . . (1990) (holding that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the off

2015In Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990), the High Court stated, “a procedural change may constitute an ex post facto violation if it affects matters of substance[.] ...

2017Gaffney, 733 A.2d at 622 ("Appellant has failed to present any compelling reason for our departure from the standards appropriate for determining whether an ex post facto violation pursuant to the federal constitution has occurred and we find no independent reasons for doing so.”); accord Commonwealth v. McElhenny, 329 Pa.Super. 240 , 478 A.2d 447, 450 (1984) (rejecting the argument that Article I, Section 17 of the Pennsylvania Constitution provides greater protection.than the corresponding federal provision, and noting that Pennsylvania courts "have, generally, interpreted the Pennsylvania c

2017Gaffney, 733 A.2d at 622 ("Appellant has failed to present any compelling reason for our departure from the standards appropriate for determining whether an ex post facto violation pursuant to the federal constitution has occurred and we find no independent reasons for doing so.”); accord Commonwealth v. McElhenny, 329 Pa.Super. 240 , 478 A.2d 447, 450 (1984) (rejecting the argument that Article I, Section 17 of the Pennsylvania Constitution provides greater protection.than the corresponding federal provision, and noting that Pennsylvania courts "have, generally, interpreted the Pennsylvania c

2023On August 7, 2019 — while the trial court’s December 2, 2018, stay order was apparently still in effect — Appellant filed a counseled motion for reconsideration of sentence, again relying on Muniz and arguing the ____________________________________________ 6 See Butler I, 173 A.3d at 1217-18 (SVP designations and registration requirements were “increased criminal punishment” and thus violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013)). -4- J-A25041-22 retroactive application of SORNA was an ex post facto violation.7 On December 16th, Counsel

2019Appellant seemingly attempts to satisfy the timeliness exception of Section 9545(b)(1)(iii) by arguing that the lifetime registration requirement imposed upon him pursuant to Megan’s Law II is unconstitutional under our Supreme Court decision in Muniz (holding that SORNA's registration provisions are punitive and that retroactive application of those provisions violates the federal ex post facto clause, as well as the ex post facto clause of Pennsylvania's Constitution) and that his designation as an SVP is unconstitutional under this Court’s subsequent decision in Commonwealth v. Butler, 173

2005In Winklespecht v. Pa. Bd. of Probation and Parole, 571 Pa. 685 , 813 A.2d 688 (2002) (plurality), this Court was faced, inter alia, with the exact question Appellant presents today: Does application of the 1996 amendment to an inmate sentenced prior to the promulgation of the amendment violate the ex post facto clause? [9] Mr. Justice Eakin authored the Opinion Announcing the Judgment of the Court, [10] which determined that the amendment to the Parole Act did not increase an inmate's punishment and merely reordered the considerations for parole, which did not rise to an ex post facto violati

2005In Winklespecht v. Pa. Bd. of Probation and Parole, 571 Pa. 685 , 813 A.2d 688 (2002) (plurality), this Court was faced, inter alia, with the exact question Appellant presents today: Does application of the 1996 amendment to an inmate sentenced prior to the promulgation of the amendment violate the ex post facto clause? [9] Mr. Justice Eakin authored the Opinion Announcing the Judgment of the Court, [10] which determined that the amendment to the Parole Act did not increase an inmate's punishment and merely reordered the considerations for parole, which did not rise to an ex post facto violati

2023Commonwealth v. Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016)[,] citing Commonwealth v. Young, [] 637 A.2d 1313 ([Pa.] 1993)[.] The purpose of this proscription is “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Grady, [] 486 A.2d 962, 964 ([Pa. Super.] 1984)[,] quoting Commonwealth v. Hoetzel, [] 426 A.2d 669, 672 ([Pa. Super.] 1981)[.] We have explained that “a state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment th

2023Commonwealth v. Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016)[,] citing Commonwealth v. Young, [] 637 A.2d 1313 ([Pa.] 1993)[.] The purpose of this proscription is “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Grady, [] 486 A.2d 962, 964 ([Pa. Super.] 1984)[,] quoting Commonwealth v. Hoetzel, [] 426 A.2d 669, 672 ([Pa. Super.] 1981)[.] We have explained that “a state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and ‘inflicts a greater punishment th

2020In Smith v. Doe I, 538 U.S. 84 (2003), the High Court, reviewing an ex post facto challenge to Alaska’s version of Megan’s Law, applied a test developed in Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963).8 As will be discussed in detail infra, this Court applied the Mendoza-Martinez test and concluded that the Megan’s Law II registration, notification, and counseling provisions, applicable to 8 In Smith, the United States Supreme Court reviewed the constitutionality of Alaska’s Sex Offender Registration Act, which involved retroactive quarterly registration and notification provisions that re

2020We analyzed the entirety of subchapter I of Act 29 as applied to the petitioner under the ex post facto analysis set forth by the United States Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and used by our Supreme Court in Muniz.

2024This Court affirmed, observing that in Commonwealth v. Wolfe, 605 A.2d 1271 (Pa.Super. 1992), we held “that ‘a challenge to the discretionary aspects of sentencing is not a proper basis for habeas corpus relief.’” Ross, 2022 WL 816811 at *2 (quoting Wolfe, 605 A.2d at 1274 ). ____________________________________________ 1 For example, in 2013 he filed a PCRA petition asserting that he was entitled to relief based upon Peugh v. United States, 569 U.S. 530 (2013), in which the High Court held that an ex post facto violation occurs when a defendant is sentenced based upon stricter guidelines prom

2020Therefore, the ex post facto clause “safeguards ‘a fundamental fairness interest . . . in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.’” Id. (quoting Carmell v. Texas, 529 U.S. 513, 533 (2000)).