J-E02006-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

CHAD LAMAR DREAKFORD

Appellant No. 365 WDA 2018

Appeal from the PCRA Order February 13, 2018

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): CP-33-CR-0000024-2016

BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., 

DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.

DISSENTING MEMORANDUM BY STABILE, J. FILED FEBRUARY 09, 2021

I respectfully dissent. The Majority concludes that Appellant’s conviction 

under 18 Pa.C.S.A. § 4915.1 violates ex post facto principles because (1) 

Section 4915.1 requires proof that Appellant violated SORNA,

1 (2) Appellant’s 

crime preceded the effective date of SORNA, and therefore, (3) SORNA cannot 

apply retroactively to him. Under our Supreme Court’s analysis in 

Commonwealth v. Muniz, 164 A.3d 1198 (Pa. 2017), proper analysis of the 

ex post facto question requires examination of whether the relevant provisions 

of SORNA disadvantage Appellant more than Maryland’s sexual offender laws. 

I would remand this case to the trial court with instructions to perform this 

analysis. 

____________________________________________

1 SORNA is an acronym for the Sexual Offender Registration and Notification 

Act, 42 Pa.C.S.A. §§ 9799.10 to 9799.41 (effective Dec. 20, 2012).
J-E02006-19

- 2 -

On October 3, 1996, Appellant was convicted of rape in Maryland. 

Appellant concedes that under Maryland law, this conviction required him to 

register as a sex offender for life. Appellant’s Brief at 5. 

Effective April 22, 1996, the legislature expanded Pennsylvania’s 

Sentencing Code to include Subchapter H, “Registration of Sexual Offenders,” 

under which sex offenders had to register for no more than ten years. 42 

Pa.C.S.A. §§ 9791-9799 (repealed). The legislature subsequently amended 

subchapter H several times, including the passage of SORNA in 2011. SORNA 

became effective in Pennsylvania on December 20, 2012, and under its 

provisions, many sex offenders, including rapists such as Appellant, were 

required to register for life.

In 2013, Appellant was convicted in Virginia for failing to register as a 

sex offender under the laws of that state. Subsequently, Appellant moved to 

Pennsylvania. In 2015, while in Pennsylvania, Appellant was charged with 

one count2 of failing to comply with SORNA’s requirement to “verify his 

address or be photographed as required under 42 Pa.C.S. § 9799.15, 9799.19 

or 9799.25.”

3

 18 Pa.C.S.A. § 4915.1(a)(2). Appellant pleaded guilty and 

ultimately was sentenced to six to twenty years’ imprisonment.

____________________________________________

2 The information against Appellant originally had two counts, but one was 

nolle prossed.

3

It is unclear whether Appellant failed to verify his address or be 

photographed when he initially moved into Pennsylvania, or whether he 

initially performed these steps but failed to update them later. Either one of 

these omissions constitutes a violation of Section 4915.1(a)(2).
J-E02006-19

- 3 -

Appellant raises a single argument: application of SORNA to his case 

violates ex post facto principles because his conviction for a sexual offense in 

Maryland took place in 1996, sixteen years before SORNA became effective. 

Appellant’s Brief at 15. Citing Muniz and this Court’s recent decision in 

Commonwealth v. Santana, —A.3d—, 2020 WL 6145155 (Pa. Super., Oct. 

20, 2020) (en banc), the Majority agrees with Appellant. I dissented in 

Santana and, based on my interpretation of Muniz, dissent in this case as 

well.

Our Supreme Court stated in Muniz that two conditions are essential 

for a criminal or punitive law4to be deemed ex post facto: “it must be 

retrospective, that is, it must apply to events occurring before its enactment, 

and it must disadvantage the offender affected by it.” Id., 164 A.3d at 

1195-96 (emphasis added). 

In Santana, the defendant was convicted of violating 18 Pa.C.S.A. § 

4915.1(a)(3), a different subsection than Section 4915.1(a)(2), the 

subsection to which Appellant pled guilty. Section 4915.1(a)(3) provides that 

a defendant who is subject to registration under SORNA commits an offense 

if he “knowingly fails to . . . provide accurate information when registering 

under 42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.” Id. This Court held en 

banc that SORNA’s registration requirements are ex post facto punishments 

____________________________________________

4 Muniz held that SORNA is punitive in effect even though it expressly claimed 

to have a civil and remedial purpose. Id. 164 A.3d at 1218.
J-E02006-19

- 4 -

for a defendant who failed to register in Pennsylvania for a pre-SORNA crime 

that he committed in New York. 

My dissent in Santana pointed out that a proper approach is not just to 

perform the first step of the test articulated in Muniz (whether SORNA applies 

to events preceding its enactment) but to perform the second step as well 

(whether Section 4915.1(a)(3)’s registration requirements impose a greater 

disadvantage upon the defendant than New York’s sexual offender law). I 

further wrote that proper second-step analysis of Section 4915.1(a)(3) 

required analysis of the provisions referenced therein, 42 Pa.C.S.A. §§ 

9799.15, 9799.19 and 9799.25. I emphasized that the Majority painted with 

too broad a brush. At issue, like here, was only whether the convictions for 

violating specific provisions of SORNA registration violated ex post facto

considerations. Resolution of that question did not require that we compare 

New York’s and Pennsylvania’s registration laws in their entirety. Rather, the 

second part analysis only required that we examine whether the Pennsylvania 

registration requirements offended by a defendant and that led to his 

convictions were more onerous than the registration requirements of the state 

under which a defendant already must register.

5

 Based on my review of all of 

those provisions, I concluded in Santana that SORNA did not disadvantage 

____________________________________________

5

I believe it is appropriate only to examine whether the discrete registration 

violations resulting in convictions implicate ex post facto concerns regardless 

of whether other provisions of our law may be more onerous if applied to a 

defendant, since the various registration provisions under SORNA should be 

deemed severable. See 1 Pa.C.S.A. § 1925 (“[t]he provisions of every statute

shall be deemed severable.....).
J-E02006-19

- 5 -

the defendant more than New York’s sexual offender registration laws, and 

thus, there was no ex post facto violation. Id., 2020 WL at 6145155, *13.

In the present case, as it did in Santana, the Majority performs the first 

step of the Muniz test but not the second. In addition, it appears from the 

record that the trial court did not perform the second step either. Accordingly, 

I would remand this case to the trial court for the comprehensive second-step 

analysis required under Muniz. I take the opportunity below to define 

precisely what I believe this analysis entails.

Section 4915.1(a)(2) provides that an individual who is required to 

register as a sexual offender in Pennsylvania commits an offense if he 

knowingly fails to “verify his address or be photographed as required under 

42 Pa.C.S. § 9799.15, 9799.19 or 9799.25.” Id. 

SORNA is applicable to Appellant under section 9799.13(7), which 

provides:

§ 9799.13. Applicability.

The following individuals shall register with the Pennsylvania State 

Police as provided in sections 9799.15 (relating to period of 

registration), 9799.19 (relating to initial registration) and 9799.25 

(relating to verification by sexual offenders and Pennsylvania 

State Police) and otherwise comply with the provisions of this 

subchapter:

***

(7) A sexual offender required to register in a sexual offender 

registry in another jurisdiction or in a foreign country based upon 

a conviction for a sexually violent offense or under a sexual 

offender statute in the jurisdiction where the individual is 

convicted and:
J-E02006-19

- 6 -

(i) has a residence in this Commonwealth or is a transient;

(ii) is employed within this Commonwealth; or

(iii) is a student within this Commonwealth.

42 Pa.C.S.A. § 4799.13.

In pertinent parts, sections 4799.15, 4799.19, and 4799.25, referenced 

in Section 4915.1(a)(2), provide:

§ 9799.15. Period of registration.

(a) Period of registration.--Subject to subsection (c), an individual 

specified in section 9799.13 (relating to applicability) shall register 

with the Pennsylvania State Police as follows:

***

(3) An individual convicted of a Tier III sexual offense shall 

register for the life of the individual.

***

(e) Periodic in-person appearance required.--Except as provided 

in subsection (f) and subject to subsections (g) and (h), an 

individual specified in section 9799.13 shall appear in person at 

an approved registration site to provide or verify the information 

set forth in section 9799.16(b) (relating to registry) and to be 

photographed as follows:

***

(3) An individual convicted of a Tier III sexual offense shall appear 

quarterly.

42 Pa.C.S.A. § 9799.15.

§ 9799.19. Initial registration.

(a) General rule.--An individual set forth in section 9799.13 

(relating to applicability) shall initially register with the 

Pennsylvania State Police as set forth in this section.

***
J-E02006-19

- 7 -

(i) Initial registration if convicted or adjudicated delinquent 

outside Commonwealth.--

(1) An individual subject to registration under section 9799.13(7), 

(7.1) or (7.2) shall appear in person at an approved registration 

site to provide the information set forth in section 9799.16(b) to 

the Pennsylvania State Police within three business days of 

establishing residence, commencing employment or commencing 

enrollment as a student within this Commonwealth. In addition, 

the individual shall comply with the other provisions of this 

subchapter, including section 9799.15 (relating to period of 

registration).

42 Pa.C.S.A. § 9799.19.

§ 9799.25. Verification by sexual offenders and Pennsylvania 

State Police.

(a) Periodic verification.--Except for initial registration as provided 

in section 9799.19 (relating to initial registration) and in 

accordance with section 9799.15(a) (relating to period of 

registration), sexual offenders shall verify the information 

provided in section 9799.16(b) (relating to registry) and be 

photographed as follows:

***

(3) An individual convicted of a Tier III sexual offense shall appear 

in person at an approved registration site quarterly.

42 Pa.C.S.A. § 9799.25.

Section 9755.16(b), relating to the registration information to be 

provided by a sexual offender, referenced in all three of the above provisions, 

provides in pertinent part:

§ 9799.16. Registry.

(b) Information provided by sexual offender.--An individual 

specified in section 9799.13 (relating to applicability) shall provide 

the following information which shall be included in the registry:
J-E02006-19

- 8 -

(1) Primary or given name, including an alias used by the 

individual, nickname, pseudonym, ethnic or tribal name, 

regardless of the context used and any designations or monikers 

used for self-identification in Internet communications or 

postings.

(2) Designation used by the individual for purposes of routing or 

self-identification in Internet communications or postings.

(3) Telephone number, including cell phone number, and any 

other designation used by the individual for purposes of routing or 

self-identification in telephonic communications.

***

(9) Name and address where the individual is employed or will be 

employed. In order to fulfill the requirements of this paragraph, if 

the individual is not employed in a fixed workplace, the individual 

shall provide information regarding general travel routes and 

general areas where the individual works.

42 Pa.C.S.A. § 9799.16(b).

Assuming for the moment Appellant is subject to SORNA's registration 

requirements, Appellant qualifies as a Tier III sex offender. As such, he had

an initial and continuing duty to verify his address or be photographed under 

the above-cited provisions of SORNA, and his failure to do so on a quarterly 

basis constitutes a violation of Section 4915.1(a)(2). 

The next step required under Muniz, which I would have the trial court 

perform, is to determine whether the above cited provisions of Sections 

4799.15, 4799.19, and 4799.25 disadvantage Appellant more than Maryland’s 

sexual offender registration laws. If they do, I would conclude that there is 

an ex post facto violation. If they do not, I would conclude that there is no ex 

post facto violation. See Santana, 2020 WL 6145155, *13 (concluding, after 

comparison of relevant provisions of SORNA with relevant provisions of New 
J-E02006-19

- 9 -

York sexual offender registration law, that there was no ex post facto 

violation).

Accordingly, I would remand this case for the trial court to carry out the 

analysis I have outlined above.