J-S34014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES HUNTER SPENCE

Appellant No. 1859 MDA 2015

Appeal from the Order October 5, 2015

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-MD-0001832-2015

BEFORE: PANELLA, J., STABILE, J., and JENKINS, J. 

MEMORANDUM BY PANELLA, J. FILED JULY 05, 2016

Appellant, James Hunter Spence, appeals from the October 5, 2015 

order denying his Petition to Terminate Sexual Offender Registration. We 

affirm. 

The trial court summarized the history of this case as follows.

[Appellant] pleaded guilty to Statutory Rape in the 

Commonwealth of Virginia. As part of his negotiated plea 

agreement[,] he was sentenced to 90 days[’] incarceration and 

was to register as a sex offender for a period of 10 years. 

[Appellant’s] registration period began on October 29, 2003, and 

was set to expire on October 29, 2013. Shortly after his release 

from incarceration in Virginia, [Appellant] moved to the 

Commonwealth of Pennsylvania. Upon moving to York, 

Pennsylvania, [Appellant] submitted the proper forms to 

Interstate Parole Services in order to have his supervision 

transferred to Pennsylvania. Approximately a month after 

moving to Pennsylvania, [Appellant] received notice from 

Virginia that he was to submit a Sexual Offender Registration 

Notification to Pennsylvania authorities. [Appellant] did so on 

December 10, 2003. 
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On December 3, 2012, [Appellant] received notice that 

there were significant changes to the law regarding sexual 

offender registration periods. On April 22, 2013, [Appellant] was 

designated as a Tier 3 sexual offender, and he was informed that 

instead of having to register for 10 years, he was now required 

to register for life pursuant to 42 Pa.C.S.A. § 9799.4.

On June 2, 2015, [Appellant], through counsel, filed a 

motion requesting that [the lower court] terminate [his] 

registration requirements. [Appellant] argued that the 

Commonwealth’s retroactive application of SORNA to the Petition 

violated the ex post facto clause of both the federal and state 

constitutions. Upon receiving [Appellant’s] motion [the court] 

scheduled a hearing for August 6, 2015. ...

Trial Court Opinion, 10/5/15 at 1-2. Following the hearing, the trial court 

ordered the parties to submit briefs in support of their respective positions. 

The trial court subsequently entered an opinion and order denying 

Appellant’s motion to terminate sexual offender registration. This timely 

appeal followed. 

Appellant raises this issue for our review.

Whether the honorable trial court erred in denying the 

Appellant’s petition in that the effects of SORNA violated the ex 

post facto clause in that the effects are not collateral and are 

punitive and therefore may not be applied retroactively. 

Appellant’s Brief at 4 (italics added and unnecessary capitalization omitted).

Initially, we note this issue presents a question of law, and therefore, 

our standard of review is de novo and our scope of review is plenary. See 

Commonwealth v. Britton, 134 A.3d 83, 87 (Pa. Super. 2016).

This Court previously addressed whether SORNA constitutes an ex post 

facto law under the federal constitution in Commonwealth v. Perez, 97 
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A.3d 747 (Pa. Super. 2014). We recently summarized our analysis in Perez

as follows.

We observed that such a challenge must be evaluated under a 

two-step test, which was established by the U.S. Supreme Court 

in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 

(2003). Perez, 97 A.3d at 751 (indicating that under Smith the 

two-step test requires the court to determine (1) whether the 

legislature intended the statutory scheme to be punitive, and (2) 

if not, whether the statutory scheme is so punitive in either its 

purpose or effect so as to negate the legislature's intention).

With regard to the first step under Smith, we held the 

legislature specifically indicated that SORNA “shall not be 

construed as punitive[,]” and, therefore, the legislative intent in 

enacting the law was not to impose punishment. Perez, 97 A.3d 

at 751 (citing 42 Pa.C.S.A. § 9799.11(b)(2) (emphasis 

omitted)). Turning to the second step under Smith, this Court 

addressed whether SORNA constitutes “punishment” under the 

multi-factor test articulated in Mendoza–Martinez. After a 

thorough review, we concluded SORNA does not constitute 

“punishment.” Perez, supra. Specifically upon balancing the 

Mendoza–Martinez factors, this Court held the following:

Based on all of the[ ] considerations, we ultimately 

conclude that [the appellant] has not shown by the 

“clearest proof” that the effects of SORNA are sufficiently 

punitive to overcome the General Assembly's preferred 

categorization. Therefore, we further conclude that the 

retroactive application of SORNA to [the appellant] does 

not violate the Ex Post Facto Clause of the Federal 

Constitution.

Britton, 134 A.3d at 87-88 (citing Perez, 97 A.3d at 757). 

Here, Appellant does not actually refute the analysis in Perez, so 

much as he contends that the decision was wrongly decided. We find no 

reason to revisit the sound reasoning of that decision. In any event, absent 

the existence of contrary, intervening United States or Pennsylvania 
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Supreme Court precedent, Superior Court panels are bound by prior panel 

decisions of the Superior Court.1 See Commonwealth v. Prout, 814 A.2d 

693, 695 n. 2 (Pa. Super. 2002) (per curiam). Accordingly, based on our 

decision in Perez, we find Appellant is not entitled to relief on his federal ex 

post facto claim.2

Order affirmed. 

____________________________________________

1 We note that our Supreme Court has granted allocatur in Commonwealth 

v. Gilbert, --- A.3d ---, 2016 WL 1615797 (Pa., filed April 22, 2016), to 

determine, inter alia, whether SORNA violates the Ex Post Facto Clause of 

the United States and Pennsylvania Constitutions. While that decision is 

pending, Perez remains controlling. 

2 Although Appellant alludes in his brief to the fact that both the United 

States and Pennsylvania Constitutions afford separate bases for proscribing 

ex post facto laws, see Appellant’s Brief at 16, he does not set forth a 

separate analysis that retroactive application of SORNA violates the 

Pennsylvania Constitution’s Ex Post Facto Clause. We therefore need not 

address this averment further.

We further note that although Appellant averred in his Petition to 

Terminate Sexual Offender Registration that the lifetime registration 

requirement under SORNA constituted a violation of the plea agreement 

negotiated in Virginia, see Petition, 6/2/15 at ¶ 20, he does not develop this 

argument on appeal. We therefore presume Appellant has abandoned this 

issue. See Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 

2013) (finding undeveloped claim to be waived). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/5/2016