J-A02031-15

2015 PA Super 89

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES GIANNANTONIO

Appellant No. 1669 EDA 2014

Appeal from the Order May 7, 2014

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-MD-000712-2013

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J. 

OPINION BY PANELLA, J. FILED APRIL 20, 2015

In June 2005, Appellant, James Giannantonio, entered into a 

negotiated plea agreement in federal court to child pornography charges, 

and served a term of incarceration. Because of his conviction, Giannantonio 

was required to comply with applicable state laws regarding sex offender 

registration after his release from prison. At the time of his release in 2007, 

Pennsylvania’s Megan’s Law III required Giannantonio to register with the 

Pennsylvania State Police (“PSP”) for ten years. In 2012, however, 

Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”)1

____________________________________________

1 SORNA, codified at 42 Pa.C.S.A. §§ 9799.10-9799.41, became effective on 

December 20, 2012. In this Opinion, we refer to this statute as “SORNA.” 

Pennsylvania courts have also referred to the current statute as “Megan’s 

Law IV,” “Act 111 of 2011,” “Adam Walsh Child Protection and Safety Act,” 

and the “Adam Walsh Act.” See, e.g., Commonwealth v. M.W., 39 A.3d 

958, 968 (Pa. 2012) (Baer, J., concurring); Coppolino v. Noonan, 102 

(Footnote Continued Next Page)
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became effective and Giannantonio’s required registration period changed 

from ten years to fifteen years. He commenced the instant action in June 

2013, requesting that the trial court enter an order barring application of 

SORNA to his case, arguing that it was not in effect at the time of his 

release. The trial court denied his petition and this timely appeal followed. 

Giannantonio raises two primary issues on appeal. First, whether an 

implied contract existed between Giannantonio and the Commonwealth as a 

result of his federal plea agreement that bars the application of SORNA to 

his conviction; and, second, whether SORNA, as applied to Giannantonio, 

violates the ex post facto provision of the United States Constitution.2 We 

affirm. 

Our legal discussion necessitates a more detailed procedural history of 

the case and a review of the relevant provisions of SORNA. In June 2005, 

with the assistance of counsel, Giannantonio pled guilty in federal court to 

one count of the crime of possession of child pornography, 18 U.S.C.A. § 

(Footnote Continued) _______________________

A.3d 1254 (Pa. Cmwlth. 2014); Commonwealth v. Partee, 86 A.3d 245, 

246 (Pa. Super. 2014); Commonwealth v. Hainesworth, 82 A.3d 444, 

445 (Pa. Super. 2013), appeal denied, 95 A.3d 276 (Pa. 2014). 

2 Giannantonio makes no argument with regard to Article I, Section 17 of the 

Pennsylvania Constitution, which also prohibits ex post facto laws. This is of 

no significance because our Supreme Court has previously declined to hold 

that this provision of the Pennsylvania Constitution imposes any greater 

protections than Article I, Section 10 of the United States Constitution. See

Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa. 1999).
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2252A(a)(4)(b). The United States District Court subsequently sentenced 

Giannantonio to incarceration in a federal penitentiary for a period of one 

year and one day, to be followed by three years of supervised release. The 

federal court’s judgment order included a standard list of five requirements 

for supervised release, each followed by a box to be checked. 

Giannantonio’s judgment order contained the following standard paragraph, 

which was not checked:

The defendant shall register with the state sex offender 

registration agency in the state where the defendant resides, 

works, or is a student, as directed by the probation officer. 

(Check here). 

Id., at 3. 

The federal order is devoid of any reference to an agreement with 

either federal prosecutors or the Commonwealth of Pennsylvania regarding 

state registration following release from prison.

After his release from prison in May 2007, Giannantonio re-established 

residency in Pennsylvania. On June 20, 2007, he began registering with the 

PSP as required by Megan’s Law III, then in effect.3 The relevant provisions 

of Megan’s Law III required Giannantonio to register annually as a sexoffender for ten years.4

____________________________________________

3 42 Pa.C.S.A. § 9795.2(b)(4) (expired). 

4 42 Pa.C.S.A. § 9795.2(b)(4)(iii) (expired). 
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The Pennsylvania General Assembly passed SORNA in 2011 and the 

governor signed it into law on December 20, 2011. The passage of SORNA 

brought Pennsylvania into compliance with the Adam Walsh Child Protection 

and Safety Act of 2006, 42 U.S.C. §§ 16901-16991, and provides a means 

for the public and law enforcement officials to obtain information on sex 

offenders. SORNA includes legislative findings and a declaration of policy. It 

explains that the “Commonwealth’s laws regarding registration of sexual 

offenders need to be strengthened.” 42 Pa.C.S.A. § 9799.11(a)(2). “The 

Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism 

for the Commonwealth to increase its regulation of sexual offenders in a 

manner which is nonpunitive but offers an increased measure of protection 

to the citizens of this Commonwealth.” Id. 

SORNA expanded the list of offenses requiring registration, and 

grouped offenders into one of three “Tiers,” depending on the severity of the 

offense. See 42 Pa.C.S.A. § 9799.14(a)-(d). The legislation changed the 

mandatory registration periods for adults to fifteen years, twenty-five years, 

and lifetime, depending upon the offense and Tier classification. See 42 

Pa.C.S.A. § 9799.15(a). Offenders classified in Tier I are required to register 

in person annually with the PSP, see 42 Pa.C.S.A. § 9799.15(e)(1), and 

provide the information listed in 42 Pa.C.S.A. § 9799.16(b). When it 

became effective, SORNA applied to individuals already required to register, 

and anyone who was already subject to registration was to “receive credit 
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for any time registered with the PSP prior to December 20, 2012.” 42 

Pa.C.S.A. § 9799.10(4). See also 42 Pa.C.S.A. § 9799.15(a.1)(1). The 

prior registration requirements of Megan’s Law III expired when SORNA 

became effective on December 20, 2012. 

On December 3, 2012, because Giannantonio was already subject to 

registration, the PSP notified him of the applicable changes and, pursuant to 

SORNA, classified him as a Tier I sex-offender. See 42 Pa.C.S.A. § 

9799.14(b)(13). This classification requires Giannantonio to register 

annually for a period of fifteen years, see 42 Pa.C.S.A. § 9799.15(a)(1) and 

(e), thus changing his registration end date from June 2017 to June 2022. 

In response to the notification, Giannantonio filed, through counsel, a 

“Petition to Enforce Implied Contract and/or For Writ of Habeas Corpus 

and/or For Exemption from Applicability to Continue to Re-Register Under 

Pennsylvania’s ‘New’ Megan’s Law as a 15-year Registrant,” in the Court of 

Common Pleas of Delaware County. The petition requested an exemption 

from SORNA’s registration requirements. The trial court held a hearing on 

January 7, 2014, during which Giannantonio testified that he had pled guilty 

in exchange for a term of one and a half years’ incarceration followed by 

three years’ supervision. He acknowledged that he had been aware when he 

entered the plea that upon his release from prison, he would be required to 

register as a sex offender pursuant to the applicable law then in effect in the 

state in which he chose to reside. See Notes of Testimony Hearing (“N.T.”), 
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1/7/14, at 7-8. Giannantonio was the sole witness to testify at the hearing. 

Significantly, he did not offer into evidence a written plea agreement, the 

notes of testimony from the federal proceedings, or evidence from the 

attorney who had assisted him in negotiating the federal plea. See Trial 

Court Opinion, dated 7/14/14, at 14. The trial court denied the petition. 

This timely appeal followed.

We will reverse a denial or grant of a habeas corpus petition only for a 

“manifest abuse of discretion.” Commonwealth v. Miller, 787 A.2d 1036, 

1038 (Pa. Super. 2001). 

Giannantonio argues that when he entered into the plea agreement in 

2006 with the federal prosecutor, it was with the understanding “easily 

inferred from the surrounding circumstances,” that he would be required to 

register as a sex offender in the Commonwealth of Pennsylvania for ten 

years. Appellant’s Brief at 10. He maintains that because of this 

agreement, the Commonwealth entered into an implied contract with him. 

Alternatively, he argues that the Commonwealth was a “quasi party or thirdparty beneficiary to the [federal] plea agreement.” Id. Giannantonio 

further contends that the Commonwealth breached that alleged agreement 

in 2012 by requiring him to register under the new requirements of SORNA, 

and asserts that this Court “should enforce the implied contract as is 

required by fundamental fairness and contract law, and the Contracts 
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Clauses” of the Constitutions of the United States and Pennsylvania. Id., at 

9. 

The Commonwealth responds that it does not owe a contractual duty 

to Giannantonio because it was not a party to the plea in federal court, and 

the record contains no evidence that the Commonwealth took any action 

whatsoever with respect to his federal guilty plea. Therefore, the 

Commonwealth argues, it cannot be seriously contended that the 

Commonwealth acted in any way that would create an inference that it 

entered into an agreement, express or implied, with Giannantonio regarding 

sexual offender registration.

Giannantonio’s argument that the Commonwealth entered into an 

implied contract with him is untenable. “An implied contract is an 

agreement which legitimately can be inferred from the intention of the 

parties as evidenced by the circumstances and the ordinary course of dealing 

and the common understanding of men.” Martin v. Little, Brown and Co., 

450 A.2d 984, 987 (Pa. Super. 1981) (citation and internal quotation marks 

omitted).

Nowhere in the record is there any indication that the Commonwealth 

was a party to Giannantonio’s plea agreement. In fact, there is absolutely 

nothing in the record demonstrating that state prosecutors or the PSP 

participated in Giannantonio’s plea agreement in any way. The record 

indicates that Giannantonio entered into a plea agreement with a federal 
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prosecutor after being charged with federal offenses stemming from his 

possession of child pornography. There is no indication of any involvement 

by Commonwealth representatives. Because the Commonwealth had no 

involvement or participation in the plea negotiation there is no implied 

contract between Giannantonio and the Commonwealth. 

To circumvent this deficiency, Giannantonio alternatively argues that 

the “Commonwealth, though not a direct party to the plea agreement, is a 

quasi-party or third party beneficiary to all Megan’s Law cases involving plea 

agreements.” Appellant’s Brief at 10. No case law or other authority is cited 

in support of this contention. 

In Guy v. Liederbach, 459 A.2d 744 (Pa. 1983), our Supreme Court 

explained that Section 302 of the Restatement (Second) of Contracts 

(1979), mandates the following two-part test to determine whether one is a 

third-party beneficiary to a contract:

(1) the recognition of the beneficiary’s right must be appropriate 

to effectuate the intention of the parties, and (2) ... the 

circumstances indicate that the promisee intends to give the 

beneficiary the benefit of the promised performance.

Id., at 751.

Of course, in the instant case, there is no express contract. See, e.g., 

Appellant’s Brief at 10 (noting “[e]ven though the parties did not create an 

express written agreement...”). Under the aforementioned test, however, 

even when there is no express contractual clause, an entity may still be a 

third-party beneficiary. However, “Guy did not alter the requirement that in 
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order for one to achieve third-party beneficiary status, that party must show 

that both parties to the contract so intended, and that such intent was within 

the parties’ contemplation at the time the contract was formed.” Burks v. 

Federal Ins. Co., 883 A.2d 1086, 1088 (Pa.Super. 2005) (emphasis in 

original). 

We agree with the trial court that there was no intent here to create 

any contractual obligations on the Commonwealth of Pennsylvania. 

Pennsylvania was not a party to the agreement in any manner, thereby 

negating any notion of a “quasi-party.” Furthermore, there is no evidence 

that Pennsylvania was a third-party beneficiary. Not only was there no 

intent to benefit Pennsylvania, no benefit at all inured to Pennsylvania 

because of the guilty plea. The statutorily mandated burden to supervise 

Giannantonio passed to Pennsylvania once he resumed residency here 

following his release, but certainly no benefit was realized. 

Giannantonio also argues that SORNA cannot apply to him because his 

plea deal was structured around the 10-year Megan’s Law III registration 

period then in effect. In support, he relies on Commonwealth v. 

Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (en banc), appeal denied, 95 

A.3d 276 (Pa. 2014), and Commonwealth v. Partee, 86 A.3d 245 (Pa. 

Super. 2014), appeal denied, 97 A.3d 744 (Pa. 2014). The Commonwealth 

responds that Giannantonio mistakenly relies on Hainesworth and Partee

because the evidence of record does not even demonstrate that the ten-year 
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registration period was a negotiated term of the federal plea, let alone 

something to which the Commonwealth acquiesced. The Commonwealth is 

correct; Hainesworth and Partee are inapplicable. Hainesworth and 

Partee stand for the proposition that this Court will specifically enforce 

parties’ plea bargains. 

In Hainesworth, this Court affirmed the trial court’s decision that the 

retroactive application of SORNA would offend a negotiated term in the plea 

agreement between the Commonwealth and Hainesworth. See 82 A.3d at 

450. In Partee, the panel found that Partee’s negotiated plea “was 

structured so that he would only be subject to a ten-year rather than a 

lifetime reporting requirement[.]” 86 A.3d at 249. The panel explained that, 

“[u]nder our reasoning in Hainesworth, [Partee] arguably would be entitled 

to the benefit of that bargain.” Id. The panel nevertheless rejected Partee’s 

challenge because he had violated his initial plea agreement by violating the 

terms of his probation, holding that, “having failed to abide by the terms of 

the plea bargain, that agreement is no longer in effect, and hence, [Partee] 

is not entitled to specific performance.” Id., at 250. 

Unlike in Hainesworth and Partee, there is no evidence here that 

Giannantonio’s guilty plea was negotiated or structured to insure that he 

would register for only a ten-year period. The record contains neither a 

colloquy from the federal guilty plea or sentencing hearings nor testimony or 

any other evidence demonstrating that counsel negotiated a specific ten-
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year registration period. Rather, the guilty plea required Giannantonio to 

register and report pursuant to the law of the state in which he would reside 

following his release (not necessarily Pennsylvania). We agree with the trial 

court’s conclusion that “because [Giannantonio] has failed to demonstrate 

through credible evidence that registration for a ten-year period was a 

bargained[-]for element of his negotiated plea, the petition for relief from 

SORNA’s requirements for an additional [five] years was properly denied.” 

Trial Court Opinion, dated 7/14/14, at 13.

Giannantonio next avers that “SORNA is unconstitutional as enacted 

and applied to him because it substantially impairs the implied contract in 

violation of the contract clauses of the U.S. and Pennsylvania Constitutions.” 

Appellant’s Brief at 16. As we have already found that there was no contract 

between Giannantonio and the Commonwealth, we need not address this 

contention further. 

Giannantonio’s final contention also lacks merit. In this argument, 

Giannantonio concedes that prior versions of Pennsylvania’s Megan’s Law 

have been determined to be collateral consequences of a conviction, and 

therefore, the laws were deemed constitutional. However, he argues that 

the aggregated requirements of SORNA are much more restrictive than the 

prior versions and are accordingly “punitive in nature as applied to [him],” 

thus violating the ex post facto clause of the United States constitution. 

Appellant’s Brief at 25. He blames SORNA for requiring that he disclose 
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personal information that was not required under Megan’s Law III, which he 

alleges led the Border Patrol to conduct an intrusive search of his person and 

property upon his return from Bermuda. He also emphasizes the 

embarrassment and inconvenience he feels for having to appear in-person to 

register for an additional five years. Giannantonio also claims that, because 

SORNA did not afford him a hearing before he was classified as a Tier I 

offender, his right to due process was violated. See Appellant’s Brief at 39.5,

6

The Commonwealth responds that the legislature’s express intent in 

enacting SORNA was “to provide a non-punitive statutory scheme to protect 

____________________________________________

5 Giannantonio also summarily argues that “SORNA has no rational basis in 

law” and “SORNA is unconstitutional as it lacks due process.” Appellant’s 

Brief at 29 and 38. He provides no discussion of, or citation to, authority 

pertaining to substantive and procedural due process. He also fails to cite to 

or analyze any case law pertaining to the test used to determine whether a 

statute has a “rational basis” to pass constitutional muster. Because his “due 

process position is underdeveloped, ... we will not determine whether 

SORNA’s retroactive increase of registration requirements can withstand 

either strict scrutiny or the rational basis test.” Commonwealth v. Nase, 

104 A.3d 528, 530 (Pa. Super. 2014). This undeveloped claim is waived.

6 Gionnantonio also contends that SORNA violates due process because 

SORNA does not provide notice for an end date for registration, nor does it 

provide a hearing for offenders “to challenge the requirements imposed upon 

him.” Appellant’s Brief at 39. A simple calculation of adding the number of 

years of required registration onto the year of release quickly provides an 

end date. As demonstrated by the filing of his petition for habeas corpus, 

his participation in the hearing before the trial court, and the filing of the 

instant appeal, Giannantonio has been provided, and taken full advantage 

of, all available processes to challenge the requirements imposed on him. 

Accordingly, his due process claim is without merit.
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the general public” and our Supreme Court has twice held that substantially 

similar language in previous versions of SORNA demonstrates a non-punitive 

intent. Appellee’s Brief at 27 (citing Commonwealth v. Williams, 832 

A.2d 962, 971 (Pa. 2003), and Commonwealth v. Gaffney, 733 A.2d 616, 

619 (Pa. 1999)). The Commonwealth asserts that SORNA is a non-punitive, 

collateral consequence and, therefore, retroactive enforcement does not 

violate the federal ex post facto clause. Both parties analyze SORNA using 

the seven factors provided in Kennedy v. Mendoza-Martinez, 372 U.S. 

144, 168-69 (1963), a test used to determine whether the effects of a 

statute are punitive or civil in nature. 

An issue involving a constitutional challenge presents a question of 

law. Thus, our standard of review is de novo and our scope of review is 

plenary. See Commonwealth v. Molina, 104 A.3d 430, 441 (Pa. 2014). 

This Court recently reviewed, analyzed, and rejected an ex post facto

argument nearly identical to the one raised here. In Commonwealth v. 

Perez, 97 A.3d 747 (Pa. Super. 2014), the appellant pled nolo contendere

to one count of indecent assault. The trial court sentenced him to a term of 

nine to twelve months’ imprisonment, plus two years’ probation, and 

ordered him to register as a sex offender for a period of twenty-five years 

pursuant to the requirements under SORNA. On appeal, Perez argued that 

the application of SORNA’s registration requirement period was prohibited 

under the ex post facto clauses of the U.S. and Pennsylvania Constitutions 
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because Megan’s Law III was the law in effect when he committed his 

offenses. 

After observing that Pennsylvania courts apply the two-prong test 

articulated in Smith v. Doe, 538 U.S. 84 (2003), to determine if a law 

inflicts punishment,7a panel of this Court thoroughly analyzed SORNA 

utilizing the seven Mendoza-Martinez factors8 before concluding that the 

retroactive application of SORNA did not violate the ex post facto clauses of 

the federal or state constitutions. See id., at 752-759. 

____________________________________________

7 The first prong of the Smith test requires examination of legislature’s 

intent in enacting the law. If the intent is punitive, the statute constitutes 

punishment and that is the end of the analysis. If the intent is civil and nonpunitive, however, the second prong of the test applies, requiring an 

examination of “whether the statutory scheme is so punitive either in 

purpose or effect as to negate [the legislature’s] intent to deem it civil.” 

Perez, 97 A.3d at 751 (citing Smith, 538 U.S. at 92).

8 The United States Supreme Court in Kennedy v. Mendoza–Martinez,

372 U.S. 144 (1963), mandated a seven-factor test to be applied in 

determining whether the effects of a statute are sufficiently punitive to 

override the legislature's preferred categorization. Courts were directed to 

consider: (1) whether the sanction involves an affirmative disability or 

restraint; (2) whether it has historically been regarded as a punishment; (3) 

whether it comes into play only on a finding of scienter; (4) whether its 

operation will promote the traditional aims of punishment—retribution and 

deterrence; (5) whether the behavior to which it applies is already a crime; 

(6) whether an alternative purpose to which it may rationally be connected 

is assignable for it; and (7) whether it appears excessive in relation to the 

alternative purpose assigned. See id., at 168–169. The Supreme Court 

recognized that each factors’ review may result in different conclusions 

which were to be balanced in making an overall determination of whether 

the statute was punitive. See id. 
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In a case decided less than two weeks after Perez, a different panel of 

this Court specifically held that SORNA’s requirement of 15 years registration 

for a Tier I offender was not unconstitutional. In Commonwealth v. 

McDonough, 96 A.3d 1067 (Pa. Super. 2014), appeal denied, 108 A.3d 34 

(Pa. 2015), the appellant was found guilty after a jury trial of indecent 

assault and sentenced to a term of one to two years’ incarceration. He was 

classified as a Tier I sexual offender under SORNA, subject to a 15-year 

registration period. On appeal, McDonough argued, as does Giannantonio 

here, that the 15-year registration requirements of SORNA for a Tier I 

offense are not civil in nature because they impose restrictions and 

requirements which, if violated, can result in imprisonment. This Court 

rejected that contention, stating: 

While [Commonwealth v.] Gaffney[, 733 A.2d 616 (Pa. 1999)] 

and [Commonwealth v.] Benner[, 853 A.2d 1068 (Pa. Super. 

2004)] were decided prior to the effective date of SORNA, the 

same principles behind the registration requirements for sexual 

offenders under Megan’s Law apply to those subject to SORNA. 

Namely, to effectuate, through remedial legislation, the nonpunitive goal of public safety. Gaffney, 733 A.2d at 619; see 42 

Pa.C.S. § 9791(a) (legislative findings and declaration of policy 

behind registration of sexual offenders). In fact, one of the main 

purposes behind SORNA is to fortify the registration provisions 

applicable to such offenders. See 42 Pa.C.S. § 9799.10 (purpose 

of registration of sexual offenders under SORNA); see also H.R. 

75, 195th Gen. Assemb. Reg. Sess. (Pa.2012). With this purpose 

in mind, we cannot find that the law is unconstitutional as it 

applies to McDonough. He has offered neither competent nor 

credible evidence to undermine the legislative findings behind 

SORNA’s registration provisions. Accordingly, we find no error. 

96 A.3d at 1071. 
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Similar to the case presented in McDonough, Giannantonio has not 

offered any evidence to “undermine” the Legislature’s remedial justification 

in enacting SORNA. Accordingly, his claim that the application of SORNA in 

the instant case violates the ex post facto clause of the United States 

Constitution fails. 

Based on the foregoing, we conclude that the trial court did not abuse 

its discretion in denying Giannantonio’s habeas corpus petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/20/2015