Padilla – What It Means for Ex Post Facto Violations

Sex offender registration (SOR) in Pennsylvania has long been considered to be a collateral consequence as opposed to a direct consequence. A few examples of "collateral consequences" include the loss of the right to vote, the loss of the right to carry a firearm, and the suspension of one's drivers license. The ramifications of this opinion are numerous and serious for those that have been convicted of sex crimes.

For example, courts have ruled that because SOR is a collateral consequence, defendants have no right to withdrawal their plea simply because they were not informed that they would be required to register. Claims of ineffective assistance of counsel raised based upon a collateral consequence are invalid; defense attorneys are not required to warn their clients of potential collateral consequences.

(Direct versus Collateral) versus (Punitive versus Civil)

The court in Commonwealth v. Duffey (1994) (cited in Commonwealth v. Abraham (2012)) stated, "The distinction between a direct and collateral consequence of a guilty plea has been effectively defined by this Court as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control." In other words, if the consequence is not considered to be punitive (a criminal penalty), then it is a "collateral consequence". Commonwealth v. Masker (2011) was the latest case to uphold the opinion that sex offender registration is not punitive. Interestingly, in regard to what constitutes a collateral consequence, this case relied upon the findings of Commonwealth v. Leidig (2008), which relied upon Commonwealth v. Leidig (2004), which relied upon Commonwealth v. Frometa (1989).

The court in Frometa (1989) ruled that because deportation was a collateral consequence, counsel was not required to advise the defendant of this possible consequence: "Deportation is but one of a host of collateral consequences of pleading guilty". However, this ruling was just recently abrogated by the United States Supreme Court in Padilla v. Kentucky (2010). This court stated that because deportation is a “particularly severe penalty," is “intimately related to the criminal process,” and the statutory provisions providing for the imposition of the consequence are “succinct, clear, and explicit”, the direct versus collateral analysis used in Frometa (1989) is "ill-suited". The court explained:

"We have long recognized that deportation is a particularly severe “penalty,” but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context."

This was a highly significant ruling for those who are charged with sex crimes. In essence, the court set aside the direct versus collateral analysis, and instead relied upon whether the consequence was intimately related to the criminal process, certain, automatic, and severe. The next chapter of the journey began with Commonwealth v Abraham (2012). In this case, the defendant argued that his plea was not entered voluntarily and knowingly pursuant to Padilla, because his counsel failed to warn him that he would lose his state pension.

Ultimately, the court ruled that:

"..we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis."

Based upon this statement, it appears as though the court conceded that when a consequence is "enmeshed in the criminal process", a Padilla analysis would be appropriate as opposed to a direct versus collateral analysis. This obviously would give great hope to those convicted of sex crimes. After all, what is more intimately related to the criminal process, certain, automatic, and severe than sex offender registration?

"Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa's general holding remains:
a defendant's lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea."

This seems to be a fair and encouraging ruling. The court is stating that in cases where the consequence is not deportation, a direct versus collateral analysis MAY still be appropriate pursuant to Frometa. In other words, the court is saying that the direct versus collateral analysis is not dead because of Padilla, and is still viable in certain instances. Depending upon how one interprets the case, it does not appear that the court is saying that the Padilla analysis can only be applied to deportation. Although in a very recent Superior Court case, a more literal interperation was used Commonwealth v. Perri (2013) (non-precedential).

It will be interesting to see how Padilla is ultimately applied to sex offender registration requirements by the Pennsylvania Supreme Court. Could this be applied to ex post facto considerations? After all, ex post facto issues are based upon a direct versus collateral analysis. Perhaps its time for the PA Supreme Court to apply Padilla here. It should be noted that Commonwealth v. Masker (2011) touched upon the Padilla / SOR issue, but very "weakly".  One might say that this court's (Superior, not Supreme) reference to Padilla was misplaced (read the dissenting opinion). It should also be noted that this case was in regards to SVP status, not registration in general (which is automatic).

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you will be negatively affected by certain laws, we suggest that you contact the Pennsylvania chapter of RSOL (reform sex offender laws), and/or contact the Pennsylvania ACLU to learn about any current appeals that may be planned. If you or someone you know has been charged with a sex crime and has not yet been convicted, please contact our experienced team of sex crime defense attorneys.

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3 Responses to Padilla – What It Means for Ex Post Facto Violations

  1. Robin Shrawder says:

    Absolutely correct , it fulfills all requirements of a LAW ,, and if you dont follow it you are subject up to 10 years in prison .. This certainly IS a very harsh penalty for voilation and on the same grounds as deportation ,, concidered by the courts to be deemed rather harsh also intimetly related to a particular CRIME ( does the term crime AND PUNISHMENT ring a bell ?) No other action requires you to register than as sexual offense ,, the registry isnot civil but criminal punishment ,, and that is the cold hard truth

  2. Matthew24 says:

    I was reading something here in Pa. and how the courts say that, this new law is not punitive damage, and it has to effect the law, to be punitive.

    Well, my argument is this and this is food for thought people, and start asking this to the lawmakers. OK, you say this new LAW is not punishment, yet you call it a LAW, and if we dont follow it we break the law, and get punished. AND the state police here in Pennsylvania have a called the Megan’s Law Section that over see’s RSO’s.. So how can you say it is not punitive damage, when you call it a law and there are punishments.
    If it looks like a duck and quacks like a duck its a duck.

    • Michael says:

      The error-ridden analysis by the Supreme Court in Calder v. Bull [1798] succeeded in muddling the issue of ex post facto laws by holding that the prohibition of retroactive laws applies ONLY to criminal not civil laws. Laws requiring a drivers license are civil in nature, yet driving with a suspended license could get you jail time. As far as SCOTUS is concerned, SOR laws are applied civilly, therefore are not punitive.

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