Com. v. Shrawder, R.

J-A22020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROBIN SHRAWDER,

Appellant No. 2027 MDA 2014

Appeal from the Order Entered November 5, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0002057-2014

BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 20, 2015

This Court continues to twist itself into Gordian knots to uphold

retroactive application of a sex offender registration statute, SORNA, 1 to

individuals who unquestionably had no notice of the new law at the time

they pled guilty, or that a non-existent law would apply to them, or that they

would have no ability to have an opportunity to escape its application. I do

agree that Appellant is foreclosed from asserting that he is not subject to

any period of registration because he acquiesced in registering under a prior

version of the current law. Nevertheless, I dissent from the holding that he

must register for life based on one criminal episode resulting in two findings

____________________________________________

1
42 Pa.C.S. § 9799.10-9799.41.

* Retired Senior Judge assigned to the Superior Court.
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of guilt for luring a child into a motor vehicle—crimes for which he has

completed serving his three-year probationary sentence and for which the

Commonwealth previously declined to seek lifetime registration under a

virtually identical statutory framework. Since the Commonwealth declined

to invoke lifetime registration at that point, it should be foreclosed from

doing so now.

Moreover, I agree with Appellant that his contractual plea bargain was

violated by the addition of material terms to the agreement that were not

contemplated by the parties when it was entered. This Court continues to

ignore that in virtually no other setting, aside from retroactive application of

SORNA, does a court authorize material terms to be added to a contract

after the fact. Rather than engage in an analysis of what terms were agreed

upon by the parties when the agreement was entered, we have instead

considered the absence of express evidence regarding a registration

requirement as proof that the individual acquiesced to non-existent terms

being imposed at a later date. See Commonwealth v. Giannantonio, 114

A.3d 429 (Pa.Super. 2015). Such an interpretation of the law is not only

untenable, but it turns contractual analysis on its head. If we are to

continue to construe plea bargains in a contractual manner as required by

applicable precedent, see Commonwealth v. Anderson, 996 A.2d 1184,

1191 (Pa.Super. 2010), we should do so faithfully and not to achieve a

desired result due to the nature of the offenders involved.

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Herein, the learned majority makes much of the fact that Appellant’s

plea was not structured to avoid registration. This fact is a court-created

non-sequitur in cases such as this. There is no dispute that where a plea is

structured to avoid registration or a certain period of registration, it is

improper to require a different period of registration. See Commonwealth

v. Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc);

Commonwealth v. Nase, 104 A.3d 528 (Pa.Super. 2014); compare also

Commonwealth v. Partee, 86 A.3d 245 (Pa.Super. 2014) (defendant’s

violation of his probation resulted in him no longer being entitled to the

original benefit of his plea bargain). However, this rationale does not

answer the question of whether lifetime registration should be retroactively

imposed where there was no reason for the defendant to negotiate to

remove such registration in the first instance. Obviously, Appellant could

not seek to avoid a lifetime of sex offender registration based solely on the

commission of luring of a child into a motor vehicle when there was no law

requiring it when his plea was tendered.2

____________________________________________

2
As discussed later in the body of this writing, I acknowledge that under a
subsequent interpretation of the governing statute, the Commonwealth
could have sought to invoke lifetime registration. Since it did not, however,
there was no reason for Appellant to negotiate and no case law interpreting
the prior sex offender law as compelling lifetime registration. Frankly, as
delineated infra, I view the decision by this Court that could have subjected
Appellant to lifetime registration, Commonwealth v. Merolla, 909 A.2d
337 (Pa.Super. 2006), as distinguishable.

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Simply put, there was no reason to negotiate a different plea to avoid

lifetime registration when the Commonwealth was not seeking lifetime

registration. Indeed, the Commonwealth could not have removed a more

serious charge subjecting Appellant to lifetime registration because he was

not charged with any such crimes.3 See Majority Memorandum, at 9

(finding fact that Commonwealth did not remove charges that would have

resulted in lifetime registration significant). Further, the majority provides

the red herring argument that the collateral consequences of Appellant’s

plea, that being registration, do not render his plea involuntary. Id. at 10.

This observation fails to persuade because Appellant does not allege his plea

was involuntary nor does he seek to withdraw his plea. Rather, Appellant is

seeking specific enforcement of his plea. It is immaterial that registration is

considered a collateral consequence under these facts because Appellant

does not contest his plea. See Nase, supra at 533.

In Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.Super. 1995),

this Court set forth that “[a]lthough a plea agreement occurs in a criminal

context, it remains contractual in nature and is to be analyzed under

contract-law standards.” Consistent with this approach, the Kroh Court

____________________________________________

3
The Commonwealth charged Appellant with two counts each of luring a
child into a motor vehicle and corruption of a minor. Appellant is not
required to register based on the corruption of a minor charges. See
Commonwealth v. Sampolski, 89 A.3d 1287 (Pa.Super. 2014).

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opined that ambiguities in the terms of the plea agreement are to be

construed against the Commonwealth. Id. Under ordinary contract

principles, the terms of a contract are those agreed to by the parties.

Indeed, a contract requires six elements: (1) mutual assent; (2)

consideration; (3) contracting parties; (4) an agreement that is sufficiently

definite; (5) parties that have the legal capacity to make a contract; and (6)

an absence of any legal prohibition to the formation of the agreement. John

E. Murray Jr., Murray on Contracts, at 59 (4th Ed. 2001). In deciding the

terms of a plea agreement as with other contracts, we resolve any dispute

by applying objective standards. Kroh, supra at 1172. Contracts may be

oral or written, and conduct or acts may evidence an agreement. Additional

material terms generally do not become part of an agreement unless those

terms are agreed upon either through a writing, an express oral agreement,

or a course of performance, including the conduct of the parties.

Here, the actual terms of the agreement are relatively straightforward.

Appellant agreed to plead nolo contendere to two counts each of luring a

child into a motor vehicle and corruption of a minor. In exchange, the

Commonwealth did not seek a period of incarceration. The court, it should

be noted, also failed to inform Appellant that he was subject to sex offender

registration either when he entered his nolo contendere plea on April 12,

2005, or when he was sentenced on May 26, 2005. Nonetheless, at that

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time, a person found guilty and sentenced for committing the crime of luring

a child into a motor vehicle was subject to a ten-year period of registration.

The Commonwealth waived its right to seek a determination by the

court that Appellant was a sexually violent predator (“SVP”) by failing to

request a SVP hearing. A finding that Appellant was an SVP would have

mandated lifetime reporting. In addition, the Commonwealth did not seek to

require lifetime registration because Appellant had pled nolo contendere to

two counts of luring. See Commonwealth v. Merolla, 909 A.2d 337

(Pa.Super. 2006) (holding that the then-applicable sex offender registration

statute required lifetime registration for a person found guilty at the same

time of multiple offenses, including luring of a child into a motor vehicle).

In the beginning of August 2006, a full year after Appellant’s

sentencing, the Pennsylvania State Police first notified Appellant that he was

required to register as a sex offender for ten years. Critically, the

Pennsylvania State Police did not seek to require Appellant to register for life

under the then-existing statute, 42 Pa.C.S. § 9795(b)(1), because he pled

guilty to two counts of luring. Moreover, the Commonwealth, via the

Pennsylvania State Police, did not inform Appellant after the decision in

Merolla, supra, which was decided on September 28, 2006, that he was

required to register for life. That decision interpreted § 9795(b)(1) and its

language that "An individual with two or more convictions of any of the

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offenses set forth in subsection (a)[,]" which included luring, see Merolla,

supra at 347 n.15, were subject to lifetime registration. Id. at 346.

These facts, in my view, compel the conclusion that the

Commonwealth is estopped from now seeking lifetime registration under the

provision in SORNA at issue. Indeed, it has waived any such argument. To

conclude otherwise is to reward the Commonwealth for its dilatory

arguments that could have been forwarded when Appellant was initially

sentenced. Of course, I am aware that Appellant did not contest his ten-

year registration period and registered on August 13, 2006. He has

continued to register annually since that time. For this reason, I would find

that he is estopped from receiving relief in the nature of completely

removing the registration requirement. Having acquiesced to the

registration period in 2006, Appellant has waived any challenge to non-

registration and must at least register for ten years.4 Moreover, contract law

incorporates existing law. See Nase, supra at 534. Appellant was required

to register for ten years based on his plea despite the court’s failure to notify

him of such.

____________________________________________

4
The Commonwealth’s failure to have Appellant register for one year should
be attributed to it because commencement of registration is intended to
start when a person begins his or her probationary sentence if they are not
incarcerated.

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On December 20, 2012, SORNA went into effect. That statute created

a three-tiered classification of sex offenders and retroactively increased

registration for luring a child into a motor vehicle to fifteen years. 42

Pa.C.S. § 9799.14(b); 42 Pa.C.S. § 9799.15(a)(1). The fifteen year period is

for Tier-I offenders. See 42 Pa.C.S. § 9799.15. Lifetime registration is

required for Tier-III offenders. 42 Pa.C.S. § 9799.15(a)(3). The statute

classifies those with, “[t]wo or more convictions of offenses listed as Tier I or

Tier II sexual offenses[,]” as Tier-III offenders, subject to lifetime

registration. 42 Pa.C.S. § 9799.14(d)(16).

Appellant and the Commonwealth did not mutually assent to lifetime

registration in exchange for Appellant’s plea. Lifetime registration was not a

term of the initial plea nor is it a term over which a reasonable person would

not have negotiated. Were this any other contractual scenario, it would be

beyond cavil that the Commonwealth could not retroactively add a material

term to the plea bargain and require Appellant to register beyond ten years.

This conclusion is reinforced where the defendant is no longer serving any

type of sentence. Compare Commonwealth v. Benner, 853 A.2d 1068,

1072 (Pa.Super. 2004) (“We read these cases to suggest that the collateral

effect of current [Megan’s Law] legislation may be imposed on the defendant

so long as he remains in the custody of correctional authorities to

discharge any part of his sentence for the sex offense.”).

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In this respect, I add that retroactive application of any law, except

ameliorative criminal law, has long been disfavored precisely because it is

perceived as fundamentally unfair. William Blackstone, in his influential

Commentaries on the Laws of England, posited, “All laws should be therefore

made to commence in futuro, and be notified before their

commencement[.]” 1 Tucker’s Blackstone, 46 (Philadelphia, 1803).

“[S]ince the beginning of the Republic and indeed since the early days of the

common law: absent specific indication to the contrary, the operation of

nonpenal legislation is prospective only.” Kaiser Aluminum & Chemical

Corp. v. Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring).

Similarly, this Court in Anderson v. Sunray Elec. Inc., 98 A.2d 374,

375 (Pa.Super. 1953) (emphasis added), has recognized, “Unless the

legislature clearly manifests its intention otherwise, no law may be

construed to be retroactive, and then only where it does not destroy

vested rights or impair the obligations of contracts.” See also 1

Pa.C.S. § 1926.5

While the legislature here did expressly indicate that this law would

apply retroactively, that does not alter the fact that from the early days of

this Commonwealth our courts have recognized the odious nature of

retroactive civil laws. In Commonwealth v. Duane, 1 Binn. 601 (Pa.
____________________________________________

5
1 Pa.C.S. § 1926 codified Pennsylvania common law.

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J-A22020-15

1809), the Pennsylvania Supreme Court distinguished between the

prohibition against civil retroactive laws and ameliorative retrospective

criminal legislation. There, the defendant was indicted and found guilty of

committing a libel against Pennsylvania’s governor in his official capacity.

However, prior to his judgment of sentence, the legislature passed a law

stating that no person was to be prosecuted by indictment for publication of

papers or for investigating the official conduct of men in a public capacity.

Counsel for Duane argued that the law interfered with no vested right, did

not violate any right of property, and effectively terminated his prosecution.

The Pennsylvania Supreme Court agreed, with Chief Justice Tilghman

stating, “If the same expression had been used, as applied to a civil action, I

should have thought myself warranted in giving it a different construction,

because then it would have operated in a retrospective manner, so as to

take away from a citizen a vested right. But there is a wide difference

between a civil and a criminal action.” Id. at 608-609.

Justice Joseph Story, writing while on circuit, offered a concise

summary of retroactive civil laws, which has subsequently been adopted by

the United States Supreme Court, see Landgraf v. USI Film Products,

511 U.S. 244 (1994), and utilized by courts in this Commonwealth.

Justice Story opined, “every statute, which takes away or impairs vested

rights acquired under existing laws, or creates a new obligation, imposes a

new duty, or attaches a new disability, in respect to transactions or

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considerations already past, must be deemed retrospective[.]” Society for

the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756, 767 (1814).6

Justice Duncan of the Pennsylvania Supreme Court echoed this definition,

cited Justice Story’s opinion in Justice Duncan’s opinion in Eakin v. Raub,

12 Serg. & Rawle 330 (Pa. 1825), and recognized the distinction between

the prohibition against civil retroactive law and ameliorative criminal

legislation. Id. at 362.7

A number of other state courts have construed their versions of

SORNA as violating constitutional retroactivity clauses or that state’s ex post

facto prohibition. Starkey v. Oklahoma Dept. of Corrections, 305 P.3d

1004 (Okla. 2013) (SORNA statute violated ex post facto clause of state

constitution); Doe v. Department of Public Safety and Correctional
____________________________________________

6
This Court has defined a vested right as one that “so completely and
definitely belongs to a person that it cannot be impaired or taken away
without the person's consent.” In re R.T., 778 A.2d 670, 679 (Pa.Super.
2001). In Eakin v. Raub, 12 Serg. & Rawle 330, 360 (Pa. 1825),
Justice Duncan opined, “a vested right is where a man has power to do
certain actions, or to possess certain things, according to the laws of the
land.” One’s liberty interest is unquestionably a vested right, which is
supposed to only be deprived via due process.
7
Civil retrospective law was also permissible where, the law “does not
violate the constitutional prohibitions,” and provided “to a party a remedy
which he did not previously possess, or modify an existing remedy, or
remove an impediment in the way of recovering redress by legal
proceedings.” Hepburn v. Curts, 7 Watts 300, 301 (Pa. 1838). Thus,
statutory law that benefitted individuals without invading the vested rights of
another was lawful.

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Services, 62 A.3d 123 (Md. 2013) (Maryland sex offender statute violated

ex post facto clause of state constitution); State v. Williams, 952 N.E.2d

1108, 1113 (Ohio 2011) (Ohio SORNA statute violated state constitutional

prohibition against retroactive laws); cf. State v. Bodyke, 933 N.E.2d 753

(Ohio 2010) (Ohio SORNA violated separation of powers) State v.

Letalien, 985 A.2d 4 (Me. 2009) (ex post facto violation to apply

retroactively the enhanced requirements of SORNA of 1999 when, by so

doing, the application revises and enhances sex offender registration

requirements that were a part of the offender's original sentence); but see

Doe I v. Williams, 61 A.3d 718 (Me. 2013) (SORNA statute at issue did not

violate substantive or procedural due process or ex post facto clause).

Conversely, several states have upheld retroactive sex offender

registration changes under ex post facto and due process challenges. Doe I

v. Williams, supra; Roe v. Replogle, 408 S.W.3d 759 (Mo. 2013) (federal

SORNA law, applicable to residents of Missouri, did not violate substantive

due process); Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013). As

recognized by Appellant, this Court has rejected a federal ex post facto

challenge to SORNA. Commonwealth v. Perez, 97 A.3d 747 (Pa.Super.

2014).8

____________________________________________

8
The Commonwealth Court in Coppolino v. Noonan, 102 A.3d 1254
(Pa.Cmwlth. 2014), allowance of appeal granted, 132 MAP 2014 (July 20,
(Footnote Continued Next Page)

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I acknowledge that this Court is bound by Perez and its conclusion

that SORNA is not an ex post facto law since our courts do not consider

SORNA to be punitive.9 Indeed, Appellant does not even attempt to advance

such a position nor does he argue that under an originalist interpretation of

the Pennsylvania Constitution’s ex post facto clause, such a law should be

classified as penal. Of course, I note that even before the adoption of the

Pennsylvania Constitution, the Magna Carta exclaimed, “No Freeman shall be

taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free

Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we

not pass upon him, nor condemn him, but by lawful Judgment of his Peers,

or by Law of the Land.” See In re Winship, 397 U.S. 358, 378-379,

(1970) (Black, J., dissenting).

As far back as 1642, Lord Edward Coke, in his influential Institutes,

opined that “due process of law” is synonymous with “law of the land.” Id.

at 379; Hoboken Land, supra at 276. Justice Curtis, writing in 1855 for

the United States Supreme Court, opined,
_______________________
(Footnote Continued)

2015), did hold that retroactive in-person registration under SORNA was
unconstitutionally punitive. It severed that provision from the remainder of
the law.
9
I recognize that SORNA’s requirements only occur as a direct result of a
criminal conviction, are generally imposed at sentencing, except in cases
where the defendant has already been sentenced or, as in this case, is no
longer even serving a sentence, and are often more onerous than traditional
probation and parole requirements.

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The constitutions which had been adopted by the several States
before the formation of the federal constitution, following the
language of the great charter more closely, generally contained
the words, ‘but by the judgment of his peers, or the law of the
land.’ The ordinance of congress of July 13, 1787, for the
government of the territory of the United States northwest of the
River Ohio, used the same words.

Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855). He

continued by acknowledging that the federal constitution “contains no

description of those processes which it was intended to allow or forbid. It

does not even declare what principles are to be applied to ascertain whether

it be due process.” Id. However, the High Court set forth, “It is manifest

that it was not left to the legislative power to enact any process which might

be devised. The article is a restraint on the legislative as well as on the

executive and judicial powers of the government, and cannot be so

construed as to leave congress free to make any process ‘due process of

law,’ by its mere will.” Id. Even before Justice Curtis’ opinion, the

Pennsylvania Supreme Court recognized that due process is not satisfied by

the mere passage of legislation.

In Norman v. Heist, 5 Watts & Serg. 171 (Pa. 1843), the Court held

that Pennsylvania’s law of the land provision was designed “to exclude

arbitrary power from every branch of the government; and there would be

no exclusion of it, if such rescripts or decrees were allowed to take effect in

the form of a statute.” Heist, supra at 173. There, the Pennsylvania High

Court ruled that a statute that retroactively deprived a party of property

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violated due process. The “law of the land” had to be “a pre-existent rule of

conduct[.]” Id. In Brown v. Hummel, 6 Pa. 86 (1847), the Pennsylvania

Supreme Court eloquently stated,

What, then, is the law of the land, as it relates to the protection
of private rights? Does it mean bills of attainder in the shape of
an act of Assembly, whereby a man's property is swept away
from him without hearing trial, or judgment, or the opportunity
of making known his rights or producing his evidence? It
certainly does not. It was to guard against such things which had
been common in the reign of the Stuarts and their predecessors,
and with which our forefathers of the Anglo-Saxon race were
familiar, that these irrevocable and unassailable provisions were
introduced into the constitution. The law of the land does not
mean acts of Assembly in regard to private rights, franchises,
and interests, which are the subject of property and individual
dominion. But it means what is clearly indicated by the other
provisions of the bill of rights, to wit: the law of the individual
case, as established in a fair and open trial, or an opportunity
given for one in court, and by due course and process of law. "I
am a Roman citizen," were once words of power, which brought
the proudest proconsul to a pause, when he was about to
commit oppression: and the talismanic words, I am a citizen of
Pennsylvania, secures to the individual his private rights, unless
they are taken from him by a trial, where he has an opportunity
of being heard by himself, his counsel, and his testimony, more
majorum, according to the laws and customs of our fathers, and
the securities and safeguards of the constitution.

Hummel, supra at 91.

Counsel in Menges v. Dentler, 33 Pa. 495 (1859), also argued that

“law of the land” did not merely mean legislative acts. Rather, they

maintained that laws that impaired or destroyed vested rights were in

violation of due process. The Dentler Court considered both Article I, § 9

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and Article I, § 11 of the Pennsylvania Constitution, and accepted that

position. In doing so, it set forth,

These provisions are taken from Magna Charta; but they have
higher value here than in England, just as a constitution adopted
by the people is of higher value than a mere act of Parliament.
Parliament may disregard Magna Charta, but our legislature
must obey the constitution. These provisions are, therefore,
imperative limitations of legislative authority, and imperative
impositions of judicial duty.

Dentler, supra at 498. The Court continued, admittedly under the facts of

the issue in question, and posited,

The law which gives character to a case, and by which it is to be
decided (excluding the forms of coming to a decision), is the law
that is inherent in the case, and constitutes part of it when it
arises as a complete transaction between the parties. If this law
be changed or annulled, the case is changed, and justice denied,
and the due course of law violated.

Id. These principles should apply no less than when the vested right in

question is not a property right but a liberty right against lifetime sex

offender registration where the defendant has completed serving his

sentence and had no notice of increased registration requirements.10

____________________________________________

10
The only Pennsylvania Supreme Court opinion to address SORNA and
procedural due process held that SORNA violated the rights of juveniles.
See In re J.B., 107 A.3d 1 (Pa. 2014). Therein, the High Court ruled that
registration for juvenile offenders, all of whom were previously not subject
to sex offender registration, violated due process. The juveniles in that case
each had been adjudicated delinquent before SORNA’s effective date, but
were still subject to juvenile court supervision on that date. Thus, unlike
Appellant herein, the juveniles were still under court supervision. Pursuant
to SORNA, juveniles who were subject to the jurisdiction of the juvenile
(Footnote Continued Next Page)

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I write further to address the trial court and majority’s application of

Merolla to this matter. I have already outlined my position that the

Commonwealth should be estopped from seeking application of Merolla

since it declined to advance this position during Appellant’s last nine years of

registration. Moreover, even if Merolla was a proper interpretation of

Megan’s Law II, it is distinguishable. In Merolla, the defendant committed

his crimes against multiple victims over a period of years. Here, Appellant

engaged in a single criminal episode on the same day within minutes of each

other, albeit with two minor females. That is, he asked both the teenage

girls, who were together, to masturbate him and perform oral sex in

exchange for money. Reprehensible as these actions are, they are easily

distinct from Merolla.

In my view, the plurality opinion of the learned former Chief Justice

Castille, in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012), also offers

persuasive authority for rejecting application of Merolla. At issue in that

_______________________
(Footnote Continued)

court, on the basis of certain sex offense adjudications, were required to
register as sex offenders. Juveniles required to register for life, contrary to
adults, were to be afforded a hearing twenty-five years after the completion
of court supervision. At that hearing, the juvenile offender would be able to
have registration terminated if he or she met certain criteria. The juvenile
offender would have to show by clear and convincing evidence that he or she
met the statutory criteria. The Supreme Court focused extensively on the
difference between juveniles and adults and concluded that creating an
irrebuttable presumption that the juveniles, based solely on their
adjudication, demonstrated a high risk of recidivism, was unconstitutional.

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case was the same statute as in Merolla. In Gehris, a forty-two year old

man repeatedly engaged in sexually explicit conversations with an individual

he thought was a thirteen-year-old girl as well as a nineteen-year-old

woman. He also mailed a digital camera to the person he believed was the

thirteen-year-old girl that included a picture of his genitalia. In addition, he

asked for nude pictures and attempted to arrange a meeting with the

supposed thirteen-year-old girl to have sex. The defendant pled guilty to

solicitation to commit sexual exploitation of children and solicitation for the

sexual abuse of children. The trial court imposed lifetime registration and

this Court affirmed, relying on Merolla.

The Pennsylvania Supreme Court split evenly three-to-three, with

Chief Justice Castille, joined by Justices Saylor and Baer, writing in support

of reversal. Chief Justice Castille detailed the recidivist philosophy of certain

criminal statutes, beginning with a quote from William Hawkins, Pleas of the

Crown, published in 1716, and moving forward through Pennsylvania case

law applying the recidivist philosophy to various statutes. He found that

Megan’s Law registration was a graduated scheme based on a recidivist

philosophy.11

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11
The Pennsylvania Supreme Court also granted allowance of appeal in
Commonwealth v. Mielnicki, 71 A.3d 245 (Pa. 2013), to determine if
Merolla was properly decided. However, the Supreme Court subsequently
(Footnote Continued Next Page)

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The Commonwealth Court subsequently adopted Chief Justice Castille’s

position in A.S. v. Pennsylvania State Police, 87 A.3d 917 (Pa.Cmwlth.

2014) (en banc). Indeed, had Appellant filed a mandamus petition against

the Pennsylvania State Police with the Commonwealth Court, he likely would

have been entitled to relief. It would be incongruous for different results to

occur simply based on where the initial action was commenced.

In A.S., the defendant was twenty-one years old when he engaged in

consensual sex with a sixteen-year old female. Despite the sexual activity

being non-criminal, he also used a camera to photograph the two engaging

in sexual activity and persuaded the female to take pictures of herself in

sexual positions. This conduct was criminal. A.S. pled guilty to one count

each of sexual abuse of a child, unlawful contact with a minor, and

corruption of a minor. At sentencing, the prosecutor, trial court, and A.S. all

proceeded under the assumption that he would be subject to a ten-year

period of registration. A.S. registered for ten years, and afterward sought to

have his name removed from the registry. The Pennsylvania State Police

refused, contending that he had to register for life. The Commonwealth

Court adopted Chief Justice Castille’s view. It found that because the

_______________________
(Footnote Continued)

dismissed that appeal as improvidently granted. Commonwealth v.
Mielnicki, 105 A.3d 1256 (Pa. 2014).

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conduct was a single criminal episode and A.S. did not have any chance at

reforming, he was subject to a ten-year period of registration.

The Opinion in Support of Affirmance in Gehris (“Gehris OISA”) and

the Merolla Court came to contrary conclusions by reasoning that the

phrase “two or more convictions” in the applicable provision of Megan’s Law

was not ambiguous. This, however, ignored long-standing Pennsylvania law

construing the words “convicted” and “conviction.” See Commonwealth v.

Hale, 85 A.3d 570 (Pa.Super. 2014), allowance of appeal granted on other

ground, 113 A.3d 1228 (Pa. 2014); Commonwealth v. Thompson, 106

A.3d 742 (Pa.Super. 2014) (Bowes, J., concurring) (joined by Donohue, J.).

In both Hale and Thompson, this author collected cases regarding

interpretation of the words “convicted” or “conviction.” In Hale, we set

forth, “[t]he term ‘conviction’ and its related term ‘convicted’ have a distinct

legal meaning under the law.” Hale, supra at 581. Specifically, the words

have both a popular and technical meaning. Id. (quoting Commonwealth

v. Palarino, 77 A.2d 665, 667 (Pa.Super. 1951)). The popular meaning is

a verdict of guilty or a plea of guilty. The technical meaning is a judgment

of sentence. Id.

Indeed, in one of the oldest Pennsylvania cases discussing the

meaning of conviction, Smith v. Commonwealth, 14 Serg. & Rawle, 69

(1826), the Pennsylvania Supreme Court stated, “When the law speaks of

conviction, it means a judgment, and not merely a verdict, which, in

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common parlance, is called a conviction.” Id. at 70. That interpretation was

followed in Commonwealth v. Black, 407 A.2d 403 (Pa.Super. 1979), and

Commonwealth v. Maguire, 452 A.2d 1047 (Pa.Super. 1982). The

Maguire Court stated, "appellant construes 'convicted' as equivalent to the

jury's 'verdict,' which it is not." Id. 1049.

Concomitantly, in Commonwealth v. Grekis, 601 A.2d 1284

(Pa.Super. 1992), this Court held that "we have interpreted the term

'conviction' in [18 Pa.C.S.] section 906 to mean entry of a judgment of

sentence not a finding of guilt by the jury." Id. at 1294; see also

Commonwealth v. Hassine, 490 A.2d 438, 460 (Pa.Super. 1985) ("we

accept the word 'conviction' as referring to post-verdict judgment by a court,

and not to the verdict by the jury itself"). In Commonwealth v. Socci, 110

A.2d 862 (Pa.Super. 1955), this Court opined that the term “conviction”

“must be given its strict technical meaning. There must be a judgment of

conviction.” Id. at 863 (quoting Palarino, supra at 667).

Our legislature, however, has also used the term conviction in its

ordinary sense as well. See 18 Pa.C.S. § 109; Thompson, supra;

Commonwealth v. Kimmel, 565 A.2d 426, 427 n.2 (Pa. 1989) (quoting

Commonwealth v. Beasley, 479 A.2d 460 (Pa. 1984), and stating, "the

term 'convicted' means 'found guilty' and not 'found guilty and sentenced.'").

Indeed, in Thompson, I opined that I was “troubled by the apparent

inconsistency in our interpretation of the words ‘convicted’ and ‘conviction.’

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In my view, the legislature would do well to define the words ‘conviction’ or

‘convicted’ to reflect when it is using those words in either their popular or

technical sense.” Thompson, supra at 768. Our recent interpretations

have largely been one-sided, in favor of the Commonwealth. This case law

reflects that whatever interpretation the words are to be given, the Gehris

OISA and Merolla Court were mistaken in finding that the language is

unambiguous.12

The decision by the trial court and the majority decision to affirm

results in a denial of procedural due process, inverts contract law, violates

principles of fundamental fairness, allows the Commonwealth to successfully

assert arguments that it declined to raise and waived almost a decade ago,

and applies a case that arguably was erroneously decided and is plainly

distinguishable. Only through legal gymnastics can this Court continue to

uphold retroactive application of SORNA to those no longer serving a

sentence as legally sound. In my considered view, if not for the fact that

SORNA applies to sex offenders, such serious constitutional and contractual

law concerns would not be tolerated. For all the aforementioned reasons, I

respectfully dissent.

____________________________________________

12
At the very least, we should consider en banc review to reexamine
Merolla.

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