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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 32 WAP 2014
:
Appellant : Appeal from the Order of the Superior
: Court entered June 17, 2014 at No. 1198
: WDA 2013, vacating the Order of the Court
v. : of Common Pleas of Cambria County
: entered July 1, 2013 at No.
: CP-11-CR-0000362-2011 and remanding.
RAYMOND W. FARABAUGH, :
: ARGUED: April 8, 2015
Appellee :
OPINION
MR. JUSTICE EAKIN DECIDED: DECEMBER 21, 2015
The Commonwealth appeals from the Superior Court’s order finding appellee
Raymond Farabaugh is not required to register as a sexual offender. Upon review, we
are constrained to reverse.
In 2011, appellee pled guilty to indecent assault, graded as a second-degree
misdemeanor. See 18 Pa.C.S. § 3126(a)(8), (b)(1). On June 28, 2011, the trial court
sentenced him to two years probation; at the time of sentencing, the law did not require
appellee to register as a sexual offender. Later that year, amendments to Megan’s Law
added crimes to the list defined as sexually violent offenses, and established a
three-tiered system for classifying such offenses and their corresponding registration
periods. See Act of December 20, 2011, P.L. 446, No. 111, § 12 (effective December
20, 2012) (Megan’s Law IV). The 2011 amendments became effective December 20,
2012; they applied to individuals who, as of that date, were convicted of a sexually
violent offense and were incarcerated, on probation or parole, or subject to intermediate
punishment. See id. (codified as amended at 42 Pa.C.S. § 9799.13). Thus, appellee
was subject to the reporting and registration requirements, see 42 Pa.C.S. § 9799.13(2),
and, as a Tier-II sexual offender, id., § 9799.14(c)(1.3), was required to register for 25
years, id., § 9799.15(a)(2).
After Megan’s Law IV went into effect, appellee filed a “Petition to Enforce Plea
Bargain/Habeas Corpus,” arguing that ordering him to comply with the new registration
and reporting requirements violated his plea agreement and various state and federal
constitutional provisions. The trial court denied the petition, and appellee appealed to
the Superior Court.
On March 14, 2014, while the appeal was pending in the Superior Court, after the
parties had submitted their briefs, the governor signed Act 19 into law, amending the
provisions of Megan’s Law again; the Act was effective immediately and made
retroactive to December 20, 2012. See Act of March 14, 2014, P.L. 41, No. 19, §§ 7-8.
Relevant to this appeal, Act 19 added the following provision, in pertinent part: “For
purposes of this paragraph, the term ‘sexually violent offense’ I shall not include I [a]
conviction under 18 Pa.C.S. § 3126 (relating to indecent assault) where the crime is
graded as a misdemeanor of the second degree.” Id., § 3 (codified at 42 Pa.C.S. §
9799.13(3.1)(ii)(B)).
The Superior Court panel sua sponte addressed Act 19, holding the above
language exempted appellee from the requirements of Megan’s Law. The panel
interpreted paragraph (3.1) as excluding convictions of indecent assault as a
second-degree misdemeanor from every class of registrants in 42 Pa.C.S. § 9799.13.
Thus, the panel reasoned appellee “effectively never was[] subject to the Megan’s Law
registration requirements” because Act 19 was made retroactive to December 20, 2012
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— the effective date of Megan’s Law IV, which appellee was challenging.
Commonwealth v. Farabaugh, No. 1198 WDA 2013, unpublished memorandum at 4 (Pa.
Super. filed June 17, 2014). As a result, the panel determined appellee’s constitutional
issues were moot,1 vacated the trial court’s order, and remanded.
The Commonwealth filed a Petition for Allowance of Appeal, and we granted
review of the following question:
Whether the Superior Court erred, while acting sua sponte, when it
incorrectly found that new amendments to 42 Pa.C.S. § 9799.13 excluded
the crime of [i]ndecent [a]ssault (18 Pa.C.S. § 3126(a)(8)) from list [sic] of
mandated sex offender registry crimes.
Commonwealth v. Farabaugh, 105 A.3d 655 (Pa. 2014) (per curiam) (alterations in
original); see also 42 Pa.C.S. § 724. As this issue involves statutory construction,
which is a pure question of law, our standard of review is de novo, and our scope of
review is plenary. Commonwealth v. Stotelmyer, 110 A.3d 146, 149 (Pa. 2015) (citation
omitted). “The object of all interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). “When the
words of a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” Id., § 1921(b).
The General Assembly passed Act 19 in response to this Court’s decision in
Commonwealth v. Neiman, 84 A.3d 603, 605 (Pa. 2013), which struck down prior
amendments to Megan’s Law because the act in which they were contained violated the
single-subject rule, Pa. Const. art. III, § 3. See generally Act of March 14, 2014, P.L.
41, No. 19, § 1 (codified at 42 Pa.C.S. § 9799.11(b)(3)) (“It is the intention of the General
Assembly to address the Pennsylvania Supreme Court’s decision in Commonwealth v.
Neiman, No. 74 MAP 2011 (Pa. 2013), by amending this subchapter in [Act 19].”). As
1 The panel noted appellee waived three other issues for failing to raise them in the trial
court. Id., at 3-4 & n.2.
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amended by Act 19, 42 Pa.C.S. § 9799.13 is composed of 15 paragraphs,2 two of which
are relevant for this appeal — paragraph (2) and paragraph (3.1), which provide:
The following individuals shall register with the Pennsylvania State Police
I and otherwise comply with the provisions of this subchapter:
(2) An individual who, on or after the effective date of this
section, is, as a result of a conviction for a sexually violent
offense, an inmate in a State or county correctional institution
of this Commonwealth, including a community corrections
center or a community contract facility, is being supervised by
the Pennsylvania Board of Probation and Parole or county
probation or parole, is subject to a sentence of intermediate
punishment or has supervision transferred pursuant to the
Interstate Compact for Adult Supervision in accordance with
section 9799.19(g).
* * *
(3.1) The following:
(i) An individual who between January 23,
2005, and December 19, 2012, was:
(A) convicted of a sexually violent
offense;
(B) released from a period of
incarceration resulting from a
conviction for a sexually violent
offense; or
(C) under the supervision of the
Pennsylvania Board of Probation
and Parole or county probation or
parole as a result of a conviction
for a sexually violent offense.
(ii) For purposes of this paragraph, the term
“sexually violent offense” shall have the
meaning set forth in section 9799.12 (relating to
definitions), except that it shall not include:
* * *
2 Section 9799.13 is not divided into subsections. See 101 Pa. Code § 23.26 (“Internal
divisions of sections,” discussed infra).
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(B) A conviction under 18 Pa.C.S.
§ 3126 (relating to indecent
assault) where the crime is
graded as a misdemeanor of the
second degree or where the
conviction occurred between
January 22, 2006, and January 1,
2007, when the crime is graded
as a felony of the third degree.
42 Pa.C.S. § 9799.13(2), (3.1) (emphasis added).
The parties agree that appellee meets the criteria of both paragraph (2) and
paragraph (3.1). See Appellee’s Brief, at 11; Commonwealth’s Brief, at 18-19. The
Commonwealth argues the Superior Court panel erred in interpreting paragraph (3.1) as
excluding appellee’s conviction from every class of registrants in 42 Pa.C.S. § 9799.13,
including paragraph (2); indecent assault convictions are excluded only from the class of
registrants in paragraph (3.1), and because appellee is a paragraph (2) registrant, the
panel erred in holding he does not have to comply with Megan’s Law.
The exclusion of indecent assault from the term “sexually violent offense” applies
only “[f]or purposes of this paragraph[.]” 42 Pa.C.S. § 9799.13(3.1)(ii) (emphasis added).
As the Commonwealth points out, “paragraph” is a technical term that must be analyzed
and defined according to its “peculiar and appropriate meaning or definition.” 1 Pa.C.S.
§ 1903. In this regard, the Commonwealth cites 101 Pa. Code § 23.26, which provides:
“Whenever internal divisions are necessary, I paragraphs [shall be identified] by Arabic
numerals I contained within parentheses[.]” Id. The Commonwealth urges the Court
to interpret § 9799.13 consistently with the manner in which we interpreted “paragraph”
in Rump v. Aetna Cas. & Sur. Co., 710 A.2d 1093, 1096-97 (Pa. 1998).
Additionally, the Commonwealth argues the two paragraphs do not conflict. It
construes paragraph (3.1) as applying only to “offenders (1) whose convictions occurred
during the enumerated Megan’s Law III time period and (2) who are not also still subject
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to imprisonment or supervision as of December 20, 2012.” Commonwealth’s Brief, at
18. “This interpretation is in accord with the express intent of Act 19,” the
Commonwealth contends, “which was to respond to the Neiman decision — not to more
generally limit [the] retroactive application” of the registration and reporting requirements.
Id. (citing 42 Pa.C.S. § 9799.11(b)(3)). But, if we were to determine there is a conflict,
the Commonwealth argues the paragraphs are reconcilable. Specifically, while some
offenders, like appellee, meet the criteria for paragraph (2) and paragraph (3.1), the
Commonwealth asserts “mere overlap between provisions of a statute[,] without more[,]
does not mean the paragraphs are irreconcilable.” Id., at 19 (citing Cedarbrook Realty,
Inc. v. Nahill, 399 A.2d 374, 383 (Pa. 1979) (“[A] show[ing] that the two statutory
schemes are different and may be overlapping I does not amount to irreconcilability
under Pennsylvania law.”)).
Appellee first argues this Court’s decision in Neiman “was not the sole purpose of
Act 19” because Act 19 made two additional changes to Megan’s Law.3 Appellee’s
Brief, at 7 (“[A] I loophole was closed I [and] credit was given to offenders who were
required to register prior to [Act 19] for the time periods upon which they had registered
before the passage of [Act 19].” (citations omitted)). Appellee posits that because he
fits the criteria of paragraph (2) and paragraph (3.1), the provisions are in conflict, and
the conflict is irreconcilable. Therefore, appellee argues paragraph (3.1) should be
construed as an exception to the general rule in paragraph (2), because paragraph (3.1)
is more specific and was enacted after paragraph (2), and nothing suggests the
legislature intended for paragraph (2) to control. Id., at 11 (quoting 1 Pa.C.S. § 1933)
3 However, the legislature’s express statement of intent was to the contrary. See 42
Pa.C.S. § 9799.11(b)(3) (“It is the intention of the General Assembly to address the
Pennsylvania Supreme Court’s decision in Commonwealth v. Neiman, No. 74 MAP 2011
(Pa. 2013), by amending this subchapter in [Act 19].”).
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(“If the conflict between [] two provisions is irreconcilable, the special provisions shall
prevail and shall be construed as an exception to the general provision, unless the
general provision shall be enacted later and it shall be the manifest intention of the
General Assembly that such general provisions shall prevail.”).
Appellee contends the Commonwealth’s interpretation of § 9799.13 would require
this Court to read words into the statute. Id., at 12 (“The key language missing from
[paragraph] (3.1) would state that individuals who were subject to imprisonment and
supervision and who’s [sic] imprisonment and supervision has ended prior to December
19, 2012[,] would be exempt under [paragraph] (3.1).”). Finally, appellee argues that
ruling for the Commonwealth would have two unintended consequences. First,
appellee claims it would “put individuals like [a]ppellee in a separate and distinct class
from individuals who were convicted of [i]ndecent [a]ssault as [a m]isdemeanor of the
[s]econd [d]egree during the pendency of Megan’s Law III but were not require [sic] to
register.” Id., at 18. Second, appellee claims the Commonwealth’s interpretation of
paragraph (2) would mandate registration “but for the continued supervision or
imprisonment of the individual[,]” which he asserts would “eradicat[e]” this Court’s
holding that Megan’s Law registration and reporting requirements are a collateral, civil
consequence of a criminal conviction. Id., at 18-19 (citing Commonwealth v. Leidig,
956 A.2d 399 (Pa. 2008)).
To understand the meaning of the “for purposes of this paragraph” language
“entails an understanding of how the Pennsylvania Consolidated Statutes are arranged.”
Rump, at 1096. Most statutes are “subdivided into subsections, paragraphs,
subparagraphs, and other such minor subdivisions as may be required for clarity of
expression and uniformity of style.” Id. (citing 1 Pa.C.S. § 301(c)). Section 23.26 of
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the Pennsylvania Consolidated Statutes Style Manual, 101 Pa. Code §§ 21.1 et seq.,
titled “Internal divisions of sections,” provides:
Whenever internal divisions are necessary, subsections shall be identified
by lower case letters, paragraphs by Arabic numerals, subparagraphs by
lower case Roman numerals, clauses by capital letters and subclauses by
capital Roman numerals, all contained within parentheses, as follows:
Terminology Illustrative Symbol
Subsection (a)
Paragraph (1)
Subparagraph (i)
Clause (A)
Subclause (I)
Id., § 23.26 (emphasis added). Moreover, “we must assume that the General Assembly
knew what a paragraph meant in terms of constructing a statutory provision[.]” Rump,
at 1097.
Based on these principles, we hold the Superior Court erred in finding Act 19
excluded appellee from registering as a sexual offender. It is clear that provision (3.1)
of § 9799.13 is “a paragraph since it is illustrated by an Arabic numeral.” Id. If the
legislature intended the paragraph (3.1) exception to apply to each class of registrants in
§ 9799.13, it would have used the phrase “for purposes of this section,” but that is not
what the statute says, and we may not read words into an unambiguous statutory
provision. See 1 Pa.C.S. § 1921(b).4 The phrase “for purposes of this paragraph”
4 Parenthetically, it defies logic that the legislature would exclude all convictions for 18
Pa.C.S. § 3126(a)(8) from every class of registrants in § 9799.13, when that crime
continues to be listed as a Tier-II sexual offense, see 42 Pa.C.S. § 9799.14(c)(1.3).
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demonstrates the exclusion applies only to paragraph (3.1), as the word “paragraph” in
this context is a technical term with a specific meaning. See 1 Pa.C.S. § 1903.5
We reject appellee’s contention that paragraph (2) and paragraph (3.1) are
irreconcilable. Paragraph (2) applies to individuals, like appellee, who were still serving
sentences on December 20, 2012, whereas paragraph (3.1) pertains to individuals who
were convicted, released from prison, or were on probation or parole between January
23, 2005, and December 19, 2012 — the day before the effective date of Megan’s Law
IV and Act 19. Accordingly, we hold the second-degree-misdemeanor-indecent-assault
exception applies only to paragraph (3.1); thus, the Superior Court erred in concluding
appellee did not have to comply with the reporting and registration requirements of
Megan’s Law.
Order reversed; case remanded to the Superior Court to address the issues
appellee preserved for appeal; jurisdiction relinquished.
Mr. Chief Justice Saylor, Mr. Justice Baer, Madame Justice Todd and Mr. Justice
Stevens join the opinion.
Mr. Chief Justice Saylor files a concurring opinion in which Madame Justice Todd
joins.
5 Further, paragraph (3.2), which also was added by Act 19, refers to “paragraph (3.1),”
42 Pa.C.S. § 9799.13(3.2), thereby buttressing the conclusion that the legislature
intended the indecent-assault exclusion to apply only to paragraph (3.1), not the entire
section.
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