IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph J. Dougherty, :
:
Petitioner :
:
v. : No. 537 M.D. 2014
:
The Pennsylvania State Police of the : Argued: September 16, 2015
Commonwealth of Pennsylvania, :
:
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER3 FILED: January 12, 2016
Before this Court in our original jurisdiction are the Preliminary Objections
(POs) in the nature of a demurrer of the Pennsylvania State Police (PSP) to Joseph
1
This case was assigned to the opinion writer before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
3
This matter was reassigned to the authoring judge on December 8, 2015.
J. Dougherty’s (Petitioner) “Amended Petition for Review in the Nature of a Writ
of Mandamus Seeking to Compel the [PSP] to Change Petitioner’s Sexual
Offender Registration Status in Accordance with the Law Addressed to the Court’s
Original Jurisdiction” (Petition for Review). Petitioner pled guilty to two counts of
Unlawful Contact with a Minor4 and a single count of Criminal Use of
Communication Facility5 on May 4, 2011, and was sentenced to ten years of
probation on August 22, 2011. (Petition for Review ¶¶ 2, 3.) Petitioner alleges
that he “was instructed and entered into a plea agreement” with the
Commonwealth “pursuant to an understanding and agreement” that he was
required to register only for ten years. (Petition for Review ¶ 4.) According to
Petitioner’s allegations, Petitioner’s understanding that he was only required to
4
Section 6318(a)(1) of the Crimes Code, 18 Pa. C.S. § 6318(a)(1). Unlawful Contact
with a Minor is defined as:
[being] intentionally in contact with a minor, or a law enforcement officer acting
in the performance of his duties who has assumed the identity of a minor, for the
purpose of engaging in [a sexual offense], . . . and either the person initiating the
contact or the person being contacted is within this Commonwealth[.]
(1) Any offense enumerated in Chapter 31 (relating to sexual offenses).
Id.
5
Pursuant to Section 7512(a) of the Crimes Code, 18 Pa. C.S. § 7512(a):
A person commits a felony of the third degree if that person uses a
communication facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony under this title or under
the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device and Cosmetic Act. Every instance where the communication
facility is utilized constitutes a separate offense under this section.
Id.
2
register as a sexual offender for ten years “was an important consideration that
Petitioner took into account in accepting a negotiated plea and which he relied
upon in considering to plead in his case.” (Petition for Review ¶ 5.) On December
3, 2012, the PSP notified Petitioner that pursuant to the enactment of the Sexual
Offender Registration and Notification Act (SORNA),6 Petitioner was now
required to register twice a year for twenty-five years and that his registration
information will be placed on the PSP’s website for the same period of time.
(Petition for Review ¶ 7.) Petitioner alleges that this increase in his registration
period violates the Ex Post Facto and Contract Clauses of the United States and
Pennsylvania Constitutions and the Due Process Clauses of the Fourteenth
Amendment to the United States Constitution and Article I, Section 9 of
Pennsylvania Constitution. Petitioner seeks specific performance of his plea
agreement and an order declaring that he is not required to register beyond ten
years as the increased registration and notification requirements imposed upon him
by SORNA are, for those reasons, unconstitutional. (Petition for Review ¶¶ 13, 15,
Wherefore Clause.)
The PSP demurs to the Petition for Review through five POs.7 The PSP first
alleges that mandamus will not lie against the PSP because the statute of
limitations has run for these types of actions and that the PSP lacks the duty or
authority to change Petitioner’s registration requirements. (POs ¶¶ 48-58.)
6
Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10-9799.41.
Courts have also referred to SORNA as the Adam Walsh Act.
7
We have reorganized the PSP’s POs for purposes of this opinion.
3
Second, the PSP alleges that Petitioner has failed to state a claim because SORNA
applies to Petitioner and Petitioner was properly classified as a Tier II offender,
carrying a twenty-five year registration requirement. (POs ¶¶ 17-28.) Third, the
PSP alleges that SORNA poses no ex post facto concerns and cites to our recent
opinion in Coppolino v. Noonan, 102 A.3d 1254 (Pa. Cmwlth. 2014), aff’d, __
A.3d __ (Pa., No. 132 MAP 2014, filed November 20, 2015), as binding authority
to that end. (POs ¶¶ 30-31.) Fourth, the PSP objects to Petitioner’s due process
allegations because Petitioner has failed to allege any interest that is protected
under the Due Process Clause of either the United States or Pennsylvania
Constitutions. (POs ¶¶ 41-42.) Finally, the PSP demurs to Petitioner’s contract
related claims by alleging that: (1) the PSP is not liable for breach of contract
because the PSP is not a party to the plea agreement between Petitioner and the
Commonwealth; and (2) assuming that the PSP is a party to the plea agreement, a
claim against the PSP is barred by sovereign immunity. (POs ¶¶ 38-40.)
The PSP conceded at oral argument that, if Petitioner provided it with a
sentencing order clearly showing that Petitioner was only required to register for
ten years pursuant to a plea agreement, the PSP would be required to remove
Petitioner from the registry after the ten year period expires. In light of this
concession, Petitioner requested this Court at oral argument to stay further action
on the claims asserted in the Petition for Review until Petitioner provides the PSP
with his sentencing order and the PSP makes a determination as to whether the
sentencing order clearly requires Petitioner to be removed from the registry once
the ten year period expires.
4
We agree that, in the interest of judicial economy, we should hold our
resolution of Petitioner’s claims in abeyance. Should Petitioner provide the PSP
with a sentencing order clearly stating that Petitioner is only required to register for
ten years per a plea agreement, Petitioner’s constitutional claims related to
Petitioner’s registration requirement under SORNA would become moot.
Accordingly, we stay resolution of the PSP’s POs and direct Petitioner to provide
the PSP and this Court with his sentencing order and any other relevant document
showing that a ten year registration period was part of his plea agreement.
________________________________
RENÉE COHN JUBELIRER, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph J. Dougherty, :
:
Petitioner :
:
v. : No. 537 M.D. 2014
:
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
:
Respondent :
ORDER
NOW, January 12, 2016, Joseph J. Dougherty’s (Petitioner) oral motion to
stay the disposition of the preliminary objections filed by the Pennsylvania State
Police of the Commonwealth of Pennsylvania (PSP) made during the September
16, 2015 oral argument is GRANTED. Petitioner is hereby ordered to provide the
PSP and this Court with his sentencing order and any other document showing that
his plea agreement required him to register for only ten years within fifteen (15)
days of this Order, and the PSP shall advise Petitioner and this Court of its
determination based thereon within thirty (30) days of receipt thereof.
________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph J. Dougherty, :
Petitioner :
:
v. : No. 537 M.D. 2014
: Argued: September 16, 2015
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
CONCURRING OPINION BY
JUDGE LEADBETTER FILED: January 12, 2016
I agree with the result reached by the majority in this case. I write
separately to emphasize, as I did in my concurring and dissenting opinion in Taylor
v. Pennsylvania State Police (Pa. Cmwlth., No. 532 M.D. 2014, filed January 12,
2016) that there are important differences between distinct causes of action and it
is not the job of courts to parse factual allegations and re-frame pleadings to rectify
the mistakes of counsel.1 The nature of the cause of action before the court affects
considerations of statute of limitations, immunity, subject matter jurisdiction, etc.
If, say, a contract claim is asserted but the recited facts allege the elements of
negligence, or perhaps some statutory claim, how is the respondent to know
whether to reply to the pleading or to some manner in which the court may re-
fashion it? I agree that this case should be held in abeyance, but I firmly believe
that ordinarily the proper course is to dismiss without prejudice and require the
petitioner to clarify his intent.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
1
I note here that, in addition to referring to this as a mandamus claim, petitioner’s factual
allegations would seem to suggest a misjoinder of constitutional and contract law claims.
BBL-2