[J-36-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
A.S., : No. 24 MAP 2014
:
Appellee : Appeal from the Order of the
: Commonwealth Court at No. 473 MD
: 2012, dated March 7, 2014
v. :
:
:
PENNSYLVANIA STATE POLICE, :
:
Appellant : ARGUED: March 8, 2016
OPINION
JUSTICE DOUGHERTY DECIDED: August 15, 2016
In this appeal by the Pennsylvania State Police (PSP) from a grant of mandamus
relief, we revisit an issue that evenly divided the Court in Commonwealth v. Gehris, 54
A.3d 862 (Pa. 2012), concerning the proper construction of the lifetime-registration
triggering language “two or more convictions” in Pennsylvania’s former sex offender
registration statute, Megan’s Law II (formerly codified at 42 Pa.C.S. §9795.1(b)(1)
(superseded)).1 In accordance with the Gehris Opinion in Support of Reversal (OISR),
1
Megan’s Law II was succeeded by Megan’s Law III (Act 152 of 2004), which in turn
was superseded by the Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S. §§9799.10-9799.41, which became effective over ten years after appellee’s
registration obligation began. The issue of whether appellee is subject to lifetime
registration is a Megan’s Law II question, not a SORNA question.
The Court has granted review in a separate appeal involving the same basic provision,
as retained under SORNA, Commonwealth v. Lutz-Morrison, __ A.3d __ (Pa. 2016),
also decided today.
as supplemented by our analysis below, we hold the provision, considered in the
context of the statutory language as a whole, is amenable to two reasonable
constructions; and we further hold the statute, which sets forth a graduated scheme of
registration, encompasses a recidivist philosophy.2 We therefore conclude the statute
requires an act, a conviction, and a subsequent act to trigger lifetime registration for
multiple offenses otherwise triggering a ten-year period of registration. Accordingly, we
affirm.
Section 9795.1 provided, in relevant part, as follows:
(a) Ten-year registration.-- Except as set forth in subsection (a.1) or
(b), the following individuals shall be required to register with the
Pennsylvania State Police for a period of ten years:
(1) Individuals convicted of any of the following offenses:
18 Pa.C.S. § 2901 (relating to kidnapping) where the victim is a
minor.
18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or
structure).
18 Pa.C.S. § 3124.2 (relating to institutional sexual assault).
18 Pa.C.S. § 3126 (relating to indecent assault) where the offense
is graded as a misdemeanor of the first degree or higher.
18 Pa.C.S. § 4302 (relating to incest) where the victim is 12 years
of age or older but under 18 years of age.
18 Pa.C.S. § 5902(b) or (b.1) (relating to prostitution and related
offenses) where the actor promotes the prostitution of a minor.
2
The Gehris OISR explained: “[t]he essence of the recidivist philosophy is to afford first-
time offenders (or offenders convicted of less serious offenses) some amount of time
within which to modify their behavior away from criminality. Should they fail to take
advantage of the opportunity, and transgress a second time or more, the ‘next’ sentence
will be more severe.” Gehris, 54 A.3d at 875 (OISR by Castille, C.J., joined by Saylor
and Baer, JJ.).
[J-36-2016] - 2
18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to obscene and
other sexual materials and performances) where the victim is a
minor.
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
(2) Individuals convicted of an attempt, conspiracy or solicitation to
commit any of the offenses under paragraph (1) or subsection
(b)(2).
***
(b) Lifetime registration.--The following individuals shall be subject to
lifetime registration:
(1) An individual with two or more convictions of any of the
offenses set forth in subsection (a).
(2) Individuals convicted:
(i) in this Commonwealth of the following offenses:
18 Pa.C.S. § 3121 (relating to rape).
18 Pa.C.S. § 3123 (relating to involuntary deviate
sexual intercourse).
18 Pa.C.S. § 3124.1 (relating to sexual assault).
18 Pa.C.S. § 3125 (relating to aggravated indecent
assault).
18 Pa.C.S. § 4302 (relating to incest) when the victim is
under 12 years of age.
***
(3) Sexually violent predators.
42 Pa.C.S. §9795.1(a)-(b) (emphases added). Under both Megan’s Law II and SORNA,
PSP is tasked with maintaining Pennsylvania’s sex offender registry. 42 Pa.C.S.
§9799.1(1) (Megan’s Law II) (superseded); 42 Pa.C.S. §9799.16 (SORNA).
[J-36-2016] - 3
This dispute arose after appellee had completed his sentence for the underlying
crimes. Proceeding under a belief he was subject to a ten-year SORNA registration
period (a belief shared at sentencing by the court and the prosecutor), appellee filed a
Petition for Review in the Nature of a Complaint in Mandamus in the Commonwealth
Court’s original jurisdiction on July 19, 2012, shortly before expiration of that period.
The petition sought to compel PSP to correct appellee’s sexual offender registration
status from lifetime registrant to ten-year registrant and to remove him from the registry
when the ten-year period expired. In the course of litigation, the parties attached
exhibits including the transcripts from appellee’s guilty plea and sentencing
proceedings; ultimately, the parties stipulated discovery was unnecessary and cross-
motions for summary judgment were filed.
The facts respecting sex offender registration are thus undisputed. Appellee was
twenty-one years old when he met the sixteen-year-old female victim on-line late in
1999. Appellee developed a relationship with the victim which ultimately resulted in a
series of sexual encounters. The age of consent in Pennsylvania is sixteen, see 18
Pa.C.S. §3122.1; thus, the consensual sexual relationship itself was not criminal.
However, during the course of the relationship, appellee persuaded the victim to take
and transmit sexually explicit photographs of herself and he also photographed the two
engaging in sexual acts. It is a crime to photograph or cause to be photographed a
minor engaging in consensual sex and causing a minor to take sexual photographs of
herself. 18 Pa.C.S. §6312(d).
After the victim’s father found sexually explicit photographs on the victim’s
computer and reported them to police, appellee admitted to the sexual relationship, as
well as the explicit photographs taken by him and taken by the victim at his request.
[J-36-2016] - 4
In December 2000, a criminal complaint was filed in Montgomery County
charging appellee, a first-time offender, with seven counts of sexual abuse of children
(photographing, videotaping, depicting on computer, or filming sexual acts), twenty
counts of sexual abuse of children (possession of child pornography, relating to other
images of child pornography found on his computer), and single counts of unlawful
contact with a minor, corruption of minors, and criminal solicitation.3
On October 5, 2001, appellee entered an open guilty plea to single counts of
sexual abuse of children and unlawful contact with a minor — each of which was an
enumerated offense for purposes of Megan’s Law II reporting under Section 9795.1(a)
— and corruption of minors, which was not. The remaining charges were withdrawn.
Sentencing was deferred for a pre-sentence report and sexual offender assessment.
On February 28, 2002, appellee was sentenced to concurrent 5- to 23-month
terms of imprisonment on the first two counts and a consecutive five-year probationary
term for corruption of minors. As required by Megan’s Law II, the court also informed
appellee a collateral consequence of his convictions required him to register as a sex
offender. See 42 Pa.C.S. §9795.3. The parties and the trial court believed appellee
was subject to a ten-year registration period, not lifetime registration. See N.T. 2/28/02
at 29-30, 45. Thus, appellee’s mother testified, “My son made a mistake, a terrible,
terrible error in his life that’s affected him. He’s been punished. He will be punished.
He has a ten-year reporting component to this punishment[,]” to which the trial court
replied, “I know.” Id. at 29-30. The trial prosecutor confirmed, “He’s now facing a ten-
year registration for Megan’s Law. That’s true. But why is he facing this ten-year
registration? He is because what he did is a serious offense.” Id. at 45. In addition,
3
18 Pa.C.S. §§6312(b), 6312(d), 6318(a)(5), 6301(a)(1)(i), and 902(a), respectively.
[J-36-2016] - 5
appellee was found not to be a sexually violent predator (SVP), and thus he was not
subject to lifetime registration under the provision applicable to SVPs. Id. at 59-60; see
42 Pa.C.S §9795.1(b)(3). The court further found appellee was unlikely to reoffend.
N.T. 2/28/02 at 63, 68. Finally, the court advised appellee of the potential criminal
consequences of the registration requirement: he would commit a felony of the third
degree if he failed to fulfill his obligations under Megan’s Law II. Id. at 60.
After appellee was released from prison, he duly registered as a sex offender
with the PSP on August 2, 2002; he then successfully completed all aspects of his
criminal sentence and complied with all aspects of his reporting obligation. See
Appellee’s Petition for Review at 3; Appellant’s Preliminary Objections at 1. Appellee
contacted PSP and requested removal of his name from the registry after August 2,
2012, but PSP refused, claiming his guilty plea to both sexual abuse of children and
unlawful contact with a minor triggered lifetime registration under Section 9795.1(b)(1),
because he was “an individual with two or more convictions” of offenses listed in
subsection (a). See Appellee’s Petition for Review at 4; Appellant’s Preliminary
Objections at 2; Appellant’s Motion for Summary Judgment at 5-6.
PSP’s refusal to remove appellee’s name from the registry led to this mandamus
action. A divided en banc Commonwealth Court, in a published opinion authored by
then-President Judge Pellegrini, granted appellee’s motion for summary judgment and
denied PSP’s cross-motion. The court accordingly directed PSP to change appellee’s
designation as a lifetime registrant to a ten-year registrant. A.S. v. Pennsylvania State
Police, 87 A.3d 914, 923 (Pa. Cmwlth. 2014) (en banc).
The majority below characterized the question as involving whether appellee’s
guilty plea to two separate crimes involving photographs of the same minor constituted
one or two convictions for purposes of Section 9795.1(b)(1). The court then examined
[J-36-2016] - 6
Gehris, where the evenly-divided Court affirmed a determination of lifetime registration
by operation of law, with the dispositive order accompanied by an Opinion in Support of
Affirmance (OISA) by Justice Todd (joined by former Justices Eakin and McCaffery) and
an OISR by former Chief Justice Castille (joined by Justices Saylor (now Chief Justice)
and Baer).
After summarizing those opinions, which will be more fully described below, the
court deemed the Gehris OISR to be more persuasive. In the court’s view, failure to
adopt the OISR approach would render the distinction between the ten-year registration
in subsection (a) and the lifetime requirement in subsection (b) “meaningless,” since
every event involving a minor taking his or her own picture could support multiple
charges and convictions. In addition, the court opined, the OISR interpretation fostered
the purpose of the statute, “which allows a person to reform” in the ten-year registration
period, and provided a bright-line for administration. A.S., 87 A.3d at 922. The court
then concluded appellee’s conduct arose from a single criminal episode and one
“logically related act,” id. at 922 & n.11, citing and discussing Commonwealth v. Hude,
458 A.2d 177 (Pa. 1983), rendering it one conviction, leading to a ten-year registration
period. A.S., 87 A.3d at 923.
Judge Brobson authored a dissenting opinion, which Judge Leadbetter joined.
The dissent noted the majority’s interpretation was in tension with the Superior Court’s
decision in Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), and subsequent
decisions applying Merolla, including the unreported panel decision in Gehris.4 The
4
The issue in Merolla was raised in the Commonwealth’s appeal from the judgment of
sentence, where the Commonwealth argued Merolla’s plea of nolo contendere to two
separate counts of indecent assault constituted two convictions, requiring lifetime
registration. The panel looked to criminal sentencing decisions of this Court involving
the recidivist philosophy and the “three strikes statute,” see 42 Pa.C.S. §9714; stressed
Section 9714(a)(2) had language referring to the person having “previously” been
(continuedP)
[J-36-2016] - 7
dissent recognized “it may be a reach to pronounce the law on this issue settled finally,”
but noted the question was settled in the Superior Court and Merolla’s statutory
analysis, which was approved by the Gehris OISA, was sufficiently compelling not to
adopt a contrary reading, which would lead to confusion.5 Id. at 929-30 (Brobson, J.,
dissenting).
On this direct appeal, the parties track and supplement the positions in the
Gehris opinions concerning the proper construction of Section 9795.1(b)(1). PSP
maintains any person with two or more qualifying convictions at the moment of
sentencing, such as appellee, is subject to lifetime registration. PSP claims it properly
interpreted and applied the statute and appellee had no right to mandamus relief.
PSP develops the provision is clear and unambiguous, appellee pleaded guilty to
two qualifying offenses, and the Commonwealth Court was obliged to look no further.
(Pcontinued)
convicted, while Megan’s Law II had no such language; and stressed Section 9714 was
a penal provision, while the reporting requirements in Megan’s Law II are directed at
public safety. Based on its “literal” reading, the panel concluded lifetime registration
was required, stressing such “heightened registration is not an additional punishment.”
Merolla, 909 A.2d at 345-47.
Notably, the panel did not discuss the counter-arguments, if any, forwarded by Merolla.
5
Notably, the dissent found appellee’s second argument, which the majority did not
address given its disposition, distinguished Gehris. Appellee argued the Legislature
could not have intended the difference between ten-year and lifetime registration to
depend on the number of existing convictions in a circumstance where the offender
engaged in a single act resulting in multiple convictions. A.S., 87 A.3d at 931.
Specifically, appellee argued the elements of the two predicate offenses of sexual
abuse of children and unlawful contact overlap in such a way that an individual could
commit both offenses by a single act, such as here, where he contacted the victim to
cause her to photograph herself engaging in a sexual act. Id. The dissent opined it
would be unreasonable and absurd to hold an offender was subject to lifetime
registration where the offender engaged in a single act, but concluded a genuine issue
of material fact existed as to whether the two offenses here involved such a single act.
Therefore, the dissent found the question could not be resolved on summary judgment
and the case should be remanded. Id. at 931-34.
[J-36-2016] - 8
PSP asserts the panel majority’s finding that appellee’s conduct was one logically
related act, making his two convictions one, cannot be squared with the plain language
of the statute or applicable canons of statutory construction. PSP notes the panel failed
to account for the fact the phrase “two or more convictions” is clear and unambiguous,
as recognized in both Gehris opinions. PSP stresses a single prosecution and court
proceeding may result in multiple convictions, as happened here. PSP believes the
panel inserted words into the statute which are not present in the text.
Assuming an ambiguity exists, PSP posits, the General Assembly clearly
intended “two or more convictions” to encompass multiple convictions from a single
criminal episode. PSP relies on the fact the phrase “two or more convictions” remained
unchanged in Megan’s Law III and SORNA, which it believes signaled the General
Assembly approved of the existing interpretation of Section 9795.1(b)(1) by the
intermediate court in Merolla.
PSP finally contends the panel incorrectly relied on the recidivist philosophy as
that philosophy is a sentencing concept having no bearing on the intent behind a non-
penal public protection law. PSP posits the purpose of Megan’s Law II was not to
punish, but rather to protect the public, and so the recidivist philosophy is not a reliable
guide to legislative intent. Appellant’s Brief at 40, citing, e.g., Commonwealth v. Leidig,
956 A.2d 399, 404-06 (Pa. 2008).
Appellee responds that the Commonwealth Court, after considering the General
Assembly’s policy declaration and the graduated two-tier structure of the statute,
correctly found Section 9795.1(b)(1) to be ambiguous when read in the context of the
entirety of Megan’s Law II. Appellee notes a single judgment of conviction follows from
each criminal case regardless of the number of guilty counts. Appellee then contends
Section 9795.1(b)(1) has a latent ambiguity, revealed when the plural term “convictions”
[J-36-2016] - 9
is applied to offenses arising from the same criminal act, episode, or course of conduct.
He reasons the ambiguity does not arise from confusing words, but from a disparity
between what the statute states is the desired result and a flawed methodology which
could prevent that result if a term is construed in a certain way. Appellee maintains it is
evident Section 9795.1(b)(1) is ambiguous as reasonable minds could, and have,
disagreed about the meaning of “two or more convictions” in the context of the overall
statutory construct.
Appellee further contends the panel majority correctly discerned a recidivist
philosophy reflected in the statute. Appellee concedes the registration provision is
facially remedial as its intent is to protect the public from sexual offenders. However, he
notes the statute can also be interpreted as penal because an individual who fails to
register is subject to criminal prosecution. Appellee notes, in a prosecution for failure to
register, a penal context, he would have the benefit of the construction precept that
penal statutes must be strictly construed, i.e., the “rule of lenity.” See 1 Pa.C.S.
§1928(b)(1). Relatedly, appellee contends, where an ambiguity exists in the language
of a penal statute, such language should be interpreted in the light most favorable to the
defendant. See Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001).
Continuing with this theory, appellee posits there is a need for uniformity in
interpreting statutes having application in both penal and non-penal contexts.
Appellee’s Brief at 33-34, citing Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Even if §
16 [18 U.S.C. § 16, defining “crime of violence”] lacked clarity on this point, we would be
constrained to interpret any ambiguity in the statute in petitioner’s favor. Although here
we deal with § 16 in the deportation context, § 16 is a criminal statute, and it has both
criminal and noncriminal applications. Because we must interpret the statute
consistently, whether we encounter its application in a criminal or noncriminal context,
[J-36-2016] - 10
the rule of lenity applies.”).6 Appellee argues the canon of strict construction logically
should apply whether he is a ten-year or lifetime registrant and regardless of whether
the issue arises related to correctly ascertaining his duty to register under Section
9795.1(b)(1) or in a prosecution for failure to register.
In appellee’s view, the General Assembly’s graduated, two-tier registration
regime, in addition to creating ambiguity, is a compelling indication a recidivist
philosophy infuses Section 9795.1(b)(1). Appellee posits the tiers were designed to
segregate less serious, first-time offenders from more serious, violent, or repeat
offenders and establish dramatically different periods of supervision. Appellee further
notes many, if not all, of the ten-year registration offenses involve crimes where a single
non-violent episode may easily generate multiple violations. Appellee concludes that, to
prevent evisceration of the two-tier structure, the Court should affirm that Section
9795.1(b)(1) does not apply to offenders whose two first-time convictions arose from a
single charging document and a single, non-violent course of criminal conduct.
The issue involves statutory interpretation, which is a question of law, and our
review is plenary and non-deferential. See, e.g., Commonwealth v. Conklin, 897 A.2d
1168, 1175 (Pa. 2006).7 In such cases, the Statutory Construction Act directs courts to
6
PSP, which filed a reply brief, does not specifically respond to appellee’s reliance upon
Leocal, but repeats that Megan’s Law II was simply not a penal law subject to strict
construction. In addition, PSP notes the rule of lenity was invoked by the dissent in
Commonwealth v. Wilgus, 40 A.3d 1201, 1210 (Pa. 2012) (Castille, C.J., dissenting,
joined by Baer, J.), a case involving prosecution for failing to register, but the Wilgus
majority did not discuss the rule.
7
The action below sounded in mandamus, which “lies only ‘to compel official
performance of a ministerial act or mandatory duty where there is a clear legal right in
the plaintiff, a corresponding duty in the defendant, and a lack of any other adequate
and appropriate remedy at law.’” See Crozer Chester Med. Ctr. v. Dep't of Labor &
Indus., 22 A.3d 189, 193 (Pa. 2011), quoting Delaware River Port Auth. v. Thornburgh,
493 A.2d 1351, 1355–56 (Pa. 1985).
(continuedP)
[J-36-2016] - 11
ascertain and effectuate the intent of the General Assembly. Id., citing 1 Pa.C.S.
§1921(a). “The statute’s plain language generally provides the best indication of
legislative intent.” See, e.g., McGrory v. Dep’t of Transp., 915 A.2d 1155, 1158 (Pa.
2007); Commonwealth v. Gilmour Mfg. Co., 822 A.2d 676, 679 (Pa. 2003). It is only
when statutory text is determined to be ambiguous that we may go beyond the text and
look to other considerations to discern legislative intent. “Where statutory or regulatory
language is ambiguous, this Court may resolve the ambiguity by considering, inter alia,
the following: the occasion and necessity for the statute or regulation; the circumstances
under which it was enacted; the mischief to be remedied; the object to be attained; the
former law, if any, including other statutes or regulations upon the same or similar
subjects; the consequences of a particular interpretation; and administrative
interpretations of such statute.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas.
Co., 131 A.3d 977, 984 (Pa. 2016), citing 1 Pa.C.S. §1921(c).
In this appeal, we have the advantage of not writing upon a blank slate: the
Gehris OISA and OISR each offered a developed, reasoned expression concerning the
meaning of Section 9795.1(b)(1)’s text “[a]n individual with two or more convictions of
any of the offenses set forth in subsection (a).” The opinions agreed there was no facial
ambiguity in that sentence. See Gehris, 54 A.3d at 862 (OISA) (stressing “clear and
unambiguous language chosen by the legislature”); id. at 874-75 (OISR) (“In and of
itself, subsection (b)(1) P is not ambiguous or unclear.”) In addition, the OISA
acknowledged the OISR offered “a reasoned, plausible, policy-based rationale for
(Pcontinued)
PSP does not dispute mandamus relief is appropriate if we were to sustain appellee’s
reading of the statute. The question thus focuses narrowly on the proper construction.
[J-36-2016] - 12
interpreting [subsection] (b)(1) as reflecting a recidivist philosophy.” Id. at 862 (OISA).
The OISA concluded, however, the plain language of subsection (b)(1) — which, unlike
other statutes where a recidivist philosophy had been discerned8 — contained “no
temporal separation” between commission of the enumerated offenses, constrained the
Court from concluding a recidivist philosophy animated the provision. Id. at 866-68.9
For its part, the Gehris OISR reviewed prior cases, both from this Court and the
United States Supreme Court, involving the recidivist philosophy.10 Because we are
ultimately persuaded by the core of the OISR’s ensuing analysis (as supplemented by
additional points developed below), we simply reproduce its essence here:
[W]e are satisfied that Section 9795.1, which sets forth a graduated
scheme for Megan’s Law registration, similar in nature to the graduated
schemes discussed in this Court’s prior case law, encompasses the
recidivist philosophy in addition to its perhaps more obvious goals of
public protection and deterrence. Of course, registration may not be
punitive for purposes of the constitutional protections afforded to
offenders, as this Court concluded in [Commonwealth v.] Williams[, 832
A.2d 962 (Pa. 2003)]. Nevertheless, registration obviously has serious and
restrictive consequences for the offender, including prosecution if the
requirement is violated. Registration can also affect the offender's ability
8
See Commonwealth v. McClintic, 909 A.2d 1241 (Pa. 2006) (construing “three strikes”
provision in Sentencing Code, i.e., 42 Pa.C.S. § 9714); Commonwealth v. Shiffler, 879
A.2d 185 (Pa. 2005) (same); Commonwealth v. Dickerson, 621 A.2d 990 (Pa. 1993)
(same); Commonwealth v. Jarowecki, 985 A.2d 955 (Pa. 2009) (construing Crimes
Code grading provision governing possession of child pornography, i.e., 18 Pa.C.S.
§6312).
9
The OISA also explained why it concluded the statute was not a penal provision
subject to strict construction in favor of the defendant. Gehris, 54 A.3d at 865 (OISA).
10
In addition to discussing the sentencing cases cited in the OISA (Dickerson, Shiffler,
McClintic and Jarowecki), the OISR briefly noted Supreme Court opinions supporting
that certain sentencing schemes “imply a recidivist philosophy.” Gehris, 54 A.3d at 875,
citing Sykes v. United States, 564 U.S. 1 (2011); United States v. Rodriquez, 553 U.S.
377 (2008).
[J-36-2016] - 13
to earn a livelihood, his housing arrangements and options, and his
reputation. See also Fross v. County of Allegheny, 610 Pa. 421, 20 A.3d
1193 (2011).
The “two or more convictions” language in subsection (b) seems
clear and unambiguous on the surface. But if Section 9795.1 is viewed as
a whole and the General Assembly’s legislative findings and declaration of
policy at 42 Pa.C.S. §9791 are read closely, it is clear that the primary
concern is with sexually violent predators. Considering the nine
subsections in Section 9791, the term “sexually violent predator” appears
nine times, particularly in the provision addressing repeat offenders:
“sexually violent predators pose a high risk of engaging in further offenses
even after being released from incarceration or commitments and that
protection of the public from this type of offender is a paramount
governmental interest.” 42 Pa.C.S. §9791(a)(2). References to
nonviolent offenders are comparatively few, just four in all, and two of
these pertain specifically to recent amendments accounting for the
circumstance of released “offenders” who may be homeless or without a
“fixed place of habitation.” See 42 Pa.C.S. §9791(a)(1) & (b)(3); see also
Commonwealth v. Wilgus, 40 A.3d 1201 (Pa. 2012).
It is evident that in drafting Section 9795.1, the General Assembly
meant to set up a graduated registration scheme. In this tiered approach,
more serious (primarily violent) offenders and “true” recidivists who
squander a given opportunity to reform are understandably subject to
lifetime requirements. By contrast, lesser, first-time offenders, especially
those who are nonviolent, receive an opportunity for rehabilitation and
eventual freedom from the requirements if they “stay on the path” for ten
years.
Without in any way condoning the criminal conduct that led
appellant to his current circumstances, we would conclude that the record
in this case directs application of the ten-year registration requirement.
Appellant’s two Megan’s Law offenses were nonviolent, perhaps triggered
by situational problems in his marriage and career, and arose out of the
same course of conduct, which ultimately did not result in direct harm to
any actual victims. Appellant had no criminal past, much less a history of
Megan’s Law offenses, and was taken into custody without resisting. In
open court, he expressed remorse and regret and accepted responsibility
for his actions. He voluntarily undertook psychotherapy and has
embraced the treatment, was not found to be a sexually violent predator
and, in fact, was described by a former SOAB [Sexual Offenders
Assessment Board] member as a good candidate for rehabilitation. It is
true that appellant was convicted of “two or more” Megan’s Law
subsection (a) offenses, and without consideration of how this statutory
scheme falls within the sphere of [the] recidivist philosophy legislation
[J-36-2016] - 14
detailed above, a strict, mechanical application of Section 9795.1(b) would
result in imposition of the lifetime registration requirement. But, we would
conclude that Section 9795.1 embodies the recidivist philosophy and
reflects a belief that first-time and lesser offenders are capable of reform
and rehabilitation if given an opportunity to do so under the still-punitive
aegis of relatively lighter discipline, as well as the threat of harsher
treatment next time, should there be a next time. P
Gehris, 54 A.3d at 878-79 (OISR).11
To this analysis, we add the following points. A statute is ambiguous when there
are at least two reasonable interpretations of the text. See Freedom Med. Supply, 131
A.3d at 984; Warrantech Consumer Prod. Servs. v. Reliance Ins. Co. in Liquidation, 96
A.3d 346, 354-55 (Pa. 2014); Delaware County v. First Union Corp., 992 A.2d 112, 118
(Pa. 2010). In construing and giving effect to the text, “’we should not interpret statutory
words in isolation, but must read them with reference to the context in which they
appear.” Roethlein v. Portnoff Law Assoc., 81 A.3d 816, 822 (Pa. 2013), citing Mishoe
v. Erie Ins. Co., 824 A.2d 1153, 1155 (Pa. 2003). Accord Commonwealth v. Office of
11
In a footnote, Justice Todd’s dissent posits that our reading of the statute means that
an individual who lures a child into a motor vehicle, kidnaps the child, and forces the
child to participate in prostitution and child pornography would need only register as a
sex offender for ten years. Dissenting slip op. at 7, n. 1. However, Section 9795.1
makes clear an individual deemed to be a sexually violent predator is subject to lifetime
registration. Furthermore, 42 Pa.C.S §9795.4 states, “[a]fter conviction, but before
sentencing, a court shall order an individual convicted of an offense specified in Section
9795.1 (relating to registration) to be assessed by the board.” 42 Pa.C.S §9795.4(a).
Included in those specified crimes are all the crimes referenced by the dissent. 42
Pa.C.S §9795.1. Following the assessment by the Board, the district attorney may
request a hearing allowing the court to determine whether the Commonwealth has
proved the offender to be a sexually violent predator by clear and convincing evidence.
42 Pa.C.S. §9795.4(e). Thus, contrary to the dissent’s assertion, those convicted of
multiple crimes which normally would be subject to only a ten year registration period
may indeed be subject to lifetime registration regardless of this decision; indeed, the
dissent’s hypothetical, properly analyzed, shows the balanced, graduated operation of
the scheme.
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Open Records, 103 A.3d 1276, 1285 (Pa. 2014) (party’s argument that statutory
language is ambiguous “depends upon improperly viewing it in isolation;” when
language is properly read together and in conjunction with rest of statute, legislative
intent is plain). The United States Supreme Court also takes a contextual approach in
assessing statutes and in determining predicate ambiguity. See generally King v.
Burwell, ___ U.S. ___, 135 S.Ct. 2480, 2489 (2015) (“If the statutory language is plain,
we must enforce it according to its terms. But oftentimes the meaning — or ambiguity
— of certain words or phrases may only become evident when placed in context. So
when deciding whether the language is plain, we must read the words in their context
and with a view to their place in the overall statutory scheme.” (internal quotation marks
and citations omitted)); Yates v. United States, ___ U.S. ___, 135 S.Ct. 1074, 1081-82
(2015) (“Whether a statutory term is unambiguous, however, does not turn solely on
dictionary definitions of its component words. Rather, ‘[t]he plainness or ambiguity of
statutory language is determined [not only] by reference to the language itself, [but as
well by] the specific context in which that language is used, and the broader context of
the statute as a whole.’ Ordinarily, a word’s usage accords with its dictionary definition.
In law as in life, however, the same words, placed in different contexts, sometimes
mean different things.” (internal citations omitted)).
Neither the OISA nor the OISR in Gehris cited this precept advising a contextual
approach to assessing legislative intent and statutory ambiguity. The OISR’s approach
in considering the overall statute, including legislative policy findings, in ascertaining the
legislative intent and finding Section 9795.1 to be ambiguous is consonant with that
principle. Compare Roethlein, 81 A.3d at 822-24 (disapproving lower court’s focus on
two words (“excess charges”) in Loan Interest and Protection Law, 53 P.S. §§7101-
7505, in isolation; in discerning plain meaning of statute, Court considered definitional
[J-36-2016] - 16
provisions, other substantive provisions, and statute’s title and preamble, ultimately
concluding language was not ambiguous).
Second, also respecting whether the language, considered in context, is
reasonably amenable to multiple interpretations, there is a cautionary factor here that
was not present in Gehris or Merolla. Those cases involved appeals from the judgment
of sentence: the issue of ten years versus lifetime registration was actually contested at
the sentencing proceeding. Sentencing in this case occurred over four years before
Merolla and there was no dispute: the prosecutor, appellee and the trial judge all
believed this first-time offender, who was not a sexually violent predator, was subject to
ten-year registration.12 The dispute here arose only when PSP, ten years later, and after
Merolla had been decided, acted upon a different interpretation of the text.
The implications of Megan’s Law II figured in trials and guilty pleas on a daily
basis in the Commonwealth. The fact that it never occurred to those in the trenches in
this particular case in 2002 that a first-time, non-violent and non-SVP offender could be
subject to anything but the lower-tier period of registration provides some further
measure of support to the conclusion that the provision, considered in context, is at
least reasonably amenable to multiple interpretations.
Third, although we have indeed held the registration provision is not punitive for
purposes of constitutional challenges, the circumstances here suggest the question of
strict construction may be more complex and nuanced than the Court had reason to
12
It is true the registration term was not part of a negotiated plea, but the shared
understanding may have factored into counsel’s advice to his client respecting entry of
an open plea. The question of whether a negotiated plea agreement which included
obligations under sexual offender registration legislation is enforceable under SORNA is
pending before the Court in Commonwealth v. Martinez, Nos. 30, 32 & 34 MAP 2015
(argued the same day as this appeal) (construing SORNA’s effect upon such plea
agreements reached under Megan’s Law II). Appellee does not forward a contract-
based argument similar to the one at issue in Martinez.
[J-36-2016] - 17
appreciate previously. Whether the statute is deemed a penal one subject to the rule of
lenity and strict construction or not (we do not deny the force in PSP’s reliance upon
existing authority), the fact is that interpretations — and predictions — of the statute’s
effect have to be made by different persons and entities at different times: prosecutors
in charging decisions, defense counsel in rendering advice, defendants in determining
courses of action, trial judges in imposing sentence, courts on appeal, PSP in
enforcement, and then the defense, prosecution and courts repeated again if the
defendant is charged with violating his or her registration obligation. Given the obvious
burden of registration and the potentially serious criminal consequences of a lapse, as
recognized in the Gehris OISR, 54 A.3d at 878, to state the law is not “penal” is little
answer to a defendant who had good reason to believe he had done all required of him,
only to find himself staring at lifetime registration. At a minimum, the circumstances
suggest appellee’s argument premised upon the imperative for consistent interpretation
of a statute having both penal and non-penal consequences, as recognized by the
United States Supreme Court in Leocal, supra, has more force than the Court had
reason to believe in addressing questions of strict construction and the rule of lenity in
other contexts, including the narrower context presented in Gehris.13,14
13
We caution we do not purport to resolve the question whether registration provisions
such as this one warrant strict construction, but merely seek to highlight points revealed
here, which were not made apparent in Gehris.
14
We respect that Justice Todd remains unconvinced by the analysis in the Gehris
OISR, as supplemented by the Court today. However, we obviously disagree with our
learned colleague’s suggestion, Dissenting slip op. at 7, that we have not explained how
the language of Section 9795.1(b)(1), when viewed in context, is ambiguous. See
Gehris, 54 A.3d at 878-70 (OISR) (explaining a close reading of Section 9795.1, as a
whole, and the legislative findings and declaration of policy at 42 Pa.C.S. §9791, make
clear the primary concern of the statute is with sexually violent predators and not with
nonviolent offenders).
[J-36-2016] - 18
Fourth and finally, and returning to the subject of predicate ambiguity, we note
there is some validity in the point made in the dissent below that it would be absurd and
unreasonable if a single act, giving rise to a single prosecution yielding two convictions
for overlapping predicate offenses, subjected an offender to lifetime registration.15
In conclusion, we hold the statute requires an act, a conviction, and a
subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a
ten-year period of registration. Accordingly, the award of mandamus relief is hereby
affirmed.
Former Justice Eakin did not participate in the consideration or decision of this
matter.
Chief Justice Saylor and Justices Baer and Donohue join the opinion.
Justice Donohue files a concurring opinion.
Justice Todd files a dissenting opinion.
Justice Wecht files a dissenting opinion.
15
Contrary to PSP’s position, we do not believe the General Assembly’s passage of
virtually identical language in SORNA signals approval of Merolla or counsels a different
result. As PSP otherwise recognizes, the Statutory Construction Act provides such a
presumption regarding legislative intent may arise “when a court of last resort” has
construed statutory language and the General Assembly, in a subsequent enactment,
opts not to change the language. See 1 Pa.C.S. §1922(4); Commonwealth v.
Wanamaker, 296 A.2d 618, 624 (Pa. 1972). Merolla was not a decision by this Court.
Furthermore, the stated purpose of SORNA was not directed to PSP’s consideration,
but primarily focused upon bringing Pennsylvania sex offender registration law into
compliance with the federal Adam Walsh Child Protection and Safety Act. See 42
Pa.C.S. §9799.10; see also In re J.B., 107 A.3d 1, 3 (Pa. 2014). Additionally, PSP cites
no affirmative indicator, in the legislative history or otherwise, that the General
Assembly was focused upon, or intending to approve, Merolla. Finally, for the reasons
stated in the text, we do not believe the “literal” reading adopted in Merolla accurately
reflects the legislative intent.
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