IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.R., :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 127 M.D. 2019
Respondent : Submitted: August 28, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: November 10, 2020
Before the Court, in our original jurisdiction, are the Preliminary
Objections filed by the Pennsylvania State Police (PSP) to the Petition for Review
filed by J.R. (Petitioner). Representing himself, Petitioner seeks a declaration that
he is not required to register as a sex offender with PSP under the Sexual Offender
Registration and Notification Act (SORNA), Act of February 21, 2018, P.L. 27 (Act
10), 42 Pa.C.S. §§ 9799.10-9799.75, as amended by the Act of June 12, 2018, P.L.
140 (Act 29) (collectively, Act 10 or SORNA II), and that SORNA II is
unconstitutional as applied to him under Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017), cert. denied sub nom. Pennsylvania v. Muniz, __ U.S. __, 138 S.Ct. 925
(2018).1 PSP asserts that Petitioner fails to state a cognizable claim. For the reasons
stated herein, we overrule PSP’s Preliminary Objections.
By way of brief statutory background, beginning in 1995,
Pennsylvania’s General Assembly enacted a series of statutes and amendments
requiring sex offenders living within the Commonwealth to register for varying
periods of time with PSP based on their convictions for certain sexual offenses. The
General Assembly enacted the first of these statutes, commonly known as Megan’s
Law I, former 42 Pa.C.S. §§ 9791-9799.6, in 1995, followed five years later by what
is commonly known as Megan’s Law II, former 42 Pa.C.S. §§ 9791-9799.7. In 2004,
the General Assembly enacted what is commonly known as Megan’s Law III, former
42 Pa.C.S. §§ 9791-9799.75, which remained in effect until the enactment of
SORNA I, 42 Pa.C.S. §§ 9799.10-9799.41, in 2012. On July 19, 2017, the
Pennsylvania Supreme Court handed down the decision in Muniz. Thereafter, in
2018, to clarify that sex offender registration provisions were not ex post facto
punishment, the General Assembly enacted SORNA II.
In 1988, Petitioner entered a plea of guilty in the Court of Common
Pleas of Philadelphia County to one count of involuntary deviate sexual intercourse2
and one count of rape3 for offenses he committed in 1987. See Pet. for Review ¶ 3.
Upon his initial release from incarceration in January 2014, Petitioner began
registering as a lifetime sex offender under the then-effective version of
1
Muniz held that SORNA I violated the ex post facto clauses of the United States and
Pennsylvania Constitutions by retroactively increasing registration obligations on certain sex
offender registrants. Muniz, 164 A.3d at 1223-25.
2
18 Pa.C.S. § 3123.
3
18 Pa.C.S. § 3121.
2
Pennsylvania’s sex offender registration program, SORNA I. Following our
Supreme Court’s decision in Muniz and the General Assembly’s subsequent
enactment of Act 10, on March 19, 2018, PSP sent Petitioner a letter advising him
that he “may be” subject to Act 10’s sex offender registration requirements and
compelling him to comply with those requirements by May 22, 2018. See Pet. for
Review ¶ 3 and Ex. B. In May 2018, Petitioner sent PSP a request to be removed
from the sex offender registry. See id. On January 7, 2019, PSP sent Petitioner a
notice to register as a sex offender, which he accordingly did on January 15, 2019.
See Pet. for Review ¶ 3 and Exs. C & D.
On January 24, 2019, Petitioner filed the Petition for Review in this
Court’s original jurisdiction seeking relief from SORNA II’s sex offender
registration requirements.4 See generally Pet. for Review. On May 6, 2019, PSP
filed the instant Preliminary Objections arguing that the Petition for Review is
legally insufficient because: (1) PSP must enforce Petitioner’s registration
requirements in accordance with the law; (2) SORNA II is not an ex post facto law;
(3) Act 10 complies with federal law; and (4) mandamus is improper. See Prelim.
Objections at 4-15. The parties have each submitted briefs, and the matter is now
ripe for determination by this Court.5
4
The Petition for Review phrases Petitioner’s challenge in relation to “SORNA.” See Pet.
for Review ¶ 3. However, because Petitioner clearly seeks relief from sex offender registration
obligations under any requirement schemes and his brief discusses both Act 10 and Act 29, we
will discuss the collective implications of Act 10 and Act 29 – Pennsylvania’s current sex offender
registration scheme – as it relates to Petitioner.
5
When ruling on preliminary objections
courts accept as true all well-pleaded allegations of material facts as
well as all of the inferences reasonably deducible from the facts. For
preliminary objections to be sustained, it must appear with certainty
that the law will permit no recovery, and any doubt must be resolved
in favor of the non-moving party.
3
In its first preliminary objection, PSP argues that the Petition for
Review should be dismissed because PSP must enforce the current sex offender
registration requirements in compliance with the law. See Prelim. Objections at 4-
8; see also PSP’s Brief at 5-9. PSP argues that SORNA II applies to Petitioner
because it expressly applies to individuals who were required to register as sex
offenders with PSP between April 1996 and December 2012, and whose period of
registration has not expired. See Prelim. Objections at 6-7; see also PSP’s Brief at
7-8. PSP further argues that Petitioner was “subject” to all versions of the sex
offender registration statutes while in prison despite the fact that the statutes did not
require Petitioner to actually register until his release. See Prelim. Objections at 7-
8; see also PSP’s Brief at 8-9. We do not agree.
Subchapter H of Act 29, titled “Registration of Sexual Offenders,”
provides that Act 29’s registration requirements “shall apply to individuals who
committed a sexually violent offense on or after December 20, 2012, for which the
individual was convicted.” 42 Pa.C.S. § 9799.11(c) (emphasis added). Further,
Subchapter I of Act 29, titled “Continued Registration of Sexual Offenders,” states
that its provisions shall apply to those individuals who were:
(1) convicted of a sexually violent offense committed on or
after April 22, 1996, but before December 20, 2012, whose
period of registration with [] P[SP], as described in section
9799.55 (relating to registration), has not expired; or
(2) required to register with [] P[SP] under a former
sexual offender registration law of this Commonwealth on
or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired.
Gregory v. Pa. State Police, 160 A.3d 274, 276 (Pa. Cmwlth. 2017).
4
42 Pa.C.S. § 9799.52 (emphasis added); see also 42 Pa.C.S. § 9799.55 (setting forth
the registration requirements for various categories of sex offenders).
This Court has determined in three recent decisions that Subchapter I
of Act 29 is unconstitutional as applied to individuals whose crimes predate the
enactment of Pennsylvania’s sex offender registration schemes. See T.S. v. Pa. State
Police, 231 A.3d 103 (Pa. Cmwlth. 2020); M.G. v. Pa. State Police (Pa. Cmwlth.,
No. 201 M.D. 2019, filed Sept. 25, 2020); B.W. v. Pa. State Police (Pa. Cmwlth.,
No. 433 M.D. 2018, filed July 6, 2020).6 First, in T.S., the Court evaluated
Subchapter I of Act 29 under an ex post facto analysis regarding a petitioner who
committed his crimes in 1990.7 In conducting this analysis, the Court examined the
6
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be
cited for their persuasive value.
7
This Court has explained the framework for determining the constitutionality of a law
under an ex post facto analysis as follows:
Like our Supreme Court and the United States Supreme Court, we
apply a two-prong analysis to determine whether a law inflicts a
greater punishment. First, we look to see whether the General
Assembly’s intent is to impose punishment. If so, the law is
punitive. If the General Assembly’s intent is to enact a nonpunitive
civil regulatory scheme, we proceed to the second prong to
determine whether the statute is so punitive either in purpose or
effect as to negate the General Assembly’s intention to deem it civil.
In order to determine whether the statute is so punitive as to negate
the General Assembly’s intent, our review is guided by the factors
set forth by the United States Supreme Court in Kennedy v.
Mendoza-Martinez, 372 U.S. 144[] (1963). Commonly known as
the Mendoza-Martinez factors, these seven factors are applied to
determine whether an Act of Congress is penal or regulatory in
character:
1. whether the sanction involves an affirmative disability
or restraint, 2. whether it has historically been regarded as
punishment, 3. whether it comes into play only on a finding
of scienter, 4. whether its operation will promote the
5
Mendoza-Martinez factors to determine whether the provisions of Subchapter I of
Act 29 overcame the General Assembly’s non-punitive intent in enacting Subchapter
I of Act 29. See T.S., 231 A.3d at 119-37. The Court concluded that the Mendoza-
Martinez factors weighed in favor of Subchapter I of Act 29 being punitive as
applied to a petitioner whose crimes predated the enactment of any sex offender
registration scheme in Pennsylvania, explaining as follows:
On the whole, balancing the factors in accordance with the
analysis used by our Supreme Court in Muniz, we must
find that five of the seven weigh in favor of finding
subchapter I of Act 29 to be punitive when applied to [the
p]etitioner. PSP’s arguments to the contrary focus on the
differences between SORNA and subchapter I of Act 29
that were intended to address the Supreme Court’s
decision in Muniz. However, these arguments overlook
the fact that the requirements of SORNA or any prior
registration scheme did not exist at the time of [the
p]etitioner’s offense. While some form of retroactive
registration requirements may be constitutional []
applying the analysis in Muniz, we must find the
cumulative effect of the registration requirements of
subchapter I of Act 29 on [the p]etitioner goes beyond
imposing mere registration and is punishment. [The
traditional aims of punishment – retribution and deterrence,
5. whether the behavior to which it applies is already a
crime, 6. whether an alternative purpose to which it may
rationally be connected is assignable for it, and 7. whether
it appears excessive in relation to the alternative purpose
assigned.
The Mendoza-Martinez factors are intended to be useful guideposts
that are neither exhaustive nor dispositive. Only the clearest proof
may establish that a law is punitive in effect, and in determining
whether a statute is civil or punitive, we must examine the law’s
entire statutory scheme.
T.S., 231 A.3d at 119 (internal citations, quotation marks, brackets, and emphasis omitted).
6
p]etitioner, who committed the crimes giving rise to his
present obligation to register in 1990, could not have fair
warning of the applicable law that now mandates his
registration and the terms thereof. His right to relief on
these ex post facto claims is not premised in a right to less
punishment, but the lack of fair notice and governmental
restraint that occurred when the General Assembly
increased punishment beyond what was prescribed when
the crime was consummated. Accordingly, we determine
that the Mendoza-Martinez factors weigh in favor of
finding subchapter I of Act 29 to be punitive as applied to
[the p]etitioner under the Ex Post Facto clause of the
United States Constitution.
T.S., 231 A.3d at 136-37 (internal citations, quotation marks, and brackets omitted).
Based on this analysis, the Court declared the application of Subchapter I of Act 29
as applied to the petitioner unconstitutional as in violation of the ex post facto clauses
of the United States and Pennsylvania Constitutions. See id. at 137.
Less than two months later, this Court decided B.W., in which we again
found, based on the reasoning and result in T.S., that the application of Subchapter I
of Act 29 to an individual who committed his crimes prior to the enactment of any
sex offender registration schemes in Pennsylvania was unconstitutional in violation
of the prohibition against ex post facto laws. See B.W., slip op. at 14. Approximately
one month ago, this Court reached the same conclusion regarding Subchapter I in
M.G. as again the individual committed his crimes before Pennsylvania had any sex
offender registration requirements in place. See M.G., slip op. at 11-12 (citing T.S.,
231 A.3d at 118).
7
These decisions are applicable to the instant matter.8 No dispute exists
here that Petitioner committed the crimes of involuntary deviate sexual intercourse
and rape in 1987 and was convicted and sentenced thereon in 1988, prior to the
enactment of Megan’s Law I in 1996. Therefore, because his crimes predate the
enactment of any sex offender registration requirements, the application of such
registration requirements to Petitioner would constitute punishment and violate the
ex post facto clauses of the United States and Pennsylvania Constitutions as well.
T.S.; M.G.; B.W.
Accordingly, Petitioner has stated a cognizable claim regarding
whether SORNA II’s sex offender registration requirements apply to his
circumstances and/or whether they violate the ex post facto clauses of the United
States and Pennsylvania Constitutions. Thus, we overrule PSP’s Preliminary
Objections.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
We acknowledge the Supreme Court’s recent opinion in Commonwealth v. Lacombe, 234
A.3d 602 (Pa. 2020), which reversed a court of common pleas order that granted two petitioners’
individual requests to terminate their obligations to comply with sex offender registration
requirements based on an argument that the retroactive application of changes to SORNA
constituted an ex post facto violation. The Supreme Court instead found that the ex post facto
claim regarding Subchapter I of Act 29 failed because Subchapter I does not constitute criminal
punishment. Lacombe, 234 A.3d at 626-27. The Lacombe decision is inapposite to the instant
matter, however, because, unlike the petitioners in Lacombe, Petitioner’s crimes occurred prior to
the enactment of any sex offender registration scheme in Pennsylvania.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.R., :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 127 M.D. 2019
Respondent :
ORDER
AND NOW, this 10th day of November, 2020, Respondent’s
Preliminary Objections are OVERRULED. Respondent shall file an Answer to the
Petition for Review within 30 days of the date of this Order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge