IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R.O., :
Petitioner :
:
v. : No. 256 M.D. 2020
: Submitted: March 19, 2021
Mr. Tyree C. Blocker, State Police :
Commissioner, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: May 24, 2021
Presently before the Court in our original jurisdiction is an application for
summary relief (Application)1 filed by R.O. (Petitioner) seeking judgment in his
favor on a Petition for Review (Petition) he filed against Mr. Tyree C. Blocker, now-
1
Petitioner actually filed two pleadings: one postmarked October 20, 2020, and received
by the Court on November 6, 2020, titled “Petition for Summary Judg[]ment,” and one postmarked
November 6, 2020, and received by the Court on November 9, 2020, titled “Motion for Summary
Judg[]ment.” Because Petitioner is a pro se inmate, the prisoner mailbox rule applies, and the
pleadings are deemed “filed” as of the date they were delivered to the proper prison authority or
deposited in the prison mailbox. Kittrell v. Watson, 88 A.3d 1091, 1097 (Pa. Cmwlth. 2014).
Moreover, as both are substantially the same, we treat them as one. Furthermore, although titled
as a motion and petition, the Court treats it as an application for summary relief under Rule 1532(b)
of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1532(b). For summary relief, the
record “is the same as a record for purposes of a motion for summary judgment.” Summit Sch.,
Inc. v. Dep’t of Educ., 108 A.3d 192, 195-96 (Pa. Cmwlth. 2015).
former State Police Commissioner (Respondent). In his pro se Petition, Petitioner
challenges the constitutionality of subchapter I of the most recent enactment of a
sexual offender registration scheme, Act of June 12, 2018, P.L. 140 (Act 29), 42
Pa.C.S. §§ 9799.10-9799.76.2 Specifically, Petitioner alleges he should not be
required to register as a sexual offender because the offense of which he was
convicted is not a sexual offense; the conviction occurred in 1988, long before any
iteration of a sexual offender registration scheme was enacted, so requiring him to
register would violate the prohibition against ex post facto laws;3 and requiring him
to register as a sexual offender for 10 years extends his sentence without due process
of law and in violation of double jeopardy. Based upon the Pennsylvania Supreme
Court’s decisions in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), and T.S.
v. Pennsylvania State Police, 241 A.3d 1091 (Pa. 2020) (reversing T.S. v.
Pennsylvania State Police, 231 A.3d 103 (Pa. Cmwlth. 2020)), we must deny
Petitioner’s Application.
2
Act 29 amended the Act of February 21, 2018, P.L. 27 (Act 10). Act 10 and Act 29 are
collectively referred to herein as Act 29. Through Act 29, the General Assembly passed the newest
version of a sexual offender registration and notification act in response to the Supreme Court’s
decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). Section 9799.51(b)(4) of Act 29,
42 Pa.C.S. § 9799.51(b)(4). In subchapter I, the General Assembly also established new
registration requirements for: (1) individuals who committed offenses between April 22, 1996,
and December 20, 2012, whose registration period had not expired; and (2) offenders who were
required to register under a prior Sexual Offender Registration and Notification Act statute
between April 22, 1996, and December 20, 2012, whose registration period had not yet expired.
See Section 9799.52 of Act 29, 42 Pa.C.S. § 9799.52.
3
Article I, section 17 of the Pennsylvania Constitution provides, “No ex post facto law . . .
shall be passed.” PA. CONST. art. I, § 17. The United States Constitution has two provisions that
prohibit ex post facto laws, one, contained in Article I, Section 9, Clause 3 of the United States
Constitution, U.S. CONST. art. I, § 9, cl. 3, which applies to Congress, and the other, contained in
Article I, Section 10, Clause 1 of the United States Constitution, U.S. CONST. art. I, § 10, cl. 1,
which applies to the states.
2
Petitioner commenced this action in March 2020 by filing the Petition.4
Therein, Petitioner avers he was convicted in June 1988 of kidnapping. He further
avers that because kidnapping is not a sexual offense, he is not required to register
under any sexual offender registration scheme. According to Petitioner, applying
Act 29 to Petitioner would violate the prohibition against ex post facto laws as his
offense occurred in 1988 before any sexual offender registration laws were enacted.
Thereafter, Respondent filed an Answer and New Matter, to which Petitioner
responded. Following the close of the pleadings, Petitioner filed the instant
Application. The parties filed their respective briefs, making the Application ripe
for consideration.
In his brief in support of the Application, Petitioner reasserts the same
arguments he has raised throughout all of his filings related to the constitutionality
of requiring him to register.
Respondent responds5 that Petitioner was convicted of kidnapping involving
a minor, which is an enumerated offense under Section 9799.55 of Act 29, 42 Pa.C.S.
§ 9799.55, requiring registration for a 10-year period. In addition, Respondent
argues that the Supreme Court in Lacombe held Act 29 is not criminal in nature and
does not violate ex post facto provisions. Respondent points out that the Supreme
Court reaffirmed this holding four months later in T.S., which, while factually
different, involved the same legal argument Petitioner asserts here: that Act 29
cannot be applied to a conviction predating any iteration of a sexual offender
registration scheme. Respondent further argues that the date of conviction ultimately
is irrelevant because the Supreme Court has determined Act 29 is not punitive in
4
Although entitled “Application for Summary Relief,” the Court treated it as a petition for
review in the Court’s original jurisdiction. See May 12, 2020 order.
5
Respondent’s arguments have been reordered to correspond with Petitioner’s arguments.
3
nature. Thus, according to Respondent, double jeopardy is not implicated because
the registration requirement is not a criminal punishment or sentence, but rather is a
civil registration requirement.
In considering an application for summary relief, the Court “may grant
summary relief where the dispute is legal rather than factual,” there are no facts in
dispute, and the “right to relief is clear.” Phantom Fireworks Showrooms, LLC v.
Wolf, 198 A.3d 1205, 1220 (Pa. Cmwlth. 2018). Further, when ruling on an
application for summary relief, “we review the record in the light most favorable to
the nonmoving party, resolving all doubts as to the existence of disputed material
facts against the moving party.” Marcellus Shale Coal. v. Dep’t of Env’t Prot., 216
A.3d 448, 458 (Pa. Cmwlth. 2019). “Even if the facts are undisputed, the moving
party has the burden of proving that its right to relief is so clear as a matter of law
that summary relief is warranted.” Naylor v. Dep't of Pub. Welfare, 54 A.3d 429,
431 n.4 (Pa. Cmwlth. 2012). With these principles in mind, we turn to the merits of
Petitioner’s Application.
We begin first with Petitioner’s argument that he is not subject to Act 29, or
any sexual offender registration scheme for that matter, because the offense of which
he was convicted, kidnapping, is not a sexual offense. Section 9799.55 of Act 29
sets forth the registration requirements for those convicted of certain enumerated
offenses. Kidnapping where the victim is a minor is subject to a 10-year registration
period. 42 Pa.C.S. § 9799.55(a). This requirement applies to “[i]ndividuals
convicted within this Commonwealth of . . . [one of the enumerated offenses] who
were required to register with the Pennsylvania State Police under a former sexual
offender registration law of this Commonwealth on or after April 22, 1996, but
4
before December 20, 2012, whose period of registration has not expired.” 42 Pa.C.S.
§ 9799.55(a)(1)(i)(B).
Although Petitioner only refers to his conviction as one for kidnapping, in his
brief, Petitioner seems to acknowledge the victim was a minor. (See Petitioner’s
Brief at 3 (stating “other kids” were in the house).) Moreover, nowhere does
Petitioner contest Respondent’s assertion that the kidnapping involved a minor.
Regardless, even if Petitioner contested that the offense involved a minor, the Court
would be constrained to deny him summary relief as there would be a genuine issue
of material fact that would preclude such judgment.
As to whether Petitioner was “required to register with the Pennsylvania State
Police 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,” 42 Pa.C.S. § 9799.55(a)(1)(i)(B), Petitioner does not dispute that he
was incarcerated during this timeframe. Therefore, his period of registration had not
yet expired, and Act 29 would apply. However, Petitioner asserts he was not
required to register because his conviction occurred prior to any iteration of a sexual
offender registration law and applying such a law retroactively to him would violate
the prohibition against ex post facto laws. In Lacombe, the Pennsylvania Supreme
Court held Act 29 was nonpunitive and did not violate the ex post facto clause. In
that case, one of the appellees was convicted in 2014 for offenses occurring between
January 2006 and December 2012, which was before the enactment of the Sexual
Offender Registration and Notification Act (SORNA),6 and, obviously, Act 29. The
Supreme Court determined that application of Act 29 to the appellees did not
“constitute criminal punishment, and the ex post facto claims forwarded by [the]
6
42 Pa.C.S. §§ 9799.10-9799.41.
5
appellees necessarily fail.” Lacombe, 234 A.3d at 626-27. Accordingly, the
Pennsylvania Supreme Court reversed the trial court’s orders, which had relieved
the appellees from their duty to comply with subchapter I of Act 29. Id. at 627.
Thereafter, in T.S., the Pennsylvania Supreme Court issued a per curiam order
determining application of Act 29 to individuals who committed their offenses prior
to enactment of any sexual offender registration scheme, such as Petitioner here, did
not violate the ex post facto clause. T.S., 241 A.3d at 1091. Therefore, Petitioner is
not entitled to summary relief on the basis that Act 29 violates the ex post facto
prohibition.
In his brief, Petitioner also argues Act 29 violates his due process rights and
requiring him to register under Act 29 constitutes double jeopardy. We note that
Petitioner does not assert either of these claims in his Petition. Even if he had
pleaded such claims, he would not be able to prevail.
In Lacombe, the Supreme Court did not address whether the registration
requirements would violate due process, stating the due process claim was not before
it as it had not been addressed by the trial court in the first instance. Lacombe, 234
A.3d at 608 n.5. Nonetheless, the Supreme Court did suggest that such a claim
would be dependent upon a finding that subchapter I was punitive, which the
Supreme Court determined it was not. Id. This is consistent with the Supreme
Court’s decision in Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007), in which the
Supreme Court addressed a due process argument, as well as a double jeopardy
argument, in relation to what was known as Megan’s Law II.7 There, the Supreme
Court held that because the registration, notification, and counseling provisions in
Megan’s Law II were not punitive, registrants’ due process rights were not violated.
7
Act of May 10, 2000, P.L. 74, formerly 42 Pa.C.S. §§ 9791-9799.7.
6
Id. at 880. The Supreme Court also noted that the appellees’ claims that they were
subject to double jeopardy also failed because “[t]h[is] argument[] necessarily
proceed[s] from the premise that the complained-of sanctions are punitive as a matter
of law.” Id. at 879 n.30.
Because the Supreme Court in Lacombe and T.S. held Act 29 did not violate
the prohibition against ex post facto laws, Petitioner is not entitled to summary relief
on his claims that he is not subject to Act 29 or that subjecting him to its requirements
violates ex post facto prohibitions. Moreover, given the Supreme Court’s conclusion
that Act 29 is not punitive, we find Petitioner is not entitled to summary relief in his
favor on any due process or double jeopardy claim either. Accordingly, Petitioner’s
Application is denied.
_____________________________________
RENÉE COHN JUBELIRER, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R.O., :
Petitioner :
:
v. : No. 256 M.D. 2020
:
Mr. Tyree C. Blocker, State Police :
Commissioner, :
Respondent :
ORDER
NOW, May 24, 2021, Petitioner’s Application for Summary Relief, titled as
a “Motion for Summary Judg[]ment,” is DENIED.
_____________________________________
RENÉE COHN JUBELIRER, Judge