IN THE COMMONWEALTH COURT OF PENNSYLVANIA
N.K.D., :
Petitioner :
:
v. : No. 622 M.D. 2019
: ARGUED: February 8, 2021
Commissioner of the Pennsylvania :
State Police, Robert Evanchick, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge1
HONORABLE MARY HANNAH LEAVITT, Judge (P)2
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: January 18, 2022
N.K.D., Petitioner, has applied for summary relief with respect to his
petition for review against the Commissioner of the Pennsylvania State Police,
Respondent. The petition is in the nature of a complaint in mandamus seeking
injunctive and declaratory relief. He seeks to have his name stricken from the
Megan’s Law Registry and website in Pennsylvania and, by direction of Respondent,
in Virginia, where he now resides. Petitioner challenges the constitutionality of the
current version of Subchapter H (Revised Subchapter H) of the Sexual Offender
1
The Court reached the decision to this case prior to the conclusion of President Judge
Emeritus Brobson’s service on the Commonwealth Court.
2
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
Registration and Notification Act (SORNA II),3 found at 42 Pa.C.S. §§ 9799.10 –
9799.39. For the reasons that follow, we deny Petitioner’s application for summary
relief.
There is little in the way of a factual record before the Court. In July
2017, Petitioner pled guilty to two counts of indecent assault in the Court of
Common Pleas of York County, evidently involving sexual assault of a child.4
Petitioner was sentenced in December 2017 to a term of eight years of probation on
both counts, plus a lifetime of reporting and registration as a Tier III sexual offender.
At the time of the guilty plea, Petitioner was advised of his registration obligations
under the Pennsylvania sex offender registration laws and informed that he was a
Tier III sexual offender for whom lifetime registration would be required. The
previous version of the Sexual Offender Registration and Notification Act (SORNA
I), formerly 42 Pa.C.S. §§ 9799.10 – 9799.41, was in effect.
No further legal action was taken to challenge the conviction and
sentence. A resident of Virginia, Petitioner alleges that he has been required to
register as a violent sex offender with the Department of State Police of the
3
The lengthy legislative history of SORNA II, including its predecessor laws and Revised
Subchapter H, is set forth in Commonwealth v. Torsilieri, 232 A.3d 567, 575-581 (Pa. 2020).
4
Petitioner alleges that the underlying facts of his conviction were that he touched the penis
of a four-year-old through the child’s clothing and vice versa. (Petition for Review, ¶ 5(a);
Application for Summary Relief, ¶ 5.) Petitioner also alleges, in a footnote to Paragraph 5(a) of
the Petition for Review, that the sentencing judge was informed that Petitioner was autistic and
further alleges that he has been diagnosed with a “severe and chronic” autism spectrum disorder
with developmental disability and “extremely low” social skills. (Petition for Review at 3 n.1.)
Respondent, stating that it lacked information to confirm the allegations concerning the facts of
the underlying offense, denied them. (Answer and New Matter, ¶ 5(a); Answer to Application for
Relief, ¶ 5.) In its brief, Respondent characterizes the underlying facts as follows: “On July 5,
2017, Petitioner sexually assaulted a four[-]year[-]old.” (Respondent’s Br. at 1.)
2
Commonwealth of Virginia, commencing December 27, 2017. (Petition for Review,
¶ 5(e); Application for Summary Relief, ¶ 9.)5
Subsequent to Petitioner’s sentencing, the General Assembly amended
SORNA I in Act 10 of 2018, Act of February 21, 2018, P.L. 27, which became
effective on February 21, 2018. Act 10 was, in turn, reenacted as Act 29 of 2018,
Act of June 12, 2018, P.L. 140, 42 Pa.C.S. §§ 9799.10 – 9799.75, which became
effective immediately. Act 29 split the legislation into the Revised Subchapter H
and new Subchapter I. Revised Subchapter H applies to crimes committed on or
after December 20, 2012, and resembles in substance SORNA I. Revised
Subchapter H is the version applied to Petitioner. Subchapter I was enacted in order
to address, inter alia, the Supreme Court’s determination in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017) (plurality), that application of SORNA I to those
convicted prior to December 20, 2012, violated those individuals’ ex post facto
rights. 42 Pa.C.S. § 9799.11(b)(4).
Petitioner filed his petition for review in the original jurisdiction of this
Court and Respondent filed an answer. Petitioner has filed an application for
summary relief that is now before the Court.
Petitioner raises two arguments in support of his application for
summary relief:6 (1) that Revised Subchapter H violates the ex post facto provisions
of the United States and Pennsylvania Constitutions and (2) that Revised Subchapter
5
Respondent claims insufficient knowledge to confirm and therefore denies this allegation.
(Answer and New Matter, ¶ 5(e); Answer to Application for Summary Relief ¶ 9.)
6
Pennsylvania Rule of Appellate Procedure 1532(b), Pa.R.A.P. 1532(b), allows this Court to
enter judgment any time after the filing of a petition for review, when the applicant’s right to relief
is clear.
3
H violates his right to due process. Respondent raises the threshold issue of
standing,7 which we find exists.8
Ex Post Facto Arguments
Petitioner contends that applying Revised Subchapter H to offenses
committed prior to its effective date, such as Petitioner’s, violates the constitutional
prohibition on ex post facto laws. We do not find his arguments availing.
Petitioner asserts that because SORNA I was repealed and SORNA II
was enacted subsequent to the commission of his offenses, there “was no law in
existence regarding registration and reporting requirements that applied to the
Petitioner.” (Petitioner’s Br. at 9.) However, this is simply untrue—SORNA I was
in effect at the time of the commission of Petitioner’s offenses and Revised
Subchapter H is an amended version of SORNA I limited so as not to apply to those
7
The heading of this section of Respondent’s brief states that the claim is not justiciable (see
Respondent’s Brief at 2), but the short discussion therein is addressed to standing.
8
Respondent argues that Petitioner lacks standing to bring this action, because he does not
live in Pennsylvania and is therefore not on the Commonwealth’s sex offender registry.
For standing to exist, the underlying controversy must be real and concrete, such that the party
initiating the legal action has, in fact, been “aggrieved.” Pittsburgh Palisades Park, LLC v.
Commonwealth, 888 A.2d 655, 659 (Pa. 2005). A party is aggrieved for purposes of establishing
standing when the party has a substantial, direct, and immediate interest in the outcome of
litigation. Office of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014). A party’s interest is
substantial when it surpasses the interest of all citizens in procuring obedience to the law; it is
direct when the asserted violation shares a causal connection with the alleged harm; finally, a
party’s interest is immediate when the causal connection with the alleged harm is neither remote
nor speculative. Id.
We find that standing exists for the purposes of considering Petitioner’s application for
summary relief because subjection to Revised Subchapter H carries with it the necessary interest
for Petitioner to be considered aggrieved as it affects his rights under the laws of the
Commonwealth and of another jurisdiction.
4
whose ex post facto rights were affected by that law, i.e., those whose offenses
occurred prior to December 20, 2012.9 Petitioner is not such a person.
Some of the specific provisions which Petitioner asserts injure him pre-
date both his offenses and the 2018 legislation. Act 11 of 2011 enacted the following
provisions: penalties for violation of registration requirements in 42 Pa.C.S. §
9799.21 (relating to penalty); the in-person verification requirements in 42 Pa.C.S.
§ 9799.25 (relating to verification by sexual offenders and the Pennsylvania State
Police); and the requirement that the Pennsylvania State Police develop and maintain
a public internet website in 42 Pa.C.S. § 9799.28 (relating to public internet website).
Another provision, the mandatory additional three-year period of probation for
sexual offenders provided for in 42 Pa.C.S. § 9718.5(a), was enacted by Act 10 of
2018 on February 21, 2018, effective April 23, 2018, well after Petitioner’s offenses
and sentencing. Thus, it is unclear as to how it applies to Petitioner.
Further, Petitioner’s comparison of such provisions to the “less
stringent” provisions of Subchapter I found constitutional by the Supreme Court in
its recent decision, Commonwealth v. LaCombe, 234 A.3d 602 (Pa. 2020), sets an
improper baseline: the very purpose of Subchapter I was to address those for whom
application of provisions in SORNA I did constitute ex post facto punishment, i.e.,
those whose offenses predated December 20, 2012. Revised Subchapter H applies
to those like Petitioner whose offenses occurred subsequent to that date, for whom
application of SORNA I would not run afoul of ex post facto rights.
9
See Section 21(1) of Act 29 (“[t]he reenactment or amendment of . . . 42 Pa.C.S. Ch. 97
Subch. H shall apply to an individual who committed an offense on or after December 20, 2012”).
5
Due Process Arguments
Petitioner argues that Revised Subchapter H’s imposition of a lifetime
of reporting and registration constitutes a denial of procedural due process even
though there has been no finding by any court that he is a person whose individual
circumstances warrant such a harsh penalty. Petitioner contends that the maximum
sentence under the statute for indecent assault, a misdemeanor of the first degree, is
ten years (two consecutive terms of five years) and that the reporting and registration
requirements effectively create a sentence of lifetime probation. Petitioner also
notes that under 42 Pa.C.S. § 9718.5(a) there is an additional mandatory term of
three years’ probation that was not part of Petitioner’s original sentence.
Petitioner contends that the public internet website authorized by
Revised Subchapter H provides an electronic notification option similar to the
community notification procedure used to inform citizens when a sexually violent
predator moves into a neighborhood, despite Petitioner never having been
determined to be a sexually violent predator, denying him substantive due process.
As a result of the application of Revised Subchapter H, Petitioner asserts that he will
sustain damage to his reputation and face a stigma to his place in society not
authorized by the Constitution.
Petitioner contends that Subchapter H subjects him to increased
registration provisions without a jury having determined that he poses a greater risk
of future dangerousness beyond a reasonable doubt and also violates federal and
state constitutional separation of powers doctrines by encroaching upon the courts’
responsibility to impose an individualized fact-based sentence.
Our Supreme Court’s recent decision in Commonwealth v. Torsilieri,
232 A.3d 567 (Pa. 2020), concerned a due process challenge to Revised Subchapter
6
H. The Torsilieri Court did not reach the merits of any of the constitutional claims
at issue, determining instead that the factual record was not sufficiently developed
in the trial court. The Court stated as follows:
[A]ll cases are evaluated on the record created in the
individual case . . . . [T]his Court will not turn a blind eye
to the development of scientific research, especially where
such evidence would demonstrate infringement of
constitutional rights.
Nevertheless, we also emphasize that it will be the rare
situation where a court would reevaluate a legislative
policy determination, which can only be justified in a case
involving infringement of constitutional rights and a
consensus of scientific evidence undermining the
legislative determination. We reiterate that while courts
are empowered to enforce constitutional rights, they
should remain mindful that the “wisdom of a public policy
is one for the legislature, and the General Assembly’s
enactments are entitled to a strong presumption of
constitutionality rebuttable only by a demonstration that
they clearly, plainly, and palpably violate constitutional
requirements.”
....
Accordingly, we conclude that the proper remedy is to
remand to the trial court to provide both parties an
opportunity to develop arguments and present additional
evidence and to allow the trial court to weigh that evidence
in determining whether [Torsilieri] has refuted the relevant
legislative findings supporting the challenged registration
and notification provisions of Revised Subchapter H.
Id. at 596 (citations omitted).
There is no factual record in this case beyond the mere fact of
Petitioner’s conviction. Thus, there is no basis for resolving the factual issues
identified in Torsilieri for a facial challenge to Revised Subchapter H. Further, there
7
are factual disputes regarding the averments specific to Petitioner’s situation (the
nature of his offense and his alleged diagnosis of autism) to determine that the
Petitioner has made a case for an as-applied challenge. Compare to Com. v.
Muhammad, 241 A.3d 1149 (Pa. Super. 2020) (vacating requirement to comply with
SORNA II based upon as-applied due process challenge). We may grant summary
relief where the dispute is legal rather than factual, but not where there are disputes
of fact. Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1220 (Pa.
Cmwlth. 2018). We review the record in the light most favorable to the opposing
party and resolve all doubts concerning the existence of a genuine issue of material
fact in favor of that party. Id. While Petitioner’s arguments echo the arguments
raised in Torsilieri, it is not at all clear that he is entitled to summary relief at this
stage. Thus, we deny the application for summary relief to allow Petitioner to
develop a factual record in this matter.
In light of the foregoing, we deny Petitioner’s application for summary
relief.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
N.K.D., :
Petitioner :
:
v. : No. 622 M.D. 2019
:
Commissioner of the Pennsylvania :
State Police, Robert Evanchick, :
Respondent :
ORDER
AND NOW, this 18th day of January, 2022, Petitioner’s application for
summary relief is DENIED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita