C.M. v. PSP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

C.M., :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 47 M.D. 2021
Respondent : Argued: December 15, 2021

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE MARY HANNAH LEAVITT, Judge (P.)2
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge

OPINION
BY JUDGE FIZZANO CANNON FILED: January 28, 2022

Before this Court, in our original jurisdiction, is an application for
summary relief by Petitioner, C.M.,3 seeking removal from Pennsylvania’s sex

1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
2
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
3
In response to C.M.’s application for summary relief, the Pennsylvania State Police (PSP)
denied that C.M. was entitled to relief and requested that this Court instead enter summary relief
in favor of the PSP. However, that request is not properly before this Court, as the PSP filed no
application for relief. See Bradley v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 132 M.D. 2019,
filed June 23, 2021), slip op. at 19 n.20, 2021 WL 2580602, at *24 n.20 (unreported) (despite
petitioner’s failure to present any claim on which he could recover, “[i]n the absence of an
offender registry maintained by the Pennsylvania State Police (PSP) and exclusion
from any future registration requirement under the Sexual Offender Registration and
Notification Act (SORNA II).4 For the reasons discussed herein, C.M.’s application
for summary relief is denied.

I. Background
C.M. participated in a rape and murder in 1987. See Pet. for Review,
¶ 4; Com. v. [C.M.], 245 A.3d 1121, 1124 (Pa. Super. 2021) (C.M. I), appeal denied,
(Pa., No. 53 MAL 2021, filed Dec. 7, 2021), 2021 WL 5810455 (Table) (C.M. II).
In 1995,5 he entered a plea agreement in which he pleaded guilty to rape, criminal
conspiracy to commit rape, and third-degree murder. Pet. for Review, ¶ 4. He
received a sentence of 15 to 30 years’ incarceration. Id. He was released from prison
in late 2020. See id., ¶ 10.
According to C.M., the PSP informed him upon his release that he was
required to register for life as a convicted sex offender under Subchapter I of
SORNA II, 42 Pa.C.S. § 9799.52. He then commenced this action seeking removal

application for summary relief filed by [respondent], the Court is without a procedural vehicle
through which to dismiss the original jurisdiction . . . action”).
4
Act of February 21, 2018, P.L. 27, No. 10, 42 Pa.C.S. §§ 9799.10-9799.75, as amended
by the Act of June 12, 2018, P.L. 140, No. 29.
5
C.M. was initially convicted in 1988, but the Pennsylvania Supreme Court later vacated
that conviction and remanded the matter for a new trial. Com. v. [C.M.], 245 A.3d 1121, 1124 n.4
(Pa. Super. 2021) (C.M. I), appeal denied, (Pa., No. 53 MAL 2021, filed Dec. 7, 2021) (C.M. II),
2021 WL 5810455 (Table) (citing Com. v. [C.M.], 602 A.2d 1265 (Pa. 1992)).
2
from the sex offender registry and exclusion from any future registration
requirement.6
C.M. sought a preliminary injunction seeking removal of his
information from the sex offender registry pending this Court’s decision in the case.
On May 6, 2021, this Court issued a single-judge opinion and order denying the
injunction. C.M. v. Pa. State Police (Pa. Cmwlth., No. 47 M.D. 2021, filed May 6,
2021) (C.M. III). This Court found C.M. failed to show either irreparable harm from
the presence of his information on the registry or a likelihood of prevailing on the
merits of his claim. Id., slip op. at 5-6.
C.M. then filed the instant application for summary relief.7

6
C.M. has been attempting since at least 2014 to eliminate his lifetime registration
obligation, which was first imposed under the statute known as Megan’s Law II, formerly 42
Pa.C.S. §§ 9791-9799.7. See Pet. for Review, ¶ 6; C.M. I, 245 A.3d at 1124. After several years
of appeals, in an opinion and order dated January 4, 2021, the Superior Court remanded that matter
for the trial court to consider the very issue C.M. raises here, i.e., whether he is subject to the
registration requirement of Subchapter I of SORNA II. C.M. I, 245 A.3d at 1126 (“[C.M.] argues
that Subchapter I [of SORNA II] does not apply to him, as ‘his triggering offenses occurred in
1987’ and, because he has been incarcerated since his conviction, he was never required to register
under a former version of the sex offender registration laws.”) & 1133-34 (remanding to the trial
court to “determine whether [C.M.] is obligated to register as a sex offender under Subchapter I”).
C.M. filed a petition for allowance of appeal, which held the remand in abeyance. See Pet. for
Review, ¶ 15. Our Supreme Court denied the petition for allowance of appeal on December 7,
2021. C.M. II. As of the filing date of this opinion, the last entries on the trial court docket are
notice on January 3, 2022, of the denial of the petition for allowance of appeal, and receipt of the
Superior Court’s remand decision on January 4, 2022. The trial court docket is available at
https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-67-CR-0000798-1988&
dnh=zVlsmkSOd94WjCZzBh%2Fkqw%3D%3D (last visited Jan. 27, 2022). See Court of
Common Pleas of York County, No. CP-67-CR-0000798-1988.
7
Pennsylvania Rule of Appellate Procedure 1532(b) permits filing of an application for
summary relief at any time after a petition for review has been filed in an original jurisdiction
matter. Pa.R.A.P. 1532(b). Like summary judgment, summary relief is appropriate when, viewing
the evidence in the light most favorable to the non-moving party, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Haveman v. Bureau
of Prof. & Occupational Affairs, State Bd. of Cosmetology, 238 A.3d 567, 570-71 (Pa. Cmwlth.
2020).
3
 II. Issues
C.M. challenges the application of Subchapter I of SORNA II to him.
He committed his crimes in 1987 and was not released from prison until late 2020.
He argues that he was first “required to register” under Megan’s Law II “upon
release” from prison in 2020. Pet. for Review, ¶ 22. Subchapter I, however, applies
only to offenders who were “required to register . . . on or after April 22, 1996, but
before December 20, 2012.” 42 Pa.C.S. § 9799.52. C.M. reasons that as he was
incarcerated throughout that time period, he was not “required to register” under
Megan’s Law II because he had not been released. Pet. for Review, ¶ 21. Therefore,
he contends he is not subject to any registration requirement under the plain language
of Subchapter I of SORNA II. C.M. argues that in Smolsky v. Blocker (Pa. Cmwlth.,
No. 254 M.D. 2018, filed May 20, 2019), 2019 Pa. Commw. Unpub. LEXIS 293
(unreported),8 this Court construed the statutory language at issue in exactly the way
C.M. seeks to have it construed in this case. In addition, C.M. asserts that the
legislative findings and purpose behind the statutory framework creating the sex
offender registry are inapplicable, as is any suggestion that C.M.’s reading of the
statute yields an absurd result, because the language of the statute is clear and this
Court should not ignore the letter of the law in favor of its spirit.
In response, the PSP observes that Megan’s Law II, which became
effective in 2000, while C.M. was incarcerated, did not exclude incarcerated persons
from the lifetime registration requirement. Br. of Respondent at 5-6 (quoting former
42 Pa.C.S. § 9795.1). The PSP asserts that the obligation of lifetime registration
arose on the effective date of Megan’s Law II, even though the duty to begin

8
Under Section 414(a) of this Court’s Internal Operating Procedures, unreported decisions
of this Court issued after January 15, 2008 may be cited for their persuasive value, but not as
binding precedents. 210 Pa. Code § 69.414(a).
4
providing residence information to the registry began only upon release because
until that time, an incarcerated person’s address – i.e., in prison – was known. Br.
of Respondent at 5-7 (citing former 42 Pa.C.S. § 9795.2).

III. Discussion
Subchapter I of SORNA II provides, in pertinent part: “This subchapter
shall apply to individuals who were . . . required to register with the [PSP] 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. § 9799.52(2). Here, C.M. was convicted in 1995 of sex offenses
committed in 1987, but he was incarcerated at the time Megan’s Law II was enacted
and was, therefore, subject to its provisions. See former 42 Pa.C.S. § 9795.1
(imposing registration requirement on individuals “convicted” of listed crimes and
not excepting those already incarcerated for such crimes); Dunyan v. Pa. State Police
(Pa. Cmwlth., No. 75 M.D. 2014, filed Dec. 17, 2014), slip op. at 4-5, 2014 Pa.
Commw. Unpub. LEXIS 722, at *4-5 (unreported) (upholding application of
lifetime registration requirements first applied under Megan’s Law II to individual
convicted before its enactment but still incarcerated on its effective date); accord
Com. v. Gaffney, 733 A.2d 616, 622 (Pa. 1999) (upholding application of
registration requirements of Section 9793 of Megan’s Law I, 9 formerly 42 Pa.C.S.
§ 9793, to individual convicted of offense committed before its enactment).

9
Formerly 42 Pa.C.S. §§ 9791-9799.6. Megan’s Law II increased the registration period
for some offenses from 10 years to lifetime registration.
5
 Before this Court, C.M. does not assert any challenge to the retroactive
application of Subchapter I as a constitutional violation.10 He raises solely an issue
of pure statutory construction. As explained above, he contends that he was not
“required to register” under a former statute, Megan’s Law II, which was in effect
in various forms from 2000 until 2012, because he was incarcerated throughout that
period and was not released from prison, thus triggering his registration requirement,
until 2020. Subchapter I of SORNA applies to offenders who were “required to
register . . . on or after April 22, 1996, but before December 20, 2012.” 42 Pa.C.S.
§ 9799.52(2). C.M. reasons that he was not “required to register” during that period
because he had not been released. Pet. for Review, ¶¶ 20-21. In other words,
because C.M. was not released until 2020, he insists he was not required to register
before December 20, 2012, and is, accordingly, not subject to registration under
SORNA II. Id. We disagree.
Section 9795.1 of Megan’s Law II was titled “Registration.” Former
42 Pa.C.S. § 9795.1. Section 9795.1(b)(2) of Megan’s Law II imposed a lifetime
registration requirement on individuals convicted of listed offenses, including rape,
one of the crimes of which C.M. was convicted. Formerly 42 Pa.C.S. § 9795.1(b)(2).
As the PSP observes, nothing in that provision excepted already-incarcerated
individuals from its application. See Br. of Respondent at 5-6 (quoting former 42
Pa.C.S. § 9795.1); Dunyan, slip op. at 4-5.
The point in time at which registration would begin, however, was
contained in a separate section of Megan’s Law II, Section 9795.2, titled
“Registration Procedures and Applicability.” Formerly 42 Pa.C.S. § 9795.2.

10
Notably, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), our Supreme Court
held that Subchapter I of SORNA II is non-punitive and does not violate constitutional prohibitions
against ex post facto laws. Id. at 626-27.
6
Section 9795.2(a)(1) provided: “Offenders and sexually violent predators shall be
required to register all current residences or intended residences with the [PSP] upon
release from incarceration, upon parole from a state or county correctional
institution, or upon the commencement of a sentence of intermediate punishment[11]
or probation.” Formerly 42 Pa.C.S. § 9795.2(a)(1) (2000).
Reading Sections 9795.1 and 9795.2 together, it is apparent that the
obligation to register arose under Section 9795.1 upon the enactment of Megan’s
Law II with regard to individuals incarcerated for sex offenses on that date.
Therefore, we agree with the PSP that C.M., who was incarcerated on the effective
date of Megan’s Law II, became obligated for lifetime registration on that date.
By contrast, Section 9795.2, which expressly related only to
registration procedures, merely provided the timing and mechanism of when and
how performance of the registration obligation would begin. Thus, only C.M.’s duty
to begin performing that obligation, not the obligation itself, arose upon his
subsequent release. The date of his release was irrelevant to his registration
obligation.
As discussed above, Subchapter I of SORNA II applies to individuals
who were “required to register with the [PSP] under a former sexual offender
registration law . . . on or after April 22, 1996, but before December 20, 2012, whose
period of registration has not expired.” 42 Pa.C.S. § 9799.52(2). C.M. incurred a
lifetime registration requirement upon the effective date of Megan’s Law II in 2000,
i.e., after April 22, 1996, but before December 20, 2012. As a lifetime requirement,
it has not expired. Accordingly, C.M. must register with the PSP for his lifetime.

11
“Intermediate punishment” includes statutorily authorized sentencing alternatives such
as home confinement and electronic monitoring. Com. v. Wegley, 829 A.2d 1148, 1148 n.1 (Pa.
2003) (citing 42 Pa.C.S. § 9763(b)(16), (17); 37 Pa. Code § 451.51(a)(1)-(3)).
7
 C.M.’s reliance on Smolsky is unavailing. In Smolsky, this Court issued
an unreported panel decision addressing the same issue in analogous circumstances.
This Court found the petitioner was entitled to have his name removed from the sex
offender registry and was not subject to future registration requirements. Id., slip
op. at 5-6. C.M. therefore relies heavily on Smolsky as persuasive. However, this
Court expressly distinguished Smolsky in its single-judge opinion in this case. The
Court observed that the PSP did not raise in Smolsky the opposing arguments that it
raises here, and further, that Smolsky is not precedential. C.M. III, slip op. at 5 n.3.
A review of the Smolsky opinion reveals that this Court expressly directed
supplemental briefing on the applicability of the registration requirement in that
case, but neither party provided any analysis in its supplemental brief that was
helpful to the Court. Smolsky, slip op. at 4 n.4 (stating that “[a]lthough they filed
their supplemental briefs in a timely fashion, [the parties] failed to adequately
address the question posed by this Court or to provide any meaningful legal analysis
to assist this Court in deciding whether the provisions of [SORNA II] apply to Mr.
Smolsky”). It was not this Court’s function to develop the parties’ arguments for
them. See Com. v. Brown, 196 A.3d 130, 185 n.21 (Pa. 2018) (declining to analyze
cited decisions where advocate failed to develop an accompanying argument;
appellate courts are “neither obliged, nor even particularly equipped, to develop an
argument for a party. To do so places the Court in the conflicting roles of advocate
and neutral arbiter.”) (citation omitted); Com. v. Williams, 782 A.2d 517, 532 (Pa.
2001) (stating that “[t]he result [of a court’s development of argument for a party] is
a decision on the issue without the benefit of helpful advocacy from either side. This
is not a model for sound decision-making.”); Hohensee v. Luger, 412 A.2d 1111,
1112 (Pa. Cmwlth. 1980) (opining that the “judicial role must be to adjudicate

8
coherent claims, not to assume the burdens of the advocate or litigant”).
Accordingly, we conclude that our decision in Smolsky is not persuasive here.
Moreover, as the PSP aptly points out in its brief, the result of C.M.’s
construction of Subchapter I would have absurd results. Br. of Respondent at 7-8.
For example, if two persons committed sex offenses on the same day and were
incarcerated at the same time, and one of them, who committed a less serious
offense, was released before December 20, 2012, but the other, who committed the
more serious crime, was not released until after December 20, 2012, C.M.’s reading
of the statute would mean that the offender committing the less serious crime would
have to register and the offender committing the more serious crime – and thus
posing the more serious risk of harm to the public – would not. Id. Such a result
would directly contravene the legislative policy underlying both Megan’s Law II and
SORNA II to protect “the safety and general welfare” of Pennsylvania citizens.
Formerly 42 Pa.C.S. § 9791(b); 42 Pa.C.S. § 9799.11(b)(1).

IV. Conclusion
For the foregoing reasons, C.M.’s application for summary relief is
denied.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

9
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

C.M., :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 47 M.D. 2021
Respondent :

ORDER

AND NOW, this 28th day of January, 2022, the application for
summary relief filed by Petitioner, C.M., is DENIED.

__________________________________
CHRISTINE FIZZANO CANNON, Judge