Cao v. Pennsylvania State Police

280 A.3d 1107

Huu CAO, Petitioner

v.The PENNSYLVANIA STATE POLICE of the Commonwealth of Pennsylvania, Respondent

No. 512 M.D. 2015

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 3, 2022

Decided August 4, 2022

Joseph A. Ratasiewicz, Media, for Petitioner.

Caleb Curtis Enerson, Deputy Attorney General, Harrisburg, for Respondent.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge

OPINION BY JUDGE CEISLER

Before this Court is an Application for Summary Relief filed by the Pennsylvania State Police of the Commonwealth of Pennsylvania (PSP) seeking dismissal of Huu Cao's Amended Petition for Review filed in this Court's original jurisdiction. In his Amended Petition for Review, Mr. Cao asserts, inter alia , that the registration and reporting provisions of the most recent version of the Sexual Offender Registration and Notification Act (SORNA II)¹ are punitive as applied to him in violation of the ex post facto clauses of the United States and Pennsylvania Constitutions.² For the reasons that follow, we grant PSP's Application for Summary Relief and dismiss Mr. Cao's Amended Petition for Review.

Background

On September 22, 2000, Mr. Cao pled guilty to numerous sexual offenses, including aggravated indecent assault. He committed the offenses in May 1995. Following the entry of his plea, the Court of Common Pleas of Lancaster County sentenced Mr. Cao to 2½ to 5 years’ incarceration followed by 10 years’ probation.

At the time of his convictions, Mr. Cao was required to register with PSP as a sex offender for life pursuant to Megan's Law II, Act of May 10, 2000, P.L. 74, formerly 42 Pa. C.S. §§ 9791 - 9799.7, due to his conviction for aggravated indecent assault. See former 42 Pa. C.S. § 9795.1(b)(2). Upon his release from prison in September 2003, Mr. Cao began registering as a sex offender with PSP pursuant to Megan's Law II.

In 2004, the General Assembly enacted Megan's Law III, Act of November 24, 2004, P.L. 1243, formerly 42 Pa. C.S. §§ 9791 - 9799.9. Megan's Law III did not alter the lifetime registration requirement for an individual convicted of aggravated indecent assault. See former 42 Pa. C.S. § 9795.1(b). In 2011, the General Assembly replaced Megan's Law III with SORNA II's predecessor, SORNA I, which took effect on December 20, 2012. See former 42 Pa. C.S. §§ 9799.10 - 9799.41.

In 2017, the Pennsylvania Supreme Court decided Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017). In Muniz , the Supreme Court held that SORNA I violated the ex post facto provisions of the United States and Pennsylvania Constitutions when applied retroactively to sex offenders who were convicted of certain crimes before SORNA I's effective date and who were subject to increased registration obligations under SORNA I. On February 15, 2018, PSP notified Mr. Cao that, in response to Muniz , PSP had removed his name from the sex offender website, but that PSP may need to review his file in the future in response to any newly enacted sex offender registration legislation.

In 2018, in response to Muniz , the General Assembly enacted SORNA II, which amended certain provisions of SORNA I and added new provisions that became effective immediately.

On April 20, 2018, following SORNA II's enactment, PSP notified Mr. Cao that under Subchapter I of SORNA II, he was required to register as a sex offender for life. Subchapter I, titled "Continued Registration of Sex Offenders," provides, in relevant part, that its provisions shall apply to individuals who were "required to register with [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) (emphasis added). Thus, Mr. Cao was required to register under Subchapter I of SORNA II because his prior lifetime registration commitment, which originally arose under Megan's Law II, had not expired.

On September 12, 2018, Mr. Cao filed an Amended Petition for Review with this Court, challenging his lifetime registration obligation under SORNA II as unconstitutional on numerous grounds. On November 13, 2018, PSP filed Preliminary Objections to the Amended Petition for Review.

On October 16, 2019, following oral argument, this Court sustained in part and overruled in part PSP's Preliminary Objections. This Court overruled PSP's objections to Mr. Cao's ex post facto and due process claims and sustained PSP's remaining objections. Thereafter, PSP filed an Answer and New Matter to the Amended Petition for Review.

Two years later, on December 2, 2021, PSP filed the instant Application for Summary Relief and a supporting brief, asking this Court to enter judgment in its favor and dismiss Mr. Cao's Amended Petition for Review in light of the Supreme Court's ruling in Commonwealth v. Lacombe , 660 Pa. 568, 234 A.3d 602 (2020), which held that retroactive application of Subchapter I of SORNA II is nonpunitive and does not violate the constitutional prohibition against ex post facto laws. Mr. Cao filed a brief in opposition to the Application for Summary Relief on January 3, 2022, asserting that application of SORNA II to him is an unconstitutional ex post facto violation pursuant to the Supreme Court's more recent decision in Commonwealth v. Santana , ––– Pa. ––––, 266 A.3d 528 (2021),³ because he committed his offenses before the enactment of any sex offender registration laws.⁴

Analysis

1. Standard of Review

This Court may grant an application for summary relief if the moving party's right to judgment is clear and no material issues of fact are in dispute. See Pa.R.A.P. 1532(b) ; Eleven Eleven Pa., LLC v. State Bd. of Cosmetology , 169 A.3d 141, 145 (Pa. Cmwlth. 2017). In ruling on an application for summary relief, this Court must " ‘view the evidence of record in the light most favorable to the non-moving party and enter judgment only if there is no genuine issue as to any material facts and the right to judgment is clear as a matter of law.’ " Eleven Eleven , 169 A.3d at 145 (citation omitted).

2. Recent Supreme Court Precedent

Since Mr. Cao filed his Amended Petition for Review, our Supreme Court has made several pronouncements regarding the ex post facto implications of Pennsylvania's sex offender registration scheme. The three decisions most relevant to this matter are Lacombe , T.S. v. Pennsylvania State Police , ––– Pa. ––––, 241 A.3d 1091 (2020) (per curiam ), and Santana .

In Lacombe , decided in July 2020, the Supreme Court considered whether Subchapter I of SORNA II was punitive and, thus, an unconstitutional ex post facto law. The Court observed that the "General Assembly expressly declared that Subchapter I ‘shall not be construed as punitive.’ " Lacombe , 234 A.3d at 618 (quoting 42 Pa. C.S. § 9799.51(b)(2) ). The Court further noted that, in enacting SORNA II, the General Assembly made a number of "significant changes" from SORNA I to "alleviate many of the concerns expressed in Muniz ." Id. at 619, 626. Applying the factors set forth in Kennedy v. Mendoza-Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), for determining whether a statute constitutes punishment, the Supreme Court concluded that "Subchapter I [of SORNA II] is nonpunitive and does not violate the constitutional prohibition against ex post facto laws." Id. at 626-27.

Shortly after Lacombe , in December 2020, the Supreme Court issued a per curiam Order in T.S. , reversing an en banc decision of this Court and extending Lacombe ’s holding to individuals whose offenses were committed before the enactment of any sex offender registration scheme, in light of Lacombe .⁵ See also B.W. v. Pa. State Police , ––– Pa. ––––, 252 A.3d 643 (2020) (per curiam ) (reversing and remanding an en banc decision of this Court on the same grounds, i.e., that Subchapter I of SORNA II does not constitute punishment and is not an ex post facto law, even as applied to an offender who committed his triggering offenses before any sex offender registration scheme existed). Since 2020, this Court has consistently applied Lacombe and T.S. to petitioners whose underlying offenses pre-dated the enactment of all sex offender registrations laws. See, e.g. , Zweifel v. Pa. State Police , 2022 WL 1632923 (Pa. Cmwlth., No. 593 M.D. 2018, filed May 24, 2022) ; Wetzel v. Pa. State Police , 2021 WL 2944760 (Pa. Cmwlth., No. 362 M.D. 2018, filed July 14, 2021) ; R.O. v. Blocker , 2021 WL 2068935 (Pa. Cmwlth., No. 256 M.D. 2020, filed May 24, 2021) ; Lusik v. Pa. State Police , 2021 WL 247859 (Pa. Cmwlth., No. 405 M.D. 2017, filed Jan. 26, 2021 ).

More recently, in Santana , decided in 2021, the Supreme Court was asked to determine whether Muniz ’s holding – that applying SORNA I retroactively to offenders who committed their offenses before SORNA I's enactment was an unconstitutional ex post facto law – "applie[d] with equal force to offenders whose triggering offenses occurred in another state." Santana , 266 A.3d at 529-30. In Santana , the defendant committed rape in New York in 1983 and was subject to lifetime registration in New York after the enactment of its sex offender registration law in 1995. Id. at 530. When the defendant moved to Pennsylvania in 2015, he was subject to lifetime registration under SORNA I. Id. at 531. He later pled guilty to the criminal charge of failure to comply with his registration requirements under SORNA I. Id .

On appeal, the defendant "argued that applying SORNA I retroactively to his 1983 New York offense constituted an ex post facto violation no different from the one found in Muniz ." Id. at 531-32. The Commonwealth argued that Muniz did not apply "because [the defendant] did not face an increase in punishment when he moved from New York to Pennsylvania" since he was already required to register for life under New York law. Id. at 535. The Supreme Court recognized that, for purposes of an ex post facto analysis, it...