A.L. v. Pa. State Police

274 A.3d 1228

A.L., Appellee

v.PENNSYLVANIA STATE POLICE, Appellant

No. 57 MAP 2021

Supreme Court of Pennsylvania.

Argued: March 10, 2022

Decided: May 17, 2022

Peter Rosalsky, Esq., Defender Association of Philadelphia, Philadelphia, PA, for Amicus Curiae Defender Association of Philadelphia

Daniel Canton Beck, Esq., Stevan Kip Portman, Esq., Harrisburg, PA, Gregory George Schwab, Esq., Pennsylvania State Police, for Appellant Pennsylvania State Police

Richard Davis Younts, Esq., Harrisburg, PA, for Appellee A.L.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE MUNDY

We allowed appeal in this matter to determine whether sexual assault as defined under the Uniform Code of Military Justice is comparable to sexual assault as defined under the Pennsylvania Crimes Code so as to make Appellee a lifetime Megan's Law registrant.

In 2013, while in the Navy, Appellee had intercourse with the adult victim when her ability to consent was impaired by alcohol. He was charged with sexual assault under the Uniform Code of Military Justice, which defines the offense, in relevant part, as:

(3) commit[ting] a sexual act upon another person when the other person is incapable of consenting ... due to (A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person[.]

10 U.S.C. § 920(b)(3)(A) (emphasis added).

Appellee was tried by general court-martial, with a panel of service members acting as fact-finders. The panel returned a verdict of guilty which was recorded on a military form (essentially a verdict slip) stating the victim's condition "was known or reasonably should have been known by" Appellee. N.T., Dec. 5, 2019, at Exh. PSP-1, reprinted at RR. 108a. Appellee was sentenced to sixty days’ confinement, a reduction in rank, and a dishonorable discharge. He appealed to the United States Navy-Marine Corps Court of Criminal Appeals, which affirmed the conviction and sentence. See United States v. [A.L.] , 2015 WL 5610560, at *1 (N-M. Ct. Crim. App. Sept. 24, 2015). After his discharge from the Navy, Appellee moved to Pennsylvania. He registered with the Pennsylvania State Police ("PSP") as a sex offender subject to registration under Megan's Law IV, also referred to as the Sexual Offender Registration and Notification Act ("SORNA"). See 42 Pa.C.S. § 9799.13(1) (relating to who must register).

By way of brief statutory background, as to crimes committed on or after December 20, 2012, SORNA sets forth a three-tier classification system appearing in Subchapter H of the Sentencing Code to specify the length of a sex offender's registration. Individuals convicted of a Tier I offense are obligated to register for 15 years, those convicted of a Tier II offense must register for 25 years, and persons convicted of a Tier III offense are subject to lifetime registration. See id . § 9799.15(a); see also Commonwealth v. Lacombe , ––– Pa. ––––, 234 A.3d 602, 611 (2020) (describing this legislative scheme); Commonwealth v. Torsilieri , ––– Pa. ––––, 232 A.3d 567, 580-81 (2020) (discussing Subchapters H and I of the Sentencing Code). Each tier lists predicate offenses defined under Pennsylvania's Crimes Code, and each tier states that "comparable" military offenses are also included in that tier.¹

In light of the above, PSP undertook to determine Appellee's registration tier. To do this, it sought to ascertain the enumerated Pennsylvania crime to which the military offense was comparable. PSP eventually concluded the military offense was comparable to sexual assault under the Crimes Code, which is committed when a

person engages in sexual intercourse ... with a complainant without the complainant's consent.

18 Pa.C.S. § 3124.1.² As the above is a Tier III offense, PSP notified Appellee he was a lifetime registrant under SORNA. Appellee appealed, arguing PSP's action was adjudicative and not merely ministerial. As such, he contended PSP violated his procedural rights by not holding a hearing. The Commonwealth Court agreed, and it directed PSP to afford Appellee adequate process. See [ A.L.] v. PSP , No. 587 M.D. 2016, 2019 WL 3102125, at *6 (Pa. Cmwlth. July 16, 2019).

On remand, PSP convened an administrative hearing at which the commander of PSP's Megan's Law Section testified to his belief that A.L.’s conviction under 10 U.S.C. § 920(b)(3)(A) was comparable to sexual assault as defined by 18 Pa.C.S. § 3124.1.

In his proposed report, the hearing officer agreed and he opined that, although Section 3124.1 ’s mens rea requirement does not encompass negligent conduct, the two offenses are nonetheless equivalent. In this respect, the hearing officer concluded Appellee did, in fact, know of his victim's impaired condition. To support this conclusion, the hearing officer pointed to a passage in the opinion issued by the military appellate court in which that tribunal remarked the record contained compelling evidence Appellee "was aware of [the victim's] intoxicated state and intentionally acted to take advantage of her incapacitated condition." [A.L.] , 2015 WL 5610560, at *3.

The hearing officer additionally observed the enumerated Tier III offenses involving intercourse generally arise where the victim is unconscious, is otherwise unaware of what is occurring, is mentally disabled, has refused consent, or is physically incapable of communicating an unwillingness to participate. By contrast, he continued, Tier I and Tier II offenses involving intercourse tend to be predicated on the status of the victim, such as where the victim is underaged, a child receiving services at a center for children, a student at the school where the defendant works, or an individual being confined in (or supervised by) an institution where the defendant works. Thus, the hearing officer concluded that, because the Tier I and Tier II offenses do not involve the victim's refusal to consent or inability to consent, they are not comparable to the military offense in question.

The hearing officer attached a proposed order affirming PSP's initial determination that Appellee was convicted of a Tier III offense.

Appellee filed exceptions, asserting, inter alia , his conviction may have been based on mere negligence, and hence, the hearing officer erred in relying on the appellate court's commentary on the evidence as establishing the requisite mens rea for guilt under the Pennsylvania offense. He pointed out his sentence of confinement was only sixty days and, as such, it is plausible the court martial which returned the actual conviction found he had acted negligently. Appellee added that, at a minimum, any doubt on this topic should be resolved in his favor under established legal precepts.

PSP overruled Appellee's exceptions and adopted the proposed report and order as its own final adjudication. Appellee appealed to the Commonwealth Court.

That court reversed in a published opinion, finding the two offenses are not comparable. The court reasoned the military offense encompasses negligent conduct, which could have been the basis for Appellee's conviction, whereas the Pennsylvania crime requires a reckless mental state or above. See supra note 2. Therefore, the court held the military offense could not be the basis for a Tier III classification under SORNA. See A.L. v. PSP , 247 A.3d 120, 128-29 (Pa. Cmwlth. 2021).

We granted PSP's petition for allowance of appeal in which the following questions were framed for our review:

1. When comparing a military criminal offense to a Crimes Code offense pursuant to 42 Pa.C.S. § 9799.14(b)(21), (c)(17), or (d)(13), is the Pennsylvania State Police required to ensure that all of the elements of crimes, including the mens rea , are equivalent?

2. If the Pennsylvania State Police is required to consider the mens rea when comparing a military criminal offense to a Crimes Code offense pursuant to 42 Pa.C.S. § 9799.14(b)(21), (c)(17), or (d)(13), should the mens rea requirement only be considered a factor when making the determination?

A.L. v. PSP , ––– Pa. ––––, 260 A.3d 920 (2021) (per curiam ).

The need to compare two criminal offenses, one in-state (the "reference offense") and the other out-of-state (the "offense of conviction"), raises the question of how that comparison should be made and how the reviewing court – or the administrative agency as in the present case – should determine whether the answer is "yes" they are comparable, or "no" they are not comparable. Our intermediate appellate courts have addressed this issue in several reported decisions.

In Shewack v. PennDOT , 993 A.2d 916 (Pa. Cmwlth. 2010), the court held that, when comparing an out-of-state offense to a Pennsylvania offense to determine whether they are "essentially similar" – so that a conviction of the out-of-state offense disqualifies the individual from holding a commercial driver's license in Pennsylvania for one year – "the comparison is between the elements of the foreign state's statute and the elements of Pennsylvania's statute." Id . at 919. Although the Maryland and Pennsylvania statutes in that matter prohibited driving with a suspended license, the court found they were not essentially similar because the Pennsylvania law specifically prohibited driving a commercial vehicle with a suspended commercial driver's license, whereas the Maryland law was broader in that it precluded driving virtually any type of vehicle with suspended privileges. The underlying concept was that, where the elements of the offense of conviction cover a broader range of conduct than the elements of the reference offense, the two are not "essentially similar." Notably, applying the same test, the Commonwealth Court reached the opposite conclusion in Aten v. PennDOT , 168 Pa.Cmwlth. 251, 649 A.2d 732 (1994), where the reference offense of driving a commercial vehicle without holding or being in immediate possession of a valid commercial driver's license was compared to West Virginia's...