T.S. v. Pa. State Police

231 A.3d 103

T.S., Petitioner

v.PENNSYLVANIA STATE POLICE, Respondent

No. 129 M.D. 2019

Commonwealth Court of Pennsylvania.

Argued February 12, 2020

Decided May 11, 2020

Ryan H. James, White Oak, for Petitioner.

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

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE COHN JUBELIRER

Presently before the Court is T.S.’s (Petitioner) Application for Summary Relief (Application) on his Petition for Review (Petition) filed in our original jurisdiction. Petitioner seeks mandamus and declaratory relief against the Pennsylvania State Police (PSP), challenging as unconstitutional as applied subchapter I of the most recent enactment of a sexual offender registration scheme, Act of February 21, 2018, P.L. 27 (Act 10), 42 Pa.C.S. §§ 9799.10 - 9799.75, as amended by the Act of June 12, 2018, P.L. 140 (Act 29) (collectively, Act 29¹ ). In this case of first impression in our Court, Petitioner, who committed and was convicted and sentenced for his offenses before any sexual offender registration scheme existed, argues that the provisions of subchapter I of Act 29 governing his lifetime registration are punitive as applied in violation of the ex post facto clauses of the United States and Pennsylvania Constitutions.² Relying upon the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 925, 200 L.Ed.2d 213 (2018), in which the Supreme Court determined Act 29's predecessor, the Sexual Offender Registration and Notification Act³ (SORNA), violated the federal and state ex post facto clauses, Petitioner contends subchapter I of Act 29 raises the same constitutional concerns. Upon review, and following the analysis and reasoning set forth by our Supreme Court in Muniz , we conclude that although the General Assembly had a nonpunitive purpose, subchapter I of Act 29 as applied to Petitioner, who committed his offenses before any registration scheme was enacted, is punitive. We grant in part and deny in part the Application, and order PSP not to apply subchapter I of Act 29 to Petitioner, which will result in his removal from the sexual offender registry (Registry).

I. History of Sexual Offender Laws in Pennsylvania

A. Development of the Law

A brief overview of the history of sexual offender registration schemes in the Commonwealth and the relevant provisions of Act 29 is necessary before addressing Petitioner's ex post facto claims. Act 29 is the fifth iteration of the law commonly referred to as Megan's Law. The prior iterations have all been struck down, or struck down in part, as previously explained by this Court:

Megan's Law I,^{[4 ]} the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was enacted on October 24, 1995, and became effective 180 days thereafter. Megan's Law II^{[5 ]} was enacted on May 10, 2000[,] in response to Megan's Law I being ruled unconstitutional by our Supreme Court in Commonwealth v. Williams , 557 Pa. 285, 733 A.2d 593 ( [Pa.] 1999) [ ( Williams I ) ]. Our Supreme Court held that some portions of Megan's Law II were unconstitutional in Commonwealth v. Gomer Williams , 574 Pa. 487, 832 A.2d 962 ( [Pa.] 2003) [ ( Williams II ) ], and the General Assembly responded by enacting Megan's Law III^{[6 ]} on November 24, 2004. The United States Congress expanded the public notification requirements of state sexual offender registries in the Adam Walsh Child Protection and Safety Act of 2006, [ (Adam Walsh Act)⁷ ] ..., and the Pennsylvania General Assembly responded by passing SORNA on December 20, 2011[,] with the stated purpose of "bring[ing] the Commonwealth into substantial compliance with the [Adam Walsh Act]." [Section 9799.10(1) of SORNA, former ] 42 Pa.C.S. § 9799.10(1). SORNA went into effect a year later on December 20, 2012. Megan's Law III was also struck down by our Supreme Court for violating the single subject rule of Article III, Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman , 624 Pa. 53, 84 A.3d 603, 616 ( [Pa.] 2013). However, by the time it was struck down, Megan's Law III had been replaced by SORNA.

Taylor v. Pa. State Police , 132 A.3d 590, 595 n.7 (Pa. Cmwlth. 2016). The Supreme Court in Muniz explained the evolution of the provisions of these laws and the bases for their being struck down, in whole or in part, as follows:

Among other things, Megan's Law I established a procedure for adjudicating certain offenders—namely, those that committed one of the predicate offenses listed in the statute—as sexually violent predators [ (SVPs) ]. The mandated procedure included a postconviction, presentence assessment by the [State Sexual Offender Board (Board) ], followed by a hearing before the trial court. ... If the individual was adjudicated a [SVP], he was subjected to an enhanced maximum sentence of life imprisonment for the predicate offense, as well as registration and community notification requirements that were more extensive than those applicable to an offender who was not adjudicated a [SVP].

In [ Williams I ], this Court struck down the [SVP] provisions of Megan's Law I based upon the conclusion that a finding of [SVP] status under that enactment entailed a separate factual determination, the end result of which is the imposition of criminal punishment .... Notably, in view of the punitive nature of the increased maximum prison sentence, the Williams I Court invalidated the challenged provisions without reaching the question of whether the enhanced registration and notification requirements constituted criminal punishment. ...

After Williams I was decided, the General Assembly passed Megan's Law II .... [T]he General Assembly altered the manner in which an individual convicted of a predicate offense was adjudicated a [SVP] .... [U]nder Megan's Law II an offender convicted of an enumerated predicate offense [was] no longer presumed to be a [SVP] .... Additionally, persons adjudicated to be [SVPs were] no longer subjected to an automatic increased maximum term of imprisonment for the predicate offense. Instead, they [were] required to undergo lifetime registration, notification, and counseling procedures; failure to comply with such procedures [was] penalized by a term of probation or imprisonment.

Under Megan's Law II, any offender convicted of a predicate offense, whether or not he is deemed a [SVP], must: (1) register his current residence or intended residence with [PSP] upon release from incarceration, parole from a correctional institution, or commencement of an intermediate punishment or probation; (2) inform [PSP] within ten days of a change in residence; and (3) register within ten days with a new law enforcement agency after establishing residence in another state.

Muniz , 164 A.3d at 1196-97 (quoting Williams II , 832 A.2d at 965-68 ) (internal quotations and citations omitted). The Supreme Court determined in Williams II that the SVP provisions, with the exception of the punishments for failure to comply, were constitutional. The General Assembly then enacted amendments, commonly known as Megan's Law III, in which it made the following relevant changes:⁸

added the offenses of luring and institutional sexual assault to the list of enumerated offenses which require a 10-year period of registration ...; [ ] directed the creation of a searchable computerized database of all registered sexual offenders ...; [ ] allowed a sentencing court to exempt a lifetime sex offender registrant, or [SVP] registrant, from inclusion in the database after 20 years if certain conditions are met; [ ] established mandatory registration and community notification procedures for [SVPs]; ... and [ ] mandated the Pennsylvania Attorney General to conduct annual performance audits of state or local agencies [that] participate in the administration of Megan's Law, and, also, required registered sex offenders to submit to fingerprinting and being photographed when registering at approved registration sites.

Id. at 1198 (quoting Neiman , 84 A.3d at 606-07 ). By the time the Supreme Court struck down Megan's Law III in Neiman , SORNA had already been enacted.

SORNA classified offenders and offenses into three tiers, with each tier corresponding to an offender's duration of registration and the frequency with which the offender must appear in person to verify the offender's residence, anywhere from quarterly to annually. Section 9799.15 of SORNA, former 42 Pa.C.S. § 9799.15. As the Supreme Court explained in Muniz :

Those convicted of Tier I offenses [were] subject to registration for a period of fifteen years and [were] required to verify their registration information and be photographed, in person at an approved registration site, annually. [Former ] 42 Pa.C.S. § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses [were] subject to registration for a period of twenty-five years and [were] required to verify their registration information and be photographed, in person at an approved registration site, semi-annually. [Former ] 42 Pa.C.S. § 9799.15(a)(2), (e)(2).

....

SORNA also establishe[d] a statewide registry of sexual offenders to be created and maintained by [PSP]. [Section 9799.16(a) of SORNA, former ] 42 Pa.C.S. § 9799.16(a). The [R]egistry contains information provided by the sexual offender, including: names and aliases, designations used by the offender for purposes of routing or self-identification in [I]nternet communications, telephone numbers, social security number, addresses, temporary habitat if a transient, temporary lodging information, passport and documents establishing immigration status, employment information, occupational and professional licensing information, student enrollment

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