Opinion
No. 6 MAP 2010
03-26-2012
COMMONWEALTH OF PENNSYLVANIA, Appellant v. WILLIAM HOWARD WILGUS, Appellee
[J-82-2010]
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
Appeal from the Order of the Superior Court at No. 1100 MDA 2008, dated
06/26/2009, affirming the Order of Court of Common Pleas of Dauphin County at No.
CP-22-CR-0002439-2007, dated 05/27/2008.
OPINION
MR. JUSTICE EAKIN
The Commonwealth appeals from the Superior Court order affirming the trial court's dismissal of charges against appellee for violation of Megan's Law requirements. For the following reasons, we reverse.
Appellee was convicted in 1998 of aggravated indecent assault; he received a sentence of five years to life imprisonment, was found to be a sexually violent predator, and was ordered to comply with Megan's Law registration requirements. The Superior Court vacated this sentence and remanded for resentencing without application of Megan's Law registration requirements; appellee was resentenced to five to 10 years imprisonment. He became subject to lifetime registration requirements because he was incarcerated when revisions to Megan's Law became effective in 2007. See 42 Pa.C.S. § 9795.1(b)(4) (requiring registration for individuals currently residing in Commonwealth who have been convicted of certain offenses).
Upon his release from prison on April 23, 2007, a friend drove him to a homeless shelter in Harrisburg. Two days later, he left when he was told Megan's Law registrants were not allowed at the shelter. He went to 1708 Market Street in Harrisburg, which he had reported to prison authorities as his intended address upon release. Megan's Law requires offenders to register an intended address with prison authorities before being released. Id., § 9795.2(a)(4)(i). There were no apartments available at that address, and he began sleeping at various places on the street.
Appellee arranged to have his mail, including Social Security checks, delivered to a soup kitchen in Harrisburg. He obtained a locker there and visited daily to drop off and retrieve his belongings. He never informed authorities he was not living at the previously reported address, and when a detective attempted to verify appellee's compliance with registration requirements, he found appellee never resided there.
On May 20, 2007, appellee was located in the area of Second and Market Streets in Harrisburg and was arrested for failing to register; Megan's Law requires sex offenders to notify Pennsylvania State Police of their residence and any change of residence. Id., § 9795.2. He was convicted under 18 Pa.C.S. § 4915(a)(1) (failure to register with Pennsylvania State Police as required) and 18 Pa.C.S. § 4915(a)(2) (failure to verify address or be photographed as required), at a non-jury trial and sentenced accordingly.
Appellee filed post-sentence motions arguing the evidence was insufficient to support his conviction because he had no residence to register; in the alternative, he argued the registration requirements were unconstitutionally vague as applied to homeless defendants. The trial court found the evidence insufficient to support appellee's convictions, granted his motion, and dismissed the charges against him. The Commonwealth appealed.
The Superior Court affirmed, agreeing with the trial court's reasoning that appellee had no "residence" as defined by Megan's Law; accordingly, he could not be held in violation of requirements to register his residence. Commonwealth v. Wilgus, 975 A.2d 1183, 1189 (Pa. Super. 2009). The Superior Court held appellee's conviction should be set aside, concluding, "the Legislature could have drafted the Megan's Law registration requirement to require a homeless and transient person to register, but it did not ...." Id., at 1184.
As the issue had not been addressed in Pennsylvania, the Superior Court relied on Twine v. State, 910 A.2d 1132 (Md. 2006), in which the Court of Appeals of Maryland found Twine's eviction and subsequent homelessness did not constitute a change in residence for purposes of registration. As in the present case, the appellant in Twine argued he could not register a residence because he did not have one. Id., at 1136. The Maryland Court held Twine did not change residences because he did not acquire a new residence within the meaning of the statute. The Court determined the legislature intended "residence" and "address," used interchangeably in the statute, to indicate a fixed location where a person lives or intends to return. Id., at 1138. The Court relied on State v. Pickett, 975 P.2d 584 (Wash. App. 1999) and State v. Iverson, 664 N.W.2d 346 (Minn. 2003); in those cases, the courts found sex offender registration statutes did not impose an obligation on homeless registrants to report a change of residence. Twine, at 1138-39.
The Maryland statute in effect at the time required written notice of change of residence or address; the section under which Twine was convicted has since been amended to include requirements for homeless registrants. See Md. Code, Crim. Proc. § 11-705(d).
Pickett has been superseded by statute to include registration requirements "whether or not the person has a fixed residence." RCW § 9A.44.130(1)(a).
Similarly, the Superior Court here sought to determine the meaning of the word "residence" and whether that meaning applies to a homeless person. The statute defines "residence" as "[a] location where an individual resides or is domiciled or intends to be domiciled for 30 consecutive days or more during a calendar year." 42 Pa.C.S. § 9792. The court reasoned that the statutory language of "30 consecutive days or more" required a "residence" to have some degree of permanence. Wilgus, at 1187. The court further reasoned that the General Assembly's policy statement referencing community notification intended a residence to be a fixed geographical location within a neighborhood. Id.
Senate Bill 1183, signed into law December 20, 2011, has amended the statute to include:
a temporary habitat or other temporary place of abode or dwelling, including, but not limited to, a homeless shelter or park, where the individual is lodged.42 Pa.C.S. § 9792 (amended by Act 2011-111 (S.B. 1183), P.L. 446, § 8. Obviously, appellee was charged under the previous statute.
The court then looked to decisions from other states for interpretation and application of the meaning of "residence." Using these cases and a dictionary definition, the court concluded the statutory definition of "residence" intended to convey a somewhat permanent location, and this interpretation furthered the purpose of Megan's Law, which is to provide notice to residents that sexual predators are living in their area. The court stated, "Megan's Law, as enacted by the Pennsylvania Legislature, simply does not cover the situation presented by a homeless person without a fixed place of habitation of some degree of permanence." Id., at 1186. Accordingly, the court held appellee had no residence and therefore could not comply with registration requirements. Id., at 1189.
The Commonwealth appealed, and we granted allocatur on the following issue:
Did the courts below err by concluding that a defendant who provides an address and subsequently becomes homeless has no duty to comply with the registration requirements of Megan's Law, such that evidence consistent with these circumstances would be insufficient to support a verdict of guilty of failure to register?Commonwealth v. Wilgus, 989 A.2d 340, 340 (Pa. 2010) (table). "These issues pose purely legal questions; thus, this Court's review of the Superior Court's determinations is plenary and de novo." Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). (citation omitted).
"The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). "Words and phrases [of a statute] shall be construed according to rules of grammar and according to their common and approved usage ...." Id., § 1903(a). "When the words of a statute are clear and free from all ambiguity, they are presumed to be the best indication of legislative intent." Chanceford Aviation Props., LLP v. Chanceford Twp. Board of Supervisors, 923 A.2d 1099, 1104 (Pa. 2007) (citations omitted).
The Commonwealth argues the Superior Court erred in finding the evidence insufficient to conclude appellee had a "residence" as defined in Megan's Law. The Commonwealth contends the Superior Court incorrectly interpreted the statute and mistakenly relied on Twine, because in that case, "residence" was not defined by statute. The Commonwealth further argues appellee did have a residence — it was outdoors around Second and Market Streets in downtown Harrisburg, and he could have registered this location. The Commonwealth asserts appellee could have alternatively registered the soup kitchen as his residence. The Commonwealth further argues even if the areas where appellee slept while homeless could not be considered a residence, he was still required to notify state police for not residing at the previously registered 1708 Market Street; this was a change of residence, regardless of whether he had a new address to report. The Commonwealth notes the Superior Court did not consider the issue of whether appellee's not living at 1708 Market Street constituted a change of residence.
Appellee argues he was not in violation of Megan's Law because it requires registration of a residence, which he did not have because he was homeless. He also contends the registration requirements in 18 Pa.C.S. § 4915 are unconstitutionally vague as applied to homeless sex offenders because they do not adequately define "residence" to include transient individuals. He contends a plain reading of the statute does not specify compliance measures for homeless or transient offenders; therefore, he believes the registration requirements do not apply to him. He claims we should follow Twine and Pickett. Appellee further claims registering as homeless would have also placed him in violation because he did not reside at the soup kitchen and police may not have been able to locate him at any given time in a general area. Appellee argues if it is acceptable for a post office box or general area to be reported, then those words should be explicit in the statute. Appellee further contends requiring homeless offenders to register is against the Legislature's intent, stating a literal reading of the statute indicates penalty provisions do not apply to people who do not reside or intend to reside in one location for at least 30 consecutive days.
We have held "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations omitted). Appellee raises his constitutional claim in his summary of argument but fails to develop the issue in his brief. Furthermore, we did not grant review on this issue; accordingly, we will not address the constitutional issue.
In enacting the legislation requiring registration for sexually violent predators and other sexual offenders, the Legislature stated:
It is hereby declared to be the intention of the General Assembly to ... protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood.42 Pa.C.S. § 9791(b). Thus, the statute reveals the Legislature found because of the high risk of recidivism of sex offenders, communities are best protected if the police and public are provided information about sexual offenders. Accordingly, Pennsylvania's Megan's Law requires:
(a) Registration. —Id., § 9795.2. The statute defines "residence" as "[a] location where an individual resides or is domiciled or intends to be domiciled for 30 consecutive days or more during a calendar year." Id., § 9792.
(1) Offenders and sexually violent predators shall be required to register with the Pennsylvania State Police upon release from incarceration, upon parole from a State or county correctional institution or upon the commencement of a sentence of intermediate punishment or probation. For purposes of registration, offenders and sexually violent predators shall provide the Pennsylvania State Police with all current or intended residences, all information concerning current or intended employment and all information concerning current or intended enrollment as a student.
(2) Offenders and sexually violent predators shall inform the Pennsylvania State Police within 48 hours of:
(i) Any change of residence or establishment of an additional residence or residences.
Related to notification of change of residence, the amended statute now includes:
In the case of an individual who has a residence as defined in paragraph (2) of the definition of "residence" set forth in section 9792 (relating to definitions), the individual shall inform the Pennsylvania State Police of the following:42 Pa.C.S. § 9795.2(a)(2)(i) (amended December 20, 2011).
(A) the location of a temporary habitat or other temporary place of abode or dwelling, including a homeless shelter or park, where the individual is lodged;
(B) a list of places the individual eats, frequents and engages in leisure activities and any planned destinations, including those outside this Commonwealth; and
(C) the place the individual receives mail, including a post office box.
The duty to provide the information set forth in this subparagraph shall apply until the individual establishes a residence as defined in paragraph (1) of the definition of "residence" set forth in section 9792. If the individual who has a residence as defined in paragraph (2) of the definition of "residence" set forth in section 9792 changes or adds to the places listed in this subparagraph during a 30-day period, the individual shall list these when re-registering during the next 30-day period.
The statute is clear. All offenders and sexually violent predators, which includes appellee, shall inform the Pennsylvania State Police within 48 hours of any change of residence. Because of the language that all current or intended residences are required to be reported, it is equally clear the Legislature anticipated residences may change and wanted to ensure all offenders reported a location to police.
Twine and Pickett, on which the Superior Court and appellee rely, are inapposite because both involved statutes that did not define "residence." In those cases, the courts used the rules of statutory construction to determine a meaning of "residence" for registration purposes. Because "residence" is defined in Pennsylvania's Law, we do not need to look beyond the plain language of the statute. In Twine, the court noted "address" and "residence" were used interchangeably, and thus the Superior Court's reliance on Twine for a definition and context of "residence" created an unintended expansion of the meaning.
Twine relied in part on Iverson, which also used the terms "residence" and "address" interchangeably and used the term "living address." The terms were not defined, and the Minnesota court found the statute did not apply to the homeless appellant because he did not have an address to report. However, the court also found that "a bald assertion that one is homeless may not preclude application of the residence requirements of the statute. ... Compliance is required, even for homeless offenders, if they live somewhere where mail can be received and they can provide five days' notice that they will be going there." Iverson, at 353.
Furthermore, the facts of Twine and Pickett show the offenders there had previously been in compliance. When Twine became homeless, he verbally notified a detective in the sex offender registry department and told him he did not have a residence to register. Twine, at 1135. When the appellant in Pickett became homeless, he informed police he would register as soon as he obtained a new address. Pickett, at 585. Courts in those cases dealt with appellants who reported the change when they became homeless. Appellee in the present case was never in compliance, and he never attempted to notify police that he was homeless or that his residence had changed from what he initially reported.
The Supreme Court of Michigan has recently addressed this issue; while not binding, its decision is instructive. In People v. Dowdy, 802 N.W.2d 239 (Mich. 2011), the appellee stayed at a homeless shelter upon his release from prison until he was informed they did not allow sex offenders to stay there. He became homeless, but failed to notify the police that his residence had been vacated or changed as required by statute. Under the Michigan statute, a sex offender "shall notify the [police] having jurisdiction where his or her new residence or domicile is located or the department post of the individual's new residence or domicile within 10 days after the individual changes or vacates his or her residence [or] domicile ...." MCL 28.725(1)(2006), amended by MCL 28.725(1)(a)(2011). The statute defined "residence" for purposes of registration as "that place at which a person habitually sleeps, keep his or her personal effects, and has a regular place of lodging." MCL 28.722(g)(2005), amended by MCL 28.722(p)(2011). The court found the obligation to notify police of a new residence was triggered when the offender changed or vacated his previous residence, not when the new residence was established. Dowdy, at 244-45. Based on definitions in the statute, the court found homeless offenders were still required to comply with the statute's reporting requirements. Id., at 249.
The amended statute reads:
An individual required to be registered under this act who is a resident of this state shall report in person and notify the registering authority having jurisdiction where his or her residence or domicile is located immediately after any of the following occur:MCL 28.725(1)(a)(2011) (emphasis added to show changes).
(a) The individual changes or vacates his or her residence or domicile.
The amendment added, inter alia, the following provision to the statutory definition of "residence": "If a person is homeless or otherwise lacks a fixed or temporary residence, residence means the village, city, or township where the person spends a majority of his or her time." Id., 28.722(p) (2011).
Appellee intended to live at the Market Street address reported to prison authorities prior to his release. There is no question he considered this his intended "residence" when he provided the address to prison authorities, and this was his "residence" for Megan's Law reporting requirements. When there was no vacancy, there was a change in his intent to live at that address, and he was required to inform police within 48 hours of that change. It is clear from the plain language of the statute, as in Dowdy, appellee's obligation to notify police was triggered when he changed his previous residence, not when his new residence was established.
Appellee argues that had he reported the soup kitchen or the general outdoor area where he was sleeping, police may not have been able to find him, and thus he still would have been found non-compliant. This argument is without merit, because by at least notifying police he was not living at the previously registered address, he would have been in compliance with registration regulations. This would have alerted police to the change in appellee's location, and would have served the purpose of the statute, which is to provide information to police and the local community.
Appellee also argues that because he never spent more than 20 hours at any one place, that he would never have been able to comply with the 48-hour notification requirement, and would never have met the definition of "residence" because he would not reside in any place for 30 consecutive days. Neither of these arguments provides any exception to registration requirements for homeless offenders. The statute clearly defines residence as the "location" where an offender "resides or is domiciled or intends to be domiciled for 30 consecutive days or more during a calendar year." 42 Pa.C.S. § 9792. The inclusion of the word "intends" indicates the Legislature anticipated a fixed residence might be uncertain for some offenders, and this language includes those who do not have a permanent residence. As appellee certainly intended to live at the reported Market Street address for at least 30 days, there is no doubt this was a "residence" under the statute; he changed this residence when he did not reside there.
Appellee made no attempt whatsoever to comply with the registration requirements, and the belief that police may not have been able to find him did not excuse him from reporting a change in his location. As the court in Dowdy noted, "difficulties in verifying an offender's information do not excuse the offender from complying with [registration] requirements." Dowdy, at 247.
Pennsylvania's Megan's Law clearly requires sexually violent predators to notify Pennsylvania State Police of all current and intended residences, and to notify police of a change of residence. Unlike some other states that have ruled on this issue, Pennsylvania clearly defines "residence" for registration purposes. Appellee reported an intended residence to prison authorities, and was in violation of registration requirements when he failed to report a change of residence when he no longer intended to live there. There is no exception for homeless offenders, and the Superior Court was incorrect in reading such an exception into the statute. Accordingly, we reverse the ruling of the Superior Court, reinstate appellee's conviction, and remand to the trial court for reimposition of appellee's sentence.
Order reversed; case remanded for proceedings consistent with this decision. Jurisdiction relinquished.
Mr. Justice Saylor, Madame Justice Todd, Mr. Justice McCaffery and Madame Justice Orie Melvin join the opinion.
Mr. Chief Justice Castille files a dissenting opinion in which Mr. Justice Baer joins.