Opinion
No. 473 M.D. 2012
03-12-2013
A.S., Petitioner v. Pennsylvania State Police, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner A.S., an adult male residing in Glenside, Pennsylvania, filed a Petition for Review in the Nature of a Complaint in Mandamus (Petition), seeking an order from this Court to compel Respondent Pennsylvania State Police (PSP) to change A.S.'s sexual offender registration status under Section 9795.1 of the Sentencing Code, 42 Pa. C.S. § 9795.1, from lifetime registration to a ten-year registration. PSP filed a preliminary objection, seeking dismissal of the Petition. We now overrule PSP's preliminary objection.
Section 9799.41 of the Sentencing Code, 42 Pa. C.S. § 9799.41, which was enacted on December 20, 2011, provides that certain sections of the Sentencing Code, including Section 9795.1, expire on December 20, 2012. The subject matter of Section 9795.1 can now be found in Sections 9799.14 and 9799.15 of the Sentencing Code, 42 Pa. C.S. §§ 9799.14 and .15.
A.S. alleges that on October 5, 2001, he pled guilty to one count of violating 18 Pa. C.S. § 6312(b) (relating to photographing sexual act of a minor) and one count of violating 18 Pa. C.S. § 6318(a)(5) (relating to unlawful contact with minor for purposes of engaging in a violation of 18 Pa. C.S. § 6312). A.S. alleges that when he was 21 years old, he persuaded his minor girlfriend (then 16 years old) to send him, via email, photos of her engaged in a sexual act. He alleges that both charges were based on this conduct. As a result of his guilty plea, A.S. alleges that he was sentenced to 5 months to 23 months of incarceration, followed by 6 years of probation.
A.S. pled guilty to an additional offense, but that offense is not relevant to the issue set forth in the Petition.
Section 9795.1 of the Sentencing Code sets forth two classes of registrants—ten-year and lifetime. Under subsection (a), an individual convicted of any one of the enumerated criminal offenses set forth therein, including, inter alia, the two crimes for which A.S. pled guilty, shall be registered with PSP for ten years. Under subsection (b)(1), however, "[a]n individual with two or more convictions of any of the offenses set forth in subsection (a)" is subject to lifetime registration with PSP. 42 Pa. C.S. § 9795.1(b)(1). A.S. contends that PSP designated him as a lifetime offender based on this language. But A.S. contends that the two charges to which he pled guilty stemmed from a single criminal act or episode—i.e., photographing a minor in a sexual act. A.S. contends, therefore, that his guilty plea to the two enumerated criminal offenses set forth in subparagraph (a) should, as a matter of law, be treated as a single conviction (not two or more convictions) for purposes of subsection (b)(1). Because of this, he contends that it is improper for PSP to identify him as a lifetime registrant.
On August 30, 2012, PSP filed its preliminary objection in the nature of a demurrer under Pa. R.C.P. No. 1028(a)(4). The substantive paragraphs of the preliminary objection provide:
2. Petitioner's petition for review in the nature of a complaint in mandamus is legally insufficient as a matter of law.The parties have fully briefed PSP's preliminary objection. The Court heard oral argument en banc on the preliminary objection, and the matter is now ripe for disposition.
3. The language of 42 Pa. C.S. § 9795.1, which subjects petitioner to lifetime registration because he has two or more convictions, which each alone triggers a ten-year registration, is clear and unambiguous.
4. The language of 42 Pa. C.S. § 9795.1, when interpreted in light of the focus of Megan's Law on public safety, requires that petitioner be subject to lifetime registration.
42 Pa. C.S. §§ 9791-9799.41, which is part of the Sentencing Code, is commonly referred to as Megan's Law. (Footnote added.)
"Preliminary objections should be sustained only in cases that are clear and free from doubt." Pennsylvania AFL-CIO v. Commonwealth, 563 Pa. 108, 114, 757 A.2d 917, 920 (2000) (AFL-CIO). In AFL-CIO, the petitioners commenced an action in this Court's original jurisdiction, challenging the constitutionality of Act 57 of 1996. The petitioners maintained that the procedures that the General Assembly used to pass the measure violated the mandates of Article III, Sections 1 through 5 of the Pennsylvania Constitution. This Court, sitting en banc, sustained in part and overruled in part preliminary objections filed by the respondents. Of particular relevance to this matter is this Court's decision to sustain the respondents' preliminary objection in the nature of a demurrer, wherein the respondents contended, contrary to the claim of the petitioner, that the General Assembly complied with Article III, Section 5 of the Pennsylvania Constitution. This Court held that the General Assembly did not violate Article III, Section 5 and, therefore, sustained the demurrer.
Act 57 of 1996, also known as the Act of June 24, 1996, P.L. 350 (Act 57), amended the Pennsylvania Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Article III, Section 5 of the Pennsylvania Constitution provides:
No amendment to bills by one House shall be concurred in by the other, except by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting for and against recorded upon the journal thereof; and reports of committees of conference shall be adopted in either House only by the vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting recorded upon the journals.
On appeal, however, the Pennsylvania Supreme Court held that this Court erred in sustaining the preliminary objection:
Here, in sustaining Appellees' preliminary objections, the Commonwealth Court concluded that Appellants had failed to convince the court that the General Assembly, in enacting Act 57, had violated Article III, Section 5. In reaching this conclusion, however, the Commonwealth Court specifically noted
that before the instant case, no Pennsylvania court had interpreted the language of Article III, Section 5 in a published opinion. In fact, the Commonwealth Court explicitly recognized that more than one interpretation of the language in Article III, Section 5 may be possible.AFL-CIO, 563 Pa. at 114-15, 757 A.2d at 920-21 (citation omitted).
Given these circumstances, we agree with Appellants that the Commonwealth Court erred in finding that Appellees had met their burden of demonstrating that the law interpreting Article III, Section 5 is clear and free from doubt, as is required to prevail on preliminary objections. Thus, we conclude that the Commonwealth Court improperly sustained Appellees' preliminary objections to Appellants' claim that the procedure used to enact Act 57 failed to comply with Article III, Section 5.
At the heart of this case is the question of whether A.S., based on his conviction history, is "[a]n individual with two or more convictions of any of the offenses set forth in subsection (a)." To rule that he is, in the context of a preliminary objection in the nature of a demurrer, would require us to conclude that the statutory language Section 9795.1(b)(1) of the Sentencing Code is "clear and free from doubt" and favors PSP's reading. This we cannot do. A.S. raises a reasonable interpretation of the statutory language. He contends that the language should be interpreted to apply only to those individuals who are convicted of engaging in separate acts of misconduct that lead to more than one criminal conviction—i.e., repeat offenders and recidivists—and not individuals, like himself, who, as he contends in his Petition, engaged in a single act of misconduct that, by statute and an act of prosecutorial discretion, equates to more than one criminal violation. PSP, by contrast, argues that the statutory language is clear. A.S. pled guilty to two crimes listed in subsection (a) and, therefore, he is a lifetime offender under subsection (b)(1).
The Pennsylvania Supreme Court recently wrestled with the interpretation of subsection (b)(1) under similar circumstances. In Commonwealth v. Gehris, ___ Pa. ___, 54 A.3d 862 (2012), on allowance of appeal from an unreported memorandum decision of a panel of the Pennsylvania Superior Court, the Pennsylvania Supreme Court considered the question of whether a man who pled guilty to two subsection (a) offenses from a single criminal information arising out of conduct that occurred over a four-month period should be considered a lifetime registrant under the law. The trial court and the Pennsylvania Superior Court, holding that the statutory language was unambiguous, concluded that he met the definition of a lifetime offender based on his conviction of two subsection (a) offenses.
But the six sitting Justices of our Pennsylvania Supreme Court were unable to reach a consensus in the case, resulting in a per curiam affirmance of the Superior Court's decision due to an evenly divided court. In support of affirmance, Justice Todd, joined by Justices Eakin and McCaffery, penned an opinion, concluding that the language was clear and unambiguous and rejecting an alternative interpretation that would limit the reach of subsection (b)(1) to repeat offenders or recidivists.
In an opinion in support of reversal, Chief Justice Castille, joined by Justices Saylor and Baer, agreed that, in isolation, the statutory language of subsection (b)(1) was "not ambiguous or unclear." Gehris, ___ Pa. at ___, 54 A.3d at 875 (Castille, C.J.). But that, in the Chief Justice's view, does not necessarily address the problem:
The problem confronted in this appeal arises when subsection (b)(1) is applied to an offender who has committed "two or more" subsection (a) offenses during the course of a single continuous criminal episode or
course of conduct. As appellant points out, in our age of ever more rapid and varied technological communications, it is increasingly likely that this circumstance will arise often or in almost every case. This reveals an unfortunate lack of specificity in potential application of Section 9795.1. If the statutory scheme entails a "recidivist philosophy," . . . then mechanical imposition of the lifetime registration requirement may not always be proper.Id. The Chief Justice then set out his case as to why the registration requirement in the law encompasses a recidivist philosophy and thus must be read in light of that philosophy:
We would therefore hold that a defendant convicted of "two or more" subsection (a) offenses are subject to the lesser sanction of the ten-year registration requirement so long as it is clear that the offenses were part of the same course of criminal conduct. We would therefore vacate the Superior Court's order, vacate the portion of appellant's sentence imposing lifetime registration, and return this matter to the trial court for imposition of the ten-year registration requirement.Id. at ___, 54 A.3d at 879 (Castille, C.J.).
The Chief Justice explained this philosophy as follows:
The essence of the recidivist philosophy is to afford first-time offenders (or offenders convicted of less serious offenses) some amount of time within which to modify their behavior away from criminality. Should they fail to take advantage of the opportunity, and transgress a second time or more, the "next" sentence will be more severe. The general concept has long been part of the common law.
We have no binding precedent upon which we can rule definitively on the meaning of Section 9795.1(b)(1) of the Sentencing Code under A.S.'s circumstances, as pled in his Petition. What we do have, however, are conflicting interpretations of the statutory language in question by an evenly-divided Pennsylvania Supreme Court. One interpretation supports PSP's position in its preliminary objection, but the other does not. Under these circumstances, we cannot say definitively that the meaning of Section 9795.1(b)(1) and its application to A.S. are so clear and free from doubt that we should resolve this matter by way of PSP's preliminary objection. Because sustaining the preliminary objection under these circumstances would be contrary to the Pennsylvania Supreme Court's decision in AFL-CIO, we will overrule the preliminary objection and direct PSP to file an answer to the Petition.
/s/_________
P. KEVIN BROBSON, Judge President Judge Pellegrini concurs in result only. ORDER
AND NOW, this 12th day of March, 2013, the preliminary objection of Respondent Pennsylvania State Police is OVERRULED, and Respondent is directed to file an answer to the Petition for Review within thirty (30) days of the date of this Order.
/s/_________
P. KEVIN BROBSON, Judge
Gehris, ___ Pa. at ___, 54 A.3d at 875 (Castille, C.J.).