Opinion
634 MDA 2021 J-S01027-22
03-14-2022
COMMONWEALTH OF PENNSYLVANIA v. JARED LEE DOWNWARD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 6, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005279-2008
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
NICHOLS, J.
Appellant Jared Lee Downward appeals pro se from the order denying his petition to terminate his registration requirements under the Sexual Offender Registration and Notification Act (SORNA). Appellant argues that the trial court erred in concluding that he was subject to the registration requirements set forth in Subchapter I. Following our review of the record, we affirm based on the trial court's opinion.
42 Pa.C.S. §§ 9799.10-9799.75.
We adopt the trial court's summary of the facts and procedural history underlying this matter. See Trial Ct. Op., 7/6/21, at 1-11. Briefly, Appellant pled guilty to involuntary deviate sexual intercourse (IDSI), corruption of minors, and related offenses for incidents involving three victims in 2007 and 2008. On November 25, 2009, the trial court sentenced Appellant to an aggregate term of twelve and a half to twenty-eight years' incarceration.Appellant was also designated a sexually violent predator (SVP). At that time, Appellant was subject to lifetime registration under Megan's Law III.
Appellant did not file a direct appeal. However, we note that Appellant subsequently filed a timely petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546 in which he challenged the legality of his sentence with respect to one of the victims. On March 30, 2012, the PCRA court granted partial relief and re-sentenced Appellant to an aggregate term of twelve to twenty-six years' incarceration. See Commonwealth v. Downward, 357 MDA 2012 at 3-4 (Pa. Super. filed Nov. 1, 2012) (unpublished mem.).
Appellant filed the instant petition to terminate his SORNA registration requirements on October 27, 2020. On May 6, 2021, the trial court issued an order denying Appellant's petition.
Therein, Appellant argued that (1) because he was originally subject to registration under Megan's Law III, and that statute was ruled unconstitutional, there was "no legally enforceable period of registration under which [Appellant] can be made subject to SORNA;" (2) Appellant's SVP designation must be vacated; and (3) the internet dissemination provisions of SORNA II were unconstitutional and cannot be applied to Appellant. Pet. to Terminate Sex Offender Registration Requirements, 10/27/20, at ¶¶ 14-22.
Appellant subsequently filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion in which it addressed Appellant's substantive challenges to SORNA and concluded that he was not entitled to relief. Trial Ct. Op. at 11-16.
On appeal, Appellant raises the following issue:
Does the application of SORNA to [Appellant's] case violate due process when [Appellant] does not have a period of registration that was legally imposed and has not expired?Appellant's Brief at 4.
Appellant's claim raises a question of law. Therefore, "our standard of review is de novo, and our scope of review is plenary." Commonwealth v. Brensinger, 218 A.3d 440, 456 (Pa. Super. 2019) (en banc) (citation omitted).
Following our review of the record, the parties' briefs, and the well-reasoned conclusions of the trial court, we affirm on the basis of the trial court's opinion. See Trial Ct. Op. at 11-16. Specifically, we agree with the trial court that because Appellant was previously subject to registration under Megan's Law III, "and his registration period (his lifetime) had not expired, he was and is subject to SORNA I and its replacement, SORNA II." Id. at 12-13. Likewise, although our Supreme Court found that Megan's Law III was unconstitutional, that ruling did not operate to remove Appellant from the class of "existing registrants" subject to registration under SORNA. Id. at 11-12. Finally, we agree with the trial court that Appellant is not entitled to relief from his SVP designation or from his lifetime registration, notification, and counseling (RNC) requirements. Id. at 14-16.
For these reasons, we conclude that the trial court did not err in denying Appellant's petition to terminate his registration requirements. See Brensinger, 218 A.3d at 456. Accordingly, we affirm based on the trial court's opinion. Order affirmed.
Judgment Entered.
JULY 6, 2021
OPINION SUR PA.R.A.P. 1925(a)
ASHWORTH, P.J.
Defendant Jared Downward ("Downward") has filed a pro se direct appeal to the Superior Court of Pennsylvania from the Order of May 4, 2021, which denied his Petition to Terminate Sex Offender Registration Requirements. This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, and for the following reasons, the Court requests that the appeal be denied.
I. BACKGROUND
Downward has a lengthy history of litigating his causes in our courts, therefore, the Court will constrain this procedural history recitation to only those facts and procedures essential to the instant appeal.
On July 23, 2009, Downward entered an open plea of guilty to three counts each of involuntary deviate sexual intercourse (IDSI), statutory sexual assault, and corruption of minors, two counts of indecent assault, and one count of rape of a child. (Notes of Testimony (N.T.), Guilty Plea at 9-11.) Following an evaluation by the Pennsylvania Sexual Offender's Assessment Board (SOAB), a Megan's Law hearing was held on November 25, 2009, at which the parties stipulated to the admission of the SOAB's report. N.T., Sentencing at 3-5. The sentencing court adopted the findings as credible and found Downward to be a sexually violent predator (SVP), subject to the lifetime registration requirements of Megan's Law III, 42 Pa. C.S.A. § 9795.1 and § 9795.3. Id. at 28-29.
At the time Downward committed the underlying criminal acts, the law governing registration and reporting requirements for convicted sex offenders was 42 Pa.C.S.A. §§ 9791 - 9799.9 ("Megan's Law III").
At the conclusion of the SVP hearing, Downward was sentenced to concurrent terms of the mandatory minimum of ten to twenty years' incarceration for each of the three IDSI charges (Counts 1, 7 and 10), and for the rape charge (Count 5). N.T., Sentencing at 33. Downward also received concurrent sentences of 12 to 24 months for each of the three statutory sexual assault charges (Counts 2, 6 and 11), and concurrent sentences of 6 to 24 months for each of the three corruption of minors charges (Counts 3, 8 and 13). Id. at 33-34. With respect to the indecent assault charges, Downward was sentenced to a period of incarceration of 6 to 24 months on Count 9, and 3 to 12 months on Counts 4 and 12. Id. at 34. As the sentences for each type of crime were set to run consecutive to the other groups of offenses, Downward received an aggregate sentence of 12-1/2 years to 28 years. Id. at 34-35.
Downward filed a counseled PCRA petition on October 12, 2010, which was granted in part (as to sentencing) and denied in part. Accordingly, a resentencing hearing was subsequently scheduled for February 29, 2012, to formally resentence Downward in accordance with the Court's Order of January 19, 2012. Before the Court could hold the resentencing hearing, however, Downward filed a notice of appeal to the Superior Court on February 16, 2012 regarding the portion of his PCRA that was denied. While the appeal was pending, the Court held the resentencing hearing on March 30, 2012, at the conclusion of which Downward was sentenced in accordance with the Order of January 19, 2012. By memorandum opinion dated November 1, 2012, a three-judge panel of the Superior Court affirmed that portion of this Court's order that denied Downward's PCRA petition. A petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on March 26, 2013. See Commonwealth v. Downward, 63 A. 3d 1243 (Pa. 2013).
Although a trial court generally loses jurisdiction to act once an appeal is filed, the Court retained jurisdiction to enforce the order entered prior to the notice of appeal being filed. Pa. R.A.P. 1701(b)(2).
Over the course of the ensuing five years, Downward filed three more pro se PCRA petitions, each ostensibly challenging various aspects of his conviction. The trial court denied each petition, Downward timely appealed each denial to the Superior Court, and the Superior Court affirmed each of the trial court's denials.
April 9, 2013, April 20, 2015, and October 3, 2016.
Denied by Order of May 23, 2013, and affirmed by memorandum or opinion of three-judge panel of Superior Court May 20, 2014 (No. 1103 MDA 2013); denied by Order of May 13, 2015, and affirmed by memorandum or opinion of three-judge panel of Superior Court October 25, 2016 (1037 MDA 2015); denied by Order of November 15, 2016, and affirmed by memorandum opinion of three-judge panel of Superior Court on August 21, 2017 (No. 2010 MDA 2016).
On January 8, 2018, Downward filed his fifth PCRA petition, raising for the first time a challenge to the application of SORNA's sex-offender registration requirements to him in light of the Pennsylvania Supreme Court's decision in Commonwealth v. Muniz, 164 A.3d 1189 (2017)(plurality) (Muniz). Even though it was a fifth PCRA petition, the trial court nonetheless appointed counsel, Dennis C. Dougherty, Esquire (PCRA counsel), to ensure the protection of Downward's rights amidst changing statutory and common law. On March 1, 2018, PCRA counsel filed an Amended Motion for Post-Conviction Collateral Relief and/or Motion to Bar Applicability of Sex Offender Registration and/or Petition for Writ of Habeas Corpus (2018 Amended PCRA), arguing: (1) the retroactive application of SORNA to Downward was unconstitutional, and (2) that it was unlawful to impose upon Downward the conditions attendant to a Sexually Violent Predator ("SVP") in light of the Superior Court's ruling in Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 20M)(Butler I)
With Muniz, the Superior Court held the registration and notification requirements of SORNA I's Subchapter H had a punitive effect pursuant to Kennedy v. Mendoza-Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), and retroactive application violated the ex post facto provisions of the United States Constitution and Pennsylvania Constitution.
In Butler I, the Superior Court invalidated SORNA's mechanism for determining SVP status.
The Commonwealth responded on April 2, 2018, arguing that Downward's claims in the 2018 Amended Petition vis-a-vis the retroactive application of SORNA had been rendered moot upon the legislative repeal of SORNA and subsequent enactment of the legislation commonly referred to as SORNA II, which continued the same lifetime registration requirements for Downward as had been originally imposed at the time of his conviction in 2008 under Megan's Law III, and that had continued unchanged by SORNA I.
See 10, 42 Pa. C.S. §§ 9799.10-9799.75 ("SORNA II") (amending certain provisions of SORNA I and adding new sections, 42 Pa. C.S. §§ 9799.42 and 9799.51-9799.75, which became effective immediately. The legislation explicitly states it was passed in response to Muinz and Butler l).
On April 9, 2018, the Court issued a Notice Pursuant to Pa.R.Crim.P 907 of its intent to dismiss the 2018 Amended PCRA without a hearing and providing Downward thirty days to respond to said Notice. After an extension of this deadline, Downward filed his counseled response on June 18, 2018, asserting the retroactive application of SORNA II to Downward was an unconstitutional violation of the ex post facto laws. Thereafter, by Order of July 9, 2018, the Court directed the parties to file supplemental briefs in accordance with the schedule contained therein. Downward filed a timely counseled brief on August 10, 2018. In lieu of a responsive brief, however, the Commonwealth filed a Motion to Stay on August 14, 2018, citing the matter of Commonwealth v. Lippincott, then-pending before the Superior Court, from which the Commonwealth anticipated a forthcoming ruling. The Commonwealth believed the Lippincott decision would have direct implications for Downward's 2018 Amended PCRA. The stay was granted by Order of August 20, 2018, with direction to the Commonwealth to file notice when the Lippincott decision had been rendered.
Although Downward was represented by counsel at all times during this time period, he nonetheless submitted two additional pro se filings to the Court: 1) a motion on July 23, 2018, to withdraw his PCRA; and 2) yet another pro se PCRA petition, asserting the same grounds for relief as the 2018 Amended Petition. Such hybrid representation has been expressly precluded by our Supreme Court, whether at trial, on appeal, or during PCRA proceedings. See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1038-40 (2011); Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 302 (1999); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993). See also Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). Consequently, the Court directed both pleadings to be docketed and copies sent to Downward's counsel, in compliance with Pa.R.Crim.P. 576(A)(4) ("In any case in which a defendant is represented by an attorney, if the defendant submits for filing a written motion, notice, or document that has not been signed by the defendant's attorney, the clerk of courts shall accept it for filing" and send a copy to the attorney of record in the case within ten days of receipt.).
The Supreme Court had directed the Lippincott parties to brief the issues of whether Act 10/SORNA II was punitive in nature and whether it could be applied retroactively.
On April 17, 2019, the Commonwealth filed a Notice advising of a decision in Lippincott. The Lippincott Court, however, did not reach the question of the constitutionality of the retroactive application of SORNA II, and the Commonwealth requested another stay pending a decision from the Pennsylvania Supreme Court in the matter of Commonwealth v. LaCombe, for which the Supreme Court had granted certiorari exclusively to review the constitutionality of retroactively applying SORNAII, Subchapter I. The Commonwealth anticipated Lacombe's outcome to be dispositive of Downward's 2018 Amended PCRA. A second stay was granted by Order of April 18, 2019, again with direction for the Commonwealth to file notice upon decision in LaCombe. The Supreme Court rendered its opinion on July 21, 2020. See Commonwealth v. Lacombe, 234 A.3d 602 (2020) (Lacombe). The Commonwealth did not notify this trial court, however, and neither party moved to lift the stay.
Commonwealth v. Lippincott, 208 A.3d 143 (Pa. Super. 2019).
On September 4, 2020, Downward filed another pro se Petition to Terminate Sex Offender Registration Requirements, prompting the Court to contact counsel for both parties regarding proceeding on the 2018 Amended PCRA in light of Lacombe. After a review of the relevant new law regarding SORNA II and registration requirements, Downward's counsel filed on October 5, 2020, a praecipe to withdraw and discontinue both the 2018 pro se PCRA and the 2018 Amended PCRA, certifying that Downward was in agreement with these withdrawals. Despite this representation, however, Downward filed yet another pro se Petition to Terminate Sex Offender Registration Requirements (2020 Petition) on October 27, 2020, not two weeks after discontinuing the 2018 PCRA petitions. The Commonwealth responded, and on May 4, 2021, this Court entered an Order denying the 2020 Petition. Downward filed a timely Notice of Appeal on May 14, 2021, for which this Court granted in forma pauperis status on May 24, 2021. This Opinion issues pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
II. Discussion
A. Jurisdiction
We begin by noting this Court has jurisdiction to entertain the 2020 Petition pursuant to our Supreme Court's guidance in Lacombe, which directs that a challenge to the application of a sex offender registration statute need not be raised through the PCRA, where the timeliness requirement would preclude many registrants from seeking relief in the face of changes in the law. Specifically, the Lacombe Court held that
under the PCRA... many registrants ... would be ineligible for relief on timeliness grounds. See 42 Pa.C.S. § 9545(b)(1) (PCRA petition must be filed within one year of judgment of sentence becoming final unless exception applies). Other registrants may be ineligible because their sentence has expired while their registration requirements continue. See 42 Pa.C.S. § 9543(a)(1) (PCRA petitioner must be serving sentence to be eligible for relief). Both situations arise from the fact that the registration period does not begin until registrants are released from prison, which may be well after their sentence has become final or may signal the completion of their sentence. Accordingly, we decline to find the PCRA, or any other procedural mechanism, is the exclusive method for challenging sexual offender registration statutes.Lacombe, 234 A.3d at 617.
B. The 2020 Petition
In the pro se 2020 Petition, Downward seeks relief from the retroactive application of SORNA H's registration requirements to him and from his classification as an SVP. Downward's argument seems to run thus: 1) Downward was convicted in 2008 and subject to the SVP criteria, registration requirements, and other procedures of Megan's Law III; 2) our Supreme Court struck down Megan's Law III in its entirety through Commonwealth v. Neiman, 84 A.3d 603, 607 (2013) (Neiman); 3) Neiman rendered Megan's Law III void ab initio and therefore Downward was freed of any legally enforceable registration requirements whatsoever; 4) Subchapter I of SORNAII only applies to defendants whose time for registering was unexpired at the time of its enactment; 5) since Megan's Law III was stricken in its entirety, and Downward's registration requirements no longer existed at the time of SORNA II's enactment, he was not in the category of registrants with unexpired registration requirements; 6) therefore, SORNA II and its registration requirements cannot apply to him; and 7) in addition, since he was adjudicated an SVP under Megan's Law III, and Megan's Law III is void ab initio, Downward's SVP designation is invalid and the Court should vacate that portion of his sentence which designates him SVP. For the reasons detailed below, Downward's reasoning is flawed and his arguments without merit.
Before turning to the specifics of the 2020 Petition, however, it is prudent to begin this analysis with an overview of the historical development of Pennsylvania's law regarding convicted sex offender registration. Indeed, between the General Assembly and our courts, the law surrounding reporting requirements for adjudicated sex offenders has undergone a complicated evolutionary process over the past several decades, especially concerning the application of reporting requirements to offenders whose crimes were committed prior to December 20, 2012, the date of SORNA I's enactment. This Court is mindful of the challenges presented, even to experienced legal practitioners, when our General Assembly and Supreme Court must engage, as here, in a series of back-and-forth efforts at legislation and interpretation in order to arrive at a constitutionally permissible scheme of criminal law and procedure that properly balances the protection of the public with the Constitutional rights of individual defendants. As set forth in more detail below, Downward is and has been continually, without interruption, subject to lifetime registration, notification, and counseling (RNC) requirements under every governing law. Having pled guilty to, among other crimes, three counts IDSI and two counts of statutory sexual assault, and having been found an SVP, Downward has been and remains subject to lifetime registration under Megan's Law III, Megan's Law II, and every iteration of SORNA. None of the changes in the law since Downward's conviction have freed him of these requirements.
In 1995, the Pennsylvania legislature passed the first in what would become a series of statutes requiring convicted sex offenders to register their personal information, such as their current address, with the Pennsylvania State Police (PSP) upon completion of their period of incarceration. See former 42 Pa. C.S. §§9791-9799.6 (Megan's Law I). Megan's Law I was subsequently revised and amended through former 42 Pa. C.S. §§9791-9799.7 (Megan's Law II, enacted in 2000), and former 42 Pa. C.S. §§ 9791-9799.9 (Megan's Law III, enacted in 2004), which modified certain portions of Megan's Law II. The General Assembly replaced Megan's Law generally on December 20, 2012, with the enactment of the Sex Offender Registration and Notification Act, former 42 Pa. C.S. §§ 9799.10-9799.41 (SORNA I). SORNA I provided explicitly for "the expiration of prior registration requirements, commonly referred to as Megan's Law, 42 Pa.C.S. §§ 9791 - 9799.9, as of December 20, 2012, and for the effectiveness of SORNA on the same date." In re J.B., infra n.11.
SORNA I was passed in response to the federal Adam Walsh Protection and Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§ 16901 - 16991, which mandates that each state impose certain tier-based registration and notification requirements on sex offenders in order to maintain federal grant funding. Seelnre J.B., 630 Pa. 408, 107 A.3d 1, 3 (2014).
Subsequently, the Supreme Court found in 2013 that Megan's Law III was unconstitutional in its entirety and therefore invalid. See Neiman, supra. Cognizant of the potential for profound implications of its ruling for those registrants sentenced under Megan's Law III, however, the Neiman Court stayed the effective date of its decision to provide the legislature the opportunity to enact clarifying and curative amendments to SORNA I regarding registrants whose crimes were committed prior to SORNA I's enactment. In response, the General Assembly enacted legislation on March 14, 2014, modifying the language of 42 C.S. §9799.13(3) "to clarify that persons who were required to register with the state police at any time before SORNA's effective date, and whose registration period had not expired, were still obligated to register with the state police as provided in Section 9799.15." Commonwealth v. Derhammer, 653. Pa. 391, 396, 173 A.3d 723, 726 (2017) (emphasis added).
In 2017, the Supreme Court found in Muniz "that the registration requirements of Subchapter H of SORNA I, as applied retroactively, were punitive in nature under the seven-factor test set forth by the United States Supreme Court in Kennedy v. Mendoza-Martinez, and, thus, SORNA I was unconstitutional under the ex post facto clauses of both the United States and Pennsylvania Constitutions." Commonwealth v. Elliot, 249 A.3d 1190 (2021). Thus, the retroactive application of SORNA's registration requirements were found unconstitutional in so far as they operated to enhance the RNC requirements of an existing registrant. In response to Muniz, the General Assembly amended SORNA I by two legislative acts: Act 10 and Act 29. Together, these amendments comprise the current sex offender registration statute in effect today, 42 Pa. C.S. §§9799.10-9799.75 (SORNA II). With Subchapter H, SORNA II modified the registration requirements for individuals who committed offenses on or after SORNA's effective date of December 20, 2012. See 42 Pa. C.S. § 9799.11. SORNA II also creates new registration categories for individuals who committed offenses between April 22, 1996 and December 20, 2012, as well as for those who had been required to register under any pre-SORNA statute between April 22, 1996, and December 20, 2012, and whose registration period had not expired. See 42 Pa. C.S. § 9799.52. Our Supreme Court has determined that both amended Subchapters I and H of SORNA II impose non-punitive, administrative-type registration requirements that are "merely collateral consequences of a criminal conviction" and therefore permissibly applied retroactively. Commonwealth v. Smith, 240 A.3d 654, 658 (Pa. Super. 2020); see also Commonwealth v. Lacombe, 234 A.3d 602, 626 (2020) (rejecting ex post facto challenge to retroactive application of Subchapter I of SORNA II, finding requirements in Subchapter I non-punitive); Commonwealth v. Butler, 226 A.3d 972 (2020) ("Butler II", )(rejecting ex post facto challenge to retroactive application of Subchapter H of SORNA II on same grounds as Lacombe).
Act of February 21, 2018, P.L 27 (Act 10); Act of June 12, 2018, P.L 140 (Act 29).
C. Application to Downward
Downward's crimes were committed throughout 2007 and 2008, and he entered his guilty plea on July 23, 2009. His RNC requirements were therefore determined under Megan's Law III, as was this Court's finding that Downward met the criteria for SVP classification. Due both to the SVP designation and to the nature of the offenses to which he pled guilty (IDSI and statutory sexual assault), Megan's Law III required Downward to maintain registration with PSP for the remainder of his life. See former 42 Pa. C.S. §§ 9799.12 and 9799.14(d).
Downward is correct that the Supreme Court struck down Megan's Law III as unconstitutional in 2013 (see Neiman, supra). He is, however, mistaken in his belief that Neiman's invalidation of Megan's Law III operated to remove him from the class of "existing registrants" subject to the registration provisions of SORNA I. The Neiman Court anticipated complications attendant to its wholesale invalidation of Megan's Law III and wisely provided an opportunity to the legislature to proactively remedy these problems prior to the effective date of its decision. The Neiman Court realized that its
broad invalidation of Act 2004-152 - which, again included Megan's Law III in its entirety - would, without remedial legislation, call into question whether someone [sentenced under Megan's Law III] would be an existing registrant as of SORNA's effective date. Thus, the Neiman Court stayed its decision for 90 days to allow for legislative action. In March 2014, shortly before the stay expired, the General Assembly enacted Act 19 of 2014, see Act of Mar. 14, 2014, No. 19, P.L. 41 ("Act 2014-19"), which modified the wording of Section 9799.13(3) to clarify that persons who were required to register with the state police at any time before SORNA's effective date, and whose registration period had not expired, were still obligated to register with the state police as provided in Section 9799.15.Commonwealth v. Derhammer, 643 Pa. 391, 396, 173 A.3d 723, 726 (2017). Under the clarifying language of Act 2014-19, Downward was clearly included in the class of persons subject to the registration requirements contained in SORNA I. Act 2014-19, enacted before the Neiman decision officially took effect and invalidated Megan's Law III, ensured that sexually violent offenders who were sentenced under Megan's Law III, like Downward, would not fall through any proverbial registration cracks created when Neiman took effect and invalidated Megan's Law III. As Downward had been obligated under a statute prior to SORNA I to register with PSP, and his registration period (his lifetime) had not expired, he was and is subject to SORNA I and its replacement, SORNA II.
Furthermore, even if we assume, arguendo, that the foregoing analysis is erroneous, and that despite the Act 2014-19 amendments to SORNA, the invalidation of Megan's Law III did in fact invalidate all RNC requirements imposed by Megan's Law III, the Court finds Downward was nonetheless subject to an unbroken chain of governing law that continually and properly categorized him as an individual required to register with PSP for his lifetime. For purposes of analyzing whether Downward was, after Neiman, a person subject to the registration requirements of SORNA I, the Court finds that the complete invalidation of Megan's Law III did not operate to void Downward's lifetime registration requirements. The enactment of Megan's Law III only amended Megan's Law II without fully repealing it. Thus, even considering Megan's Law III as void ab initio, Downward was subject to the applicable lifetime registration requirements found in Megan's Law II, the relevant portion of which remained unaltered in Megan's Law III. Compare former 42 Pa. C.S. §9795.1(b)(2) prior to 2006 (Megan's Law II) and after 2006 (Megan's Law III); see also Act of Nov.29, 2006, P.L. 1567, No. 178 (enacting Megan's Law III and reflecting no changes or amendments to existing 42 Pa. C.S. § 9795.1(b)(2), regarding offenses requiring lifetime registration). It has been specifically recognized that a statute which substantially reenacts its predecessor does not act to interrupt the operation of the former law if the latter is subsequently held to be unconstitutional. Derhammer, 134 A.3d at 1075-77 (noting that an unconstitutional statute cannot repeal a former statute). Here, Megan's Law III was found to be unconstitutional. That finding, however, did not operate to interrupt the application of the former law (Megan's Law II) as it applied to persons who committed qualifying offenses prior to the enactment of SORNA I. Persons having committed and been convicted of crimes such as Downward's have continually, without interval, been subject to sex offender registration requirements under every statutory registration scheme enacted, both prior to and since he committed his offenses in 2007. Under any analysis, Downward specifically has been and is properly categorized as a person subject to the registration requirements found in SORNA. See 42 Pa.C.SA §9799.14(a)(3).
Section 9799.14 of SORNA established a three-tiered system of specifically enumerated offenses requiring registration for sexual offenders for differing lengths of time. 42 Pa.C.S.A. §9799.14. Two offenses to which Downward pled guilty qualified him as a Tier III offender- statutory assault (18 Pa.C.S. §3122.1(b)) and involuntary deviate sexual intercourse (18 Pa.C.S. §3123). Tier III offenders were subject to lifetime registration requirements, while Tier II offenders were subject to 25 years registration, and Tier I offenders to 15 years.
Finally, no recent development in the common law frees Downward from his lifetime RNC requirements. Muniz was inapplicable to Downward as the retroactive application of SORNA I's registration requirements to him did not result in any impermissible increases to his existing lifetime RNC requirements. See Adams v. Pennsylvania State Police, 2021 WL 2405400 (Cmwlth Ct. June 14, 2021)(SORNA I continued, but did not increase, lifetime registration requirement that applied under Megan's Law II and III for persons convicted of aggravated indecent assault and therefore retroactive application not unconstitutional violation of ex post facto law; Muniz does not change this).
Moreover, Muniz has now been superseded by a constitutional and curative statutory scheme whose retroactive application is entirely permissible. The Pennsylvania Supreme Court in Commonwealth v. Lacombe, 234 A.3d 602, 626-27 (Pa. 2020) (SORNA II reporting and registration requirements non-punitive civil remedies permissibly applied retroactively); see also Act of February 21, 2018, P.L. 27, No. 10 ("Act 10"); Act of June 12, 2018, P.L. 140, No. 29 ("Act 29")(collectively SORNA II). Likewise, the Supreme Court has found that the RNC requirements applicable to SVPs under Subchapter H of SORNA II are non-punitive, explaining:
[although we recognize the RNC requirements impose affirmative disabilities or restraints upon SVPs, and those requirements have been historically regarded as punishment, our conclusions in this regard are not dispositive on the larger question of whether the statutory requirements constitute criminal punishment. This is especially so where the government in this case is concerned with protecting the public, through counseling and public notification rather than deterrent threats, not from those who have been convicted of certain enumerated crimes, but instead from those who have been found to be dangerously mentally ill. Under the circumstances, and also because we do not find the RNC requirements to be excessive in light of the heightened public safety concerns attendant to SVPs, we conclude the RNC requirements do not constitute criminal punishment.Commonwealth v. Butler, 226 A.3d 972, 992-93 (2020) (citation omitted) ("Butler II"). Consequently, any argument that the RNC requirements of SORNA II are unconstitutional as applied to Downward is moot. Downward's lifetime RNC requirements remain in full force and effect; his 2020 Petition was properly denied and dismissed.
Butler II specifically held that the RNC requirements found in SORNA II do not constitute criminal punishment, such that 42 Pa.C.S. §9799.24(e)(3) is not subject to the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013), and may be applied retroactively without violating any person's constitutional rights. The Butler II Court also found constitutionally permissible SORNA Ms procedure for designating individuals as SVPs.
Downward's final argument, that his SVP status is invalid because it was determined under Megan's Law III, which is void ab initio, fails for the same reasons outlined above regarding RNC requirements. Downward's SVP status is and has remained valid throughout the changing landscape of the law governing registration for sex offenders. The Supreme Court held in Butler II that since the RNC requirements for SVPs under Subchapter H of SORNA II do not constitute criminal punishment, the procedure for determining if a convicted sex offender is an SVP is constitutionally and permissibly applied retroactively. See Butler II, supra (because RNC requirements of SORNA II are not criminal punishment, procedure for designating individuals as SVPs under 42 Pa.C.S. §9799.24(e)(3) is therefore not subject to requirements of Apprendi ... and Alleyne ... and retroactive application remains constitutionally permissible); see also Lacombe, 234 A.3d at 626-27. SORNA II and its common law progeny cure any deficiencies found in prior law and Downward is properly categorized as an SVP.
III. CONCLUSION
For the foregoing reasons, the Court finds that Downward is subject to the lifetime RNC requirements pursuant to the statutory dictates of SORNA II as interpreted by the Supreme Court of Pennsylvania.
Accordingly, I enter the following:
[*] Retired Senior Judge assigned to the Superior Court.