Opinion
No. 75 M.D. 2014
12-17-2014
James Michael Dunyan, Petitioner v. Pennsylvania State Police, Lt. Todd L. Harman, Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Before this court in our original jurisdiction are the preliminary objections filed by the Pennsylvania State Police (PSP) and Lt. Todd L. Harman (collectively, Respondents) to James Michael Dunyan's pro se amended petition for review in the nature of mandamus. Dunyan asks this court to issue a writ ordering his relief from the registration requirement of the Sexual Offender Registration and Notification Act, also known as Megan's Law IV. We sustain Respondents' preliminary objections and dismiss Dunyan's petition for review.
This court has original jurisdiction pursuant to section 761(c) of the Judicial Code, 42 Pa. C.S. §761(c).
Megan's Law I, II, III, and IV took effect in 1996, 2000, 2005, and 2012, respectively.
On November 5, 1989, Dunyan was arrested and charged with kidnapping, indecent assault, and other related charges. On January 21, 1992, a jury found Dunyan guilty of involuntary deviate sexual intercourse (IDSI) and sentenced him to 7 to 15 years' imprisonment. Dunyan completed his sentence on February 24, 2006, and was released. On February 28, 2006, Dunyan reported to the PSP in Philadelphia to register as a convicted sex offender. The PSP informed Dunyan that he must register once per year for life. (Dunyan's Pet. ¶¶ 2-5.)
At the time of Dunyan's release Megan's Law II was in effect, which required registration once a year for life.
On March 21, 2008, Dunyan was arrested and charged with burglary, aggravated assault, and other related charges. (Id. ¶ 6.) On November 3, 2010, Dunyan pled guilty to burglary and simple assault and was sentenced to 5 to 10 years' imprisonment. (Id. ¶ 7.) In a letter dated December 3, 2012, Respondents informed Dunyan that, pursuant to Megan's Law IV, he was now classified as a tier-III sex offender and, thus, must register with the PSP quarterly for life. (Id. ¶ 8, Ex. P-1.) On February 18, 2014, Dunyan filed a petition with this court, seeking relief from compliance with Megan's Law IV's registration requirements. (Dunyan's Pet. at 1.)
Dunyan seeks an adjustment of his registration requirements from the quarterly registration for life requirement under Megan's Law IV to the once per year for 10 years requirement under Megan's Law I, which retroactively applied to him. "'Mandamus is an extraordinary writ that is available only to compel a ministerial duty where there exists: 1) a clear legal right in the plaintiff; 2) a corresponding duty in the defendant; and 3) the lack of any other adequate and appropriate remedy.'" Lennitt v. Department of Corrections, 964 A.2d 37, 40 (Pa. Cmwlth. 2008) (citation omitted). Mandamus does not establish legal rights; rather, it enforces previously established rights. Feigley v. Department of Corrections, 731 A.2d 220, 222 (Pa. Cmwlth. 1999).
Respondents argue that Dunyan's petition for review should be dismissed as legally insufficient because Dunyan failed to establish a clear legal right to relief from the lifetime registration requirement first applied to him under Megan's Law II. We agree.
"In ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom." Garber v. Department of Corrections Secretary, 851 A.2d 222, 226 n.7 (Pa. Cmwlth. 2004). "To sustain a demurrer, it must appear with certainty [that] the law will not permit recovery; any doubt must be resolved by a refusal to sustain the demurrer." Aviles v. Department of Corrections, 875 A.2d 1209, 1211 n.3 (Pa. Cmwlth. 2005). Pa. R.C.P. No. 1028(a)(4) states:
(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
* * *
(4) legal insufficiency of a pleading (demurrer).
Dunyan was originally required to register once per year for ten years when Megan's Law I took effect in 1996. In 2000, Megan's Law II took effect, requiring persons then incarcerated for IDSI to register once per year for life. Because Dunyan admits that he was imprisoned for IDSI and other offenses from January 21, 1992, through February 28, 2006, the lifetime reporting requirement was properly applied to him. Although Dunyan argues that the retroactive application of sex offender registration requirements violates ex post facto principles, Pennsylvania courts have specifically held otherwise. See Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa. 1999) (holding that registration requirements under Megan's Law I were non-punitive and thus not ex post facto violations under the Pennsylvania Constitution); Coppolino v. Commissioner of the Pennsylvania State Police, (Pa. Cmwlth. No. 214 M.D. 2013, filed Oct. 14, 2014), slip op. at 11 (holding that lifetime quarterly registration requirements for tier-III offenders under Megan's Law IV were non-punitive and thus not ex post facto violations under the Pennsylvania Constitution).
Dunyan also argues that the lifetime registration requirement was extinguished because the Pennsylvania Supreme Court invalidated a subsequent set of amendments known as Megan's Law III on constitutional grounds. Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013). However, Megan's Law III merely amended the existing lifetime registration requirement already enacted under Megan's Law II; the invalidation of Megan's Law III did not affect the Megan's Law II version of the registration requirement applied to Dunyan. Because the lifetime registration requirement under Megan's Law II was properly applied to Dunyan, he does not have a legal right to an adjustment to the once per year for 10 years requirement originally applied to him under Megan's Law I.
The Pennsylvania Supreme Court described the history of Megan's Law as follows:
The Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), now known as Megan's Law I, was to a significant extent ruled unconstitutional in Commonwealth v. Donald Williams, . . . 733 A.2d 593 (Pa. 1999). The General Assembly subsequently enacted Megan's Law II, whose constitutionality this Court substantially upheld in Commonwealth v. Gomer Williams, . . . 832 A.2d 962 (Pa. 2003). In the Act of November 24, 2004, P.L. 1243 (known as Megan's Law III), the General Assembly addressed several matters, including that portion of Megan's Law II held to be unconstitutional in Gomer Williams, concerning the penalty provisions that attached to sexually violent predators who failed to comply with registration and other requirements of the act.
Next, Respondents argue that Dunyan's petition for review should be dismissed as legally insufficient because Dunyan failed to establish a clear legal right to relief from the lifetime registration requirements under Megan's Law IV. We agree.
Dunyan argues that because his 2010 convictions were not for sex offenses that trigger Megan's Law IV, Megan's Law IV's requirement to register quarterly for life do not apply to him. However, Dunyan's 2010 convictions were not the reason Megan's Law IV was applied to him. Section 9799.13(3)(i) of Megan's Law IV, 42 Pa. C.S. §9799.13(3)(i), applies to sex offenders who had not yet completed their registration requirements at the time Megan's Law IV took effect. Section 9799.14(d)(4) of Megan's Law IV categorizes IDSI as a tier-III offense, and section 9799.15(e)(3) requires tier-III offenders to register quarterly for life. When Megan's Law IV took effect on December 20, 2012, Dunyan was already required to report once a year for life because of his IDSI conviction. Because Dunyan had not fulfilled his registration requirements when Megan's Law IV took effect, Megan's Law IV's amended registration requirement properly applied to him. Even accepting his allegations as true, Dunyan is not entitled to relief from Megan's Law IV's registration requirements.
Accordingly, we sustain Respondents' preliminary objections in the nature of a demurrer and dismiss Dunyan's petition for review with prejudice.
Respondents also assert that Dunyan's petition should be dismissed as legally insufficient because Dunyan failed to establish that Respondents have a duty to grant Dunyan relief from the lifetime registration requirements of Megan's Law IV. Because we agree that Dunyan failed to establish a clear legal right to relief, we need not address this preliminary objection. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 17th day of December, 2014, we sustain the preliminary objections filed by the Pennsylvania State Police and Lt. Todd L. Harman and dismiss with prejudice the amended petition for review filed by James Michael Dunyan.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
Commonwealth v. Leidig, 956 A.2d 399, 400 n.1 (Pa. 2008). On December 20, 2012, most Megan's Law IV provisions took effect, including 42 Pa. C.S. §9799.13(3)(i) applying Megan's Law IV's registration requirements to persons who had not completed their registration requirements as of that date. 42 Pa. C.S. §9799.13(3)(i).