Summary
discussing a SORNA-registrant's original action against the Pennsylvania State Police in the Commonwealth Court
Summary of this case from Commonwealth v. TaylorOpinion
No. 500 M.D. 2015
01-10-2023
J.B., Petitioner v. PENNSYLVANIA STATE POLICE, Respondent
Jeffrey B. Engle, Harrisburg, for Petitioner. Caleb Curtis Enerson, Deputy Attorney General, Harrisburg, for Respondent.
Jeffrey B. Engle, Harrisburg, for Petitioner.
Caleb Curtis Enerson, Deputy Attorney General, Harrisburg, for Respondent.
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court.
SEALED CASE
OPINION BY JUDGE FIZZANO CANNON
Before the Court, in our original jurisdiction, is the "Application for Summary Relief, Pa.R.App.P. 123, 1532(b)" (Application) filed by J.B. (Petitioner) seeking relief from his sexual offender registration requirements in Pennsylvania under the 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, SORNA II). For the reasons stated herein, we deny the Application.
An application for summary relief may be granted if a party's right to judgment is clear and no material issues of fact are in dispute. Pa.R.A.P. 1532(b) ; Jubelirer v. Rendell , 598 Pa. 16, 953 A.2d 514 (2008) ; Eleven Eleven Pa., LLC v. Commonwealth , 169 A.3d 141 (Pa. Cmwlth. 2017). When ruling on an application for summary relief, this Court "view[s] the evidence of record in the light most favorable to the non-moving party and enter[s] judgment only if there is no genuine issue as to any material facts and the right to judgment is clear as a matter of law." Eleven Eleven , 169 A.3d at 145 (internal quotation marks omitted).
I. Statutory Framework
By way of brief statutory background, beginning in 1995, Pennsylvania's General Assembly has enacted a series of statutes and amendments requiring sex offenders living in the Commonwealth to register for varying periods of time with the Pennsylvania State Police (PSP) based on their convictions for certain sexual offenses. The General Assembly enacted the first of these statutes, commonly known as Megan's Law I, formerly 42 Pa.C.S. §§ 9791 - 9799.6, in 1995, followed five years later, in 2000, by what is commonly known as Megan's Law II, formerly 42 Pa.C.S. §§ 9791 - 9799.7. In 2004, the General Assembly enacted what is commonly known as Megan's Law III, formerly 42 Pa.C.S. §§ 9791 - 9799.9, which remained in effect until the enactment of the Sexual Offender Registration and Notification Act (SORNA I), 42 Pa.C.S. §§ 9799.10 - 9799.41, in 2012. On July 19, 2017, the Pennsylvania Supreme Court decided Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), in which it held that a portion of SORNA I violated the ex post facto clauses of the United States and Pennsylvania Constitutions by increasing registration obligations on certain sex offender registrants. Thereafter, in 2018, to clarify that sex offender registration provisions were not ex post facto punishment, the General Assembly enacted SORNA II.
II. Background and Procedural History
The facts underlying this matter are relatively straightforward and not in dispute. On November 15, 2000, Petitioner pled guilty to incest and corruption of minors and was sentenced to 9 to 23 months of incarceration. See Joint Statement of Stipulated Facts dated May 14, 2018 (Stipulated Facts) at 2. Megan's Law I was in effect at the time Petitioner committed and was charged with these offenses and Megan's Law II was in effect at the time of his convictions. See Stipulated Facts at 2. Under Megan's Law I & II, Petitioner was required to register as a sex offender for a period of 10 years. See Stipulated Facts at 2; see also former 42 Pa.C.S. § 9795.1(a)(1).
Petitioner was released on parole on August 10, 2001. See Stipulated Facts at 2. Petitioner did not register as a sex offender upon his release from prison. See id. Petitioner was informed for the first time of his obligation to register as a sex offender in January of 2012, when he received a letter from the PSP that informed him of his duty to register. See id. Notably, had Petitioner registered upon his release from prison as required, he would have completed his 10-year registration period on August 10, 2011. See id.
SORNA I was enacted on December 20, 2011 and went into effect on December 20, 2012. See former 42 Pa.C.S. § 9799.13(3)(ii). Relative to Petitioner, SORNA I increased the sex offender registration period for individuals convicted of incest from a period of 10 years to lifetime registration. See former 42 Pa.C.S. § 9799.13(3). However, following our Supreme Court's decision in Muniz , the General Assembly enacted SORNA II, which reduced Petitioner's sex offender registration requirements based on his incest conviction once again to a period of 10 years. See 42 Pa.C.S. § 9799.55(a) (requiring individuals convicted of incest to register with PSP for a period of 10 years).
Petitioner filed his Petition for Writ of Mandamus and Preliminary and Final Injunction (Petition) on October 14, 2015, seeking mandamus and injunctive relief in an attempt to prevent PSP from requiring him to register as a sex offender. See Petition. Following a series of preliminary objections and amendments to the Petition, on September 14, 2020, Petitioner filed his Second Amended Complaint – Petition in the Nature of a Complaint for Injunctive and Declaratory Relief (Second Amended Petition), which remains the operative pleading herein. In the Second Amended Petition, Petitioner argues that the lack of notice as to his duty to register as a sex offender at his sentencing and thereafter precludes the Commonwealth from currently imposing sex offender registration requirements. See Second Amended Petition at 6, 11-13. He argues that the imposition of a 10-year sex offender registration requirement at this time would prejudice him, his family, and his fundamental right to reputation. See id. at 9, 12-13. Accordingly, Petitioner alleges that he is entitled to injunctive and declaratory relief prohibiting PSP from placing his name on the sex offender registry or applying SORNA II sex offender registration requirements to him. See id. at 7-15.
PSP filed preliminary objections in the nature of a demurrer in response to the Petition, which preliminary objections this Court overruled by memorandum opinion dated May 16, 2016. See B[.] v. Pa. State Police (Pa. Cmwlth., No. 500 M.D. 2015, filed May 16, 2016). Thereafter, Petitioner filed his Amended Complaint for Declaratory Judgment and Preliminary and Final Injunction (Amended Petition) and his Second Amended Complaint – Petition in the Nature of a Complaint for Injunctive and Declaratory Relief (Second Amended Petition) on June 24, 2019, and September 14, 2020, respectively. See Amended Petition; Second Amended Petition. After PSP answered the Second Amended Petition, the parties filed preliminary objections which this Court decided by memorandum opinion and order dated February 23, 2021. See [ B.] v. PA State Police (Pa. Cmwlth., No. 500 M.D. 2015, filed Feb. 23, 2021).
Petitioner filed the Application seeking summary relief based on the Second Amended Petition on July 15, 2021. PSP filed its answer to the Application on August 5, 2021. The parties have briefed the issues and argued the matter, which now comes before this Court for determination.
We note that Petitioner's Brief in Support of Application for Summary Relief does not comply with many of the basic requirements of Pennsylvania's Rules of Appellate Procedure regarding briefing requirements and structure, see Pa.R.A.P. 2111 & 2116 -2119, in that the brief, akin to a motion or petition, consists simply of 54 numbered paragraphs divided into sections titled "Statement of Proposed Findings of Fact" and "Proposed Conclusions of Law." While we frown on this noncompliance, we are able to discern Petitioner's arguments therefrom.
III. Discussion
Initially, to establish a right to preliminary injunctive relief, a petitioner must establish the following prerequisites:
(1) the injunctive relief is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; (2) greater injury will occur from refusing to grant the injunction than from granting it; (3) the injunction will restore the parties to the status quo as it existed before the alleged wrongful conduct; (4) the activity that is sought to be restrained is actionable, the petitioner's right to relief is clear, and the wrong is manifest, or, in short, that the petitioner is likely to succeed on the merits; (5) the injunction is reasonably suited to abate the offending activity; and (6) the public interest will not be harmed by granting the injunction.
Pa. AFL-CIO v. Commonwealth , 219 A.3d 306, 317–18 (Pa. Cmwlth. 2019) (quoting Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc. , 573 Pa. 637, 828 A.2d 995, 1001 (2003) ) (internal quotation marks and citations omitted). "A preliminary injunction is to be granted only when and if each factor has been fully and completely established." Id. at 318 (internal quotation marks and brackets omitted).
[T]o establish a claim for a permanent injunction, [a] party must establish his or her clear right to relief. However,
unlike a claim for a preliminary injunction, the party need not establish either irreparable harm or immediate relief and a court may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law.
Buffalo Twp. v. Jones , 571 Pa. 637, 813 A.2d 659, 663 (2002) (internal quotation marks and citations omitted).
Additionally, the Declaratory Judgments Act states:
Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.
42 Pa.C.S. § 7532. As this Court has explained:
A declaratory judgment declares the rights, status, and other legal relations whether or not further relief is or could be claimed. It has been observed that declaratory judgments are nothing more than judicial searchlights, switched on at the behest of a litigant to illuminate an existing legal right, status or other relation. Stated otherwise, the purpose of awarding declaratory relief is to finally settle and make certain the rights or legal status of parties. A declaratory judgment, unlike an injunction, does not order a party to act. This is so because the distinctive characteristic of the declaratory judgment is that the declaration stands by itself; that is to say, no executory process follows as of course.
Eagleview Corp. Ctr. Ass'n v. Citadel Fed. Credit Union , 150 A.3d 1024, 1029-30 (Pa. Cmwlth. 2016) (internal quotation marks, brackets, footnote, and citations omitted).
Petitioner concedes that no statutory basis exists to exempt him from his requirement to register as a sex offender as a result of his convictions. See Application at 10; see also Second Amended Petition at 9. Petitioner argues, instead, that the doctrine of estoppel by laches provides an equitable exemption from his obligation to register. See Application at 10-14; see also Second Amended Petition at 9-12. We do not agree that laches applies to the instant matter.
"[T]he doctrine of laches [is] an equitable bar to the prosecution of stale claims and is the practical application of the maxim that those who sleep on their rights must awaken to the consequence that they have disappeared." In re Wilkinsburg Taxpayers & Residents Interest in Green St. Park Sale to a Private Developer & Other Park-Sys. Conditions , 200 A.3d 634, 642 (Pa. Cmwlth. 2018) (internal quotation marks omitted). "A claim is barred by laches where the party failed to exercise due diligence, which resulted in prejudice to the opposing party." Id. "The test for due diligence is not what a party knows, but what he might have known by the use of information within his reach. Prejudice may be found where there has been some change in the condition or relations of the parties which occurs during the period the complainant failed to act." Id. (quoting White v. Twp. of Upper St. Clair , 968 A.2d 806, 811 (Pa. Cmwlth. 2009) ).
At the time Petitioner was released from prison in August 2001, the operative sex offender registration scheme at the time – Megan's Law II – provided, in pertinent part:
The following individuals shall be required to register with the Pennsylvania State Police for a period of ten years:
(1) Individuals convicted of any of the following offenses:
....
18 Pa.C.S. § 4302 (relating to incest) where the victim is 12 years of age or older but under 18 years of age.
Former 42 Pa.C.S § 9795.1(a). This Court has determined that the plain language of former Section 9795.1(a) imposed upon a qualifying convicted sex offender an automatic and mandatory duty to register as a sex offender. See Gordon v. Pa. Dep't of Corr. , 16 A.3d 1173, 1177-78 (Pa. Cmwlth. 2010). Further, the Court determined that this affirmative responsibility to register on the part of a convicted sex offender was not vitiated by the failure of an authority to comply with an obligation to inform an offender of his duty to register. See id. (failure by a sentencing court to comply with the requirement under former Section 9795.3 that it inform an offender at the time of sentencing of a duty to register). Additionally, the General Assembly has memorialized that this affirmative duty is not excused by an authority's failure to notify in Section 9799.23(b) of SORNA II, which provides:
Gordon involved a petitioner convicted of aggravated assault and attempted rape in 2000 who, upon his release from prison in 2010, argued, inter alia , that the sex offender registration requirements should not apply to him because the sentencing court had failed to provide him with notice regarding his sex offender registration obligations. See Gordon , 16 A.3d at 1175-76. This Court determined that the sentencing court's failure to notify the petitioner of his registration obligations during the sentencing colloquy did not vitiate the petitioner's obligations to register. See id. at 1178. The Court noted that the PSP had a statutorily mandated obligation to maintain the sex offender registry and did not have the duty or the power to exempt individual offenders from, or otherwise exercise any discretion as to who must comply with, the requirements of Pennsylvania's sex offender registration scheme. See id. Further, the Court noted that, because the legislature did not provide any statutory exemptions to registration in cases where the sentencing court failed to render a notification colloquy, the Court lacked a statutory basis for exemption from the registration requirements. See id. While expressly not condoning the sentencing court's failure to conduct a notification colloquy, the Court observed that such a failure provided "no basis for excusing [a petitioner] from the mandatory registration requirements." Id.
Former Section 9795.3 provided:
The sentencing court shall inform offenders and sexually violent predators at the time of sentencing of the provisions of this subchapter. The court shall:
(1) Specifically inform the offender or sexually violent predator of the duty to register and provide the information required for each registration, including verification as required in section 9796(a) (relating to verification of residence).
(2) Specifically inform the offender or sexually violent predator of the duty to inform the Pennsylvania State Police within ten days if the offender or sexually violent predator changes residence.
(3) Specifically inform the offender or sexually violent predator of the duty to register with a new law enforcement agency if the offender or sexually violent predator moves to another state no later than ten days after establishing residence in another state.
(4) Order the fingerprints and photograph of the offender or sexually violent predator to be provided to the Pennsylvania State Police upon sentencing.
(5) Specifically inform the offender or sexually violent predator of the duty to register with the appropriate authorities in any state in which the offender or sexually violent predator is employed, carries on a vocation or is a student if the state requires such registration.
(6) Require the offender or sexually violent predator to read and sign a form stating that the duty to register under this subchapter has been explained. Where the offender or sexually violent predator is incapable of reading, the court shall certify the duty to register was explained to the offender or sexually violent predator and the offender or sexually violent predator indicated an understanding of the duty.
Formerly 42 Pa.C.S. § 9795.3.
Mandatory registration.-- All sexual offenders must register in accordance with this subchapter. The following apply:
(1) Failure by the court to provide the information required in this section, to correctly inform a sexual offender of the sexual offender's obligations or to require a sexual offender to register shall not relieve the sexual offender from the requirements of this subchapter.
Currently, SORNA II applies not only to individuals who have committed a qualifying sex offense whose period of registration has not expired, but also to those individuals who committed a qualifying sexually violent offense within the Commonwealth who have previously failed to register with the PSP. See 42 Pa.C.S. § 9799.54(a). Specifically, with reference to individuals who have previously failed to register with PSP, SORNA II requires such individuals to register "for the period of time under section 9799.55." 42 Pa.C.S. § 9799.54(a)(2). Section 9799.55 provides that persons convicted of incest "shall be required to register with the Pennsylvania State Police for a period of 10 years." 42 Pa.C.S. § 9799.55(a). Additionally, the duty of a sexual offender to register and update information represents an ongoing obligation on the offender. See 42 Pa.C.S. § 9799.56.
Here, when released from prison, Petitioner had an affirmative obligation to register as a sex offender based on his incest conviction "for a period of 10 years." See former 42 Pa.C.S § 9795.1(a). Megan's Law II required, therefore, that Petitioner register, not for 10 years following his release from prison, but instead for a set period of 10 years. See id. Petitioner failed to comply with this affirmative duty. Currently, SORNA II is applicable to Petitioner by virtue of his status as "[a]n individual who committed a sexually violent offense in the Commonwealth and who has failed to register with the Pennsylvania State Police." 42 Pa.C.S. § 9799.54(a)(2). As did Megan's Law II, SORNA II requires Petitioner, as an individual convicted of incest, to register as a sex offender "for a period of 10 years." 42 Pa.C.S. § 9799.55(a). The requirement is that the individual convicted register for a 10-year period, not for a period of 10 years immediately following release from prison for the enumerated offense. See id. Petitioner, to date, has failed to fulfill this automatic, ongoing, and continuing statutory duty to register as a sex offender. This failure represents a lack of diligence on Petitioner's part that cannot be excused by the failure of an authority to comply with an obligation to inform an offender of his duty to register. See Gordon , 16 A.3d at 1177-78 ; see also 42 Pa.C.S. § 9799.23(b). Accordingly, we conclude that the doctrine of laches does not apply to provide Petitioner with an equitable exemption from his obligation to register.
To the extent Petitioner attempts to further his laches argument by suggesting that this Court should extend its holding in Gingrich v. Department of Transportation, Bureau of Driver Licensing , 134 A.3d 528 (Pa. Cmwlth. 2016) (en banc ), to his circumstances, we do not agree. Gingrich was a driving under the influence (DUI) conviction/automatic license suspension case wherein the clerk of the sentencing court failed to notify the Department of Transportation (DOT) of the conviction within 10 days as required by the Vehicle Code, resulting in a 10-year delay of the DOT's imposition of the appellant's statutorily mandated one-year license suspension. See Gingrich , 134 A.3d at 529-30. The Court noted that the requirement that a delay that excuses a license suspension must be attributable to the DOT "lies in the differing responsibilities of the judicial and executive branches and serves an important public safety purpose ... and remains the general rule." Id. at 534. The Court noted, however, "that there may be limited extraordinary circumstances where the suspension loses its public protection rationale and simply becomes an additional punitive measure resulting from the conviction, but imposed long after the fact." Id. Therefore, the Court found that excessive delay in suspending a driver's operating privilege following a DUI conviction may preclude enforcement of a driver's license suspension where the operator proves that: (1) the conviction is not reported for an extraordinarily extended period of time; (2) the operator has no further violations for an extended period; and (3) the operator will be prejudiced by the enforcement of the suspension following the extended period of nonenforcement. See id. at 535.
See Petitioner's Br. at 11-17.
75 Pa.C.S. §§ 101 -9701.
While we appreciate the theoretical similarities between this Court's determination in Gingrich and Petitioner's request that he be excused from sex offender registration requirements because he did not receive notification of his sex offender registration obligations until 11 years after sentencing, we decline Petitioner's invitation to extend Gingrich to his circumstances. Gingrich concerns the fact-specific scenario wherein a clerk of court failed to comply with an affirmative statutory duty to report a DUI conviction to the DOT within 10 days, which notification was a required step in the process of triggering the license suspension. See Gingrich , 134 A.3d at 530-31. The affirmative statutory duty in the instant matter, on the other hand, was on Petitioner to register as a sex offender for the required time period. See former 42 Pa.C.S § 9795.1(a). Unlike Gingrich , PSP's statutorily mandated obligation is to maintain Pennsylvania's sex offender registry – no action on PSP's part is required to trigger Petitioner's registration requirements, with which he has an affirmative duty to comply for a period of 10 years. We acknowledge that, in addition to creating and maintaining the sex offender registry, PSP does have a duty to notify offenders of their sex offender registration requirements. See 42 Pa.C.S. § 9799.67(7). However, this requirement is akin to the sentencing court's notification requirement discussed in Gordon and does not trigger offenders’ affirmative duty to register in the same way notification is a prerequisite to the imposition of a license suspension in a Gingrich situation. In the same way, the fulfillment of the Department of Corrections’ obligations to obtain and transmit information regarding offenders to the PSP, see 42 Pa.C.S. § 9799.68, is not a prerequisite to triggering offenders’ duties to register. Therefore, again, to the extent other entities failed to notify Petitioner of his registration obligations, failure to comply with those requirements does not excuse Petitioner from his registration obligations. See Gordon ; 42 Pa.C.S. § 9799.23(b). Additionally, as in Gordon , no statutory exemptions to Petitioner's obligation to register exist where a sentencing court or other authority fails to notify Petitioner of his duty to register. Accordingly, extension of this Court's determination in Gingrich to circumstances involving sex offenders who fail to register as a result of a failure of notification by authorities is not warranted.
Further, we note that extending the rationale of Gingrich to individuals in Petitioner's circumstances is unwarranted because a suspension of driving privileges following a DUI conviction differs considerably from sex offender registration requirements following a conviction for a qualifying offense. Initially, while both DUI license suspensions and sex offender registration periods are based on public protection rationale, the Commonwealth's sex offender registration schemes go beyond simply protecting the public generally. The Commonwealth's sex offender registration schemes are designed to protect the public specifically from sexual offender recidivism, which protection the General Assembly has described as "a paramount governmental interest." 42 Pa.C.S. § 9799.11(a)(4). Further, the General Assembly has determined that "[s]exual offenders have a reduced expectation of privacy because of the public's interest in public safety and in the effective operation of government[,]" and that knowledge of an individual's sexual offender status "could be a significant factor in protecting oneself and one's family members ... from recidivist acts by such offenders." 42 Pa.C.S. § 9799.11(a)(5) & (7). Simply stated, this explicit and paramount governmental and public interest in protecting the citizenry of the Commonwealth from the dangers posed by convicted sex offenders acknowledges the severity of sexual offenses and distinguishes them from lesser, although still serious, criminal offenses such as DUIs. This fundamental difference in the gravity of sex offender registry-qualifying offenses and DUI offenses further distinguishes Gingrich and counters the suggestion that the holding of that case should be extended to sex offender registrants.
We note that the cases Petitioner cites to support his argument that Gingrich should be extended to his circumstances all concern delays in the imposition of driver license suspensions. See Petitioner's Br. at 13-15.
Moreover, even if conducting a Gingrich analysis was appropriate, the facts of this case do not mandate Petitioner's desired outcome. First, we observe that the 11-year delay present in the instant matter exceeds the 10-year sex offender registration period sought to be imposed. As such, we acknowledge that such a delay could potentially qualify as an extraordinary period of delay for the purposes of a Gingrich analysis. See Middaugh v. Dep't of Transp., Bureau of Driver Licensing , 196 A.3d 1073, 1086 (Pa. Cmwlth. 2018) ( Middaugh I ), aff'd , ––– Pa. ––––, 244 A.3d 426 (2021) ( Middaugh II ) (noting that first Gingrich factor may be satisfied where delay exceeds period of sanction sought to be imposed). We further observe that Petitioner has had no further sex offender registry-qualifying offenses since his 2000 convictions. Therefore, to the extent sex offender registry-qualifying offenses can be equated in scale to DUI offenses, Petitioner has avoided further violations for an extended period of time. However, while we appreciate that Petitioner would be displeased and possibly negatively affected in public and his community by being placed on the sex offender registry at this point, we note our Supreme Court has found sex offender registration to be non-punitive. See Commonwealth v. Lacombe , 660 Pa. 568, 234 A.3d 602, 626 (2020). We further note that such ancillary negative effects, assuming they materialized, would result from Petitioner's own failure to comply for over a decade with his affirmative duty to register as discussed supra , not through a failure of PSP, whose duty consists simply of maintaining the sex offender registry. Therefore, Petitioner cannot prove adequate prejudice caused by PSP in this matter, and thus an entitlement to relief under a Gingrich analysis.
We note that, while this Court in Middaugh v. Department of Transportation, Bureau of Driver Licensing , 196 A.3d 1073 (Pa. Cmwlth. 2018) (Middaugh I ), affirmed , ––– Pa. ––––, 244 A.3d 426 (2021), found that a delay totaling less than the combined sanction and reporting period could not amount to an extraordinary period of delay, the Court did not find that a delay in excess of the sanction length will obligate a finding of an extraordinary period of delay. See Middaugh I , 196 A.3d at 1086. Therefore, an analysis of the extraordinary period of delay factor regarding the 11-year delay between sentencing and notification in the instant matter would necessarily consider that, unlike a 1-year or 18-month license suspension for DUI, the minimum possible registration period for individuals convicted of a qualifying sexual offense is 10 years. See 42 Pa.C.S. § 9799.55(a).
Petitioner's claim that requiring him to register as a sex offender violates his right to reputation also fails. Initially, to the extent Petitioner argues that his registration as a sex offender would harm the reputation of third parties, we note that such speculative reputational damage to others cannot form the basis of a claim to his own reputation. Further, because Petitioner had, but did not comply with, an automatic and mandatory affirmative statutory duty to register, as discussed supra , any reputational damage to be incurred by Petitioner as a result of being required to register after the initial 10 years following his release is self-inflicted. See Commonwealth v. Zimmick , 539 Pa. 548, 653 A.2d 1217, 1222 (1995) (noting that a defendant's failure to comply with a statutory requirement to notify the Department of Transportation of changes of address in license suspension matter precluded defendant from later arguing that he did not receive notice because such notice sent to address of record). As such, to find that individuals such as Petitioner, who failed to comply with their duty to register as a sex offender, no longer needed to comply with their registration requirements based on possible future reputational damage would reward convicted sex offenders for having simply not complied with their affirmative, statutory responsibility to register. We decline to condone such a result. See Zimmick , 653 A.2d at 1222 (noting that, to hold that a statutory requirement was vitiated by a defendant's failure to comply with that statutory requirement "would provide a defendant with a windfall for his disregard of this Commonwealth's laws").
Unlike the United States Constitution, the Pennsylvania Constitution specifically protects the right to reputation as a fundamental right, providing as follows:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
Pa. Const., art. I, § 1.
Petitioner's Proposed Findings of Facts appear to allege that Petitioner's registration as a sex offender would have and/or will tarnish his father's and wife's names and the reputations of board members of the Holy Name of Jesus church, on which board he serves, as well as various nonprofits to which he has donated. See Petitioner's Br. at 4-5.
We note also that the reputational damages Petitioner portends are, as yet, hypothetical and unrealized, and thus, to a degree, speculative.
Finally, to the extent Petitioner raises a due process claim, he is not entitled to relief. Petitioner's due process argument consists of three numbered paragraphs in which he notes that our Supreme Court found, in affirming this Court's determination in Middaugh I , that a seven-year delay in the imposition of a license suspension violated due process. See Petitioner's Br. at 22. Petitioner's sparse analysis of this claim is based on what he terms "the objectively unreasonable delay in notifying Petitioner that he was subject to Megan's Law registration requirements" and the Supreme Court's conclusion in Middaugh II that, based on the specific facts in that case, a seven-year notification delay was prejudicial. See Petitioner's Br. at 22; see also Middaugh II , 244 A.3d at 438-39. Petitioner's argument ignores the fact that this Court and the Supreme Court in Middaugh I and II did not state that the delay involved therein represented an automatic violation of due process, but instead examined the alleged prejudice specific to the petitioner therein. Further, Middaugh I and II , like Gingrich , involved a statutory obligation of the clerk of courts to start the process of suspension by timely reporting a conviction to the DOT, which obligation is absent in the instant matter. Therefore, we reject Petitioner's due process claim in the instant matter for the reasons discussed supra .
See Petitioner's Br. at 22.
IV. Conclusion
For these reasons, Petitioner is entitled to neither injunctive nor declaratory relief. Accordingly, we deny the Application.
ORDER
AND NOW, this 10th day of January, 2023, the "Application for Summary Relief, Pa.R.App.P. 123, 1532(b)" filed by J.B. is DENIED.