Opinion
127 M.D. 2019
10-06-2021
J.R., Petitioner v. Pennsylvania State Police, Respondent
OPINION NOT REPORTED
Submitted: August 28, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt completed her term as President Judge.
MEMORANDUM OPINION
CHRISTINE FIZZANO CANNON, Judge
J.R. (Petitioner), proceeding pro se, filed a Petition for Review in this Court's original jurisdiction, seeking a declaration from this Court that he is not required to register as a sex offender with the Pennsylvania State Police (PSP) under the Sexual Offender Registration and Notification Act (SORNA), Act of February 21, 2018, P.L. 27, No. 10 (Act 10), 42 Pa.C.S. §§ 9799.10-9799.75, as amended by the Act of June 12, 2018, P.L. 140, No. 29 (Act 29) (collectively, Act 10 or SORNA II), and that SORNA II is unconstitutional as applied to him under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925 (2018). See generally Pet. for Review. Currently before the Court are two applications: first, an application for relief styled as "Petitioner's Dispositive Motion Based on Court Order of June 28, 2021" (Petitioner's Application) filed by Petitioner on July 20, 2021, and second, an Application for Summary Relief filed by PSP on July 23, 2021 (PSP Application). For the reasons stated herein, we deny the Petitioner's Application, grant the PSP Application, and dismiss Petitioner's Petition for Review filed on January 24, 2019.
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 within the Commonwealth to register for varying periods of time with the 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 handed down the decision in Muniz, which held that a portion of SORNA I violated the ex post facto clauses of the United States and Pennsylvania Constitutions by retroactively increasing registration obligations on certain sex offender registrants. Thereafter, in 2018, the General Assembly enacted SORNA II. See Act of February 21, 2018, P.L. 27, No. 10, §§ 1-20, effective February 21, 2018 (Act 10); Act of June 12, 2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29).
See U.S. Const. art. 1 § 10; Pa. Const. art 1, § 17.
Acts 10 and 29 are generally referred to collectively as "SORNA II." Through Act 10, as amended in Act 29 (collectively, SORNA II), the General Assembly split SORNA I's former Subchapter H into a revised Subchapter H and Subchapter I. Subchapter I of SORNA II applies to sexual offenders who committed an offense on or after April 22, 1996, but before December 20, 2012. See 42 Pa.C.S. §§ 9799.51-9799.75. Revised Subchapter H of SORNA II applies to offenders who committed an offense on or after December 20, 2012. See 42 Pa.C.S. §§ 9799.10-9799.42. Our Supreme Court has explained that
[i]n essence, Revised Subchapter H [of SORNA II] retained many of the provisions of SORNA, while Subchapter I [of SORNA II] imposed arguably less onerous requirements on those who committed offenses prior to December 20, 2012, in an attempt to address this Court's conclusion in [Commonwealth v.] Muniz[, 164 A.3d 118 (Pa. 2017), ] that application of the original provisions of SORNA to these offenders constituted an ex post facto violation.Commonwealth v. Torsilieri, 232 A.3d 567, 580-81 (Pa. 2020).In the instant matter, the Petition for Review phrases Petitioner's challenge in relation to "SORNA." See Petition for Review ¶ 3. However, because Petitioner clearly seeks relief from sex offender registration obligations under any registration scheme(s), and his brief discusses both Act 10 and Act 29, or SORNA II, we will discuss the collective implications of SORNA II - Pennsylvania's current sex offender registration scheme - as it relates to Petitioner.
In 1988, Petitioner entered a plea of guilty in the Court of Common Pleas of Philadelphia County to one count of involuntary deviate sexual intercourseand one count of rape for offenses he committed in 1987. See Pet. for Review ¶ 3. Upon his initial release from incarceration in January of 2014, Petitioner began registering as a lifetime sex offender under the then-effective version of Pennsylvania's sexual offender registration program, SORNA I. Following our Supreme Court's decision in Muniz and the General Assembly's subsequent enactment of SORNA II, on March 19, 2018, PSP sent Petitioner a letter advising him that he "may be" subject to SORNA II's sex offender registration requirements and requiring him to comply with the registration requirements by May 22, 2018. See Pet. for Review ¶ 3 & Exhibit B. In May 2018, Petitioner sent PSP a request that he not be required to register as a sex offender. See id. On January 7, 2019, PSP sent Petitioner a notice to register as a sex offender, which he accordingly did on January 15, 2019. See Pet. for Review ¶ 3 and Exhibits C & D.
On July 18, 2019, Petitioner filed the Petition for Review in this Court's original jurisdiction seeking relief from SORNA II's sex offender registration requirements. See generally Pet. for Review. On May 6, 2019, PSP filed preliminary objections in the form of a demurrer that this Court overruled by memorandum opinion filed November 10, 2020. See J.R. v. Pa. State Police (Pa. Cmwlth., No. 127 M.D. 2019, filed Nov. 10, 2020).
PSP's preliminary objections asserted that: (1) PSP is required by law to enforce Petitioner's sex offender registration requirements, (2) Petitioner's registration requirements do not violate ex post facto protections, (3) Act 10 complies with federal law, and (4) mandamus is an improper remedy. See Preliminary Objections, filed May 6, 2019.
Thereafter, on June 28, 2021, this Court filed a case management order making Petitioner's Reply and Objection to Respondent's Answer filed on February 10, 2021, the operative pleading in this matter and directing the parties to file dispositive motions by July 23, 2021, if desired. See Case Management Order filed June 28, 2021 (Case Management Order). The Court further ordered that the dispositive motions, if filed, were to address the ramifications on this matter of our Supreme Court's opinion in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), and order in T.S. v. Pennsylvania State Police (Pa., 34 MAP 2020, filed December 22, 2020). See Case Management Order.
PSP filed an Answer and New Matter to the responsive pleading on July 28, 2021. Petitioner filed Petitioner's Reply and Objection to Respondent's Answer and New Matter on August 23, 2021.
In response to the Case Management Order, Petitioner filed Petitioner's Application and Petitioner's Brief In Support of the Dispositive Motion on July 20, 2021, in which Petitioner reiterated the arguments of the Petition for Review that the requirements of Pennsylvania's sex offender registration program constitute an unconstitutional ex post facto violation as applied to him. See Pet'r's Appl.; Pet'r's Br. PSP filed the PSP Application and its attendant brief on July 23, 2021, in which it argued that, under Lacombe and T.S., Pennsylvania's sex offender registration requirements are not punitive and may be applied retroactively to registrants without an ex post facto violation occurring., See PSP Appl.; PSP's Br. PSP is correct.
PSP filed its Response to Petitioner's Dispositive Motion Based on Court Order of June 28, 2021, on August 3, 2021.
On August 2, 2021, Petitioner filed Petitioner's Response to Respondent's Application for Summary Judgment (Petitioner's Response), which included Petitioner's Statement of Undisputed Material Facts. See Petitioner's Response at 3. PSP filed a response to Petitioner's Statement of Undisputed Material Facts together with Respondent's Brief In Opposition to Petitioner's Brief In Support of Application for Summary Relief on August 27, 2021.
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, 953 A.2d 514 (Pa. 2008); Eleven Pa., LLC v. State Bd. of Cosmetology, 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, 169 A.3d at 145 (internal quotation marks omitted).
Since Petitioner filed the Petition for Review in 2019, our Supreme Court has made further definitive pronouncements regarding the ex post facto implications of sex offender registration requirements. In Lacombe, the Supreme Court held that the application of Subchapter I of SORNA II did not constitute criminal punishment and did not violate the constitutional prohibitions against ex post facto laws for crimes committed prior to the enactment of SORNA. See Lacombe, 234 A.3d at 626-27. Thereafter, the Supreme Court issued a per curiam order in T.S. extending the determination in Lacombe to individuals whose crimes were committed before the enactment of any sexual offender registration schemes. See T.S., 241 A.3d 1091. Accordingly, Petitioner's ex post facto claim fails as a matter of law based upon the Supreme Court's determinations in Lacombe and T.S. that the application of sex offender registration requirements does not offend the prohibition against ex post facto laws.
Because our Supreme Court has ruled that sex offender registration requirements do not violate the prohibition against ex post facto laws, Petitioner is not entitled to relief on his claim that subjecting him to the registration requirements of SORNA II or subsequent sex offender registration schemes violates ex post facto prohibitions, despite the fact that his crime occurred prior to Pennsylvania's enactment of sex offender registration requirements. Lacombe; T.S. For this reason, we deny Petitioner's Application and grant the PSP Application.
Accordingly, Petitioner's Application is denied, Respondent's Application is granted, and the Petition for Review is dismissed.
ORDER
AND NOW, this 6th day of October, 2021, "Petitioner's Dispositive Motion Based on Court Order of June 28, 2021," filed by J.R. (Petitioner) on July 20, 2021, is DENIED, and the Application for Summary Relief filed by the Pennsylvania State Police on July 23, 2021, is GRANTED.
The Petition for Review filed by Petitioner on January 24, 2019, is DISMISSED with prejudice.