Opinion
No. 243 M.D. 2012
11-28-2012
Curt Thomas, Petitioner v. Pennsylvania Board of Probation and Parole Secretary Kimberly Barkley, Sexual Offender Assessment Board Secretary Meghan Dade Executive Director, Superintendent Louis Folino, LT. Todd Harman, Commander of the Pennsylvania State Police-Megan's Law Section, and P.S. Morris, Records Supervisor, Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Curt Thomas, pro se, filed a petition for review in this court's original jurisdiction seeking mandamus relief, challenging his lifetime registration requirement under Pennsylvania's registration of sexual offenders statute, 42 Pa. C.S. §§ 9791-9941, commonly known as Megan's Law. Thomas seeks to compel Respondents to acknowledge that he has completed his ten-year registration term under the Law. Thomas argues that application of the registration requirements under Megan's Law is an ex post facto violation, because his conviction occurred in 1978, well before Megan's Law was enacted. Respondents filed preliminary objections raising improper service and a demurrer.
Megan's Law (Megan's Law I), was first enacted in Pennsylvania on October 24, 1995. Subsequently, the Law was reenacted and amended on May 10, 2000, effective July 9, 2000 (Megan's Law II). Section 9793 of Megan's Law I, which required registration of certain offenders for ten years, including those individuals convicted of rape under Section 3121 of the Crimes Code, as amended, 18 Pa. C.S. § 3121, was repealed. Section 9795.1 of Megan's Law II, enacted on that same date, changed the registration requirement for those individuals convicted of rape from the previous ten-year registration requirement to a lifetime registration requirement. 42 Pa. C.S. § 9795.1(b)(2). While neither Megan's Law I nor Megan's Law II was effective at the time Thomas was convicted, Megan's Law II was in effect at the time he was re-paroled in December 2000. In any event, in Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004), defendant Benner similarly argued that he could only be subject to the registration requirements in Megan's Law I, and not Megan's Law II, which was not in effect when he pled guilty and was sentenced. The Superior Court found that the registration provisions of Megan's Law did not constitute criminal punishment, but were a collateral consequence of the individual's conviction. The court noted that "while a defendant may be subject to conviction only under statutes in effect on the date of his acts, and sentence configuration under the Guidelines in effect on that same date, the application of the registration requirements under Megan's Law is not so limited." Id. at 1072. The court therefore determined that "the collateral effect of current legislation may be imposed on the defendant so long as he remains in the custody of correctional authorities to discharge any part of his sentence for the sex offense." Id. Accordingly, because defendant Benner was still serving his sentence for a sex offense after Megan's Law II was enacted, he remained "subject to the collateral effect of its application [i.e., lifetime registration]." Id. Finally, we note that while Megan's Law II has been amended several times, most recently on December 20, 2011, to be effective in one year, the registration requirement remains the same. Under this most recent amendment, predicate offenses requiring registration are grouped in tiers, with rape being considered a Tier III sexual offense, requiring a lifetime registration period. See 42 Pa. C.S. §§ 9799.14 and 9799.15.
On April 3, 2012, Respondents Dade, Morris, Barkley and the Pennsylvania Board of Probation and Parole (Board Respondents), filed preliminary objections alleging improper service and in the nature of a demurrer. After Thomas filed a response, the Court overruled the preliminary objection as to improper service and ordered the Board Respondents' remaining preliminary objection in the nature of a demurrer to be submitted on briefs without oral argument. Thereafter, Lt. Todd Harman and the Pennsylvania State Police (State Police Respondents) filed preliminary objections, which the Court ordered to be submitted on briefs with the Board's preliminary objections. See this Court's per curiam Orders dated April 17, 2012 and May 7, 2012.
According to the averments in Thomas's petition for review, he was convicted of rape under Section 3121 of the Crimes Code, as amended, 18 Pa. C.S. §3121, and sentenced to twelve and one half to thirty years on September 12, 1978. Thomas is currently incarcerated at the State Correctional Institution (SCI) - Greene in Waynesburg, Pennsylvania. Thomas was initially on parole from April 1994 until July 1997, when he was detained and recommitted on a technical parole violation. Thomas was re-paroled in December 2000, at which time he was required to sign a document titled 'Pennsylvania State Police Sexual Offender Registration Notification Megan's Law" on or about December 6, 2000. Thereafter, Thomas was once again recommitted as a technical parole violator, with a new maximum sentence expiration date of November 14, 2012. Thomas asserts that because his conviction occurred before Megan's Law was enacted, he is not subject to the lifetime registration requirement in 42 Pa. C.S. § 9795.2. According to Thomas, he is only subject to the ten-year registration requirement in the previous version of Megan's Law that was in effect when he was paroled in December 2000 and signed the registration notification, and that ten-year registration period would have ended in December 2010. However, as noted above, the lifetime restriction went into effect in July of 2000. Thomas further avers that he was never assessed by the Sexual Offender Assessment Board nor given a hearing as required by Section 9795.4 of Megan's Law. Thomas questions whether Megan's Law is even appropriately applied to him, given that his conviction was "contraversal [sic]" in that he "offered [a prostitute] a deal in exchange for sexual favors" and "the only thing [he's] guilty of is being naïve by not giving her the $20.00 part of the deal." Petition for Review at 7. Thomas also argues that because the law was enacted after his 1978 conviction, it constitutes additional punishment in violation of the ex post facto clause.
Thomas alleges in paragraphs 9 and 10 of his petition for review that he was recommitted as a technical parole violator on November 30, 2002; reparoled from April 4, 2005 through May 7, 2005; and recommitted once again on May 7, 2005. Thomas states that he was then "refused reparole" on May 29, 2007, June 13, 2008, November 17, 2009, June 29, 2010, and November 18, 2011.
Section 9795.4 was enacted on May 10, 2000. This section specified that, "[a]fter conviction but before sentencing, a court shall order an individual convicted of an offense specified in section 9795.1 (relating to registration) to be assessed by the board." 42 Pa. C.S. § 9795.4(a). The Board was required "to determine if the individual should be classified as a sexually violent predator." 42 Pa. C.S. § 9795.4(b). The Board had "90 days from the date of conviction of the individual to submit a written report containing its assessment to the district attorney," and "[a] hearing to determine whether the individual is a sexually violent predator shall be scheduled upon the praecipe filed by the district attorney." 42 Pa. C.S. § 9795.4(d) and (e)(1). As Respondents correctly point out, an assessment to determine if Thomas was a sexually violent predator could only be undertaken by the Board pursuant to court order, and there was no such order in this case because the law was not in existence at the time of Thomas's 1978 conviction. In any event, Respondents argue that the absence of a court-ordered assessment by the Sexual Offender Assessment Board (SOAB) does not preclude application of the registration requirement to Thomas, who remains in the classification of "offender" under the statute, with a lifetime registration requirement. 42 Pa. C.S. § 9795.1(b)(2)(i). Respondents also note that Section 9795.4 gave the Pennsylvania Board of Probation and Parole the discretion to "request of the [Sexual Offender Assessment] board an assessment of an offender or sexually violent predator be conducted and provide a report to the Pennsylvania Board of Probation and Parole prior to considering an offender or sexually violent predator for parole." 42 Pa. C.S. § 9795.4(g). The Parole Board did request and receive such an assessment prior to considering Thomas for parole. See SOAB Letter dated February 28, 2012 to Thomas, attached to Thomas's Brief at 10.
Article I, Section 10 of the United States Constitution provides that "no state shall . . . pass any . . . ex post facto law." The United States Supreme Court interpreted this to mean that the government may not apply a law retroactively by inflicting greater punishment than that statutorily prescribed at the time the crime was committed. Weaver v. Graham, 450 U.S. 24 (1981).
The Board and the State Police argue that mandamus is not appropriate because Thomas cannot show that they have a clear legal duty to determine how long he is required to register under Megan's Law II, or to change the duration of his registration requirement. According to Respondents, an individual convicted of rape under 42 Pa. C.S. § 3121 must be subject to lifetime registration pursuant to 42 Pa. C.S. § 9795.1(b)(2). Respondents also argue that any notion that the registration requirements under Megan's Law constitute ex post facto punishment has already been roundly rejected by the courts in, e.g., Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008) (registration is merely collateral consequence of a conviction of a Megan's Law predicate offense and not punitive in nature); and Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) (registration is remedial in nature, not punitive). Respondents argue that because Thomas is required to register for life under Megan's Law, they submit that his lifetime registration does not constitute ex post facto punishment, and that he is not entitled to the relief sought in this action. We agree.
Mandamus is an extraordinary writ available to compel performance of a ministerial duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and the lack of any other adequate and appropriate remedy. Lennitt v. Dep't of Corr., 964 A.2d 37 (Pa. Cmwlth. 2008). Mandamus is not proper to establish legal rights, but is only appropriately used to enforce those rights which have already been established. Rummings v. Commonwealth, 814 A.2d 795, 799 (Pa. Cmwlth. 2002).
The General Assembly's intent in enacting Megan's Law was not to punish, but to promote public safety through a civil, regulatory scheme. Commonwealth v. Mullins, 905 A.2d 1009 (Pa. Super. 2006). Under Megan's Law, both the Board and the State Police have very specific and limited duties. For example, when the Board grants parole to a sex offender or a sexually violent predator, it has a duty to "collect registration information from the offender or sexually violent predator and forward that registration information to the Pennsylvania State Police." 42 Pa. C.S. § 9795.2(a)(4)(i). The Board also has a duty to inform paroled sex offenders and sexually violent predators of their duty to register and provide information regarding their residence to the State Police. 42 Pa. C.S. § 9799.2(1). The Pennsylvania State Police are obligated to create and maintain a state registry of offenders and sexually violent predators and to promulgate guidelines necessary for the general administration of Megan's Law. 42 Pa. C.S. § 9799.1(1) and (2). The State Police also have a duty to notify the chief law enforcement officer of the police department having primary jurisdiction of the municipality in which an offender or sexually violent predator resides and to post the residences of offenders and sexually violent predators on the internet. 42 Pa. C.S. §§ 9798.1 and 9799.1(4).
However, the State Police's duty to determine the duration of Thomas's registration under Megan's Law is limited to determining whether it is for a period of ten years or for the rest of his life, based on how the Law classifies the offense committed by Thomas. When Thomas was paroled in December 2000 while serving his sentence for his conviction of rape, he was obligated under the-then registration requirement of Section 9795.1(b)(2) to register for his lifetime. See 42 Pa. C.S. § 9795.1(b)(2). That lifetime registration cannot be changed by Respondents, as we have already stated herein.
Lastly, we find without merit Thomas's assertion that the lifetime registration requirement under Megan's Law does not apply to him because SOAB failed to conduct an assessment of him to determine whether he should have been classified as a sexually violent predator. As discussed above, this assessment may only be conducted by SOAB "[a]fter conviction but before sentencing" upon order of the court. 42 Pa. C.S. § 9795.4(a). There was no court-ordered assessment in Thomas's case, because his conviction occurred well before this section was enacted. However, Thomas's lifetime registration is not premised on a SOAB assessment, but is solely as a result of his rape conviction, and therefore lack of an assessment by SOAB will not relieve or release Thomas from the duty to report for the rest of his life.
We note that while the Parole Board has discretion to request an assessment of an individual by SOAB when considering the individual for parole, there is no duty to do so. 42 Pa. C.S. § 9795.4(g). --------
Because Thomas has no clear right to relief, the preliminary objections in the nature of a demurrer are hereby sustained and his petition for review is dismissed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 28th day of November, 2012, the preliminary objections in the nature of a demurrer of the Respondents are hereby SUSTAINED and the petition for review is DISMISSED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge