N.E. Gregory v. PSP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Norman E. Gregory, :
Petitioner :
:
v. : No. 245 M.D. 2015
: Submitted: May 27, 2016
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: October 13, 2016
Before this Court in our original jurisdiction are Preliminary Objections
(POs) for insufficient specificity and a demurrer filed by Respondent Pennsylvania
State Police (PSP) to the pro se Amended Petition for Review filed by Petitioner
Norman E. Gregory. Petitioner commenced this matter by filing a Petition and
Order to Expunge Criminal Docket Information for Migrated Automatic Registry
Entry seeking an order directing the “Commissioner of the Allegheny Police
Department to expunge [Petitioner’s] Entry for Registration . . . from the Criminal
Docket and files . . . .” (Petition, Wherefore Clause.) PSP filed POs to which
Petitioner filed an Answer. Following PSP’s filing of its Memorandum of Law in
support of its POs, Petitioner filed an Application for Leave to Amend his Petition
and an Amended Petition for Review which was granted and the Amended Petition
accepted by Order dated November 18, 2015. The Department filed its POs to the
Amended Petition to which Petitioner filed an Answer. Both parties have filed
Memoranda of Law. Although the Amended Petition is lacking in detail, it is clear
that Petitioner seeks relief from the registration requirement for convicted sex
offenders found in the Act variously known as Megan’s Law IV or the Sexual
Offender Registration and Notification Act (SORNA).1
SORNA was effective on December 20, 2012 and established a three-tier
classification system for sexual offenders. Section 9799.14 of SORNA, 42 Pa.
C.S. § 9799.14. An offender’s tier status is determined by the offense committed
and impacts the length of time an offender is required to register and the severity of
punishment should an offender fail to register or provide false registration
information. Section 9799.15 of SORNA, 42 Pa. C.S. § 9799.15; Section 4915.1
of the Crimes Code, 18 Pa. C.S. § 4915.1. Here, Petitioner pleaded nolo
contendere on March 2, 1983 in the Allegheny County Court of Common Pleas to
charges including Attempted Rape, Rape, Robbery, Indecent Assault, Burglary,
Terroristic Threats, False Imprisonment, Simple Assault and Recklessly
Endangering Another Person. On February 15, 1984, Petitioner was sentenced to
an aggregate term of incarceration of 17 and one-half to 50 years. Commonwealth
v. Gregory, (Pa. Super. No. 1229 WDA 2012, filed October 8, 2013), slip op. at 1-
2; (Preliminary Objections Exhibits A, B.) Attempted Rape and Rape are Tier III
1
Sections 9799.10–9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10–9799.41,
effective December 20, 2012.
2
offenses under SORNA. 42 Pa. C.S. § 9799.14(d)(4). Tier III offenders are
required to register for the offender’s lifetime. 42 Pa. C.S. § 9799.15.
SORNA charged PSP with creating and maintaining the registration system,
and PSP has promulgated regulations to that effect. Section 9799.16 of SORNA,
42 Pa. C.S. § 9799.16; 37 Pa. Code §§ 56.1-56.4. Section 9799.16(b) of SORNA
requires that a registrant must provide the following information for inclusion in
the registry: name, including any aliases or the like used on the internet; telephone
numbers; social security number; address of each residence located in the
Commonwealth; passport or immigration documents; the name and address of any
employers; any occupational licensing numbers; date of birth; driver’s license
number; and information on any vehicles owned or operated. 42 Pa. C.S. §
9799.16(b). Additionally, PSP must ensure that the registry includes a physical
description of the registrant, including any identifying marks; the offender’s
criminal record; and a current photograph of the individual. 42 Pa. C.S. §
9799.16(c). This information is included in a statewide registry, which must “[b]e
able to communicate with” the registries maintained by the United States
Department of Justice and other jurisdictions. 42 Pa. C.S. § 9799.16(a)(2), (3).
Petitioner currently is incarcerated at the State Correctional Institution
(SCI)-Laurel Highlands. (Amended Petition ¶ 2.) Because Petitioner pleaded nolo
contendere in 1983 and still is incarcerated, SORNA’s requirements would apply
retroactively to him upon his release. See Section 9799.13(2) of SORNA, 42 Pa.
C.S. § 9799.13(2) (providing that SORNA applies to “[a]n individual who, on or
after the effective date of this section, is, as a result of a conviction for a sexually
violent offense, an inmate in a State or county correctional institution of this
Commonwealth . . . .”).
3
The Amended Petition consists of 12 paragraphs, the first 9 of which are a
mixture of factual averments regarding Petitioner’s conviction, the legislative
history of the federal and Pennsylvania’s sex offender statutes, and citations to
various state and federal decisions and statutes. The relevant factual averments are
contained in paragraphs 9 through 12 followed by Petitioner’s prayer for relief.
The entire text of these paragraphs is as follows:
9. The federal (SORNA) statute as enacted did not apply to [a]
person convicted before it was enacted, but authorized the Attorney
General of the U.S. to adopt [] retroactivity regulations, which the
U.S. Supreme Court saw differently under U.S. v. Reynolds, 710 F.3d
498[] (2013); U.S. v. Shenandoa[h] 595 F.3d 151 (2010).
10. Even though Pa has adopted standards of risk evaluation
instruments for sentencing judge to determine, and extended to Pa
(DOC) for parole purposes, the Pa (SORNA) is based entirely on the
crime of conviction, without any consideration of the risk of
reoffending.
11. [Petitioner] has been classified as a low risk offender by the
Pa DOC.
12. [Petitioner] is unfairly prejudice[d] due to these differences
between the federal (SORNA), and the Pennsylvania (SORNA)
standards without the sentencing judge’s evaluation, or the Attorney
General’s Notification of determining risk factors, undermining the
Ex Post Facto Clause of the United States Constitution.
Wherefore, [Petitioner] prays this Court will enter an Order that
the Pa. Meg[a]n’s Law, and the Adam Walsh Child Protection And
Safety (Registration) Act, shall not apply absent a sentencing judge’s
determination of the total[it]y of the circumstances.
(Amended Petition ¶¶ 9-12 and Prayer for Relief.)
We first note that the Amended Petition seeks an order from this Court that
the registration requirement for convicted sex offenders found in SORNA “shall
4
not apply absent a sentencing judge’s determination of the total[it]y of the
circumstances.” (Amended Petition, Wherefore Clause.) The Amended Petition
does not articulate clearly the relief sought specifically from PSP although the
implication is that Petitioner is seeking an order preventing PSP from applying
SORNA to Petitioner. The gist of the Amended Petition seems to be that Petitioner
was convicted before SORNA became effective; that SORNA is punitive; that
there is no provision in SORNA for evaluation of the offender to determine risk as
the statute bases its registration requirements solely on the type of conviction; that
Petitioner has been classified as low risk; and that to apply SORNA to Petitioner in
this way violates the ex post facto provision of the constitution. Petitioner
apparently seeks an order that SORNA should not be applied to him without a
sentencing judge’s evaluation, although there are no specific allegations regarding
PSP.
PSP in its POs maintains that the Amended Petition contains insufficient
factual and legal specificity and is improperly pleaded such that it should be
dismissed pursuant to Rule 1028(a)(3) of the Pennsylvania Rules of Civil
Procedure, Pa. R.C.P. No. 1028(a)(3), and, to the extent that Petitioner’s request
for relief could be construed as SORNA-related, that the Amended Petition is
legally insufficient (demurrer) to establish that such relief is appropriate. PSP in
the demurrer PO also asserts that to the extent the Amended Petition seeks
mandamus relief, it too is legally insufficient.2,3 In ruling on POs, we must accept
2
Our Supreme Court in Fagan v. Smith, 41 A.3d 816 (Pa. 2012), has explained
mandamus relief as follows:
The writ of mandamus exists to compel official performance of a ministerial act
or mandatory duty. See Delaware River Port Auth. v. Thornburgh, [] 493 A.2d
1351, 1355 ([Pa.] 1985). Mandamus cannot issue “to compel performance of a
(Continued…)
5
as true all well-pleaded material allegations in the Petition and all inferences
reasonably deducible therefrom. Wagaman v. Attorney General of the
Commonwealth of Pennsylvania, 872 A.2d 244, 246 (Pa. Cmwlth. 2005).
“Preliminary objections shall be sustained only when they are clear and free from
doubt.” Grand Cent. Sanitary Landfill, Inc. v. Dep’t of Envtl. Res., 554 A.2d 182,
184 (Pa. Cmwlth. 1989).
discretionary act or to govern the manner of performing [the] required act.”
Volunteer Firemen’s Relief Ass’n of City of Reading v. Minehart, [] 203 A.2d
476, 479 ([Pa.] 1964). This Court may issue a writ of mandamus where the
petitioners have a clear legal right, the responding public official has a
corresponding duty, and no other adequate and appropriate remedy at law exists.
Id.; see Board of Revision of Taxes v. City of Philadelphia, [] 4 A.3d 610, 627
([Pa.] 2010). Moreover, mandamus is proper to compel the performance of
official duties whose scope is defined as a result of the mandamus action
litigation. Thornburgh, 493 A.2d at 1355. Thus, “we have held that mandamus
will lie to compel action by an official where his refusal to act in the requested
way stems from his erroneous interpretation of the law.” Minehart, 203 A.2d at
479–80.
Fagan, 41 A.3d at 818.
3
Rule 1028 of the Rules of Civil Procedure provides, in pertinent part:
Rule 1028. Preliminary Objections
(a) Preliminary objections may be filed by any party to any pleading and are
limited to the following grounds:
***
(3) insufficient specificity in a pleading;
(4) legal insufficiency of a pleading (demurrer);
****
Pa. R.C.P. No. 1028(a)(3)(4).
6
To the extent the Amended Petition can be read as alleging that the SORNA
registration requirement for convicted sex offenders violates the constitutional
prohibition regarding ex post facto laws, we already have held in Coppolino v.
Noonan, 102 A.3d 1254, 1278-79 (Pa. Cmwlth. 2014), aff'd, 125 A.3d 1196 (Pa.
2015), that SORNA is civil remedial legislation not punitive in nature, and that the
retroactive application of its registration requirements, save Section 9799.15(g),4
does not constitute an ex post facto law. But see Commonwealth v. Martinez, ___
A.3d ___, ___ (Pa. No. 30 MAP 2015, filed September 28, 2016), slip. op. at 19
n.17 (stating “[i]t … remains an open question whether SORNA’s registration
requirements constitute punishment for constitutional purposes”)5; Taylor v. Pa.
State Police, 132 A.3d 590, 604 (Pa. Cmwlth. 2016) (concluding that it is not clear
that SORNA’s internet notification provision does not violate the Ex Post Facto
Clause of the Pennsylvania Constitution).
Petitioner also alleges that SORNA’s reporting requirements are based
solely on conviction without an evaluation by the sentencing judge of the risk
factors of an individual defendant reoffending, that he has been classified as a low
4
42 Pa. C.S. § 9799.15(g). Section 9799.15(g) addresses in-person appearances to
update registration information, which is not at issue here.
5
Martinez addressed whether the registration requirements of SORNA could be imposed
upon a sex offender that entered into a plea agreement prior to the enactment of SORNA, and
where sexual offender registration was a term of the agreement. The Supreme Court concluded
that such offenders “are entitled to the benefit of the bargains struck with the Commonwealth
when the trial court accepted the parties’ plea agreements.” Commonwealth v. Martinez, ___
A.3d ___, ___ (Pa. No. 30 MAP 2015, filed September 28, 2016), slip. op. at 2. Like the
appellants in Martinez, Gregory is required to register for a term of years different than what
existed at the time of his conviction. In fact, Megan’s Law did not exist at the time of Gregory’s
conviction. But unlike the appellants in Martinez, Gregory did not enter into a plea agreement
that included terms on sexual offender registration. Gregory pleaded nolo contendere. Thus, the
holding in Martinez does not apply to the instant matter.
7
risk for reoffending, and that the federal analogue to SORNA provides such a
mechanism. That is the extent of Petitioner’s averments on this issue. While the
very broad outlines of an argument that SORNA should not be applied to him
without a sentencing judge’s evaluation are presented, the allegations are deficient.
We thus sustain PSP’s PO for insufficient specificity, without prejudice, as the
Amended Petition does not contain facts sufficient to enable PSP to answer or
defend as the specific nature of the relief sought is not clear.
Turning to PSP’s “demurrer as to possible SORNA-related relief,” the PO
appears to argue why there is no SORNA-related relief available to Petitioner, to
wit, he has been convicted of the predicate offenses under SORNA, and SORNA
attaches as a matter of law; therefore, PSP cannot exempt him and he thus has no
clear right to relief under any theory. PSP argues further that to the extent
Petitioner seeks mandamus relief, he fails to plead the requisite facts to establish
the required elements. As to this latter point, the Amended Petition seeks an order
from this Court that the registration requirement for convicted sex offenders found
in SORNA “shall not apply absent a sentencing judge’s determination of the
total[it]y of the circumstances.” If Petitioner’s argument is that SORNA should
not be applied to him without a sentencing judge’s evaluation, the relief sought is
more in the nature of a declaratory judgment. Moreover, although it includes the
reference to mandamus, PSP’s demurrer PO is described as a “demurrer to possible
SORNA-related relief.” While the PO could be interpreted to be a more
comprehensive demurrer, it is not clear from the pleadings if the PO is a demurrer
to mandamus relief with an explanation as to why such relief is not available or a
more comprehensive demurrer arguing that Petitioner has no clear right to relief
under any theory. Because “[p]reliminary objections shall be sustained only when
8
they are clear and free from doubt,” Grand Cent. Sanitary Landfill, 554 A.2d at
184, we will overrule PSP’s PO in the nature of a demurrer.
________________________________
RENÉE COHN JUBELIRER, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Norman E. Gregory, :
Petitioner :
:
v. : No. 245 M.D. 2015
:
Pennsylvania State Police, :
Respondent :
ORDER
NOW, October 13, 2016, the Preliminary Objection of the Pennsylvania
State Police in the nature of a demurrer is OVERRULED. The Preliminary
Objection for insufficient specificity is SUSTAINED. Petitioner may file a
Second Amended Petition on or before November 14, 2016. If no Second
Amended Petition is filed by November 14, 2016, the Chief Clerk shall dismiss the
Amended Petition with prejudice.
________________________________
RENÉE COHN JUBELIRER, Judge