D. Rosenberger v. Gov. T. Wolf ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dana Rosenberger, :
Petitioner :
:
v. :
:
Governor Tom Wolf, :
Pennsylvania General Assembly, :
Pennsylvania State Police, : No. 283 M.D. 2018
Respondents : Submitted: September 6, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: November 7, 2019
Before the Court, in our original jurisdiction, is the Application for
Summary Relief (Application) filed by Dana Rosenberger (Petitioner) seeking relief
from his lifetime sexual offender registration requirement 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 Act of June 12, 2018, P.L. 140 (Act 29) (collectively, Act 10 or SORNA
II). For the reasons stated herein, we deny the Application.
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 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, former 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,
former 42 Pa.C.S. §§ 9791-9799.7. In 2004, the General Assembly enacted what is
commonly known as Megan’s Law III, former 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 Commonwealth
v. Muniz, 164 A.3d 1189 (Pa. 2017), which held that 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.
Petitioner was convicted of indecent assault of a person less than 13
years of age,1 graded as a misdemeanor of the first degree, in 2001. In 2010,
Petitioner was again convicted of indecent assault of a person less than 13 years of
age, this time graded as a felony in the third degree. Under the recidivist provision
of Megan’s Law III, former 42 Pa.C.S. § 9795.1(b)(1),2 Petitioner became a lifetime
sexual offender registrant upon conviction for his second indecent assault of a person
less than 13 years of age. Petitioner acknowledged this registration requirement as
a part of the plea bargain in the 2010 prosecution. See Order of Court of Common
1
18 Pa.C.S. § 3126(a)(7).
2
Megan’s Law III required lifetime registration for individuals with two or more
convictions for a set of enumerated offenses, which offenses included 18 Pa.C.S. § 3126 (relating
to indecent assault). See former 42 Pa.C.S. § 9795.1(b)(1) (effective Dec. 8, 2008 through Dec.
19, 2011).
2
Pleas of Washington County, Docket CP-XX-XXXXXXX-2009, dated February 5, 2010,
at 2 (pagination supplied).
On April 16, 2018, Petitioner filed a Petition for Review with this
Court. On April 11, 2019, Petitioner filed the instant Application.3 In his brief,
Petitioner alleges that SORNA II is an unconstitutional ex post facto law that is
unconstitutional and punitive as applied to him. See Petitioner’s Brief at v & 1-8.
We disagree.
In Bill v. Noonan (Pa. Cmwlth., No. 437 M.D. 2017, filed May 16,
2019),4 this Court addressed the issues here raised by Petitioner in overruling an as-
applied constitutional challenge to SORNA I in the analogous situation of an
individual required to register for life by virtue of his status as a sexually violent
predator (SVP). In Bill, this Court noted that the rationale in Muniz is inapplicable
in situations where SORNA I did not result in an increase of sexual offender
registration obligations. See id., slip op. at 11. Bill involved an individual who was
continuously subject to lifetime registration requirements since his conviction by
virtue of having been classified as an SVP. Id. This Court noted that because
SORNA I did not increase the registration obligations of sexually violent predators
3
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 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).
4
Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code §
69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be cited
for their persuasive value.
3
– they remained lifetime registrants from Megan’s Law III to SORNA I – SORNA
I was not an ex post facto law as applied. Id. We explained:
This Court has repeatedly determined that SORNA I is not
an unconstitutional ex post facto law as applied, to the
extent it merely continues the same registration
requirement already in place under the law.
Id. (emphasis added; internal citation omitted). The Court continued and expanded
its determination, stating that neither SORNA I nor SORNA II constitutes an
impermissible ex post facto law as applied where an individual remains subject to
the same registration requirements. Id. at 11-12.
As with the SVP-classified petitioner in Bill, neither SORNA I nor
SORNA II increased Petitioner’s sexual offender registration requirements in the
instant matter. Petitioner was subject to lifetime sexual offender registration under
Megan’s Law III upon his second conviction for indecent assault of a person less
than 13 years of age, see former 42 Pa.C.S. § 9795.1(b)(1). Therefore, neither
SORNA I nor SORNA II increased Petitioner’s registration requirements. As such,
the Muniz rationale does not apply and SORNA II does not constitute an
impermissible ex post facto law as applied to Petitioner. See Bill; see also Marshall
v. Pa. State Police (Pa. Cmwlth., No. 552 M.D. 2017, filed July 18, 2018), slip op.
at 8-9 (holding that a petitioner seeking relief from Act 10’s sexual registration
requirements under Muniz is afforded no relief because no ex post facto violation
exists where the petitioner experienced no increased registration requirements).
4
For the above reasons, Petitioner has failed to demonstrate a clear right
to the judgment he seeks in the Application. Accordingly, we deny the Application.5
__________________________________
CHRISTINE FIZZANO CANNON, Judge
5
We note that PSP correctly points out in its brief that Governor Wolf is not a proper party
to the instant litigation. See PSP’s Brief at 8-9. In statutory challenges, the party that has the
power or duty with respect to a statute’s enforcement is the proper party. Allegheny Sportsmen’s
League v. Ridge, 790 A.2d 350, 355 (Pa. Cmwlth. 2002), aff’d sub nom. Allegheny Cty.
Sportsmen’s League v. Rendell, 860 A.2d 10 (Pa. 2004). As our Supreme Court has explained,
“PSP has enforcement authority with regard to the requirements of SORNA . . . [and] is an
appropriate defendant relative to a cause of action which would result in a directive that the
individual’s registration period be reduced or eliminated.” Konyk v. Pa. State Police of
Commonwealth of Pa., 183 A.3d 981, 987 (Pa. 2018). Governor Wolf, on the other hand, is not
charged with SORNA’s enforcement and, thus, is an improper party to the instant litigation.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dana Rosenberger, :
Petitioner :
:
v. :
:
Governor Tom Wolf, :
Pennsylvania General Assembly, :
Pennsylvania State Police, : No. 283 M.D. 2018
Respondents :
ORDER
AND NOW, this 7th day of November, 2019, the April 11, 2019
Application for Summary Relief filed by Petitioner Dana Rosenberger is DENIED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge