B.J. Snow v. PSP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy Joe Snow, :
:
Petitioner :
:
v. : No. 550 M.D. 2014
:
The Pennsylvania State Police of the : Argued: September 16, 2015
Commonwealth of Pennsylvania, :
:
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge2
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge3
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge4
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER5 FILED: April 27, 2016
Before this Court in our original jurisdiction are the Preliminary Objections
(POs) in the nature of a demurrer of the Pennsylvania State Police (PSP) to Billy
1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
3
This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
4
This case was argued before an en banc panel of the Court that included Judge Bernard
L. McGinley, who retired on January 31, 2016. Judge Wojcik has replaced former Judge
McGinley on the en banc panel and has considered the matter on review of the parties’ briefs.
5
This matter was reassigned to the authoring judge on December 8, 2015.
Joe Snow’s (Petitioner) “Amended Petition for Review in the Nature of a Writ of
Mandamus Seeking to Compel the [PSP] to Change Petitioner’s Sexual Offender
Registration Status in Accordance with the Law Addressed to the Court’s Original
Jurisdiction” (Petition for Review). At oral argument, Petitioner made an oral
motion to stay the disposition of the POs so that he could provide the PSP with his
sentencing orders, and the PSP could determine whether relief was appropriate
based thereon. We granted said motion on January 14, 2016. Petitioner
subsequently provided the PSP with documents related to his sentencing, and the
PSP determined that no relief was appropriate. The matter is now ripe for our
disposition.
On January 30, 2008, Petitioner pleaded guilty to Indecent Assault of Person
Less Than 13 Years of Age,6 Corruption of Minors,7 and Criminal Solicitation to
6
Section 3126(a)(7) of the Crimes Code, 18 Pa. C.S. § 3126(a)(7). This offense is
defined as:
[a] person is guilty of indecent assault if the person has indecent contact with the
complainant, causes the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with seminal fluid,
urine or feces for the purpose of arousing sexual desire in the person or the
complainant and: . . . (7) the complainant is less than 13 years of age.
Id.
7
Section 6301(a)(1) of the Crimes Code, 18 Pa. C.S. § 6301(a)(1). The offense is
defined as:
(1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18
years and upwards, by any act corrupts or tends to corrupt the morals of any
minor less than 18 years of age, or who aids, abets, entices or encourages any
such minor in the commission of any crime, or who knowingly assists or
(Continued…)
2
Commit Statutory Sexual Assault.8 (Petition for Review ¶ 3.) As a result of his
guilty plea, Petitioner was sentenced to “eleven and a half (11 1/2) to twenty-three
months of confinement and seven (7) years of probation.” (Petition for Review ¶
3.) Petitioner alleges that he “was instructed and entered into a plea agreement”
with the Commonwealth “pursuant to an understanding and agreement” that he
was required to register only for ten years. (Petition for Review ¶ 4.) According to
Petitioner’s allegations, Petitioner’s understanding that he was only required to
register as a sexual offender for 10 years “was a consideration that Petitioner took
into account in accepting a negotiated plea and which he relied upon.” (Petition
for Review ¶ 5.) Further, Petitioner alleges that his required guilty plea colloquy
and Sentencing Order “listed Petitioner as qualifying for a ten (10) year
registration only.” (Petition for Review ¶¶ 7-8.)
encourages such minor in violating his or her parole or any order of court,
commits a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards, by any course of
conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends
to corrupt the morals of any minor less than 18 years of age, or who aids, abets,
entices or encourages any such minor in the commission of an offense under
Chapter 31 commits a felony of the third degree.
Id.
8
Section 902(a) of the Crimes Code, 18 Pa. C. S. § 902(a). Pursuant to Section 902(a) of
the Crimes Code:
A person is guilty of solicitation to commit a crime if with the intent of promoting
or facilitating its commission he commands, encourages or requests another
person to engage in specific conduct which would constitute such crime or an
attempt to commit such crime or which would establish his complicity in its
commission or attempted commission.
Id.
3
On December 3, 2012, the PSP notified Petitioner that pursuant to the
enactment of the Sexual Offender Registration and Notification Act (SORNA),9
Petitioner was now required to register four times a year for the rest of his life and
that his registration information will be placed on the PSP’s website for his
lifetime. (Petition for Review ¶ 11.) Petitioner alleges that this increase in his
registration period violates the Ex Post Facto and Contract Clauses of the United
States and Pennsylvania Constitutions and the Due Process Clauses of the
Fourteenth Amendment to the United States Constitution and Article I, Section 9
of the Pennsylvania Constitution. (Petition for Review ¶¶ 12-13, 16-20.) Further,
Petitioner alleges that SORNA is an ex post facto law as applied to him because
one of the crimes to which he pleaded guilty, Section 6301(a)(1) of the Crimes
Code, 18 Pa. C.S. § 6301(a)(1), did not carry registration requirements under the
law in effect at the time of his negotiated plea agreement. (Petition for Review ¶
9
Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10-9799.41.
Courts have also referred to SORNA as the Adam Walsh Act. SORNA is the General
Assembly’s fourth enactment of the law commonly referred to as Megan’s Law. Megan’s Law I,
the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was enacted on October 24, 1995,
and became effective 180 days thereafter. Megan’s Law II was enacted on May 10, 2000 in
response to Megan’s Law I being ruled unconstitutional by our Supreme Court in
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999). Our Supreme Court held that some
portions of Megan’s Law II were unconstitutional in Commonwealth v. Gomer Williams, 832
A.2d 962 (Pa. 2003), and the General Assembly responded by enacting Megan’s Law III on
November 24, 2004. The United States Congress expanded the public notification requirements
of state sexual offender registries in the Adam Walsh Child Protection and Safety Act of 2006,
42 U.S.C. §§ 16901-16945, and the Pennsylvania General Assembly responded by passing
SORNA on December 20, 2011 with the stated purpose of “bring[ing] the Commonwealth into
substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006.” 42 Pa.
C.S. § 9799.10(1). SORNA went into effect a year later on December 20, 2012. Megan’s Law
III was also struck down by our Supreme Court for violating the single subject rule of Article III,
Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa.
2013). However, by the time it was struck down, Megan’s Law III had been replaced by
SORNA.
4
21.) Finally, Petitioner alleges that his offenses were part of a single criminal
episode and, pursuant to this Court’s decision in A.S. v. Pennsylvania State Police,
87 A.3d 914, 923 (Pa. Cmwlth. 2014), he should be required to register for 10
years instead of his lifetime. (Petition for Review ¶¶ 14-15.) Petitioner seeks
specific performance of his plea agreement with the Commonwealth and an order
declaring that: (1) he is not required to register beyond 10 years as his crimes were
part of a single criminal episode; and (2) the increased registration and notification
requirements imposed upon him by SORNA are, for the above-stated reasons,
unconstitutional. (Petition for Review ¶¶ 22-24, Wherefore Clause.)
The PSP demurs to the Petition for Review through six POs. The PSP first
alleges that Petitioner has failed to state a claim because SORNA applies to
Petitioner, and Petitioner was properly classified as a Tier III offender, carrying a
lifetime registration requirement. (POs ¶¶ 28-33.) Second, the PSP alleges that
mandamus will not lie against the PSP because the statute of limitations has run for
these types of actions and that the PSP lacks the duty or authority to change
Petitioner’s registration requirements. (POs ¶¶ 35-45.) Third, the PSP demurs to
Petitioner’s claim that he is improperly classified as a lifetime offender because his
crimes were part of a single criminal episode. The PSP alleges that Petitioner is
classified as a Tier III offender as a result of his conviction for Indecent Assault of
Person Less Than 13 Years of Age, 18 Pa. C.S. § 3126(a)(7), pursuant to Section
9799.14(d)(8) of SORNA, 42 Pa. C.S. § 9799.14(d)(8), and not because he was
convicted of two or more offenses requiring registration. (Petition for Review ¶¶
47-53.) Fourth, the PSP alleges that SORNA poses no ex post facto concerns and
cites to our recent opinion in Coppolino v. Noonan, 102 A.3d 1254 (Pa. Cmwlth.
5
2014), aff’d, 125 A.3d 119 (Pa. 2015), and the Superior Court’s decision in
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014), as binding authority to
that end. (POs ¶ 55.) Moreover, the PSP alleges that previous versions of
Megan’s Law were similarly upheld as non-punitive by the Pennsylvania Supreme
Court. See Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003)
(addressing Megan’s Law II); Commonwealth v. Gaffney, 733 A.2d 616, 621 (Pa.
1999) (addressing Megan’s Law I). (POs ¶ 56.) Fifth, the PSP objects to
Petitioner’s due process allegations on the grounds that Petitioner has failed to
allege any interest that is protected under the Due Process Clauses of either the
United States or Pennsylvania Constitutions. (POs ¶¶ 58-59.) Relatedly, the PSP
alleges that Petitioner has failed to state a claim that his due process rights were
violated because “‘whether the additional sanctions imposed under Megan’s Law
II are punitive in nature is the threshold due process inquiry.’” (POs ¶ 60 (quoting
Gomer Williams, 832 A.2d at 970 n.13).) Because this Court and the Superior
Court, in Coppolino and Perez, respectively, held that SORNA’s requirements are
not punitive, Petitioner’s due process challenge also fails. (POs ¶ 61.) Finally, the
PSP demurs to Petitioner’s contract-related claims by alleging that: (1) the PSP is
not liable for breach of contract because the PSP is not a party to the plea
agreement between Petitioner and the Commonwealth; and (2) assuming that the
PSP is a party to the plea agreement, a claim against the PSP is barred by sovereign
immunity. (POs ¶¶ 63-70.) For the reasons that follow, we sustain the POs in part,
and overrule the POs in part.
We shall first address the PSP’s objections based upon Petitioner seeking the
requested relief in a mandamus action and then proceed to those challenging the
6
legal sufficiency of Petitioner’s constitutional and contract claims. In assessing the
legal sufficiency of a petition for review, “the Court must accept as true all well-
pleaded allegations of material fact as well as all reasonable inferences deducible
therefrom.” Rodgers v. Pennsylvania Department of Corrections, 659 A.2d 63, 65
(Pa. Cmwlth. 1995). A demurrer must only be sustained “where it appears, with
certainty, that the law permits no recovery under the allegations pleaded.” Id.
I. Mandamus and Statute of Limitations
The PSP’s objection is premised on its understanding that Petitioner is
seeking relief in a mandamus action based on the title of his pleading. The PSP,
citing this Court’s decision in Curley v. Smeal (Curley I), 41 A.3d 916, 919 (Pa.
Cmwlth. 2012), aff’d but criticized sub nom., Curley v. Wetzel (Curley II), 82
A.3d 418 (Pa. 2013),10 alleges that actions in mandamus have a six-month statute
of limitations, which had expired long before Petitioner filed his Petition for
Review in October 2014. The PSP also alleges, in the alternative, that Petitioner’s
claims lack merit because mandamus is only applicable to situations where the
petitioner has a clear legal right to the performance of a mandatory ministerial
duty, and the PSP has no such duty here to provide the relief requested by
Petitioner.
10
This Court recently overruled Curley I in Morgalo v. Gorniak et al., ___A.3d___ , ___
(Pa. Cmwlth., No. 489 M.D. 2013, filed March 8, 2016) (en banc), slip op. at 8.
7
We addressed these precise issues at length in Taylor v. The Pennsylvania
State Police, 132 A.3d 590, 598-600 (Pa. Cmwlth. 2016) (en banc)11 where we
overruled the PSP’s objection to a petition self-labeled a “Petition for Review in
the Nature of a Writ of Mandamus” because the petitioner’s claims sounded in
declaratory and injunctive relief and that while “[i]t would have been preferable for
Petitioner to have titled his Petition for Review correctly,” the Rules of Appellate
Procedure should be liberally construed so that form is not exalted over substance.
Petitioner here requests this Court to order specific enforcement of the terms
of his plea agreement and to conclude that: (1) the application of SORNA upon
him is unconstitutional as it impairs the Commonwealth’s obligations in its
contract with Petitioner in violation of the Contract Clauses of the United States
and Pennsylvania Constitutions; (2) the retroactive application of SORNA’s
requirements upon him violates the Due Process Clauses of the United States and
Pennsylvania Constitutions; (3) by changing, expanding, and extending
Petitioner’s registration and reporting requirements, SORNA retroactively imposes
a form of punishment upon him in violation of the Ex Post Facto Clauses of the
United States and Pennsylvania Constitutions; and (4) Petitioner should be
removed from the PSP sexual offender registry after 10 years because his crimes
were part of a single criminal episode. (Petition for Review ¶¶ 13-21.) Like the
petition for review in Taylor, these requests sound in declaratory and injunctive
11
The instant case was argued with Taylor, Dougherty v. Pennsylvania State Police,
___A.3d___ (Pa. Cmwlth., No. 537 M.D. 2014, filed April 27, 2016) (en banc), and five other
cases.
8
relief, asserting contractual and constitutional claims against a Commonwealth
agency. Thus, pursuant to Taylor, we shall overrule the PSP’s POs in this regard.
II. Crimes Not Previously Requiring Registration/Single Criminal Episode
Petitioner alleges that the application of SORNA’s increased registration
requirements upon him violates the ex post facto clauses of the United States and
Pennsylvania Constitutions, in part, because one of the three crimes to which he
pleaded guilty, Section 6301(a)(1) of the Crimes Code, 18 Pa. C.S. § 6301(a)(1),
did not require registration under the law in effect at the time of his conviction.
(Petition for Review ¶ 21.) Petitioner alleges that the increase of his registration
period from 10 years to his entire lifetime was a result of this crime being
recategorized as an offense that carries a registration requirement. (Petition for
Review ¶ 21.)
Petitioner pleaded guilty to three offenses: violating Sections 3126(a)(7),
6301(a)(1), and 902(a) of the Crimes Code, 18 Pa. C.S. §§ 3126(a)(7), 6301(a)(1),
902(a). (Petition for Review ¶ 3.) The Act commonly referred to as Megan’s Law
III12 was in effect at the time of his convictions. Petitioner’s convictions for
violating Sections 6301(a)(1) and 902(a) of the Crimes Code were not crimes for
which registration was required under Megan’s Law III. However, under Section
9795.1(a)(1) of Megan’s Law III, a conviction for violating any of the subsections
of Section 3126 of the Crimes Code required Petitioner to register as a sexual
offender with the PSP for 10 years. 42 Pa. C.S. § 9795.1(a)(1) (expired December
20, 2012, pursuant to Section 9799.41 of SORNA, 42 Pa. C.S. § 9799.41).
12
The Act of November 24, 2004, P.L. 1243 §§ 7-13, 15-18.
9
SORNA classifies a violation of Section 3126(a)(7) of the Crimes Codes as a Tier
III offense carrying a lifetime registration requirement. Sections 9799.14(d)(8) and
9799.15(a)(3) of SORNA, 42 Pa. C.S. §§ 9799.14(d)(8), 9799.15(a)(3). Violations
of Sections 6301(a)(1) of the Crimes Code, if the offense is graded as a
misdemeanor, and Section 902(a) of the Crimes Code are not classified under
SORNA and do not carry registration requirements.13 42 Pa. C.S. § 9799.14.
Under SORNA, Petitioner is subject to lifetime registration as a result of his
conviction for violating Section 3126(a)(7) of the Crimes Code regardless of
Petitioner’s other two convictions. Furthermore, even if SORNA added
registration periods for crimes previously not classified, the retroactive imposition
of registration requirements upon a sexual offender does not run afoul of the Ex
Post Facto Clauses of either the United States or Pennsylvania Constitutions. See
Smith v. Doe, 538 U.S. 84, 105 (2003) (addressing the application of Alaska’s
registration requirements upon appellants convicted of sexual offenses years prior
to the law’s enactment and concluded that the retroactive nature of the law does
not violate the Ex Post Facto Clause of the United States Constitution); Gaffney,
733 A.2d at 622 (addressing the application of Megan’s Law I upon an appellant
who committed sexually violent offenses prior to the enactment of the law and
concluding that the retroactive registration of sexual offenders under the law does
not violate the Ex Post Facto Clause of the Pennsylvania Constitution).
13
SORNA lists a violation of Section 6301(a)(1)(ii) of the Crimes Code, which is the
felony grade of this offense, as a Tier I offense that carries a 10 year registration requirement. 42
Pa. C.S. § 9799.14(b)(8). It is not clear based on the allegations whether Petitioner pleaded
guilty to the felony or misdemeanor variety of this crime.
10
Relatedly, Petitioner alleges that he should be subject to a lesser sanction
because his offenses were part of a single criminal episode pursuant to this Court’s
decision in A.S. In A.S., the petitioner pled guilty to single counts of violating
Sections 6312(b), 6318(a)(5) and 6301 of the Crimes Code, 18 Pa. C.S. §§
6312(b), 6318(a)(5), 6301. A.S., 87 A.3d at 917. When released from
incarceration, A.S. registered for 10 years. Upon expiration of that period, the PSP
refused to remove A.S. from the registry claiming that because A.S. pled guilty to
multiple crimes subject to a 10-year registration, he was required to register for life
pursuant to Megan’s Law III. Id. Section 9795.1(b)(1) of Megan’s Law III
provided that individuals convicted of two or more convictions of any of the
offenses listed under the 10-year registration requirement are subject to lifetime
registration. 42 Pa. C.S. § 9795.1(b)(1) (expired December 20, 2012, pursuant to
42 Pa. C.S. § 9799.41).
We granted A.S. summary relief and held that “a defendant convicted of two
or more subsection (a) offenses is subject to the lesser sanction of the ten-year
registration requirement so long as it is clear that the offenses were part of the
same course of criminal conduct.” A.S., 87 A.3d at 921 (internal quotations
omitted). Because it was “clear and free from doubt that the conduct here was a
result of a single criminal episode to which A.S. pled guilty, that it was all part of
one logically related act making it one conviction for the purpose of the former
Section 9795.1.” A.S., 87 A.3d at 922 (internal quotations and footnotes omitted).
Upon review, we conclude that A.S. is inapplicable to the instant matter.
Even if Petitioner’s criminal acts were part of a single criminal episode, his
11
conviction for violating Section 3126(a)(7) of the Crimes Code by itself warrants a
Tier III classification under SORNA. 42 Pa. C.S. § 9799.14(d)(8). Petitioner’s
two other convictions are not relevant to his classification. Accordingly, the PSP’s
POs to Petitioner’s allegations that his lifetime registration requirement was a
result of an ex post facto application of the registration requirements associated
with his convictions for violating Sections 6301(a)(1),and 902(a) of the Crimes
Code and that his lifetime registration requirement should be reduced to 10 years
because his crimes were part of a single criminal episode are sustained.
III. Remaining Issues
Petitioner’s remaining allegations that: (1) the increase in his registration
period violates his rights under the Due Process Clauses of the Fourteenth
Amendment to the United States Constitution and Article I, Section 9 of
Pennsylvania Constitution; (2) the retroactive imposition of SORNA’s registration
and notification requirements upon him violates the Ex Post Facto Clauses of the
United States and Pennsylvania Constitutions; and (3) the terms of his plea
agreement have been breached by the imposition of SORNA upon him in violation
of common law contract law and the Contract Clauses of the United States and
Pennsylvania Constitutions were thoroughly addressed in our opinions in Taylor
and Dougherty v. The Pennsylvania State Police, ___A.3d___ (Pa. Cmwlth., No.
537 M.D. 2014, filed April 27, 2016) (en banc). These cases were argued together
with the instant matter and addressed nearly identical allegations, objections, and
factual predicates. We adopt the relevant rationales set forth therein to resolve the
remaining POs as follows: (1) the PSP’s PO in the nature of a demurrer alleging
that Petitioner failed to state a claim because Petitioner is properly classified under
SORNA is overruled, Taylor, 590 A.3d at 595 n.6; (2) the PSP’s PO in the nature
12
of a demurrer to Petitioner’s due process challenge under the Fourteenth
Amendment to the United States Constitution and Article I, Section 9 of the
Pennsylvania Constitution is sustained because Petitioner did not allege that the
PSP abridged any right that is protected by due process, Dougherty, __ A.3d at __,
slip op. at 11;14 (3) the PSP’s PO in the nature of a demurrer to Petitioner’s request
for specific enforcement of his plea agreement is sustained, id., at __, slip op. at
13-14; (4) the PSP’s PO in the nature of a demurrer to Petitioner’s challenge to
SORNA under the Contract Clauses of the United States and Pennsylvania
Constitutions is sustained, id.; (5) the PSP’s PO in the nature of a demurrer
alleging that Petitioner has not stated a claim challenging SORNA’s internet
notification provision under the Ex Post Facto Clause of the Pennsylvania
Constitution is overruled, Taylor 590 A.3d at 601-04; (6) the PSP’s PO in the
nature of a demurrer alleging that Petitioner has not stated a claim challenging
SORNA’s registration requirements under the Ex Post Facto Clause of the
Pennsylvania Constitution is sustained, id. at 601; and (7) the PSP’s PO in the
nature of a demurrer alleging that Petitioner has not stated a claim under the Ex
Post Facto Clause of the United States Constitution is sustained, id. at 601-02.
________________________________
RENÉE COHN JUBELIRER, Judge
14
However, pursuant to Taylor, we do not accept the PSP’s allegation that Petitioner
cannot assert a due process challenge to SORNA unless the alleged infringement upon
Petitioner’s rights is punitive in nature. See Taylor, 590 A.3d at 608.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy Joe Snow, :
:
Petitioner :
:
v. : No. 550 M.D. 2014
:
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
:
Respondent :
ORDER
NOW, April 27, 2016, the Pennsylvania State Police’s (PSP) Preliminary
Objections to the Amended Petition for Review in the above-captioned matter are
OVERRULED, in part, and SUSTAINED, in part, as follows:
(1) The PSP’s preliminary objection in the nature of a demurrer to the
Amended Petition for Review alleging that Billy Joe Snow
(Petitioner) was properly classified under the Sexual Offender
Registration and Notification Act (SORNA) is OVERRULED;
(2) The PSP’s preliminary objection in the nature of a demurrer to the
Amended Petition for Review alleging that the claims asserted are
barred by the applicable statute of limitations is OVERRULED;
(3) The PSP’s preliminary objection in the nature of a demurrer to the
Amended Petition for Review alleging that mandamus will not lie
against the PSP is OVERRULED;
(4) The PSP’s preliminary objection in the nature of a demurrer to
Petitioner’s ex post facto challenge to SORNA’s internet notification
provision, 42 Pa. C.S. § 9799.28(a), under the Pennsylvania
Constitution as set forth in the Amended Petition for Review is
OVERRULED;
(5) The PSP’s preliminary objections are SUSTAINED with regard to the
remaining claims set forth in the Amended Petition for Review;
(6) Petitioner’s claims that he is entitled to specific enforcement of his
plea agreement pursuant to contract law and that the application of
SORNA upon him violates the Contract Clauses of the United States
and the Pennsylvania Constitutions are DISMISSED WITHOUT
PREJUDICE to Petitioner’s right to file an action asserting such
claims in the appropriate court of common pleas;
(7) Petitioner’s remaining claims are DISMISSED WITH
PREJUDICE; and
(8) The PSP shall file an Answer to Petitioner’s claims, set forth in
Petitioner’s Amended Petition for Review, that SORNA’s internet
notification provision, 42 Pa. C.S. § 9799.28(a), violates the Ex Post
Facto Clause of the Pennsylvania Constitution within thirty (30) days
of the date of this Order.
________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy Joe Snow, :
Petitioner :
:
v. : No. 550 M.D. 2014
: Argued: September 16, 2015
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING
OPINION BY JUDGE LEADBETTER FILED: April 27, 2016
I must respectfully dissent, in part, because I do not believe that the
internet notice provision of SORNA implicates the ex post facto clause. Rather, I
would follow the reasoning of our sister court in Commonwealth v. Ackley, 58
A.3d 1284, 1286-87 (Pa. Super. 2012) (citing Commonwealth v. Williams, 832
A.2d 962 (Pa. 2003)). Accordingly, I would sustain that preliminary objection.
Otherwise, I concur in the results reached by the majority.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge