H. Cao v. The PSP of The Com. of PA ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Huu Cao, :
Petitioner :
:
v. : No. 512 M.D. 2015
:
The Pennsylvania State Police of :
The Commonwealth of Pennsylvania, :
Respondent : Submitted: June 3, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION BY
JUDGE CEISLER FILED: August 4, 2022
Before this Court is an Application for Summary Relief filed by the
Pennsylvania State Police of the Commonwealth of Pennsylvania (PSP) seeking
dismissal of Huu Cao’s Amended Petition for Review filed in this Court’s original
jurisdiction. In his Amended Petition for Review, Mr. Cao asserts, inter alia, that
the registration and reporting provisions of the most recent version of the Sexual
Offender Registration and Notification Act (SORNA II)1 are punitive as applied to
him in violation of the ex post facto clauses of the United States and Pennsylvania
Constitutions.2 For the reasons that follow, we grant PSP’s Application for
Summary Relief and dismiss Mr. Cao’s Amended Petition for Review.
1
Act of February 21, 2018, P.L. 27, as amended by the Act of June 12, 2018, P.L. 140, 42
Pa. C.S. §§ 9799.10-9799.75.
2
The United States Constitution provides that “[n]o . . . ex post facto Law shall be passed.”
U.S. Const. art. I, § 9. The Pennsylvania Constitution likewise provides that “[n]o ex post facto
law . . . shall be passed.” Pa. Const. art. I, § 17. Our Court has recognized that “the ex post facto
clauses of both constitutions are virtually identical, and the standards applied to determine an ex
(Footnote continued on next page…)
Background
On September 22, 2000, Mr. Cao pled guilty to numerous sexual offenses,
including aggravated indecent assault. He committed the offenses in May 1995.
Following the entry of his plea, the Court of Common Pleas of Lancaster County
sentenced Mr. Cao to 2½ to 5 years’ incarceration followed by 10 years’ probation.
At the time of his convictions, Mr. Cao was required to register with PSP as a
sex offender for life pursuant to Megan’s Law II, Act of May 10, 2000, P.L. 74,
formerly 42 Pa. C.S. §§ 9791-9799.7, due to his conviction for aggravated indecent
assault. See former 42 Pa. C.S. § 9795.1(b)(2). Upon his release from prison in
September 2003, Mr. Cao began registering as a sex offender with PSP pursuant to
Megan’s Law II.
In 2004, the General Assembly enacted Megan’s Law III, Act of November
24, 2004, P.L. 1243, formerly 42 Pa. C.S. §§ 9791-9799.9. Megan’s Law III did not
alter the lifetime registration requirement for an individual convicted of aggravated
indecent assault. See former 42 Pa. C.S. § 9795.1(b). In 2011, the General Assembly
replaced Megan’s Law III with SORNA II’s predecessor, SORNA I, which took
effect on December 20, 2012. See former 42 Pa. C.S. §§ 9799.10-9799.41.
In 2017, the Pennsylvania Supreme Court decided Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017). In Muniz, the Supreme Court held that SORNA I violated
the ex post facto provisions of the United States and Pennsylvania Constitutions
when applied retroactively to sex offenders who were convicted of certain crimes
before SORNA I’s effective date and who were subject to increased registration
obligations under SORNA I. On February 15, 2018, PSP notified Mr. Cao that, in
response to Muniz, PSP had removed his name from the sex offender website, but
post facto violation are comparable.” Evans v. Pa. Bd. of Prob. & Parole, 820 A.2d 904, 909 (Pa.
Cmwlth. 2003).
2
that PSP may need to review his file in the future in response to any newly enacted
sex offender registration legislation.
In 2018, in response to Muniz, the General Assembly enacted SORNA II,
which amended certain provisions of SORNA I and added new provisions that
became effective immediately.
On April 20, 2018, following SORNA II’s enactment, PSP notified Mr. Cao
that under Subchapter I of SORNA II, he was required to register as a sex offender
for life. Subchapter I, titled “Continued Registration of Sex Offenders,” provides,
in relevant part, that its provisions shall apply to individuals who were “required to
register with [PSP] under a former sexual offender registration law of this
Commonwealth on or after April 22, 1996, but before December 20, 2012, whose
period of registration has not expired.” 42 Pa. C.S. § 9799.52(2) (emphasis added).
Thus, Mr. Cao was required to register under Subchapter I of SORNA II because his
prior lifetime registration commitment, which originally arose under Megan’s Law
II, had not expired.
On September 12, 2018, Mr. Cao filed an Amended Petition for Review with
this Court, challenging his lifetime registration obligation under SORNA II as
unconstitutional on numerous grounds. On November 13, 2018, PSP filed
Preliminary Objections to the Amended Petition for Review.
On October 16, 2019, following oral argument, this Court sustained in part
and overruled in part PSP’s Preliminary Objections. This Court overruled PSP’s
objections to Mr. Cao’s ex post facto and due process claims and sustained PSP’s
remaining objections. Thereafter, PSP filed an Answer and New Matter to the
Amended Petition for Review.
3
Two years later, on December 2, 2021, PSP filed the instant Application for
Summary Relief and a supporting brief, asking this Court to enter judgment in its
favor and dismiss Mr. Cao’s Amended Petition for Review in light of the Supreme
Court’s ruling in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), which held
that retroactive application of Subchapter I of SORNA II is nonpunitive and does
not violate the constitutional prohibition against ex post facto laws. Mr. Cao filed a
brief in opposition to the Application for Summary Relief on January 3, 2022,
asserting that application of SORNA II to him is an unconstitutional ex post facto
violation pursuant to the Supreme Court’s more recent decision in Commonwealth
v. Santana, 266 A.3d 528 (Pa. 2021),3 because he committed his offenses before the
enactment of any sex offender registration laws.4
Analysis
1. Standard of Review
This Court may grant an application for summary relief if the moving party’s
right to judgment is clear and no material issues of fact are in dispute. See Pa.R.A.P.
1532(b); Eleven Eleven Pa., LLC v. State Bd. of Cosmetology, 169 A.3d 141, 145
(Pa. Cmwlth. 2017). In ruling on an application for summary relief, this Court must
3
The Supreme Court decided Santana on December 22, 2021, after PSP filed its
Application for Summary Relief and supporting brief in this matter.
4
Following our October 16, 2019 Memorandum Opinion and Order resolving PSP’s
Preliminary Objections, the only claims that remain are Mr. Cao’s ex post facto and due process
claims. With regard to due process, Mr. Cao challenges SORNA II’s “irrebuttable” presumption
that sex offenders as a group are highly likely to reoffend and asserts that SORNA II’s registration
requirements violate his right to reputation. Although PSP addresses these claims in its
Application for Summary Relief and supporting brief, Mr. Cao fails to address them in his
responsive brief. Mr. Cao also has not put forth any material issues of fact or sought to present
any evidence in support of these claims, even though he filed his Amended Petition for Review in
2018. Thus, it appears that Mr. Cao has abandoned his due process claims, and we will not address
them.
4
“‘view the evidence of record in the light most favorable to the non-moving party
and enter 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
(citation omitted).
2. Recent Supreme Court Precedent
Since Mr. Cao filed his Amended Petition for Review, our Supreme Court has
made several pronouncements regarding the ex post facto implications of
Pennsylvania’s sex offender registration scheme. The three decisions most relevant
to this matter are Lacombe, T.S. v. Pennsylvania State Police, 241 A.3d 1091 (Pa.
2020) (per curiam), and Santana.
In Lacombe, decided in July 2020, the Supreme Court considered whether
Subchapter I of SORNA II was punitive and, thus, an unconstitutional ex post facto
law. The Court observed that the “General Assembly expressly declared that
Subchapter I ‘shall not be construed as punitive.’” Lacombe, 234 A.3d at 618
(quoting 42 Pa. C.S. § 9799.51(b)(2)). The Court further noted that, in enacting
SORNA II, the General Assembly made a number of “significant changes” from
SORNA I to “alleviate many of the concerns expressed in Muniz.” Id. at 619, 626.
Applying the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144(1963), for determining whether a statute constitutes punishment, the Supreme Court
concluded that “Subchapter I [of SORNA II] is nonpunitive and does not violate the
constitutional prohibition against ex post facto laws.” Id. at 626-27.
Shortly after Lacombe, in December 2020, the Supreme Court issued a per
curiam Order in T.S., reversing an en banc decision of this Court and extending
Lacombe’s holding to individuals whose offenses were committed before the
5
enactment of any sex offender registration scheme, in light of Lacombe.5 See also
B.W. v. Pa. State Police, 252 A.3d 643 (Pa. 2020) (per curiam) (reversing and
remanding an en banc decision of this Court on the same grounds, i.e., that
Subchapter I of SORNA II does not constitute punishment and is not an ex post facto
law, even as applied to an offender who committed his triggering offenses before
any sex offender registration scheme existed). Since 2020, this Court has
consistently applied Lacombe and T.S. to petitioners whose underlying offenses pre-
dated the enactment of all sex offender registrations laws. See, e.g., Zweifel v. Pa.
State Police (Pa. Cmwlth., No. 593 M.D. 2018, filed May 24, 2022); Wetzel v. Pa.
State Police (Pa. Cmwlth., No. 362 M.D. 2018, filed July 14, 2021); R.O. v. Blocker
(Pa. Cmwlth., No. 256 M.D. 2020, filed May 24, 2021); Lusik v. Pa. State Police
(Pa. Cmwlth., No. 405 M.D. 2017, filed Jan. 26, 2021).
More recently, in Santana, decided in 2021, the Supreme Court was asked to
determine whether Muniz’s holding – that applying SORNA I retroactively to
offenders who committed their offenses before SORNA I’s enactment was an
unconstitutional ex post facto law – “applie[d] with equal force to offenders whose
triggering offenses occurred in another state.” Santana, 266 A.3d at 529-30. In
Santana, the defendant committed rape in New York in 1983 and was subject to
lifetime registration in New York after the enactment of its sex offender registration
law in 1995. Id. at 530. When the defendant moved to Pennsylvania in 2015, he
was subject to lifetime registration under SORNA I. Id. at 531. He later pled guilty
5
The Supreme Court’s Order in T.S. stated: “[T]he order of the Commonwealth Court is
REVERSED. See Commonwealth v. Lacombe, . . . 234 A.3d 602 ([Pa.] 2020) (holding that
Subchapter I of [SORNA II] does not constitute criminal punishment and is not an ex post facto
law).”
6
to the criminal charge of failure to comply with his registration requirements under
SORNA I. Id.On appeal, the defendant “argued that applying SORNA I retroactively to his
1983 New York offense constituted an ex post facto violation no different from the
one found in Muniz.” Id. at 531-32. The Commonwealth argued that Muniz did not
apply “because [the defendant] did not face an increase in punishment when he
moved from New York to Pennsylvania” since he was already required to register
for life under New York law. Id. at 535. The Supreme Court recognized that, for
purposes of an ex post facto analysis, it was irrelevant whether Pennsylvania and
New York “impose[d] the same or different registration periods” or “whether a new
resident’s crossing of Pennsylvania’s borders actually increased the length of
punishment. It does not even matter where [the defendant] committed the triggering
offense. For present purposes, what matters most is when that crime occurred.” Id.
at 536 (emphasis added). The Santana Court then explained the framework for
determining whether a law is ex post facto as follows:
First, a court must ask when the initial offense was committed. Second,
the court must ask whether the challenged law was enacted after the
occurrence of the triggering offense and was then applied retroactively.
If so, the final question is whether that retroactive law is punitive or
increases the penalty for the existing crime.
Id. at 537.
Applying that analysis, the Santana Court held that Muniz applied to offenders
whose triggering offenses occurred in another state prior to SORNA I’s enactment.
Id. at 529-30. Therefore, because SORNA I imposed registration requirements that
did not exist at the time of the defendant’s triggering offense in 1983, the Court
7
concluded that retroactive application of SORNA I to him was punitive and an
unconstitutional ex post facto law under Muniz. Id. at 538-39.
3. Application of Supreme Court Precedent to this Case
In its Application for Summary Relief, PSP asserts that Mr. Cao’s ex post
facto claim is foreclosed by Lacombe and T.S., which held that Subchapter I of
SORNA II is nonpunitive and not an ex post facto law, even when applied to
individuals whose offenses pre-dated the enactment of any sex offender registration
law. Mr. Cao asserts, on the other hand, that Santana held that the only relevant
inquiry in determining whether application of a law is an ex post facto violation is
when the triggering offense was committed. As such, Mr. Cao contends that because
he committed his offenses in 1995, before the enactment of any sex offender
registration laws, SORNA II is an ex post facto law as applied to him under the
Supreme Court’s reasoning in Santana.6 After careful review, we disagree with Mr.
Cao.
We conclude that Mr. Cao has misconstrued Santana’s limited holding.
While Santana involved a defendant whose triggering offenses pre-dated all sex
offender registration laws, Santana involved the retroactive application of SORNA
I, which was declared an unconstitutional ex post facto violation in Muniz. The
precise issue before the Santana Court was whether Muniz’s holding, declaring
SORNA I unconstitutional when retroactively applied to offenders whose offenses
pre-dated the statute’s enactment, applied equally to offenders who committed their
triggering offenses in another state.
At issue here, however, is Mr. Cao’s registration obligation under SORNA II,
which amended SORNA I in response to Muniz and added new provisions.
6
Pennsylvania’s first sex offender registration statute, Megan’s Law, took effect in April
1996. It is undisputed that Mr. Cao committed his underlying offenses in May 1995.
8
Significantly, the General Assembly added Subchapter I of SORNA II, which
provides that its registration requirements shall apply to individuals who were
“required to register with [PSP] under a former sexual offender registration law of
this Commonwealth on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired.” 42 Pa. C.S. § 9799.52(2) (emphasis
added).7 At the time of Mr. Cao’s convictions in 2000, Megan’s Law II was in effect,
which required lifetime registration for offenders who, like Mr. Cao, had been
convicted of aggravated indecent assault. Mr. Cao began his registration
requirement in September 2003 when he was released from prison. Because Mr.
Cao was subject to lifetime registration under Megan’s Law II, and his registration
period had not expired at the time of SORNA II’s enactment, Subchapter I applies
to him and requires his continued lifetime registration. See 42 Pa. C.S. § 9799.52(2).
Notably, as we recognized in our prior Memorandum Opinion, Mr. Cao is subject to
the same registration obligation that has applied to him since he was convicted in
2000 under Megan’s Law II; SORNA II did not increase his period of registration.
We conclude that Lacombe and T.S. are dispositive of Mr. Cao’s ex post facto
claim, as those decisions also involved the application of Subchapter I of SORNA
II. In Lacombe, the Supreme Court held that “Subchapter I [of SORNA II] is
nonpunitive and does not violate the constitutional prohibition against ex post facto
laws.” Lacombe, 243 A.3d at 626-27 (emphasis added). In T.S., the Supreme Court
extended Lacombe’s holding to individuals, like Mr. Cao, whose triggering offenses
7
Section 9799.52 of Subchapter I contains two subsections. Subsection (1) applies to
individuals who committed their offenses between April 22, 1996, and December 20, 2012, whose
registration periods have not expired. See 42 Pa. C.S. § 9799.52(1). Subsection (2), relevant here,
applies to individuals who were required to register with PSP between April 22, 1996, and
December 20, 2012, under pre-SORNA law whose registration periods have not expired. See id.
§ 9799.52(2).
9
were committed before the enactment of any sex offender registration laws. In fact,
in Santana, which was decided one year after Lacombe and T.S., the Supreme Court
reaffirmed its holding in Lacombe, stating “that ‘Subchapter I [of SORNA II] does
not constitute criminal punishment, and [any] ex post facto claims [] necessarily
fail.’” Santana, 266 A.3d at 530 n.7 (quoting Lacombe, 243 A.3d at 626-27). Thus,
Lacombe and T.S. are still good law and are binding on this Court.8
In his brief, Mr. Cao asserts, incorrectly, that he “is registering under [SORNA
II] as he was deemed to qualify based on his previous registration requirements under
the previous version of SORNA (SORNA I),” which was declared unconstitutional
in Muniz and Santana. Cao Br. at 5 (unpaginated). As explained above, however,
Mr. Cao’s initial registration obligation arose under Megan’s Law II. Mr. Cao also
relies extensively on the Santana Court’s ex post facto analysis in arguing that
SORNA II is punitive as applied to him, but that analysis was being applied to a
statute, SORNA I, that had already been declared punitive in Muniz. Subchapter I
of SORNA II, which applies to Mr. Cao, was declared nonpunitive and not an ex
post facto law in Lacombe.
8
We note that our sister appellate court, the Pennsylvania Superior Court, has similarly
applied the Santana and Lacombe holdings in a case involving a defendant whose offenses pre-
dated the enactment of any sex offender registration laws. See Com. v. Cruz (Pa. Super., Nos. 207
& 208 EDA 2021, filed June 24, 2022) (unreported memorandum) (concluding that, under
Santana, the defendant’s registration under SORNA I was an unconstitutional ex post facto
violation as applied to offenses that pre-dated the enactment of any sex offender registration
scheme, vacating his registration requirements under SORNA I, and remanding “for the [trial]
court to impose, and provide proper notification of, the applicable registration requirements under
Subchapter I of SORNA II,” citing Lacombe) (emphasis added).
10
Therefore, we agree with PSP that Mr. Cao’s ex post facto claim is foreclosed
by our Supreme Court’s rulings in Lacombe and T.S.9
Conclusion
Accordingly, because we conclude that PSP’s right to relief is clear and no
material issues of fact are in dispute, we grant PSP’s Application for Summary Relief
and dismiss Mr. Cao’s Amended Petition for Review.
____________________________
ELLEN CEISLER, Judge
9
In its brief, PSP also argues, in the alternative, that even if this Court were to conclude
that Mr. Cao is no longer obligated to register under SORNA II, he has an independent obligation
to register as a sex offender under federal law. However, we need not address this claim, because
we conclude that Mr. Cao is still required to register under SORNA II.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Huu Cao, :
Petitioner :
:
v. : No. 512 M.D. 2015
:
The Pennsylvania State Police of :
The Commonwealth of Pennsylvania, :
Respondent :
ORDER
AND NOW, this 4th day of August, 2022, we hereby GRANT the Application
for Summary Relief filed by the Pennsylvania State Police of the Commonwealth of
Pennsylvania and DISMISS Huu Cao’s Amended Petition for Review.
____________________________
ELLEN CEISLER, Judge