R.H. v. PSP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R.H., :
Petitioner :
: No. 699 M.D. 2018
v. :
: Submitted: August 7, 2020
Pennsylvania State Police, et al., :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 12, 2021
Before the Court in our original jurisdiction are the preliminary
objections filed by the Pennsylvania State Police (PSP) to the petition for review in
the nature of a complaint (Petition) seeking declaratory and injunctive relief filed by
R.H.2,3 We sustain the preliminary objections and dismiss the Petition for failing to
state a claim upon which relief can be granted.
1
The decision in this case was reached before January 4, 2021, when Judge Leavitt served
as President Judge.
2
Although the PSP asserts that the Petition is an action in mandamus, the Petition itself
states that R.H. filed “this action” to “request [] declaratory and injunctive relief to redress the
violation of [constitutional] rights.” (Petition, ¶2.)
3
While the caption in the case lists the PSP as a respondent and contains an “et al.”
designation, the PFR does not name anyone else as a respondent.
On October 31, 2018, R.H. filed the Petition against the PSP, averring as
follows. In 2012, the prosecuting authorities charged R.H. with sex-related offenses
in four separate cases for conduct that he committed with respect to his four minor
nieces. On November 7, 2012, R.H. entered into an “open” plea agreement4 in all
four cases and pled guilty to several counts of aggravated indecent assault of a child,
corruption of minors, and indecent assault of a person less than 13 years of age. Prior
to sentencing, Petitioner underwent an evaluation by the Sexual Offenders
Assessment Board, which determined that he was a Sexually Violent Predator (SVP).
Thereafter, a court of common pleas sentenced R.H. After R.H. completed his term
of incarceration, he was placed under the supervision of the Sexual Offenders Unit of
Adult Probation and Parole to complete a five-year term of probation. At this point,
R.H. will be obligated under the Sexual Offender Registration and Notification Act
(SORNA I), former 42 Pa.C.S. §§9799.10-9799.41, to register as a sex offender for
life with the PSP. While on probation, R.H. violated the terms and conditions that
were imposed upon him in connection with his probation, and a court of common
pleas sentenced R.H. to one to three years’ imprisonment. (Petition, ¶¶6-13.)
In the Petition, R.H. alleges that in 2017, the lifetime sexual offender
registration requirements of SORNA I were declared unconstitutional by our
Supreme Court in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),5 as
contravening the ex post facto clause of the Pennsylvania Constitution. R.H. traces
An “open” plea agreement is one in which there is no negotiated sentence.
4
See
Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).
5
In Muniz, our Supreme Court held that the registration provisions of SORNA I were
punitive, such that application of those provisions to offenders who committed their crimes prior to
SORNA I’s effective date violated ex post facto principles.
2
the history of Pennsylvania’s “Megan’s Laws”6 and notes that the General Assembly
had replaced SORNA I with the Act of February 21, 2018, P.L. 27 (Act 10), 42
Pa.C.S. §§9799.10-9799.75, as amended by the Act of June 12, 2018, P.L. 140 (Act
29) (collectively, SORNA II). (Petition, ¶¶17, 24-34.) R.H. avers that SORNA II “is,
in [and] of itself, unconstitutional for the same reasons the Muniz Court found the old
SORNA unconstitutional.” (Petition, ¶29.) For relief, R.H. requests a declaration
confirming that SORNA II is unconstitutional and stating that he does not have to
register as a sex offender upon his release. In addition, he seeks an affirmative
injunction compelling the PSP to remove his name from the registration database.
(Petition, ¶¶34-35.)
6
As this Court has explained:
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 [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 [SORNA I] in 2012. On July 19, 2017, the Pennsylvania Supreme
Court handed down the decision in [Muniz], 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.
Rosenberger v. Wolf (Pa. Cmwlth., No. 283 M.D. 2018, filed November 7, 2019) (unreported), slip
op. at 2-3. See section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a).
3
On April 8, 2019, the PSP filed preliminary objections, asserting that
R.H. failed to state a claim cognizable at law, also known as a demurrer. The PSP
notes that the General Assembly had replaced SORNA I with SORNA II. The PSP
avers that SORNA II does not violate the ex post facto clause because it cured the
deficiencies that the Supreme Court outlined in Muniz when striking down SORNA I.
Alternatively, the PSP argued that SORNA II did not increase R.H.’s registration
requirements and is not punitive in nature; therefore, the Muniz rationale does not
apply to the registration requirements in Chapter I of SORNA II.
On July 8, 2019, the PSP filed a brief in support of its preliminary
objections. In turn, R.H. attempted to file a letter brief. However, by per curiam
order dated August 1, 2019, this Court declined to accept R.H.’s brief because it
failed to comply with numerous requirements of the Pennsylvania Rules of Appellate
Procedure. In this order, the Court directed R.H. to file an amended brief on or
before September 3, 2019. However, R.H. did not file an amended brief, and in a per
curiam order dated November 19, 2019, this Court informed the parties that it will
address the PSP’s preliminary objections without a brief filed by R.H.
In ruling on preliminary objections in the nature of a demurrer, the Court
must accept as true all well-pleaded material facts and all inferences reasonably
deducible therefrom. Barndt v. Pennsylvania Department of Corrections, 902 A.2d
589, 592 (Pa. Cmwlth. 2006). However, the Court is not required to accept as true
legal conclusions, unwarranted factual inferences, argumentative allegations, or
expressions of opinion. Armstrong County Memorial Hospital v. Department of
Public Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013) (en banc). A demurrer will not
be sustained unless the face of the pleadings shows that the law will not permit
recovery. Barndt, 902 A.2d at 592.
4
Generally, the ex post facto clause proscribes, among other laws,
“[e]very law that changes the punishment, and inflicts a greater punishment, than the
law annexed to the crime, when committed.” Muniz, 164 A.3d at 1196 (internal
citation omitted). Moreover, for a criminal or penal law to be deemed ex post facto it
must be retrospective, that is, it must apply to events occurring before its enactment,
and it must also disadvantage the offender affected by it, or, in other words, be
punitive in nature. See id. at 1196-97.
Here, R.H. committed his crimes prior to December 20, 2012, was
designated as an SVP, and was required to register for life under SORNA I. Under
Subchapter I of SORNA II, which would apply to R.H. if he were released from
incarceration today, R.H. would be subject to the statute’s lifetime registration
requirements. See Commonwealth v. Lacombe, 234 A.3d 602, 615-16 (Pa. 2020).7 In
a recent decision that was rendered after this matter was submitted for disposition, the
Supreme Court in Lacombe noted that
[i]n response to Muniz . . . the General Assembly enacted
Subchapter I, the retroactive application of which became
the operative version of SORNA for those sexual offenders
whose crimes occurred between April 22, 1996[,] and
December 20, 2012. In this new statutory scheme, the
General Assembly, inter alia, eliminated a number of
crimes that previously triggered application of SORNA and
reduced the frequency with which an offender must report
in person to the [PSP]. With regard to Subchapter I, the
General Assembly declared its intent that the statute “shall
not be considered as punitive.” 42 Pa.C.S. §9799.51(b)(2).
Lacombe, 234 A.3d at 615.
7
The pertinent section of SORNA II states that Subchapter I “shall apply to individuals who
were . . . required to register with the Pennsylvania State Police under a former sexual offender
registration law of this Commonwealth on or after April 22, 1996, but before December 20, 2012,
[and] whose period of registration has not expired.” 42 Pa.C.S. §9799.52(2).
5
The Supreme Court then explained that, in crafting the provisions of
Subchapter I of SORNA II, “the General Assembly made a number of material
changes to the operation of SORNA” in order “[t]o achieve its dual goals of ensuring
public safety without creating another unconstitutionally punitive scheme.” Id. at
616. Among other things, pursuant to Subchapter I of SORNA II, and unlike
SORNA I, “an SVP or lifetime reporter can [now] petition a court to be removed
from the statewide registry” by demonstrating with “clear and convincing evidence
that he or she no longer poses a risk, or a threat of risk, to the public or any individual
person.” Id. at 616-17.8
8
In this regard, the relevant parts of Subchapter I of SORNA II provide as follows:
(a) General rule.-- An individual required to register under section
9799.55(a.1) and (b) (relating to registration) may be exempt from the
requirement to register, the requirement to verify residence,
employment and enrollment in an educational institution, the
requirement to appear on the publicly accessible Internet website
maintained by the Pennsylvania State Police and all other
requirements of this subchapter if:
(1) At least 25 years have elapsed prior to filing a
petition with the sentencing court to be exempt from
the requirements of this subchapter, during which time
the petitioner has not been convicted in this
Commonwealth or any other jurisdiction or foreign
country of an offense punishable by imprisonment of
more than one year, or the petitioner’s release from
custody following the petitioner’s most recent
conviction for an offense, whichever is later.
(2) Upon receipt of a petition filed under paragraph
(1), the sentencing court shall enter an order directing
that the petitioner be assessed by the board. Upon
receipt from the court of an order for an assessment
under this section, a member of the board designated
by the administrative officer of the board shall conduct
an assessment of the petitioner to determine if the
relief sought, if granted, is likely to pose a threat to the
(Footnote continued on next page…)
6
The High Court then proceeded to thoroughly discuss each of the factors
enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963),9 to determine
(continued…)
safety of any other persons. The board shall establish
standards for evaluations and for evaluators conducting
assessments.
(3) The order for an assessment under this section shall
be sent to the administrative officer of the board within
10 days of the entry. No later than 90 days following
receipt of the order, the board shall submit a written
report containing the board’s assessment to the
sentencing court, the district attorney and the attorney
for the sexual offender.
(4) Within 120 days of filing the petition under
paragraph (1), the sentencing court shall hold a hearing
to determine whether to exempt the petitioner from the
application of any or all of the requirements of this
subchapter. The petitioner and the district attorney
shall be given notice of the hearing and an opportunity
to be heard, the right to call witnesses and the right to
cross-examine witnesses. The petitioner shall have the
right to counsel and to have a lawyer appointed to
represent the petitioner if the petitioner cannot afford
one.
(5) The sentencing court shall exempt the petitioner
from application of any or all of the requirements of
this subchapter, at the discretion of the court, only
upon a finding of clear and convincing evidence that
exempting the petitioner from a particular requirement
or all of the requirements of this subchapter is not
likely to pose a threat to the safety of any other person.
42 Pa.C.S. §9799.59(a)(1)-(5).
9
The Mendoza-Martinez factors are as follows:
(1) whether the sanction involves an affirmative disability or restraint;
(2) whether it has historically been regarded as a punishment; (3)
(Footnote continued on next page…)
7
whether Subchapter I of SORNA II was punitive in effect. See Lacombe, 234 A.3d at
620-25. In balancing these factors, our Supreme Court reasoned:
As the above Mendoza-Martinez analysis clearly reflects,
Subchapter I effected significant changes from the original
version of SORNA, retroactive application of which we
found unconstitutional in Muniz. To summarize, we find
three of the five factors weigh in favor of finding
Subchapter I nonpunitive. Additionally, we give little
weight to the fact Subchapter I promotes the traditional
aims of punishment and give significant weight to the fact
Subchapter I is narrowly tailored to its nonpunitive purpose
of protecting the public. As we have not found the requisite
“clearest proof” Subchapter I is punitive, we may not
override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty[.]
Lacombe, 234 A.3d at 626 (internal citations and quotation marks omitted).
Therefore, Supreme Court distinguished Muniz and its constitutional
assessment of SORNA I and held that “Subchapter I is nonpunitive and does not
violate the constitutional prohibition against ex post facto laws.” Id. at 626-27. See
also id. at 605 (“Subchapter I does not constitute criminal punishment, and the ex
post facto claims forwarded by [Lacombe] necessarily fail.”); Commonwealth v.
Butler, 226 A.3d 972, 993 (Pa. 2020) (concluding that for purposes of a right to a jury
trial and Apprendi v. New Jersey, 530 U.S. 466 (2000), the lifetime registration,
(continued…)
whether it comes into play only on a finding of scienter; (4) whether
its operation will promote the traditional aims of punishment, that is,
retribution and deterrence; (5) whether the behavior to which it
applies is already a crime; (6) whether an alternative purpose to which
it may rationally be connected is assignable for it; and (7) whether it
appears excessive in relation to the alternative purpose assigned.
372 U.S. at 146.
8
notification, and counseling requirements applicable to an SVP under SORNA II “do
not constitute criminal punishment”).
Given the recent decision by our Supreme Court in Lacombe, we
conclude that R.H. has failed to state a viable cause of action because that case has
foreclosed his ex post facto claim to the registration requirements of Subchapter I of
SORNA II. As a final housekeeping matter, we note that on August 20, 2019, R.H.
filed a Motion for Release of Notes of Testimony and All Other Relevant Documents
and, also, a Motion for Entry of Judgment on July 8, 2020. R.H.’s first motion
requests this Court to “issue [a]n order to compel the Deputy Attorney General to
release copies of any and all notes of testimony which constitutes the record of the
criminal action.” (Motion, 8/20/2019, at 1.) However, R.H.’s purported discovery
request is procedurally improper because the Rules of Civil Procedure require R.H. to
first serve the Deputy Attorney General with this discovery request and permit the
Deputy Attorney General to serve a response, prior to seeking a court order
compelling disclosure. See Pa.R.C.P. Nos. 4009.11, 4009.12, 40019(g)(1).10
Moreover, R.H.’s second motion requests that judgment be entered in his favor even
though he failed to file and perfect an acceptable amended brief in opposition to the
preliminary objections. For the reasons discussed above, R.H.’s Petition has failed to
state a viable ex post facto claim and, therefore, he is not entitled to a judgment in his
favor. Therefore, we deny R.H.’s motions.
10
Parenthetically, the Court is unable to decipher how the notes of testimony are relevant, or
would aid or assist R.H. in the development of his claim, considering that he has averred all the
facts necessary to resolve this dispute.
9
Accordingly, and for the reasons stated above, we sustain the
preliminary objections of the PSP, dismiss R.H.’s Petition, and deny R.H.’s above-
mentioned motions.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R.H., :
Petitioner :
: No. 699 M.D. 2018
v. :
:
Pennsylvania State Police, et al., :
Respondents :
ORDER
AND NOW, this 12th day of January, 2021, the preliminary objections
filed by the Pennsylvania State Police to the petition for review in the nature of a
complaint (Petition) seeking declaratory and injunctive relief filed by R.H. are
hereby SUSTAINED and the Petition is DISMISSED. The two motions filed by
R.H. during the pendency of this case, particularly the Motion for Release of Notes
of Testimony and All Other Relevant Documents and the Motion for Entry of
Judgment are hereby DENIED.
________________________________
PATRICIA A. McCULLOUGH, Judge