R. R. v. PSP ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R. R., :
Petitioner :
:
v. : No. 350 M.D. 2021
: Submitted: March 17, 2023
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: May 12, 2023
Before the Court is the preliminary objection of the Pennsylvania State
Police (State Police) that demurs to R.R.’s petition for review seeking declaratory
and injunctive relief.1 R.R. contends, inter alia, that the registration and reporting
requirements under the Sexual Offender Registration and Notification Act2 (SORNA
II) are punitive as applied to him in violation of the ex post facto clauses of the
1
R.R., proceeding pro se, labeled his petition as “Action in Mandamus.” Petition at 1. The
substance of the petition asserts that the current sexual offender registration statute is an improper
ex post facto law as applied to R.R. and asks this Court to order that his records from the sex
offender registry be removed because R.R. has fulfilled his 10-year registration requirement under
the former sexual offender registration statute. Mandamus was not an appropriate form of action
to seek the relief requested because the State Police has no mandatory duty to change R.R.’s
registration requirements. Nevertheless, we construe R.R.’s pleading as a petition for review
seeking declaratory and injunctive relief despite R.R.’s mislabeling of the petition as a petition for
a writ of mandamus. See Taylor v. Pennsylvania State Police, 132 A.3d 590, 600 (Pa. Cmwlth.
2016).
2
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.
United States and Pennsylvania Constitutions.3 R.R. requests this Court to end his
sexual offender registration under SORNA II. We sustain the State Police’s
preliminary objection and dismiss R.R.’s petition for review.
Petition for Review
On October 4, 2021, R.R. filed a petition for review, which averred the
following. On January 19, 2000, R.R. pleaded guilty to rape and corruption of
minors and received an aggregate sentence of 11 to 22 years with 23 years of
consecutive probation. On July 31, 2012, R.R. was paroled to a community
corrections center and registered as a sexual offender for a period of 10 years.
Petition, Exhibit C at 3.4 By letter dated June 1, 2021, the State Police notified R.R.
that his sexual registration is “lifetime” under SORNA II. Petition, Exhibit D.
R.R. asserts that the sexual offender registration law, former 42 Pa. C.S.
§§9791-9799.6, commonly known as Megan’s Law I, which was in effect at the time
he committed the offenses in 1998, governs his registration. Accordingly, the State
Police’s retroactive application of SORNA II, a punitive law, violates the
constitutional prohibition against ex post facto laws. Petition at 3. R.R. asserts that
only a “sexually violent predator” was subject to lifetime registration under Megan’s
Law I, and he was not determined to be a sexually violent predator. Petition at 3.
3
The United States Constitution provides, in pertinent part, that “[n]o . . . ex post facto Law shall
be passed.” U.S. CONST. art. I, §9. The Pennsylvania Constitution likewise provides, in pertinent
part, “[n]o ex post facto law . . . shall be passed.” PA. CONST. art. I, §17. “[T]he ex post facto
clauses of both constitutions are virtually identical, and the standards applied to determine an ex
post facto violation are comparable.” Evans v. Pennsylvania Board of Probation and Parole
(PBPP), 820 A.2d 904, 909 (Pa. Cmwlth. 2003) (citing Commonwealth v. Young, 637 A.2d 1313,
1317 n.7 (Pa. 1993)).
4
It states, in relevant part, “[y]ou will be required to register for a minimum of ten (10) years and
may be required to register for a period up to your lifetime. You will be notified by the
Pennsylvania State Police when you have completed your registration period.” Petition, Exhibit
C at 3.
2
R.R. asserts that in granting him parole in 2012, the Pennsylvania Parole Board
determined that he was “sufficiently rehabilitated and posed no threat to public
safety[.]” Petition at 3. R.R. requests that this Court direct the State Police to
remove his records from the sex offender registry because he has fulfilled his 10-
year registration requirement imposed on him by Megan’s Law I.
The State Police filed a preliminary objection in the nature of a
demurrer,5 asserting that SORNA II is not punitive. Accordingly, its retroactive
application to R.R. does not violate the constitutional bar to ex post facto laws, as
the Pennsylvania Supreme Court held in Commonwealth v. Lacombe, 234 A.3d 602(Pa. 2020). In his brief, R.R. responds that at the time he entered the plea agreement,
the Commonwealth assured him that he was required to register only for 10 years,
“provided [R.R.] was not determined to be a sexually violent predator (he was not),
should he agree to plead guilty (he did) in a consolidated manner.” R.R. Brief at 1.
Relying on the Supreme Court’s decision in Commonwealth v. Martinez, 147 A.3d
517 (Pa. 2016), R.R. argues that he was entitled to the benefit of the bargain with the
Commonwealth that he was subject to registration as a sexual offender for only 10
years.
SORNA History
We begin with a review of Pennsylvania’s sex offender registration
laws. Beginning in 1995, the General Assembly enacted a series of statutes requiring
convicted sex offenders living in the Commonwealth to register with the State Police
for varying periods of time. The first of these statutes was Megan’s Law I, effective
5
The State Police also raised a preliminary objection to the petition for improper service. By order
of November 29, 2021, this Court ordered R.R. to serve his petition on the State Police and the
Attorney General in person or by certified mail as required by PA. R.A.P. 1514(c) and file with
this Court a certificate of service within 14 days of the entry of the order, which R.R. did.
3
April 22, 1996. Then, in 2000, the General Assembly enacted what is commonly
referred to as Megan’s Law II, formerly 42 Pa. C.S. §§9791-9799.7. In 2004,
Megan’s Law II was succeeded by Megan’s Law III, formerly 42 Pa. C.S. §§9791-
9799.9, which remained in effect until 2012. SORNA I, 42 Pa. C.S. §§9799.10-
9799.41, was enacted on December 20, 2011, to replace Megan’s Law III, and it
went into effect on December 20, 2012.
SORNA I was enacted, inter alia, to “comply with [federal law] and to
further protect the safety and general welfare of the citizens of this Commonwealth
by providing for increased regulation of sexual offenders, specifically as that
regulation relates to the registration of sexual offenders and community notification
about sexual offenders.” Taylor, 132 A.3d at 595 (quoting former 42 Pa. C.S.
§9799.11(b)(1)). SORNA I established, for the first time, a three-tier classification
system for sexual offenders. The sex “offender’s tier status [wa]s determined by the
offense committed and [it] impact[ed] the length of time an offender [wa]s required
to register and the severity of punishment should an offender fail to register or
provide false registration information.” Taylor, 132 A.3d at 595 (citing former 42
Pa. C.S. §9799.15).
SORNA I increased the length of registration for many offenders;
required quarterly in-person reporting; and placed personal information about the
registrant, such as his home address and place of employment, on the internet. In
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court held
SORNA I to be unconstitutional because these provisions were punitive and its
retroactive effect violated the constitutional prohibition against ex post facto laws.6
6
In Muniz, the petitioner had been convicted of two counts of indecent assault against a minor less
than 13 years of age. At the time of his conviction, Megan’s Law III required registration with the
State Police for 10 years following the petitioner’s release from incarceration. However, the
4
Following the Supreme Court’s decision in Muniz, the General
Assembly enacted SORNA II, which has two subchapters. Relevant here is
Subchapter I, which applies to individuals who were:
(1) convicted of a sexually violent offense committed on or
after April 22, 1996, but before December 20, 2012, whose
period of registration with the Pennsylvania State Police, as
described in section 9799.55 (relating to registration), has not
expired; or
(2) 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, whose
period of registration has not expired.
42 Pa. C.S. §9799.52. In SORNA II, the General Assembly declared its intent that
the statute “shall not be construed as punitive.” 42 Pa. C.S. §9799.51(b)(2).
In this new statutory scheme, the General Assembly removed a number
of crimes from the list of triggering offenses and reduced the frequency with which
an offender must report in person to the State Police. Those convicted of one of the
triggering offenses must register either for a period of 10 years or for life. 42 Pa.
C.S. §9799.55(a), (b). Individuals convicted of rape, involuntary deviate sexual
intercourse, sexual assault, aggravated indecent assault, and incest with a child under
the age of 12 are subject to lifetime registration. 42 Pa. C.S. §9799.55(b). These
offenders must report in person once a year at an approved facility to verify their
petitioner absconded before sentencing. By the time he was apprehended and sentenced, SORNA
I was in effect. Under SORNA I’s new classification system, the petitioner was subject to lifetime
registration. The petitioner challenged SORNA I as unconstitutional because it retroactively
increased the length of his registration and notification requirements. The Pennsylvania Supreme
Court held that the retroactive application of SORNA I’s new tier system was an unconstitutional
ex post facto law, to the extent that it imposed a lifetime registration requirement that was not
applicable when the petitioner committed his crimes.
5
residence and be photographed. Sexually violent predators7 must report in person
four times per year. 42 Pa. C.S. §§9799.54(b), 9799.60(a)-(b). They also must
contact the State Police within three days of any change to their registration
information, including changes to residence, employment, or education. Generally,
failure to comply with the registration requirements results in a felony prosecution.
42 Pa. C.S. §9799.60(e); 18 Pa. C.S. §4915.2(b), (c).
Subchapter I also establishes a website to be operated in conjunction
with the statewide registry. The website publishes information about each registered
sexual offender including name and known aliases; year of birth; residence; the name
or location of the school at which the offender is enrolled as a student; employment
location; a photograph updated yearly; a physical description of the offender; the
license plate number and a description of any vehicle owned or registered to the
offender; a status report regarding whether the offender is compliant with his
registration requirements; an indication of whether the offender’s victim was a
minor; a description of the offense committed by the offender; the dates of the
7
Section 9799.53 of SORNA II defines “sexually violent predator” as
[s]ubject to section 9799.75 (relating to construction of subchapter), a person who
has been convicted of a sexually violent offense and who is determined to be a
sexually violent predator under section 9799.58 (relating to assessments) due to a
mental abnormality or personality disorder that makes the person likely to engage
in predatory sexually violent offenses or who has ever been determined by a court
to have a mental abnormality or personality disorder that makes the person likely
to engage in predatory sexually violent offenses under a former sexual offender
registration law of this Commonwealth. The term includes an individual
determined to be a sexually violent predator where the determination occurred in
the United States or one of its territories or possessions, another state, the District
of Columbia, the Commonwealth of Puerto Rico, a foreign nation or by court
martial.
42 Pa. C.S. §9799.53.
6
offense and conviction; and the location of the offender’s temporary shelter, if the
offender is homeless. 42 Pa. C.S. §9799.63(c).
A lifetime registrant may petition the sentencing court to be removed
from the statewide registry if
[a]t 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.
42 Pa. C.S. §9799.59(a)(1). The lifetime registrant must demonstrate by “clear and
convincing evidence” that he no longer poses a risk, or a threat of risk, to the public
or any individual person. 42 Pa. C.S. §9799.59(a)(5).
Analysis
“In ruling on a demurrer, the court must accept as true all well-pleaded
allegations in the petition for review and all inferences reasonably deduced
therefrom.” Pennsylvania Medical Providers Association v. Foster, 582 A.2d 888,
892 (Pa. Cmwlth. 1990). “We will sustain a demurrer only when it appears with
certainty that the law permits no recovery if the facts are as pleaded.” Id. Further,
in considering preliminary objections to a petition for review, the Court “is not
bound by legal conclusions, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion encompassed in the petition for review.”
Armstrong County Memorial Hospital v. Department of Public Welfare, 67 A.3d
160, 170 (Pa. Cmwlth. 2013).
R.R. was required to register as a sexual offender under Megan’s Law
I, and he had not fulfilled his period of registration by December 20, 2012, and this
7
timing made SORNA II’s registration requirements applicable to him. 42 Pa. C.S.
§9799.52. R.R. asserts that Subchapter I of SORNA II is punitive, but this assertion
was rejected by our Supreme Court’s decision in Lacombe, 234 A.3d 602. In that
case, two sex offenders, Lacombe and Witmayer, petitioned to terminate their sexual
offender registration requirements, asserting that the retroactive application of
Subchapter I of SORNA II to them was punitive and, as such, an unconstitutional ex
post facto law. Lacombe was convicted of involuntary deviate sexual intercourse in
1997 and required to comply with the 10-year registration requirement under
Megan’s Law I upon his release from prison. Lacombe was released from prison in
2005, and before his 10-year period of registration would have ended, SORNA II
made his registration a lifetime requirement. The Supreme Court held that
Subchapter I of SORNA II is not punitive and does not violate the constitutional bar
to ex post facto laws. In doing so, the Supreme Court explained 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 [State Police]. 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.
The Supreme Court explained that SORNA II “made a number of
material changes” to SORNA I in order “[t]o achieve its dual goals of ensuring
public safety without creating another unconstitutionally punitive scheme.”
Lacombe, 234 A.3d at 615. Among other things, under Subchapter I of SORNA II
8
(and unlike SORNA I) a lifetime registrant may 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.
The Supreme Court then proceeded to discuss each of the factors
enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963),8 to determine
whether Subchapter I of SORNA II was punitive in effect. 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 (quoting Hudson v. United States, 522 U.S. 93, 100
(1997)).
8
In Mendoza-Martinez, the Supreme Court identified the following factors for considering
whether a law is punitive in effect:
[w]hether the sanction involves an affirmative disability or restraint,[] whether it
has historically been regarded as a punishment,[] whether it comes into play only
on a finding of scienter,[] whether its operation will promote the traditional aims of
punishment – retribution and deterrence,[] whether the behavior to which it applies
is already a crime,[] whether an alternative purpose to which it may rationally be
connected is assignable for it,[] and whether it appears excessive in relation to the
alternative purpose assigned.[]
372 U.S. at 168-69 (footnotes omitted).
9
In light of Lacombe, we must reject R.R.’s claim that Subchapter I of
SORNA II is punitive. See also R.F.M. v. Pennsylvania State Police (Pa. Cmwlth.,
No. 495 M.D. 2019, filed October 4, 2021) (unreported)9 (holding that under
Lacombe, Subchapter I of SORNA II did not violate the ex post facto clause because
Subchapter I is not punitive in nature); R.H. v. Pennsylvania State Police (Pa.
Cmwlth., No. 699 M.D. 2018, filed January 12, 2021) (unreported).
In his brief in opposition to the State Police’s preliminary objection,
R.R. alleges, for the first time, that he entered into his plea agreement with the
Commonwealth’s assurance that he was required to register as a sexual offender for
only 10 years, “provided [R.R.] was not determined to be a sexually violent predator
(he was not), should he agree to plead guilty (he did) in a consolidated manner.”
R.R. Brief at 1. Relying on Martinez, 147 A.3d 517, R.R. argues that he is entitled
to specific performance of his plea agreement and, thus, not subject to lifetime
registration under SORNA II.
In Martinez, three sex offenders, Shower, Martinez, and Grace, who
had entered guilty pleas in separate cases to indecent assault while Megan’s Law
was in effect, filed petitions to enforce plea agreements or for writ of habeas corpus,
alleging that the increased registration requirements under SORNA I violated their
plea agreements and were unconstitutional. In granting the petitions, the trial court
found that Shower and Martinez entered their plea to indecent assault in exchange
for the Commonwealth’s withdrawal of the charge of aggravated indecent assault,
which would have triggered a lifetime registration as a sexual offender under
Megan’s Law. An indecent assault conviction under 18 Pa. C.S. §3126(a)(7)
9
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
10
required registration for only 10 years. Likewise, the trial court found that Grace
entered his plea in exchange for the Commonwealth’s nolle pros of the charge of
unlawful contact with a minor, which would have mandated a 10-year registration
requirement under Megan’s Law. Grace’s conviction of indecent assault under 18
Pa. C.S. §3126(a)(8) did not require him to register as a sexual offender under
Megan’s Law.
The Superior Court affirmed the trial court and reasoned that because
the offenders’ plea agreements contained conditions regarding their sexual offender
registration status, they should receive the benefit of their bargains. Martinez, 147
A.3d at 527-28 (citing Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super.
2013) (en banc)). Accordingly, the Superior Court held that Shower’s and
Martinez’s registration as sexual offenders was limited to the 10-year period
contemplated by their plea agreements, and Grace would not be required to register
as a sexual offender under the terms of his plea agreement. The Supreme Court
affirmed and adopted the Superior Court’s reasoning.
Here, R.R.’s petition for review alleges, in general, that he entered
consolidated guilty pleas to rape and corruption of minors. Petition at 1. The petition
includes the sentencing court’s handwritten notes, see Petition, Exhibit A, but not
the sentencing order. Simply, R.R. has not substantiated the claim in his brief that
the sentence imposed a 10-year period of registration.10
The State Police’s role in the SORNA statutory scheme is ministerial.
Thus, if the sentencing order includes a specific term of registration, the State Police
“is bound to apply the registration term included in the sentence and nothing more.”
10
R.R.’s statements in his brief about the terms of his plea agreement are not evidence and cannot
be considered. See Smith v. Beard, 26 A.3d 551, 558-59 (Pa. Cmwlth. 2011) (although petitioner
asserts additional explanations and facts in his brief in opposition to preliminary objections, a brief
is not a pleading, and we look only to the pleadings when considering preliminary objections).
11
Dougherty v. Pennsylvania State Police, 138 A.3d 152, 160 (Pa. Cmwlth. 2016)
(citing McCray v. Pennsylvania Department of Corrections, 872 A.2d 1127, 1133
(Pa. 2005)). If the sentencing order is silent on the term of registration, the State
Police must set the appropriate registration period established in 42 Pa. C.S.
§§9799.15, 9799.55.
It is not the duty of the State Police to inquire into the terms of an
underlying plea agreement. If the plea agreement contained a term that directed the
term of registration with the State Police as a sex offender, that matter must be
addressed to appropriate sentencing court. See Dougherty, 138 A.3d at 168.
Conclusion
For the foregoing reasons, we conclude that R.R.’s petition for review
fails to state a claim upon which relief could be granted. We thus sustain the State
Police’s preliminary objection in the nature of a demurrer and dismiss R.R.’s petition
for review without prejudice. If R.R. has a sentencing order showing that he was
required to register for 10 years under his plea agreement, R.R. may file an amended
petition for review within 30 days without seeking leave of Court. If the sentencing
order does not specify the length of registration, R.R.’s appropriate remedy is to file
a petition to enforce the plea agreement before the appropriate sentencing court
against the prosecuting entity, i.e., the Commonwealth.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
R. R., :
Petitioner :
:
v. : No. 350 M.D. 2021
:
Pennsylvania State Police, :
Respondent :
ORDER
AND NOW, this 12th day of May, 2023, the preliminary objection of
the Pennsylvania State Police to the above-captioned petition for review in the nature
of a demurrer is SUSTAINED. The petition is DISMISSED without prejudice. R.R.
may file an amended petition for review within 30 days without seeking leave of
court as set forth in the attached memorandum opinion.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita