Com. v. Born, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN DONALD BORN :
:
Appellant : No. 30 WDA 2022
Appeal from the Judgment of Sentence Entered December 1, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005815-2020
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED: August 25, 2023
I agree that Appellant’s judgment of sentence is properly affirmed. I
write separately on two grounds.
First, I disagree with the Majority’s reliance upon Pa.R.A.P. 302(a) to
conclude that, because Appellant did not appeal the PCRA court’s 2017 order
that purported to require Appellant to register in accordance with then-defunct
Megan’s Law II, “Appellant waived any challenge to the legality of that
sentence.” Majority Memorandum at 7 n.5. Aside from the fact that a direct
appeal is not the only means to challenge the legality of a sentence or a duty
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* Retired Senior Judge assigned to the Superior Court.
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to register as a sexual offender,1 Rule 302(a) has no bearing on an appeal
from a different order in a wholly separate case. If Appellant is precluded
from challenging the 2017 order that was entered in the underlying indecent
assault case, it is pursuant to res judicata or collateral estoppel, not through
application of Rule 302(a) in this separate matter involving a different crime.
Second, I find the question of the propriety of the PCRA court’s 2017
mandate that Appellant continue registering in the absence of a statute
requiring it to be irrelevant in the case before us. If Appellant’s conviction
had been based upon failing to comply with the PCRA court’s order, the
legitimacy of that order and the impact of Appellant’s failure to appeal would
be germane. However, Appellant actually did comply with that order for
years. His conviction in this case is instead pursuant to 18 Pa.C.S. § 4915.2
based upon his failure to abide by the registration requirements of the
subsequently-enacted Subchapter I which mandated his registration in 2019
and 2020.
Section 4915.2 provides, in pertinent part, as follows:
(a) Offense defined.- An individual who is subject to registration
under 42 Pa.C.S. 9799.55(a), (a.1) or (b) (relating to registration)
or who was subject to registration under former 42 Pa.C.S. § 9793
(relating to registration of certain offenders for ten years) commits
an offense if the individual knowingly fails to:
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1 See, e.g., Commonwealth v. McIntyre, 232 A.3d 609, 617 (Pa. 2020)
(observing that claims involving the legality of a sentence are cognizable
under the PCRA); Commonwealth v. Lacombe, 234 A.3d 602, 618 (Pa.
2020) (concluding that there is no exclusive procedural mechanism for
challenging the obligation to register as a sexual offender).
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(1) register with the Pennsylvania State Police as required
under § 9799.56 (relating to registration procedures and
applicability);
....
(f) Applicability.--This section applies to:
(1) An individual who committed an offense set forth in 42 Pa.C.S.
§ 9799.55 on or after April 22, 1996, but before December 20,
2012, and whose period of registration under 42 Pa.C.S.
§ 9799.55 has not expired.
(2) An individual who was 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.
18 Pa.C.S. § 4915.2 (emphases added). The Commonwealth maintained that
Appellant had a duty to comply with Subchapter I’s ten-year registration
requirement outlined in 42 Pa.C.S. § 9799.55(a)(1)(i)(A) and (B). Section
9799.55(a) imposes a registration “period of [ten] years” upon, inter alia:
(1)(i)(A) Individuals convicted within this Commonwealth of any
of the following offenses committed on or after April 22, 1996, but
before December 20, 2012:
....
18 Pa.C.S. § 3126 (relating to indecent assault) where the
offense is graded as a misdemeanor of the first degree or
higher.[2]
....
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2 The § 3126(a)(7) offense is graded as either a first-degree misdemeanor or
a third-degree felony. See 18 Pa.C.S. § 3126(b)(3).
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(B) Individuals convicted within this Commonwealth of an
offense set forth in clause (A) 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, whose period of
registration has not expired.
42 Pa.C.S. § 9799.55(a)(1)(i)(A), (B) (emphasis added). In defining the
scope and applicability of Subchapter I, §§ 9799.52 and 9799.54 of SORNA II
also reference individuals who committed sexual offenses and/or were
required to register between the applicability of Megan’s Law I and SORNA I
whose “period of registration” had not expired as of SORNA II’s enactment.
See 42 Pa.C.S. §§ 9799.52(1), (2); 9799.54 (a)(1).
Hence, the salient question in this appeal is the meaning of the terms
“period or registration” and “expired” as used in Subchapter I. This poses a
question of statutory interpretation. As such, the following principles pertain.
“The object of all interpretation and construction of statutes is to ascertain
and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a).
“The plain language of the statute is the best indicator of the legislature’s
intent. To ascertain the plain meaning, this Court must consider the operative
statutory language in context and give words and phrases their common and
approved usage.” Commonwealth v. Chesapeake Energy Corp., 247 A.3d
934, 942 (Pa. 2021).
This Court must give effect and ascribe meaning to each word and
provision chosen by our legislature and assume that none is mere surplusage.
See, e.g., Commonwealth v. McClelland, 233 A.3d 717, 734 (Pa. 2020)
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(“Some meaning must be ascribed to every word in a statute . . . and there is
a presumption that disfavors interpreting language as mere surplusage.”); 1
Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible, to give effect
to all its provisions.”). Statutes or portions thereof which relate to the same
subjects are in pari materia and “shall be construed together, as possible, as
one statute.” 1 Pa.C.S. § 1932(b). Further, “we are to assume that the
General Assembly does not intend an absurd result to flow from the
construction of any statute.” Commonwealth v. Shiffler, 879 A.2d 185, 194
(Pa. 2005).
Provisions of the Crimes Code must “be construed according to the fair
import of their terms[,] but when the language is susceptible of differing
constructions[,] it shall be interpreted to further the general purposes stated
in [Title 18] and the special purposes of the particular provision involved.” 18
Pa.C.S. § 105. However, “[u]nder the rule of lenity, penal statutes are to be
strictly construed, with ambiguities resolved in favor of the
accused.” Commonwealth v. Coleman, 285 A.3d 599, 612 (Pa. 2022)
(internal quotation marks omitted).
Appellant argues that “his period of registration expired when the PCRA
court ruled that SORNA [I] did not apply to him[.]” Appellant’s brief at 4.
Specifically, relying upon Commonwealth v. Derhammer, 173 A.3d 723(Pa. 2017), and Commonwealth v. Nieman, 84 A.3d 603 (Pa. 2013),
Appellant contends that he was not subject to the Subchapter I registration
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requirement after the PCRA court ruled that SORNA I did not apply to him and
because he was never subject to registration under Megan’s Law II, which had
been repealed and replaced by SORNA I in 2012, long before the PCRA court’s
2017 order. See Appellant’s brief at 16. He phrases this assertion as follows:
When [the PCRA court] ruled that [Appellant] could not be
required to register under SORNA [I] due to constitutional issues,
it could not then require [Appellant] to register under Megan’s Law
II as that law had expired years prior to the commission of [his]
offense and conviction. Therefore, at that time, [Appellant’s]
registration requirements expired.
Appellant’s brief at 17.
In other words, Appellant equates “period of registration” with “duty to
register,” and suggests that, because he had no active duty to register when
SORNA II was passed, § 9799.55 of Subchapter I imposed no new duty to
register upon him. Appellant implies that, since he was not subject to
registration under § 9799.55, his conviction and sentence cannot stand,
because the statute that he supposedly violated, namely § 4915.2, did not
apply to him by its own terms. See 18 Pa.C.S. § 4915(a)(1) (defining the
offense as pertaining to “[a]n individual who is subject to registration under
42 Pa.C.S. § 9799.55(a), (a.1) or (b)”)3 and (f) (providing in pertinent part
that § 4915.2 applies to individuals who committed enumerated offenses or
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3 18 Pa.C.S. § 4915.2(a)(1) also references individuals who were “subject to
registration under former 42 Pa.C.S. § 9793 (relating to registration of certain
offenders for ten years).” However, as that statute was repealed in 2000,
Appellant was not subject to its requirements based upon his 2011 conviction.
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were subject to registration under a prior law “whose period of registration
has not expired”).4
My application of the rules of construction outlined above reveals
Appellant’s position to be unsound. I begin with the plain meaning of the
terms “period of registration” and “expire.” Expire, an intransitive verb in this
context, is defined as follows in pertinent part: “1. (Of an official document)
to be no longer legally effective; to become null at a time fixed beforehand.
2. (Of a period of time during which someone holds a position of authority) to
come to an end.” EXPIRE, Black’s Law Dictionary (11th ed. 2019) (sample
usages omitted).
Black’s offers no definition of “period” or “period of registration,” but
from other defined terms, the meaning of that phrase is discernable as “the
specified time span for registration.” See, e.g., ACCOUNTING PERIOD,
Black’s Law Dictionary (11th ed. 2019) (“A regular span of time used for
accounting purposes; esp., a period used by a taxpayer in determining income
and related tax liability.”); id. at CONTRACTUAL LIMITATION PERIOD (“The
contractually specified span of time within which any breach-of-contract
lawsuit must be commenced, beginning when the breach occurs.”); id. at
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4 Subsection (f) further includes a provision not pertinent here specifying that
§ 4915.2 will apply to individuals who committed an offense subject to
Subchapter H registration before SORNA II was enacted should a future
judicial determination invalidate the retroactive application of Subchapter H
to that individual. See 18 Pa.C.S. § 4915.2(f)(3).
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NOTICE-AND-COMMENT PERIOD (“The statutory time frame during which an
administrative agency publishes a proposed regulation and receives public
comment on the regulation. The regulation cannot take effect until after this
period expires.” (cleaned up)); id. at STATUTORY PERIOD (“A time limit
specified in a statute; esp., the period prescribed in the relevant statute of
limitations.”).
The notion that a “period of registration” indicates a pre-set temporal
length is confirmed by the usage of the term in various portions of Subchapter
I. For example, the applicability provision of the subchapter states as follows:
(a) Registration.--The following individuals shall register with
the Pennsylvania State Police as provided in this subchapter:
(1) An individual who committed a sexually violent offense
within this Commonwealth and whose period of registration
with the Pennsylvania State Police, as specified in section
9799.55 (relating to registration), as of February 21, 2018, has
not expired. The individual shall register for the period of
time under section 9799.55 less any credit for time
spent registered with the Pennsylvania State Police prior
to February 21, 2018.
42 Pa.C.S. § 9799.54(a) (emphasis added). The “initial” registration pursuant
to Subchapter I had to occur within ninety days of February 21, 2018. 42
Pa.C.S. § 9799.54(b). Individuals subject to Subsection I by virtue of being
an inmate or otherwise under supervision for committing a sexually violent
offense at the time of SORNA II’s passage also must register “for the period
of time under section 9799.55, except that the period required in
[§] 9799.55 shall be tolled for any period of time the individual is
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recommitted for a parole violation or sentenced to a term of imprisonment.”
42 Pa.C.S. § 9799.54(a)(3) (emphases added). As highlighted above,
subsection (a) of § 9799.55 speaks of a registration “period of [ten] years”
for offenses enumerated therein, while subsection (b) lists offenses giving rise
to lifetime registration.
Based upon the above, I reject Appellant’s argument that, with the use
of the phrase “whose period of registration has not expired” in identifying
individuals to whom § 4915.2 applies, our legislature meant to include only
individuals who had an extant registration obligation at the time SORNA II
was enacted. If he were correct, then § 9799.55(a)(1)(i)(B), which imposes
a ten-year period of registration upon individuals convicted of an enumerated
offense “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, whose period of
registration has not expired,” would be rendered mere surplusage. Since
SORNA I had provided for the expiration of all prior sexual offender
registration laws and Muniz invalidated the registration requirements under
SORNA I for individuals whose offenses predated its enactment, Appellant’s
interpretation would mean that the “period of registration” of every pre-
SORNA II offender had “expired” before SORNA II took effect. I cannot
interpret the statute to give § 9799.55(a)(1)(i)(B) no effect.
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Rather, I conclude that an individual “whose period of registration has
not expired,” as that phrase is used in § 4915.2(f)(1)-(2) and Subchapter I,
is a person who has not yet registered for the full duration of the time-span
established either by the former sexual offender law that gave rise to the
person’s initial registration obligation or by Subchapter I itself. Stated
differently, an individual “whose period of registration has not expired” is one
whose registration had not already become null due to the passage of time.
Applying this construction to the case sub judice, I initially observe that
it is undisputed that Appellant’s 2011 indecent assault of a person less than
thirteen years of age gave rise to his conviction of an offense enumerated in
§ 9799.55(a)(1)(i)(A) as one requiring him to register “for a period of [ten]
years.” Further, there is no question that Appellant had not yet registered for
a full ten years prior to SORNA II’s enactment in 2018. Therefore, the criminal
statute for failing to register codified at 18 Pa.C.S. § 4915.2 applied to
Appellant as “[a]n individual who committed an offense set forth in 42 Pa.C.S.
§ 9799.55 on or after April 22, 1996, but before December 20, 2012, and
whose period of registration under 42 Pa.C.S. § 9799.55 has not expired.” 18
Pa.C.S. § 4915.2(f)(1). Likewise, since Appellant was required to register for
ten years pursuant to “a former sexual offender registration law of this
Commonwealth” and that registration time span had not been completed when
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SORNA II took effect, subsection (f)(2) confirms the applicability of § 4915.2
to Appellant.5
In sum, while Appellant’s duty to register may have paused during the
time between the PCRA court’s 2017 order extinguishing the original duty and
§ 9799.55(a)’s reimposition of a registration duty in 2018, his ten-year period
of registration had not been exhausted such that it had “expired.” For that
reason, I agree that the trial court properly denied Appellant’s motion to
dismiss upon correctly discerning that “[Appellant’s] obligation to register did
not expire when the statutory scheme changed, but, rather, upon the
expiration of the [ten-year] registration period imposed upon him at the time
of sentencing.” Trial Court Opinion, 3/1/22, at 6.
Therefore, I respectfully concur.
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5 While Appellant falls under both these subsections, I note that they are not
coextensive, and thus our interpretation does not violate the rule against
creating surplusage. Specifically, subsection (f)(1) concerns the time during
which the offense was committed irrespective of the existence of a conviction
or duty to register prior to SORNA I’s enactment in 2012. Hence, someone
who is convicted in 2023 of an offense enumerated in 42 Pa.C.S. § 9799.55 is
subject to Subchapter I registration if the offense was committed between the
pertinent dates in 1996 and 2012. Presumably this is because Subchapter H
cannot apply to those individuals retroactively pursuant to Commonwealth
v. Muniz, 164 A.3d 1189 (Pa. 2017). Further, subsection (f)(2) would render
§ 4915.2 applicable to individuals who were required to register under a
former law for offenses not enumerated in § 9799.55.
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