Commonwealth, Aplt. v. Farabaugh, R.

[J-22-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 32 WAP 2014
:
Appellant : Appeal from the Order of the Superior
: Court entered June 17, 2014 at No.
v. : 1198 WDA 2013, vacating the Order of
: the Court of Common Pleas of Cambria
RAYMOND W. FARABAUGH, : County entered July 1, 2013 at No. CP-
: 11-CR-0000362-2011 and remanding.
Appellee :
:
: ARGUED: April 8, 2015
CONCURRING OPINION
MR. CHIEF JUSTICE SAYLOR DECIDED: DECEMBER 21, 2015
I join the majority opinion and write, in particular, to elaborate on the genesis of
paragraph (3.1), which I find to be especially relevant.
Initially, the majority concludes (correctly in my view) that paragraphs (2) and
(3.1) are not in conflict, as the restricted definition of “sexually violent offense” only
applies within the context of the latter.1 See generally Cedarbrook Realty, Inc. v. Nahill,
484 Pa. 441, 459, 399 A.2d 374, 383 (1979) (explaining that two provisions are only
irreconcilable if they cannot operate concurrently). This, however, raises the question of
why the General Assembly would employ a specialized and limited definition of sexually
1
To the extent Appellee suggests paragraph (3.1) “is applicable” but he is then
affirmatively “removed from” its scope, Brief for Appellee at 11 – thereby purportedly
creating a conflict with paragraph (2) – I believe such characterization is misleading. To
my mind, paragraph (3.1) is not “applicable” at all due to its restricted definition of
“sexually violent offense.”
violent offense for paragraph (3.1) only, and not for paragraph (2). To understand the
Legislature’s motivation in this regard, it is helpful to review a portion of the history of
Megan’s Law in Pennsylvania as it relates to this case.
As the majority observes, Act 19 of 2014 was intended, in substantial part, to
account for the circumstance that, in Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d
603 (2013), this Court invalidated Act 152 of 2004 (“Megan’s Law III”) predicated on a
single-subject violation. See id. at 75, 84 A.3d at 616; see also 42 Pa.C.S.
§9799.11(b)(3) (setting forth Act 19’s legislative intent with regard to Neiman).2 See
generally Majority Opinion, slip op. at 3. Megan’s Law III, in turn, had required
registration by persons convicted of indecent assault under Section 3126 of the Crimes
Code, see 18 Pa.C.S. §3126, but only where the offense was graded as a misdemeanor
of the first degree. See Act of Nov. 24, 2004, P.L. 1243, No. 152, §8, codified at 42
Pa.C.S. §9795.1(a)(1) (expired December 20, 2012, per 42 Pa.C.S. §9799.41).
The December 20, 2012 expiration date for such provision was imposed by
Megan’s Law IV, also known as the Sex Offender Registration and Notification Act, see
Act of Dec. 20, 2011, P.L. 446, No. 111 (as amended 42 Pa.C.S. §§9799.10-9799.41)
(“SORNA”), the relevant portion of which became effective one year after enactment, on
December 20, 2012. See id. §18(2). Although Neiman was decided after Section
9795.1 expired, absent Act 19 Neiman would have interfered with one of SORNA’s
objectives, namely, to place Pennsylvania into compliance with the federal Adam Walsh
Child Protection and Safety Act of 2006. See 42 Pa.C.S. §9799.10 (relating to
purposes of subchapter). See generally In re J.B., ___ Pa. ___, ___, 107 A.3d 1, 3
(2014). It would have done so by retroactively eliminating the registration periods for
2
Act 19 was passed two days before the expiration of Neiman’s grace period pursuant
to which the invalidation of Megan’s Law III was suspended for 90 days. See Neiman,
624 Pa. at 75, 84 A.3d at 616.
[J-22-2015][M.O. – Eakin, J.] - 2
certain offenders under Megan’s Law III – including individuals subject to Section
9795.1 – which in turn were extended by SORNA. See 42 Pa.C.S. §9799.15(a)
(imposing lengthy registration periods for Tier I, II and III sexual offenders); id. §9799.14
(reflecting that indecent assault is a Tier I, II, or III offense depending on which
subsection of Section 3126 is involved); cf. id. §9799.15(a.1) (providing credit for time
registered prior to December 20, 2012). Thus, the Legislature faced a situation in which
Neiman invalidated a statute which had already expired and been replaced, but whose
effects remained beyond its expiration date – in the form of prior registration periods
which had to continue in existence in order to be extended by SORNA. Inasmuch as
the Assembly could do nothing to restore the now-expired Megan’s Law III as such, it
enacted legislation designed to continue in force SORNA registration requirements for
offenders whose registration periods began during Megan Law III’s governance.
Notably, Section 9795.1 went into effect on January 23, 2005. See Megan’s Law
III §19(5). Thus, because the ten-year registration requirement under Section 8 of
Megan’s Law III was imposable between January 23, 2005 and December 19, 2012 –
the day before Section 9795.1 expired – it seems evident the General Assembly sought
to preserve the effect of that provision via the specific wording of paragraph (3.1) –
which by its terms applies to anyone who, during that interval, was convicted of a
sexually violent offense or under probationary or parole supervision as a result of the
conviction of a sexually violent offense. See 42 Pa.C.S. §9799.13(3.1)(i). Moreover,
since Section 8 of Megan’s Law III, as it pertains to individuals convicted of indecent
assault, only encompasses convictions graded as first-degree misdemeanors, the
legislative effort to preserve Megan’s Law III registrants as SORNA registrants required
a restricted definition of “sexually violent offense” for purposes of paragraph (3.1) –
namely, one which would exclude persons convicted of indecent assault graded as a
[J-22-2015][M.O. – Eakin, J.] - 3
second-degree misdemeanor, since those individuals would not have been required to
register under Megan’s Law III.
Paragraph (2) stands on a different footing, as it was included in Section 9799.13
at the time SORNA was enacted. Thus, the legislative goal as it pertains to paragraph
(2) did not relate to recovering registration periods that would otherwise have been lost
due to Neiman – as, indeed, it was enacted two years before Neiman was decided.
Rather, paragraph (2) must also be understood in light of SORNA’s stated purposes
which, as noted, are set forth at Section 9799.10, 42 Pa.C.S. These include, not only
bringing Pennsylvania into substantial compliance with the Adam Walsh Act, see 42
Pa.C.S. §9799.10(1), but more particularly, “requir[ing] individuals who are currently . . .
supervised with respect to probation or parole or registrants under this subchapter to
register with the Pennsylvania State Police . . ..” Id. §9799.10(4) (emphasis added).
Accordingly, the temporal targeting of paragraph (2) is couched in terms of individuals
under supervision “on or after the effective date of this section [i.e., December 20,
2012].” Id. §9799.13(2) (emphasis added). Because paragraph (2) was included in
Section 9799.13 at the time SORNA was enacted, it incorporates SORNA’s general
definition of “sexually violent offense” and – unlike with paragraph (3.1) – there is no
need to alter that definition for a special, historical purpose.
Madame Justice Todd joins this concurring opinion.
[J-22-2015][M.O. – Eakin, J.] - 4