F. Thorne v. Com. of PA, by and through the PSP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Thorne, :
Petitioner :
:
v. :
:
Commonwealth of Pennsylvania :
by and through The Pennsylvania :
State Police, : No. 233 M.D. 2016
Respondent : Submitted: December 16, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 20, 2017
The Commonwealth of Pennsylvania by and through The Pennsylvania
State Police (PSP) filed a preliminary objection1 in the nature of a demurrer to Frank
Thorne’s (Thorne) Petition for Review and Application for Writ of Mandamus
(Petition) filed in this Court’s original jurisdiction. The sole issue before the Court is
whether Thorne’s Petition states a claim upon which relief may be granted. After
review, PSP’s preliminary objection is overruled.
On October 27, 2004, Thorne was sentenced to probation in Ohio for
unlawful sexual conduct with a minor.2 That sentence included a ten-year registration
1
The PSP labeled its filing as “preliminary objections;” however, there is only one objection
described therein.
2
Thorne’s reference to unlawful “contact” with a minor in his Petition, Petition at 1, is in
error. See Section 2907.04 of the Ohio Crimes Code, R.C. § 2907.04 (entitled “[u]nlawful sexual
conduct with a minor”).
pursuant to Ohio’s version of Megan’s Law.3 Thorne complied with all registration
requirements, and obtained lawful permission to relocate to Pennsylvania in 2005.
Pennsylvania’s Act commonly known as Megan’s Law III4 was enacted on
November 24, 2004, and was in effect at the time that Thorne relocated. In
accordance with Megan’s Law III, Thorne began registering as a sex offender in
Pennsylvania on February 8, 2005.
The Sexual Offender Registration and Notification Act (SORNA)5 was
enacted on December 20, 2011, and became effective a year later on December 20,
2012. Section 9799.13 of SORNA, 42 Pa.C.S. § 9799.13, requires individuals
convicted of sexual offenses to register with PSP. Section 9799.14 of SORNA, 42
Pa.C.S. § 9799.14, classifies sexual offenses in a three-tiered system. Section
9799.15(a) of SORNA, 42 Pa.C.S. § 9799.15(a), specifies the length of time
registration is required based upon whether the offense is classified as Tier I (15
years), Tier II (25 years) or Tier III (lifetime). Section 9799.15(a)(7) of SORNA
further provides that “[a]n individual subject to registration under [S]ection
9799.13(7.1) [of SORNA] shall register for the period of time equal to the time for
which the individual was required to register in another jurisdiction . . . .” 42 Pa.C.S.
§ 9799.15(a)(7).
In December 2012, PSP notified Thorne that he is a Tier III offender
subject to lifetime registration under SORNA. On April 2, 2016, Thorne filed his
Petition alleging that PSP misapplied SORNA in his case because Section
3
Ohio’s version of Megan’s Law in effect at the time Thorne was sentenced was enacted in
1996, Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, and was significantly amended in 2003
by Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558.
4
Act of November 24, 2004, P.L. 1243 formerly, 42 Pa.C.S. §§ 9791-9799.9.
5
Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa.C.S. §§ 9799.10-9799.41. Courts
also refer to SORNA as the Adam Walsh Act or Megan’s Law IV. Megan’s Law III expired on
December 20, 2012, pursuant to Section 9799.41 of SORNA.
2
9799.15(a)(7) of SORNA compelled his removal from the Megan’s Law registry on
October 27, 2014. On June 2, 2016, PSP filed its preliminary objection asserting that
Thorne’s reliance on Section 9799.15(a)(7) of SORNA is misplaced.
This Court’s review of preliminary objections is limited to the pleadings.
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.,
909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).
[This Court is] required to accept as true the well-pled
averments set forth in the . . . complaint, and all inferences
reasonably deducible therefrom. Moreover, the [C]ourt
need not accept as true conclusions of law, unwarranted
inferences from facts, argumentative allegations, or
expressions of opinion. In order to sustain preliminary
objections, it must appear with certainty that the law will
not permit recovery, and, where any doubt exists as to
whether the preliminary objections should be sustained, the
doubt must be resolved in favor of overruling the
preliminary objections.
Id. at 415-16 (citations omitted).
PSP first argues that Section 9799.15(a)(7) of SORNA does not apply to
Thorne’s case because he was not required to register under Ohio’s version of
Megan’s Law when SORNA was enacted. We agree.
Section 9799.15(a)(7) of SORNA provides: “An individual subject to
registration under [S]ection 9799.13(7.1) [of SORNA] shall register for the period of
time equal to the time for which the individual was required to register in another
jurisdiction or foreign country.” 42 Pa.C.S. § 9799.15(a)(7). Section 9799.13(7.1) of
SORNA provides:
An individual who, on or after the effective date of this
section, is required to register in a sexual offender
registry in another jurisdiction or foreign country based
upon a conviction of an offense set forth in [S]ection
9799.14(b)(23) [of SORNA] (relating to sexual offenses
and tier system) and:
3
(i) has a residence in this Commonwealth or is a transient;
(ii) is employed within this Commonwealth; or
(iii) is a student within this Commonwealth.
42 Pa.C.S. § 9799.13(7.1) (emphasis added). Our Supreme Court has explained:
Our interpretation [of a statute] is guided by the polestar
principles set forth in the Statutory Construction Act [of
1972 ],[6] . . . which has as its paramount tenet that ‘[t]he
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).
As we have often recognized, ‘[t]he General Assembly’s
intent is best expressed through the plain language of the
statute.’ Commonwealth v. Brown, . . . 981 A.2d 893, 897
([Pa.] 2009); Commonwealth v. McCoy, . . . 962 A.2d 1160,
1166 ([Pa.] 2009). Therefore, when the terms of a statute
are clear and unambiguous, they will be given effect
consistent with their plain and common meaning. This
means ascribing to the particular words and phrases the
definitions which they have acquired through their common
and approved usage. It is only in instances where the words
of a statute are not explicit, or they are ambiguous, is there
need to resort to consideration of the factors in aid of
construction enumerated in [Section 1921(c) of the
Statutory Construction Act,] 1 Pa.C.S.[] § 1921(c). McCoy,
. . . 962 A.2d at 1166; Commonwealth v. Fithian, . . . 961
A.2d 66, 74 ([Pa.] 2008); see also 1 Pa.C.S.[] § 1921(b)
(‘When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.’).
Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (citations omitted). Here, the
statute is “clear and unambiguous.” Id.
Upon moving to Pennsylvania, Thorne was required to register in
Pennsylvania. Thus, as of February 8, 2005, when he began registering in
Pennsylvania, he was no longer “required to register in a sexual offender registry in
6
1 Pa.C.S. §§ 1501-1991.
4
[Ohio] another jurisdiction[.]” 42 Pa.C.S. § 9799.13(7.1). Accordingly, Section
9799.15(a)(7) of SORNA does not apply to Thorne on this basis.7
PSP next argues that Section 9799.15(a)(7) of SORNA does not apply to
Thorne because his offense is classified as a Tier III offense, not a Tier I offense.8
Section 9799.13(7.1) of SORNA expressly applies to individuals
convicted “of an offense set forth in [S]ection 9799.14(b)(23) [of SORNA.]” 42
Pa.C.S. § 9799.13(7.1). Section 9799.14(b)(23) of SORNA states: “A conviction for
a sexual offense in another jurisdiction or foreign country that is not set forth in this
section, but nevertheless requires registration under a sexual offender statute in the
jurisdiction or foreign country.” 42 Pa.C.S. § 9799.14(b)(23) (emphasis added).
7
Thorne relies on Jackson v. Commonwealth, 143 A.3d 468 (Pa. Cmwlth. 2016), to support
his position. In Jackson, the petitioner, like Thorne, had a previous conviction in another
jurisdiction requiring a 10-year registration when he moved to Pennsylvania. Unlike Thorne, the
petitioner had already completed his 10-year registration in other jurisdictions before SORNA’s
enactment. The Jackson Court held that
[b]ecause [the petitioner] was convicted of an offense similar to an
enumerated Pennsylvania Megan’s Law predicate offense, he was
required to register as a sex offender with the PSP for ten years. If
[the petitioner] is not given credit for the time he registered out of
state, his ten-year period of required registration under Megan’s Law
II[, Act of May 10, 2000, P.L. 74, formerly 42 Pa.C.S. §§ 9791–
9799.7] would not have expired until 2014. SORNA states that
individuals ‘who had not fulfilled [their] period of registration as of
December 20, 2012’ were subject to its provisions, including the
lifetime registration requirement. See [S]ection 9799.13(3)(i) of
SORNA, 42 Pa.C.S. § 9799.13(3)(i). [The petitioner] would fall
under this provision of SORNA because he had not completed his
ten-year period of registration prior to December 20, 2012, unless
he was unconstitutionally denied credit for the years he registered in
other states.
Jackson, 143 A.3d at 473-74 (bold emphasis added). Because Thorne had not completed his 10-
year registration in any state before SORNA’s enactment, Jackson is inapposite.
8
Thorne argues that labeling him as a Tier III offender without notice is a due process
violation. However, no such allegation appears in his Petition. Thus, this argument is not before
the Court.
5
Thorne was convicted of violating Section 2907.04 of the Ohio Crimes Code,
entitled: “Unlawful sexual conduct with a minor.” R.C. § 2907. Section 2907.04(A)
of the Ohio Crimes Code provides: “No person who is eighteen years of age or older
shall engage in sexual conduct with another, who is not the spouse of the offender,
when the offender knows the other person is thirteen years of age or older but less
than sixteen years of age, or the offender is reckless in that regard.”9 R.C. § 2907.04
(emphasis added).
The PSP does not state which Tier III offense it contends Thorne was
convicted therefor, nor does it develop its statement: “[Thorne’s] offense in Ohio was
an equivalent offense under Pennsylvania’s law[.]” PSP Br. at 8 n.2. Section
9799.14 of SORNA provides in relevant part:
(a) Tier system established.--Sexual offenses shall be
classified in a three-tiered system composed of Tier I sexual
offenses, Tier II sexual offenses and Tier III sexual
offenses.
(b) Tier I sexual offenses.--The following offenses shall be
classified as Tier I sexual offenses:
....
(23) A conviction for a sexual offense in another
jurisdiction or foreign country that is not set forth in
9
Thorne acknowledges that Tier II sexual offenses include Section 6318 of the Crimes
Code, “18 Pa.C.S. § 6318 (relating to unlawful contact with minor).” 42 Pa.C.S. § 9799.14(c)(5).
Section 6318 of the Crimes Code states, in relevant part:
A person commits an offense if he is intentionally in contact with a
minor, . . . for the purpose of engaging in an activity prohibited under
any of the following, and either the person initiating the contact or the
person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual
offenses).
18 Pa.C.S. § 6318 (emphasis added). However, Thorne maintains that because Section 6318 of the
Crimes Code does not include the element of recklessness, it is not the same offense.
Notwithstanding, only Tier III offenses require lifetime registration.
6
this section, but nevertheless requires registration under
a sexual offender statute in the jurisdiction or foreign
country.
(c) Tier II sexual offenses.--The following offenses shall
be classified as Tier II sexual offenses:
....
(5) 18 Pa.C.S. § 6318 (relating to unlawful contact with
minor).
....
(d) Tier III sexual offenses.--The following offenses shall
be classified as Tier III sexual offenses:
(1) 18 Pa.C.S. § 2901(a.1) (relating to kidnapping).
(2) 18 Pa.C.S. § 3121 (relating to rape).
(3) 18 Pa.C.S. § 3122.1(b) (relating to statutory sexual
assault).
(4) 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse).
(5) 18 Pa.C.S. § 3124.1 (relating to sexual assault).
(6) 18 Pa.C.S. § 3124.2(a.1) [(relating to institutional sexual
assault of a minor)].
(7) 18 Pa.C.S. § 3125 (relating to aggravated indecent
assault).
(8) 18 Pa.C.S. § 3126(a)(7) [(relating to indecent contact
with a complainant less than 13 years of age)].
(9) 18 Pa.C.S. § 4302(b) (relating to incest).
(10) 18 U.S.C. § 2241 (relating to aggravated sexual abuse).
(11) 18 U.S.C. § 2242 (relating to sexual abuse).
(12) 18 U.S.C. § 2244 where the victim is under 13 years of
age.
42 Pa.C.S. § 9799.14 (text emphasis added). The most similar offense to Thorne’s
crime enumerated under Tier III appears to be Section 3126 of the Crimes Code10
10
Section 9799.14(d)(8) of SORNA.
7
entitled: “Indecent assault” as it relates to “indecent contact with a person less than
13 years of age.” 18 Pa.C.S. § 3126 (emphasis added). However, because Thorne’s
conviction was for a sexual offense that specifically refers to a minor as one who is
“thirteen years of age or older[,]” R.C. § 2907.04 (emphasis added), we cannot state
with certainty that Thorne’s conviction was for a Tier III offense. This conclusion is
especially true here where there is a Tier II offense which appears to be similar to the
offense of which Thorne was convicted. See supra note 9.
Because Thorne’s conviction may not be classified as a Tier III offense,
Section 9799.15(a)(7) of SORNA may apply to Thorne. Accordingly, accepting
Thorne’s allegations as true, and resolving all doubt in his favor, as we must, it does
not “appear with certainty that the law will not permit recovery[.]” Pa. State Lodge,
Fraternal Order of Police, 909 A.2d at 415-16 (emphasis added).
Based on the foregoing, PSP’s preliminary objection to Thorne’s
Petition is overruled.
___________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Thorne, :
Petitioner :
:
v. :
:
Commonwealth of Pennsylvania :
by and through The Pennsylvania :
State Police, : No. 233 M.D. 2016
Respondent :
ORDER
AND NOW, this 20th day of March, 2017, the preliminary objection
filed by the Commonwealth of Pennsylvania by and through The Pennsylvania State
Police (PSP) in the nature of a demurrer to Frank Thorne’s Petition for Review and
Application for Writ of Mandamus (Petition) is overruled. PSP is ordered to file its
answer to the Petition within 30 days of the date of this order.
___________________________
ANNE E. COVEY, Judge