A. Malone v. The PA State Police of the Commonwealth of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew F. Malone, :
Petitioner :
:
v. : No. 577 M.D. 2015
: Submitted: January 20, 2017
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: April 28, 2017
Before this Court are the preliminary objections of the Pennsylvania
State Police in the nature of a demurrer to Andrew F. Malone’s petition for review
seeking a declaratory judgment that he is exempt from the lifetime registration
requirement in the Sexual Offender Registration and Notification Act (SORNA).1
The petition also seeks a writ of mandamus to have Malone’s name removed from
the State Police sex offender website. The petition asserts that the lifetime
registration demanded by the State Police violates the terms of his plea agreement,
as well as due process, and the ex post facto clauses of the United States and
Pennsylvania Constitutions. For the reasons set forth below, we sustain, in part,
the State Police’s preliminary objections.
1
42 Pa. C.S. §§9799.10 – 9799.41. The case law refers to the Sexual Offender Registration and
Notification Act as “SORNA” or “Megan’s Law IV.” See, e.g., Coppolino v. Noonan, 102 A.3d
1254, 1258 (Pa. Cmwlth. 2014), affirmed, 125 A.3d 1196 (Pa. 2015). We refer to the act as
“SORNA.”
Background
Malone’s petition alleges that, on January 5, 2004, he pled guilty to
the offense of criminal attempt to commit involuntary deviate sexual intercourse.
Petition for Review, ¶3. He was sentenced to 12 to 24 months, to be followed by
five years of probation. The petition alleges that when Malone entered his guilty
plea, he was informed that he would be required to register as a sexual offender for
10 years. Id., ¶4. Malone registered as a sexual offender on June 14, 2004, and
yearly thereafter for ten years. Id., ¶6. The petition asserts that Malone’s
registration requirement should have expired on June 14, 2014. Id.
On December 3, 2012, the State Police notified Malone that as a Tier
3 offender, he was required by SORNA to register as a sex offender for his entire
lifetime. Petition for Review, ¶7. In addition, he would be subject to quarterly
registration and internet notification. Id. Malone’s petition asserts that these
additional registration and notification requirements infringe upon his right not to
lose his reputation without due process of law and violate the terms of his plea
agreement.
The State Police filed a demurrer, asserting that Malone’s pleading
did not state a claim under the ex post facto clauses of the United States or
Pennsylvania Constitutions or under the due process clause of the United States or
Pennsylvania Constitutions. The State Police also demurred to Malone’s contract
claim because it was not a party to the plea agreement between Malone and the
Commonwealth.2
2
On preliminary objections, this Court’s review is limited to the pleadings. Pennsylvania State
Lodge, Fraternal Order of Police v. Department of Conservation and Natural Resources, 909
(Footnote continued on the next page . . . )
2
Ex Post Facto Claims
We begin with the State Police demurrer that SORNA’s registration
and on-line notification provisions do not violate the ex post facto clauses of the
United States and Pennsylvania Constitutions. Relying on this Court’s decision in
Taylor v. Pennsylvania State Police, 132 A.3d 590 (Pa. Cmwlth. 2016), Malone
responds that the viability of the notification provisions has not yet been decided
and, thus, the demurrer should be overruled.
Ex post facto laws are prohibited by the United States and
Pennsylvania Constitutions. As our Supreme Court explained:
the ex post facto clauses of the United States and Pennsylvania
Constitutions are virtually identical in language, and the
standards applied to determine ex post facto violations under
both constitutions are comparable.
Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012). A law violates the ex
post facto clause if it “changes the punishment, and inflicts a greater punishment
than the law annexed to the crime when committed.” Id.(continued . . . )
A.2d 413, 415 (Pa. Cmwlth. 2006), affirmed, 924 A.2d 1203 (Pa. 2007). When reviewing
preliminary objections,
[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).
3
In Coppolino, 102 A.3d 1254, we concluded that the majority of
SORNA’s registration requirements are not punitive and, thus, do not implicate ex
post facto principles. However, we found the reporting requirement in Section
9799.15(g) of SORNA to be punitive.3 Accordingly, we held that Section
3
Section 9799.15(g) states:
(g) In-person appearance to update information.--In addition to the periodic in-
person appearance required in subsections (e), (f) and (h), an individual specified
in section 9799.13 shall appear in person at an approved registration site within
three business days to provide current information relating to:
(1) A change in name, including an alias.
(2) A commencement of residence, change in residence,
termination of residence or failure to maintain a residence, thus
making the individual a transient.
(3) Commencement of employment, a change in the location or
entity in which the individual is employed or a termination of
employment.
(4) Initial enrollment as a student, a change in enrollment as a
student or termination as a student.
(5) An addition and a change in telephone number, including a cell
phone number, or a termination of telephone number, including a
cell phone number.
(6) An addition, a change in and termination of a motor vehicle
owned or operated, including watercraft or aircraft. In order to
fulfill the requirements of this paragraph, the individual must
provide any license plate numbers and registration numbers and
other identifiers and an addition to or change in the address of the
place the vehicle is stored.
(7) A commencement of temporary lodging, a change in temporary
lodging or a termination of temporary lodging. In order to fulfill
the requirements of this paragraph, the individual must provide the
specific length of time and the dates during which the individual
will be temporarily lodged.
(8) An addition, change in or termination of e-mail address, instant
message address or any other designations used in Internet
communications or postings.
(Footnote continued on the next page . . . )
4
9799.15(g) could not be imposed on a sex offender convicted under a prior version
of Megan’s Law. Coppolino, 102 A.3d at 1278; see also Taylor, 132 A.3d at 601
(holding Section 9799.15(g) of SORNA to be punitive). Coppolino and Taylor
held that, save for Section 9799.15(g), the registration provisions of SORNA do
not violate the ex post facto clauses of the United States or Pennsylvania
Constitutions. Accordingly, we sustain the State Police’s preliminary objection to
the ex post facto claim, except as it relates to Section 9799.15(g).
SORNA also imposes notification requirements upon sex offenders.
See 42 Pa. C.S. §9799.28.4 In Taylor, we held that “the internet notification
(continued . . . )
(9) An addition, change in or termination of information related to
occupational and professional licensing, including type of license
held and license number.
42 Pa. C.S. §9799.15(g).
4
It states, in relevant part:
(a) Information to be made available through Internet.--The Pennsylvania
State Police shall, in the manner and form directed by the Governor:
(1) Develop and maintain a system for making information about
individuals convicted of a sexually violent offense, sexually violent
predators and sexually violent delinquent children publicly available by
electronic means via an Internet website. In order to fulfill its duties under
this section, the Pennsylvania State Police shall ensure that the Internet
website:
(i) Contains a feature to permit a member of the public to
obtain relevant information for an individual convicted of a
sexually violent offense, a sexually violent predator or a sexually
violent delinquent child by a query of the Internet website based on
search criteria including searches for any given zip code or
geographic radius set by the user.
(ii) Contains a feature to allow a member of the public to
receive electronic notification when an individual convicted of a
sexually violent offense, sexually violent predator or sexually
violent delinquent child provides information under section
(Footnote continued on the next page . . . )
5
(continued . . . )
9799.15(g)(2), (3) or (4) (relating to period of registration). This
feature shall also allow a member of the public to receive
electronic notification when the individual convicted of a sexually
violent offense, sexually violent predator or sexually violent
delinquent child moves into or out of a geographic area chosen by
the user.
(iii) Includes in its design all field search capabilities needed
for full participation in the Dru Sjodin National Sex Offender
Public Internet Website. The Pennsylvania State Police shall
ensure that the website is able to participate in the Dru Sjodin
National Sex Offender Public Internet Website as the United States
Attorney General may direct.
(iv) Is updated within three business days with the information
required.
(2) Include on the Internet website the following:
(i) Instructions on how to seek correction of information that
an individual contends is erroneous.
(ii) A warning that the information on the Internet website
should not be used to unlawfully injure, harass or commit a crime
against an individual convicted of a sexually violent offense, a
sexually violent predator or a sexually violent delinquent child and
that any such action could result in criminal or civil penalties.
***
(b) Required information.--Notwithstanding Chapter 63 (relating to juvenile matters) and
18 Pa.C.S. Ch. 91 (relating to criminal history record information), the Internet website
shall contain the following information regarding an individual convicted of a sexually
violent offense, a sexually violent predator or a sexually violent delinquent child:
(1) Name and aliases.
(2) Year of birth.
(3) Street address, municipality, county, State and zip code of residences and
intended residences. In the case of an individual convicted of a sexually violent
offense, a sexually violent predator or a sexually violent delinquent child who
fails to establish a residence and is therefore a transient, the Internet website shall
contain information about the transient’s temporary habitat or other temporary
place of abode or dwelling, including, but not limited to, a homeless shelter or
park. In addition, the Internet website shall contain a list of places the transient
eats, frequents and engages in leisure activities.
(4) Street address, municipality, county, State and zip code of any location at
which an individual convicted of a sexually violent offense, a sexually violent
predator or a sexually violent delinquent child is enrolled as a student.
(Footnote continued on the next page . . . )
6
provision of SORNA does not constitute an ex post facto law under the United
States Constitution” as applied to the defendant. Taylor, 132 A.3d at 602. We
further observed that “case law provides no clear answers” on whether the internet
notification provisions are punitive. Id. at 604. We could not say with certainty
that the ex post facto clause in Pennsylvania’s Constitution does not provide more
(continued . . . )
(5) Street address, municipality, county, State and zip code of a fixed location
where an individual convicted of a sexually violent offense, a sexually violent
predator or a sexually violent delinquent child is employed. If an individual
convicted of a sexually violent offense, a sexually violent predator or a sexually
violent delinquent child is not employed at a fixed address, the information shall
include general areas of work.
(6) Current facial photograph of an individual convicted of a sexually violent
offense, a sexually violent predator or a sexually violent delinquent child. This
paragraph requires, if available, the last eight facial photographs taken of the
individual and the date each photograph was entered into the registry.
(7) Physical description of an individual convicted of a sexually violent
offense, a sexually violent predator or a sexually violent delinquent child.
(8) License plate number and a description of a vehicle owned or operated by
an individual convicted of a sexually violent offense, a sexually violent predator
or a sexually violent delinquent child.
(9) Offense for which an individual convicted of a sexually violent offense, a
sexually violent predator or a sexually violent delinquent child is registered under
this subchapter and other sexually violent offenses for which the individual was
convicted.
(10) A statement whether an individual convicted of a sexually violent offense,
a sexually violent predator or a sexually violent delinquent child is in compliance
with registration.
(11) A statement whether the victim is a minor.
(12) Date on which the individual convicted of a sexually violent offense, a
sexually violent predator or a sexually violent delinquent child is made active
within the registry and date when the individual most recently updated
registration information.
(13) Indication as to whether the individual is a sexually violent predator,
sexually violent delinquent child or convicted of a Tier I, Tier II or Tier III sexual
offense.
(14) If applicable, indication that an individual convicted of a sexually violent
offense, a sexually violent predator or a sexually violent delinquent child is
incarcerated or committed or is a transient.
42 Pa. C.S. §9799.28(a), (b).
7
protection than the ex post facto clause in the United States Constitution with
regard to the internet notification provision of SORNA. Id. Therefore, we
overruled the State Police’s preliminary objections to the ex post facto claim under
the Pennsylvania Constitution. Id.
Malone contends that SORNA’s internet notification provision
violates the ex post facto clause of the Pennsylvania Constitution and, thus, we
must overrule the State Police demurrer. However, the State Police did not file a
demurrer to Malone’s ex post facto challenge to SORNA’s internet notification
provision under the Pennsylvania Constitution. It has confirmed this point in its
brief. State Police Reply Brief at 13.
The State Police demur solely to Malone’s claim that the retroactive
application of the internet notification provision of SORNA violates the ex post
facto clause of the United States Constitution. In accordance with our decision in
Taylor, we sustain this preliminary objection.
Procedural Due Process Under 14th Amendment
The petition asserts that the retroactive effect of SORNA has violated
Malone’s rights under the 14th Amendment of the United States Constitution. U.S.
CONST. amend. XIV, §1.5 The new registration requirements violated Malone’s
procedural due process rights because he was not given an opportunity to challenge
the registration requirements. SORNA presumes that all sex offenders pose a high
risk, and this damages Malone’s reputation, which is protected by the due process
5
Section 1 of the 14th Amendment states, in relevant part:
[N]or shall any state deprive any person of life, liberty, or property, without due
process of law….
U.S. CONST. amend. XIV, §1.
8
clause.6 The State Police argue that the petition does not state a claim under the
14th Amendment because it does not assert that SORNA has deprived Malone of
life, liberty or property. Notably, the State Police has not demurred to Malone’s
substantive due process claims under the United States and Pennsylvania
Constitutions nor has it demurred to Malone’s procedural due process claim under
the Pennsylvania Constitution.
Due process is required under the 14th Amendment where the state
seeks to deprive a person of a life, liberty or property interest. Pennsylvania Game
Commission v. Marich, 666 A.2d 253, 255 (Pa. 1995). Reputational interests alone
are insufficient to invoke federal due process guarantees. R. v. Department of
Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (citing Paul v. Davis, 424 U.S. 693(1976)) (“The United States Supreme Court has already held that reputation is not
an interest which, standing alone, is sufficient to invoke the procedural protections
of the Fourteenth Amendment’s due process clause.”). A due process claim for
deprivation of a liberty interest in reputation may be made by showing a
reputational stigma plus deprivation of another protected right or interest. Person
v. Pennsylvania State Police Megan’s Law Section, (Pa. Cmwlth., No. 222 M.D.
2013, filed November 3, 2015), Slip Op. at 11 (unreported) (quoting Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (emphasis in original)).7
Under the “stigma-plus” test, a plaintiff must show “(1) some utterance of a
6
“Unlike the Due Process Clause of the Fourteenth Amendment, our Supreme Court has
acknowledged that reputation is protected under Article I, Section 1 of the Pennsylvania
Constitution…. Accordingly, reputation is among the fundamental rights that cannot be abridged
without compliance with state constitutional standards[.]” Taylor, 132 A.3d at 605.
7
Pursuant to Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
9
statement that is sufficiently derogatory to injure his or her reputation, which is
capable of being proved false, and (2) some material and state-imposed burden or
alteration of his or her status or of a right.” D.C. v. School District of Philadelphia,
879 A.2d 408, 416 (Pa. Cmwlth. 2005).
In Person, we considered whether the internet publication of a sex
offender’s name stated a claim under the due process clause of the 14th
Amendment. The petitioner argued that the internet publication along with other
provisions in SORNA met the stigma-plus test for a due process claim. This Court
observed that the “federal circuit courts appear to be split on whether state
Megan’s Laws satisfy the “stigma-plus” test and the United States Supreme Court
has yet to address this issue.” Person, Slip Op. at 11-12. Despite this uncertainty,
we determined that the petitioner did not meet the “stigma-plus” test because the
statements posted on the internet to which he objected were true. The petitioner
pled guilty to a sexually violent offense and is currently registered with the State
Police. Accordingly, we held that the petitioner did not state a due process claim
under the 14th Amendment to the United States Constitution and sustained the
demurrer.
More recently, in Dougherty v. Pennsylvania State Police, 138 A.3d
152 (Pa. Cmwlth. 2016), we again addressed this issue. Again, we sustained the
demurrer to the petitioner’s due process claims under the 14th Amendment of the
United States Constitution. Dougherty, 138 A.3d at 159.
Malone’s petition asserts that he has a fundamental right to reputation,
but he does not allege a deprivation of a life, liberty or property interest. In his
brief, Malone simply asserts that all due process objections should be overruled
and directs this Court to its decision in Taylor, 132 A.3d 590. Malone
10
misunderstands Taylor, where we addressed due process claims under the
Pennsylvania Constitution, not under the 14th Amendment of the United States
Constitution. Accordingly, we sustain the preliminary objection to this claim.
Article I, Section 9 of Pennsylvania Constitution
The petition asserts that the retroactive application of SORNA
violated Malone’s rights under Article I, Section 9 of the Pennsylvania
Constitution. PA. CONST. art. I, §9. The State Police asserts that this claim is
legally insufficient because it does not involve a criminal prosecution.
Article I, Section 9 of the Pennsylvania Constitution states as follows:
In all criminal prosecutions the accused hath a right to be heard
by himself and his counsel, to demand the nature and cause of
the accusation against him, to be confronted with the witnesses
against him, to have compulsory process for obtaining
witnesses in his favor, and, in prosecutions by indictment or
information, a speedy public trial by an impartial jury of the
vicinage; he cannot be compelled to give evidence against
himself, nor can he be deprived of his life, liberty or property,
unless by the judgment of his peers or the law of the land. The
use of a suppressed voluntary admission or voluntary
confession to impeach the credibility of a person may be
permitted and shall not be construed as compelling a person to
give evidence against himself.
PA. CONST. art. I, §9. Our Supreme Court has construed this provision to be the
functional equivalent of the due process clause of the United States Constitution.
Commonwealth v. Kratsas, 764 A.2d 20, 27 n.5 (Pa. 2001).
In Dougherty, 138 A.3d 152, the petitioner asserted that the increase
in the number of years he was required to register as a sex offender violated his
right to due process under Article I, Section 9 of the Pennsylvania Constitution.
The petitioner’s claims addressed the administrative action taken by the State
11
Police well after his conviction and sentencing. Because his claims did not
implicate his criminal prosecution, we sustained the State Police’s demurrer to this
claim. Dougherty, 138 A.3d at 159.
As in Dougherty, Malone’s claims do not implicate a criminal
prosecution. Rather, they concern actions taken by the State Police nearly ten
years after his conviction. Person, Slip Op. at 21 (sustaining demurrer because the
petitioner’s claim did not implicate a criminal prosecution). We are constrained to
sustain the State Police’s preliminary objection.
Breach of Contract
Malone’s petition asserts that the State Police’s registration
requirements violate his plea agreement, which provided for no more than a ten-
year registration. Attached to Malone’s petition is a certified copy of the
judgment. It states that as a condition of sentence, Malone had to register under
Megan’s Law, next to which is a hand-written notation “10 yr.” Petition for
Review, Exhibit A. The State Police have demurred to Malone’s breach of
contract claim for the stated reasons that it was not a party to the contract and that
the claim belongs in another forum.
Although plea agreements arise “in a criminal context,” they are
“analyzed under contract law standards.” Commonwealth v. Hainesworth, 82 A.3d
444, 449 (Pa. Super. 2013) (en banc) (citations omitted). Once a plea agreement
has been accepted by a trial court, the defendant is “entitled to the benefit of his
bargain[.]” Commonwealth v. Martinez, 147 A.3d 517, 532-33 (Pa. 2016). The
Commonwealth must “abide by the terms of the plea agreement.” Commonwealth
v. Spence, 627 A.2d 1176, 1184 (Pa. 1993) (citing Santobello v. New York, 404
U.S. 257 (1971)). Further, courts demand “strict compliance” with the terms of a
12
plea agreement “in order to avoid any possible perversion of the plea bargaining
system[.]” Martinez, 147 A.3d at 532 (quoting Commonwealth v. Zuber, 353 A.2d
441, 444 (Pa. 1976)).
Where a dispute arises over any particular term of a plea agreement,
courts will look to “what the parties to this plea agreement reasonably understood
to be the terms of the agreement.” Hainesworth, 82 A.3d at 447 (quoting
Commonwealth v. Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989) (internal
citations omitted)). A determination will be made “based on the totality of the
surrounding circumstances,” and “[a]ny ambiguities in the terms of the plea
agreement will be construed against the [Commonwealth].” Id. (quoting
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (internal citations
omitted)).
In Martinez, our Supreme Court held that a defendant is entitled to
specific performance of his plea agreement with regard to sexual offender
registration requirements. Our Supreme Court explained that “the convicted
criminal is entitled to the benefit of his bargain through specific performance of the
terms of the plea agreement.” Martinez, 147 A.3d at 533. Because the
Commonwealth stipulated that the ten-year registration was part of the plea
agreement, the defendant was “entitled to the benefit of that bargain.” Id.
Similarly, in Hainesworth, the Pennsylvania Superior Court refused to
give retroactive application to the SORNA registration requirements where it
would breach the terms of a plea agreement. In that case, the defendant was not
required to register under Megan’s Law at the time he entered the plea agreement.
Thereafter, SORNA established that one of the offenses to which he had pleaded
guilty required registration. Concerned that he would have to register, the
13
defendant sought to terminate his probation supervision prior to the effective date
of SORNA. The trial court denied this petition, but it entered an order declaring
the defendant not subject to registration under SORNA. The Commonwealth
appealed, and the Superior Court affirmed. It observed that terms of the
defendant’s plea were carefully laid out on the record8 and that the prosecutor
stated that the defendant’s sentences were “not Megan’s Law.” Hainesworth, 82
A.3d at 447. Accordingly, the defendant was entitled to specific performance of
the terms of the plea bargain.
Malone’s petition alleges that he “was instructed and entered into a
plea agreement … pursuant to an understanding and agreement that [he] was
required to register as a sexual offender for only ten (10) years.” Petition for
Review, ¶4. Malone asserts that he is entitled to specific performance of his plea
agreement as a matter of contract law. He contends that the State Police actions
violate his plea agreement, in violation of the Contract Clauses of the United
States9 and Pennsylvania10 Constitutions.
In Dougherty, 138 A.3d at 160, this Court addressed this issue. We
explained that the State Police’s role in the SORNA statutory scheme is
ministerial. Accordingly, if the sentencing order includes a specific term of
8
See Pennsylvania Rule of Criminal Procedure 590(B)(1), Pa. R. Crim. P. 590(B)(1), set forth
infra.
9
It states, in relevant part, as follows:
No State shall … pass any … Law impairing the Obligation of Contracts ….
U.S. CONST. art I, §10, cl.1.
10
It states as follows:
No ex post facto law, nor any law impairing the obligation of contracts, or making
irrevocable any grant of special privileges or immunities, shall be passed.
PA. CONST. art. I, §17.
14
registration, the State Police “is bound to apply the registration term included in
the sentence and nothing more.” Id. (citing McCray v. Pennsylvania Department
of Corrections, 872 A.2d 1127, 1133 (Pa. 2005)). If the sentencing order is unclear
or ambiguous, the State Police may seek guidance from the sentencing court before
applying the registration period upon a sexual offender. If the sentencing order is
silent on the term of registration, the State Police must set the appropriate
registration period in accordance with Section 9799.15 of SORNA, 42 Pa. C.S.
§9799.15. However, the State Police does not have a duty, in any of these
circumstances, to inquire into the content or intent of any underlying plea
agreement. Dougherty, 138 A.3d at 160.
We further explained that the State Police is not a party to the plea
agreement. Accordingly, when a dispute arises over an alleged breach of a plea
agreement or its impact upon an offender’s duty to register, the dispute must be
resolved in a proceeding before the sentencing court. Id. We stated, “[s]uch
disputes should name the Commonwealth as the defendant as it is the
Commonwealth, acting through the appropriate prosecutor, not the [State Police],
who is a party to the plea agreement.” Id. Accordingly, we sustained the State
Police’s preliminary objection alleging that it cannot be liable for a breach of the
petitioner’s plea agreement to which it was not a party. Notably, the complaint in
Dougherty did not contain any allegations about the sentencing order but only
about the plea agreement.
Pointing to Dougherty, Malone argues that the sentencing order
attached to his petition must be accepted as true and this Court has authority to
enforce the order. Malone misunderstands the State Police’s preliminary
objection. It does not challenge the sufficiency of his claim related to enforcement
15
of the terms of the sentencing order. Rather, it challenges Malone’s breach of
contract claim, which is based upon the plea agreement.
As we explained in Dougherty, because the State Police was not a
party to the plea agreement, a breach of contract action against the State Police is
inappropriate. We sustain the State Police’s preliminary objection to this claim,
which belongs in the appropriate court of common pleas. Although Malone
attached the sentencing order to his petition, it is not the plea agreement. See Pa.
R. Crim. P. 590(B).11 The State Police is not a party to the plea agreement.
Conclusion
For the above-stated reasons, we hold as follows. We sustain the
demurrer that the petition does not state a claim under the ex post facto clause of
the United States and Pennsylvania Constitutions, save for Section 9799.15(g) of
SORNA. We sustain the demurrer that the petition does not state a claim under the
ex post facto clause of the United States Constitution with respect to SORNA’s
notification provision. We sustain the demurrer that the petition does not state a
11
Rule 590(B) of the Rules of Criminal Procedure states:
(B) Plea Agreements
(1) When counsel for both sides have arrived at a plea agreement, they
shall state on the record in open court, in the presence of the defendant, the
terms of the agreement, unless the judge orders, for good cause shown and
with the consent of the defendant, counsel for the defendant, and the
attorney for the Commonwealth, that specific conditions in the agreement
be placed on the record in camera and the record sealed.
(2) The judge shall conduct a separate inquiry of the defendant on the
record to determine whether the defendant understands and voluntarily
accepts the terms of the plea agreement on which the guilty plea or plea of
nolo contendere is based.
Pa. R. Crim. P. 590(B).
16
procedural due process claim under the 14th Amendment of the United States
Constitution. We sustain the demurrer that the petition does not state a due process
claim under Article I, Section 9 of the Pennsylvania Constitution. We sustain the
demurrer to the petition’s breach of contract claim.
______________________________________
MARY HANNAH LEAVITT, President Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew F. Malone, :
Petitioner :
:
v. : No. 577 M.D. 2015
:
The Pennsylvania State Police of the :
Commonwealth of Pennsylvania, :
Respondent :
ORDER
AND NOW, this 28th day of April, 2017, the preliminary objections of
the Pennsylvania State Police to the petition for review filed by Andrew F. Malone
in the above-captioned matter are sustained with the exception of the petition’s
challenge to Section 9799.15(g) of SORNA. The Pennsylvania State Police must
answer all remaining allegations including those to which preliminary objections
have not been filed within 30 days of this Order.
______________________________________
MARY HANNAH LEAVITT, President Judge