J.B. v. PSP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.B., : CASE SEALED
Petitioner :
:
v. : No. 644 M.D. 2018
: Submitted: November 19, 2021
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE LEAVITT FILED: March 25, 2022
Before the Court in our original jurisdiction is the preliminary objection
of the Pennsylvania State Police that demurs to J.B.’s petition for review seeking
declaratory and injunctive relief. J.B. 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 United States and Pennsylvania Constitutions.3 J.B. requests that this Court
grant an injunction to terminate his sexual offender registration under SORNA II.
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
2
Act of February 21, 2018, P.L. 27 (Act 10), 42 Pa. C.S.§§9799.10-9799.75, as amended by the
Act of June 12, 2018, P.L. 140 (Act 29).
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, 820 A.2d 904,
909 (Pa. Cmwlth. 2003) (citing Commonwealth v. Young, 637 A.2d 1313, 1317 n.7 (Pa. 1993)).
We sustain the State Police’s preliminary objection and dismiss J.B.’s petition for
review.
Petition for Review
On October 11, 2018, J.B. filed a petition for review, which averred the
following. On November 23, 1998, J.B. was convicted of involuntary deviate sexual
intercourse and aggravated indecent assault. The sexual offender registration statute
in effect at the time required him to register for a period of 10 years. In 2000, the
General Assembly amended the statute and increased the period of registration for
convictions for aggravated indecent assault and involuntary deviate sexual
intercourse from 10 years to life. On March 2, 2001, upon his release, J.B. was
registered as a sexual offender. Petition ¶6, Exhibit A. In 2004, the General
Assembly created a passive notification scheme and mandated all registrants to
publish their information on a website maintained by the State Police. On December
20, 2012, the Sexual Offender Registration and Notification Act (SORNA I), 42 Pa.
C.S. §§9799.10-9799.41, went into effect, which was later declared unconstitutional
as an ex post facto law by the Pennsylvania Supreme Court in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017). In 2018, the General Assembly enacted SORNA
II.
In his petition for review, J.B. seeks relief on three counts. In Count I,
J.B. asserts that SORNA II contains similar passive notification provisions that were
found punitive under Muniz and are made applicable to sexual offenders who were
not subject to these requirements at the time of their convictions. J.B. argues that
SORNA II is unconstitutional as applied to him. Petition ¶¶19-21. In Count II, J.B.
contends that his 10-year registration term ended on March 2, 2011. Petition ¶23.
In Count III, J.B. argues that SORNA II creates an irrebuttable presumption of “life-
2
long dangerousness,” and the “public nature of the registry and the internet site
maintained by the [State Police]” impinges upon his constitutionally protected
reputation. Petition ¶¶27-28. J.B. requests that this Court declare SORNA II
unconstitutional as applied to him; relieve him from the registration and reporting
requirements; and issue a writ of mandamus directing the State Police to remove his
records from the sex offender registry.
In response, the State Police filed a preliminary objection in the nature
of a demurrer, asserting that SORNA II cured the constitutional defects found in
SORNA I. SORNA II is not punitive. The State Police contends that SORNA II
does not harm J.B.’s reputation because his prior convictions are public information
available on the Unified Judicial System website.
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 within the Commonwealth to register with the State
Police for varying periods of time. The first of these statutes was commonly known
as Megan’s Law, formerly 42 Pa. C.S. §§9791-9799.6. 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
3
regulation relates to the registration of sexual offenders and community notification
about sexual offenders.” Taylor v. Pennsylvania State Police, 132 A.3d 590, 595
(Pa. Cmwlth. 2016) (quoting former 42 Pa. C.S. §9799.11). 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 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
Muniz, 164 A.3d 1189,4 our Supreme Court held SORNA I to be unconstitutional
because these provisions were punitive and violated the constitutional prohibition
against ex post facto laws.
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 are:
(1) convicted of a sexually violent offense committed on
or after April 22, 1996, but before December 20, 2012,
4
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
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.
4
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. 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 ten 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). Offenders
must report in person once a year at an approved facility to verify their residence and
be photographed; sexually violent predators5 must report in person four times per
5
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.
5
year. 42 Pa. C.S. §§9799.60(a), (b), 9799.54(b). Offenders must also 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
offender including name and known aliases; year of birth; residence; the location of
any schools attended by the offender; 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 SORNA; an indication of whether
the offender’s victim was a minor; a description of the offense committed by the
offender; the dates of the offense and conviction; and the location of the offender’s
temporary shelter and whether the offender receives mail, if the offender is
homeless. 42 Pa. C.S. §9799.63(c).
A lifetime registrant may petition with the sentencing court to be
removed from the statewide registry if at least 25 years have elapsed prior to filing
the petition, “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
42 Pa. C.S. §9799.53.
6
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).
In Count I, J.B. seeks relief on the grounds that Subchapter I of SORNA
II is punitive. This issue has been decided by our Supreme Court’s recent decision
in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020). 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 constituted an ex post facto violation. As
with J.B., Lacombe was convicted of involuntary deviate sexual intercourse in 1997,
and subject to a 10-year registration under the then-applicable version of Megan’s
Law. After he was released from prison in 2005, he was made subject to the lifetime
registration requirement of SORNA II. The Supreme Court held that Subchapter I
of SORNA II is nonpunitive and does not violate the ex post facto laws. In doing
so, the Supreme Court explained that,
7
[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 then explained that, in enacting SORNA II, “the
General Assembly made a number of material changes to the operation of SORNA
[I]” in order “[t]o achieve its dual goals of ensuring public safety without creating
another unconstitutionally punitive scheme.” Id. Among other things, pursuant to
Subchapter I of SORNA II, 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),6 to determine
6
In Mendoza-Martinez, the Supreme Court identified the following factors for considering
whether a law is punitive in effect:
(1) whether the sanction involves an affirmative disability or restraint; (2) whether
it has historically been regarded as a punishment; (3) whether it comes into play
only on a finding of scienter; (4) whether its operation will promote the traditional
aims of punishment, that is, retribution and deterrence; (5) whether the behavior to
which it applies is already a crime; (6) whether an alternative purpose to which it
may rationally be connected is assignable for it; and (7) whether it appears
excessive in relation to the alternative purpose assigned.
372 U.S. at 168-69.
8
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.
In light of Lacombe, we must reject J.B.’s claim that Subchapter I of
SORNA II is punitive. See also R.H. v. Pennsylvania State Police (Pa. Cmwlth.,
No. 699 M.D. 2018, filed January 12, 2021) (unreported), and R.F.M. v.
Pennsylvania State Police (Pa. Cmwlth., No. 495 M.D. 2019, filed October 4, 2021)
(unreported) (holding that under Lacombe, Subchapter I of SORNA II did not violate
the ex post facto laws because Subchapter I is not punitive in nature).7
In Count II, J.B. asserts that his 10-year registration term ended on
March 2, 2011, and because Megan’s Law II was succeeded by Megan’s Law III,
which was found unconstitutional, there was no valid registration law applicable to
him at the time SORNA II took effect. This claim likewise has no merit.
7
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).
9
In 2013, the Pennsylvania Supreme Court struck down Megan’s Law
III for violating the single subject rule of Article III, Section 3 of the Pennsylvania
Constitution, PA. CONST. art. III, §3. Commonwealth v. Neiman, 84 A.3d 603, 616
(Pa. 2013). By the time Megan’s Law III was struck down, it had been replaced by
SORNA I. J.B. does not dispute that he was required to register as a sex offender
under Megan’s Law III. Thus, he was subject to its replacement, i.e., SORNA I.
In Count III, J.B. argues that Subchapter I sets forth an irrebuttable
presumption that he poses a high risk of danger to the public, and the sex offender
registry and the internet site maintained by the State Police infringed on his right to
protect his personal reputation.
Section 9799.51(a) of Subchapter I of SORNA II provides, in pertinent
part, as follows:
(a) Legislative findings.--It is hereby determined and declared as
a matter of legislative finding:
***
(2) These sexually violent predators and offenders
pose a high risk of engaging in further offenses even
after being released from incarceration or
commitments, and protection of the public from this
type of offender is a paramount governmental
interest.
42 Pa. C.S. §9799.51. J.B. argues that Subchapter I violated his due process rights
by an improper irrebuttable presumption.
The irrebuttable presumption doctrine
derives from a series of United States Supreme Court cases in the
1970s involving statutes that infringed upon protected interests
or denied benefits by utilizing presumptions that the existence of
one fact was statutorily conclusive of the truth of another fact.
10
The High Court concluded that, absent a meaningful opportunity
to contest the validity of the second fact, the statutory
irrebuttable presumptions deprived the citizenry of due process
of law.
In re J.B., 107 A.3d 1, 14 (Pa. 2014) (emphasis added). In reviewing a due process
claim raised under the irrebuttable presumption doctrine, the Supreme Court has
expounded the following three-element analysis: (1) whether petitioners have
asserted an interest protected by the due process clause that is encroached by an
irrebuttable presumption; (2) whether the presumption is not universally true; and
(3) whether a reasonable alternative means exists for ascertaining the presumed fact.
J.B., 107 A.3d at 15-16.
In R.C. v. Evanchick (Pa. Cmwlth., No. 223 M.D. 2019, filed March 17,
2021) (unreported), this Court considered preliminary objections filed by the
commissioner of the State Police to an amended petition for review filed by a sexual
offender. The offender asserted in his petition that SORNA II created an irrebuttable
presumption that sexual offenders posed a high risk of recidivism, which violated
procedural and substantive due process and infringed on the offender’s right to
reputation. This Court overruled the preliminary objections and ordered the State
Police to file an answer to the petition. In doing so, we relied upon the Supreme
Court’s decision in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020), in which
the Supreme Court considered whether Subchapter H of SORNA II, 42 Pa. C.S.
§§9799.10-9799.42, established an unconstitutional irrebuttable presumption8 that
offenders subject to its requirements pose a high risk of recidivism. The Supreme
Court remanded the matter for an evidentiary hearing on whether there is a scientific
8
Subchapter H of SORNA II contains a similar legislative finding that “[s]exual offenders pose a
high risk of committing additional sexual offenses and protection of the public from this type of
offender is a paramount governmental interest.” 42 Pa. C.S. §9799.11(a).
11
consensus sufficient to justify overturning the legislative determination concerning
sexual offenders’ likelihood of reoffending. Torsilieri, 232 A.3d at 587-88.
We held in R.C. that where a petitioner raises a colorable due process
claim under the irrebuttable presumption doctrine, the petitioner “must be given the
opportunity to present evidence in an effort to rebut the legislative finding with
respect to an adult sexual offender’s recidivation rates and the effectiveness of a tier-
based registration and notification system.” R.C., slip op. at 18. The offender in
R.C. averred, inter alia, that most registrants pose no higher risk of future criminal
conduct than people not on the sex offender registry; that the registry fails to achieve
its purpose of protecting the public; and that the registry makes the residents of the
Commonwealth less safe. The offender further averred that there is overwhelming
empirical evidence that relatively few people present a high risk of recidivism and,
in fact, most present almost no risk after a period of 15 years from the date of the
crime. Id. at 20. We held that the offender’s averments, if accepted as true, stated
“a colorable claim as to the scientific consensus regarding [SORNA II’s] irrebuttable
presumption,” and the offender “should be given the opportunity to prove his
contentions through scientific studies or comparable evidence that would satisfy this
element of the analysis.” Id. at 21-22.
By contrast, here, J.B.’s petition for review averred, in conclusory
fashion, that “[t]he registration statutes do not give offenders the opportunity to
challenge this presumption before they are automatically subject to the registration
provisions,” and the “public nature of the registry and the internet site maintained
by the [State Police] harms a registrant’s reputation.” Petition ¶¶26, 28. The petition
made no averments that the presumption established in Section 9799.51(a) of
Subchapter I of SORNA II “is not universally true” or that “a reasonable alternative
12
means exists for ascertaining the presumed fact.” J.B., 107 A.3d at 15-16. As such,
J.B. does not state a due process claim upon which relief could be granted. We are
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, 67 A.3d at 170.
Conclusion
For the foregoing reasons, we conclude that J.B.’s petition for review
has failed 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 J.B.’s
petition for review.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.B., : CASE SEALED
Petitioner :
:
v. : No. 644 M.D. 2018
:
Pennsylvania State Police, :
Respondent :
ORDER
AND NOW, this 25th day of March, 2022, the preliminary objection of
the Pennsylvania State Police is SUSTAINED. The petition for review filed by J.B.
is DISMISSED with prejudice.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita