C. J. v. PSP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
C. J., :
Petitioner :
:
v. : No. 363 M.D. 2021
: Submitted: April 14, 2022
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE1 FILED: June 20, 2023
C.J. (Registrant) filed a Petition for Review (PFR) in our original jurisdiction
seeking declaratory and injunctive relief in the form of an order terminating his
obligation to register as a sexual offender in Pennsylvania under the applicable
version of the Sexual Offender Registration and Notification Act (SORNA II).2 The
1
This opinion was reassigned to the opinion writer on January 23, 2023.
2
Former Section 9799.10 through 9799.75 of the Sentencing Code, formerly 42 Pa.C.S. §§
9799.10 - 9799.75. The prior registration requirements, commonly referred to as Megan’s Law III,
42 Pa.C.S. §§ 9791-9799.9, expired as of December 20, 2012, and SORNA, 42 Pa.C.S. §§ 9799.10 -
9799.41, took effect on the same date. Pursuant to the Pennsylvania Supreme Court’s decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), the General Assembly amended SORNA by the
Act of February 21, 2018, P.L. 27 (Act 10). The Act of June 12, 2018, P.L. 140 (Act 29) reenacted
and amended various provisions of Act 10. The provisions of Act 10 and Act 29 may collectively be
referred to as SORNA II.
Pennsylvania State Police (PSP) filed Preliminary Objections (POs) to Registrant’s
PFR, which are presently before this Court. Upon review, we sustain PSP’s POs, in
part, and overrule PSP’s POs, in part.
I. Background
Registrant alleges the following facts in his PFR. In 1998, Registrant pled
guilty to one count of aggravated sexual abuse in the third degree, which was a Class
D felony in the State of New York.3 PFR at 6. A New York court sentenced
Registrant to serve a one and one-half to three-year term of incarceration. Id.Pursuant to Registrant’s plea agreement, the sentencing court designated Registrant
as a sexual offender under a section of the New York Corrections Law that required
Registrant to register with the New York Division of Criminal Justice Services
annually for a minimum of 10 years. Id.Registrant moved from New York to Pennsylvania in the summer of 2000.
Id. On November 19, 2019, the State of New York reduced Registrant’s risk level
from two to one. Id. As a result, if Registrant moved back to New York, he would
not have to register as a sexual offender. Id. at 6-7. Nevertheless, PSP classified
Registrant as a Tier III Offender under SORNA4 and requires him to register for life
in Pennsylvania. Id. at 7.
3
At the time, the New York Penal law defined the crime of aggravated sexual abuse in the third
degree as follows:
1. A person is guilty of aggravated sexual abuse in the third degree when he
inserts a foreign object in the vagina, urethra, penis or rectum of another
person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being
physically helpless; or
(c) When the other person is less than eleven years old.
N.Y. Penal Law § 130.66(1)(a)-(c) (McKinney 1996).
4
Registrant referenced prior versions of SORNA II in his PFR, including Megan’s Law and
SORNA. We will discuss the distinction between Megan’s Law, SORNA, and SORNA II infra.
2
Registrant asserts that Pennsylvania law does not require him to register in
Pennsylvania and that PSP misclassified him as a Tier III Offender under SORNA.
PFR at 7. Registrant also asserts that PSP misinterpreted and misapplied the law in
that even if he was required to register in Pennsylvania, it should have only been for
10 years. Id. Thus, Registrant asserts PSP’s current registration requirement is
unlawful and, despite his attempts, PSP “will not provide a process for [Registrant]
to attempt to remedy or challenge its incorrect and/or misapplied registration
requirements.” Id. at 7-8.
Registrant also asserts PSP’s registration requirements violate the
constitutional prohibition against ex post facto laws, and the legal mandates of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S.
99 (2013),5 relating to his procedural and substantive due process rights.
PSP filed POs, in the nature of demurrers, to Registrant’s PFR. PSP asserts
this Court should dismiss Registrant’s PFR because (a) Registrant’s ex post facto
challenge lacks merit, (b) Registrant’s due process challenges lack merit, (c)
Registrant’s challenge to his registration obligations under “SORNA” are moot
because SORNA II governs this matter, and (d) Registrant failed to exhaust his
administrative remedies. See POs at 3-5.
II. Analysis
“In ruling on preliminary objections in the nature of a demurrer, [this] Court
must accept as true all well-pleaded material facts and all inferences reasonably
deducible therefrom.” Savage v. Storm, 257 A.3d 187, 191 (Pa. Cmwlth. 2021)
5
In Commonwealth v. Butler, 226 A.3d 972, 976 n.3 (Pa. 2020), the Pennsylvania Supreme Court
explained that “[i]n Apprendi and Alleyne, the Supreme Court of the United States held [that] any
fact, which increases the statutory maximum penalty (Apprendi), or the mandatory minimum
sentence (Alleyne), must be submitted to a jury and proven beyond a reasonable doubt.”
3
(citations omitted). We are not bound, however, by “legal conclusions,
argumentative allegations, unwarranted inferences from facts, or expressions of
opinion.” Id. (citations omitted). “We ‘may sustain preliminary objections only
when the law makes clear that the petitioner cannot succeed on the claim, and we
must resolve any doubt in favor of the petitioner.’” Id. (citation omitted). When
reviewing preliminary objections in the nature of a demurer, we “may sustain a
demurrer only when a petitioner has failed to state a claim for which relief may be
granted.” Armstrong Cnty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170
(Pa. Cmwlth. 2013) (citation omitted).
Registrant seeks declaratory relief in the form of a declaration that Registrant
is not required to register as a sexual offender in Pennsylvania. See PFR at 2, 9.
Pursuant to the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, this Court has
discretion to refuse to grant a declaratory judgment where the judgment “would not
terminate the uncertainty or controversy giving rise to the proceeding.” 42 Pa.C.S.
§ 7537. As a result, “the granting of a petition for a declaratory judgment is a matter
lying within the sound discretion of a court of original jurisdiction.” Brouillette v.
Wolf, 213 A.3d 341, 357 (Pa. Cmwlth. 2019).
Registrant also seeks injunctive relief in the form of an order of this Court
prohibiting PSP from requiring him to register as a sexual offender. PFR at 9. “To
justify the award of a permanent injunction, the party seeking relief must establish:
[(1)] that his right to relief is clear, [(2)] that an injunction is necessary to avoid an
injury that cannot be compensated by damages, and [(3)] that greater injury will
result from refusing rather than granting the relief requested.” City of Phila. v.
Armstrong, 271 A.3d 555, 560 (Pa. Cmwlth. 2022) (internal quotations and citation
omitted). Unlike a preliminary injunction, the party seeking a permanent injunction
4
“need not establish either irreparable harm or immediate relief[,] and a court may
issue a final injunction if such relief is necessary to prevent a legal wrong for which
there is no adequate redress at law.” Id. (internal quotations and citation omitted).
A. Registrant’s Ex Post Facto Claim
Registrant asserts in his PFR that PSP’s application of SORNA’s registration
requirements to his pre-SORNA conviction in New York constitutes an ex post facto
violation. See PFR at 5. The Pennsylvania Supreme Court, however, has determined
that retroactive application of SORNA II’s registration requirements is “nonpunitive
and does not violate the constitutional prohibition against ex post facto laws.”
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020). Thus, Registrant’s ex post
facto claim is not a claim upon which this Court could grant Registrant relief, and
we sustain PSP’s PO and dismiss Registrant’s allegations of an ex post facto
violation.
B. Registrant’s Due Process Claims
Registrant next asserts that PSP’s registration requirement violates his due
process rights, as articulated in Apprendi and Alleyne. With respect to these claims,
we recently explained in J.B. v. Pennsylvania State Police, 273 A.3d 77 (Pa.
Cmwlth. 2022) that
[w]e held in R.C. [v. Evanchick (Pa. Cmwlth., No. 223 M.D.
2019, filed March 17, 2021),] 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
5
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, [the registrant’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 [PSP] harms a
registrant’s reputation.” . . . 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
means exists for ascertaining the presumed fact.” As such, [the
registrant] does not state a due process claim upon which relief could
be granted.
J.B., 273 A.3d at 84-85.
Similar to the registrant in J.B., Registrant’s PFR avers in a conclusory
manner that the registration requirements PSP enforces violate Apprendi and
Alleyne, as follows:
24. [Registrant’s] registration requirements, as applied by [PSP]
violate the legal mandates of Alleyne and Apprendi, by imposing a
mandatory blanket registration for life under SORNA, which is
predicated upon an unscientific and unlawful fallacy: its irrefutable
presumption that [Registrant] presents a future danger because he pled
guilty once in 1998, in New York, and then moved to Pennsylvania.
25. There is nothing of record in this case which suggests that
[Registrant] presents a threat of future harm to anyone under any
circumstances.
26. [Registrant] has made extraordinary efforts, but to no avail, to
have [PSP] recognize and apply SORNA correctly in order to apply the
correct tier, and to apply the requirements of Alleyne and Apprendi.
6
PFR at 8. As in J.B., Registrant’s PFR “does not state a due process claim upon
which relief could be granted.” J.B., 273 A.3d at 85. Accordingly, we sustain PSP’s
PO and dismiss Registrant’s allegations of due process violations pursuant to the
mandates of Apprendi and Alleyne.
C. SORNA
In its third preliminary objection, PSP asserts that Registrant has only
challenged his obligations to register under “SORNA.” See POs at 4. Noting that
SORNA II is the law in Pennsylvania, not SORNA, PSP asserts that we should
dismiss Registrant’s challenge to SORNA’s registration requirements as moot. Id.
We are not persuaded by PSP’s argument. Registrant references both SORNA
and Megan’s Law in his PFR. See PFR at 9. In addition, Registrant’s proposed
order, which was attached to his PFR, references “any other law.” Although neither
SORNA nor Megan’s Law are technically the name of Pennsylvania’s current law
governing sexual offender registration, both are the names of former sexual offender
statutes, and both are colloquial terms which the public generally uses to refer to
sexual offender registration. In fact, PSP still uses the term Megan’s Law to refer to
Pennsylvania’s sexual offender registration statute.6 Upon review of PSP’s POs, it
is clear that PSP was able to understand Registrant’s claims and prepare a defense
to those claims. As a result, Registrant’s use of the colloquial terms “Megan’s Law”
and “SORNA” has not prejudiced PSP in any way, and we decline to impose the
sanction of dismissing Registrant’s PFR for such an inconsequential, technical
deficiency.
6
Corporal Matthew Webb signed an Unsworn Declaration in this matter asserting he was
“assigned to [PSP’s] Megan’s Law Section” and “[p]art of [his] job responsibilities include the
review of documentation relating to sexual offenders that are required to register under Megan’s
Law in the Commonwealth of Pennsylvania.” See Respondent’s Br., Exhibit A (emphasis added).
7
D. Exhaustion of Administrative Remedies
In its final preliminary objection, PSP cites M.S. v. Pennsylvania State Police,
212 A.3d 1142, 1148-49 (Pa. Cmwlth. 2019), to assert that “the State Police [makes]
available to out-of-state offenders a hearing if an offender believes the equivalent
offense for which he is registering under Pennsylvania law is incorrect.” POs at 5.
More specifically, PSP attached the “unsworn declaration of Corporal Matthew
Webb” (Webb) to its Brief, in which Webb asserts “[t]he State Police will, upon
request of a sexual offender who was convicted out-of-state or through a military
court-martial, conduct an administrative hearing if the offender believes that their
registration period is incorrect or that they should not be required to register at all,”
and “[t]here is no record of ever receiving any request from [Registrant] to have a
hearing to challenge his obligation to register as a sexual offender.” See
Respondent’s Br., Exhibit A (emphasis added). Since Registrant has not requested
an administrative hearing, PSP asserts Registrant failed to exhaust his administrative
remedies and this Court should dismiss his PFR. Id.Based upon its POs and Webb’s unsworn declaration, it appears to this Court
that PSP does not understand its obligation to provide out-of-state or military court-
martialed sexual offenders with a post-equivalency determination administrative
appeal remedy. In M.S., the registrant moved to Pennsylvania after having been
convicted by general court-martial of a sexual offense. M.S., 212 A.3d at 1144. In
2017, “PSP designated [the registrant] as a Tier III sex offender under SORNA based
on the asserted similarity of his military offense” to a Pennsylvania Crimes Code
violation. Id. at 1144-45. PSP notified the registrant of its designation and the
registrant objected to the designation and requested a hearing, but PSP did not
respond to the registrant’s request. Id. at 1145.
8
In M.S., we evaluated whether PSP’s equivalency determination constituted a
valid adjudication as follows:
Section 504 of the Administrative Agency Law,[7] 2 Pa.C.S. § 504,
provides, in part: “No adjudication of a Commonwealth agency shall
be valid as to any party unless he shall have been afforded reasonable
notice of a hearing and an opportunity to be heard.” Failure to provide
notice and an opportunity to be heard in connection with the issuance
of an adjudication results in an invalid adjudication under Section 504
of the Administrative Law. See Philadelphia [Cnty.] Med. Soc’y v.
Kaiser, 699 A.2d 800, 806 (Pa. Cmwlth. 1997) (en banc) (Kaiser).
....
In the matter now before this Court, [the petitioner] was convicted of
an offense not specifically enumerated in SORNA or SORNA II’s Tier
classification scheme. As a result, PSP necessarily engaged in a
nonministerial act when it issued its equivalency determination
designating [the petitioner] as a Tier III sex offender, because such a
determination required PSP to determine whether the elements of the
crimes were comparable for purposes of SORNA or SORNA II.
Furthermore, PSP’s equivalency determination affected [the
petitioner’s] personal rights or obligations, because the registration
requirements have the potential to affect one’s reputation and impose
continuing obligations on registrants. It is also apparent that, in
rendering its equivalency determination, PSP did not afford [the
petitioner] an avenue to challenge the determination through
“reasonable notice of a hearing and an opportunity to be heard,” as
required by Section 504 of the Administrative Agency Law. Thus,
PSP’s equivalency determination constituted an invalid adjudication
under the Administrative Agency Law.
For these reasons, we conclude that PSP must, consistent with the
Administrative Agency Law, provide a sex offender with a post-
equivalency determination administrative appeal remedy, which must
include reasonable notice of a hearing and an opportunity to be heard.
Although [the petitioner] requested a post-determination hearing, PSP
did not respond to his request. Consequently, we declare that PSP must
comply with the Administrative Agency Law and provide [the
7
2 Pa.C.S. §§ 501-508, 701-704.
9
petitioner] with a post-determination administrative appeal remedy and
a valid adjudication, which would then be appealable to this Court. See
42 Pa. C.S. § 702.
M.S., 212 A.3d at 1147-49 (footnotes omitted).
M.S. did not suggest that making a post-equivalency hearing available upon
the request of a registrant was acceptable. Instead, M.S. clearly and unambiguously
stated that an equivalency determination is an invalid agency adjudication unless
PSP complies with Section 504 of the Administrative Agency Law, 2 Pa.C.S. § 504,
and provides the registrant with “reasonable notice of a hearing and an opportunity
to be heard” before issuing a final adjudication. M.S., 212 A.3d at 1149; 2 Pa.C.S.
§ 504.
We recognize that this Court decided M.S. after PSP issued Registrant’s
equivalency determination. Nevertheless, PSP has not provided any information to
suggest that it complied with the Administrative Agency Law in issuing Registrant’s
equivalency determination. Instead, its assertions of record tend to show that it
likely failed to afford Registrant with reasonable notice of a hearing8 and an
opportunity to be heard, as required by Section 504 of the Administrative Agency
Law.
In this matter, Registrant asserts in his PFR that he has “made extraordinary
efforts” and presented information to PSP to show PSP that its equivalency
determination was incorrect. See PFR at 7-8. In addition, he asserts that PSP “will
not provide a process for [Registrant] to attempt to remedy or challenge its incorrect
and/or misapplied registration requirements.” Id. Regardless of the truth or falsity
of these assertions, the Administrative Agency Law does not place any burden upon
a registrant to seek out a hearing to challenge PSP’s equivalency determinations.
8
Providing a procedure for a registrant to request a hearing does not fulfill this requirement.
10
Rather, to comply with the Administrative Agency Law, PSP must schedule a post-
equivalency determination hearing and provide the registrant with reasonable notice
of that hearing and an opportunity to be heard. Only after conducting this hearing
can PSP issue a valid adjudication.
III. Conclusion
Since PSP has not introduced any facts that would establish that Registrant’s
equivalency determination was a valid adjudication under the Administrative
Agency Law, we overrule PSP’s PO regarding Registrant’s failure to exhaust
administrative remedies. The time for filing a further responsive pleading is stayed
until further order of court.
______________________________
STACY WALLACE, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
C. J., :
Petitioner :
:
v. : No. 363 M.D. 2021
:
Pennsylvania State Police, :
Respondent :
ORDER
AND NOW, this 20th day of June 2023, upon consideration of the
Pennsylvania State Police’s preliminary objections to C.J.’s Petition for Review, we
SUSTAIN preliminary objections I and II regarding ex post facto laws and violations
of C.J.’s due process rights, as articulated in Apprendi v. New Jersey, 530 U.S. 466(2000), and Alleyne v. United States, 570 U.S. 99 (2013). Accordingly, those claims
are DISMISSED. We OVERRULE preliminary objection III regarding mootness
due to the use of “SORNA” and “Megan’s law” instead of “SORNA II.” We also
OVERRULE preliminary objection IV regarding exhaustion of administrative
remedies.
The time for filing a further responsive pleading is STAYED, and a status
conference is hereby scheduled for Wednesday, July 12, 2023, at 10:00am. At the
status conference, the parties shall be prepared to provide the court with an update
on the status of C.J.’s post-equivalency hearing. See M.S. v. Pa. State Police, 212
A.3d 1142, 1149 (Pa. Cmwlth. 2019); 2 Pa.C.S. § 504. The status conference shall
be conducted by telephone call with counsel of record and shall be heard by a
designated judge of this Court. The Court will contact counsel of record to confirm
the call and to provide the call-in information.
______________________________
STACY WALLACE, Judge