Com. v. Shrawder, R.

J-A22020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBIN SHRAWDER,
Appellant No. 2027 MDA 2014
Appeal from the Order Entered November 5, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0002057-2014
BEFORE: BOWES, JENKINS, AND PLATT,* JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 20, 2015
This Court continues to twist itself into Gordian knots to uphold
retroactive application of a sex offender registration statute, SORNA, 1 to
individuals who unquestionably had no notice of the new law at the time
they pled guilty, or that a non-existent law would apply to them, or that they
would have no ability to have an opportunity to escape its application. I do
agree that Appellant is foreclosed from asserting that he is not subject to
any period of registration because he acquiesced in registering under a prior
version of the current law. Nevertheless, I dissent from the holding that he
must register for life based on one criminal episode resulting in two findings
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1
42 Pa.C.S. § 9799.10-9799.41.
* Retired Senior Judge assigned to the Superior Court.
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of guilt for luring a child into a motor vehicle—crimes for which he has
completed serving his three-year probationary sentence and for which the
Commonwealth previously declined to seek lifetime registration under a
virtually identical statutory framework. Since the Commonwealth declined
to invoke lifetime registration at that point, it should be foreclosed from
doing so now.
Moreover, I agree with Appellant that his contractual plea bargain was
violated by the addition of material terms to the agreement that were not
contemplated by the parties when it was entered. This Court continues to
ignore that in virtually no other setting, aside from retroactive application of
SORNA, does a court authorize material terms to be added to a contract
after the fact. Rather than engage in an analysis of what terms were agreed
upon by the parties when the agreement was entered, we have instead
considered the absence of express evidence regarding a registration
requirement as proof that the individual acquiesced to non-existent terms
being imposed at a later date. See Commonwealth v. Giannantonio, 114
A.3d 429 (Pa.Super. 2015). Such an interpretation of the law is not only
untenable, but it turns contractual analysis on its head. If we are to
continue to construe plea bargains in a contractual manner as required by
applicable precedent, see Commonwealth v. Anderson, 996 A.2d 1184,
1191 (Pa.Super. 2010), we should do so faithfully and not to achieve a
desired result due to the nature of the offenders involved.
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Herein, the learned majority makes much of the fact that Appellant’s
plea was not structured to avoid registration. This fact is a court-created
non-sequitur in cases such as this. There is no dispute that where a plea is
structured to avoid registration or a certain period of registration, it is
improper to require a different period of registration. See Commonwealth
v. Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc);
Commonwealth v. Nase, 104 A.3d 528 (Pa.Super. 2014); compare also
Commonwealth v. Partee, 86 A.3d 245 (Pa.Super. 2014) (defendant’s
violation of his probation resulted in him no longer being entitled to the
original benefit of his plea bargain). However, this rationale does not
answer the question of whether lifetime registration should be retroactively
imposed where there was no reason for the defendant to negotiate to
remove such registration in the first instance. Obviously, Appellant could
not seek to avoid a lifetime of sex offender registration based solely on the
commission of luring of a child into a motor vehicle when there was no law
requiring it when his plea was tendered.2
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2
As discussed later in the body of this writing, I acknowledge that under a
subsequent interpretation of the governing statute, the Commonwealth
could have sought to invoke lifetime registration. Since it did not, however,
there was no reason for Appellant to negotiate and no case law interpreting
the prior sex offender law as compelling lifetime registration. Frankly, as
delineated infra, I view the decision by this Court that could have subjected
Appellant to lifetime registration, Commonwealth v. Merolla, 909 A.2d
337 (Pa.Super. 2006), as distinguishable.
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Simply put, there was no reason to negotiate a different plea to avoid
lifetime registration when the Commonwealth was not seeking lifetime
registration. Indeed, the Commonwealth could not have removed a more
serious charge subjecting Appellant to lifetime registration because he was
not charged with any such crimes.3 See Majority Memorandum, at 9
(finding fact that Commonwealth did not remove charges that would have
resulted in lifetime registration significant). Further, the majority provides
the red herring argument that the collateral consequences of Appellant’s
plea, that being registration, do not render his plea involuntary. Id. at 10.
This observation fails to persuade because Appellant does not allege his plea
was involuntary nor does he seek to withdraw his plea. Rather, Appellant is
seeking specific enforcement of his plea. It is immaterial that registration is
considered a collateral consequence under these facts because Appellant
does not contest his plea. See Nase, supra at 533.
In Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.Super. 1995),
this Court set forth that “[a]lthough a plea agreement occurs in a criminal
context, it remains contractual in nature and is to be analyzed under
contract-law standards.” Consistent with this approach, the Kroh Court
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3
The Commonwealth charged Appellant with two counts each of luring a
child into a motor vehicle and corruption of a minor. Appellant is not
required to register based on the corruption of a minor charges. See
Commonwealth v. Sampolski, 89 A.3d 1287 (Pa.Super. 2014).
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opined that ambiguities in the terms of the plea agreement are to be
construed against the Commonwealth. Id. Under ordinary contract
principles, the terms of a contract are those agreed to by the parties.
Indeed, a contract requires six elements: (1) mutual assent; (2)
consideration; (3) contracting parties; (4) an agreement that is sufficiently
definite; (5) parties that have the legal capacity to make a contract; and (6)
an absence of any legal prohibition to the formation of the agreement. John
E. Murray Jr., Murray on Contracts, at 59 (4th Ed. 2001). In deciding the
terms of a plea agreement as with other contracts, we resolve any dispute
by applying objective standards. Kroh, supra at 1172. Contracts may be
oral or written, and conduct or acts may evidence an agreement. Additional
material terms generally do not become part of an agreement unless those
terms are agreed upon either through a writing, an express oral agreement,
or a course of performance, including the conduct of the parties.
Here, the actual terms of the agreement are relatively straightforward.
Appellant agreed to plead nolo contendere to two counts each of luring a
child into a motor vehicle and corruption of a minor. In exchange, the
Commonwealth did not seek a period of incarceration. The court, it should
be noted, also failed to inform Appellant that he was subject to sex offender
registration either when he entered his nolo contendere plea on April 12,
2005, or when he was sentenced on May 26, 2005. Nonetheless, at that
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time, a person found guilty and sentenced for committing the crime of luring
a child into a motor vehicle was subject to a ten-year period of registration.
The Commonwealth waived its right to seek a determination by the
court that Appellant was a sexually violent predator (“SVP”) by failing to
request a SVP hearing. A finding that Appellant was an SVP would have
mandated lifetime reporting. In addition, the Commonwealth did not seek to
require lifetime registration because Appellant had pled nolo contendere to
two counts of luring. See Commonwealth v. Merolla, 909 A.2d 337
(Pa.Super. 2006) (holding that the then-applicable sex offender registration
statute required lifetime registration for a person found guilty at the same
time of multiple offenses, including luring of a child into a motor vehicle).
In the beginning of August 2006, a full year after Appellant’s
sentencing, the Pennsylvania State Police first notified Appellant that he was
required to register as a sex offender for ten years. Critically, the
Pennsylvania State Police did not seek to require Appellant to register for life
under the then-existing statute, 42 Pa.C.S. § 9795(b)(1), because he pled
guilty to two counts of luring. Moreover, the Commonwealth, via the
Pennsylvania State Police, did not inform Appellant after the decision in
Merolla, supra, which was decided on September 28, 2006, that he was
required to register for life. That decision interpreted § 9795(b)(1) and its
language that "An individual with two or more convictions of any of the
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offenses set forth in subsection (a)[,]" which included luring, see Merolla,
supra at 347 n.15, were subject to lifetime registration. Id. at 346.
These facts, in my view, compel the conclusion that the
Commonwealth is estopped from now seeking lifetime registration under the
provision in SORNA at issue. Indeed, it has waived any such argument. To
conclude otherwise is to reward the Commonwealth for its dilatory
arguments that could have been forwarded when Appellant was initially
sentenced. Of course, I am aware that Appellant did not contest his ten-
year registration period and registered on August 13, 2006. He has
continued to register annually since that time. For this reason, I would find
that he is estopped from receiving relief in the nature of completely
removing the registration requirement. Having acquiesced to the
registration period in 2006, Appellant has waived any challenge to non-
registration and must at least register for ten years.4 Moreover, contract law
incorporates existing law. See Nase, supra at 534. Appellant was required
to register for ten years based on his plea despite the court’s failure to notify
him of such.
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4
The Commonwealth’s failure to have Appellant register for one year should
be attributed to it because commencement of registration is intended to
start when a person begins his or her probationary sentence if they are not
incarcerated.
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On December 20, 2012, SORNA went into effect. That statute created
a three-tiered classification of sex offenders and retroactively increased
registration for luring a child into a motor vehicle to fifteen years. 42
Pa.C.S. § 9799.14(b); 42 Pa.C.S. § 9799.15(a)(1). The fifteen year period is
for Tier-I offenders. See 42 Pa.C.S. § 9799.15. Lifetime registration is
required for Tier-III offenders. 42 Pa.C.S. § 9799.15(a)(3). The statute
classifies those with, “[t]wo or more convictions of offenses listed as Tier I or
Tier II sexual offenses[,]” as Tier-III offenders, subject to lifetime
registration. 42 Pa.C.S. § 9799.14(d)(16).
Appellant and the Commonwealth did not mutually assent to lifetime
registration in exchange for Appellant’s plea. Lifetime registration was not a
term of the initial plea nor is it a term over which a reasonable person would
not have negotiated. Were this any other contractual scenario, it would be
beyond cavil that the Commonwealth could not retroactively add a material
term to the plea bargain and require Appellant to register beyond ten years.
This conclusion is reinforced where the defendant is no longer serving any
type of sentence. Compare Commonwealth v. Benner, 853 A.2d 1068,
1072 (Pa.Super. 2004) (“We read these cases to suggest that the collateral
effect of current [Megan’s Law] legislation may be imposed on the defendant
so long as he remains in the custody of correctional authorities to
discharge any part of his sentence for the sex offense.”).
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In this respect, I add that retroactive application of any law, except
ameliorative criminal law, has long been disfavored precisely because it is
perceived as fundamentally unfair. William Blackstone, in his influential
Commentaries on the Laws of England, posited, “All laws should be therefore
made to commence in futuro, and be notified before their
commencement[.]” 1 Tucker’s Blackstone, 46 (Philadelphia, 1803).
“[S]ince the beginning of the Republic and indeed since the early days of the
common law: absent specific indication to the contrary, the operation of
nonpenal legislation is prospective only.” Kaiser Aluminum & Chemical
Corp. v. Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring).
Similarly, this Court in Anderson v. Sunray Elec. Inc., 98 A.2d 374,
375 (Pa.Super. 1953) (emphasis added), has recognized, “Unless the
legislature clearly manifests its intention otherwise, no law may be
construed to be retroactive, and then only where it does not destroy
vested rights or impair the obligations of contracts.” See also 1
Pa.C.S. § 1926.5
While the legislature here did expressly indicate that this law would
apply retroactively, that does not alter the fact that from the early days of
this Commonwealth our courts have recognized the odious nature of
retroactive civil laws. In Commonwealth v. Duane, 1 Binn. 601 (Pa.
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5
1 Pa.C.S. § 1926 codified Pennsylvania common law.
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1809), the Pennsylvania Supreme Court distinguished between the
prohibition against civil retroactive laws and ameliorative retrospective
criminal legislation. There, the defendant was indicted and found guilty of
committing a libel against Pennsylvania’s governor in his official capacity.
However, prior to his judgment of sentence, the legislature passed a law
stating that no person was to be prosecuted by indictment for publication of
papers or for investigating the official conduct of men in a public capacity.
Counsel for Duane argued that the law interfered with no vested right, did
not violate any right of property, and effectively terminated his prosecution.
The Pennsylvania Supreme Court agreed, with Chief Justice Tilghman
stating, “If the same expression had been used, as applied to a civil action, I
should have thought myself warranted in giving it a different construction,
because then it would have operated in a retrospective manner, so as to
take away from a citizen a vested right. But there is a wide difference
between a civil and a criminal action.” Id. at 608-609.
Justice Joseph Story, writing while on circuit, offered a concise
summary of retroactive civil laws, which has subsequently been adopted by
the United States Supreme Court, see Landgraf v. USI Film Products,
511 U.S. 244 (1994), and utilized by courts in this Commonwealth.
Justice Story opined, “every statute, which takes away or impairs vested
rights acquired under existing laws, or creates a new obligation, imposes a
new duty, or attaches a new disability, in respect to transactions or
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considerations already past, must be deemed retrospective[.]” Society for
the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (1814).6
Justice Duncan of the Pennsylvania Supreme Court echoed this definition,
cited Justice Story’s opinion in Justice Duncan’s opinion in Eakin v. Raub,
12 Serg. & Rawle 330 (Pa. 1825), and recognized the distinction between
the prohibition against civil retroactive law and ameliorative criminal
legislation. Id. at 362.7
A number of other state courts have construed their versions of
SORNA as violating constitutional retroactivity clauses or that state’s ex post
facto prohibition. Starkey v. Oklahoma Dept. of Corrections, 305 P.3d
1004 (Okla. 2013) (SORNA statute violated ex post facto clause of state
constitution); Doe v. Department of Public Safety and Correctional
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6
This Court has defined a vested right as one that “so completely and
definitely belongs to a person that it cannot be impaired or taken away
without the person's consent.” In re R.T., 778 A.2d 670, 679 (Pa.Super.
2001). In Eakin v. Raub, 12 Serg. & Rawle 330, 360 (Pa. 1825),
Justice Duncan opined, “a vested right is where a man has power to do
certain actions, or to possess certain things, according to the laws of the
land.” One’s liberty interest is unquestionably a vested right, which is
supposed to only be deprived via due process.
7
Civil retrospective law was also permissible where, the law “does not
violate the constitutional prohibitions,” and provided “to a party a remedy
which he did not previously possess, or modify an existing remedy, or
remove an impediment in the way of recovering redress by legal
proceedings.” Hepburn v. Curts, 7 Watts 300, 301 (Pa. 1838). Thus,
statutory law that benefitted individuals without invading the vested rights of
another was lawful.
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Services, 62 A.3d 123 (Md. 2013) (Maryland sex offender statute violated
ex post facto clause of state constitution); State v. Williams, 952 N.E.2d
1108, 1113 (Ohio 2011) (Ohio SORNA statute violated state constitutional
prohibition against retroactive laws); cf. State v. Bodyke, 933 N.E.2d 753
(Ohio 2010) (Ohio SORNA violated separation of powers) State v.
Letalien, 985 A.2d 4 (Me. 2009) (ex post facto violation to apply
retroactively the enhanced requirements of SORNA of 1999 when, by so
doing, the application revises and enhances sex offender registration
requirements that were a part of the offender's original sentence); but see
Doe I v. Williams, 61 A.3d 718 (Me. 2013) (SORNA statute at issue did not
violate substantive or procedural due process or ex post facto clause).
Conversely, several states have upheld retroactive sex offender
registration changes under ex post facto and due process challenges. Doe I
v. Williams, supra; Roe v. Replogle, 408 S.W.3d 759 (Mo. 2013) (federal
SORNA law, applicable to residents of Missouri, did not violate substantive
due process); Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013). As
recognized by Appellant, this Court has rejected a federal ex post facto
challenge to SORNA. Commonwealth v. Perez, 97 A.3d 747 (Pa.Super.
2014).8
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8
The Commonwealth Court in Coppolino v. Noonan, 102 A.3d 1254
(Pa.Cmwlth. 2014), allowance of appeal granted, 132 MAP 2014 (July 20,
(Footnote Continued Next Page)
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I acknowledge that this Court is bound by Perez and its conclusion
that SORNA is not an ex post facto law since our courts do not consider
SORNA to be punitive.9 Indeed, Appellant does not even attempt to advance
such a position nor does he argue that under an originalist interpretation of
the Pennsylvania Constitution’s ex post facto clause, such a law should be
classified as penal. Of course, I note that even before the adoption of the
Pennsylvania Constitution, the Magna Carta exclaimed, “No Freeman shall be
taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free
Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we
not pass upon him, nor condemn him, but by lawful Judgment of his Peers,
or by Law of the Land.” See In re Winship, 397 U.S. 358, 378-379,
(1970) (Black, J., dissenting).
As far back as 1642, Lord Edward Coke, in his influential Institutes,
opined that “due process of law” is synonymous with “law of the land.” Id.
at 379; Hoboken Land, supra at 276. Justice Curtis, writing in 1855 for
the United States Supreme Court, opined,
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(Footnote Continued)
2015), did hold that retroactive in-person registration under SORNA was
unconstitutionally punitive. It severed that provision from the remainder of
the law.
9
I recognize that SORNA’s requirements only occur as a direct result of a
criminal conviction, are generally imposed at sentencing, except in cases
where the defendant has already been sentenced or, as in this case, is no
longer even serving a sentence, and are often more onerous than traditional
probation and parole requirements.
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The constitutions which had been adopted by the several States
before the formation of the federal constitution, following the
language of the great charter more closely, generally contained
the words, ‘but by the judgment of his peers, or the law of the
land.’ The ordinance of congress of July 13, 1787, for the
government of the territory of the United States northwest of the
River Ohio, used the same words.
Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855). He
continued by acknowledging that the federal constitution “contains no
description of those processes which it was intended to allow or forbid. It
does not even declare what principles are to be applied to ascertain whether
it be due process.” Id. However, the High Court set forth, “It is manifest
that it was not left to the legislative power to enact any process which might
be devised. The article is a restraint on the legislative as well as on the
executive and judicial powers of the government, and cannot be so
construed as to leave congress free to make any process ‘due process of
law,’ by its mere will.” Id. Even before Justice Curtis’ opinion, the
Pennsylvania Supreme Court recognized that due process is not satisfied by
the mere passage of legislation.
In Norman v. Heist, 5 Watts & Serg. 171 (Pa. 1843), the Court held
that Pennsylvania’s law of the land provision was designed “to exclude
arbitrary power from every branch of the government; and there would be
no exclusion of it, if such rescripts or decrees were allowed to take effect in
the form of a statute.” Heist, supra at 173. There, the Pennsylvania High
Court ruled that a statute that retroactively deprived a party of property
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violated due process. The “law of the land” had to be “a pre-existent rule of
conduct[.]” Id. In Brown v. Hummel, 6 Pa. 86 (1847), the Pennsylvania
Supreme Court eloquently stated,
What, then, is the law of the land, as it relates to the protection
of private rights? Does it mean bills of attainder in the shape of
an act of Assembly, whereby a man's property is swept away
from him without hearing trial, or judgment, or the opportunity
of making known his rights or producing his evidence? It
certainly does not. It was to guard against such things which had
been common in the reign of the Stuarts and their predecessors,
and with which our forefathers of the Anglo-Saxon race were
familiar, that these irrevocable and unassailable provisions were
introduced into the constitution. The law of the land does not
mean acts of Assembly in regard to private rights, franchises,
and interests, which are the subject of property and individual
dominion. But it means what is clearly indicated by the other
provisions of the bill of rights, to wit: the law of the individual
case, as established in a fair and open trial, or an opportunity
given for one in court, and by due course and process of law. "I
am a Roman citizen," were once words of power, which brought
the proudest proconsul to a pause, when he was about to
commit oppression: and the talismanic words, I am a citizen of
Pennsylvania, secures to the individual his private rights, unless
they are taken from him by a trial, where he has an opportunity
of being heard by himself, his counsel, and his testimony, more
majorum, according to the laws and customs of our fathers, and
the securities and safeguards of the constitution.
Hummel, supra at 91.
Counsel in Menges v. Dentler, 33 Pa. 495 (1859), also argued that
“law of the land” did not merely mean legislative acts. Rather, they
maintained that laws that impaired or destroyed vested rights were in
violation of due process. The Dentler Court considered both Article I, § 9
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and Article I, § 11 of the Pennsylvania Constitution, and accepted that
position. In doing so, it set forth,
These provisions are taken from Magna Charta; but they have
higher value here than in England, just as a constitution adopted
by the people is of higher value than a mere act of Parliament.
Parliament may disregard Magna Charta, but our legislature
must obey the constitution. These provisions are, therefore,
imperative limitations of legislative authority, and imperative
impositions of judicial duty.
Dentler, supra at 498. The Court continued, admittedly under the facts of
the issue in question, and posited,
The law which gives character to a case, and by which it is to be
decided (excluding the forms of coming to a decision), is the law
that is inherent in the case, and constitutes part of it when it
arises as a complete transaction between the parties. If this law
be changed or annulled, the case is changed, and justice denied,
and the due course of law violated.
Id. These principles should apply no less than when the vested right in
question is not a property right but a liberty right against lifetime sex
offender registration where the defendant has completed serving his
sentence and had no notice of increased registration requirements.10
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10
The only Pennsylvania Supreme Court opinion to address SORNA and
procedural due process held that SORNA violated the rights of juveniles.
See In re J.B., 107 A.3d 1 (Pa. 2014). Therein, the High Court ruled that
registration for juvenile offenders, all of whom were previously not subject
to sex offender registration, violated due process. The juveniles in that case
each had been adjudicated delinquent before SORNA’s effective date, but
were still subject to juvenile court supervision on that date. Thus, unlike
Appellant herein, the juveniles were still under court supervision. Pursuant
to SORNA, juveniles who were subject to the jurisdiction of the juvenile
(Footnote Continued Next Page)
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I write further to address the trial court and majority’s application of
Merolla to this matter. I have already outlined my position that the
Commonwealth should be estopped from seeking application of Merolla
since it declined to advance this position during Appellant’s last nine years of
registration. Moreover, even if Merolla was a proper interpretation of
Megan’s Law II, it is distinguishable. In Merolla, the defendant committed
his crimes against multiple victims over a period of years. Here, Appellant
engaged in a single criminal episode on the same day within minutes of each
other, albeit with two minor females. That is, he asked both the teenage
girls, who were together, to masturbate him and perform oral sex in
exchange for money. Reprehensible as these actions are, they are easily
distinct from Merolla.
In my view, the plurality opinion of the learned former Chief Justice
Castille, in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012), also offers
persuasive authority for rejecting application of Merolla. At issue in that
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(Footnote Continued)
court, on the basis of certain sex offense adjudications, were required to
register as sex offenders. Juveniles required to register for life, contrary to
adults, were to be afforded a hearing twenty-five years after the completion
of court supervision. At that hearing, the juvenile offender would be able to
have registration terminated if he or she met certain criteria. The juvenile
offender would have to show by clear and convincing evidence that he or she
met the statutory criteria. The Supreme Court focused extensively on the
difference between juveniles and adults and concluded that creating an
irrebuttable presumption that the juveniles, based solely on their
adjudication, demonstrated a high risk of recidivism, was unconstitutional.
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case was the same statute as in Merolla. In Gehris, a forty-two year old
man repeatedly engaged in sexually explicit conversations with an individual
he thought was a thirteen-year-old girl as well as a nineteen-year-old
woman. He also mailed a digital camera to the person he believed was the
thirteen-year-old girl that included a picture of his genitalia. In addition, he
asked for nude pictures and attempted to arrange a meeting with the
supposed thirteen-year-old girl to have sex. The defendant pled guilty to
solicitation to commit sexual exploitation of children and solicitation for the
sexual abuse of children. The trial court imposed lifetime registration and
this Court affirmed, relying on Merolla.
The Pennsylvania Supreme Court split evenly three-to-three, with
Chief Justice Castille, joined by Justices Saylor and Baer, writing in support
of reversal. Chief Justice Castille detailed the recidivist philosophy of certain
criminal statutes, beginning with a quote from William Hawkins, Pleas of the
Crown, published in 1716, and moving forward through Pennsylvania case
law applying the recidivist philosophy to various statutes. He found that
Megan’s Law registration was a graduated scheme based on a recidivist
philosophy.11
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11
The Pennsylvania Supreme Court also granted allowance of appeal in
Commonwealth v. Mielnicki, 71 A.3d 245 (Pa. 2013), to determine if
Merolla was properly decided. However, the Supreme Court subsequently
(Footnote Continued Next Page)
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The Commonwealth Court subsequently adopted Chief Justice Castille’s
position in A.S. v. Pennsylvania State Police, 87 A.3d 917 (Pa.Cmwlth.
2014) (en banc). Indeed, had Appellant filed a mandamus petition against
the Pennsylvania State Police with the Commonwealth Court, he likely would
have been entitled to relief. It would be incongruous for different results to
occur simply based on where the initial action was commenced.
In A.S., the defendant was twenty-one years old when he engaged in
consensual sex with a sixteen-year old female. Despite the sexual activity
being non-criminal, he also used a camera to photograph the two engaging
in sexual activity and persuaded the female to take pictures of herself in
sexual positions. This conduct was criminal. A.S. pled guilty to one count
each of sexual abuse of a child, unlawful contact with a minor, and
corruption of a minor. At sentencing, the prosecutor, trial court, and A.S. all
proceeded under the assumption that he would be subject to a ten-year
period of registration. A.S. registered for ten years, and afterward sought to
have his name removed from the registry. The Pennsylvania State Police
refused, contending that he had to register for life. The Commonwealth
Court adopted Chief Justice Castille’s view. It found that because the
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(Footnote Continued)
dismissed that appeal as improvidently granted. Commonwealth v.
Mielnicki, 105 A.3d 1256 (Pa. 2014).
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conduct was a single criminal episode and A.S. did not have any chance at
reforming, he was subject to a ten-year period of registration.
The Opinion in Support of Affirmance in Gehris (“Gehris OISA”) and
the Merolla Court came to contrary conclusions by reasoning that the
phrase “two or more convictions” in the applicable provision of Megan’s Law
was not ambiguous. This, however, ignored long-standing Pennsylvania law
construing the words “convicted” and “conviction.” See Commonwealth v.
Hale, 85 A.3d 570 (Pa.Super. 2014), allowance of appeal granted on other
ground, 113 A.3d 1228 (Pa. 2014); Commonwealth v. Thompson, 106
A.3d 742 (Pa.Super. 2014) (Bowes, J., concurring) (joined by Donohue, J.).
In both Hale and Thompson, this author collected cases regarding
interpretation of the words “convicted” or “conviction.” In Hale, we set
forth, “[t]he term ‘conviction’ and its related term ‘convicted’ have a distinct
legal meaning under the law.” Hale, supra at 581. Specifically, the words
have both a popular and technical meaning. Id. (quoting Commonwealth
v. Palarino, 77 A.2d 665, 667 (Pa.Super. 1951)). The popular meaning is
a verdict of guilty or a plea of guilty. The technical meaning is a judgment
of sentence. Id.
Indeed, in one of the oldest Pennsylvania cases discussing the
meaning of conviction, Smith v. Commonwealth, 14 Serg. & Rawle, 69
(1826), the Pennsylvania Supreme Court stated, “When the law speaks of
conviction, it means a judgment, and not merely a verdict, which, in
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common parlance, is called a conviction.” Id. at 70. That interpretation was
followed in Commonwealth v. Black, 407 A.2d 403 (Pa.Super. 1979), and
Commonwealth v. Maguire, 452 A.2d 1047 (Pa.Super. 1982). The
Maguire Court stated, "appellant construes 'convicted' as equivalent to the
jury's 'verdict,' which it is not." Id. 1049.
Concomitantly, in Commonwealth v. Grekis, 601 A.2d 1284
(Pa.Super. 1992), this Court held that "we have interpreted the term
'conviction' in [18 Pa.C.S.] section 906 to mean entry of a judgment of
sentence not a finding of guilt by the jury." Id. at 1294; see also
Commonwealth v. Hassine, 490 A.2d 438, 460 (Pa.Super. 1985) ("we
accept the word 'conviction' as referring to post-verdict judgment by a court,
and not to the verdict by the jury itself"). In Commonwealth v. Socci, 110
A.2d 862 (Pa.Super. 1955), this Court opined that the term “conviction”
“must be given its strict technical meaning. There must be a judgment of
conviction.” Id. at 863 (quoting Palarino, supra at 667).
Our legislature, however, has also used the term conviction in its
ordinary sense as well. See 18 Pa.C.S. § 109; Thompson, supra;
Commonwealth v. Kimmel, 565 A.2d 426, 427 n.2 (Pa. 1989) (quoting
Commonwealth v. Beasley, 479 A.2d 460 (Pa. 1984), and stating, "the
term 'convicted' means 'found guilty' and not 'found guilty and sentenced.'").
Indeed, in Thompson, I opined that I was “troubled by the apparent
inconsistency in our interpretation of the words ‘convicted’ and ‘conviction.’
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In my view, the legislature would do well to define the words ‘conviction’ or
‘convicted’ to reflect when it is using those words in either their popular or
technical sense.” Thompson, supra at 768. Our recent interpretations
have largely been one-sided, in favor of the Commonwealth. This case law
reflects that whatever interpretation the words are to be given, the Gehris
OISA and Merolla Court were mistaken in finding that the language is
unambiguous.12
The decision by the trial court and the majority decision to affirm
results in a denial of procedural due process, inverts contract law, violates
principles of fundamental fairness, allows the Commonwealth to successfully
assert arguments that it declined to raise and waived almost a decade ago,
and applies a case that arguably was erroneously decided and is plainly
distinguishable. Only through legal gymnastics can this Court continue to
uphold retroactive application of SORNA to those no longer serving a
sentence as legally sound. In my considered view, if not for the fact that
SORNA applies to sex offenders, such serious constitutional and contractual
law concerns would not be tolerated. For all the aforementioned reasons, I
respectfully dissent.
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12
At the very least, we should consider en banc review to reexamine
Merolla.
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