Com. v. Gehret, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MARK P. GEHRET
Appellee No. 2042 MDA 2014
Appeal from the Order Entered November 5, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004251-2003
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 06, 2015
The Commonwealth appeals from the order entered in the Court of
Common Pleas of Berks County granting Mark P. Gehret’s “Motion to Enjoin
Sex Offender Registration Requirements.” Upon careful review, we affirm.
On June 1, 2004, Gehret entered an open guilty plea to one count of
statutory sexual assault1 after engaging in sexual intercourse in a parking lot
with a fifteen-year-old girl. At the time, Gehret was thirty years old. Gehret
was sentenced to serve ten to twenty-three months’ incarceration followed
by seven years of probation. At the time of the guilty plea, Gehret was not
required to register as a sex offender under the version of Megan’s Law then
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3122.1.
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in effect. Thereafter, Gehret violated both the parole and probationary
portions of his sentence. Most recently, Gehret was re-sentenced to eight
months to two years of incarceration followed by six years of probation on
June 14, 2010. Thereafter, he was informed by the Pennsylvania Board of
Probation and Parole that he would be required to register as a sex offender.
On August 6, 2014, Gehret filed a “Motion to Enjoin Sex Offender
Registration Requirements.” On November 3, 2014, the trial court granted
the motion, finding that, under recent amendments to the Sexual Offenders
Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9791-9799,
Gehret was not required to register as a sex offender. The Commonwealth
then filed a timely notice of appeal to this Court, as well as a court-ordered
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, the Commonwealth claims that the trial court erred by
finding that Gehret is not required to register under SORNA. Appellant’s
Brief, at 5.
The Commonwealth’s claim of error requires this Court to engage in
statutory interpretation of section 9799.13 of SORNA. “Statutory
interpretation is a question of law, and therefore our scope of review is
plenary, and our standard of review is de novo.” Commonwealth v.
Giulian, 111 A.3d 201, 203 (Pa. Super. 2015).
When interpreting a statute:
[W]e look to ascertain and effectuate the intention of the
General Assembly. Additionally, we must give effect to all of the
law[’]s provision[s] and are not to render language superfluous
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or assume language to be mere surplusage. If the text of the
statute is clear and free from all ambiguity, the letter of it is not
to be disregarded under the pretext of pursuing its spirit.
In re T.P., 78 A.3d 1166, 1174 (Pa. Super. 2013) (citations and quotation
marks omitted).
Where there is a conflict in the terms of the language of a statute,
section 1933 of the Statutory Construction Act provides as follows:
Whenever a general provision in a statute shall be in conflict with
a special provision in the same or another statute, the two shall
be construed, if possible, so that effect may be given to both. If
the conflict between the two provisions is irreconcilable, the
special provisions shall prevail and shall be construed as an
exception to the general provision, unless the general provision
shall be enacted later and it shall be the manifest intention of
the General Assembly that such general provision shall prevail.
1 Pa.C.S. § 1933.
We now turn to section 9799.13 of SORNA, which provides in pertinent
part:
§ 9799.13. Applicability.
The following individuals shall register with the Pennsylvania
State Police as provided in sections 9799.15 (relating to period
of registration), 9799.19 (relating to initial registration) and
9799.25 (relating to verification by sexual offenders and
Pennsylvania State Police) and otherwise comply with the
provisions of this subchapter:
***
(2) An individual who, on or after the effective date of this
section, [December 20, 2012], is, as a result of a conviction for
a sexually violent offense, an inmate in a State or county
correctional institution of this Commonwealth, including a
community corrections center or a community contract facility, is
being supervised by the Pennsylvania Board of Probation and
Parole or county probation or parole, is subject to a sentence of
intermediate punishment or has supervision transferred pursuant
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to the Interstate Compact for Adult Supervision in accordance
with section 9799.19(g).
***
(3.1) The following:
(i) An individual who between January 23, 2005, and
December 19, 2012, was:
(A) convicted of a sexually violent offense;
(B) released from a period of incarceration resulting from a
conviction for a sexually violent offense; or
(C) under the supervision of the Pennsylvania Board of
Probation and Parole or county probation or parole as a
result of a conviction for a sexually violent offense.
(ii) For purposes of this paragraph, the term “sexually violent
offense” shall have the meaning set forth in section 9799.12
(relating to definitions), except that it shall not include:
(A) Convictions:
(I) Under the following provisions of 18 Pa.C.S. (relating
to crimes and offenses):
***
Section 3122.1 (relating to statutory sexual assault).
42 Pa.C.S. § 9799.13. Paragraph (3.1) was amended on March 14, 2014,
but made retroactive to December 20, 2012.
The Commonwealth argues that the exception to registration under
paragraph (3.1)(ii)(A), applies to offenders who were convicted of
enumerated offenses between January 23, 2005, and December 19, 2012
and, because Gehret was convicted in 2004, the exception does not apply to
him. However, the Commonwealth ignores subsection (C) of paragraph
(3.1)(i), which also includes those, like Gehret, who were under parole or
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probationary supervision during that same time period, where the
supervision was the result of a conviction for a sexually violent offense.
We find Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super. 2014),
to be controlling. There, the appellant was convicted of indecent assault in
2009. At the time of his conviction, he was not required to register as a sex
offender under Megan’s Law. However, following a subsequent resentencing
resulting from a probation violation, Bundy was advised that he would be
required to register as a result of a recent amendment to Megan’s Law.
Thereafter, Bundy filed a petition with the trial court seeking relief from the
registration provision. While Bundy’s petition was pending, the legislature
passed, and the governor signed, the SORNA amendments at issue in the
instant matter. This Court held that because Bundy’s conviction occurred in
2009, within the timeframe provided in paragraph (3.1)(i)(A) of section
9799.13, and because paragraph (3.1)(ii)(B) excludes indecent assault from
the definition of a sexually violent offense triggering registration, Bundy was
not subject to registration.
Here, Gehret was, in fact, under parole and probationary supervision
between January 23, 2005 to December 19, 2012 for statutory sexual
assault, as provided in section 9799.13(3.1)(i)(C). However, statutory
sexual assault is an offense that the General Assembly excluded from the list
of crimes defined as sexually violent offenses for purposes of registration
under paragraph (3.1)(ii). Thus, Gehret’s offense falls within the exception
to the registration requirement.
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The Commonwealth also argues that Gehret is required to register
pursuant to paragraph (2) of section 9799.13. Section 9799.13(2) requires
an individual who was, inter alia, under supervision for a sexually violent
offense at any time after the effective date of the act to register as a sex
offender. This would seemingly conflict with the language of paragraph
(3.1)(ii) and require Gehret to register, as he was subject to supervision
after the effective date of the statute.
However, in Bundy, we recognized the conflict between the two
paragraphs of section 9799.13 and reconciled them as follows:
We are mindful that there is possible tension between Paragraph
(3.1)(ii) and Paragraph (2) of Section 9799.13, with the latter
stating, in relevant part, that the registration requirements apply
to “[a]n individual who, on or after the effective date of this
section [December 20, 2012], is, as a result of a conviction for a
sexually violent offense, ... being supervised by the Pennsylvania
Board of Probation and Parole or county probation or parole[.]”
42 Pa.C.S. § 9799.13(2). Nevertheless, to the extent there may
be a conflict in the statute, the general provision in Paragraph
(2) yields to the specific provision set forth in Paragraph (3.1)
and Paragraph (3.1) controls.
Bundy, 96 A.3d at 395 n.4.
Here, Gehret was under supervision for a statutory sexual assault
conviction between January 23, 2005, and December 19, 2012. This crime
is specifically excluded as a sexually violent offense for purposes of
registration under paragraph (3.1)(ii). Since paragraph (2) yields to
paragraph (3.1), see id., Gehret falls within the exception created by the
General Assembly in paragraph (3.1). Accordingly, Gehret is not subject to
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registration under section 9799.13 and the trial court properly granted his
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
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