N.E. Gregory v. PSP
245 M.D. 2015
| Pa. Commw. Ct. | Oct 13, 2016Background
- Petitioner Norman E. Gregory pleaded nolo contendere in 1983 to offenses including attempted rape and rape, for which he received a lengthy sentence and remains incarcerated.
- SORNA (Megan’s Law IV), effective December 20, 2012, classifies sexual offenders into tiers; Gregory’s convictions qualify as Tier III, requiring lifetime registration under 42 Pa. C.S. § 9799.15.
- Petitioner filed a pro se Petition to expunge/register relief and then an Amended Petition seeking an order that SORNA/Adam Walsh Act registration not apply absent a sentencing-judge determination of risk; he alleges he is classified by DOC as low risk and that SORNA’s retroactive, conviction-based scheme violates the Ex Post Facto Clause.
- Pennsylvania State Police (PSP) filed preliminary objections (POs) asserting the Amended Petition lacks specificity and, in the alternative, demurring that no SORNA-related or mandamus relief is available.
- The court found the Amended Petition legally deficient for lack of factual specificity (sustained without prejudice) but overruled PSP’s demurrer because it was not clear and free from doubt; Petitioner was granted leave to file a Second Amended Petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amended Petition sufficiently pleads facts to permit PSP to respond (insufficient specificity under Pa. R.C.P. 1028(a)(3)) | Gregory alleges SORNA is punitive and retroactive, he is low-risk, and SORNA should not apply without a sentencing-judge risk determination | PSP contends the Amended Petition lacks factual and legal specificity to allow an answer and should be dismissed | Sustained: Amended Petition lacked sufficient factual specificity; plaintiff given leave to amend |
| Whether SORNA-related relief or mandamus claims are legally available (demurrer / legal insufficiency under Pa. R.C.P. 1028(a)(4)) | Gregory seeks declaratory/mandamus relief barring application of SORNA absent judicial risk finding; claims Ex Post Facto violation | PSP argues SORNA applies as a matter of law to Gregory’s convictions and mandamus is not available or not properly pleaded | Overruled: Court would not sustain PSP’s demurrer because the demurrer was not clear and free from doubt; merits not decided |
Key Cases Cited
- Coppolino v. Noonan, 102 A.3d 1254 (Pa. Cmwlth. 2014) (holding SORNA is civil/remedial and its retroactive registration requirements generally are not ex post facto)
- Fagan v. Smith, 41 A.3d 816 (Pa. 2012) (explaining mandamus elements and limits)
- Wagaman v. Attorney General, 872 A.2d 244 (Pa. Cmwlth. 2005) (pleading standard: accept well-pleaded material allegations and reasonable inferences when ruling on POs)
- Grand Cent. Sanitary Landfill, Inc. v. Dep’t of Envtl. Res., 554 A.2d 182 (Pa. Cmwlth. 1989) (preliminary objections sustained only when clear and free from doubt)