Lead Opinion
OPINION
In this appeal by the Pennsylvania State Police (PSP) from a grant of mandamus relief, we revisit an issue that evenly divided the Court in Commonwealth v. Gehris, 618 Pa. 104, 54 A.3d 862 (2012), concerning the proper construction of the lifetime-registration triggering language “two or more convictions” in Pennsylvania’s former sex offender registration statute, Megan’s Law II (formerly codified at 42 Pa.C.S. § 9795.1(b)(1) (superseded)).
Section 9795.1 provided, in relevant part, as follows:
(a) Ten-year registration. — Except as set forth in subsection (a.l) or (b), the following individuals shall be required to register with the Pennsylvania State Police for a period of ten years:
(1) Individuals convicted of any of the following offenses:
18 Pa.C.S. § 2901 (relating to kidnapping) where the victim is a minor.
18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure).
18 Pa.C.S. § 3124.2 (relating to institutional sexual assault).
18 Pa.C.S. § 3126 (relating to indecent assault) where the offense is graded as a misdemeanor of the first degree or higher.
*407 18 Pa.C.S. § 4802 (relating to incest) where the victim is 12 years of age or older but under 18 years of age. 18 Pa.C.S. § 5902(b) or (b.l) (relating to prostitution and related offenses) where the actor promotes the prostitution of a minor.
18 Pa.C.S. § 5908(a)(3), (4), (5) or (6) (relating to obscene and other sexual materials and performances) where the victim is a minor.
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
(2) Individuals convicted of an attempt, conspiracy or solicitation to commit any of the offenses under paragraph (1) or subsection (b)(2).
‡ ⅜ ⅜
(b) Lifetime registration.-The following individuals shall be subject to lifetime registration:
(1) An individual with two or more convictions of any of the offenses set forth in subsection (a).
(2) Individuals convicted:
(i) in this Commonwealth of the following offenses:
18 Pa.C.S. § 3121 (relating to rape).
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
18 Pa.C.S. § 3124.1 (relating to sexual assault).
18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
18 Pa.C.S. § 4302 (relating to incest) when the victim is under 12 years of age.
⅜ * *
(3) Sexually violent predators.
42 Pa.C.S. § 9795.1(a) — (b) (emphases added). Under both Megan’s Law II and SORNA, PSP is tasked with maintaining
This dispute arose after appellee had completed his sentence for the underlying crimes. Proceeding under a belief he was subject to a ten-year SORNA registration period (a belief shared at sentencing by the court and the prosecutor), appel-lee filed a Petition for Review in the Nature of a Complaint in Mandamus in the Commonwealth Court’s original jurisdiction on July 19, 2012, shortly before expiration of that period. The petition sought to compel PSP to correct appellee’s sexual offender registration status from lifetime registrant to ten-year registrant and to remove him from the registry when the ten-year period expired. In the course of litigation, the parties attached exhibits including the transcripts from appel-lee’s guilty plea and sentencing proceedings; ultimately, the parties stipulated discovery was unnecessary and cross-motions for summary judgment were filed.
The facts respecting sex offender registration are thus undisputed. Appellee was twenty-one years old when he met the sixteen-year-old female victim on-line late in 1999. Appel-lee developed a relationship with the victim which ultimately resulted in a series of sexual encounters. The age of consent in Pennsylvania is sixteen, see 18 Pa.C.S. § 3122.1; thus, the consensual sexual relationship itself was not criminal. However, during the course of the relationship, appellee persuaded the victim to take and transmit sexually explicit photographs of herself and he also photographed the two engaging in sexual acts. It is a crime to photograph or cause to be photographed a minor engaging in consensual sex and causing a minor to take sexual photographs of herself. 18 Pa.C.S. § 6312(d).
After the victim’s father found sexually explicit photographs on the victim’s computer and reported them to police, appellee admitted to the sexual relationship, as well as the explicit photographs taken by him and taken by the victim at his request.
On October 5, 2001, appellee entered an open guilty plea to single counts of sexual abuse of children and unlawful contact with a minor — each of which was an enumerated offense for purposes of Megan’s Law II reporting under Section 9795.1(a) — and corruption of minors, which was not. The remaining charges were withdrawn. Sentencing was deferred for a pre-sentence report and sexual offender assessment.
On February 28, 2002, appellee was sentenced to concurrent 5- to 23-month terms of imprisonment on the first two counts and a consecutive five-year probationary term for corruption of minors. As required by Megan’s Law II, the court also informed appellee a collateral consequence of his convictions required him to register as a sex offender. See 42 Pa.C.S. § 9795.3. The parties and the trial court believed appellee was subject to a ten-year registration period, not lifetime registration. See N.T. 2/28/02 at 29-30, 45. Thus, appellee’s mother testified, “My son made a mistake, a terrible, terrible error in his life that’s affected him. He’s been punished. He will be punished. He has a ten-year reporting component to this punishment[,]” to which the trial court replied, “I know.” Id. at 29-30. The trial prosecutor confirmed, “He’s now facing a ten-year registration for Megan’s Law. That’s true. But why is he facing this ten-year registration? He is because what he did is a serious offense.” Id. at 45. In addition, appellee was found not to be a sexually violent predator (SVP), and thus he was not subject to lifetime registration under the provision applicable to SVPs. Id. at 59-60; see 42 Pa.C.S § 9795.1(b)(3). The court further found appellee was unlikely to reoffend.
After appellee was released from prison, he duly registered as a sex offender with the PSP on August 2, 2002; he then successfully completed all aspects of his criminal sentence and complied with all aspects of his reporting obligation. See Appellee’s Petition for Review at 3; Appellant’s Preliminary Objections at 1. Appellee contacted PSP and requested removal of his name from the registry after August 2, 2012, but PSP refused, claiming his guilty plea to both sexual abuse of children and unlawful contact with a minor triggered lifetime registration under Section 9795.1(b)(1), because he was “an individual with two or more convictions” of offenses listed in subsection (a). See Appellee’s Petition for Review at 4; Appellant’s Preliminary Objections at 2; Appellant’s Motion for Summary Judgment at 5-6.
PSP’s refusal to remove appellee’s name from the registry led to this mandamus action. A divided en banc Commonwealth Court, in a published opinion authored by then-President Judge Pellegrini, granted appellee’s motion for summary judgment and denied PSP’s cross-motion. The court accordingly directed PSP to change appellee’s designation as a lifetime registrant to a ten-year registrant. A.S. v. Pennsylvania State Police, 87 A.3d 914, 923 (Pa.Cmwlth.2014) (en banc).
The majority below characterized the question as involving whether appellee’s guilty plea to two separate crimes involving photographs of the same minor constituted one or two convictions for purposes of Section 9795.1(b)(1). The court then examined Gehris, where the evenly-divided Court affirmed a determination of lifetime registration by operation of law, with the dispositive order accompanied by an Opinion in Support of Affirmance (OISA) by Justice Todd (joined by former Justices Eakin and McCaffery) and an OISR by former Chief Justice Castille (joined by Justices Saylor (now Chief Justice) and Baer).
Judge Brobson authored a dissenting opinion, which Judge Leadbetter joined. The dissent noted the majority’s interpretation was in tension with the Superior Court’s decision in Commonwealth v. Merolla, 909 A.2d 337 (Pa.Super.2006), and subsequent decisions applying Merolla, including the unreported panel decision in Gehris.
On this direct appeal, the parties track and supplement the positions in the Gehris opinions concerning the proper construction of Section 9795.1(b)(1). PSP maintains any person with two or more qualifying convictions at the moment of sentencing, such as appellee, is subject to lifetime registration. PSP claims it properly interpreted and applied the statute and appellee had no right to mandamus relief.
PSP develops the provision is clear and unambiguous, appel-lee pleaded guilty to two qualifying offenses, and the Commonwealth Court was obliged to look no further. PSP asserts the panel majority’s finding that appellee’s conduct was one logically related act, making his two convictions one, cannot be squared with the plain language of the statute or applicable canons of statutory construction. PSP notes the panel failed to account for the fact the phrase “two or more convictions” is clear and unambiguous, as recognized in both Gehris opinions. PSP stresses a single prosecution and court proceeding may result in multiple convictions, as happened here. PSP believes the panel inserted words into the statute which are not present in the text.
Assuming an ambiguity exists, PSP posits, the General Assembly clearly intended “two or more convictions” to encompass multiple convictions from a single criminal episode.
PSP finally contends the panel incorrectly relied on the recidivist philosophy as that philosophy is a sentencing concept having no bearing on the intent behind a non-penal public protection law. PSP posits the purpose of Megan’s Law II was not to punish, but rather to protect the public, and so the recidivist philosophy is not a reliable guide to legislative intent. Appellant’s Brief at 40, citing, e.g., Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399, 404-06 (2008).
Appellee responds that the Commonwealth Court, after considering the General Assembly’s policy declaration and the graduated two-tier structure of the statute, correctly found Section 9795.1(b)(1) to be ambiguous when read in the context of the entirety of Megan’s Law II. Appellee notes a single judgment of conviction follows from each criminal case regardless of the number of guilty counts. Appellee then contends Section 9795.1(b)(1) has a latent ambiguity, revealed when the plural term “convictions” is applied to offenses arising from the same criminal act, episode, or course of conduct. He reasons the ambiguity does not arise from confusing words, but from a disparity between what the statute states is the desired result and a flawed methodology which could prevent that result if a term is construed in a certain way. Appellee maintains it is evident Section 9795.1(b)(1) is ambiguous as reasonable minds could, and have, disagreed about the meaning of “two or more convictions” in the context of the overall statutory construct.
Appellee further contends the panel majority correctly discerned a recidivist philosophy reflected in the statute. Appel-lee concedes the registration provision is facially remedial as its intent is to protect the public from sexual offenders. However, he notes the statute can also be interpreted as penal because an individual who fails to register is subject to criminal prosecution. Appellee notes, in a prosecution for failure to
Continuing with this theory, appellee posits there is a need for uniformity in interpreting statutes having application in both penal and non-penal contexts. Appellee’s Brief at 33-34, citing Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (“Even if § 16 [18 U.S.C. § 16, defining “crime of violence”] lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor. Although here we deal with § 16 in the deportation context, § 16 is a criminal statute, and it has both criminal and noncriminal applications. Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”).
In appellee’s view, the General Assembly’s graduated, two-tier registration regime, in addition to creating ambiguity, is a compelling indication a recidivist philosophy infuses Section 9795.1(b)(1). Appellee posits the tiers were designed to segregate less serious, first-time offenders from more serious, violent, or repeat offenders and establish dramatically different periods of supervision. Appellee further notes many, if not all, of the ten-year registration offenses involve crimes
The issue involves statutory interpretation, which is a question of law, and our review is plenary and non-deferential. See, e.g., Commonwealth v. Conklin, 587 Pa. 140, 897 A.2d 1168, 1175 (2006).
For its part, the Gehris OISR reviewed prior cases, both from this Court and the United States Supreme Court, involving the recidivist philosophy,
*417 [W]e are satisfied that Section 9795.1, which sets forth a graduated scheme for Megan’s Law registration, similar in nature to the graduated schemes discussed in this Court’s prior case law, encompasses the recidivist philosophy in addition to its perhaps more obvious goals of public protection and deterrence. Of course, registration may not be punitive for purposes of the constitutional protections afforded to offenders, as this Court concluded in [Commonwealth v.] Williams [, 574 Pa. 487, 832 A.2d 962 (2003) ]. Nevertheless, registration obviously has serious and restrictive consequences for the offender, including prosecution if the requirement is violated. Registration can also affect the offender’s ability to earn a livelihood, his housing arrangements and options, and his reputation. See also Fross v. County of Allegheny, 610 Pa. 421, 20 A.3d 1193 (2011).
The “two or more convictions” language in subsection (b) seems clear and unambiguous on the surface. But if Section 9795.1 is viewed as a whole and the General Assembly’s legislative findings and declaration of policy at 42 Pa.C.S. § 9791 are read closely, it is clear that the primary concern is with sexually violent predators. Considering the nine subsections in Section 9791, the term “sexually violent predator” appears nine times, particularly in the provision addressing repeat offenders: “sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments and that protection of the public from this type of offender is a paramount governmental interest.” 42 Pa.C.S. § 9791(a)(2). References to nonviolent offenders are comparatively few, just four in all, and two of these pertain specifically to recent amendments accounting for the circumstance of released “offenders” who may be homeless or without a “fixed place of habitation.” See 42 Pa.C.S. § 9791(a)(1) & (b)(3); see also Commonwealth v. Wilgus [615 Pa. 32], 40 A.3d 1201 (Pa.2012).
It is evident that in drafting Section 9795.1, the General Assembly meant to set up a graduated registration scheme. In this tiered approach, more serious (primarily violent) offenders and “true” recidivists who squander a given op*418 portunity to reform are understandably subject to lifetime requirements. By contrast, lesser, first-time offenders, especially those who are nonviolent, receive an opportunity for rehabilitation and eventual freedom from the requirements if they “stay on the path” for ten years.
Without in any way condoning the criminal conduct that led appellant to his current circumstances, we would conclude that the record in this case directs application of the ten-year registration requirement. Appellant’s two Megan’s Law offenses were nonviolent, perhaps triggered by situational problems in his marriage and career, and arose out of the same course of conduct, which ultimately did not result in direct harm to any actual victims. Appellant had no criminal past, much less a history of Megan’s Law offenses, and was taken into custody without resisting. In open court, he expressed remorse and regret and accepted responsibility for his actions. He voluntarily undertook psychotherapy and has embraced the treatment, was not found to be a sexually violent predator and, in fact, was described by a former SOAB [Sexual Offenders Assessment Board] member as a good candidate for rehabilitation. It is true that appellant was convicted of “two or more” Megan’s Law subsection (a) offenses, and without consideration of how this statutory scheme falls within the sphere of [the] recidivist philosophy legislation detailed above, a strict, mechanical application of Section 9795.1(b) would result in imposition of the lifetime registration requirement. But, we would conclude that Section 9795.1 embodies the recidivist philosophy and reflects a belief that fírst-time and lesser offenders are capable of reform and rehabilitation if given an opportunity to do so under the still-punitive aegis of relatively lighter discipline, as well as the threat of harsher treatment next time, should there be a next time....
Gehris, 54 A.3d at 878-79 (OISR).
To this analysis, we add the following points. A statute is ambiguous when there are at least two reasonable
Neither the OISA nor the OISR in Gehris cited this precept advising a contextual approach to assessing legislative intent and statutory ambiguity. The OISR’s approach in considering the overall statute, including legislative policy findings, in ascertaining the legislative intent and finding Section 9795.1 to be ambiguous is consonant with that principle. Compare Roethlein, 81 A.3d at 822-24 (disapproving lower court’s focus on two words (“excess charges”) in Loan Interest and Protection Law, 53 P.S. §§ 7101-7505, in isolation; in discerning plain meaning of statute, Court considered definitional provisions, other substantive provisions, and statute’s title and preamble, ultimately concluding language was not ambiguous).
Second, also respecting whether the language, considered in context, is reasonably amenable to multiple interpretations, there is a cautionary factor here that was not present in Gehris or Merolla. Those cases involved appeals from the judgment of sentence; the issue of ten years versus lifetime registration was actually contested at the sentencing proceeding. Sentencing in this case occurred over four years before Merolla and there was no dispute: the prosecutor, appellee and the trial judge all believed this first-time offender, who was not a sexually violent predator, was subject to ten-year registration.
The implications of Megan’s Law II figured in trials and guilty pleas on a daily basis in the Commonwealth. The fact that it never occurred to those in the trenches in this particular case in 2002 that a first-time, non-violent and non-SVP offender could be subject to anything but the lower-tier period of registration provides some further measure of support to the conclusion that the provision, considered in context, is at least reasonably amenable to multiple interpretations.
Third, although we have indeed held the registration provision is not punitive for purposes of constitutional challenges, the circumstances here suggest the question of strict construction may be more complex and nuanced than the Court had reason to appreciate previously. Whether the statute is deemed a penal one subject to the rule of lenity and strict construction or not (we do not deny the force in PSP’s reliance upon existing authority), the fact is that interpretations — and predictions — of the statute’s effect have to be made by different persons and entities at different times: prosecutors in charging decisions, defense counsel in rendering advice, defendants in determining courses of action, trial judges in imposing sentence, courts on appeal, PSP in enforcement, and then the defense, prosecution and courts repeated again if the defendant is charged with violating his or her registration obligation. Given the obvious burden of registration and the potentially serious criminal consequences of a lapse, as recognized in the Gehris OISR, 54 A.3d at 878, to state the law is not “penal” is little answer to a defendant who had good reason to believe he had done all required of him, only to find himself staring at lifetime registration. At a minimum, the circumstances suggest appellee’s argument premised upon the
Fourth and finally, and returning to the subject of predicate ambiguity, we note there is some validity in the point made in the dissent below that it would be absurd and unreasonable if a single act, giving rise to a single prosecution yielding two convictions for overlapping predicate offenses, subjected an offender to lifetime registration.
In conclusion, we hold the statute requires an act, a conviction, and a subsequent act to trigger lifetime registra
Former Justice EAKIN did not participate in the consideration or decision of this matter.
Chief Justice SAYLOR and Justices BAER and DONOHUE join the opinion.
Justice DONOHUE files a concurring opinion.
Justice TODD files a dissenting opinion.
Justice WECHT files a dissenting opinion.
. Megan’s Law II was succeeded by Megan’s Law III (Act 152 of 2004), which in turn was superseded by the Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, which be
The Court has granted review in a separate appeal involving the same basic provision, as retained under SORNA, Commonwealth v. Lutz-Morrison, 636 Pa. 395, 143 A.3d 891, 2016 WL 4273555 (2016), also decided today.
. The Gehris OISR explained: ''[t]he essence of the recidivist philosophy is to afford first-time offenders (or offenders convicted of less serious offenses) some amount of time within which to modify their behavior away from criminality. Should they fail to take advantage of the opportunity, and transgress a second time or more, the ‘next’ sentence will be more severe." Gehris, 54 A.3d at 875 (OISR by Castille, C J., joined by Saylor and Baer, JJ.).
. 18 Pa.C.S. §§ 6312(b), 6312(d), 6318(a)(5), 6301(a)(l)(i), and 902(a), respectively.
. The issue in Merolla was raised in the Commonwealth's appeal from the judgment of sentence, where the Commonwealth argued Merolla’s plea of nolo contendere to two separate counts of indecent assault constituted two convictions, requiring lifetime registration. The panel looked to criminal sentencing decisions of this Court involving the recidivist philosophy and the "three strikes statute," see 42 Pa.C.S. § 9714; stressed Section 9714(a)(2) had language referring to the person having "previously" been convicted, while Megan’s Law II had no such language; and stressed Section 9714 was a penal provision, while the reporting requirements in Megan’s Law II are directed at public safety. Based on its “literal” reading, the panel concluded lifetime registration was required, stressing such “heightened registration is not an additional punishment." Merolla, 909 A.2d at 345-47. Notably, the panel did not discuss the counter-arguments, if any, forwarded by Merolla.
. Notably, the dissent found appellee’s second argument, which the majority did not address given its disposition, distinguished Gehris. Appellee argued the Legislature could not have intended the difference between ten-year and lifetime registration to depend on the number of existing convictions in a circumstance where the offender engaged in a single act resulting in multiple convictions. A.S., 87 A.3d at 931. Specifically, appellee argued the elements of the two predicate offenses of sexual abuse of children and unlawful contact overlap in such a way that an individual could commit both offenses by a single act, such as here, where he contacted the victim to cause her to photograph herself engaging in a sexual act. Id. The dissent opined it would be unreasonable and absurd to hold an offender was subject to lifetime registration where the offender engaged in a single act, but concluded a genuine issue of material fact existed as to whether the two offenses here involved such a single act. Therefore, the dissent found the question could not be resolved on summary judgment and the case should be remanded. Id. at 931-34.
. PSP, which filed a reply brief, does not specifically respond to appellee's reliance upon Leocal, but repeats that Megan’s Law II was simply not a penal law subject to strict construction. In addition, PSP notes the rule of lenity was invoked by the dissent in Commonwealth v. Wilgus, 615 Pa. 32, 40 A.3d 1201, 1210 (2012) (Castille, C.J., dissenting, joined by Baer, J.), a case involving prosecution for failing to register, but the Wilgus majority did not discuss the rule.
. The action below sounded in mandamus, which "lies only 'to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other adequate and appropriate remedy at law.’ ” See Crozer Chester Med. Ctr. v. Dep’t of Labor & Indus., 610 Pa. 459, 22 A.3d 189, 193 (2011), quoting Delaware River Port Auth. v. Thornburgh, 508 Pa. 11, 493 A.2d 1351, 1355-56 (1985).
PSP does not dispute mandamus relief is appropriate if we were to sustain appellee’s reading of the statute. The question thus focuses narrowly on the proper construction.
. See Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d 1241 (2006) (construing "three strikes" provision in Sentencing Code, i.e., 42 Pa. C.S. § 9714); Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005) (same); Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993) (same); Commonwealth v, Jarowecki, 604 Pa. 242, 985 A.2d 955 (2009) (construing Crimes Code grading provision governing possession of child pornography, i.e., 18 Pa.C.S. § 6312).
. The OISA also explained why it concluded the statute was not a penal provision subject to strict construction in favor of the defendant. Geh-ris, 54 A.3d at 865 (OISA).
. In addition to discussing the sentencing cases cited in the OISA (Dickerson, Shiffler, McClintic and Jarowecki), the OISR briefly noted Supreme Court opinions supporting that certain sentencing schemes "imply a recidivist philosophy.” Gehris, 54 A.3d at 875, citing Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L,Ed.2d 60 (2011); United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008).
. In a footnote, Justice Todd's dissent posits that our reading of the statute means that an individual who lures a child into a motor vehicle,
. It is true the registration term was not part of a negotiated plea, but the shared understanding may have factored into counsel’s advice to his client respecting entry of an open plea. The question of whether a
. We caution we do not purport to resolve the question whether registration provisions such as this one warrant strict construction, but merely seek to highlight points revealed here, which were not made apparent in Gehris.
. We respect that Justice Todd remains unconvinced by the analysis in the Gehris OISR, as supplemented by tire Court today. However, we obviously disagree with our learned colleague’s suggestion, Dissenting op. at 432, 143 A.3d at 913-14, that we have not explained how the language of Section 9795.1(b)(1), when viewed in context, is ambiguous. See Gehris, 54 A.3d at 878-80 (OISR) (explaining a close reading of Section 9795.1, as a whole, and the legislative findings and declaration of policy at 42 Pa.C.S. § 9791, make clear the primary concern of the statute is with sexually violent predators and not with nonviolent offenders).
. Contrary to PSP’s position, we do not believe the General Assembly’s passage of virtually identical language in SORNA signals approval of Merolla or counsels a different result. As PSP otherwise recognizes, the Statutory Construction Act provides such a presumption regarding legislative intent may arise "when a court of last resort” has construed statutory language and the General Assembly, in a subsequent enactment, opts not to change the language. See 1 Pa.C.S. § 1922(4); Commonwealth v. Wanamaker, 450 Pa. 77, 296 A.2d 618, 624 (1972). Merolla was not a decision by this Court. Furthermore, the stated purpose of SORNA was not directed to PSP’s consideration, but primarily focused upon bringing Pennsylvania sex offender registration law into compliance with the federal Adam Walsh Child Protection and Safety Act. See 42 Pa.C.S. § 9799.10; see also In re J.B., 630 Pa. 408, 107 A.3d 1, 3 (2014). Additionally, PSP cites no affirmative indicator, in the legislative history or otherwise, that the General Assembly was focused upon, or intending to approve, Merolla. Finally, for the reasons stated in the text, we do not believe the "literal” reading adopted in Merolla accurately reflects the legislative intent.
Concurrence Opinion
concurring.
The Majority finds that the lifetime registration triggering language under Megan’s Law II — “two or more convictions”— is ambiguous, when considered in the context of that statute. Majority Op. at 406, 143 A.3d at 897-98. The Majority further finds that the term “two or more convictions” must be interpreted with deference to the recidivist philosophy underlying the statute, a philosophy that is made plain by the graduated scheme of registration the legislature set forth, among other statutory features. Id. Finally, the Majority holds that “the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration,” and affirms the award of mandamus relief. Id. I join the Majority as to each of these points, but I write separately to explain the full import, in my view, of the finding that Megan’s Law II embodies a recidivist philosophy, and to explain that our holding does not allow an individual whose first time convictions arise out of multiple first tier (42 Pa.C.S. § 9795.1(a) (repealed)) offenses to escape lifetime registration if the circumstances otherwise warrant it.
First, as this Court has explained, in several contexts, a statute embodying a recidivist philosophy evinces a legislative intent “to punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial
In each of the aforementioned cases, application of a recidivist philosophy meant that “enhanced punishment [could not] be imposed unless all of the defendant’s prior convictions preceded commission of the principal offense, and each prior offense and conviction occurred in chronological sequence.” See Jarowecki, 985 A.2d at 962, n. 11 (quoting Cynthia L. Sletto, Annotation, Chronological or Procedural Sequence of Former Convictions as Affecting Enhancement of Penalty Under Habitual Offender Statutes, 7 A.L.R. 5th 263, § 2[a] (1992)). That is to say, “each offense, following the first, must have been committed after the defendant’s conviction of the immediately preceding offense.” Id.
Although a recidivist philosophy typically animates a purely penal statute, it should be given the same effect where, as here, it underlies a statute with both penal and non-penal consequences. See Majority Op. at 421-22, 143 A.3d at 907 (citing Commonwealth v. Gehris, 54 A.3d at 878-79 (OISR)). Furthermore, the philosophy should be given its full effect regardless of whether a defendant is charged for one act or multiple acts, regardless of whether the conduct comprises a one criminal episode or many, and regardless of the number of victims, direct or indirect. Pursuant to a recidivist philosophy, an “offender is deemed incorrigible not so much because he or she has sinned more than once, but because the offender has demonstrated, through persistent criminal behavior, that he or she is not susceptible to the reforming influence of the conviction process.” Shiffler, 879 A.2d at 195. The Majority’s
Next, contrary to the Dissenting Opinion of Justice Todd (Dissenting Op. (Todd, J.) at n. 1), uniform application of the recidivist philosophy to the registration statute does not afford an unwarranted “volume discount” to registrants who have “sinned more than once.” See Shiffler, 879 A.2d at 195. The Commonwealth’s discretion to bring multiple charges against a defendant, and the trial court’s discretion to impose multiple sentences, which may run consecutively as opposed to concurrently, if the trial court sees fit, ensures that a defendant will be punished based on the severity of his conduct and the quantity of his acts. See, e.g., Commonwealth v. Davidson, 595 Pa. 1, 938 A.2d 198, 221 (2007) (holding that “charging, trying, convicting and sentencing defendant for multiple counts of possession of child pornography” is proper because each image constitutes a distinct act and abuse of a child).
Moreover, all registration-eligible offenders (including first tier offenders) are required to undergo a sexually violent predator assessment. See 42 Pa.C.S. § 9795.4.
. Section 9795.4 provides:
(a) Order for assessment. — After conviction but before sentencing, a court shall order an individual convicted of an offense specified in section 9795.1 (relating to registration) to be assessed by the board. The order for an assessment shall be sent to the administrative officer of the board within ten days of the date of conviction.
(b) Assessment. — Upon receipt from the court of an order for an assessment, a member of the board as designated by the administrative officer of the board shall conduct an assessment of the individual to determine if the individual should be classified as a sexually violent predator. The board shall establish standards for evaluations and for evaluators conducting the assessments. An assessment shall include, but not be limited to, an examination of the following [factors].
42 Pa.C.S. § 9795.4 (repealed).
. Section 9795.1 provides, in relevant part,
*426 (b) Lifetime registration. — The following individuals shall be subject to lifetime registration:
⅜ ⅜ *
(3) Sexually violent predators.
42 Pa.C.S. § 9795.1 (repealed).
Dissenting Opinion
dissenting.
As the majority recognizes, this appeal is primarily a reconsideration of the issue this Court reviewed, but could not authoritatively resolve, in Commonwealth v. Gehris, 618 Pa. 104, 54 A.3d 862 (2012): the meaning of Megan’s Law II’s provision that “[a]n individual with two or more convictions of any of the offenses set forth in” 42 Pa.C.S. § 9795.1(a) “shall be subject to lifetime registration” as a sexual offender. 42 Pa.C.S. § 9795.1(b)(1). I authored the Opinion in Support of Affirmance (“OISA”) in Gehris, expressing the view that the foregoing provision clearly and unambiguously provides that any individual who accrues multiple convictions for offenses set forth in Section 9795.1(a) is subject to lifetime registration as a sexual offender. Gehris, 54 A.3d at 862 (OISA). Then-Chief Justice Castille authored the Opinion in Support of Reversal (“OISR”) in Gehris, reasoning that this provision, read in light of Megan’s Law II’s remaining provisions, incorporates a “recidivist philosophy” and, therefore, provides that only an individual who is convicted of one or more offenses set forth in Section 9795.1(a), and subsequently reoffends and is convicted again of one or more offenses set forth in Section 9795.1(a), is subject to lifetime registration as a sexual offend
As I expressed in my OISA in Gehris, in my view, Section 9795.1(b)(1) clearly and unambiguously provides that any individual who accrues multiple convictions of offenses set forth in 42 Pa.C.S. § 9795.1(a) is subject to lifetime registration as a sexual offender:
The plain language of Section 9795.1(b)(1) specifies: “The following individuals shall be subject to lifetime registration: (1) An individual with two or more convictions of any of the offenses set forth in subsection (a).” This language, when viewed in accordance with its commonly understood and ordinary meaning, requires any individual who is convicted two or more times of the particular offenses set forth in subsection (a) to register for life. Relevant to the question of whether the legislature intended to require lifetime registration in situations where the multiple convictions stemmed from acts which were part of one criminal episode, I deem the legislature, through the use of the unadorned language, “[a]n individual with two or more convictions of any of the offenses set forth in subsection (a),” to have elected not to require any particular sequential or temporal ordering of the multiple convictions in order for the lifetime registration requirements to apply. Rather, the legislature simply mandated that, at the point in time at which a defendant acquires two or more convictions for specified sexual offenses against children, the registration requirement is triggered.
Gehris, 54 A.3d at 866 (OISA). The majority recognizes that this provision’s language, at least in isolation, provides as much. See Majority Opinion at 419, 143 A.3d at 906 (noting that “oftentimes the meaning — or ambiguity — of certain words or phrases may only become evident when placed in context”). Yet, the majority reasons that this language, considered in
First, the “core of the [Gehris ] OISR’s ensuing analysis,” which the majority adopts today, is as follows:
[W]e are satisfied that section 9795.1, which sets forth a graduated scheme for Megan’s Law registration, similar in nature to the graduated schemes discussed in this Court’s prior case law, encompasses the recidivist philosophy in addition to its perhaps more obvious goals of public protection and deterrence. Of course, registration may not be punitive for purposes of the constitutional protections afforded to offenders, as this Court concluded in [Commonwealth v.] Williams, [574 Pa. 487, 832 A.2d 962 (2003) ]. Nevertheless, registration obviously has serious and restrictive consequences for the offender, including prosecution if the requirement is violated. Registration can also affect the offender’s ability to earn a livelihood, his housing arrangements and options, and his reputation. See also Fross v. County of Allegheny [610 Pa. 421], 20 A.3d 1193 ([Pa.] 2011).
The “two or more convictions” language in subsection (b) seems clear and unambiguous on the surface. But if Section 9795.1 is viewed as a whole and the General Assembly’s legislative findings and declaration of policy at 42 Pa.C.S. § 9791 are read closely, it is clear that the primary concern is with sexually violent predators. Considering the nine subsections in Section 9791, the term “sexually violent predator” appears nine times, particularly in the provision addressing repeat offenders: “sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments and that protection of the public from this type of offender is a*429 paramount governmental interest.” 42 Pa.C.S. § 9791(a)(2). References to nonviolent offenders are comparatively few, just four in all, and two of these pertain specifically to recent amendments accounting for the circumstance of released “offenders” who may be homeless or without a “fixed place of habitation.” See 42 Pa.C.S. § 9791(a)(1) & (b)(3); see also Commonwealth v. Wilgus [615 Pa. 32], 40 A.3d 1201 (Pa.2012).
It is evident that in drafting Section 9795.1, the General Assembly meant to set up a graduated registration scheme. In this tiered approach, more serious (primarily violent) offenders and “true” recidivists who squander a given opportunity to reform are understandably subject to lifetime requirements. By contrast, lesser, first-time offenders, especially those who are nonviolent, receive an opportunity for rehabilitation and eventual freedom from the requirements if they “stay on the path” for ten years.
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[W]e would conclude that Section 9795.1 embodies the recidivist philosophy and reflects a belief that first-time and lesser offenders are capable of reform and rehabilitation if given an opportunity to do so under the still-punitive aegis of relatively lighter discipline, as well as the threat of harsher treatment next time, should there be a next time.
Majority Opinion at 417-18, 143 A.3d at 905 (quoting Gehris, 54 A.3d at 878-79 (OISR)) (alterations original). This rationale rests its conclusion on essentially two premises:
(1) Section 9795.1 contains a “graduated scheme” and is at least somewhat punitive in nature, and therefore analogous to the statutes in Commonwealth v. Dickerson [533 Pa. 294], 621 A.2d 990 (Pa.1993), Commonwealth v. Shiffler [583 Pa. 478], 879 A.2d 185 (Pa.2005), Commonwealth v. McClintic [589 Pa. 465], 909 A.2d 1241 (Pa. 2006), and Commonwealth v. Jarowecki [604 Pa. 242], 985 A.2d 955 (Pa.2009), which contain similarly graduated schemes and are punitive in nature, and which this Court has interpreted as incorporating a “recidivist phi*430 losophy” requiring conviction, re-offense, and subsequent conviction; and
(2) The legislative findings incorporated into Megan’s Law ITs provisions, its statement of purpose, and their oft-repeated use of the term “sexually violent predator” as compared to their references to “nonviolent offenders” evidence a primary concern with recidivists.
In my view, neither premise leads to the majority’s conclusion.
First, as detailed in my OISA in Gehris, the language of Section 9795.1 is significantly distinct from the language of the statutes at issue in Dickerson and its progeny:
[T]he specific nature of the language employed in the statutes at issue in [Dickerson, Shiffler, McClintic, and Jarowecki ] — i.e. “[wjhere the person had at the time of the commission of the current offense previously been convicted,” in the case of 42 Pa.C.S.A. (s) 9714(a)(2) (emphasis added), and “second or subsequent offense,” in 18 Pa.C.S. § 6312(d)(2) (emphasis added) — implies a requirement that there be a separation in time between imposition of the successively greater sanctions in order to give the individual a chance to change his or her behavior in response to the lesser sanction. By contrast, as noted above, the language of Section 9795.1(b)(1) has no such language suggesting temporal separation is required between the commission of the enumerated offenses for the lifetime registration requirement to apply.
Gehris, 54 A.3d at 866 (OISA) (emphasis original). Thus, insofar as the language of Section 9795.1 is not analogous, it is improper for this Court to treat it as such. See 1 Pa.C.S. § 1921(b).
Moreover, this Court has previously held that the purpose of Section 9795.1 is non-punitive, further weakening the analogy to the punitive statutes at issue in Dickerson and its progeny, as well as their underlying purpose — punishing with increasing force in an effort to avoid recidivism. As I stated in Gehris:
*431 [T]he primary purpose of the registration requirement is not to punish an individual convicted of sexual offenses, but, instead, registration is mandated for the protection of the public. See [Commonwealth v.] Williams, 574 Pa. [487,] 504 832 A.2d [962,] 972 [ (2003) ] (“[T]he legislature’s intent in requiring offenders to register with the State Police regarding their whereabouts was not retribution; ... rather its purpose was to effectuate, through remedial legislation, the non-punitive goal of public safety.”) Consequently, unlike the “three strikes” sentencing statute at issue in [Dickerson], [Shiffler], and [McClintic] and the mandatory sentencing for possession of child pornography at issue in [Jarow-ecki ], which imposed successively greater levels of penal discipline for each successive conviction for the same type of crime in order to dissuade an individual from repeating that criminal conduct in the future, the principal objective of the registration requirement is not to alter the convicted individual’s behavior through punishment.
Gehris, 54 A.3d at 866-67 (OISA).
Bearing these distinctions in mind, the only remaining similarity between Megan’s Law II and the statutes at issue in Dickerson and its progeny relied upon by the majority is that each possesses a “graduated scheme” — i.e., each imposes different levels of “punishment” corresponding to increasingly severe offenses. Yet, as I explained in my Gehris OISA, in light of its distinct text and purpose, it is more appropriate to view the “graduated scheme” in Section 9795.1 as estimating that persons who frequently commit sexual offenses are more dangerous to the public, requiring lengthier registration:
Although the overall structure of Section 9795.1 conditions its registration scheme, in part, on the nature of particular sexual offenses, since lifetime registration is required of those who commit the arguably more serious offenses enumerated in Section 9795.1(b)(2), I find it significant that the legislature also chose to impose the very same lifetime registration requirement for those convicted of two or more of any of the offenses enumerated in Section 9795.1(a)(1), the vast majority of which are offenses against children.*432 This, from my perspective, evidences a deliberate legislative judgment, consistent with its objective of protecting public safety, to make the differing length of registration requirements dependent not only on the nature of the specific sexual offenses for which an individual is convicted, but, also, on the occurrence of a multiplicity of certain types of offenses, particularly those committed against children. In my view, this reflects a considered determination by the legislature that, in order to protect the safety and general welfare of the public, the frequency with which a convicted defendant is determined to have engaged in certain types of prohibited conduct with children is a particularly important factor in determining whether he or she should be subject to lifetime registration.
Gehris, 54 A.3d at 867-68 (OISA).
Turning to the majority’s view that Section 9795.1 is ambiguous in light of Megan’s Law II’s emphasis on protecting the
I am likewise unpersuaded by the majority’s supplemental analysis buttressing the Gehris OISR’s conclusion that Section 9795.1(b)(1) is ambiguous. First, the majority notes the longstanding principle that language must be viewed in the context of a statute as a whole, that neither the OISA or OISR in Gehris directly cited this principle, and that the OISR’s approach is “consonant with” it. See Majority Opinion at 418-20, 143 A.3d at 905-06. Although I do not disagree with the majority that words must be considered in context, the majority does not explain how Section 9795.1(b)(l)’s language becomes ambiguous in context.
The majority next seeks to support its finding that Section 9795.1(b)(1) is ambiguous by reference to “[t]he fact that it never occurred to those in the trenches” — i.e. the defendant, his counsel, the Commonwealth, and the court — “that a first-time, non-violent and non-SVP offender could be subject to anything but the lower-tier period of registration,” reasoning that such fact “provides some further measure of support to the conclusion that the provision, considered in context, is at least reasonably amenable to multiple interpretations.” Id. at 421, 143 A.3d at 907. In my view, the mere fact that others— even members of the bench and bar — have adopted what
Finally, the majority reasons that “there is some validity in the point made in the dissent below that it would be absurd and unreasonable if a single act, giving rise to a single prosecution yielding two convictions for overlapping predicate offenses, subjected an offender to lifetime registration.” Id. at 422, 143 A.3d at 907. I disagree. The enactment of statutes criminalizing (or requiring registration for) “overlapping predicate offenses” arising from one act may also be viewed as evidencing a legislative judgment that a single act may create distinct harms or, as salient here, future risks.
In closing, I recognize that the appellant in this case is not the typical offender to whom sexual offender registration requirements apply. Appellant and the victim herein were engaged in a consensual and legally permissible sexual relationship when Appellant solicited and created the illegal pornographic images that give rise to his convictions. Nevertheless, it is this Court’s duty to consider the proper interpretation of Section 9795.1 not solely as it applies to the parties herein, but as it applies to future parties in cases across the Commonwealth.
For these reasons, I respectfully dissent.
. Moreover, even assuming Section 9795.l’s increasing periods of registration are directed at increasingly serious offenses, such proposition does not necessarily lead to the conclusion that Section 9795.1(b)(1) applies solely to recidivists. Under such a view, the General Assembly would necessarily have to deem an individual who lures a child into a motor vehicle, kidnaps the child, and forces the child to participate in prostitution and child pornography — an individual who, under the majority’s interpretation of Section 9795.1(b)(1), need only register as a sexual offender for 10 years — as having committed a less serious offense than, for example, an individual who, for example, is convicted of possessing child pornography and subsequently reoffends.
In response, the majority contends this illustration is inapt because the aforementioned offender may well be determined to be a sexually violent predator subject to lifetime registration. Majority Opinion at 418-19 n. 11, 143 A.3d at 905 n. 11. Furthermore, Justice Donohue, in her concurrence, rejects this position because a “serial, violent sex offender, who happens to evade prosecution in between the commission of his criminal acts” is likely to be deemed a sexually violent predator subject to lifetime registration pursuant to Section 9795.1(b)(3). Concurring Opinion (Donohue, J.) at 425-26, 143 A,3d at 910. The concurrence reasons that the classification process and the imposition of lifetime registration for sexually violent predators is a "safeguard” consistent with the statute's recidivist philosophy subjecting “more serious (primarily violent) offenders and 'true' recidivists who squander a given opportunity to reform.” Id. at 425-26, 143 A.3d at 910.
In my view, the concurrence's reliance on this “safeguard” does not account for the Commonwealth's significant evidentiary burden necessary to classify offenders as sexually violent predators. See Williams, supra; 42 Pa.C.S. §§ 9792, 9795.1, 9795.4 (2000). Moreover, insofar
. The majority also considers, but does not definitively resolve, whether Section 9795.1(b)(1) is penal in nature, requiring application of the rule of lenity which mandates strict construction of statutes in a defendant's favor. See Majority Opinion at 420-21, 143 A.3d at 906-07. Although I rejected this approach as inconsistent with the statute’s remedial purpose in my OISA in Gehris, see Gehris, 54 A.3d at 865-66 (OISA), insofar as the majority does not rest its decision today on application of that rule, I think it unnecessary to presently repeat that view in toto. I do note, however, that an unambiguous statute is capable of only one reasonable interpretation, and, thus, is not capable of, much less in need of, strict or expansive construction. See Oliver, supra.
Dissenting Opinion
dissenting.
Like it or not, our decision in this case should be controlled by the unambiguous language of 42 Pa.C.S. § 9795.1(b)(1) (superseded). I join in the bulk of Justice Todd’s incisive
However, I believe that the plain meaning of the statutory language should mark the beginning and the end of our analysis. In particular, I think it unnecessary to invoke judicially derived interpretations of the statute’s “overall structure”
It is axiomatic that, “[w]hen the words of a statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute ‘under the pretext of pursuing its spirit,’ ” and “[o]nly ‘[w]hen the words of the statute are not explicit’ may a court resort to the rules of statutory construction[.]” Warrantech Consumer Prods. Servs., Inc. v. Reliance Ins. Co. in Liquidation, 626 Pa. 218, 96 A.3d 346, 354 (2014) (quoting 1 Pa.C.S. § 1921(b)). Our definition of “ambiguity” is of central importance to this analysis. “A statute is
Like Justice Todd, I am unpersuaded by the reasoning of the Opinion in Support of Reversal (“OISR”) in Gehris, quoted by today's Majority, regarding the threshold finding of ambiguity. According to the Majority:
The ‘two or more convictions’ language in subsection (b) seems clear and unambiguous on the surface. But if Section 9796.1 is viewed as a whole and the General Assembly’s legislative findings and declaration of policy at 42 Pa.C.S. § 9791 are read closely, it is clear that the primary concern is with sexually violent predators.
Majority Opinion at 417, 143 A.3d at 911 (quoting Gehris, 54 A.3d at 878-79 (OISR)).
From the frequency with which the term “sexually violent predator” appears in the statutory text, as compared with the number of references to nonviolent offenders, the Majority and the OISR in Gehris derive support for the proposition that Section 9795.1 reflected a recidivist philosophy, reserving the most serious registration consequence for “more serious (primarily violent) offenders and ‘true’ recidivists.” Id. (quoting Gehris, 54 A.3d at 879 (OISR)). In response to Justice Todd’s observation that the Majority has not explained adequately how the statute is ambiguous, the Majority reiterates that, in context, “the primary concern of the statute is with sexually violent predators and not with nonviolent offenders.” Id. at 422 n. 14,143 A.3d at 907 n. 14 (citing Gehris, 54 A.3d at 878-79 (OISR)).
Like Justice Todd, I think it significant that no reasonable alternative interpretation of the language “two or more convictions” arises from the proposition that “the primary concern” of the statute is with sexually violent predators. Nonetheless, I differ with Justice Todd in her suggestion that, because “the vast majority of [Subsection 9795.1(a)(1) offenses] are offenses against children,” we may presume “a deliberate legislative judgment, consistent with its objective of protecting public safety, to make the differing length of registration requirements dependent not only on the nature of the specific sexual
“Generally, the best indicator of legislative intent is the plain language of the statute.” Warrantech, 96 A.3d at 354. After concluding that the text of 42 Pa.C.S. § 9795.1(b)(1) is susceptible to only one reasonable interpretation, as Justice Todd and I both do, we reach the end of the story. There is no further need or warrant to inquire into or speculate about the General Assembly’s intent, its objective, or its “primary concern” in enacting that text into law. The General Assembly made its intent clear through the use of the unambiguous language, “[a]n individual with two or more convictions of any of the offenses set forth in” 42 Pa.C.S. § 9795.1(a) “shall be subject to lifetime registration” as a sexual offender. 42 Pa.C.S. § 9795.1(b)(1).
Finally, I write separately to emphasize that I share deeply the concerns underlying the Majority’s reasoning. Were we not constrained by the unambiguous statutory text, I readily would endorse the Majority’s approach. Although this Court in Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962, 986 (2003), held that sexual offender registration requirements are non-punitive for purposes of due process, lifetime registration as a sexual offender undoubtedly remains a uniquely burdensome consequence of criminal conviction. As the Majority and the Gehris OISR correctly noted, the registration requirement can affect an individual’s employment opportunities, housing options, and reputation, and can result in criminal prosecution if violated. See Majority Opinion at 417, 143 A.3d at 904-05 (quoting Gehris, 54 A.3d at 878 (OISR)). It is the Mark of Cain.
Like the Majority, I believe that the statutory scheme should embody a recidivist philosophy. Unfortunately, that is not what the legislative words did. I agree that fairness and
. See Dissenting Opinion at 431, 143 A.3d at 913 (quoting Commonwealth v. Gehris, 618 Pa. 104, 54 A.3d 862, 867 (2012) (Opinion in Support of Affirmance)).