A.S., Appellee v. PENNSYLVANIA STATE POLICE, Appellant.
143 A.3d 896
Supreme Court of Pennsylvania.
Argued March 8, 2016. Decided Aug. 15, 2016.
of the offenses set forth in”
Justice WECHT, dissenting.
I join in the reasoning of Justice Todd‘s dissenting opinion, subject to the reservations that I explained in my dissenting opinion in A.S. v. Pa. State Police, 636 Pa. 403, 143 A.3d 896, 2016 WL 4273568 (2016) (Wecht, J., dissenting).
Anthony J. Petrone, Esq., for appellee A.S.
SAYLOR, C.J., EAKIN, BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
OPINION
Justice DOUGHERTY.
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
Section 9795.1 provided, in relevant part, as follows:
(a) Ten-year registration.—Except as set forth in subsection (a.1) 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.
18 Pa.C.S. § 4302 (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.1) (relating to prostitution and related offenses) where the actor promotes the prostitution of a minor.
18 Pa.C.S. § 5903(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).
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(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 thе victim is under 12 years of age.* * *
(3) Sexually violent predators.
This dispute arose after appellee had completed his sentence for the underlying crimes. Proceeding under a belief he was
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. Appellee developed a relationship with the victim which ultimately resulted in a series of sexual encounters. The age of consent in Pennsylvania is sixteen, see
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. In December 2000, a criminal complaint was filed in Montgomery County charging appellee, a first-time offender, with seven counts of sexual abuse of children (photographing, videotaping, depicting on computer, or filming sexual acts), twenty counts of sexual abuse of children (possession of child pornography, relating to other images of child pornography found on his computer), and single counts of unlawful contact with a minor, corruption of minors, and criminal solicitation.3
On October 5, 2001, appellee entered an open guilty plea to single counts of sexual аbuse 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
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). After summarizing those opinions, which will be more fully described below, the court deemed the Gehris OISR to be more persuasive. In the court‘s view, failure to adopt the OISR approach would render the distinction between the ten-year registration in subsection (a) and the lifetime requirement in subsection (b) “meaningless,” since every event involving a minor taking his or her own picture could support multiple charges and convictions. In addition, the court opined, the OISR interpretation fostered the purpose of the statute, “which allows a person tо reform” in the ten-year registration period, and provided a bright-line for administration. A.S., 87 A.3d at 922. The court then concluded appellee‘s conduct arose from a single criminal episode and one “logically related act,” id. at 922 & n. 11, citing and discussing Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), rendering it one conviction, leading to a ten-year registration period. A.S., 87 A.3d at 923.
Judge Brobson authored a dissenting opinion, which Judge Leadbetter joined.
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, appellee 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
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 guidе 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. Appellee 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 register, a penal context, he would have the benefit of the construction precept that penal statutes must be strictly construed, i.e., the “rule of lenity.” See
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.“).6 Appellee
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 where a single non-violent episode may easily generate multiple violations. Appellee concludes that, to prevent evisceration of the two-tier structure, the Court should affirm that Section 9795.1(b)(1) does not apply to offenders whose two first-time convictions arose from a single charging document and a single, non-violent course of criminal conduct.
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).7 In such cases, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. Id., citing
In this appeal, we have the advantage of not writing upon a blank slate: the Gehris OISA and OISR each offered a developed, reasoned expression concerning the meaning of Section 9795.1(b)(1)‘s text “[a]n individual with two or more convictions of any of the offenses set forth in subsection (a).” The opinions agreed there was no facial ambiguity in that sentence. See Gehris, 54 A.3d at 862 (OISA) (stressing “clear and unambiguous language chosen by the legislature“); id. at 874-75 (OISR) (“In and
For its part, the Gehris OISR reviewed prior cases, both from this Court and the United States Supreme Court, involving the recidivist philosophy.10 Because we are ultimately persuaded by the core of the OISR‘s ensuing analysis (as supplemented by additional points developed below), we simply reproduce its essence here:
[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 amendmentsaccounting 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-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 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....
Gehris, 54 A.3d at 878-79 (OISR).11
To this analysis, we add the following points. A statute is ambiguous
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 cоnsonant 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,
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 pеriod 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 а 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 imperative for consistent interpretation of a statute having both penal and non-penal consequences, as recognized by the United States Supreme Court in Leocal, supra, has more force than the Court had reason to believe in addressing questions of strict construction and the rule of lenity in other contexts, including the narrower context presented in Gehris.13, 14
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
In conclusion, we hold the statute requires an act, a conviction, and a subsequent act to trigger lifetime registra-
tion for multiple offenses otherwise triggering a ten-year period of registration. Accordingly, the award of mandamus relief is hereby affirmed.
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.
Justice DONOHUE, concurring.
The Majority finds that the lifetime registration triggering language under Megan‘s Law II—“two оr 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 (
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 effects of penal discipline.” See Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005) (applying recidivist interpretation to three strikes sentencing law and conсluding that defendant‘s prior plea of guilty to three counts of burglary counted as only one prior offense); accord Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d 1241 (2006) (again applying recidivist interpretation to three strikes law); Commonwealth v. Jarowecki, 604 Pa. 242, 985 A.2d 955 (2009) (applying recidivist philosophy to prohibit sentence enhancement under possession of child pornography statute for multiple simultaneous convictions).
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 whether 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 sequential interpretation—requiring an act, followed by a conviction, followed by another act—is faithful to this philosophy.
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 proрer 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
all purpose and recidivist philosophy, reflected by its graduated registration scheme, to subject to lifetime registration only the “more serious (primarily violent) offenders and ‘true’ recidivists who squander a given opportunity to reform.” See Gehris, 54 A.3d at 878-79 (OISR). Justice Todd‘s view that
(b) Lifetime registration.—The following individuals shall be subject to lifetime registration:
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(3) Sexually violent predators.
42 Pa.C.S. § 9795.1 (repealed).
Justice TODD, 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”
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
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 light of the remainder of Megan‘s Law II‘s provisions, as well as its purported “recidivist philosophy,” among other factors, is ambiguous, and, indeed, provides that only an individual who is convicted of one or more offenses set forth 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 at42 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.”
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 оf 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:
- 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-losophy” requiring conviction, re-offense, and subsequent conviction; and
- The legislative findings incorporated into Megan‘s Law II‘s 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. “[w]here 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,” in18 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 enumeratedoffenses 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
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:
[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 [Jarowecki], 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.
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).1
public from sexually violent predators, I first note that the majority does not explain how Section 9795.1(b)(1)‘s language acquires additional potential meanings in light of those provisions. Moreover, I find the majority‘s analysis on this point, insofar as it compares the number of times the term “sexually violent predator” appears in the salient statutory provisions to the number of references to nonviolent offenders, unpersuasive as an indicator that the General Assembly was primarily concerned with protecting the public from recidivists who have failed tо reform after conviction as opposed to individuals who engage in multiple sex crimes.
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 long-standing 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)(1)‘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
amounts to a misinterpretation of a statute—should not bear on the discrete legal question of whether its text is reasonably susceptible to such interpretation.2
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.
Justice WECHT, dissenting.
Like it or not, our decision in this case should be controlled by the unambiguous language of
analysis of that provision and in the well-reasoned conclusion that she draws in her dissenting opinion. Like Justice Todd, I believe that Subsection 9795.1(b)(1) “clearly and unambiguously provides that any individual who accrues multiple convictions for offenses set forth in [Subsection 9795.1(a)] is subject to lifetime registration as a sexual offender.” Dissenting Opinion at 426, 143 A.3d at 910.
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”1 when the legislature‘s actual words compel the result. I would not go so far as to assume or suggest that the statutory framework “evidences a deliberate legislative judgment ... 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,” or that
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
ambiguous when there are at least two reasonable interpretations of the text under review.” Id. at 354-55.
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 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.
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 offenses for which an individual is convicted, but, also, оn the occurrence of a multiplicity of certain types of offenses, particularly those committed against children.” Dissenting Opinion at 431-32, 143 A.3d at 913 (quoting Gehris, 54 A.3d at 867-68 (OISA)). I view this analysis as positing an alternative “primary concern” of the statute which, like that suggested by the Majority, does not flow inexorably from the unambiguous language of Section 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 conviсtion. 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 justice are not achieved by the General Assembly‘s uniform treatment of first-time, nonviolent offenders and those who commit the most serious and heinous sexual offenses. However, we are not addressing any constitutional challenge. This case presents a question of statutory interpretation. This Court may not alter the meaning of unambiguous statutory language in order to achieve what it perceives to be a preferable result. The statutory scheme operated to impose a perhaps unduly harsh consequence upon those individuals who will receive the benefit of the ruling reached by today‘s Majority. But this consequence is mandated by the statutory text. I respectfully dissent.
143 A.3d 917
COMMONWEALTH of Pennsylvania, Appellant
v.
Scott Bradley KINGSTON, Appellee.
Supreme Court of Pennsylvania.
Submitted Aug. 31, 2015.
Decided Aug. 15, 2016.
Notes
(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 predatоr. 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).
Moreover, even assuming Section 9795.1‘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;