Lead Opinion
Thе issue raised in this discretionary appeal is 'whether the Commonwealth may punish an individual for conduct which was made a crime by an amended statute where the original version of the statute has been declared unconstitutional in its entirety.
In 1995, Appellant pled guilty to involuntary deviate sexual intercourse (“IDSI”), see 18 Pa.C.S. § 3123, and was sentenced to five-to-ten years’ incarceration. Pursuant to Megan’s Law, he was required, upon release from prison, to register his address with the Pennsylvania State Police (the “state police”). He was also obligated to notify the state police of all subsequent address changes for the remainder of his life. Any failure to provide timely notification as required by law would constitute a criminal offense.
While subject to these obligations, Appellant moved to a new residence on April 1, 2009, and reported his new address to the state police on April 6. Based on having waited five days, Appellant was charged by information with the second-degree felony of failing to register as a sex offender under Section 4915(a)(1) of the Crimes Code, which was part of Megan’s Law III. See 18 Pa.C.S. § 4915(a)(1) (expired Dec. 20, 2012). When Megan’s Law III was originally enacted in 2004, offenders were given ten days to report an address change to the statе police. See Act of Nov. 24, 2004, P.L. 1243, No. 152 (“Act 2004-152”), at § 8. However, a 2006 legislative change reduced that period to 48 hours. See Act of Nov. 29, 2006, P.L. 1567, No. 178, § 7 (“Act 2006-178”). Thus, the 48-hour period was in effect when Appellant relocated on April 1, 2009. See 42 Pa.C.S. § 9795.2(a)(2)© (expired Dec. 20, 2012).
In 2011, Appellant was convicted at a bench trial of failing to timely register his new address and sentenced to a term of imprisonment. After his direct appeal rights were restored nunc pro tunc, the Superior Court awarded a new trial due to the trial court’s failure to conduct a jury-waiver colloquy. See Commonwealth v. Derhammer, No. 2057 MDA 2012, slip op.,
In the interim, Section 4915 of the Crimes Code expired and was replaced
By way of further background, Pennsylvania first enacted Megan’s Law in 1995, See Act of Oct. 24, 1995, P.L. 1079, No. 24 (Spec. Sess. No. 1) (as amended 42 Pa.C.S. §§ 9791-9799.6) (“Megan’s Law I”).
Megan’s Law II also provided, among other things, that offenders convicted’ of IDSI were subject to lifetimе registration. See 42 Pa.C.S. § 9795.1(b)(2) (2000). Such persons were given ten days to notify the state police of address changes. See id. § 9795.2(h)(2) (2000). Any failure to make timely notification constituted a first-degree felony, subjecting the registrant to a mandatory minimum sentence of probation for life and to a discretionary sentence of up to life in prison. Id. §'9795.2(d)(2) (2000).
Notably, the penalty provision was contained in the Sentencing Code together with the, rest of Megan’s Law II. Under Megan’s Law III, however, it was moved to the Crimes . Code.
As noted, Megan’s Law III expired and was replaсed by SORNA by the time Nei-mcm’s holding'was announced. While making substantive modifications to Megan’s Law, SORNA also sought to continue in force the registration requirements in relation to Megan’s Law III registrants. See 42 Pa.C.S. § 9799.13(3) (2012). SORNA established a three-tiered system of classifying sexual offenses — Tier III being the most serious "category, see 42 Pa.C.S/ § 9799.14(a) — -and, as applied to Appellant,designated IDSI as a Tier III offense; see id. § 9799.14(d)(4). This meant that Appellant’s lifetime registration period remained unchanged. See id. § 9799.15(a)(3) (providing that Tier III offenders’ “shall register for the life of the individual”).
However, Neiman’s broad invalidation of Act 2004-152 — which, again, included Megan’s Law III in its entirety — would, without remedial legislation, call into question whether someone in Appellant’s position would be an existing registrant as of SORNA’s effective date. Thus, the Nei-man Court stayed its decision for 90 days to allow for legislative action. In March 2014, shortly before the stay expired, the General Assembly enacted Act 19 of 2014, see Act of Mar. 14, 20.14, No. 19, P.L. 41 (“Act 2014-19”), which modified the wording of Section .9799.13(3) to clarify that persons who were required to register with the state police at any time before SORNA’s effective date, and whose registration period had not expired, were still obligated to register with the state police as provided in Section 9799.15 — in Appellant’s case, for the remainder of his life.
As for Crimes Code Section 4915, although it had expired at the time of the Neiman decision, any application of its terms was potentially affected by Nei-man’s invalidation of Act 2004-152, which, as noted, had created the provision. Nevertheless, Act 2014-19 did not re-enact Megan’s Law Ill’s penalty provision or amend its SORNA replacement, 18 Pa.C.S. § 4915.1.
In light of these developments, Appellant filed a motion to dismiss, on the basis that, per Neiman, the Crimes Code provision under which, he was charged was unconstitutional, The motion was denied in September. 2014, and Appellant was found guilty at his retrial based on the record of his first trial. He was sentenced to four-to-eight years in prison. On appeal, he argued that his conviction was null and void since the crime of which he was found guilty was defined by an unconstitutional statute.
A three-judge panel of the Superior Court affirmed in a published decision. See Commonwealth v. Derhammer,
The intermediate court instead focused its analysis on Act 2006-178, which it described as distinct from the unconstitutional Act 2004-152. The court developed that, despite a legislative intent to amend Megan’s Law III, Act 2006-178 effectively modified Megan’s Law II. The court relied for this position on Commonwealth ex rel. Schnader v. Great American Indemnity Co.,
In terms of the particular statutory provisions at issue in this case, the Superior Court observed that: (1) the aspect of-the Sentencing Code setting fоrth the maximum amount of time an-offender had to report an address change, see 42 Pa.C.S. § 9795.2(a)(2) (expired Dec. 20, -2012), was part of Megan’s Law II and the time period was reduced by Act 2006-178 from ten days to 48 hours; (2) while Section 4915(a) of the Crimes Code was neither re-enacted nor amended by Act 2006-178, its content appeared in a similar form under Megan’s Law II, albeit that the offense was graded as a first-degree felony and lacked, a specific scienter element;
Finally, the court observed that, in an unpublished decision, a different panel reached the opposite result based on Ex parte Siebold,
This Court granted further review to consider whether Appellant’s conviction is void due to Megan’s Law III having been invalidated by the Neiman decision. See Commonwealth v. Derhammer, — Pa. -,
It is undisputed that a conviction based on an unconstitutional statute is a nullity. In Siebold the Supreme Court explained that an offense created by an unconstitutional law “is not a crime” and “[a] conviction under it ... is illegal and void, and cannot be a legal cause of imprisonment.” Siebold,
First, echoing a рoint made by the Superior Court, the Commonwealth argues that Act 2006-178, in retrospect, amended Megan’s Law II rather than Megan’s Law III. Thus, the Commonwealth indicates that Megan’s Law II represents the legal foundation for Appellant’s criminal liability and, as such, Appellant was “subject to being charged under 18 Pa.C.S. § 4915.1(a)(3).” Brief for Commonwealth at 15.
The Commonwealth’s advocacy on this point lacks substantial coherence. For one thing, .Section 4915.1 was enacted by SOR-NA three years after the underlying events; it did not exist under Megan’s Law II, and moreover, under SORNA the prior version of Megan’s Law expired. Therefore, it is difficult to see how Appellant can be charged, pursuant to Megan’s Law II, with violating Section 4915.1(a)(3).
Also, subsection (a)(3) relates to providing inaccurate information when reporting an address, whereas the criminal complaint and criminal information both alleged that Appellant failed to timely report his new address in violation of subsection (a)(1). Likewise, the crux of the trial testimony for both the Commonwealth and the defense pertained to the question of whether Appellant’s report, submitted on April 6, 2009, was timely: Appellant testified that he moved on April 5, whereas other witnesses stated he moved on April 1. See, e.g„ N.T., Mar. 3, 2011, at 22 (“Q: What was the basis for you filing that charge? A: He had moved from one residence to another and had exceeded the 48-hour mandated time to register his new address with the Pennsylvania State Police.”). In this regard, the Commonwealth’s brief appears to be based on facts other than those of the present case, as it suggests Appellant’s criminal violation consisted of reporting inaccurate information in October 2012. Compare Brief for Commonwealth at 10 (suggesting that inaccuracies in the address provided by Appellant in October 2012 was the basis for the charge), with Derhammer,
Assuming, arguendo, the Commonwealth intended to suggest Appellant could validly have been charged under Megan’s Law II as amended by Act 2006-178— without reference to Crimes Code Section
Notably, as well, these amendments did not re-enact subsection 4915(a). Thus, even to the degree Schnader states that legislative amendments to invalidated provisions — here, Section 4915(b) and (c) — are effective as reenactments so long-as the words of those provisions are repeated in the amending legislation, such principle is not directly apposite because Act 2006-178 did not repeat the words of subsection (a). While the Legislature clearly assumed that subsection (a) was still valid, this Court cannot insert the text of that subsection into the 2006 legislation by implication.
In this respect, Schnader itself concentrated on the specific “words” of the amen-datory act. See Schnader,
We emphasize, as well, that Appellant was charged under Megan’s Law Ill’s penalty provision, not under its Megan’s Law II counterpart, which appeared in the Sentencing Code, not the Grimes Code. See generally Myers,
This leaves only'SORNA as a potential basis for the offense in question. Here, the Commonwealth maintains that Act 2014-19, which was passed in response to Neiman, “closes any ‘gap’ caused by the Neiman decision[.]” Brief for Commonwealth at 9. Under this theory, Appellant’s obligation to timely report address changes was never negated since the act was passed before the expiration of the stay of Neiman’s ruling. The ■ CommonWealth also emphasizes that Megan’s Law III amended Megan’s Law II but did not repeal it outright. Thus, the Commonwealth advances, Megan’s Law II’s registration requirements remained in effect after Neiman. Further, the Commonwealth references Rule of Criminal Procedure 560(C) for the position that a defect in the citation of a statute is-not fatal to a criminal informаtion. See ■ Pa.R.Crim.P. 560(C) (“The information shall contain the official or customary citation of the statute and section thereof ,.. that the defendant is alleged therein to have violated; but the omission of or error in such citation shall not affect the validity or sufficiency of the information.”). As such, the Commonwealth posits that Appellant was validly charged under Section 4915.1 of the Crimes Code, which was enacted by SOR-NA as a replacement for Section 4916. See Brief, for Commonwealth at 14-16.
We will assume, without deciding, that, as a result of the 2014 remedial legislation, Appellant was obligated to report any address changes during the relеvant time period. The question is whether he could validly be punished for his specific conduct. If Section 4915(a) of the Crimes Code continued in effect until its expiration and replacement by Section 4915.1(a), the Commonwealth’s argument might have some initial force. See, generally, Derhammer,
Further, whatever initial strength the Commonwealth’s position might otherwise have, it would ultimately be unavailing in light of the present facts. In In re Dandridge,
For the foregoing reasons, we hold that, at the time of Appellant’s second trial and sentencing, the Commonwealth lacked authority to prosecute him for having waited until Aрril 6, 2009, to report his April 1, 2009, address change. Therefore, the trial court should have' granted his motion to dismiss.
Accordingly, the order of the Superior Court is reversed and the matter is remanded to the Court of Common Pleas to strike the judgment of sentence and dismiss the charge against Appellant.
Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.
Justice Wecht files a concurring opinion.
Justice Mundy flies a concurring opinion.
Notes
. SORNA was enacted to bring Pennsylvania into compliance with the federal Adam Walsh Child Protection and Safety Act of- 2006: See 42 Pa.C.S. § 9799.10 (relating to the purposes of the subchapter). See generally In re J.B.,
. Megan’s Law governs, inter alia, the registration of sexual offenders and the designаtion of certain offenders as sexually violent predators. Nothing in the record suggests Appellant has ever been classified as a sexually violent predator. However, there is no dispute that he is a lifetime registrant under Megan’s Law.
. This penalty provision was held to be unconstitutionally punitive relative to persons classified’ as sexually violent predators, as that status could be established without proof .to . a jury beyond a reasonable doubt. See Williams II,
. Megan’s Law III did not completely repeal and replace Megan’s Law II; rather, it made significant changes to Megan’s Law II. See Commonwealth v. Muniz, — Pa. -, -,
. This grading scheme was altered two years later. See Act 2006-178, § 3 (amending 18 Pa.C.S. § 4915(c)).
. SORNA retained the “knowingly” mens rea for the failure-to-register offense, As to lifetime registrants, it changed the grading to a second-degree felony for the first offense and a first-degree felony for subsequent offenses. See 18 Pa.C.S. § 4915.1(a), (c).
. The court noted that "Jessica’s Law is a reference to mandatory minimum sentences for sex offenders and is named after Jessica Lunsford, a child who was abducted, sexually assaulted and then murdered in Florida by a man who was previously convicted of a sex offense.” Id. at 1078 n. 12.
. Thе intermediate court acknowledged that the criminal information stated Appellant "knowingly” failed to register, whereas Megan's Law II defined the offense without an express scienter element. It reasoned, however, that proof of a knowing mens rea satisfies the default standard as set forth in the Crimes Code. See 18 Pa.C.S. § 302(c) (providing that, absent a specified mens rea, criminal liability requires intentional, knowing, or reckless conduct). Thus, the court concluded that there was "no issue with respect to a lack of notice of the elements of the crime charged that would have resulted in trial counsel being unable to pursuе available defenses.” Derhammer,
. For ease of discussion we have reversed the order of the Commonwealth’s two arguments.
. We also note that Megan’s Law II’s penalty clause was different from that of Megan’s Law III: it specified that lifetime registrants who failed to timely report their new address were subject to a mandatory minimum sentence of lifetime probation and to up to life imprisonment. See 42 Pa.C.S. § 9795.2(d)(2) (2000). Therefore, any suggestion that Section 9795.2(d)(2) should retrospectively be viewed as the relevant penalty provision would be problematic. Appellant lacked any suggestion that he could be subject to such а lengthy sentence when he waived his right to be tried by a jury, and moreover, he had no reason to argue that Williams ITs invalidation of that provision relative to sexually violent predators, see supra note 3, should be extended to lifetime registrants.. .
. Here again, the Commonwealth appears to proceed under the misapprehension that Appellant was charged with providing inaccurate information, rather than untimely information, to the state police. See 'id. at 15 (citing 18 Pa.C.S. § 4915.1(a)(3) rather than (a)(1)). Therefore, we stress once more that Appellant was charged under subsection (a)(1) of Section 4915 and that the еvidence adduced at trial centrally related to the timeliness of Appellant's address-change report.
Concurrence Opinion
concurring
I join the Court’s opinion in full. The Majority conclusively and convincingly rejects the Commonwealth’s attempts to sustain a conviction against Joseph Derham-mer that was based upon a statute that had been judged constitutionally invalid by this Court’s decision in Commonwealth v. Neiman,
In light of Derharamer’s criminal histo-ryj this state of affairs will strike some as distinctly unpalatable, particularly because ■Derhammer had proyen himself to be a danger to others. It was the General Assembly’s duty to ensure that all gaps in Megan’s Law coverage were closed. It was the. responsibility of the General Assembly .to avoid situations such as the one that results from the Court’s decision today.
The General Assembly responded to Neirnan by passing Act 19 of 2014. However, in that bill, the General Assembly did not re-enact 18 Pa.C.S. § 4915, which was the provision created by Megan’s Law III to criminalize an offender’s failure to register a change in address. This provision had also been invalidated by Neirnan. Whether by accident, or because it believed erroneously that its promulgation of SORNA
I write separately to address one troublesome feature (among several) that characterizes
Thе Superior Court first held that Megan’s Law II was revived automatically upon Megan’s Law Ill’s invalidation. Megan’s Law II had a ten-day notification provision, which meant that Derhammer had committed no crime under that law. But the Superior Court then turned to Act 178, an amendment to Megan’s Law III (not to Megan’s Law II), which had a forty-eight hour notification period following a change in residence. The Superior Court concluded that Act 178, and not Megan’s Law II, applied to Derhammer’s conduct, notwithstanding the fact that the court had just deemed Megan’s Law II to have gone back into effect. Thus, the Superior Court breathed new life into part of аn amendment to the unconstitutionally enacted Megan’s Law III, and concluded that Derhammer’s conviction “remain[ed] sound” because “Act 178 amended Megan’s Law II and not Megan’s Law III.” Commonwealth v. Derhammer,
To summarize, the Superior Court held that an amendment to Megan’s Law III, which was passed by the General Assembly to modify only the terms of Megan’s Law III, actually was an amendment to Megan’s Law II, and was intended as such by the General Assembly, even though the amendment was passed two years after Megan’s Law ill replaced Megan’s Law II, and seven years before this Court would rule Megan’s Law III unconstitutional. The Superior Court reached this startling and remarkable conclusion in an effort to fill in the gap created by the General Assembly’s failure to resolve the problem that Neiman had placed in' the legislature’s lap.
After laws are repealed or stricken as unconstitutional, judicial interpretation of what remains can prove difficult. It is not entirely clear that the preceding law, ipso facto, returns to effect as if it had never been repealed or replaced, as the Superior Court held with regard to Megan’s Law II. Moreover, this enterprise is particularly problematic when what is left in the wake of a statute’s invalidation is a gaр in the law. Filling such gaps is an inherently legislative function, which the judiciary should leave to those who have been elected by the people to write the laws.
When courts embark upon an effort to fill in the gaps left by lawmakers, judges are forced to guess between competing solutions, without any way to know which (if any) of the solutions the General Assembly would have chosen. Megan’s Law III was a large, complex statute that included no less than twenty different sections. Act 178 amended only five of those sections,
Once judges attempt to fill in legislative holes created by repeal or court decision, conflicts arise that courts are ill-equipped to resolve. By way of illustration, assume
Alternatively, assume thаt Act 178 contained a provision that had no corresponding section in Megan’s Law II, and that Megan’s Law II was then revived. Since the Act 178 provision did not conflict with Megan’s Law II, would it be enforced, or would Megan’s Law II be enforced as written? Or, assume that Act 178 contained substantially more relaxed limitations on where sexual offenders can live and work. There is no proper way for a court to guess whether the General Assembly would have wanted the more relaxed provisions to govern, or whether it would have chosen to return to stricter rules.
As the learned Majority makes clear, Neiman, and the General Assembly’s incomplеte response to that decision, created a gap in legislation, leaving no criminal law under which Derhammer can be prosecuted. Since Marbury v. Madison,
. SORNA stands for the "Sexual Offender Registration and Notification Act.” See 42 Pa. C.S. §§ 9799.10-9799.41.
. Act 178 amended sections 42 Pa.C.S. §§ 9718.2, 9718.3, 9795.1, 9795.2, and 9798.3.
Concurrence Opinion
concurring
I join the Majority in full. I write separately to note that this issue arises from our Court’s decision in Commonwealth v. Neiman,
The Superior Court’s opinion in Neiman concluded that Act 152 violated the Single Subject Clause but reached the opposite conclusion as to severance. Commonwealth v. Neiman,