T.S., Petitioner v. Pennsylvania State Police, Respondent
No. 129 M.D. 2019
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
May 11, 2020
Argued: February 12, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge; HONORABLE RENÉE COHN JUBELIRER, Judge; HONORABLE P. KEVIN BROBSON, Judge; HONORABLE MICHAEL H. WOJCIK, Judge; HONORABLE CHRISTINE FIZZANO CANNON, Judge; HONORABLE ELLEN CEISLER, Judge; HONORABLE J. ANDREW CROMPTON, Judge
FILED: May 11, 2020
Presently before the Court is T.S.’s (Petitioner) Application for Summary Relief (Application) on his Petition for Review (Petition) filed in our original jurisdiction. Petitioner seeks mandamus and declaratory relief against the Pennsylvania State Police (PSP), challenging as unconstitutional as applied subchapter I of the most recent enactment of a sexual offender registration scheme, Act of February 21, 2018, P.L. 27 (Act 10),
A. Development of the Law
A brief overview of the history of sexual offender registration schemes in the Commonwealth and the relevant provisions of Act 29 is necessary before addressing Petitioner’s ex post facto claims. Act 29 is the fifth iteration of the law commonly referred to as Megan’s Law. The prior iterations have all been struck down, or struck down in part, as previously explained by this Court:
Megan’s Law I,4 the Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was enacted on October 24, 1995, and became effective 180 days thereafter. Megan’s Law II5 was enacted on May 10, 2000[,] in response to Megan’s Law I being ruled unconstitutional by our Supreme Court in Commonwealth v. Williams, . . . 733 A.2d 593 ([Pa.] 1999) [(Williams I)]. Our Supreme Court held that some portions of Megan’s Law II were unconstitutional in Commonwealth v. Gomer Williams, . . . 832 A.2d 962 ([Pa.] 2003) [(Williams II)], and the General Assembly responded by enacting Megan’s Law III6 on November 24, 2004. The United States Congress expanded the public notification requirements of state sexual offender registries in the Adam Walsh Child Protection and Safety Act of 2006, [(Adam Walsh Act)7] . . . , and the Pennsylvania General Assembly responded by passing SORNA on December 20, 2011[,] with the stated purpose of “bring[ing] the Commonwealth into substantial compliance with the
[Adam Walsh Act].” [Section 9799.10(1) of SORNA, former] 42 Pa.C.S. § 9799.10(1) . SORNA went into effect a year later on December 20, 2012. Megan’s Law III was also struck down by our Supreme Court for violating the single subject rule of Article III, Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman, . . . 84 A.3d 603, 616 ([Pa.] 2013). However, by the time it was struck down, Megan’s Law III had been replaced by SORNA.
Taylor v. Pa. State Police, 132 A.3d 590, 595 n.7 (Pa. Cmwlth. 2016). The Supreme Court in Muniz explained the evolution of the provisions of these laws and the bases for their being struck down, in whole or in part, as follows:
Among other things, Megan’s Law I established a procedure for adjudicating certain offenders—namely, those that committed one of the predicate offenses listed in the statute—as sexually violent predators [(SVPs)]. The mandated procedure included a postconviction, presentence assessment by the [State Sexual Offender Board (Board)], followed by a hearing before the trial court. . . . If the individual was adjudicated a [SVP], he was subjected to an enhanced maximum sentence of life imprisonment for the predicate offense, as well as registration and community notification requirements that were more extensive than those applicable to an offender who was not adjudicated a [SVP].
In [Williams I], this Court struck down the [SVP] provisions of Megan’s Law I based upon the conclusion that a finding of [SVP] status under that enactment entailed a separate factual determination, the end result of which is the imposition of criminal punishment . . . . Notably, in view of the punitive nature of the increased maximum prison sentence, the Williams I Court invalidated the challenged provisions without reaching the question of whether the enhanced registration and notification requirements constituted criminal punishment. . . .
After Williams I was decided, the General Assembly passed Megan’s Law II . . . . [T]he General Assembly altered the manner in which an individual convicted of a predicate offense was adjudicated a [SVP] . . . . [U]nder Megan’s Law II an offender convicted of an enumerated predicate offense [was] no longer presumed to be a [SVP] . . . . Additionally, persons adjudicated to be [SVPs were] no longer subjected to an automatic increased maximum term of imprisonment
for the predicate offense. Instead, they [were] required to undergo lifetime registration, notification, and counseling procedures; failure to comply with such procedures [was] penalized by a term of probation or imprisonment. Under Megan’s Law II, any offender convicted of a predicate offense, whether or not he is deemed a [SVP], must: (1) register his current residence or intended residence with [PSP] upon release from incarceration, parole from a correctional institution, or commencement of an intermediate punishment or probation; (2) inform [PSP] within ten days of a change in residence; and (3) register within ten days with a new law enforcement agency after establishing residence in another state.
Muniz, 164 A.3d at 1196-97 (quoting Williams II, 832 A.2d at 965-68) (internal quotations and citations omitted). The Supreme Court determined in Williams II that the SVP provisions, with the exception of the punishments for failure to comply, were constitutional. The General Assembly then enacted amendments, commonly known as Megan’s Law III, in which it made the following relevant changes:8
added the offenses of luring and institutional sexual assault to the list of enumerated offenses which require a 10-year period of registration . . . ; [] directed the creation of a searchable computerized database of all registered sexual offenders . . . ; [] allowed a sentencing court to exempt a lifetime sex offender registrant, or [SVP] registrant, from inclusion in the database after 20 years if certain conditions are met; [] established mandatory registration and community notification procedures for [SVPs]; . . . and [] mandated the Pennsylvania Attorney General to conduct annual performance audits of state or local agencies [that] participate in the administration of Megan’s Law, and, also, required registered sex offenders to submit to fingerprinting and being photographed when registering at approved registration sites.
SORNA classified offenders and offenses into three tiers, with each tier corresponding to an offender’s duration of registration and the frequency with which the offender must appear in person to verify the offender’s residence, anywhere from quarterly to annually. Section 9799.15 of SORNA, former
Those convicted of Tier I offenses [were] subject to registration for a period of fifteen years and [were] required to verify their registration information and be photographed, in person at an approved registration site, annually. [Former]
42 Pa.C.S. § 9799.15(a)(1) , (e)(1). Those convicted of Tier II offenses [were] subject to registration for a period of twenty-five years and [were] required to verify their registration information and be photographed, in person at an approved registration site, semi-annually. [Former]42 Pa.C.S. § 9799.15(a)(2) , (e)(2).. . . .
SORNA also establishe[d] a statewide registry of sexual offenders to be created and maintained by [PSP]. [Section 9799.16(a) of SORNA, former]
42 Pa.C.S. § 9799.16(a) . The [R]egistry contains information provided by the sexual offender, including: names and aliases, designations used by the offender for purposes of routing or self-identification in [I]nternet communications, telephone numbers, social security number, addresses, temporary habitat if a transient, temporary lodging information, passport and documents establishing immigration status, employment information, occupational and professional licensing information, student enrollment information, motor vehicle information, and date of birth. [Former]42 Pa.C.S. § 9799.16(b) . The [R]egistry also contains information from [PSP], including the following: physical description of the offender, including a general physical description, tattoos, scars and other identifying marks, text of the statute defining the offense for which the offender is registered, criminal history information, current photograph, fingerprints, palm prints and a DNA sample from theoffender, and a photocopy of the offender’s driver’s license or identification card. [Former] 42 Pa.C.S. § 9799.16(c) .. . . .
In addition to the offender’s duty to appear at an approved registration site . . . all offenders [were] also required to appear in person at an approved registration site within three business days of any changes to their registration information including a change of name, residence, employment, student status, telephone number, ownership of a motor vehicle, temporary lodging, e-mail address, and information related to professional licensing. [Former]
42 Pa.C.S. § 9799.15(g) . . . .
B. Muniz
The Supreme Court struck down SORNA as unconstitutional in Muniz. Id. at 1218. In Muniz, the petitioner committed and was convicted and sentenced for his offense in 2007, when Megan’s Law III was in place. The petitioner absconded and, at the time of his capture in 2014, SORNA dictated his registration requirements. The petitioner’s triggering offense carried a 10-year registration requirement under Megan’s Law III but a lifetime registration under SORNA. The petitioner challenged the retroactive application of SORNA’s provisions to him as ex post facto. The Supreme Court agreed with the petitioner, concluding that the increased registration period and the other registration requirements of SORNA, including quarterly in-person registration, in-person verification of registration information, and the dissemination of offenders’ personal information online, were punitive provisions. Id.. After reaching this conclusion, Justice Dougherty, announcing the judgment of the Court, joined by Justices Baer and Donohue, also
C. Act 29
In response to Muniz, the General Assembly enacted Act 29. As the Supreme Court recently explained in Commonwealth v. Butler, __ A.3d __, __ n.11 (Pa., No. 25 WAP 2018, filed March 26, 2020), slip op. at 10 n.11 (Butler II), through subchapter I of Act 29, the General Assembly
divided SORNA into two subchapters. Subchapter H is based on the original SORNA statute and is applicable to offenders . . . who committed their offenses after the December 20, 2012 effective date of SORNA; Subchapter I is applicable to offenders who committed their offenses prior to the effective date of SORNA and to whom the Muniz decision directly applied.10
In the present case, our focus is on the provisions of subchapter I.11
In order to achieve these purposes, subchapter I of Act 29 requires that, upon release from incarceration, offenders provide PSP with information for current or intended residences, employment, and enrollment as a student. Section 9799.56(a)(1) of Act 29,
As with former iterations of the statutory scheme, subchapter I of Act 29 maintains the distinction between offenders who have committed a sexual offense and SVPs. As in prior versions of the statute, SVPs are those individuals convicted of certain statutorily enumerated sexually violent offenses who are also assessed by the Board and determined in a separate proceeding to be SVPs “due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” Section 9799.53 of Act 29,
The Internet dissemination provision requires PSP to maintain and disseminate the following information about each offender:
(i) name and all known aliases; (ii) year of birth; (iii) . . . the street address, municipality, county and zip code of all residences, including, where applicable, the name of the prison or other place of confinement; (iv) the street address, municipality, county, zip code and name of an institution or location at which the person is enrolled as a student; (v) the municipality, county and zip code of an employment location; (vi) a photograph of the individual, which shall be updated not less than annually; (vii) a physical description of the offender, including sex, height, weight, eye color, hair color, and race; (viii) identifying marks, including scars, birthmarks and tattoos; (ix) the license plate number and description of a vehicle owned or registered to the offender; (x) whether the offender is currently compliant with registration requirements; (xi) whether the victim is a minor; (xii) a description of the offense or offenses which triggered
the application of this subchapter; [and] (xiii) the date of the offense and conviction, if available . . . .
Finally, Section 9799.59(a)(1) of Act 29 allows offenders to request an exemption from all of the aforementioned registration requirements if:
[a]t least 25 years have elapsed prior to filing a petition [for exemption] with the sentencing court to be exempt from the requirements of this subchapter, during which time the [offender] has not been convicted in this Commonwealth or any other jurisdiction or foreign country of an offense punishable by imprisonment of more than one year, or the [offender’s] release from custody following the [offender’s] most recent conviction for an offense, whichever is later.
shall exempt the [offender] from any or all of the requirements of this subchapter, at the discretion of the court, only upon a finding of clear and convincing evidence that exempting the [offender] from . . . the requirements of this subchapter is not likely to pose a threat to the safety of any other person.
D. Key Cases
Along with Muniz, the following cases are instructive for our analysis of Act 29, as they apply ex post facto principles to sexual offender registration laws. First, we are guided by the United States Supreme Court’s decision in Smith v. Doe, 538 U.S. 84 (2003), upon which the Supreme Court relied in Muniz. Throughout Muniz, the Supreme Court compared SORNA to the Alaska sexual offender registration statute that the United States Supreme Court determined in Smith did not violate the prohibition against ex post facto laws. Smith, 538 U.S. at 92. The Alaska statute in Smith was retroactively applied to the respondents, who had committed their crimes before there was a registration scheme. Id. at 91. However, the Supreme Court did not strike down the mere registration of such offenders retroactively, analyzing instead the provisions governing registration, which included an online database with information about offenders’ criminal convictions and requirements for periodic updates by offenders, and determining these provisions were nonpunitive. Id. at 105.
Along with Smith, our Supreme Court’s decision in Williams II, analyzing an ex post facto challenge to certain Megan’s Law II provisions, is also instructive. The appellees in Williams II committed their sexual offenses in 2000 and 2001, were determined by the Board to be SVPs, and challenged the SVP registration, notification, and counseling provisions of Megan’s Law II as punitive. 832 A.2d at 965. The appellees argued that the requirements for registering current addresses, notifying PSP within 10 days of change in residence, and mandatory monthly counseling were punitive. Relying in part upon the analytic framework set forth in Smith, the Court in Williams II concluded that the General Assembly had a
Along with Smith and Williams II, our analysis is guided by two recent cases analyzing Act 29. Most recently, in Butler II, the Supreme Court examined whether SVP registration requirements in subchapter H of Act 29 constitute criminal punishment, and, relying upon Muniz and Williams II, concluded that they do not. Butler II, slip op. at 30. The appellee in Butler II committed his crimes while SORNA was in effect and, prior to sentencing, was assessed and designated a SVP. On appeal following the appellee’s post-sentence motions, the Superior Court determined, based upon Muniz, that the SVP registration requirements of subchapter H are punitive and unconstitutional. Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I), rev’d, Butler II, (2020). The Supreme Court disagreed that the lifetime registration, notification, and counseling requirements (RNC requirements) for SVPs constituted punishment. The Supreme Court concluded:
Although we recognize the RNC requirements impose affirmative disabilities or restraints upon SVPs, and those requirements have been historically regarded as punishment, our conclusions in this regard are not dispositive on the larger question of whether the statutory requirements constitute criminal punishment. This is especially so where the government in this case is concerned with protecting the public, through counseling and public notification rather than deterrent threats, not from those who have been convicted of enumerated crimes, but instead from those who have been found to be dangerously mentally ill. . . . Under the circumstances, and also because we do not find the RNC requirements to be excessive in light of the heightened public safety concerns attendant to SVPs, we
conclude the RNC requirements do not constitute criminal punishment.
Butler II, slip op. at 30 (citations omitted).13
Last, the Superior Court recently analyzed the constitutionality of the Internet dissemination provision of subchapter I of Act 29 in Commonwealth v. Moore, 222 A.3d 16 (Pa. Super. 2019).14 The appellant in Moore appealed to the Superior Court from a judgment of sentence, challenging his obligation to register under subchapter I of Act 29 for offenses committed between 2004 and 2008 and asserting that subchapter I of Act 29 “include[d] several punitive elements not in effect at the time he committed his crimes.” Id. at 18. The Superior Court determined the appellant’s arguments were a narrow challenge to the Internet dissemination provision. Evaluating the appellant’s arguments under an ex post facto analysis, the Superior Court agreed with the appellant, determining that the Internet dissemination provision was nearly identical to the SORNA website provision and, therefore, punitive but severable. Id. at 27.
With the relevant statutory history and case law as a foundation, we turn to Petitioner’s challenge to his registration obligation under subchapter I as an offender who commited his triggering offenses before the enactment of any registration scheme.
A. Petition
Petitioner avers as follows in his Petition. Petitioner was convicted on June 23, 1992, of aggravated indecent assault and attempted rape, offenses that he committed in 1990. (Petition ¶¶ 6-8.) Petitioner was sentenced to 3 to 10 years’ imprisonment followed by probation. (Id. ¶ 9.) There was no sexual offender registration and notification scheme in existence at the time Petitioner committed the offenses or was convicted and sentenced. (Id. ¶ 11.) Petitioner “maxed out his sentence” and was released from incarceration in 2002, began registering with PSP that same year, and is still currently registering as a sexual offender. (Id. ¶¶ 5, 10, 11.) Under the current registration scheme, Petitioner is classified as a lifetime registrant. (Id. ¶ 13.) Through the Internet dissemination provision of subchapter I of Act 29, Petitioner’s registration with PSP makes available to anyone with Internet access Petitioner’s current picture, prior pictures dating back to 2016, physical description, residential address, general employment/employer location, vehicle description, and description of the offenses for which he was convicted. (Id. ¶ 14.)
Following the Pennsylvania Supreme Court’s decision in Muniz, Petitioner, through counsel, mailed a letter on December 12, 2018, to PSP regarding Petitioner’s registration status (Letter). Relying upon Muniz and the statutory language of subchapter I of Act 29, Petitioner asserted in the Letter that he was not subject to registration as a sexual offender or a SVP, and requested that PSP remove him from the Registry and “extinguish any further need on his part from registering in the future.” (Letter, Ex. A; see also Petition ¶ 16.) Petitioner further requested that if PSP could not comply with these requests, it “reply as to the
In Count I of the Petition, Petitioner seeks declaratory relief from this Court, averring that pursuant to Muniz, “[s]ubchapter I of [Act 29] does not apply to him under any reasonable construction of the statute,” and “any iteration of Pennsylvania’s sex[ual ]offender[ ]registration scheme is an unconstitutional ex post fact[o] law as applied to him.” (Id. ¶¶ 23-24.) In Count II, Petitioner seeks mandamus relief on the basis that: Act 29, which post-dates his offenses, does not apply to him; PSP has a duty to create and maintain the Registry; and there is no other adequate and appropriate remedy to challenge the alleged unlawful application of Act 29 to Petitioner. (Id. ¶ 29.) Petitioner asks this Court to “declare [Act 29] unconstitutional . . . as applied to him” and issue a writ of mandamus “to compel PSP to permanently remove Petitioner from the . . . [R]egistry.”15 (Petition, Wherefore Clause.)
PSP filed an Answer and New Matter, admitting the factual allegations as to Petitioner’s convictions, sentencing,16 and status as a lifetime registrant, and PSP’s receipt of the Letter and response thereto. PSP also admits that there was no sexual offender registration scheme in place at the time Petitioner committed his crimes or was convicted and sentenced. (Answer & New Matter ¶ 11.) PSP denies any conclusions of law relating to Petitioner’s contention that he should not be subject to the registration requirements of subchapter I of Act 29.17
In New Matter, PSP asserts that subchapter I of Act 29 is not a criminal punishment but “a civil registration system,” and neither PSP nor this Court can alter Petitioner’s registration obligations. (Id. ¶¶ 31-33.) PSP further asserts that, upon information and belief, Petitioner poses a threat to society due to the high rates of recidivism among adult sexual offenders like Petitioner, and subchapter I of Act 29 is narrowly tailored to protect the public, which is a compelling state interest. (Id. ¶ 34.) Subchapter I of Act 29 also is narrowly tailored to serve a compelling state interest of “notifying and protecting the public” through the registration of offenders and Internet dissemination of offenders’ information, PSP asserts. (Id. ¶ 42.) PSP alleges that it is required by the Adam Walsh Act to create
Petitioner filed a Reply to New Matter denying all of PSP’s conclusions of law.
C. Application
After the pleadings closed, Petitioner filed the instant Application. Petitioner emphasizes that PSP admits: the crimes for which Petitioner was convicted; the sentence he served; the nonexistence of a sexual offender registration scheme at the time of commission of, or conviction for, the crimes; Petitioner’s current status as a lifetime registrant; and the breadth of Petitioner’s personal information publicly available because of the Internet dissemination provision. Petitioner contends the only dispute between the parties is purely legal: whether Petitioner is required to continue registering under subchapter I. Petitioner asserts he is entitled to relief because his registration under subchapter I of Act 29 violates the prohibition against ex post facto laws, particularly in light of Muniz. Petitioner asks that this Court grant the Application and “enter judgment . . . in favor of Petitioner, declaring [Act 29] (and [s]ubchapter I thereof) an unconstitutional ex post facto law as applied and thereafter compelling [PSP] to permanently remove Petitioner from the . . . [R]egistry.” (Application, Wherefore
III. Ex Post Facto Considerations
This Court “may grant summary relief where the dispute is legal rather than factual,” there are no facts in dispute, and the “right to relief is clear.” Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1220 (Pa. Cmwlth. 2018). In reviewing the record, we do so “in the light most favorable to the opposing party.” Id. “Even if the facts are undisputed, the moving party has the burden of proving that its right to relief is so clear as a matter of law that summary relief is warranted.” Naylor v. Dep’t of Pub. Welfare, 54 A.3d 429, 431 n.4 (Pa. Cmwlth. 2012), aff’d, 76 A.3d 536 (Pa. 2013).
The prohibition on ex post facto laws “ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action.” Peugh v. United States, 569 U.S. 530, 544 (2013). Therefore, the ex post facto clause “safeguards ‘a fundamental fairness interest . . . in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.’” Id. (quoting Carmell v. Texas, 529 U.S. 513, 533 (2000)). There are traditionally four categories of laws that violate the prohibition on ex post facto laws, including laws that: (1) make criminal and punish actions that were innocent at the time they were committed before the law was passed; (2) aggravate a crime to something greater than it was at the time it was committed; (3) “change[] the punishment” and “inflict[] a greater punishment[] than the law annexed to the crime at the time it was committed“; or (4) alter the rules of evidence from that required at the time the crime was
As set forth by our Supreme Court in Muniz, we follow the established framework for approaching and analyzing the constitutionality of a law under the Ex Post Facto clause of the United States Constitution. Like our Supreme Court and the United States Supreme Court, we apply a two-prong analysis to determine whether a law inflicts a greater punishment. First, we look to see whether the General Assembly‘s intent is “to impose punishment.” Smith, 538 U.S. at 92. If so, the law is punitive. Id. If the General Assembly‘s intent is to enact a nonpunitive civil regulatory scheme, we proceed to the second prong to determine whether the statute “is so punitive either in purpose or effect as to negate the
[1.] whether the sanction involves an affirmative disability or restraint, [2.] whether it has historically been regarded as punishment, [3.] whether it comes into play only on a finding of scienter, [4.] whether its operation will promote the traditional aims of punishment – retribution and deterrence, [5.] whether the behavior to which it applies is already a crime, [6.] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7.] whether it appears excessive in relation to the alternative purpose assigned.
Id. at 168-69 (footnotes omitted). The Mendoza-Martinez factors are intended to be “useful guideposts” that are “neither exhaustive nor dispositive.” Smith, 538 U.S. at 97. “[O]nly the clearest proof may establish that a law is punitive in effect,” and “in determining whether a statute is civil or punitive, we must examine the law‘s entire statutory scheme.” Muniz, 164 A.3d at 1208 (emphasis added) (quotation omitted) (citing Smith, 538 U.S. at 92).
IV. Discussion
As we analyze the parties’ arguments, we are mindful of the “general presumption that all lawfully enacted statutes are constitutional.” Muniz, 164 A.3d at 1195. Petitioner argues that subchapter I of
A. General Assembly‘s Intent
PSP asserts that based upon the General Assembly‘s declaration of policy in
As the Supreme Court did in Muniz with regard to
B. Mendoza-Martinez Factors
We next analyze the Mendoza-Martinez factors for purposes of determining whether the provisions of subchapter I of
Petitioner argues that subchapter I of
PSP responds that subchapter I of
In Muniz, the petitioner committed his offenses when Megan‘s Law III governed, mandating a 10-year registration. The petitioner absconded, and
Subsequently, in Butler II, the Supreme Court provided further analysis in determining that the RNC requirements for SVPs under subchapter H of
We note that Petitioner in this matter is not a SVP or subject to subchapter H, and committed his crimes prior to the existence of a registration scheme. However, the Supreme Court‘s interpretation and explanation of Muniz in Butler II is instructive as to what provisions should be considered punitive and whether a legitimate interest underlies those provisions. Under subchapter I of
The Supreme Court disapproved not only of in-person appearances, but the frequency of those appearances for the petitioner in Muniz. Under
In reaching this conclusion, we reiterate that for an ex post facto analysis, the entire statutory scheme as applied to Petitioner must be viewed in relation to what he had notice of at the time he committed his crimes. The petitioner in Muniz was convicted and sentenced in 2007, and there was no dispute that, at the times he committed and was convicted for his crimes, he would have been required to register as a sexual offender. However, as the Supreme Court found, the in-person quarterly registration, in-person updates, and
2. Whether the sanction has historically been regarded as punishment.
Petitioner argues that the annual in-person reporting requirements and the Internet dissemination provision are similar to traditional shaming punishments. Petitioner asserts that, as in Muniz, these provisions of subchapter I of
In Muniz, the Supreme Court determined that the
In Butler II, the Supreme Court further explained that “SVPs under [s]ubchapter H are subject to the same in-person reporting requirements as the Tier III offenders at issue in Muniz and SVPs also face incarceration for failure to comply with the RNC requirements.” Butler II, __ A.3d at __, slip op. at 25. Therefore, the Supreme Court found the RNC requirements similar to probation. Id. With regard to the dissemination of information about SVP registrants online, however, the Supreme Court distinguished “heightened public safety concerns applicable to SVPs that were not at issue in Muniz,” and recognized that subchapter H provides a mechanism through which SVPs can seek removal from the Registry after 25 years. Id. at __, slip op. at 26. Therefore, with regard to the online registry and notification requirements imposed on SVPs, the Supreme Court determined they were not similar to traditional shaming punishments. Given this, the Supreme
Our Supreme Court has recognized “probation itself may be a form of punishment.” Williams II, 832 A.2d at 977. Individuals on probation are subject to the imposition of conditions, including “be[ing] subject to intensive supervision . . . and to notify the court or designated person of any change in address or employment,” and having “[t]o report as directed to the court or the designated person and to permit the designated person to visit the [offender‘s] home.” Sections 9754(b) and 9763(b)(11), (12) of the
PSP contends that the imposition of criminal sanctions for failure to comply with the registration requirements is distinguishable from probation conditions, as a violation of probation is determined without the full panoply of rights attached to
This distinction is highlighted by the Supreme Court‘s recent decision in Butler II. The Supreme Court distinguished the SVP provisions of subchapter H and the
Petitioner also specifically challenges the Internet dissemination provision of subchapter I of
Subchapter I of
(i) name and all known aliases; (ii) year of birth; (iii) . . . the street address, municipality, county and zip code of all residences, including, where applicable, the name of the prison or other place of confinement; (iv) the street address, municipality, county, zip code and name of an institution or location at which the person is enrolled as a student; (v) the municipality, county and zip code of an employment location; (vi) a photograph of the individual, which shall be updated not less than annually; (vii) a physical description of the offender, including sex, height, weight, eye color, hair color, and race; (viii) identifying marks, including scars, birthmarks and tattoos; (ix) the license plate number and description of a vehicle owned or registered to the offender; (x) whether the offender is currently compliant with registration requirements; (xi) whether the victim is a minor; (xii) a description of the offense or offenses which triggered the application of this subchapter; [and] (xiii) the date of the offense and conviction, if available . . . .
The Superior Court relied on Muniz in its recent decision in Moore. With regard to this factor, the Superior Court also noted that the Internet dissemination provision of subchapter I of
In consideration of the fact that the registration and verification requirements of subchapter I of
3. Whether the sanction comes into play only on a finding of scienter.
Petitioner and PSP acknowledge that this factor did not carry much weight in the analysis in Muniz and, therefore, do not address this factor in detail. (Petitioner‘s Br. at 16 n.9; PSP‘s Br. at 3.) Although our Supreme Court found differently with regard to this factor in Butler II, that was because “the RNC requirements are not triggered on the basis of a finding of scienter,” but rather on a determination of an offender‘s “mental abnormality or personality disorder.” Butler II, __ A.3d at __, slip. op. at 26-27. Because Petitioner is not a SVP, like the appellee in Butler II was, we follow the reasoning in Muniz. As the Supreme Court has recognized with regard to non-SVP offenders, “where the concern of a sex offender registration statute . . . is protecting the public against recidivism, past criminal conduct is ‘a necessary beginning point.‘” Muniz, 164 A.3d at 1214
4. Whether the operation of the sanction will promote the traditional aims of punishment – retribution and deterrence.
Petitioner argues that subchapter I of
PSP responds that subchapter I of
PSP asserts that subchapter I of Act 29 on the whole does not promote traditional aims of punishment like SORNA did because of its discernable differences from SORNA. As PSP notes, subchapter I of Act 29 is different from SORNA in terms of the triggering offenses. SORNA included triggering offenses that lacked a sexual component, including those related to unlawful restraint, false
However, the existence of fewer triggering offenses or offenses without a sexual component in subchapter I of Act 29 as compared to SORNA is immaterial as applied to Petitioner here who faced no obligation of registration at the time he committed his offenses. We note that the Supreme Court‘s analysis in Muniz of the entire statutory scheme of SORNA was in relation to former versions of the statute and that the petitioner in Muniz committed his crimes when a prior version of a registration scheme was in existence. Again, we emphasize that here, there was no registration scheme for Petitioner when he committed his crimes and was convicted and sentenced. Therefore, the critical inquiry here is not whether subchapter I of Act 29 is less punitive than SORNA on the whole but, rather, whether the entire statutory scheme of subchapter I of Act 29 is punitive as applied
Further, Petitioner‘s obligations under subchapter I of Act 29 arise not from a separate determination that he possesses an abnormality that makes him dangerous, like a SVP, such as in Butler II, but because of an offense he committed prior to the enactment of a registration scheme. As the Supreme Court explained in Butler II, registration provisions in the nature of those in SORNA can be retributive in effect when they are based on the conviction for the predicate offense. __ A.3d at __, slip op. at 27. Here, the provisions governing Petitioner‘s registration are based alone upon his conviction for the predicate offense. Because Petitioner did not have fair warning at the time of commission of the offenses that he would have multifaceted registration requirements for his lifetime, and his registration requirements derive from his conviction alone, we agree with Petitioner that this factor weighs in favor of finding subchapter I of Act 29 to be punitive as applied to him, regardless of any discernable differences between SORNA and subchapter I of Act 29 with regard to offenses requiring registration.
Petitioner additionally relies upon the Internet dissemination provision to argue that subchapter I of Act 29 as applied to him promotes traditional aims of punishment. In Muniz, the Supreme Court concluded that “the prospect of being labeled a sex offender accompanied by registration requirements and the public dissemination of an offender‘s personal information over the [I]nternet has a deterrent effect.” 164 A.3d at 1215. Although acknowledging that the mere presence of a deterrent effect alone did not render the sanctions of SORNA criminal, the Supreme Court found, after a thorough review of SORNA, that there was more than a mere presence of deterrent effect. The Supreme Court reasoned
We agree with Petitioner that this factor weighs in favor of finding subchapter I of Act 29 to be punitive as applied to him. As previously explained, the Internet dissemination provision of subchapter I of Act 29 retains all the same features that the Supreme Court disapproved of in Muniz with regard to SORNA. Subchapter I of Act 29 authorizes the dissemination of Petitioner‘s personal information online for his lifetime. Although PSP asserts that the information subject to dissemination is already of public record, this argument was already rejected by the Supreme Court in Muniz. Id. at 1215-16. As with SORNA, subchapter I of Act 29 requires dissemination of more than the mere fact of
[s]ince the Supreme Court concluded that the Internet dissemination provision of SORNA [] has both a deterrent and retributive effect, and the Internet dissemination provision of [Act 29] is identical to the one in SORNA [], we must conclude that the Internet dissemination provision of [Act 29] has both a deterrent and retributive effect.
Moore, 222 A.3d at 24. Accordingly, consistent with Muniz, we conclude that the entire statutory scheme on the whole as applied to Petitioner promotes traditional aims of punishment and this factor weighs in favor of finding subchapter I of Act 29 to be punitive as applied to Petitioner.
5. Whether the behavior to which the sanction applies is already a crime.
Petitioner concedes that the behavior to which subchapter I of Act 29 applies is already a crime, noting that the Supreme Court in Muniz acknowledged the same with regard to SORNA. Because this factor did not carry much weight in the analysis in Muniz, PSP does not address this factor in detail. Similar to the third Mendoza-Martinez factor, the Supreme Court concluded in Muniz that “this factor carries little weight in the balance,” “recognizing where SORNA is aimed at protecting the public against recidivism, past criminal conduct is ‘a necessary beginning point.‘” 164 A.3d at 1216 (quoting Smith, 583 U.S. at 105). The Supreme Court concluded otherwise in Butler II, again on the basis that RNC requirements in subchapter H “are not applied to conduct at all, but to an
6. Whether an alternative purpose to which the sanction may rationally be connected is assignable for it.
Petitioner concedes that subchapter I of Act 29 has a “rational connection to ‘protect[ing] the safety and general welfare of the people of this Commonwealth.‘” (Petitioner‘s Br. at 17 (alteration in original) (quoting
The Supreme Court has consistently recognized the nonpunitive purpose of sexual offender registration laws in the Commonwealth. With regard to Megan‘s Law I, our Supreme Court in Gaffney explained “the legislature‘s intent in requiring offenders to register with [PSP] regarding their whereabouts was not retribution; rather the . . . intent was to provide a system of registration and notification” for the purpose of promoting public safety. 733 A.2d at 619. In Williams II, the Supreme Court stated “the legislative findings” underlying Megan‘s Law II “are consistent with grave concerns over the high rate of recidivism among convicted sex offenders.” 832 A.2d at 979 (internal quotations
There is no dispute that subchapter I of Act 29, like its predecessors, has a rational nonpunitive purpose. The General Assembly has made extensive legislative findings that:
- If the public is provided adequate notice and information about [SVPs] and offenders . . . , the community can develop constructive plans to prepare itself for the release of [SVPs] and offenders. . . .
These [SVPs] and offenders pose a high risk of engaging in further offenses even after being released from incarceration or commitments, and protection of the public from this type of offender is a paramount governmental interest. - The penal and mental health components of our justice system are largely hidden from public view, and lack of information from either may result in failure of both systems to meet this paramount concern of public safety.
- Overly restrictive confidentiality and liability laws governing the release of information about [SVPs] and offenders have reduced the willingness to release information that could be appropriately released under the public disclosure laws and have increased risks to public safety.
- Persons found to have committed a sexual offense have a reduced expectation of privacy because of the public‘s interest in public safety and in the effective operation of government.
- Release of information about [SVPs] and offenders to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
- Protect the safety and general welfare of the people of this Commonwealth by providing for registration, community notification and access to information regarding [SVPs] and offenders who are about to be released from custody and will live in or near their neighborhood.
- Require the exchange of relevant information about [SVPs] and offenders among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators and offenders to members of the general public, including information available through the publicly accessible Internet website
- . . . .
of the [PSP], as a means of assuring public protection and shall not be construed as punitive. - (4) Address the Pennsylvania Supreme Court‘s decision in . . . Muniz, . . . and the Pennsylvania Superior Court‘s decision in . . . Butler [I] . . . .
7. Whether the sanction appears excessive in relation to the alternative purpose assigned.
Although Petitioner agrees that subchapter I of Act 29 has an alternative purpose to which it may be rationally connected, Petitioner argues that it is excessive in relation to that purpose. Specifically, Petitioner argues subchapter I of Act 29 could achieve its purpose of protecting the public without annual in-person reporting requirements or public dissemination of information online. Rather, Petitioner contends that subchapter I of Act 29 could achieve its intended purpose by requiring: yearly information updates by mail, in-person reporting requirements every four years, and/or limiting registration to a county-based publicly accessible registry where the registrant lives and works. While acknowledging that subchapter I is an improvement from SORNA because it provides the opportunity to petition for exemption from registration requirements under certain
PSP disagrees, responding that subchapter I of Act 29 is not excessive compared to its purpose of promoting public safety. PSP notes that the Supreme Court in Muniz determined SORNA was excessive in relation to its purpose because it categorized a broad range of individuals as sexual offenders, including those convicted of offenses that lacked a sexual component, without allowing a mechanism for being relieved from lifetime reporting requirements. PSP argues that subchapter I of Act 29 responds to this problem by including only two triggering offenses without a sexual component; reducing the registration period for many offenses; and providing a mechanism for petition for removal from the Registry and registration requirements after 25 years. PSP asserts these distinguishing features between SORNA and Act 29 demonstrate that subchapter I of Act 29 is not excessive and this factor should weigh in favor of it being nonpunitive. Moreover, PSP contends Petitioner‘s suggestions for alternative provisions that would make subchapter I of Act 29 less excessive in comparison to
In Muniz, the Supreme Court analyzed SORNA‘s excessiveness in terms of its “entire statutory scheme,” rather than only as applied to the petitioner or a class of registrants, such as SVPs. 164 A.3d at 1218. In Muniz, our Supreme Court noted its acknowledgment in Williams II of the possibility that Megan‘s Law II could be excessive if it resulted in individuals who do not pose the type of risk contemplated by the General Assembly being classified as SVPs. The Supreme Court also emphasized the societal interest in ensuring a sex offender registration law is not “over-inclusive.” Id. (quotation omitted). Because SORNA “categorize[d] a broad range of individuals as sexual offenders subject to its broad provisions, including those convicted of offenses that do not specifically relate to a sexual act,” the Supreme Court “conclude[d] SORNA‘s requirements [were] excessive and over-inclusive in relation to the statute‘s alternative assigned purpose of protecting the public from sexual offenders.” Id.
The Supreme Court recounted this reasoning in Butler II and explained that, in contrast to SORNA, “[o]ver-inclusiveness [wa]s not at issue” in Butler II “because the RNC requirements apply only to SVPs who have been individually determined to suffer from a mental abnormality or personality disorder.” __ A.3d at __, slip op. at 29. Given this difference from Muniz, the Supreme Court reasoned that the RNC requirements for SVPs were reasonably related to serving the government‘s legitimate goal of reducing recidivism and protecting the public. Id. Further, because SVPs can now petition for removal from the Registry after 25
Although Petitioner asserts an as applied challenge to subchapter I of Act 29, because the Supreme Court in Muniz looked to the statutory scheme on the whole to determine excessiveness in relation to the rational purpose, we will begin our analysis the same way. As explained above, we recognize that subchapter I of Act 29 is different from SORNA in terms of the triggering offenses. Further, subchapter I of Act 29 has a provision for exemption from registration requirements, allowing an offender to petition for exemption after 25 years have elapsed during which the offender has not been convicted of a crime punishable by imprisonment of more than 1 year.
With regard to this factor, Petitioner again emphasizes the Internet dissemination provision as excessive in relation to the purpose of subchapter I of Act 29. We agree that the Internet dissemination provision in and of itself is excessive in relation to the purpose as applied to Petitioner. Although the General Assembly set forth its intent to protect the public by disseminating relevant information about “offenders who are about to be released from custody and will live in or near their neighborhood,”
Because the dissemination of the sex offender‘s registration information is not limited to those individuals who could benefit from the information, but rather is expanded to any person who has Internet access, the open and readily accessible website is incongruous with the targeted purpose of protecting a community or neighborhood. [Act 29] does not limit access to offender information within a certain geographical area, a community, or neighborhood. Any user of the website can obtain information about any offender regardless of the user‘s geographical proximity to the offender. Thus, if a person is not in proximity to an offender, the user‘s use of the information is beyond the legislative purpose of providing the information to protect individuals who might encounter the offender.
222 A.3d at 26. Further, by requiring dissemination of an offender‘s information other than that which directly relates to the triggering crime is beyond the scope of “necessary and relevant information” for the public and public agencies.
Petitioner committed his crimes in 1990 and, therefore, he had no notice that he would be subject to any registration requirements, let alone a variety of increasing registration requirements, for his lifetime, including dissemination of his
C. Balance of the Mendoza-Martinez Factors
On the whole, balancing the factors in accordance with the analysis used by our Supreme Court in Muniz, we must find that five of the seven weigh in favor of finding subchapter I of Act 29 to be punitive when applied to Petitioner. PSP‘s arguments to the contrary focus on the differences between SORNA and subchapter I of Act 29 that were intended to address the Supreme Court‘s decision in Muniz. However, these arguments overlook the fact that the requirements of SORNA or any prior registration scheme did not exist at the time of Petitioner‘s offense. While some form of retroactive registration requirements may be constitutional, see Smith, 538 U.S. at 105, applying the analysis in Muniz, we must find the cumulative effect of the registration requirements of subchapter I of Act 29 on Petitioner goes beyond imposing mere registration and is punishment. Petitioner, who committed the crimes giving rise to his present obligation to register in 1990, could not “have fair warning” of the applicable law that now mandates his registration and the terms thereof. Peugh, 569 U.S. at 544. His right to relief on these ex post facto claims is not premised in a “right to less punishment, but the lack of fair notice and governmental restraint” that occurred when the General Assembly “increase[d] punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30. Accordingly, we determine that the Mendoza-Martinez factors weigh in favor of finding subchapter
V. Conclusion
We recognize the General Assembly made changes in Act 29 in an effort to correct the deficiencies the Supreme Court had found in Muniz. However, when we apply the Supreme Court‘s analyses in Muniz and Butler II, these changes do not sufficiently alter the balance of the Mendoza-Martinez factors as applied to Petitioner. These factors weigh in favor of finding subchapter I of Act 29 to be punitive as applied to Petitioner, who committed his offense before there was any registration or notification requirement, such that it outweighs the legislative intent to be nonpunitive.
In addition to declaring subchapter I of Act 29 unconstitutional as applied to him, Petitioner requests the Court “compel PSP to permanently remove Petitioner from the . . . [R]egistry.” (Petition, Wherefore Clause (emphasis added).) However, this Court decides only the issue before us, which is whether subchapter I of Act 29 violates the Ex Post Facto clause as applied to Petitioner, and thus
RENÉE COHN JUBELIRER, Judge
T.S., Petitioner v. Pennsylvania State Police, Respondent
No. 129 M.D. 2019
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
May 11, 2020
NOW, May 11, 2020, T.S.‘s (Petitioner) Application for Summary Relief (Application) is hereby GRANTED in part. Judgment is entered in favor of Petitioner declaring the application of subchapter I of the Act of February 21, 2018, P.L. 27,
RENÉE COHN JUBELIRER, Judge
Notes
(1) convicted of a sexually violent offense committed on or after April 22, 1996, but before December 20, 2012, whose period of registration with the [PSP], as described in section 9799.55 (relating to registration), has not expired; or
(Footnote continued on next page…)
(continued…)(2) required to register with the [PSP] under a former sexual offender registration law of this Commonwealth on or after April 22, 1996, but before December 20, 2012, whose period of registration has not expired.
Section 9799.52 of Act 29,(a) Offense defined.--An individual who is subject to registration under
(1) register with [PSP] as required under
(2) verify the individual’s residence or be photographed as required under
(3) provide accurate information when registering under
(Footnote continued on next page…)
(continued…) Accordingly, as we did in Taylor, we will treat the Petition as a request for declaratory and injunctive relief.