A Major Constitutional Decision from the Pennsylvania Supreme Court

In 2011 the General Assembly enacted, consistent with federal mandate, Pennsylvania’s latest version of Megan’s Law.  Entitled SORNA or the Sex Offender Registration and Notification Act, the law became effective on December 12, 2012.

SORNA, 42 Pa.C.S. §§ 9799.10 to 9799.41, classifies offenders and their offenses into three tiers, 42 Pa.C.S. §9799.14. Those convicted of Tier I offenses are subject to registration for a period of 15 years and are required to verify their registration information and be photographed, in person at an approved registration site, annually, 42 Pa.C.S. § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are subject to registration for a period of 25 years and are required to verify their registration information and be photographed, in person at an approved registration site, semi-annually, § 9799.15(a)(2), (e)(2).  This registration scheme greatly extended the registration responsibilities for defendants whose criminal acts occurred prior to December 2012.

I have written several blogs on this issue: SORNA’s retroactive registration requirement for those previously convicted of crimes enumerated within the law purview.  The law specifically states that any individual under supervision (probation, parole, or prison – but not registration supervision) on December 12, 2012 was subject to reclassification of their registration scheme.  The reclassification effectively altered every supervised defendant’s SORNA’s registration requirements from 10 years to 15, 25 or life and changed the annual to quarterly registrations.

My blogs focused on the Pennsylvania State Police’s effort to reclassify offenders who were not under supervision, but were still registering consistent with their guilty plea or sentencing scheme.  In these cases the defendants served their sentence, had complied with their guilty plea agreement, but the State Police sought to reclassify and extent their registration requirements.  The Supreme and Superior court decisions in these cases (Nase, Haisworth and Martinez) dealt with these cases, declaring the State Police’s unilateral reclassification of non-supervised defendant a breach of the guilty plea agreement.

Various state court judges not willing to terminate a SORNA registration requirement found every way possible to deny these defendants post-conviction non-PCRA relief.

On July 19, 2017 the Pennsylvania Supreme Court issued the decision in Commonwealth v. Muniz, 2017 Pa Lexis 1682.  The facts are as follows: On February 7, 2007, after a bench trial in Cumberland County, appellant was convicted of two counts of indecent assault arising out of an incident where he touched the breasts of his girlfriend’s twelve-year old daughter.  Sentencing was scheduled for May 8, 2007, at which time appellant would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten years pursuant to then-effective Megan’s Law III. See 42 Pa.C.S. §9795.1 (expired).  However, appellant failed to appear for his sentencing hearing and absconded until he was apprehended on unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his absence, the General Assembly [*3] had replaced Megan’s Law III with SORNA. Under SORNA, persons convicted of indecent assault of a person less than thirteen years of age, 18 Pa.C.S. §3126(a)(7), are categorized as Tier III offenders and are required to register as sex offenders for the remainder of their lives.

Appellant Muniz was sentenced to four to fourteen months’ imprisonment and ordered to comply with lifetime registration requirements under SORNA. Appellant filed a post-sentence motion seeking application of the ten-year registration period under Megan’s Law III, which was the law in place at the time of his offense and conviction, instead of lifetime registration under SORNA. The trial court denied Muniz’ motion and he appealed to the Superior Court, claiming retroactive application of SORNA violates the ex post facto clauses of the United States and Pennsylvania Constitutions, and the reputation clause of the Pennsylvania Constitution.

Importantly, the court found that Muniz’ seven year absence from the Commonwealth is of no moment. SORNA applies retroactively to any individual serving a sentence for a sexual offense or any individual who had not completed their registration period under prior registration statutes as of SORNA’s effective date of December 20, 2012. 42 Pa.C.S. §9799.13. Had Muniz been sentenced in 2007 and subject to registration under Megan’s Law III, he would not have completed his ten-year registration period when SORNA became effective and thus his ten-year registration period would have been converted to a term of lifetime registration.  This foot note number 3 applies to every case for which pre-December 2012 defendants may now seek to contest their post-sentencing reclassification!

Appellant filed a petition for allowance of appeal raising two questions regarding SORNA’s “sexual offenses and tier system” provisions set forth at 42 Pa.C.S. §9799.14:
1) Does applying [42 Pa.C.S. § 9799.14]  retroactively violate the Federal Constitution?
2) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Pennsylvania
Constitution?

The Pennsylvania Supreme Court said YES to both questions:   The retroactive application of SORNA’s new harsh, punitive shaming registration scheme to defendants whose sex related crimes were committed prior to December 12, 2012 is unconstitutional.   The Court rules that SORNA increases punishment for conduct which occurred before its enactment and such retroactive application violates both federal and state constitutional bans on ex post facto laws; in doing so, the court finds that the Pennsylvania Constitution provides greater protection than the United States Constitution, that SORNA is therefore unconstitutional as applied to someone like Muniz whose conviction predated its enactment. The Pennsylvania State Police can not now lawfully retroactive apply SORNA and reclassify defendants (under supervision or not) for criminal conduct occurring prior to December 2012.  This is huge.

Call me to discuss your case.

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Northampton County’s 1861 Court Room!!

Finding the diamond in the rough. That describes my recent drive to the Northampton County Courthouse. As my law practice takes me from the Philadelphia’s suburban counties to northeastern Pennsylvania, I routinely travel on the Pennsylvania Turnpike and its Northeast extension.
The drive this July week was rough. The weather forecast proved accurate; rain and fog through the Lehigh Valley. It was raining so hard, I missed my exit off Rt 476E at Rt 22 E. I drove an additional 20 miles each direction, turning around in Jim Thorpe. (I love the Carbon County Courthouse – see my other blogs – but I was not going there today.)
 I was uncharacteristically late, arriving at 9:25 am for a 9:00 am hearing.  I was otherwise safe.  The judge was extremely gracious and polite. The case was handled quickly.  Opposing counsel – a local assistant district attorney – offered a tour of the courthouse as I expressed my appreciation for our hearing taking place in the old courthouse, courtroom 3, as compared to the new 2004 building.
The county website states, “The original court house was built in  1764. Nearly a century later and after the courthouse had experienced a number of historical events, which included being used as a barracks by Revolutionary troops, a group of citizens petitioned for a new County Courthouse at a different location. On August 23, 1860, the County Commissioners decided to accept land offered at a price of $1.00 that was located several blocks west of the original facility.   A new brick structure was later built on a steep hill at a cost of $53,000. The first term of court was held in the new facility on June 18, 1861.  Since then, two additional wings were constructed to accommodate the growth of Northampton County and satisfy the judicial needs of the expanded population.  The second part of the courthouse was built in 1978 and the third in 2004. “
I was interested in the 1861 building and court room 1.  Finished at the out set of the Civil War.   Wow!! A majestic legal theater, refurbished in 1978 to match the import to the community when the courthouse was built. Original woodwork, plaster, and paint are renewed. County Commissioners rightfully chose to not clutter the court room with of a phalanx of computer cables, microphones, and other modern day accoutrements that clutter some other county courtrooms in which I practice.
The pictures below reveal the courtroom’s grand entrance, judicial bench, and the jury box of the times. The remarkable woodwork and attention to detail immediately reveals itself. The artisans of Pennsylvania’s counties knew their work would be on display at every important and public event of the times. The honor and respect they earned working for their local government on the most important building in the county.

Call a Lawyer, Not the Licensing Board, When Contacted by Board Counsel or Investigators

My administrative law practice takes me before many of Pennsylvania’s licensing boards and in hearings that address a variety of disciplinary actions.  It is during Pennsylvania’s professional licensing boards’ bimonthly meetings that disciplinary matters are commenced, reviewed, or finalized.  This is why after a given board’s monthly meeting I typically receive a wave of calls from new clients, mail that initiates disciplinary action in pending cases, or final decisions in cases.

Potential disciplinary actions a board may commence include: 1) reciprocal disciplinary actions; 2) emergency petitions to immediately take a license; 3) objections to license applications; 4)  approval of different consent agreements; 5) approval or rejection of hearing officer’s proposed adjudications; and 6) reviewing cases sent back from the Commonwealth Court for issuance of revised disciplinary action. Also, several boards have subcommittees that approve probable cause petitions compelling licensees to undergo mental and physical of evaluations.

After bimonthly board meetings I receive calls from both current or potential clients inquiring “What I should do? Who should I talk to?  or What information should be disclosed?   Many callers disclose prior conversations with board counsel, investigators, PHMP assessors, or other board representatives. I cringe when I hear this.

 

Board representatives, prosecutors, administrators, and/or medical professionals do not represent the licensee. These people are tasked with enforcing board regulations. They are tasked with complying with each and every administrative procedural requirement (of which the licensee has no idea). They are tasked with securing information against the licensee who is potentially, or actually, subject to disciplinary action. These people do not look out for the best interest of the licensee.  DO NOT TALK TO THESE PEOPLE ABOUT YOUR CASE, FACTS, OR MEDICAL CONDITIONS.  THEY WRITE EVERYTHING DOWN.

 

Board administrators and PHMP office staff are not sophisticated licensed professionals. They are unfamiliar with the actual medical issues, legal issues, or licensing process. They merely perform administrative functions. They lack any authority to adjust, regulate, or modify any correspondence.  Relying upon statements from these administrative level workers is frustrating and leads to incorrect practices.

 

I have heard on many occasions board clerical staff and social workers advise licensees and/or license applicants to cooperate – give statements or do other inaccurate suggestions – that are not in the licensees best interest.  Administrative workers routinely do not recommend hiring counsel to secure a better, more complete, or correct legal advice on how to respond to the legal correspondence  just received in the mail.

 

That is why I say do not contact these boards, rely upon what any administrator says, or even hope that they give you correct advice. Call an attorney and secure proper legal advice.  The best analogy I can give is: Do you call a doctor’s office and follow medical advice dispensed by the phone receptionist or want to talk to RN, LPN, or M.D.?  The obvious answer is no.  So why would you do that when calling a licensing board about your professional license you utilize every day?

 

Please call me to discuss the recent board ordered disciplinary correspondence you just received!

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