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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New Registration Requirement Rules

I write  frequently about the Pennsylvania General Assembly routinely adding criminal and civil consequences to convicted sex offenders ‘s sentences after judicial pronouncement of the sentence. Modifying Megan’s Law registration requirements for convicted sex offenders is the most prominent of these tough-on-crime fighting, constituent-appeasing measures. Megan’s Law V is called the Sex Offender Registration and Notification Act. (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41.
 
The Pennsylvania General Assembly has modified and/or extended Pennsylvania’s Megan’s Law so many times that our Commonwealth now has five different Megan’s Law registration statutes. Parts of Megan’s Law, II-IV were declared unconstitutional. Megan’s Law V’s December 20, 2012 reclassification and extension of registration scheme for sex offenders – whether under supervision or not as of December 20, 2012- is now being attacked.  Defendants who complied with all terms and conditions of their criminal sentences and originally imposed registration requirements object to their reclassification. Successful legal arguments have focused on this provision.

On September 28, 2016 the Pennsylvania Supreme Court finally decided several consolidated cases addressing this issue.  In Commonwealth v. Martinez,  2016 Pa. LEXIS 2183 (Sep. 28, 2016), the Court resolved the legality of the 2012 reclassification scheme against otherwise compliant registrants. Three combined cases present the question of whether the state police can extend or re-enroll in the sexual registry defendants who satisfied all terms and conditions of an original guilty plea agreement and were not under probation or parole supervision as of December 20, 2012. The individuals may still have had to register under Megan’s law I-V.  These cases do not apply to open plea agreements or sentences handed down after a jury or bench trial.

Factually, after December 20, 2012 the state police sent letters out to Megan’s Law registrants compelling re-enrollment or extension of their registration requirements.  Registration requirements were extended from 10 to 25 years and 25 years to life depending on the criminal conviction. If registration had been completed but the convicted offense registration was changed to 25 years instead of 10 years, re-enrollment was demanded.  Martinez and other individuals around the Commonwealth contested reclassification because they complied with all aspects of their criminal plea agreement, may have concluded probation/parole supervision before December 2012, and may have even completed their registration responsibilities.

Some Cases were filed against the state police as injunctions, writs of mandamus, or a petitions to enforce guilty plea agreements. Many of these cases failed for any number of reasons. Case rulings allow reclassification against defendants who violated any term or condition of their guilty plea agreement.  Another basis for allowing reclassification is being charged with violating the registration requirements of their original sentence.  Even being charged for a reporting violation after 2012 became a reason for further reclassification.

The Martinez defendants (as well as several of my clients) satisfied their terms of incarceration with no violations or write ups, honored all probation or parole obligations, and were fully compliant with (or completed) all registration requirements. The state police still contacted them to either re-initiate or extend registration under Megan’s Law V.
 
I, like Martinez’ counsel, filed motions to enforce their guilty plea in various Common Pleas courts around the state.  I sought, like Martinez, to enforce the terms of their pre-2012 plea agreements.  Martinez focuses exclusively on the sanctity pleas agreement as a contract into which the government entered with these defendant.  Focusing defendants’ compliance with their side of the bargain, Martinez, and one other case, Commonwealth v. Hainesworth, 2013 PA Super 318, 82 A.3d 444 (Pa. Super. 2013),  present similar situated defendants.  In those cases the Superior Court of Pennsylvania held that the Contract Clauses of the Pennsylvania, Pa. Const. art. I, § 17, and United States Constitutions, U.S. Const. art. I, § 10, cl. 1, prohibit the Pennsylvania Legislature from enacting laws that retroactively impair contract rights.
The Martinez case question was whether Hainesworth’s ruling, baring reclassification for defendants who complete the terms of the guilty plea contract before December 20, 2012, is proper.  The court said yes and affirms Hainesworth.  The court states “convicted criminals must fulfill the promises they make in connection with plea agreements. See Commonwealth v. Wallace, 582 Pa. 234, 870 A.2d 838, 843 n.6 (Pa. 2005) (“The defendant, on the other hand, accepts this benefit with the implicit promise that he will abide by the terms of the agreement and behave in accordance with the legal punishment imposed by the court.”).  For these defendants, the Court rules, the legislature must  honor the guilty plea agreement/contract its District Attorneys entered and the court approved. 
The issue now is does the guilty plea colloquy adequately set forth with particularity the registration requirements that are part of the guilty plea agreement.  Martinez may not apply to a cases in which the Megan’s Law terms are not stated in the record or were not negotiated.  If there is an open plea, these cases may not apply.  In the late 1990 and early 2000’s in many cases the Commonwealth simply did not negotiate terms of Megan’s Law in the guilty plea agreement or state it was negotiated on the record. 
Some experienced counsel tried to have the record reflect the plea negotiations to lower criminal charges were engaged to reduce the registration time (from a Tier II – 25 year offense to a Tier I – 10 year offense).  In those cases registration terms were reduced in guilty plea agreement by pleas to lower criminal charges.  Martinez find such stipulations in the three consolidated cases.  In Philadelphia and the local counties,  registration notification provisions were always placed in the plea agreement, with a separate signed Megan’s Law Registration form, and in colloquy at a sentencing. 
In the less sophisticated courts sometimes registration terms were not discussed in either the plea or sentencing hearings.  Importantly, counsel must secure both of these transcripts to determine in Martinez applies to the case.  Also, Martinez only applies to guilty pleas (not open pleas) for which a defendant was not under any jail, parole, or probation supervision as of December 2012.   Call me to discuss your case.
 
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