Opinion
No. 558 M.D. 2013
10-14-2014
Phillip Martin Mitchell, Petitioner v. Pennsylvania Board of Probation and Parole Secretary, Kimberly A. Barkley, Lt. Todd Harman, Commander of the Pennsylvania State Police Megan's Law Section and Tyran E. Cobb, Records Supervisor and Fingerprint Classification Manager of the Fingerprint Identification Section of the Pennsylvania State Police Megan's Law Section, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Before this Court, in our original jurisdiction, are the Preliminary Objections (POs) of Kimberly A. Barkley, Secretary of the Pennsylvania Board of Probation and Parole (Board), Lieutenant Todd Harman, Commander of the Pennsylvania State Police (PSP) Megan's Law Section, and Tyran E. Cobb, Records Supervisor and Fingerprint Classification Manager of the Fingerprint Identification Section of the PSP Megan's Law Section (collectively, Respondents) to the Amended Complaint (Petition) of Phillip Martin Mitchell. In his Petition, Mitchell alleges that he should not be required to continue to register as a sexual offender under the Act variously known as Megan's Law IV, the Sexual Offender Registration and Notification Act (SORNA), or the Adam Walsh Act because the disposition of the Florida offense that originally required his registration pursuant to Florida's version of Megan's Law does not qualify as a "conviction" that triggers the registration requirements of Megan's Law IV and because Megan's Law IV is an ex post facto law if applied to Mitchell under the circumstances of his case. In their POs Respondents object, stating that Mitchell's Petition fails to state a cause of action for which relief may be granted because he is required to register under Megan's Law IV and because precedent establishes that the registration requirements to which Mitchell objects do not render Megan's Law IV an ex post facto law.
Mitchell served his initial complaint only on Lieutenant Harman, although he named as additional respondents Steven R. Glunt, then Secretary of the Board, and other individuals. Lieutenant Harman and Secretary Glunt filed preliminary objections based on lack of service and demurrer. In response, Mitchell filed the instant Petition naming the current Respondents and Respondents filed amended preliminary objections, which no longer challenged service.
Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10 - 9799.41. The Supreme Court has described the history of Pennsylvania's Megan's Law as follows:
The Act of October 24, 1995, P.L. 1079 (Spec.[ ]Sess. No. 1), now known as Megan's Law I, was to a significant extent ruled unconstitutional in Commonwealth v. Donald Williams, . . . 733 A.2d 593 ([Pa.] 1999). The General Assembly subsequently enacted Megan's Law II, whose constitutionality this Court substantially upheld in Commonwealth v. Gomer Williams, . . . 832 A.2d 962 ([Pa.] 2003). In the Act of November 24, 2004, P.L. 1243 (known as Megan's Law III), the General Assembly addressed several matters, including that portion of Megan's Law II held to be unconstitutional in Gomer Williams, concerning the penalty provisions that attached to sexually violent predators who failed to comply with registration and other requirements of the Act. In the Act of November 29, 2006, P.L. 1567 (effective January 1, 2007), the General Assembly amended the legislation once again . . . .
The following facts are drawn from the allegations of Mitchell's Petition. In 2002, Mitchell pleaded guilty to one count of Unlawful Sexual Activity with a Certain Minor in violation of Section 794.05 of the Florida Criminal Code, Fla. Stat. § 794.05 (2013). (Petition ¶¶ 10, 27.) Adjudication was withheld on the charge and Mitchell was sentenced to 5 years' probation. (Petition ¶ 10.) This disposition required Mitchell to register under Florida's version of Megan's Law for 10 years. (Petition ¶ 18.) In 2002, Mitchell moved back to his native State of Pennsylvania, where he registered under Pennsylvania's Megan's Law with the PSP. (Petition ¶ 19.) Mitchell completed the terms of his probation in 2007. (Petition ¶ 28.) Mitchell's 10-year reporting requirement was scheduled to end in May of 2013. (Petition ¶ 19.) Megan's Law IV was enacted on December 20, 2011 and went into effect on December 20, 2012. (Petition ¶ 6.) The PSP sent Mitchell a letter dated December 3, 2012 informing him that, under Megan's Law IV, he had been reclassified as a Tier III offender and was, therefore, subject to lifetime registration. (Petition ¶ 20.) This letter did not explain the basis for Mitchell's classification as a Tier III offender. (Petition ¶¶ 30, 40.)
"Preliminary objections in the nature of a demurrer are deemed to admit all well-pleaded material facts and any inferences reasonably deduced therefrom, but not the complaint's legal conclusions and averments." Danysh v. Department of Corrections, 845 A.2d 260, 262 (Pa. Cmwlth. 2004).
Mitchell filed his Petition, alleging that: (1) no basis has been provided for his classification as a Tier III offender; (2) because the disposition of his Florida charges did not result in a conviction, he was not required to register under Pennsylvania's Megan's Law IV after the expiry of the 10-year registration period that attended his Florida sentence; and (3) application of Megan's Law IV under the circumstances of this case, increasing his registration period from 10 years to life, has a punitive effect on Mitchell and, therefore, constitutes an ex post facto law in violation of the United States Constitution. Mitchell seeks relief in the form of mandamus, declaratory judgment, and preliminary and permanent injunctions. Respondents filed POs in the nature of demurrer arguing that: (1) because Mitchell had not yet finished his 10-year registration period when Megan's Law IV went into effect he was subject to the provisions of Megan's Law IV and, thus, was required to register for life; and (2) courts have repeatedly held previous versions of Pennsylvania's Megan's Law to be a non-punitive regulatory scheme. We now address the merits of Respondents' POs.
Respondents' POs aver that Mitchell has failed to state a cognizable claim. When considering a preliminary objection in the nature of a demurrer:
our review is limited to the pleadings. We are required to accept as true the well-pled averments set forth in the . . . complaint, and all inferences reasonably deducible therefrom. Moreover, the court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and, where any doubt exists as to whether the preliminary objections should be sustained, the doubt must be resolved in favor of overruling the preliminary objections.Pennsylvania State Lodge, Fraternal Order of Police v. Department of Conservation and Natural Resources, 909 A.2d 413, 415-16 (Pa. Cmwlth. 2006) (citations omitted) (emphasis added).
We first address the issue of whether Mitchell has stated a cognizable claim that there is no basis upon which he may be required to register as a Tier III offender and, therefore, no basis to require him to register after the expiration of his original 10-year registration period. (Petition ¶¶ 28, 30, 40-41.) In their POs, Respondents argue that Mitchell is required to register under Megan's Law IV pursuant to Section 9799.13(3)(i) of Megan's Law IV, 42 Pa. C.S. § 9799.13(3)(i), because he was required to register under the previous version of Megan's Law and because he has been reclassified as a Tier III offender, which is subject to lifetime registration pursuant to Section 9799.15(a)(3) of Megan's Law IV, 42 Pa. C.S. § 9799.15(a)(3). (POs ¶¶ 13-15.) Section 9799.13(3)(i) of Megan's Law IV requires an individual to register who "was required to register with the [PSP] pursuant to this subchapter prior to December 20, 2012, and who had not fulfilled the individual's period of registration as of December 20, 2012." 42 Pa. C.S. § 9799.13(3)(i) (emphasis added). Thus, in order to determine whether Mitchell is required to register pursuant to Section 9799.13(3)(i), this Court must examine whether Mitchell was required to register pursuant to previous versions of Megan's Law.
Under Megan's Law III, an individual was required to register if he was convicted of or sentenced for a sexually violent offense in another jurisdiction:
[a]n individual who has a residence, is employed or is a student in this Commonwealth and who has been convicted of or sentenced by a court . . . for a sexually violent offense or a similar offense under the laws of . . . another state . . . or who was required to register under a sexual offender statute in the jurisdiction where convicted [or] sentenced or court martialed, shall register at an approved registration site within 48 hours of the individual's arrival in this Commonwealth. . . .Section 9795.2(b)(4) of Megan's Law III, 42 Pa. C.S. § 9795.2(b)(4) (expired December 20, 2012). Mitchell was sentenced in Florida for Sexual Activity with Certain Minors, pursuant to Section 794.05(1) of the Florida Criminal Code, Fla. Stat. § 794.05(1) (2013). This statute provides that "[a] person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree." Id. Respondents argue that this offense is similar to Aggravated Indecent Assault pursuant to Section 3125(a)(8) of the Crimes Code, 18 Pa. C.S. § 3125(a)(8). Section 3125 provides that an individual commits Aggravated Indecent Assault when the individual:
engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
Id. There is a colorable argument that these offenses are not similar. Section 794.05 makes it illegal for a person older than 24 to engage in sexual activity with a 16- or 17-year-old while, under Section 3125(a)(8), the complainant must be less than 16-years-old. Thus, we cannot say at this stage that Mitchell does not have a cognizable claim that he was not required to register under Megan's Law IV pursuant to Section 9799.13(3)(i) of Megan's Law IV because he was not previously required to register as provided for in Section 9795.2(b)(4) of Megan's Law III.. . .
(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.
There does not appear to be any dispute at this stage, however, that Mitchell was required to register as a sexual offender for a period of 10 years as part of his Florida sentence.
Respondents also argue that Mitchell is required to register as a Tier III offender pursuant to Section 9799.14(d)(13) of Megan's Law IV, 42 Pa. C.S. § 9799.14(d)(13). Section 9799.14(d) provides that "[t]he following offenses shall be classified as Tier III sexual offenses: . . . . (7) 18 Pa. C.S. § 3125 (relating to aggravated indecent assault). . . . (13) [a] . . . similar offense under the laws of another jurisdiction." 42 Pa. C.S. § 9799.14(d)(7), (13). However, as discussed above, there is a colorable argument that Aggravated Indecent Assault as defined by Section 3125 of the Crimes Codes is not similar to the offense for which Mitchell was sentenced in Florida. Therefore, at this stage, we cannot say with any certainty that Mitchell has not stated a cognizable claim for relief on this issue.
Next, we address the question of whether Mitchell has stated a cognizable claim that he is not required to register under Megan's Law IV because the disposition of his Florida charges resulted in a withheld adjudication rather than a conviction. (Petition ¶¶ 17, 42.) Section 9799.15(a)(3) of Megan's Law IV provides that "[a]n individual convicted of a Tier III sexual offense shall register for the life of the individual." 42 Pa. C.S. § 9799.15(a)(3) (emphasis added). Mitchell's charges in Florida did not result in a "conviction" as that term is defined under Pennsylvania's Megan's Law IV, but instead resulted in a withheld adjudication pursuant to Section 921.187(1)(c) of the Florida Criminal Punishment Code, Fla. Stat. § 921.187(1)(c) (2014), which provides that if an offender is not sentenced to prison, the court may "[p]lace the offender on probation with or without an adjudication of guilt." Id. Megan's Law IV does not explicitly include such a disposition in its definition of "convicted," which defines that term as including "conviction by entry of plea of guilty or nolo contendere, conviction after trial or court martial and a finding of not guilty due to insanity or of guilty but mentally ill." Section 9799.12 of Megan's Law IV, 42 Pa. C.S. § 9799.12. This definition of the term "convicted" is somewhat complicated by the fact that it, itself, contains the term "conviction." Generally, in Pennsylvania, the term "conviction" "means 'the ascertainment of the guilt of the accused and judgment thereon by the court.'" Commonwealth v. Kimmel, 565 A.2d 426, 428 (Pa. 1989) (quoting Commonwealth v. Minnich, 95 A. 565, 566-67 (Pa. 1915)) (emphasis added). Thus, under the facts as pleaded, although Mitchell entered a plea of guilty in response to the Florida charges, (Petition ¶ 27), and was sentenced on the basis of that plea, it does not appear that judgment was entered on the basis of that plea. Whether entry of a sentence as a result of a withheld adjudication under Florida law qualifies as a conviction under Megan's Law IV is a question of first impression. At this juncture, it would be premature to say with certainty that Mitchell may not prevail on this claim.
We recognize, as Respondents point out, that The Florida Sexual Predators Act defines the term "conviction" as "a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld," and that this definition would encompass Mitchell's sentence on a withheld adjudication. Fla. Stat. § 775.21(2)(e) (2014). However, Megan's Law IV requires that its own definitions be used, not the definitions of other states' sexual offender laws, and provides that "[t]he following words and phrases when used in this subchapter shall have the meanings given to them in this section unless the context clearly indicates otherwise." 42 Pa. C.S. § 9799.12 (emphasis added). --------
Next, we address whether Mitchell has stated a cognizable claim that application of Megan's Law IV under the circumstances of his case would constitute an ex post facto punishment. Respondents aver that Mitchell has failed to state a cognizable claim because the Pennsylvania Supreme Court, in cases such as Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999), and Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003), has considered and rejected ex post facto challenges to previous versions of Pennsylvania's Megan's Law. In his Petition, Mitchell alleged that to increase his registration period from 10 years to life, particularly where he was never convicted, is punitive. Neither this Court nor the Pennsylvania Supreme Court has considered an ex post facto challenge to Megan's Law IV by an individual sentenced without adjudication under the laws of another State. Moreover, this Court recently, in Coppolino v. Commissioner of the Pennsylvania State Police, ___ A.3d ___, (Pa. Cmwlth., No. 214 M.D. 2013, filed October 14, 2014) (en banc), held that part of Megan's Law IV, requiring registrants to update changes to certain registration information in person within three days, was punitive in effect and, therefore, ex post facto as to individuals convicted under previous versions of Pennsylvania's Megan's Law. Given that this question, again, is one of first impression, and this Court's holding in Coppolino, we once more cannot say with any certainty that Mitchell has not raised a cognizable claim that Megan's Law IV operates as an ex post facto law with regard to an individual in his circumstances.
For these reasons, we overrule Respondents' POs.
/s/ _________
RENÉE COHN JUBELIRER, Judge Judge McCullough concurs in the result only. ORDER
NOW, October 14, 2014, Respondents' Preliminary Objections to the Amended Complaint in the above-captioned matter are hereby OVERRULED. Respondents shall file their Answer to Phillip Martin Mitchell's Amended Complaint within thirty (30) days of the date of this Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Commonwealth v. Leidig, 956 A.2d 399, 400 n.1 (Pa. 2008). In this opinion, we shall refer to the 2011-12 amendments to Megan's Law as Megan's Law IV. As this Court noted in Coppolino v. Commissioner of the Pennsylvania State Police, ___ A.3d ___, ___ (Pa. Cmwlth., No. 214 M.D. 2013, filed October 14, 2014) (en banc):
In Commonwealth v. Neiman, 84 A.3d 603, 615-16 (Pa. 2013), the Pennsylvania Supreme Court struck various provisions of Megan's Law III on the grounds that the Act of November 24, 2004, P.L. 1243 (Act 152), violated the single subject rule of Article III, Section 3 of the Pennsylvania Constitution. The majority of these provisions had already expired, per Section 9799.41 of Megan's Law IV, 42 Pa. C.S. § 9799.41, as well as other amendments to Megan's Law. Neiman, 84 A.3d at 606-07 nn.8-18.Id., slip op. at 2 n.2.