H. Pacheco v. R. Evanchick ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Henry Pacheco, :
Petitioner :
:
v. :
:
Robert Evanchick, : No. 178 M.D. 2019
Respondent : Submitted: May 22, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: September 11, 2020
Before the Court is Petitioner Henry Pacheco’s (Petitioner) Motion for
Summary [Relief] (Motion) in relation to his Petition for Review seeking relief from
his lifetime sex offender registration requirement in Pennsylvania under the Act of
February 21, 2018, P.L. 27 (Act 10), 42 Pa.C.S. §§ 9799.10-9799.75, as amended
by the Act of June 12, 2018, P.L. 140 (Act 29) (collectively, Act 10 or SORNA II).
For the reasons stated herein, we deny the Motion.
By way of brief statutory background, beginning in 1995,
Pennsylvania’s General Assembly has enacted a series of statutes and amendments
requiring sex offenders living within the Commonwealth to register with the
Pennsylvania State Police (PSP) for varying periods of time based on their
convictions for certain sex offenses. The General Assembly enacted the first of these
statutes in 1995, commonly known as Megan’s Law I, former 42 Pa.C.S. §§ 9791-
9799.6, followed five years later, in 2000, by what is commonly known as Megan’s
Law II, former 42 Pa.C.S. §§ 9791-9799.7. In 2004, the General Assembly enacted
what is commonly known as Megan’s Law III, former 42 Pa.C.S. §§ 9791-9799.9,
which remained in effect until the enactment of the Sexual Offender Registration
and Notification Act (SORNA I), 42 Pa.C.S. §§ 9799.10-9799.41, in 2012. On July
19, 2017, the Pennsylvania Supreme Court handed down the decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which held that SORNA I
violated the Ex Post Facto Clauses of the United States and Pennsylvania
Constitutions by increasing registration obligations on certain sex offender
registrants. Thereafter, in 2018, to clarify that sex offender registration provisions
were not ex post facto punishment, the General Assembly enacted SORNA II.
In 2013, Petitioner was convicted of rape of a child less than 13 years
of age,1 a felony of the first degree, and was sentenced to 10 to 20 years of
incarceration.2 SORNA I, the sex offender registration scheme in effect at the time,
classified rape of a child as a Tier III offense,3 requiring a convicted individual to
register as a sex offender for life.4 Thus, Petitioner became a lifetime sex offender
registrant in 2013 under SORNA I, and he remained a lifetime registrant when
SORNA II went into effect.5 The sentencing court did not determine Petitioner to
be a sexually violent predator (SVP).
1
18 Pa.C.S. § 3121(c).
2
Petitioner remains incarcerated on this rape of a child conviction.
3
See former 42 Pa.C.S. § 9799.14(d)(2) (effective Dec. 20, 2012, through June 12, 2018).
4
See former 42 Pa.C.S. § 9799.15(a)(3) (effective Dec. 20, 2012, through June 12, 2018).
5
Because Petitioner committed his offense in 2013, he is subject to Subchapter H of
SORNA II. See 42 Pa.C.S. § 9799.13.
2
On March 22, 2019, Petitioner filed a Petition for Review with this
Court, and he filed the instant Motion on September 26, 2019.6 In his brief,
Petitioner alleges that SORNA II is an ex post facto law that is unconstitutional and
punitive as applied to him, violates the separation of powers doctrine, and violates
the Equal Protection Clauses of the United States and Pennsylvania Constitutions.7
See Petitioner’s Brief at 4-8. We disagree.
In Bill v. Noonan (Pa. Cmwlth., No. 437 M.D. 2017, filed May 16,
2019),8 this Court overruled an as-applied constitutional challenge to SORNA I in
the analogous situation of an individual required to register for life by virtue of his
status as an SVP. In Bill, this Court noted that the rationale in Muniz is inapplicable
in situations where SORNA I did not result in an increase of sex offender registration
obligations. See id., slip op. at 11. Bill involved an individual who was continuously
subject to lifetime registration requirements, since his conviction, by virtue of having
been classified as an SVP. Id. This Court noted that because SORNA I did not
increase the registration obligations of SVPs – they remained lifetime registrants
from Megan’s Law III to SORNA I – SORNA I was not an ex post facto law as
applied. Id. We explained:
6
An application for summary relief may be granted if a party’s right to judgment is clear
and no material issues of fact are in dispute. Pa.R.A.P. 1532(b); Jubelirer v. Rendell, 953 A.2d
514 (Pa. 2008); Eleven Eleven Pa., LLC v. State Bd. of Cosmetology, 169 A.3d 141 (Pa. Cmwlth.
2017). When ruling on an application for summary relief, this Court “view[s] the evidence of
record in the light most favorable to the non-moving party and enter[s] judgment only if there is
no genuine issue as to any material facts and the right to judgment is clear as a matter of law.”
Eleven Eleven, 169 A.3d at 145 (internal quotation marks omitted).
7
See U.S. Const. amend. XIV, § 1; Pa. Const. art. VIII, § 1.
8
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be
cited for their persuasive value.
3
This Court has repeatedly determined that SORNA I is not
an unconstitutional ex post facto law as applied, to the
extent it merely continues the same registration
requirement already in place under the law.
Id. (emphasis added; internal citation omitted). The Court continued and expanded
its determination, stating that neither SORNA I nor SORNA II constitutes an
impermissible ex post facto law as applied where an individual remains subject to
the same registration requirements. Id., slip op. at 11-12.
As with the SVP-classified petitioner in Bill, SORNA II did not
increase Petitioner’s sex offender registration requirements in the instant matter.
Petitioner was subject to lifetime sex offender registration under SORNA I upon his
conviction for rape of a child less than 13 years of age. See former 42 Pa.C.S. §§
9799.14(d)(2) & 9799.15(a)(3). Therefore, SORNA II did not increase Petitioner’s
registration requirements. As such, the Muniz rationale does not apply and SORNA
II does not constitute an impermissible ex post facto law as applied to Petitioner. See
Bill; see also Marshall v. Pa. State Police (Pa. Cmwlth., No. 552 M.D. 2017, filed
July 18, 2018), slip op. at 8-9 (holding that a petitioner seeking relief from Act 10’s
sex offender registration requirements under Muniz is not entitled to relief because
no ex post facto violation exists where the petitioner does not experience any
increased registration requirements).
To the extent Petitioner claims that in enacting SORNA II the General
Assembly somehow overruled the sentencing court, thereby violating the doctrine
of separation of powers,9 we disagree. See Petitioner’s Brief at 6. In addition to not
9
“The doctrine of separation of powers is inherent in the Pennsylvania Constitution and
recognizes that the legislature, executive, and judiciary are independent, co-equal branches of
government and no branch may exercise the functions specifically committed to another branch.”
Thomas v. Grimm, 155 A.3d 128, 137 (Pa. Cmwlth. 2017). We note that “[u]nder Article II,
4
extending Petitioner’s sex offender registration requirements as discussed supra, the
enactment of SORNA II in no way altered the underlying sentence imposed by the
sentencing court for Petitioner’s rape of a child conviction. Accordingly,
Petitioner’s separation of powers claim fails.
To the extent Petitioner argues his sex offender registration
requirements somehow violate the Equal Protection Clauses of the United States and
Pennsylvania Constitutions, we again disagree. See Petitioner’s Brief at 7-8. This
Court has determined, and the Supreme Court has affirmed, that the classification of
convicted sex offenders as a category of felons is not based on a suspect class and
that such classification does not affect any fundamental rights. Doe v. Miller, 886
A.2d 310, 316 (Pa. Cmwlth. 2005), aff’d, 901 A.2d 495 (Pa. 2006) (Megan’s Law
II). Further, this Court has determined that Pennsylvania’s sex offender registration
classification system satisfies the requirements of equal protection under the state
and federal constitutions because it seeks to promote the legitimate state interests of
public safety and welfare, and is reasonably related to enhancing those interests. Id.Accordingly, Petitioner’s equal protection argument fails.
For the above reasons, Petitioner has failed to demonstrate a clear right
to the judgment he seeks. Accordingly, we deny the Motion.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
Section 1 of our Constitution, the legislative power of the Commonwealth is vested in the General
Assembly.” Jubelirer, 953 A.2d at 529. “The legislative power is the power to make, alter and
repeal laws.” Id. (internal quotation marks omitted).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Henry Pacheco, :
Petitioner :
:
v. :
:
Robert Evanchick, : No. 178 M.D. 2019
Respondent :
ORDER
AND NOW, this 11th day of September, 2020, Petitioner Henry
Pacheco’s Motion for Summary [Relief] is hereby DENIED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge