B.W.G. v. PA DOC ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
B.W.G., :
Petitioner :
:
v. : No. 493 M.D. 2018
: Submitted: March 4, 2022
Pennsylvania Department of Corrections, :
Pennsylvania Board of Probation :
and Parole, Pennsylvania State Police, :
Brad Namowicz, Megan Diltz, :
Sandra Kishbaugh, SCI-Retreat Records :
Supervisor (Jane Doe), Jeffrey Ayres, :
Amy Fish, :
Respondents :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: May 10, 2022
Before the Court is an application for summary relief filed, pro se, by
Petitioner, B.W.G., on his petition for review. B.W.G. asserts that he is exempt from
the sex offender registration requirements set forth in the Sexual Offender
Registration and Notification Act (SORNA), of February 21, 2018, P.L. 27, No. 10,
as amended by the Act of July 12, 2018, P.L. 140, No. 29 (collectively, SORNA II).1
For the reasons set forth herein, we deny B.W.G.’s application.
In 1998, B.W.G. was convicted of involuntary deviate sexual
intercourse, sexual assault, and aggravated assault for offenses that occurred in July
1
42 Pa. C.S. §§9799.10-9799.75.
1995. He was sentenced to 6 to 20 years’ incarceration, followed by 8 years’
probation. In or around May 2018, B.W.G. was paroled.
Thereafter, B.W.G. filed the instant petition for review2 against the
Pennsylvania Department of Corrections (Department), the Pennsylvania Board of
Probation and Parole (Parole Board),3 the Pennsylvania State Police (State Police),
Brad Namowicz, Megan Diltz, Sandra Kishbaugh, State Correctional Institution
(SCI)-Retreat Records Supervisor (Jane Doe), Jeffrey Ayres, and Amy Fish
(collectively, Respondents).4 In the petition, B.W.G. alleges that beginning in 2018,
employees of SCI-Retreat and the Parole Board informed him that he was required
to register as a sex offender. Petition ¶¶ 2,7. B.W.G. responded that he was not
required to register because the offenses for which he was convicted occurred in
1995, before there was a sex offender registration law. Petition ¶9. Further, in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), the Supreme Court held that
SORNA I, formerly 42 Pa. C.S. §§9799.10-9799.41, violated the constitutional
prohibition against ex post facto laws. Petition ¶9. B.W.G.’s petition asserts that
requiring him to register as a sex offender subjects him to an unconstitutional ex post
facto law. He seeks an order directing Respondents (1) to cease and desist from
2
B.W.G. captioned his pleading “Motion for Emergency Injunction (Temporary Restraining
Order).” See 42 Pa. C.S. §761(a)(1) (“The Commonwealth Court shall have original jurisdiction
over all civil actions or proceedings . . . . [a]gainst the Commonwealth government, including any
officer thereof.”). When a petitioner seeks to challenge government action or inaction, he must
file a “petition for review.” PA. R.A.P. 1516(b). Therefore, this Court treats B.W.G.’s motion as
a petition for review.
3
After B.W.G. filed the petition for review, the Pennsylvania Board of Probation and Parole was
renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December
18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of
the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
4
This Court sustained the preliminary objection to naming Sandra Kishbaugh as a respondent. By
order of January 17, 2019, she was dismissed from the matter.
2
ordering him to register with the State Police and/or any other authority under
SORNA II, and (2) to remove his name from the State Police sex offender registry
and any other associated registry.
In his application for summary relief, B.W.G. argues that because
SORNA II was enacted years after his offense and conviction, he “could not have
anticipated that his conduct [would have] subjected him to the sort of sanctions
imposed by this law.” B.W.G. Brief at 6. Thus, under Muniz, 164 A.3d 1189,
SORNA II cannot be applied to him. B.W.G. also argues that Subchapter I of
SORNA II is punitive in nature because it prevented him from visiting his grandchild
at a children’s hospital. B.W.G. requests that SORNA II be deemed unconstitutional
as applied to him.
Respondents rejoin that B.W.G.’s conviction for involuntary deviate
sexual intercourse required a lifetime registration under the prior sexual offender
registration statute. See former 42 Pa. C.S. §9795.1(b). Further, they argue that
Subchapter I of SORNA II is not punitive and, thus, may be retroactively applied to
offenders without violating the ex post facto clause. Accordingly, Respondents
request this Court to deny B.W.G.’s application.
An application for summary relief may be granted at any time after the
filing of a petition for review if the applicant’s right to relief is clear. PA. R.A.P.
1532(b). “The application will be denied where material facts are in dispute or the
applicant is not clearly entitled to judgment as a matter of law.” Allen v.
Pennsylvania Board of Probation and Parole, 207 A.3d 981, 984 n.4 (Pa. Cmwlth.
2019).
Beginning in 1995, the General Assembly enacted a series of statutes
requiring convicted sex offenders living within the Commonwealth to register with
3
the State Police upon release from prison. The first statute was commonly known
as Megan’s Law, formerly 42 Pa. C.S. §§9791-9799.6, effective April 22, 1996. In
2000, the General Assembly enacted what is commonly referred to as Megan’s Law
II, formerly 42 Pa. C.S. §§9791-9799.7. In 2004, Megan’s Law II was succeeded by
Megan’s Law III, formerly 42 Pa. C.S. §§9791-9799.9, which remained in effect
until 2012. SORNA I replaced Megan’s Law III.5
In Muniz, 164 A.3d 1189, our Supreme Court held SORNA I to be
unconstitutional because its provisions were punitive and violated the prohibition
against ex post facto laws. Following the Supreme Court’s decision in Muniz, the
General Assembly enacted SORNA II, which has two subchapters. As our Supreme
Court has explained,
Subchapter H is based on the original SORNA [I] statute and is
applicable to offenders . . . who committed their offenses after
the December 20, 2012[,] effective date of SORNA [I];
Subchapter I is applicable to offenders who committed their
offenses prior to the effective date of SORNA [I] and to whom
the Muniz decision directly applied.[6]
Commonwealth v. Butler, 226 A.3d 972, 981 n.11 (Pa. 2020).
5
In 2013, the Pennsylvania Supreme Court struck down Megan’s Law III for violating the single
subject rule of Article III, Section 3 of the Pennsylvania Constitution, PA. CONST. art. III, §3.
Commonwealth v. Neiman, 84 A.3d 603, 616 (Pa. 2013). By the time Megan’s Law III was struck
down, it had been replaced by SORNA I.
6
Subchapter I applies to individuals who are:
(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 Pennsylvania
State Police, as described in section 9799.55 (relating to registration), has not
expired; or
(2) required to register with the Pennsylvania State Police 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.
42 Pa. C.S. §9799.52 (emphasis added).
4
Recently, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), the
Pennsylvania Supreme Court considered whether Subchapter I of SORNA II was
punitive and, thus, an unconstitutional ex post facto law. The Supreme Court
observed that the “General Assembly expressly declared that Subchapter I ‘shall not
be construed as punitive.’” Lacombe, 234 A.3d at 618 (quoting 42 Pa. C.S.
§9799.51(b)(2)). To that end, the General Assembly made a number of “significant
changes” from SORNA I to “alleviate many of the concerns expressed in Muniz[.]”
Lacombe, 234 A.3d at 619, 626. Applying the factors set forth in Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963), the Supreme Court concluded that
Subchapter I of SORNA II did not violate the prohibition against ex post facto laws.
It held:
Subchapter I effected significant changes from the original
version of SORNA, retroactive application of which we found
unconstitutional in Muniz . . . . As we have not found the
requisite “clearest proof” Subchapter I is punitive, we may not
“override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty[ . . . .]”
Lacombe, 234 A.3d at 626.
Here, B.W.G. is subject to Subchapter I of SORNA II, because he was
required to register under a prior sexual offender registration law. Specifically,
B.W.G. incurred a lifetime registration requirement upon the effective date of
Megan’s Law II in 2000 when he was incarcerated. Because it is a lifetime
requirement, it has not expired. Further, the Supreme Court determined in Lacombe
that the registration requirements imposed by SORNA II are not punitive.
5
Given our Supreme Court’s holding in Lacombe, we conclude that
B.W.G. has failed to state a valid claim, and, thus, we deny B.W.G.’s application for
summary relief.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
B.W.G., :
Petitioner :
:
v. : No. 493 M.D. 2018
:
Pennsylvania Department of Corrections, :
Pennsylvania Board of Probation :
and Parole, Pennsylvania State Police, :
Brad Namowicz, Megan Diltz, :
Sandra Kishbaugh, SCI-Retreat Records :
Supervisor (Jane Doe), Jeffrey Ayres, :
Amy Fish, :
Respondents :
ORDER
AND NOW, this 10th day of May, 2022, the application for summary
relief filed by Petitioner, B.W.G., is DENIED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita