D.L. Harris v. PSP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dontae Lee Harris, :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 625 M.D. 2019
Respondent : Submitted: August 7, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 17, 2020
Before this Court is the Pennsylvania State Police’s (PSP) preliminary
objection (Preliminary Objection) to Dontae Lee Harris’ (Harris) pro se petition for
review in the nature of a writ of mandamus (Petition) filed in this Court’s original
jurisdiction. After review, we sustain the Preliminary Objection and dismiss the
Petition.
On April 12, 2016, Harris was charged with two counts of Statutory
Sexual Assault, one count of Sexual Assault, two counts of Corruption of Minors, three
counts of Indecent Assault, and one count of Rape Forcible Compulsion.1 See Petition
¶5. On December 11, 2017, Harris pled guilty to one count of Statutory Sexual Assault
1
Harris alleges in his Petition that he committed the offenses on October 16, 2010; see Petition
¶27; however, in his brief, Harris states that the offenses were committed between August 2014 and
December 2015. See Harris Br. at 7. According to the docket entries, the offenses were committed
on December 29, 2015. See Docket for CP-15-CR-0001517-2016. “[P]reliminary objections raising
an issue under subdivision (a)(2), (3) or (4) may be determined from facts of record so that further
evidence is not required.” Pa.R.C.P. No. 1028(c)(2) Note.
and Corruption of Minors. See Petition ¶6. The remaining charges were withdrawn.
Harris was sentenced to 28 to 56 months’ incarceration, and 5 months’ consecutive
probation, respectively. See id. According to the inmate locator, Harris was released
from custody on April 29, 2020. See http://inmatelocator.cor.pa.gov (last visited
September 16, 2020). Upon his release, Harris was required to register as a sex
offender pursuant to Subchapter H of the Sexual Offender Registration and Notification
Act (SORNA I), Act of February 21, 2018, P.L. 27 (Act 10), as amended, by the Act
of June 12, 2018, P.L. 140 (Act 29), 42 Pa.C.S. §§ 9799.10-9799.75 (collectively,
SORNA II).
At the time Harris committed his offenses, SORNA I was in effect
(effective December 20, 2012). In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
the Pennsylvania Supreme Court declared SORNA I unconstitutional to the extent that
it applied to individuals who committed their offenses before December 20, 2012.
Thereafter, the General Assembly enacted SORNA II, which has two subchapters.
Subchapter H is based on SORNA I 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 SORNA I’s effective
date and to which the Muniz decision directly applied.
On November 14, 2019, Harris filed his Petition challenging his sexual
offender registration under SORNA I and/or SORNA II under Muniz. See Petition ¶12.
Harris is also seeking in excess of $1,000,000.00 in compensatory damages. See
Petition ¶33. On December 24, 2019, PSP filed its Preliminary Objection in the nature
of a demurrer asserting that because SORNA I was in effect at the time Harris
committed his offenses, and Muniz only addressed the retroactive application of
SORNA I, Harris’ ex post facto argument cannot rely on Muniz to circumvent his
registration requirements under SORNA II.
2
The law is well settled:
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. 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 any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review in the
nature of a] complaint and all inferences reasonably
deducible therefrom. It tests the legal sufficiency of the
challenged pleadings and will be sustained only in cases
where the pleader has clearly failed to state a claim for which
relief can be granted. When ruling on a demurrer, a court
must confine its analysis to the [petition for review in the
nature of a] complaint.
Freemore v. Dep’t of Corr., ___ A.3d ___, ___ (Pa. Cmwlth. No. 536 M.D. 2019, filed
May 1, 2020), slip op. at 5 (quoting Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth.
2010) (citations omitted)).
PSP argues that even if being required to register under SORNA II is
considered punitive, there can be no ex post facto violation in the instant case, because the
punishment Harris faced when he committed the offenses, i.e., under SORNA I, has not
changed under SORNA II. PSP cites Commonwealth v. Brozik (Pa. Super. No. 318 WDA
2019, filed October 4, 2019), appeal denied, 226 A.3d 1223 (Pa. 2020),2 to support its
position.
Harris avers that SORNA I was in place when he committed his crimes;
thus, because Muniz ruled that SORNA I violates the ex post facto clause, he cannot be
2
This Court recognizes that it is “not bound by the Superior Court’s precedents, although
where persuasive, we are free to adopt the Superior Court’s reasoning.” Wertz v. Chapman Twp., 709
A.2d 428, 433 n.8 (Pa. Cmwlth. 1998), aff’d, 741 A.2d 1272 (Pa. 1999).
3
required to register under SORNA I.3 See Petition ¶15. Harris also asserts that because
Muniz declared SORNA I unconstitutional, and SORNA II was not yet enacted at the
time he committed his offenses, he cannot be required to register as a sex offender
under either statute. Harris relies upon Commonwealth v. Derhammer, 173 A.3d 723
(Pa. 2017), to maintain this contention. See Petition ¶¶18, 31.
SORNA I became effective December 20, 2012. Muniz addressed
SORNA I, which applied to those sexual offenders whose crimes occurred between
April 22, 1996 and December 20, 2012. Subchapter H of SORNA II applies to sexual
offenders whose crimes occurred on or after December 20, 2012. Harris is a tier III
offender, and under both SORNA I and SORNA II he is required to register for life.
Pursuant to Section 1961 of the Statutory Construction Act of 1972,
[w]henever a statute reenacts a former statute, the provisions
common to both statutes shall date from their first adoption.
Such provisions only of the former statute as are omitted
from the reenactment shall be deemed abrogated, and only
the new or changed provisions shall be deemed to be the law
from the effective date of the reenactment.
1 Pa.C.S. § 1961.
In Brozik, the petitioner committed the offense of statutory indecent
assault, 18 Pa.C.S. § 3122.1(b), on September 3, 2015, and was convicted thereof on
September 12, 2017. The petitioner argued that his lifetime registration was illegal
under Muniz. The Brozik Court held:
In Muniz, our Supreme Court determined that SORNA [I]’s
registration and reporting provisions are punitive and that
retroactive application of SORNA [I]’s provisions violates
the federal and state ex post facto clauses of the United States
and Pennsylvania Constitutions. Id. at 1193. Here, the trial
court correctly determined that because [the petitioner]
committed the crime of statutory indecent assault, 18
3
Notably, because Harris committed his offense after December 20, 2012, Subchapter I of
SORNA II does not apply to him. Rather, Subchapter H of SORNA II applies to Harris.
4
Pa.C.S.[] § 3122.1(b), on September 3, 2015, [the petitioner]
was a [t]ier III sex offender under SORNA [I], with a lifetime
registration requirement. See 42 Pa.C.S.[] §§ 9799.14(d)(3),
9799.15(a)(3)[.] Because SORNA [I] became effective on
December 20, 2012, well before the date [the petitioner]
committed his crimes, the trial court did not retroactively
apply SORNA [II]’s registration and reporting requirements
to [the petitioner]. Thus, Muniz affords [the petitioner] no
relief.
Brozik, slip op. at 3 (record citations omitted). This Court finds the Superior Court’s
reasoning in Brozik persuasive.
Here, Harris committed statutory sexual assault, 18 Pa.C.S. § 3122.1(b),
see Petition ¶5, on December 29, 2015. See Docket for CP-15-CR-0001517-2016;4 see
also Harris Br. at 7. Thus, Harris is also a tier III sex offender under SORNA I, see 42
Pa.C.S. § 9799.14(d)(3), with a lifetime registration requirement. See 42 Pa.C.S. §
9799.15(a)(3). Accordingly, “[b]ecause SORNA [I] became effective on December
20, 2012, well before the date [Harris] committed his crimes, . . . Muniz affords [Harris]
no relief.” Brozik, slip op. at 3.
In Derhammer, upon which Harris relies, the petitioner was convicted of
a sexual offense. Subsequent to his release from custody, on April 1, 2009, the
petitioner moved to a new residence. On April 6, 2009, he registered with the PSP.
Pursuant to Megan’s Law III,5 the statute in effect at the time the petitioner moved, the
petitioner was required to register with the PSP within 48 hours. The petitioner was
charged with the second-degree felony of failing to register as a sex offender. The
petitioner was convicted therefor and sentenced to a term of imprisonment. After his
direct appeal rights were restored nunc pro tunc, the Pennsylvania Superior Court
4
“Because [Harris] admits his criminal conviction[] and references [the docket number], we
may take judicial notice of [the docket entries therein].” Guarrasi v. Scott, 25 A.3d 394, 397 n.3 (Pa.
Cmwlth. 2011).
5
42 Pa.C.S. §§ 9791-9799.75. SORNA I, 42 Pa.C.S. §§ 9799.10-9799.41, replaced Megan’s
Law III.
5
awarded him a new trial due to the trial court’s failure to conduct a jury-waiver
colloquy. In the interim, Megan’s Law III expired and SORNA I was enacted.
Pursuant to SORNA I, the petitioner had three business days to register his new address
with the PSP. Because April 1, 2009 was a Friday, the petitioner timely registered
under SORNA I. Thus, the Derhammer Court dismissed the petitioner’s charge.
The Derhammer Court explained:
In In re Dandridge, . . . 337 A.2d 885 ([Pa.] 1975), this Court
referenced the [United States] Supreme Court’s explanation
that ‘[w]hen the legislature repeals a criminal statute or
otherwise removes the [s]tate’s condemnation from conduct
that was formerly deemed criminal, this action requires the
dismissal of a pending criminal proceeding charging such
conduct.’ Dandridge, . . . 337 A.2d at 888 (quoting Bell v.
Maryland, 378 U.S. 226, 230 . . . (1964)) (emphasis added).
Here, the condemnation was removed from [the petitioner’s]
conduct when SORNA [I] was enacted, as SORNA [I] gave
registrants three business days to report address changes - a
requirement with which [the petitioner] complied[.]
Derhammer, 173 A.3d at 730-31. Conversely, here, Harris’ lifetime sexual offender
registration was required under SORNA [I] and remains required under SORNA II.
Thus, Derhammer is inapposite.
Because Harris is specifically challenging his sex offender registration
under Muniz and Derhammer, Harris “has clearly failed to state a claim for which relief
can be granted.” Freemore, slip op. at 5 (quoting Torres, 997 A.2d at 1245).
Accordingly, PSP’s Preliminary Objection is sustained. Since Harris has failed to state
a claim for relief, he cannot be entitled to damages.
For all of the above reasons, PSP’s Preliminary Objection is sustained and
the Petition is dismissed.
___________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dontae Lee Harris, :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 625 M.D. 2019
Respondent :
ORDER
AND NOW, this 17th day of September, 2020, the Pennsylvania State
Police’s preliminary objection to Dontae Lee Harris’ petition for review in the nature
of a writ of mandamus (Petition) is SUSTAINED and the Petition is DISMISSED.
___________________________
ANNE E. COVEY, Judge