B.W. v. PSP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
B.W., :
Petitioner :
:
v. : No. 433 M.D. 2018
: Submitted: February 12, 2020
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: July 6, 2020
Presently before the Court is B.W.’s (Petitioner) Motion for Summary Relief
and Entry of Judgment (Application) on his Petition for Review (Petition) in the
nature of declaratory and injunctive relief filed against the Pennsylvania State
Police (PSP) in our original jurisdiction. Petitioner challenges the
constitutionality, as applied, of Subchapter I of the most recent enactment of the
Sexual Offender Registration and Notification Act, 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 291). Petitioner asserts various bases for
the alleged unconstitutionality of subchapter I of Act 29 as applied to him,
including that its provisions are punitive as applied in violation of the ex post facto
clauses of the United States and Pennsylvania Constitutions.2 This is based upon
the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), cert. denied, __ U.S. __, 136 S. Ct. 925 (2019), declaring Act
29’s predecessor, the Sexual Offender Registration and Notification Act3
(SORNA), unconstitutional. Petitioner also asserts that subchapter I of Act 29
should not apply to him because his registration requirements have expired, and
subchapter I violates Article III, Section 6 of the Pennsylvania Constitution,4
Petitioner’s vested rights, and Petitioner’s substantive due process rights.
Petitioner asks this Court to declare subchapter I of Act 29 unconstitutional
as applied and to preliminarily and permanently enjoin PSP from requiring
Petitioner to register as a sexual offender; maintaining Petitioner’s registration
information in the statewide sexual offender registry (Registry); and disseminating
Petitioner’s registration information online. Based upon our decision in T.S. v.
Pennsylvania State Police, __ A.3d __ (Pa. Cmwlth., No. 129 M.D. 2019, filed
May 11, 2020), the application of subchapter I of Act 29 to Petitioner, who
committed his crimes before the enactment of a sexual offender registration
1
Petitioner refers to Act 29 as “2018 SORNA,” whereas PSP refers to it as “Act 29.” For
ease of discussion in relation to prior enactments, we will refer to the statute as Act 29.
2
“No . . . ex post facto Law shall be passed.” U.S. CONST. art. I, § 9, cl. 3. “No ex post
facto law . . . shall be passed.” PA. CONST. art. I, § 17.
3
Former 42 Pa.C.S. §§ 9799.10-9799.41.
4
PA. CONST. art. III, § 6. Article III, Section 6 provides that “[n]o law shall be revived,
amended, or the provisions thereof extended or conferred, by reference to its title only, but so
much thereof as is revived, amended, extended or conferred shall be re-enacted and published at
length.” Id.
2
scheme, is ex post facto. Accordingly, consistent with T.S., we grant in part and
deny in part Petitioner’s Application.
I. Statutory Background
A brief overview of the history preceding Act 29 and the relevant provisions
of Act 29 is helpful before addressing the Petition and the parties’ arguments. As
this Court has explained:
Megan’s Law I,[5] the Act of October 24, 1995, P.L. 1079 (Spec. Sess.
No. 1), was enacted on October 24, 1995, and became effective 180
days thereafter. Megan’s Law II[6] was enacted on May 10, 2000[,] in
response to Megan’s Law I being ruled unconstitutional by our
Supreme Court in Commonwealth v. Williams, . . . 733 A.2d 593([Pa.] 1999). Our Supreme Court held that some portions of Megan’s
Law II were unconstitutional in Commonwealth v. Gomer Williams, . .
. 832 A.2d 962 ([Pa.] 2003), and the General Assembly responded by
enacting Megan’s Law III[7] on November 24, 2004. The United
States Congress expanded the public notification requirements of state
sexual offender registries in the Adam Walsh Child Protection and
Safety Act of 2006, [(Adam Walsh Act)8] . . . , and the Pennsylvania
General Assembly responded by passing SORNA on December 20,
2011[,] with the stated purpose of “bring[ing] the Commonwealth into
substantial compliance with the [Adam Walsh Act].” [Section
9799.10(1) of SORNA, former] 42 Pa.C.S. § 9799.10(1). SORNA
went into effect a year later on December 20, 2012. Megan’s Law III
was also struck down by our Supreme Court for violating the single
subject rule of Article III, Section 3 of the Pennsylvania Constitution.
Commonwealth v. Neiman, . . . 84 A.3d 603, 616 ([Pa.] 2013).
However, by the time it was struck down, Megan’s Law III had been
replaced by SORNA.
5
Former 42 Pa.C.S. §§ 9791-9799.6.
6
Former 42 Pa.C.S. §§ 9791-9799.7.
7
Former 42 Pa.C.S. §§ 9791-9799.75.
8
34 U.S.C. §§ 20901-20991. Congress enacted the Adam Walsh Act “[i]n order to
protect the public from sex offenders and offenders against children, and in response to the
vicious attacks by violent predators,” by “establish[ing] a comprehensive national system for the
registration of those offenders.” 34 U.S.C. § 20901.
3
Taylor v. Pa. State Police, 132 A.3d 590, 595 n.7 (Pa. Cmwlth. 2016). Section
9799.41 of SORNA provided for the expiration of the statutory sections previously
governing registration, former 42 Pa.C.S. § 9799.41. The Supreme Court struck
down SORNA as unconstitutional in Muniz, 164 A.3d at 1218, and the General
Assembly enacted Act 29 in response thereto.
Subchapter I of Act 29 applies to individuals who committed their crimes
before the date of SORNA, such as Petitioner, whereas Subchapter H of Act 29
applies to offenders who committed their offenses after the effective date of
SORNA.9 Section 9799.52(2) of Act 29 provides that subchapter I “shall apply to
all individuals who were . . . required to register with [PSP] 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(2). Subchapter I of Act 29 requires offenders to register with
PSP and provide information on current or intended residences, employment, and
enrollment as a student. Section 9799.56(a)(1) of Act 29, 42 Pa.C.S. §
9799.56(a)(1). Offenders must appear in person annually to verify registration
9
Currently pending before the Pennsylvania Supreme Court is Commonwealth v.
Lacombe (Pa., No. 35 MAP 2018), on direct appeal from a court of common pleas, challenging
the constitutionality of subchapter I of Act 29. The Supreme Court recently issued its decision in
Commonwealth v. Torsilieri, __ A.3d __ (Pa., No. 37 MAP 2018, filed June 16, 2020), which
was also a direct appeal from a court of common pleas regarding the constitutionality of
subchapter H of Act 29. Because the Supreme Court was “unable to conclude based upon the
record currently before [it] whether [the a]ppellee has sufficiently undermined the validity of the
legislative findings supporting [r]evised [s]ubchapter H’s registration and notification provisions
. . . ,” the Supreme Court in Torsilieri remanded the case for development of the factual record.
Id. at__, slip op. at 24. The Supreme Court further concluded that this development of the
factual record on remand would require a new weighing of the factors in the ex post facto
analysis. Id. at __, slip op. at 40.
4
information, Section 9799.60(b) of Act 29, 42 Pa.C.S. § 9799.60(b), and update
PSP within three days of changes to any registration information, 42 Pa.C.S. §
9799.56(a)(2). Offenders are subject to criminal prosecution for failure to comply
with these requirements. 42 Pa.C.S. §§ 9799.56(d), 9799.60(e).10 Finally, Section
9799.63 of Act 29, the Internet dissemination provision, requires PSP to post
online various registration information about each offender, including photographs,
addresses, vehicle registrations, and details about the triggering offense. 42
Pa.C.S. § 9799.63.
II. Background
Petitioner avers as follows in his Petition. Petitioner was convicted on
December 20, 1995, of rape, aggravated indecent assault, and indecent assault, and
was sentenced to 3½ years’ to 10 years’ imprisonment. (Petition ¶¶ 13-14.)
Petitioner was paroled from his sentence in June 2001, began registering as a
lifetime registrant under Megan’s Law II, and completed his parole in February
2006. The General Assembly, in 2011, enacted SORNA, which “provided for the
expiration of those portions of Megan’s Law I, II, and III that had thus far survived
judicial review . . . , which were no longer applicable to Petitioner.” (Petition ¶
21.) PSP enforced SORNA with respect to Petitioner. The Supreme Court then
declared SORNA unconstitutional in Muniz. Because the prior versions of
Megan’s Law to which Petitioner was subject expired pursuant to the terms of
10
Subchapter I also contains more stringent registration and verification provisions for
sexually violent predators (SVPs) who are convicted of a sexual offense and also assessed by the
State Sexual Offender Board to be SVPs “due to a mental abnormality or personality disorder
that makes the person likely to engage in predatory sexually violent offenses.” Section 9799.53
of Act 29, 42 Pa.C.S. § 9799.53. Petitioner is not a SVP; thus, these provisions are not
implicated here.
5
SORNA, there was no valid statutory registration scheme in place to require
Petitioner’s registration following Muniz. (Id. ¶ 26.)
Therefore, on October 5, 2017, Petitioner submitted a formal request
(Request) to PSP requesting termination of his registration requirements and
removal of his information from the Registry, pursuant to Muniz. (Id. ¶ 27.) PSP
responded to Petitioner’s Request, explaining that it would not comply with the
Request while the writ of certiorari for Muniz was pending before the United States
Supreme Court. (Id. ¶ 28.) On December 4, 2017, Petitioner filed his first petition
for review, seeking to terminate his obligation to register under SORNA in light of
Muniz. Shortly thereafter, PSP mailed to Petitioner a letter dated February 2, 2018,
notifying him that it had concluded the decision in Muniz affected his registration
and, therefore, PSP removed Petitioner’s registration information from the
Registry. (Petition ¶ 30.) By letter dated February 12, 2018, a representative of
the Pennsylvania Office of Attorney General (OAG) further expressed to Petitioner
that he was relieved from any obligations under SORNA. (Petition ¶ 30, Ex. B.)
After receipt of the letters from PSP and the OAG, Petitioner filed a Praecipe to
Discontinue his December 2017 petition for review. By a single-judge order of
this Court dated February 20, 2018, the Praecipe to Discontinue was granted.
(Petition ¶¶ 34-35); B.W. v. Pa. State Police (Pa. Cmwlth., No. 566 M.D. 2017,
filed February 20, 2018).
Following the General Assembly’s enactment of Act 29, by letter dated
March 16, 2018, PSP notified Petitioner that he is subject to registration under
subchapter I of Act 29 and required to register no later than May 22, 2018, subject
to criminal penalties for noncompliance. (Id. ¶ 36.) Petitioner contacted PSP and
the OAG, requesting that PSP not enforce subchapter I of Act 29 against Petitioner,
6
citing letters from PSP and the OAG after Muniz, the expiration of prior versions
of the registration schemes under SORNA, and the alleged unconstitutionality of
Act 29. PSP replied that Petitioner is a lifetime offender and a court order is
needed in order to remove him from the Registry. Pursuant to Section 9799.41 of
SORNA, which provided for the expiration of prior iterations of the registration
laws, and this Court’s order granting Petitioner’s Praecipe to Discontinue his 2017
case, Petitioner asserts he has no further obligation to “register under any sex[ual]
offender registration and notification scheme”; thus, he should not be subject to
any further registration and PSP’s contention otherwise is without merit. (Id. ¶¶
41-43.) Further, based on Muniz and the letters from PSP and the OAG, Petitioner
has a vested right in the termination of his registration requirements. Additionally,
studies have shown that recidivism rates for sexual offenders are generally low and
decrease as more time passes from the offense; thus, requiring individuals like
Petitioner to register for life creates an irrebuttable presumption that he remains a
danger to the community.
Petitioner asserts four different bases to challenge his registration
requirement under subchapter I of Act 29: (1) Petitioner’s registration
requirements expired pursuant to the terms of SORNA and PSP’s and the OAG’s
letters after Muniz confirming the same; (2) subchapter I of Act 29 violates Article
III, Section 6 of the Pennsylvania Constitution because it seeks to revive or extend
registration obligations by reference to his obligations under those now expired
statutes; (3) subchapter I of Act 29 abrogates Petitioner’s vested rights; (4)
subchapter I of Act 29 violates Petitioner’s substantive due process rights because
it is not rationally related to a legitimate government interest and creates an
irrebuttable presumption that Petitioner is dangerous. Based on the foregoing,
7
Petitioner seeks an order declaring that subchapter I of Act 29 does not apply to
him for those reasons and PSP has no authority to continue to require Petitioner to
register or to maintain his information on the Registry. Petitioner asks this Court
to enjoin PSP from: requiring Petitioner to comply with Act 29; maintaining
Petitioner’s information on the Registry; and publishing Petitioner’s information
on the Internet. Petitioner immediately sought summary relief on all his claims,
filing his Application the same day that he filed his Petition.
III. Parties’ Arguments
Petitioner asserts that this Court should grant his Application because
subchapter I of Act 29 should not apply to him, arguing as follows.11 Based upon
the Supreme Court’s holding in Muniz, the in-person registration requirements and
the publication of Petitioner’s information online under subchapter I of Act 29
constitute punishments and affirmative disabilities. Petitioner’s criminal conduct
occurred in 1994, predating the first Megan’s Law and the passage of subchapter I
of Act 29; therefore, subchapter I of Act 29 “may not be retroactively applied to
[him].” (Petitioner’s Brief (Br.) at 23.) SORNA provided that prior versions of
Megan’s Law that required Petitioner’s registration expired as of December 20,
2012. See former 42 Pa.C.S. § 9799.41. Following Muniz, there are no valid
registration schemes, Petitioner’s registration requirements are expired and
satisfied,12 and, therefore, subchapter I, which expressly applies to offenders whose
11
We have rearranged Petitioner’s arguments for ease of discussion.
12
Petitioner also asserts under this argument that his registration requirements have been
satisfied, as Section 9799.75(b) of subchapter I states that “[n]othing in this subchapter shall be
construed to require an individual who had previously registered with [PSP] for a sexually
violent offense prior to July 9, 2000, to reregister under this subchapter if the individual’s
registration requirements were satisfied.” 42 Pa.C.S. § 9799.75(b). Because Petitioner is not a
SVP, this provision does not apply to him.
8
periods of registration have not expired, cannot be applied to him. Further, by
defining the scope of subchapter I by reference to individuals who were required to
register under former registration laws, subchapter I of Act 29 violates Article III,
Section 6 of the Pennsylvania Constitution by “seek[ing] to ‘revive or extend’
registration obligations triggered by prior, expired laws,” without reenacting them.
(Petitioner’s Br. at 17.) Additionally, because the statutes under which Petitioner
was previously required to register are expired and unenforceable Petitioner
“attained a vested right to [the] status as a non-registrant . . . , rendering [Act 29]
unenforceable against him.” (Id. at 23.) Citing to studies regarding the recidivism
of sexual offenders, Petitioner asserts that sex offender recidivism rates are
generally low and tend to decline as time passes after the offense, and registration
and notification schemes do not generally tend to protect the public because most
sex offenses are committed by family members. Therefore, although the General
Assembly determined that sex offender registration is necessary to protect the
public, subchapter I of Act 29 imposes an unconstitutional and irrebuttable
presumption of Petitioner’s continuing dangerousness in violation of Petitioner’s
procedural due process rights.
PSP responds that Petitioner is subject to the provisions of subchapter I of
Act 29, arguing as follows. Subchapter I of Act 29 is not ex post facto because it is
not punitive and does not retroactively increase Petitioner’s punishment or
abrogate a vested right. Subchapter I of Act 29 is not punitive because it addresses
the Supreme Court’s concerns as expressed in Muniz. Specifically, as opposed to
SORNA, subchapter I of Act 29 does not constitute an affirmative disability or
restraint, does not contain registration requirements that are sanctions historically
regarded as punishment, does not promote traditional aims of punishment, and is
9
not excessive in relation to the statute’s legitimate purpose. Petitioner’s
registration requirements under subchapter I of Act 29 have not expired by the
letters PSP and the OAG sent to Petitioner following Muniz or by the
discontinuance of his 2017 case. Act 29 does not violate Article III, Section 6
because that provision does not require that every single legislative enactment
“recite all other acts that its operation may incidentally affect.” (PSP’s Br. at 13
(quotation omitted).) The General Assembly and the Pennsylvania Supreme Court
have recognized the high risk of recidivism posed by sexual offenders and this
Court should defer to that legislative judgment regarding the necessity and
reasonableness of measures within Act 29 to achieve that policy. Subchapter I of
Act 29 does not create an irrebuttable presumption of dangerousness and violate
Petitioner’s due process rights as Petitioner’s registration derives from his
conviction, not a finding of dangerousness, and subchapter I contains a provision
allowing offenders to petition for removal from the Registry after 25 years if
certain conditions are met.
Petitioner replies that subchapter I of Act 29 is punitive in effect and ex post
facto, arguing as follows. Subchapter I of Act 29 requires in-person reporting and
publication online of Petitioner’s personal information. These provisions of
subchapter I of Act 29 impose an affirmative disability or restraint, resemble
historic punishments, promote traditional aims of punishment, and are excessive in
relation to the statute’s purpose. Therefore, Act 29 is punitive.
IV. Discussion
Pennsylvania Rule of Appellate Procedure 1532(b) provides that “[a]t any
time after the filing of a petition for review in an appellate or original jurisdiction
matter the court may on application enter judgment if the right of the applicant
10
thereto is clear.” Pa.R.A.P. 1532(b). Accordingly, where “a party’s right to
judgment is clear and no material issues of fact are in dispute, we may grant an
application for summary relief.” Williams v. Wetzel, 222 A.3d 49, 53 (Pa. Cmwlth.
2019) (quotation omitted).
In light of our recent decision in T.S., which is dispositive of Petitioner’s
claims for relief, we address first the assertion that Act 29 is ex post facto. In T.S.,
we analyzed the application of subchapter I to an individual like Petitioner, who
committed his triggering offenses prior to the enactment of a sex offender
registration scheme. The petitioner in T.S. committed sexual offenses in 1990
when there was no sexual offender registration scheme. Upon the petitioner’s
release from incarceration in 2002, he began registering as a lifetime registrant.
The petitioner asserted that the application of subchapter I of Act 29 was
unconstitutional in violation of the state and federal ex post facto clauses and in
light of the Supreme Court’s decision in Muniz.
We analyzed the entirety of subchapter I of Act 29 as applied to the
petitioner under the ex post facto analysis set forth by the United States Supreme
Court in Smith v. Doe, 538 U.S. 84 (2003), and used by our Supreme Court in
Muniz. Finding first that the General Assembly had a nonpunitive intent in
enacting subchapter I of Act 29, we moved to an analysis of the factors established
by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S.
144 (1963), to determine if the provisions of subchapter I of Act 29 were so
punitive as to overcome the General Assembly’s nonpunitive intent. T.S., __ A.3d
at __, slip op. at 25. In light of Muniz, we analyzed subchapter I of Act 29 as
applied to the petitioner under these Mendoza-Martinez factors:
[1.] [w]hether the sanction involves an affirmative disability or
restraint, [2.] whether it has historically been regarded as punishment,
11
[3.] whether it comes into play only on a finding of scienter,
[4.] whether its operation will promote the traditional aims of
punishment - retribution and deterrence, [5.] whether the behavior to
which it applies is already a crime, [6.] whether an alternative purpose
to which it may rationally be connected is assignable for it, and
[7.] whether it appears excessive in relation to the alternative purpose
assigned.
Mendoza-Martinez, 372 U.S. at 168-69.
We concluded that the factors weighed in favor of finding subchapter I of
Act 29 punitive as applied to petitioners who committed their crimes prior to
Megan’s Law I. T.S., __ A.3d at __, slip op. at 55. Specifically, following our
Supreme Court’s analysis in Muniz and its most recent analysis of the sexually
violent predator (SVP) provisions of subchapter H of Act 29 in Commonwealth v.
Butler, 226 A.3d 972 (Pa. 2020), we determined the provisions of subchapter I of
Act 29 constituted an affirmative disability or restraint, were sanctions historically
regarded as punishments, promoted traditional aims of punishment such as
retribution and deterrence, and were excessive in relation to the purpose of
subchapter I of Act 29.13 We explained that the provisions of subchapter I of Act
29, which required annual in-person appearances, Section 9799.60(b) of Act 29, 42
Pa.C.S. § 9799.60(b), updates to PSP within three days of any changes in
registration information, Section 9799.56 of Act 29, 42 Pa.C.S. § 9799.56(a)(2),
and publication online of a registrant’s personal information, Section 9799.63(c)(1)
13
Although the factors on the whole weighed in favor of finding subchapter I to be
punitive, we concluded that three of the Mendoza-Martinez factors weighed in favor of finding
subchapter I of Act 29 nonpunitive. Specifically, we determined that because the sanctions of
subchapter I came into play only on a finding of scienter, the behavior to which the sanctions
apply were already a crime, and there is an alternative purpose to which the sanctions of
subchapter I can be applied, these factors weighed in favor of finding Act 29 to be nonpunitive.
T.S., __ A.3d at __, slip op. at 39, 46, 49.
12
of Act 29, 42 Pa.C.S. § 9799.63(c)(1), were punitive as applied to an individual
who had no notice at the time of commission of the crime that he would be subject
to any registration. We explained:
On the whole, balancing the factors in accordance with the analysis
used by our Supreme Court in Muniz, we must find that five of the
seven weigh in favor of finding subchapter I of Act 29 to be punitive
when applied to [the p]etitioner. PSP’s arguments to the contrary
focus on the differences between SORNA and subchapter I of Act 29
that were intended to address the Supreme Court’s decision in Muniz.
However, these arguments overlook the fact that the requirements of
SORNA or any prior registration scheme did not exist at the time of
[the p]etitioner’s offense. While some form of retroactive registration
requirements may be constitutional, see Smith, 538 U.S. at 105,
applying the analysis in Muniz, we must find the cumulative effect of
the registration requirements of subchapter I of Act 29 on [the
p]etitioner goes beyond imposing mere registration and is punishment.
[The p]etitioner, who committed the crimes giving rise to his present
obligation to register in 1990, could not “have fair warning” of the
applicable law that now mandates his registration and the terms
thereof. Peugh [v. United States], 569 U.S. [530,] 544 [(2013)]. His
right to relief on these ex post facto claims is not premised in a “right
to less punishment, but the lack of fair notice and governmental
restraint” that occurred when the General Assembly “increase[d]
punishment beyond what was prescribed when the crime was
consummated.” Weaver [v. Graham], 450 U.S. [24,] 30 [(1981)].
Accordingly, we determine that the Mendoza-Martinez factors weigh
in favor of finding subchapter I of Act 29 to be punitive as applied to
[the p]etitioner under the Ex Post Facto clause of the United States
Constitution.
Id., __ A.3d at __, slip op. at 55-56. We concluded that subchapter I of Act 29 was
unconstitutional as applied to the petitioner, but stated that we were unable to grant
the relief of permanent removal from the Registry, as only the unconstitutionality
of subchapter I of Act 29 as applied was before us. Id. at __, slip op. 56.
Accordingly, we granted in part and denied in part the petitioner’s request for
13
declaratory and injunctive relief and directed PSP not to apply subchapter I of Act
29 to the petitioner, resulting in his removal from the Registry. Id.Following our holding in T.S., the application of subchapter I to Petitioner in
this case is unconstitutional in violation of the prohibition against ex post facto
laws. Like the petitioner in T.S., Petitioner here committed his crimes prior to the
enactment of a sexual offender registration scheme and, therefore, had no fair
notice or warning of the type of extensive statutory requirements that would
govern his registration. Although Petitioner was convicted for his crimes in
December 1995, after Megan’s Law I was enacted, our focus for an ex post facto
analysis “is the date of the offense.” T.S., __ A.3d at __, slip op. at 21 (quoting
Commonwealth v. Wood, 208 A.3d 131, 136 (Pa. Super. 2019) (emphasis added)).
While Petitioner does not aver in his Petition the date of commission of his crime,
both parties acknowledge that his conduct occurred prior to 1995, given the date of
his arrest in 1994. (See PSP’s Br. at 1; Petitioner’s Br. at 30.) Moreover, even if
the law in effect at the time of conviction was the relevant consideration, Megan’s
Law I went into effect 180 days after its enactment on October 24, 1995, which is
after the date of Petitioner’s conviction. Accordingly, given Petitioner’s lack of
notice at the time he committed his crimes, the application of subchapter I of Act
29 to him is ex post facto.
Petitioner also seeks permanent relief in the removal of his information from
the Registry. As in T.S., we can only grant relief as to what is before us, which is
whether Petitioner’s registration under subchapter I of Act 29 is constitutional. We
conclude that it is not. Accordingly, we grant in part and deny in part Petitioner’s
Application and direct PSP not to apply subchapter I of Act 29 to Petitioner, which
14
will result in his removal from the Registry. Because we grant Petitioner the relief
he seeks on these grounds, we do not reach his alternative arguments.
V. Conclusion
Based upon this Court’s recent decision in T.S., following our Supreme
Court’s decision in Muniz, the application of subchapter I of Act 29 to Petitioner,
who committed his crimes before the enactment of a registration scheme, is
unconstitutional in violation of the Ex Post Facto Clause of the United States
Constitution. Accordingly, we direct PSP not to apply subchapter I of Act 29 to
Petitioner, which will result in his removal from the Registry. Accordingly, we
grant in part and deny in part Petitioner’s Application.
_____________________________________
RENÉE COHN JUBELIRER, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
B.W., :
Petitioner :
:
v. : No. 433 M.D. 2018
:
Pennsylvania State Police, :
Respondent :
ORDER
NOW, July 6, 2020, B.W.’s (Petitioner) Motion for Summary Relief and
Entry of Judgment (Application) is hereby GRANTED in part. Judgment is
entered in favor of Petitioner, declaring the application of subchapter I of 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 29)
unconstitutional, as it is in violation of the ex post facto clauses of the United
States and Pennsylvania Constitutions as applied to Petitioner. The Pennsylvania
State Police is hereby ORDERED not to apply subchapter I of Act 29 to
Petitioner, which will result in his removal from the sexual offender registry. To
the extent Petitioner seeks relief in the form of permanent removal from the sexual
offender registry, the Application is DENIED.
_____________________________________
RENÉE COHN JUBELIRER, Judge