M.S. v. PSP ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
M.S., :
Petitioner :
:
v. : No. 467 M.D. 2020
: ARGUED: March 7, 2022
Pennsylvania State Police, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: April 21, 2022
Petitioner, M.S., has filed a “dual jurisdiction” petition for review, both
appealing from the final determination of the Pennsylvania State Police (PSP)
placing him on the sex offender registry as a Tier III offender, and also seeking
declaratory and mandamus relief in our original jurisdiction challenging PSP’s
action. His ultimate goal is removal from the registry, so the original jurisdiction
action would appear to be surplusage at best. Petitioner had previously sought such
relief in an earlier original jurisdiction action in this Court. In that action, we issued
an order directing PSP to provide a hearing consistent with the Administrative
Agency Law1 on the question of whether he should be designated a Tier III sex
offender under Revised Subchapter H of the Sexual Offender Registration and
1
Administrative Agency Law, 2 Pa.C.S. §§ 501-508, 701-704.
Notification Act (SORNA II, sometimes referred to by the title of its predecessor,
Megan’s Law) found at 42 Pa.C.S. §§ 9799.10-9799.39,2 M.S. v. Pa. State Police,
212 A.3d 1142 (Pa. Cmwlth. 2017) (en banc) (M.S. I). Following a hearing, Robert
Evanchick, the Commissioner of PSP, adopted a hearing officer’s proposed report
and order affirming PSP’s initial determination that Petitioner was subject to Tier III
registration requirements as a result of his conviction for sexual assault under Article
120(b)(3)(A) of the Uniform Code of Military Justice, 10 U.S.C. § 920(b)(3)(A).
The underlying facts, which are largely undisputed, may be
summarized as follows. Following a general court-martial in September 2016,
convened by the United States Coast Guard Academy where Petitioner was a cadet,
Petitioner was found guilty of sexual assault under Article 120(b)(3)(A). He was
found to have committed a sexual act upon another person in September 2015 when
she was incapable of consenting because she was impaired by alcohol, a condition
that was either known or reasonably should have been known by Petitioner, who was
himself impaired by alcohol. Petitioner’s conviction was affirmed on appeal.
Petitioner was directed by the United States Department of Defense to report directly
to authorities upon entering the Commonwealth and complete sex offender
registration as required.
By determination dated June 29, 2017, PSP’s Megan’s Law Section
determined that Petitioner’s conviction under Article 120(b)(3)(A) was for an
offense similar to Section 3125(a)(4) of the Crimes Code, 18 Pa.C.S. § 3125(a)(4),
a Tier III offense. Petitioner objected to the determination and requested a hearing;
PSP did not respond. Petitioner then filed the first original jurisdiction action before
this Court, arguing inter alia that he was denied his due process rights because PSP
2
The lengthy legislative history of SORNA II, including its predecessor laws and Revised
Subchapter H, is set forth in Commonwealth v. Torsilieri, 232 A.3d 567, 575-81 (Pa. 2020).
2
designated him as a Tier III sex offender without the opportunity to be heard; that
his criminal trial rights were violated by imposition of a punitive Tier III sexual
offender designation without a trial by jury where the beyond a reasonable doubt
standard would have applied; and that the federal offense was not comparable to
Section 3125(a)(4) because it had a lesser mens rea requirement. As noted above,
this Court ordered PSP to provide a hearing on the issue of whether the federal
offense was comparable to Section 3125(a)(4) of the Crimes Code. M.S. I, 212 A.3d
at 1148-49. We declined to address Petitioner’s constitutional arguments but stated
that he might raise them anew on a further appeal after issuance of an adjudication
by PSP. Id. at 1149 n.12. In compliance with this Court’s order, a hearing was
conducted before Hearing Officer Marc Moyer, but Petitioner was not called to
testify and no further facts concerning the offense were developed beyond the
original military record. On May 18, 2020, Hearing Officer Thomas A. Blackburn
issued a proposed report and order recommending that Petitioner’s appeal be denied
and that the determination of the Megan’s Law Section be affirmed.3 Petitioner filed
exceptions to the proposed report and order. On July 22, 2020, the Commissioner
ordered that the proposed report and order be adopted as the final order in the matter.
Petitioner then filed the instant petition for review, in which he raises
three issues: (1) whether PSP erred in concluding that his conviction under Article
120(b)(3)(A) was comparable to 18 Pa.C.S. § 3125(a)(4) or any other relevant Tier
III offense where the mens rea required for the military offense could be satisfied by
mere negligent behavior and such an offense would not constitute a Pennsylvania
crime; (2) whether PSP erred in finding that Petitioner was required to register as a
sex offender by military authorities pursuant to a repealed federal statute; and (3)
3
Petitioner notes that the substitution of hearing officers was never the subject of notice or
explanation but has not raised the subject as a matter for us to address.
3
whether Revised Subchapter H’s Tier III consequences can be constitutionally
imposed upon military offenders by PSP. We find the first issue dispositive.
Petitioner argues that the offense of which he was convicted is not
“comparable” because the military offense may be predicated upon and result in a
conviction based on a negligence theory: that Petitioner “reasonably should have
known” that the victim was incapable of consent. Indeed, that is precisely what the
military tribunal found here.4 Petitioner notes that no Pennsylvania offense could be
sustained upon such a showing and, thus, that no Pennsylvania offense is comparable
to the military offense. Petitioner also distinguishes the condition of the victim,
which must be proven to convict of Article 120(b)(3)(A), from the elements of
Section 3125(a)(4) of the Crimes Code. The former requires that the victim be
“incapable of consenting to the sexual act due to impairment by any drug, intoxicant
or other similar substance” and that the “accused knew or reasonably should have
known of the impairment” of the victim. 10 U.S.C. § 920(b)(3)(A). The latter
requires that the victim be unconscious; that the defendant knows that the victim is
unaware that the penetration is occurring; and that the defendant “knew the [victim]
was unconscious or unaware, or acted recklessly regarding the unconsciousness or
4
The military court made the following special finding:
A reasonable sober adult would have realized [the victim’s] mental
incompetence at this point and that she was going to remain an
“incompetent person” for a significant period of time.
Unfortunately, [Petitioner] was not a sober person. Therefore, he
had sexual intercourse with [the victim] only several minutes later,
knowing that only this short amount of time had passed. Any
residual mistake on [Petitioner’s] part regarding her competence to
consent was unreasonable.
(U.S. v. M.S., Gen. Ct. Martial U.S.C.G., Special Findings, Ex. J-3 ¶ 11, Reproduced Record at
129a.)
4
unawareness.” 18 Pa.C.S. § 3125(a)(4). Petitioner points out that in addition to the
fact that Article 120(b)(3)(A) does not necessarily require either knowing or reckless
conduct, it does not require that the victim was unconscious or unaware.
As noted, Revised Subchapter H requires registration for foreign
convictions only when those convictions are for “comparable” offenses. 42 Pa.C.S.
§ 9799.14(d)(13) (requiring Tier III registration for a conviction, inter alia, of “[a]
comparable military offense . . . under the laws of another jurisdiction”). Petitioner
contends that the difference between the negligence standard of the military
conviction here, and the “at least reckless” standard required for Tier III sexual
offenses, establishes that the military offense “casts a wider net” than the relevant
Pennsylvania offenses and requires the conclusion that this military conviction was
not comparable to a registrable offense. (Pet’r Br. at 15.)
This Court has recently specifically addressed the mens rea for this
precise military offense as compared to Section 3124.1 of the Crimes Code, 18
Pa.C.S. § 3124.1 (relating to sexual assault), in A.L. v. Pennsylvania State Police,
247 A.3d 120, 129 (Pa. Cmwlth. 2021), appeal granted, 260 A.3d 920 (Pa., No. 176
MAL 2021, filed Aug. 10, 2021).5 In an opinion authored by President Judge (now
Justice) Brobson, we held that the military offense’s “reasonably should have
known” standard is synonymous with a negligent mens rea. Id. As negligent
conduct was not encompassed within Section 3124.1 of the Crimes Code, which did
5
Our Supreme Court granted allocatur for consideration of the following issues: (1) whether
when comparing a military offense to a crimes code offense, PSP is required to ensure that all of
the elements of the crime, including the mens rea, are equivalent; and (2) whether PSP is required
to consider mens rea when comparing a military criminal offense to a crimes code offense, or
should the mens rea requirement only be considered a factor when making the determination.
Order Granting Petition for Allowance of Appeal, A.L., 260 A.3d 920 (Pa., No. 176 MAL 2021,
filed Aug.10, 2021).
5
not specifically state a mens rea, the offense required an intentional, knowing, or
reckless act. See Section 302 of the Crimes Code, 18 Pa.C.S. § 302(c). We thus
held that because negligent conduct was not included in Section 3124.1, it was not
comparable to a conviction under Section 3124.1. Our holding in A.L. is controlling
here.
Section 3125(a)(4) of the Crimes Code, 18 Pa.C.S. § 3125(a)(4), upon
which PSP’s order was predicated, provides in pertinent part that “a person who
engages in penetration, however slight, of the genitals or anus of a complainant with
a part of the person's body . . . commits aggravated indecent assault if: . . . (4) the
complainant is unconscious or the person knows that the complainant is unaware
that the penetration is occurring.” Applying the holding of A.L. to Section
3125(a)(4), we must similarly conclude that it is not comparable to Petitioner’s
military conviction, as it requires an intentional, knowing, or reckless mens rea and
that the complainant is unconscious or is unaware that penetration is occurring.6
6
We further note then-President Judge, now Justice, Brobson’s observation in A.L.:
This is not to say that a conviction under 10 U.S.C. §
920(b)(3)(A) could never be comparable to a conviction
under Section 3124.1 of the Crimes Code. There could be
circumstances where the military record is sufficiently specific for
PSP to establish the necessary comparability—i.e., circumstances
where the military record evidences that the court members
themselves found that the individual “knew” that the other person
was impaired, such that the other person could not legally consent
to the sexual act. Here, however, PSP could not, due to the lack of
record evidence, establish that the conviction was based on a
determination that [p]etitioner “knew,” as opposed to “should have
known,” that the airman was impaired at the time of the sexual act.
(Footnote continued on next page…)
6
Accordingly, the order of the Commissioner is reversed and the matter
is remanded to PSP with directions to remove Petitioner from the registry. In light
of our disposition of Petitioner’s appeal, his request for declaratory and injunctive
relief in our original jurisdiction is dismissed.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
A.L., 247 A.3d at 129 n.12. However, unlike A.L., the Special Findings rendered in the military
case here establish that Petitioner was convicted under Article 120(b)(3)(A) on a negligence
theory.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
M.S., :
Petitioner :
:
v. : No. 467 M.D. 2020
:
Pennsylvania State Police, :
Respondent :
ORDER
AND NOW, this 21st day of April, 2022, the order of the Commissioner
of the Pennsylvania State Police is REVERSED, and the matter is REMANDED
with directions to remove Petitioner from the sex offender registry. Petitioner’s
request for declaratory and injunctive relief in our original jurisdiction is
DISMISSED.
Jurisdiction is relinquished.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita