Com. v. Killinger

• Citation: 888 A.2d 592
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. James R. KILLINGER, Appellee.
• Decision Date: 27 December 2005
• Court: United States State Supreme Court of Pennsylvania

888 A.2d 592

COMMONWEALTH of Pennsylvania, Appellant v. James R. KILLINGER, Appellee.

Supreme Court of Pennsylvania.

Submitted November 9, 2004.

Decided December 27, 2005.

Ray Frank Gricar, J. Karen Arnold, Bellefonte, for the Com. of PA, appellant.

David Crowley, Bellefonte, for James R. Killinger, appellee.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice BAER.

We are asked to revisit Pennsylvania's Registration of Sexual Offenders Act (hereinafter, "Megan's Law II" or the "Act")¹ to determine whether a subsection of the Act's sanction provision violates the due process clause of the Fourteenth Amendment to the United States Constitution.² In Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003) (Williams II), this Court held that the Act's registration, notification, and counseling requirements, applicable to sex offenders deemed "sexually violent predators" (SVP), passed constitutional muster.³ Conversely, in Williams II, we found unconstitutional the mandatory lifetime sanction imposed by the Act, 42 Pa.C.S. § 9795.2(d)(2) (repealed), upon SVP offenders who failed to comply with those provisions. In resolving this question, we expressly held for another day the question now before us: Whether the milder sanction imposed upon non-SVP offenders who fail to comply with the Act's registration provisions, 42 Pa.C.S. § 9795.2(d)(1) (repealed), is unconstitutional.⁴ We now hold these sanctions constitutional. Thus, we reverse the trial court's contrary ruling.⁵

Megan's Law II requires any offender convicted of a predicate offense, upon release, parole, or commencement of a sentence of intermediate punishment or probation, to register with the Pennsylvania State Police providing all "current or intended residences, all information concerning current or intended employment and all information concerning current or intended enrollment as a student." 42 Pa.C.S. § 9795.2(a)(1).⁶ Furthermore, offenders must inform the Pennsylvania State Police within ten days of any change of residence or establishment of an additional residence. Id. § 9795.2(a)(2)(i). Under the penalty provision applicable to the case at bar at the relevant time, any violation of the above provisions would be treated as a third-degree felony. Id. § 9795.2(d)(1). The statutory maximum penalty for a third-degree felony is seven years' incarceration. 18 Pa.C.S. § 1103(3).

The background of the case at bar is neither disputed nor complicated. Appellee, James Killinger, was convicted in June 2000 of Indecent Assault,⁷ a predicate crime under Megan's Law II. See 42 Pa.C.S. § 9795.1(a)(1). Thus, upon his release on parole, the Act required him to register with the Pennsylvania State Police, id. § 9795.2(a)(1), and thereafter to verify with the state police any change of registered address within ten days, id. § 9795.2(a)(2).

Immediately upon his release in February 2002, Appellee reported his address as 133 South Allegheny Street, Bellefonte, Pennsylvania. On September 23, 2002, he notified his probation officer, Jeremy Packer, of his move to 321 Bishop Street in Bellefonte. On January 28, 2003, Appellee reported to Officer Packer his move to another Bellefonte address, 401-33 Governor's Park Road, and indicated that he had lived there since November 2002.

Officer Packer contacted Trooper W.F. Sasserman of the Pennsylvania State Police to report his concern that Appellee might have violated the Act. Trooper Sasserman consulted the Megan's Law registry and discovered that Appellee had reported neither of the above-mentioned address changes to the Pennsylvania State Police. Police records still reflected Appellee's immediate post-release address on South Allegheny Street.⁸

On February 24, 2003, Trooper Sasserman filed a criminal complaint charging Appellee with two violations of § 9795.2(a)(2)(i).⁹ In July 2003, following a preliminary hearing before a District Justice, Appellee was bound over to the Court of Common Pleas of Centre County, where the Commonwealth filed a criminal information charging Appellee with two counts of violating § 9795.2(a)(2)(i), a third-degree felony pursuant to § 9795.2(d)(1).

Thereafter, Appellee filed a pre-trial motion seeking dismissal of the charges on the basis that the penalty provision stated in § 9795.2(d)(1) is unconstitutional. The trial court agreed with Appellee and dismissed the charges, finding the penalty provision unconstitutional as a logical consequence of this Court's decision in Williams II. The court found that, "[a]lthough the penalty provisions were enacted to enforce remedial legislation, they constitute criminal punishment as they subject an offender to increased incarceration, a recognized punitive measure." Commonwealth v. Killinger, 64 Pa. D. & C.4th 369, 380 (Com.Pl.Centre Co.2003). Accordingly, it ruled that our holding in Williams II implicitly invalidated the sanctions for non-compliance applicable to non-SVP offenders as well as the mandatory lifetime sanctions for SVP offenders expressly invalidated in that case. The Commonwealth sought direct appeal to this Court.¹⁰ We scheduled oral argument, but prior to argument the parties opted to submit this case on the briefs.

As previously noted, in Williams II we held that the mandatory lifetime sanction of probation (at a minimum) pursuant to § 9795.2(d)(2) for an SVP offender who failed to comply with the Act's notification, registration, and counseling provisions was unconstitutionally punitive. We so held because a necessary predicate determination to subject an offender to the enhanced punishment set forth in § 9795.2(d)(2) is his SVP status, a judicial determination conducted without a jury and subject to a "clear and convincing" standard of proof, 42 Pa.C.S. § 9795.4(e)(3),¹¹ a less rigorous standard than the reasonable doubt standard applicable to prosecution for substantive criminal offenses. Now we must consider whether the lesser sanctions imposed on a non-SVP offender who fails to comply with the registration provisions of the Act also offends the constitution. Accordingly, we begin our analysis by reprising our holding in Williams II.

In Williams II, we evaluated, inter alia, a challenge to the constitutionality of the registration, notification, and counseling provisions of Megan's Law II. Since our decision in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999) (Williams I), we noted, the United States Supreme Court had held that "any judicial finding which results in punishment beyond a statutory maximum must be submitted to a jury and proven beyond a reasonable doubt." Williams II, 832 A.2d at 968; see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We also noted that, under Megan's Law II, a determination of SVP status under 42 Pa.C.S. § 9795.4(e)(3) sufficient to incur SVP registration, notification, and counseling requirements with the concomitant sanctions for non-compliance was a matter to be determined by a judge under a "clear and convincing" standard of proof. Williams II, 832 A.2d at 968. Thus, if the sanctions visited upon an SVP offender for failure to comply with the SVP-specific registration, notification, and counseling provisions of the Act constituted criminal punishment, Apprendi would require their invalidation. Accordingly, the case required us to determine whether those sanctions constituted criminal punishment. Williams II, 832 A.2d at 968-69.

In assessing the character of the provisions, we reviewed the Artway/Verniero test articulated by the United States Court of Appeals for the Third Circuit. See Artway v. Attorney General of New Jersey, 81 F.3d 1235 (3d Cir.1996); E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997). This test calls upon a court to consider three elements in assessing the penal character of a provision: (1) the legislature's subjective intent in enacting the provision; (2) the objective intent behind the provision; and (3) the challenged provision's effect. Williams II, 832 A.2d at 970. The first element, we noted, requires consideration of whether the legislature intended to punish past conduct or instead sought to remedy a social problem. Id. The second element focuses on how comparable provisions have been viewed historically, and considers whether

(a) the measure's adverse effects cannot be explained solely by its remedial purpose; (b) similar measures have historically been considered punitive; or, (c) if the legislature intended the measure to serve a mixture of deterrent and salutary purposes, the deterrent purpose is an unnecessary complement to, or overwhelms, the measure's statutory operation, or the measure operates in an unusual manner or is inconsistent with its historically mixed purposes.

Id. at 970-71. Finally, Artway/Verniero's third inquiry considers whether the "sting of a measure is so harsh as a matter of degree that it constitutes punishment." Id. at 971 (quoting Artway, 81 F.3d at 1266). This test, we noted, overlaps substantially with the two-prong test utilized by the United States Supreme Court in resolving similar inquiries. Under that test, "the Court first inquires whether the legislature's intent was to impose punishment, and, if not, whether the statutory scheme is nonetheless so punitive either in purpose or effect as to negate the legislature's non-punitive intent." Id. at 971 (citing, inter alia, Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986)). The Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), we observed, reduced the objective "purpose and effect" inquiry to the following factors:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only upon a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether...