935 A.2d 865 (Pa. 2007), Commonwealth v. Lee

Citation:935 A.2d 865
Opinion Judge:OPINION Justice BAER.
Party Name:COMMONWEALTH of Pennsylvania, Appellant v. Marion LEE, Appellee. Commonwealth of Pennsylvania, Appellant v. Alexander Drain, Appellee.
Attorney:Hugh J. Burns, Jr., Philadelphia Dist. Attorney's Office, Peter Carr, for the Com. of PA, appellant., Karl Baker, Defender Ass'n of Philadelphia, for Marion Lee and Alexander Drain, appellees.
Case Date:November 21, 2007
Court:Supreme Court of Pennsylvania
 
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935 A.2d 865 (Pa. 2007)

COMMONWEALTH of Pennsylvania, Appellant

v.

Marion LEE, Appellee.

Commonwealth of Pennsylvania, Appellant

v.

Alexander Drain, Appellee.

Supreme Court of Pennsylvania

Nov. 21, 2007

Argued Oct. 17, 2006.

Appeal from the Order entered on May 21, 2004 in the Court of Common Pleas, Criminal Division of Philadelphia County concerning constitutionality of Megan's Law cases at Nos. 0308-1001, 0305-0162 and 0305-0198

Appeal from the Order entered on April 11, 2005 by the Philadelphia Court of Common Pleas Granting Defendant's Challenge to the Constitutionality of Megan's Law at No. 0302-0398 1/1.

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Hugh J. Burns, Jr., Philadelphia Dist. Attorney's Office, Peter Carr, for the Com. of PA, appellant.

Karl Baker, Defender Ass'n of Philadelphia, for Marion Lee and Alexander Drain, appellees.

BEFORE: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

BAER, Justice

I. Introduction

In Commonwealth v. Gomer Williams, 574 Pa. 487, 832 A.2d 962 (2003)(hereinafter G. Williams), this Court considered and rejected several constitutional challenges to Pennsylvania's Registration of Sexual Offenders Act, Act of May 10, 2000, P.L. 74, No. 18, as amended, 42 Pa.C.S. §§ 9791, et seq.(Megan's Law II).1 Specifically, we held that the registration, notification,

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and counseling (RNC) requirements that attach, under Megan's Law II, to offenders deemed Sexually Violent Predators (SVP) are not punitive.2 Because we found these provisions to be non-punitive, we held that the full panoply of due process protections that attach where punishment is in the offing, see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 3 are not constitutionally required. Therefore, we found no constitutional flaw with the prescribed SVP assessment procedure, which requires only that the prosecution demonstrate to the court (rather than a jury) by clear and convincing evidence (rather than proof beyond a reasonable doubt) that the offender suffers a "mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offense." 42 Pa.C.S. § 9792; see G. Williams, 832 A.2d at 984; cf. Commonwealth v. Killinger, 585 Pa. 92, 888 A.2d 592 (2005)(holding that the registration and community notification provisions applicable to non-SVP offenders also do not implicate Apprendi, because those provisions attach automatically upon conviction of a predicate offense and require no judicial factfinding by a diminished standard of proof).

In G. Williams, however, this Court expressed reservations in obiter dictum4regarding the lifetime duration of the registration, notification, and counseling requirements imposed on SVP.

[O]ne of the most troubling aspects of the statute is that the period of registration, notification, and counseling lasts for the sexually violent predator's entire lifetime. A reasonable argument could be made that, to avoid excessiveness, the Legislature was required to provide some means for a sexually violent predator to invoke judicial review in an effort to demonstrate that he no longer poses a substantial risk to the community.

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832 A.2d at 982-83 (emphasis added). No record regarding these challenges had been developed in the lower court, however, so we remanded the case, directing the trial court to convene an evidentiary hearing and determine in the first instance whether the lack of judicial avenue for reassessment or the vagueness of the criteria underlying the SVP designation were unconstitutional, and to review appellant's other unresolved constitutional challenges as necessary. Id. at 986 & n.27.5 6

Presently, we have before us separate decisions by two judges on the Court of Common Pleas of Philadelphia County, both finding unconstitutional the lifetime RNC provisions that apply to SVPs pursuant to Megan's Law. In Commonwealth v. Lee, the Honorable Carolyn Engel Temin ruled "that because Megan's Law II does not contain a provision allowing for reassessment of a defendant found to be a sexually violent predator at any time after sentence is imposed, the registration, notification and counseling sanctions of the statute are overbroad and violative of due process rights." Lee Tr. Ct. Op., 7/15/04, at 7. In Commonwealth v. Drain, the Honorable Anthony J. DeFino ruled that the failure to provide a mechanism for post-release reassessment of SVP status rendered the RNC provisions of Megan's Law II with respect to SVPs excessive and therefore punitive in nature. Thus, Judge DeFino deemed the absence of the due process protections for defendants facing punishment violative of the United States Supreme Court's decision in Apprendi.

Because both courts deemed Megan's Law II repugnant to the United States Constitution, at least in part, 7 this Court has direct appellate jurisdiction pursuant to 42 Pa.C.S. § 722(7).8 We begin by reviewing each of these decisions separately, although we analyze and reverse both in a unitary discussion.

A. Commonwealth v. Lee (38 EAP 2004)

On June 18, 2003, Appellee Marion Lee appeared before Judge Temin and pleaded

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guilty to charges of rape, attempted rape, 9 attempted involuntary deviate sexual intercourse, 10 two counts of possessing instruments of crime, 11 and two counts of unlawful restraint12 arising from two separate bills of information. On October 15, 2003, Lee again appeared before Judge Temin and pleaded guilty to additional charges of rape, simple assault, 13 and possession of instruments of crime, arising from a third bill of information. Per the requirements of Megan's Law II, 42 Pa.C.S. §§ 9795.4(b), due to Lee's conviction of predicate offenses enumerated at § 9795.1(a)-(b), 14 the court deferred sentencing pending an assessment by the Sexual Offender's Assessment Board (SOAB). On January 10, 2004, the SOAB, relying on the report of Dr. Barry Zakireh, determined that Lee satisfied the criteria for designation as an SVP, see §§ 9794(c), 9795.4(b), and the court so designated him.

Following his SVP designation but before sentencing, Lee filed a Motion for Extraordinary Relief, contending, inter alia, that the SVP provisions of Megan's Law were unconstitutionally overbroad and excessively punitive relative to the remedial purpose of Megan's Law II. The court convened a hearing on April 16, 2004, at which it took testimony from defense expert Dr. Timothy Foley and Commonwealth expert Dr. Zakireh, the same SOAB member who had determined in the first instance that Lee satisfied the SVP criteria. Both physicians, the court noted, referred to a particular study purporting to find that the risk of sexual recidivism decreases in men as they age, 15 and both conceded, according to the court, "the larger the interval between the assessment and the release date of the offender the . . . [more the] accuracy of the assessment decreases." Lee Tr. Ct. Op., 7/15/04, at 6. The court thus concluded that, "[w]ith the recognition that . . . Lee is to be sentenced for a jail term of up to 20 years, this Court [is] convinced that Dr. Zakireh's assessment of Defendant Lee will, by his own admission, be inaccurate at the time that Lee is released from prison." Id. at 6-7.

Based on these findings, the court concluded that,

because Megan's Law II does not contain a provision allowing for reassessment of a defendant found to be a sexually violent predator at any time after sentence is imposed, the registration, notification and counseling sanctions of the statute are overbroad16 and violative

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of due process rights. According to Dr. Zakireh's own testimony, his assessment of . . . Lee at this point in time would be inaccurate at the time that Lee is released from prison. Further, there was total agreement of the experts that the danger of recidivism decreases over the life of an individual[.] Given that the Supreme Court has found that the purpose of the statute is to identify the potential recidivist at the time of his release from prison and entry into the community, the failure of the statute to allow for reassessment as the defendant ages and to provide for reassessment of Defendant Lee's actual risk of recidivism at the time he is released is particularly fatal to the reliability of the assessment procedures in the statute.

Lee Tr. Ct. Op., 7/15/04, at 7. Thus, finding the SVP provisions of Megan's Law II constitutionally "over broad [sic] and excessive," the court granted Lee's Motion for Extraordinary Relief. Id. at 8.

B. Commonwealth v. Drain (15 EAP 2005)

On January 23, 2004, a jury convicted Appellee Alexander Drain of multiple counts of rape and related offenses, triggering the SVP provisions of Megan's Law II. Before the SVP assessment or his sentencing could occur, Drain raised a challenge to the constitutionality of the RNC provisions that attach, under Megan's Law II, to SVPs. Judge DeFino heard argument from the parties, and accepted briefs and exhibits pressing their respective points. Considering the case in light of the concerns we expressed in G. Williams, the court nonetheless concluded, by order dated December 10, 2004, that the provisions in question were constitutional.

The court rejected the "vagueness" challenges regarding the statutory definition for "sexually violent predator." Regarding the absence of a judicial reassessment provision, the court noted that, on November 24, 2004, Governor Rendell signed into law amendments to Megan's Law (Megan's Law III), including a provision granting SVPs a limited opportunity to petition for reassessment, no sooner than twenty years after the offender's release from incarceration.17 The court ruled, in effect, that this

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amendment mooted any...

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