C.M. v. Pa. State Police

• Decision Date: 28 January 2022
• Docket Number: 47 M.D. 2021
• Citation: 269 A.3d 1280
• Parties: C.M., Petitioner v. PENNSYLVANIA STATE POLICE, Respondent
• Court: Pennsylvania Commonwealth Court

269 A.3d 1280

C.M., Petitioner

v.PENNSYLVANIA STATE POLICE, Respondent

No. 47 M.D. 2021

Commonwealth Court of Pennsylvania.

Argued December 15, 2021

Decided January 28, 2022

Brian McNeil, Appellate Public Defender, York, for Petitioner.

Jeffrey Mozdziock, Deputy Attorney General, Philadelphia, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge,¹ HONORABLE MARY HANNAH LEAVITT, Judge (P.),² HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE FIZZANO CANNON

Before this Court, in our original jurisdiction, is an application for summary relief by Petitioner, C.M.,³ seeking removal from Pennsylvania's sex offender registry maintained by the Pennsylvania State Police (PSP) and exclusion from any future registration requirement under the Sexual Offender Registration and Notification Act (SORNA II).⁴ For the reasons discussed herein, C.M.’s application for summary relief is denied.

I. Background

C.M. participated in a rape and murder in 1987. See Pet. for Review, ¶ 4; Com. v. [C.M.] , 245 A.3d 1121, 1124 (Pa. Super. 2021) ( C.M. I ), appeal denied , (2021), 2021 WL 5810455 (Table) ( C.M. II ). In 1995,⁵ he entered a plea agreement in which he pleaded guilty to rape, criminal conspiracy to commit rape, and third-degree murder. Pet. for Review, ¶ 4. He received a sentence of 15 to 30 years’ incarceration. Id. He was released from prison in late 2020. See id. , ¶ 10.

According to C.M., the PSP informed him upon his release that he was required to register for life as a convicted sex offender under Subchapter I of SORNA II, 42 Pa.C.S. § 9799.52. He then commenced this action seeking removal from the sex offender registry and exclusion from any future registration requirement.⁶

C.M. sought a preliminary injunction seeking removal of his information from the sex offender registry pending this Court's decision in the case. On May 6, 2021, this Court issued a single-judge opinion and order denying the injunction. C.M. v. Pa. State Police (Pa. Cmwlth., No. 47 M.D. 2021, filed May 6, 2021) (C.M. III ).

This Court found C.M. failed to show either irreparable harm from the presence of his information on the registry or a likelihood of prevailing on the merits of his claim. Id. , slip op. at 5-6.

C.M. then filed the instant application for summary relief.⁷

II. Issues

C.M. challenges the application of Subchapter I of SORNA II to him. He committed his crimes in 1987 and was not released from prison until late 2020. He argues that he was first "required to register" under Megan's Law II "upon release" from prison in 2020. Pet. for Review, ¶ 22. Subchapter I, however, applies only to offenders who were "required to register ... on or after April 22, 1996, but before December 20, 2012." 42 Pa.C.S. § 9799.52. C.M. reasons that as he was incarcerated throughout that time period, he was not "required to register" under Megan's Law II because he had not been released. Pet. for Review, ¶ 21. Therefore, he contends he is not subject to any registration requirement under the plain language of Subchapter I of SORNA II. C.M. argues that in Smolsky v. Blocker (Pa. Cmwlth., No. 254 M.D. 2018, filed May 20, 2019), 2019 Pa. Commw. Unpub. LEXIS 293 (unreported),⁸ this Court construed the statutory language at issue in exactly the way C.M. seeks to have it construed in this case. In addition, C.M. asserts that the legislative findings and purpose behind the statutory framework creating the sex offender registry are inapplicable, as is any suggestion that C.M.’s reading of the statute yields an absurd result, because the language of the statute is clear and this Court should not ignore the letter of the law in favor of its spirit.

In response, the PSP observes that Megan's Law II, which became effective in 2000, while C.M. was incarcerated, did not exclude incarcerated persons from the lifetime registration requirement. Br. of Respondent at 5-6 (quoting former 42 Pa.C.S. § 9795.1 ). The PSP asserts that the obligation of lifetime registration arose on the effective date of Megan's Law II, even though the duty to begin providing residence information to the registry began only upon release because until that time, an incarcerated person's address – i.e. , in prison – was known. Br. of Respondent at 5-7 (citing former 42 Pa.C.S. § 9795.2 ).

III. Discussion

Subchapter I of SORNA II provides, in pertinent part: "This subchapter shall apply to individuals who were ... required to register with the [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). Here, C.M. was convicted in 1995 of sex offenses committed in 1987, but he was incarcerated at the time Megan's Law II was enacted and was, therefore, subject to its provisions. See former 42 Pa.C.S. § 9795.1 (imposing registration requirement on individuals "convicted" of listed crimes and not excepting those already incarcerated for such crimes); Dunyan v. Pa. State Police (Pa. Cmwlth., No. 75 M.D. 2014, filed Dec. 17, 2014), slip op. at 4-5, 2014 Pa. Commw. Unpub. LEXIS 722, at *4-5 (unreported) (upholding application of lifetime registration requirements first applied under Megan's Law II to individual convicted before its enactment but still incarcerated on its effective date); accord Com. v. Gaffney , 557 Pa. 327, 733 A.2d 616, 622 (1999) (upholding application of registration requirements of Section 9793 of Megan's Law I,⁹ formerly 42 Pa.C.S. § 9793, to individual convicted of offense committed before its enactment).

Before this Court, C.M. does not assert any challenge to the retroactive application of Subchapter I as a constitutional violation.¹⁰ He raises solely an issue of pure statutory construction. As explained above, he contends that he was not "required to register" under a former statute, Megan's Law II, which was in effect in various forms from 2000 until 2012, because he was incarcerated throughout that period and was not released from prison, thus triggering his registration requirement, until 2020. Subchapter I of SORNA applies to offenders who were "required to register ... on or after April 22, 1996, but before December 20, 2012." 42 Pa.C.S. § 9799.52(2). C.M. reasons that he was not "required to register" during that period because he had not been released. Pet. for Review, ¶¶ 20-21. In other words, because C.M. was not released until 2020, he insists he was not required to register before December 20, 2012, and is, accordingly, not subject to registration under SORNA II. Id. We disagree.

Section 9795.1 of Megan's Law II was titled "Registration." Former 42 Pa.C.S. § 9795.1. Section 9795.1(b)(2) of Megan's Law II imposed a lifetime registration requirement on individuals convicted of listed offenses, including rape, one of the crimes of which C.M. was convicted. Formerly 42 Pa.C.S. § 9795.1(b)(2). As the PSP observes, nothing in that provision excepted already-incarcerated individuals from its application. See Br. of Respondent at 5-6 (quoting former 42 Pa.C.S. § 9795.1 ); Dunyan , slip op. at 4-5.

The point in time at which registration would begin, however, was contained in a separate section of Megan's Law II, Section 9795.2, titled "Registration Procedures and Applicability." Formerly 42 Pa.C.S. § 9795.2. Section 9795.2(a)(1) provided: "Offenders and sexually violent predators shall be required to register all current residences or intended residences with the [PSP] upon release from incarceration, upon parole from a state or county correctional institution, or upon the commencement of a sentence of intermediate punishment^{[11 ]} or probation." Formerly 42 Pa.C.S. § 9795.2(a)(1) (2000).

Reading Sections 9795.1 and 9795.2 together, it is apparent that the obligation to register arose under Section 9795.1 upon the enactment of Megan's Law II with regard to individuals incarcerated for sex offenses on that date. Therefore, we agree with the PSP that C.M., who was incarcerated on the effective date of Megan's Law II, became obligated for lifetime registration on that date .

By contrast, Section 9795.2, which expressly related only to registration procedures , merely provided the timing and mechanism of when and how performance of the registration obligation would begin. Thus, only C.M.’s duty to begin performing that obligation, not the obligation itself, arose upon his subsequent release. The date of his release was irrelevant to his registration obligation.

As discussed above, Subchapter I of SORNA II applies to individuals who were "required to register with the [PSP] under a former sexual offender registration law ... 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). C.M. incurred a lifetime registration requirement upon the effective date of Megan's Law II in 2000, i.e. , after April 22, 1996, but before December 20, 2012. As a lifetime requirement, it has not expired. Accordingly, C.M. must register with the PSP for his lifetime.

C.M.’s reliance on Smolsky is unavailing. In Smolsky , this Court issued an unreported panel decision addressing the same issue in analogous circumstances. This Court found the petitioner was entitled to have his name removed from the sex offender registry and was not subject to future registration requirements. Id. , slip op. at 5-6. C.M. therefore relies heavily on Smolsky as persuasive. However, this Court expressly distinguished Smolsky in its single-judge opinion in this case. The Court observed that the PSP did not raise in Smolsky the opposing arguments that it raises here, and further, that Smolsky is not precedential. C.M. III , slip op. at 5 n.3. A review of the Smolsky opinion reveals that this Court expressly directed supplemental briefing on the applicability of the...