Commonwealth v. Derhammer

• Decision Date: 22 November 2017
• Docket Number: No. 121 MAP 2016,121 MAP 2016
• Citation: 173 A.3d 723
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joseph DERHAMMER, Appellant
• Court: Pennsylvania Supreme Court

173 A.3d 723

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph DERHAMMER, Appellant

No. 121 MAP 2016

Supreme Court of Pennsylvania.

Argued: September 13, 2017

Decided: November 22, 2017

Janan Marie Tallo, Esq., Luzerne County Conflict Counsel, for Appellant.

James L. McMonagle, Esq., Stefanie Joy Salavantis, Esq., Luzerne County District Attorney's Office, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

The issue raised in this discretionary appeal is whether the Commonwealth may punish an individual for conduct which was made a crime by an amended statute where the original version of the statute has been declared unconstitutional in its entirety.

In 1995, Appellant pled guilty to involuntary deviate sexual intercourse ("IDSI"), see 18 Pa.C.S. § 3123, and was sentenced to five-to-ten years' incarceration. Pursuant to Megan's Law, he was required, upon release from prison, to register his address with the Pennsylvania State Police (the "state police"). He was also obligated to notify the state police of all subsequent address changes for the remainder of his life. Any failure to provide timely notification as required by law would constitute a criminal offense.

While subject to these obligations, Appellant moved to a new residence on April 1, 2009, and reported his new address to the state police on April 6. Based on having waited five days, Appellant was charged by information with the second-degree felony of failing to register as a sex offender under Section 4915(a)(1) of the Crimes Code, which was part of Megan's Law III. See 18 Pa.C.S. § 4915(a)(1) (expired Dec. 20, 2012). When Megan's Law III was originally enacted in 2004, offenders were given ten days to report an address change to the state police. See Act of Nov. 24, 2004, P.L. 1243, No. 152 ("Act 2004–152"), at § 8. However, a 2006 legislative change reduced that period to 48 hours. See Act of Nov. 29, 2006, P.L. 1567, No. 178, § 7 ("Act 2006–178"). Thus, the 48–hour period was in effect when Appellant relocated on April 1, 2009. See 42 Pa.C.S. § 9795.2(a)(2)(i) (expired Dec. 20, 2012).

In 2011, Appellant was convicted at a bench trial of failing to timely register his new address and sentenced to a term of imprisonment. After his direct appeal rights were restored nunc pro tunc, the Superior Court awarded a new trial due to the trial court's failure to conduct a jury-waiver colloquy. See Commonwealth v. Derhammer, No. 2057 MDA 2012, slip op., 2014 WL 11017309 (Pa. Super. Jan. 7, 2014).

In the interim, Section 4915 of the Crimes Code expired and was replaced with Section 4915.1, as part of Megan's Law IV—more commonly known as the Sexual Offender Registration and Notification Act ("SORNA").¹ SORNA went into effect on December 20, 2012, and provided for the expiration of Megan's Law III at that time. See Act of Dec. 20, 2011, P.L. 446, No. 111, §§ 12, 18 (as amended 42 Pa.C.S. §§ 9799.10 – 9799.41 ). The following year, this Court announced its decision in Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (2013), finding that Act 2004–152 amounted to omnibus legislation in violation of the Constitution's single-subject rule. See PA. CONST. art. III, § 3 (generally prohibiting multi-subject bills). Thus, Neiman invalidated Act 2004–152—which included Megan's Law III—in its entirety. See Neiman, 624 Pa. at 74, 84 A.3d at 615.

By way of further background, Pennsylvania first enacted Megan's Law in 1995. See Act of Oct. 24, 1995, P.L. 1079, No. 24 (Spec. Sess. No. 1) (as amended 42 Pa.C.S. §§ 9791 – 9799.6 ) ("Megan's Law I").² The General Assembly reposited Megan's Law in Title 42 of Pennsylvania's Consolidated Statutes at Subchapter H of the Sentencing Code. Megan's Law I was invalidated insofar as it pertained to the process for adjudicating an offender as a sexually violent predator. See Commonwealth v. Williams, 557 Pa. 285, 312–13 & n.18, 733 A.2d 593, 608 & n.18 (1999) (" Williams I"). The General Assembly then passed Megan's Law II, see Act of May 10, 2000, P.L. 74, No. 18 (as amended, 42 Pa.C.S. §§ 9791 – 9799.7 ), which cured the constitutional defect identified in Williams I. See Commonwealth v. Williams, 574 Pa. 487, 524–25, 832 A.2d 962, 984 (2003) (" Williams II").

Megan's Law II also provided, among other things, that offenders convicted of IDSI were subject to lifetime registration. See 42 Pa.C.S. § 9795.1(b)(2) (2000). Such persons were given ten days to notify the state police of address changes. See id. § 9795.2(a)(2) (2000). Any failure to make timely notification constituted a first-degree felony, subjecting the registrant to a mandatory minimum sentence of probation for life and to a discretionary sentence of up to life in prison. Id. § 9795.2(d)(2) (2000).³

Notably, the penalty provision was contained in the Sentencing Code together with the rest of Megan's Law II. Under Megan's Law III, however, it was moved to the Crimes Code.⁴ The Sentencing Code provision was reduced to simply indicating that failure to register as required would subject the registrant to prosecution under the Crimes Code. See 42 Pa.C.S. § 9795.2(d) (2004) (referring the reader to the newly-added 18 Pa.C.S. § 4915 ). For its part, the Crimes Code provision added a scienter element, specifying that an individual subject to registration commits an offense if he "knowingly" fails to register with the state police as required. 18 Pa.C.S. § 4915(a) (2004). In terms of grading for lifetime registrants, Section 4915 reflected that a first violation of the substantive offense would constitute a second-degree misdemeanor, a second violation would be a first-degree misdemeanor, and any subsequent violation would comprise a third-degree felony. See id.§ 4915(c)(1)–(3).⁵

As noted, Megan's Law III expired and was replaced by SORNA by the time Neiman's holding was announced. While making substantive modifications to Megan's Law, SORNA also sought to continue in force the registration requirements in relation to Megan's Law III registrants. See 42 Pa.C.S. § 9799.13(3) (2012). SORNA established a three-tiered system of classifying sexual offenses—Tier III being the most serious category, see 42 Pa.C.S. § 9799.14(a) —and, as applied to Appellant, designated IDSI as a Tier III offense, see id.§ 9799.14(d)(4). This meant that Appellant's lifetime registration period remained unchanged. See id.§ 9799.15(a)(3) (providing that Tier III offenders "shall register for the life of the individual").

However, Neiman's broad invalidation of Act 2004–152—which, again, included Megan's Law III in its entirety—would, without remedial legislation, call into question whether someone in Appellant's position would be an existing registrant as of SORNA's effective date. Thus, the Neiman Court stayed its decision for 90 days to allow for legislative action. In March 2014, shortly before the stay expired, the General Assembly enacted Act 19 of 2014, see Act of Mar. 14, 2014, No. 19, P.L. 41 ("Act 2014–19"), which modified the wording of Section 9799.13(3) to clarify that persons who were required to register with the state police at any time before SORNA's effective date, and whose registration period had not expired, were still obligated to register with the state police as provided in Section 9799.15—in Appellant's case, for the remainder of his life.

As for Crimes Code Section 4915, although it had expired at the time of the Neiman decision, any application of its terms was potentially affected by Neiman's invalidation of Act 2004–152, which, as noted, had created the provision. Nevertheless, Act 2014–19 did not re-enact Megan's Law III's penalty provision or amend its SORNA replacement, 18 Pa.C.S. § 4915.1.⁶

In light of these developments, Appellant filed a motion to dismiss on the basis that, per Neiman, the Crimes Code provision under which he was charged was unconstitutional. The motion was denied in September 2014, and Appellant was found guilty at his retrial based on the record of his first trial. He was sentenced to four-to-eight years in prison. On appeal, he argued that his conviction was null and void since the crime of which he was found guilty was defined by an unconstitutional statute.

A three-judge panel of the Superior Court affirmed in a published decision. See Commonwealth v. Derhammer, 134 A.3d 1066 (Pa. Super. 2016). Although it acknowledged that unconstitutional statutes are void ab initio, it stated that failing to timely register a new address had never been decriminalized, because SORNA enacted Crimes Code Section 4915.1 as a replacement for Section 4915. See id. at 1076–77. Still, the court noted, Appellant violated neither Megan's Law II, which gave an offender ten days to register, nor Section 4915.1, which gives an offender three business days. As to the latter provision, the court recognized that April 4 and 5 of 2009 were a weekend, meaning that April 6 was three business days after April 1. See id. at 1077.

The intermediate court instead focused its analysis on Act 2006–178, which it described as distinct from the unconstitutional Act 2004–152. The court developed that, despite a legislative intent to amend Megan's Law III, Act 2006–178 effectively modified Megan's Law II. The court relied for this position on Commonwealth ex rel. Schnader v. Great American Indemnity Co., 312 Pa. 183, 167 A. 793 (1933), which expressed that an amendatory enactment's validity does not depend on the constitutionality of the statute which it revises because "every word of the amended statute, including that quoted from the original statute, is the language of the Legislature which passed the amended act in those words." Id. at 194, 167 A. at 798, quoted in Derhammer, 134 A.3d at 1078. The Superior Court added that, in Act 2006–178, the General Assembly expressly stated that it sought to enact versions of Megan's Law and Jessica's Law in Pennsylvania. See Derhammer, 134 A.3d at 1078.⁷ Thus, in the court's view, Megan's Law II, as amended by Act 2...