Commonwealth v. Lacombe, No. 35 MAP 2018

Decision Date21 July 2020
Docket NumberNo. 35 MAP 2018,No. 64 MAP 2018
Citation234 A.3d 602
Parties COMMONWEALTH of Pennsylvania, Appellant v. Claude LACOMBE, Appellee Commonwealth of Pennsylvania, Appellant v. Michael Witmayer, Appellee
CourtPennsylvania Supreme Court


In these consolidated appeals, the Commonwealth challenges orders of the Montgomery County Court of Common Pleas relieving appellees, Claude Lacombe and Michael Witmayer, of their duty to comply with Subchapter I of the Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.51 - 9799.75, based upon the court's finding Subchapter I, as retroactively applied to appellees, is a punitive and unconstitutional ex post facto law.2 For the reasons set forth below, we now hold this was error, Subchapter I is nonpunitive and does not violate the constitutional prohibition against ex post facto laws.

I. Procedural History of the Present Appeals
A. Claude Lacombe

In 1997, Lacombe was convicted of involuntary deviate sexual intercourse (IDSI), sexual assault, indecent assault, official oppression, and unsworn falsification to authorities and sentenced to a term of six to twenty years’ imprisonment. Lacombe was not found to be a sexually violent predator (SVP), but was required to comply with the then-applicable version of Megan's Law for a period of ten years upon his release from prison due to his IDSI conviction; Lacombe was released from prison in April of 2005 and his period of registration would have ended in April of 2015. In the meantime, however, the General Assembly enacted the first version of SORNA, under which Lacombe was designated as a Tier III offender and required to comply with the mandates of the statute for the remainder of his life.

Lacombe did not challenge the corresponding changes to his reporting obligations until February 20, 2018, after we decided Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017) (plurality) (SORNA requirements have punitive effect pursuant to Kennedy v. Mendoza-Martinez , 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963),3 and retroactive application thus constitutes ex post facto violation). Relying upon that decision, Lacombe filed in common pleas court a petition to terminate his sexual offender registration requirements. On June 1, 2018, the Commonwealth replied to Lacombe's petition, countering Lacombe's reliance upon Muniz , and noting Muniz addressed a former version of SORNA. By that point, the General Assembly had enacted Subchapter I, which is markedly different from the version of SORNA invalidated in Muniz . In response, Lacombe, still relying upon Muniz , maintained Subchapter I also is punitive and constitutionally infirm. On June 21, 2018, following oral argument, the court granted Lacombe's petition, finding Subchapter I to be a punitive and unconstitutional ex post facto law, and relieved him of any duty to comply with Subchapter I.

The Commonwealth filed a motion for reconsideration, wherein it maintained its position that Subchapter I is not punitive. The Commonwealth also argued for the first time that, if Subchapter I is punitive, then any challenge thereto had to be raised in a timely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 -46. Because Lacombe's challenge to Subchapter I was facially untimely for purposes of the PCRA, according to the Commonwealth, the court lacked jurisdiction to afford any relief. The court denied the petition for reconsideration, and the Commonwealth appealed the order directly to this Court. See 42 Pa.C.S. § 722(7) ("The Supreme Court shall have exclusive jurisdiction of appeals from final orders ... [in m]atters where the court of common pleas has held invalid as repugnant to the Constitution, treaties or laws of the United States, or to the Constitution of this Commonwealth, any treaty or law of the United States or any provision of the Constitution of, or of any statute of, this Commonwealth, or any provision of any home rule charter.").

B. Michael Witmayer

In 2014, Witmayer was convicted of IDSI with a child who is less than sixteen years of age, indecent assault of a child who is less than sixteen years of age, corruption of the morals of a minor, and endangering the welfare of children due to a pattern of sexual abuse which occurred between January of 2006 and December of 2012.

Before sentencing, the trial court held an SVP hearing, after which the court determined that the Commonwealth had failed to demonstrate Witmayer met the criteria to be deemed an SVP. Nonetheless, because the IDSI conviction constituted a Tier III offense under the original version of SORNA, the trial court informed Witmayer that he was obliged to register as a sexual offender and comply with SORNA's terms and conditions for the remainder of his life. The trial court then sentenced Witmayer to five and one-half to twenty years in prison. Witmayer appealed, the Superior Court affirmed his judgment of sentence, see Commonwealth v. Witmayer , 144 A.3d 939 (Pa. Super. 2016), and this Court denied review. See Commonwealth v. Witmayer , 641 Pa. 596, 169 A.3d 27 (2017) (per curiam ).

On January 17, 2018, Witmayer filed a timely, pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition. Therein, Witmayer contended that, because his offenses were completed before SORNA took effect, retroactive application of SORNA constituted an ex post facto violation, an argument based on Muniz . As it did in Lacombe's post-conviction proceedings, the Commonwealth alerted the PCRA court to the fact that, before Witmayer filed his amended petition, Subchapter I had been enacted and taken effect, replacing SORNA as the governing statutory scheme with which Witmayer had to comply. Thus, the Commonwealth posited, the constitutional deficiencies identified in Muniz effectively were remedied, and any claim relying upon Muniz was moot. The PCRA court directed Witmayer to file a response to the Commonwealth's position.

On September 20, 2018, Witmayer filed a second amended PCRA petition. In that filing, Witmayer highlighted the fact that none of the conduct for which he was convicted occurred after December 20, 2012, the date that determines whether Subchapter H or Subchapter I applies.4

Because his conduct occurred before that date, Whitmayer argued if the new scheme of Subchapter I applied to him, it had to apply retroactively. Witmayer maintained that, because the changes to SORNA effectuated by Subchapter I were minor, the scheme remained punitive in nature, and its retroactive application necessarily constituted an ex post facto violation. The PCRA court, which had already ruled Subchapter I is punitive and unconstitutional during Lacombe's proceedings, held a hearing and subsequently granted Witmayer's PCRA petition. The Commonwealth appealed directly to this Court. See 42 Pa.C.S. § 722(7).

C. Summary of the Arguments and Applicable Standards of Review

Briefly, the parties dispute whether Subchapter I is punitive and its retroactive application to Lacombe and Witmayer is thus unconstitutional under an ex post facto analysis, notwithstanding the significant differences between Subchapter I and the original SORNA statute at issue in Muniz . In the case of Lacombe, the parties also dispute whether the PCRA is the sole avenue for challenging sexual offender statutes and, if so, whether Lacombe was required to establish an exception to the PCRA's timeliness requirements.5 As we consider the parties’ arguments in greater detail below,6 "we recognize there is a general presumption that all lawfully enacted statutes are constitutional. In addition, as this case presents questions of law, our scope of review is plenary and we review the lower courts’ legal determinations de novo ." Muniz , 164 A.3d at 1195 (internal citation omitted).

II. Relevant Legal History

As we consider the constitutional validity of Subchapter I, we first review the original SORNA statute, the Muniz decision, and the new requirements of Subchapter I.

A. Original SORNA Statute

We provided a detailed description of the original SORNA statute in Muniz and we reproduce that description here:

The General Assembly enacted SORNA in response to the federal Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 42 U.S.C. §§ 16901 - 16991, which mandates that states impose on sex offenders certain tier-based registration and notification requirements in order to avoid being subject to a penalty, i.e. , the loss of federal grant funding. In re J.B. , 630 Pa. 408, 107 A.3d 1, 3 (2014). Accordingly, Pennsylvania's General Assembly sought to comply with this federal legislation by providing for "the expiration of prior registration requirements, commonly referred to as Megan's Law [III], 42 Pa.C.S. §§ 9791 - 9799.9, as of December 20, 2012, and for the effectiveness of SORNA on the same date." Id .
The purposes of SORNA, as stated by the General Assembly, are as follows:
(1) To bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006
(2) To require individuals convicted or adjudicated delinquent of certain sexual offenses to register with the Pennsylvania State Police and to otherwise comply with this subchapter if those individuals reside within this Commonwealth, intend to reside within this Commonwealth, attend an educational institution inside this Commonwealth or are employed or conduct volunteer work within this Commonwealth.
(3) To require individuals convicted or adjudicated delinquent of certain sexual offenses who fail to maintain a residence and are therefore homeless but can still be found within the borders of this Commonwealth to register with the Pennsylvania State Police.
(4) To require individuals who are currently subject to the criminal justice system of this Commonwealth as inmates, supervised with respect to probation or parole or registrants under this subchapter to register with the

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