Dougherty v. Pa. State Police of Pa.

• Decision Date: 27 April 2016
• Docket Number: No. 537 M.D. 2014,537 M.D. 2014
• Citation: 138 A.3d 152
• Parties: Joseph J. DOUGHERTY, Petitioner v. The PENNSYLVANIA STATE POLICE OF the COMMONWEALTH of Pennsylvania, Respondent.
• Court: Pennsylvania Commonwealth Court

138 A.3d 152

Joseph J. DOUGHERTY, Petitioner

v.The PENNSYLVANIA STATE POLICE OF the COMMONWEALTH of Pennsylvania, Respondent.

No. 537 M.D. 2014

Commonwealth Court of Pennsylvania.

Argued Sept. 16, 2015.

Decided April 27, 2016.

Joseph A. Ratasiewicz, Media, for petitioner.

Keli M. Neary, Deputy Attorney General, Harrisburg, for respondent.

BEFORE: DAN PELLEGRINI, President Judge¹ , and BONNIE BRIGANCE LEADBETTER, Judge² , and RENÉE COHN JUBELIRER, Judge, and MARY HANNAH LEAVITT, Judge³ , and P. KEVIN BROBSON, Judge, and ANNE E. COVEY, Judge, and MICHAEL H. WOJCIK, Judge.⁴

OPINION BY Judge RENÉE COHN JUBELIRER.⁵

Before this Court in our original jurisdiction are the Preliminary Objections (POs) in the nature of a demurrer of the Pennsylvania State Police (PSP) to Joseph J. Dougherty's (Petitioner) “Amended Petition for Review in the Nature of a Writ of Mandamus Seeking to Compel the [PSP] to Change Petitioner's Sexual Offender Registration Status in Accordance with the Law Addressed to the Court's Original Jurisdiction” (Petition for Review). At oral argument, Petitioner made an oral motion to stay the disposition of the POs so that he could provide the PSP with his sentencing orders, and the PSP could determine whether relief was appropriate based thereon. We granted said motion on January 12, 2016. Petitioner subsequently provided the PSP with documents related to his sentencing, and the PSP determined that no relief was appropriate. The matter is now ripe for our disposition.

Petitioner pleaded guilty to two counts of Unlawful Contact with a Minor⁶ and a single count of Criminal Use of Communication Facility⁷ on May 4, 2011, and was sentenced to 10 years of probation on August 22, 2011. (Petition for Review ¶¶ 2, 3.) Petitioner alleges that he “was instructed and entered into a plea agreement” with the Commonwealth “pursuant to an understanding and agreement” that he “was required to register as a sexual offender for only ten (10) years.” (Petition for Review ¶ 4.) According to Petitioner's allegations, Petitioner's understanding that he was only required to register for 10 years “was an important consideration that Petitioner took into account in accepting a negotiated plea and which he relied upon in considering to plead in his case.” (Petition for Review ¶ 5.) On December 3, 2012, the PSP notified Petitioner that, pursuant to the enactment of the Sexual Offender Registration and Notification Act (SORNA),⁸ Petitioner was now required to register with the PSP twice a year for 25 years and that his registration information will be placed on the PSP's website for the same period of time. (Petition for Review ¶ 7.)

Petitioner alleges that this increase in his registration period violates the Ex Post Facto and Contract Clauses of the United States and Pennsylvania Constitutions and the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. (Petition for Review ¶¶ 8–10.) Petitioner seeks specific performance of his plea agreement and an order declaring that he is not required to register beyond 10 years as the increased registration and notification requirements imposed upon him by SORNA are, for those reasons, unconstitutional. (Petition for Review ¶¶ 13, 15, Wherefore Clause.)

The PSP demurs to the Petition for Review through five POs.⁹ The PSP first alleges that Petitioner has failed to state a claim because SORNA applies to Petitioner and Petitioner was properly classified as a Tier II offender, carrying a 25–year registration requirement. (POs ¶¶ 17–28.) Second, the PSP alleges that mandamus will not lie against the PSP because the statute of limitations has run for these types of actions and that the PSP lacks the duty or authority to change Petitioner's registration requirements. (POs ¶¶ 48–58.) Third, the PSP alleges that SORNA poses no ex post facto concerns and cites, inter alia, to our decision in Coppolino v. Noonan, 102 A.3d 1254 (Pa.Cmwlth.2014), aff'd, ––– Pa. ––––, 125 A.3d 1196 (2015), as binding authority to that end. (POs ¶¶ 30–31.) Fourth, the PSP objects to Petitioner's due process allegations because Petitioner has failed to allege any interest that is protected under the Due Process Clause of either the United States or Pennsylvania Constitutions. (POs ¶¶ 41–42.) Finally, the PSP demurs to Petitioner's contract-related claims by alleging that: (1) the PSP is not liable for breach of contract because the PSP is not a party to the plea agreement between Petitioner and the Commonwealth; and (2) assuming that the PSP is a party to the plea agreement, a claim against the PSP is barred by sovereign immunity. (POs ¶¶ 38–40.) For the reasons that follow, we sustain the POs in part, and overrule in part.¹⁰

We shall first address the PSP's objections based upon Petitioner seeking the requested relief in a mandamus action and then proceed to those challenging the legal sufficiency of Petitioner's constitutional and contract claims. In assessing the legal sufficiency of a petition for review, “the Court must accept as true all well-pleaded allegations of material fact as well as all reasonable inferences deducible therefrom.” Rodgers v. Pennsylvania Department of Corrections, 659 A.2d 63, 65 (Pa.Cmwlth.1995). A demurrer must only be sustained “where it appears, with certainty, that the law permits no recovery under the allegations pleaded.” Id.

I. Mandamus and Statute of Limitations

The PSP's first objection is premised on its understanding that Petitioner is seeking relief in a mandamus action based on the title of his pleading. The PSP, citing this Court's decision in Curley v. Smeal (Curley I), 41 A.3d 916, 919 (Pa.Cmwlth.2012), aff'd but criticized sub nom., Curley v. Wetzel (Curley II), 623 Pa. 226, 82 A.3d 418 (2013),¹¹ alleges that actions in mandamus have a six-month statute of limitations, which had expired long before Petitioner filed his Petition for Review in October 2014. The PSP also alleges, in the alternative, that Petitioner's claims lack merit because mandamus is only applicable to situations where the petitioner has a clear legal right to the performance of a mandatory ministerial duty, and the PSP has no such duty here to provide the relief requested by Petitioner.

We addressed these precise issues at length in Taylor v. Pennsylvania State Police, 132 A.3d 590, 598–600 (Pa.Cmwlth.2016) (en banc )¹² where we overruled the PSP's objection to a petition self-labeled a “Petition for Review in the Nature of a Writ of Mandamus” because the petitioner's claims sounded in declaratory and injunctive relief and the Rules of Appellate Procedure should be liberally construed.

Petitioner here requests this Court to order specific enforcement of the terms of his plea agreement and to conclude that: (1) the application of SORNA upon him is unconstitutional as it impairs the Commonwealth's obligations in its contract with Petitioner in violation of the Contract Clauses of the United States and Pennsylvania Constitutions; (2) the retroactive application of SORNA upon him violates his plea agreement and the Due Process Clauses of the United States and Pennsylvania Constitutions; and (3) by changing, expanding, and extending Petitioner's registration and reporting requirements, SORNA retroactively imposes a form of punishment upon him in violation of the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions. (Petition for Review ¶¶ 9–10, 13–14.) Like the petition for review in Taylor, these requests sound in declaratory and injunctive relief, asserting contractual and constitutional claims against a Commonwealth agency. Thus, pursuant to Taylor, we shall overrule the PSP's POs in this regard.

II. Ex Post Facto

Petitioner alleges that due to the enactment of SORNA, his registration period has been “retroactively increased dramatically.” (Petition for Review ¶ 8.) Petitioner entered into his plea agreement on May 4, 2011 when the Act commonly known as Megan's Law III¹³ was in effect. (Petition for Review ¶ 3.) Petitioner contends that, under Megan's Law III, he was required to register as a sexually violent offender for 10 years and that SORNA now requires him to register for 25 years. According to Petitioner, changing or expanding his registration period is a form of punishment and is a direct consequence of his conviction.

In Taylor, we sustained a PO demurring to an almost identical claim as the one asserted by Petitioner. We held that our previous decision in Coppolino, which was affirmed by our Supreme Court, disposed of the challenge to SORNA's registration requirements. Taylor, 132 A.3d at 601. Pursuant to Taylor, we sustain the PSP's PO with regard to the registration requirements of SORNA.

Although we sustained the PSP's demurrer to petitioner's ex post facto claim to the registration requirements of SORNA in Taylor, we overruled the POs to a claim that Section 9799.28(a) of SORNA, 42 Pa.C.S. § 9799.28(a), was punitive for purposes of the Ex Post Facto Clause of the Pennsylvania Constitution. Taylor, 132 A.3d at 601–04. Section 9799.28(a) of SORNA (hereafter, “internet notification provision”) mandates that the PSP “[d]evelop and maintain a system for making information about [those] convicted of[, inter alia, ] a sexually violent offense” public via the internet. 42 Pa.C.S. § 9799.28(a). SORNA also mandates that the internet website must include a feature that allows members of the public “to receive electronic notification when the individual convicted of a sexually violent offense, sexually violent predator ^{[14 ]} or sexually violent delinquent child moves into or out of a geographic area chosen by the user.” 42 Pa.C.S. § 9799.28(a)(1)(ii).

The petitioner in Taylor was convicted in 1994, prior to the enactment of Megan's Law I, and this Court held that it was unclear whether the internet notification provisions added since the petitioner's conviction were punitive in nature and violated the Ex...