A.L. v. Pa. State Police

• Decision Date: 08 March 2021
• Docket Number: No. 674 C.D. 2020,674 C.D. 2020
• Citation: 247 A.3d 120
• Parties: A.L., Petitioner v. PENNSYLVANIA STATE POLICE, Respondent
• Court: Pennsylvania Commonwealth Court

247 A.3d 120

A.L., Petitioner

v.PENNSYLVANIA STATE POLICE, Respondent

No. 674 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued February 8, 2021

Decided March 8, 2021

R. Davis Younts, Lemoyne, for Petitioner.

Stevan Kip Portman, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge (P.), HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY PRESIDENT JUDGE BROBSON

A.L. (Petitioner) petitions for review of an order of the Pennsylvania State Police (PSP), dated June 30, 2020. PSP adopted a hearing examiner's proposed adjudication and order, thereby affirming the determination of its Megan's Law Section that Petitioner's conviction under Article 120 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(b)(3)(A),¹ is comparable to a conviction under Section 3124.1 of the Crimes Code, 18 Pa. C.S. § 3124.1,² and that Petitioner should therefore be classified as a Tier III sex offender under Pennsylvania's Sex Offender Registration and Notification Act (SORNA),³ 42 Pa. C.S. §§ 9799.10 -.41, which has since been replaced by SORNA II. For the reasons set forth below, we reverse PSP's order.

In March 2014, at a trial by general court-martial, enlisted members of the armed forces, also known as court members, found Petitioner guilty of a violation of Article 120 of the UCMJ for "commit[ting] a sexual act upon [an airman] by penetrating [her] vulva ... with his penis, when [she] was incapable of consenting to the sexual act because she was impaired by an intoxicant, to wit: alcoholic beverages, a condition that was known or reasonably should have been known by [Petitioner]." (Reproduced Record (R.R.) at 106.) Petitioner was sentenced to receive a reduction in military rank/pay grade, to be dishonorably discharged, and to serve 60 days of confinement. (Id. at 107.) Petitioner appealed his conviction to the United States Navy-Marine Corps Court of Criminal Appeals (Military Appeals Court), which upheld the court members’ finding of guilt and sentence. (Id. at 109-12.)

In May 2014, while the appeal of his military conviction was still pending, Petitioner registered as a sex offender with PSP. (R.R. at 44, 59.) Shortly thereafter, on June 12, 2014, PSP's Megan's Law Section made a determination that Petitioner's military conviction is comparable to a conviction under Section 3124.1 of the Crimes Code and classified Petitioner as a Tier III sex offender. (Id. at 114.) By letter dated June 9, 2016, after his military conviction became final, Petitioner requested that PSP reconsider his classification as a Tier III sex offender, contending (1) that the military offense for which he was convicted is properly analogous to a Tier I offense, not a Tier III offense, and (2) that SORNA's irrebuttable presumption that all sex offenders pose a high risk of recidivism is unconstitutional as applied to Petitioner because it violates his right to due process. By letter dated June 24, 2016, PSP responded to Petitioner's request, stating that, after a review of Petitioner's file, the relevant statutory provisions, and pertinent case law, PSP determined that Petitioner's military conviction was comparable to a conviction of sexual assault under Section 3124.1 of the Crimes Code, and, therefore, Petitioner was properly classified as a Tier III sex offender.

Petitioner then filed an action in this Court's original jurisdiction in the nature of a request for injunctive and declaratory relief against PSP relative to PSP's classification of Petitioner as a Tier III sex offender under SORNA. In his amended petition for review, Petitioner sought: (1) an order requiring PSP to conduct an official review of his conviction under Article 120 of the UCMJ, review his sex offender registration status, and issue a final, appealable decision with regard to his sex offender registration status; and (2) an order requiring PSP to reclassify him as a Tier I sex offender or, in the alternative, a declaration that SORNA's irrebuttable presumption that all sex offenders have a high risk of recidivism is unconstitutional as applied to Petitioner. Upon closure of the pleadings, Petitioner filed an application for summary relief, contending, inter alia , that PSP violated his due process rights when PSP rendered its equivalency determination and classified him as a Tier III sex offender based upon his military conviction without conducting an evidentiary hearing. Petitioner suggested that, because his conviction under the UCMJ was not the same as any conviction under Pennsylvania law, PSP could not just simply review his file and the relevant statutory provisions and case law to determine his appropriate sex offender classification. Rather, PSP first had to analyze the severity of the military offense for which he was convicted to determine a comparable offense under Pennsylvania law.

By opinion and order dated July 16, 2019, this Court concluded that, "because [Petitioner] was convicted of an offense not specifically enumerated in SORNA's tier classification scheme, PSP necessarily engaged in a nonministerial act when it [conducted its equivalency determination and thereafter] classified Petitioner as a Tier III sex offender." Lopuchin v. Pa. State Police (Pa. Cmwlth., No. 587 M.D. 2016, filed July 16, 2019), slip op. at 11, 2019 WL 3102125. This Court further concluded that PSP's equivalency determination constituted an invalid adjudication, because, "in rendering [such] equivalency determination, PSP did not afford Petitioner ‘reasonable notice of a hearing and an opportunity to be heard,’ as required by Section 504 of the Administrative Agency Law[,]" 2 Pa. C.S. § 504. Id. As a result, this Court granted Petitioner's application for summary relief only to the extent that it sought an order declaring that PSP was required to "provide Petitioner with a post-determination administrative remedy and adjudication on the question of whether [Petitioner] should be designated as a Tier III sex offender as a result of his military conviction." Id. at 12.

In response thereto, on October 2, 2019, PSP appointed a hearing examiner to preside over the post-determination administrative appeal hearing. The hearing examiner conducted the hearing on December 5, 2019.⁴ At that time, PSP presented the testimony of Sergeant Orvis E. Rowles, Jr. (Sergeant Rowles), who has been the commander of PSP's Megan's Law Section since July 2017. (R.R. at 38-39, 58.) Sergeant Rowles testified that the individual who performed Petitioner's equivalency determination left his employment with the Megan's Law Section before Sergeant Rowles took over as commander. (Id. at 41, 74.) Sergeant Rowles explained, however, that, prior to the hearing, he reviewed and familiarized himself with the file maintained on Petitioner by the Megan's Law Section in its Sex Offender Registration Tool system, which included a copy of the results from his military trial. (Id. at 41-42, 44-45, 106-08.) Sergeant Rowles stated that, based upon the specification for Petitioner's military offense as set forth in the results from his military trial, Petitioner was convicted of a violation of 10 U.S.C. § 920(b)(3)(A). (Id. at 52-53.) Sergeant Rowles explained that, in order to make its equivalency determination, the Megan's Law Section reviewed the elements of 10 U.S.C. § 920(b)(3)(A) and compared them to the elements of Pennsylvania sexual offenses. (Id. at 54-56, 73-74.) Sergeant Rowles explained further that, ultimately, the Megan's Law Section determined that Petitioner's conviction under 10 U.S.C. § 920(b)(3)(A) is comparable to a violation of Section 3124.1 of the Crimes Code, which is a Tier III sexual offense. (Id. at 53-56, 73.)

On May 18, 2020, the hearing examiner issued a proposed adjudication and order, recommending that the equivalency determination made by PSP's Megan's Law Section—i.e. , that Petitioner had been convicted of a Tier III sexual offense—be affirmed. In so doing, the hearing examiner concluded that Petitioner's conviction under 10 U.S.C. § 920(b)(3)(A) was for a military offense comparable to those offenses identified in Section 9799.14(d) of SORNA.⁵ The hearing examiner, relying upon a statement made by the Military Appeals Court in its opinion upholding Petitioner's conviction—i.e. , that the Military Appeals Court "[found] compelling evidence that [Petitioner] was aware of [the airman's] intoxicated state and intentionally acted to take advantage of her incapacitated condition"—reasoned that Petitioner "was not convicted upon the arguably negligent element of ‘reasonably should [have] known’ of the victim's impairment, but instead that condition was ‘known’ by him." (R.R. at 111, 171 n.5.) Based on his presumption that Petitioner was convicted because he "knew" of the airman's intoxicated state, the hearing examiner further reasoned:

The mens rea requirement for [Petitioner's] conviction included, that he "knew" that his victim was impaired by an intoxicant. Because this military mens rea standard is at least as high as that for the Pennsylvania crime, the listed Pennsylvania offenses and the military offense of sexual assault for which [Petitioner] was convicted have a sufficiently comparable mens rea requirement.

Tier III sexual offenses involving sexual intercourse thus include as those other elements: (1) the victim is unconscious or unaware that sexual intercourse is occurring, (2) the victim has a mental disability

that renders the victim incapable of consent, (3) there was no consent, or (4) the victim is physically incapable or [sic] declining participation or communicating unwillingness to participate. An offense where the victim is incapable of consenting to the sexual act due to impairment by intoxication and that condition is known by the defendant is certainly comparable. There is no consent with a person who is incapable of consenting. While these various sexual offenses involve differing...