A.S. v. Pa. State Police

Citation143 A.3d 896
Decision Date15 August 2016
Docket NumberNo. 24 MAP 2014,24 MAP 2014
PartiesA.S., Appellee v. PENNSYLVANIA STATE POLICE, Appellant.
CourtPennsylvania Supreme Court

Bruce Lee Castor Jr., Esq., Claudia M. Tesoro, Esq., Sue Ann Unger, Esq., PA Office of Attorney Generals, for appellant Pennsylvania State Police.

Anthony J. Petrone, Esq., for appellee A.S.





In this appeal by the Pennsylvania State Police (PSP) from a grant of mandamus relief, we revisit an issue that evenly divided the Court in Commonwealth v. Gehris, 618 Pa. 104, 54 A.3d 862 (2012)

, concerning the proper construction of the lifetime-registration triggering language “two or more convictions” in Pennsylvania's former sex offender registration statute, Megan's Law II (formerly codified at 42 Pa.C.S. § 9795.1(b)(1) (superseded)).1 In accordance with the Gehris Opinion in Support of Reversal (OISR), as supplemented by our analysis below, we hold the provision, considered in the context of the statutory language as a whole, is amenable to two reasonable constructions; and we further hold the statute, which sets forth a graduated scheme of registration, encompasses a recidivist philosophy.2 We therefore conclude the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration. Accordingly, we affirm.

Section 9795.1

provided, in relevant part, as follows:

(a) Ten-year registration.—Except as set forth in subsection (a.1) or (b), the following individuals shall be required to register with the Pennsylvania State Police for a period of ten years:
(1) Individuals convicted of any of the following offenses:
18 Pa.C.S. § 2901

(relating to kidnapping) where the victim is a minor.

18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure).

18 Pa.C.S. § 3124.2 (relating to institutional sexual assault).

18 Pa.C.S. § 3126 (relating to indecent assault) where the offense is graded as a misdemeanor of the first degree or higher.

18 Pa.C.S. § 4302 (relating to incest) where the victim is 12 years of age or older but under 18 years of age.

18 Pa.C.S. § 5902(b) or (b.1) (relating to prostitution and related offenses) where the actor promotes the prostitution of a minor.

18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to obscene and other sexual materials and performances) where the victim is a minor.

18 Pa.C.S. § 6312 (relating to sexual abuse of children).

18 Pa.C.S. § 6318 (relating to unlawful contact with minor).

18 Pa.C.S. § 6320 (relating to sexual exploitation of children).

(2) Individuals convicted of an attempt, conspiracy or solicitation to commit any of the offenses under paragraph (1) or subsection (b)(2).

* * *

(b) Lifetime registration.-The following individuals shall be subject to lifetime registration:

(1) An individual with two or more convictions of any of the offenses set forth in subsection (a).

(2) Individuals convicted:

(i) in this Commonwealth of the following offenses:

18 Pa.C.S. § 3121 (relating to rape).

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).

18 Pa.C.S. § 3124.1 (relating to sexual assault).

18 Pa.C.S. § 3125 (relating to aggravated indecent assault).

18 Pa.C.S. § 4302 (relating to incest) when the victim is under 12 years of age.

* * *

(3) Sexually violent predators.

42 Pa.C.S. § 9795.1(a)(b)

(emphases added). Under both Megan's Law II and SORNA, PSP is tasked with maintaining Pennsylvania's sex offender registry. 42 Pa.C.S. § 9799.1(1) (Megan's Law II) (superseded); 42 Pa.C.S. § 9799.16 (SORNA).

This dispute arose after appellee had completed his sentence for the underlying crimes. Proceeding under a belief he was subject to a ten-year SORNA registration period (a belief shared at sentencing by the court and the prosecutor), appellee filed a Petition for Review in the Nature of a Complaint in Mandamus in the Commonwealth Court's original jurisdiction on July 19, 2012, shortly before expiration of that period. The petition sought to compel PSP to correct appellee's sexual offender registration status from lifetime registrant to ten-year registrant and to remove him from the registry when the ten-year period expired. In the course of litigation, the parties attached exhibits including the transcripts from appellee's guilty plea and sentencing proceedings; ultimately, the parties stipulated discovery was unnecessary and cross-motions for summary judgment were filed.

The facts respecting sex offender registration are thus undisputed. Appellee was twenty-one years old when he met the sixteen-year-old female victim on-line late in 1999. Appellee developed a relationship with the victim which ultimately resulted in a series of sexual encounters. The age of consent in Pennsylvania is sixteen, see 18 Pa.C.S. § 3122.1

; thus, the consensual sexual relationship itself was not criminal. However, during the course of the relationship, appellee persuaded the victim to take and transmit sexually explicit photographs of herself and he also photographed the two engaging in sexual acts. It is a crime to photograph or cause to be photographed a minor engaging in consensual sex and causing a minor to take sexual photographs of herself. 18 Pa.C.S. § 6312(d).

After the victim's father found sexually explicit photographs on the victim's computer and reported them to police, appellee admitted to the sexual relationship, as well as the explicit photographs taken by him and taken by the victim at his request.

In December 2000, a criminal complaint was filed in Montgomery County charging appellee, a first-time offender, with seven counts of sexual abuse of children (photographing, videotaping, depicting on computer, or filming sexual acts), twenty counts of sexual abuse of children (possession of child pornography, relating to other images of child pornography found on his computer), and single counts of unlawful contact with a minor, corruption of minors, and criminal solicitation.3

On October 5, 2001, appellee entered an open guilty plea to single counts of sexual abuse of children and unlawful contact with a minor—each of which was an enumerated offense for purposes of Megan's Law II reporting under Section 9795.1(a)

—and corruption of minors, which was not. The remaining charges were withdrawn. Sentencing was deferred for a pre-sentence report and sexual offender assessment.

On February 28, 2002, appellee was sentenced to concurrent 5– to 23–month terms of imprisonment on the first two counts and a consecutive five-year probationary term for corruption of minors. As required by Megan's Law II, the court also informed appellee a collateral consequence of his convictions required him to register as a sex offender. See 42 Pa.C.S. § 9795.3

. The parties and the trial court believed appellee was subject to a ten-year registration period, not lifetime registration. See N.T. 2/28/02 at 29–30, 45. Thus, appellee's mother testified, “My son made a mistake, a terrible, terrible error in his life that's affected him. He's been punished. He will be punished. He has a ten-year reporting component to this punishment[,] to which the trial court replied, “I know.” Id. at 29–30. The trial prosecutor confirmed, He's now facing a ten-year registration for Megan's Law. That's true. But why is he facing this ten-year registration? He is because what he did is a serious offense.” Id. at 45. In addition, appellee was found not to be a sexually violent predator (SVP), and thus he was not subject to lifetime registration under the provision applicable to SVPs. Id. at 59–60; see 42 Pa.C.S § 9795.1(b)(3)

. The court further found appellee was unlikely to reoffend. N.T. 2/28/02 at 63, 68. Finally, the court advised appellee of the potential criminal consequences of the registration requirement: he would commit a felony of the third degree if he failed to fulfill his obligations under Megan's Law II. Id. at 60.

After appellee was released from prison, he duly registered as a sex offender with the PSP on August 2, 2002; he then successfully completed all aspects of his criminal sentence and complied with all aspects of his reporting obligation. See Appellee's Petition for Review at 3; Appellant's Preliminary Objections at 1. Appellee contacted PSP and requested removal of his name from the registry after August 2, 2012, but PSP refused, claiming his guilty plea to both sexual abuse of children and unlawful contact with a minor triggered lifetime registration under Section 9795.1(b)(1)

, because he was “an individual with two or more convictions” of offenses listed in subsection (a). See Appellee's Petition for Review at 4; Appellant's Preliminary Objections at 2; Appellant's Motion for Summary Judgment at 5–6.

PSP's refusal to remove appellee's name from the registry led to this mandamus action. A divided en banc Commonwealth Court, in a published opinion authored by then-President Judge Pellegrini, granted appellee's motion for summary judgment and denied PSP's cross-motion. The court accordingly directed PSP to change appellee's designation as a lifetime registrant to a ten-year registrant. A.S. v. Pennsylvania State Police, 87 A.3d 914, 923 (Pa.Cmwlth.2014)

(en banc ).

The majority below characterized the question as involving whether appellee's guilty plea to two separate crimes involving photographs of the same minor constituted one or two convictions for purposes of Section 9795.1(b)(1)

. The court then examined Gehris, where the evenly-divided Court affirmed a determination of lifetime registration by operation of law, with the dispositive order accompanied by an Opinion in Support of Affirmance (OISA) by Justice Todd (joined by former Justices Eakin and McCaffery) and an OISR by former Chief Justice Castille (joined by Justices Saylor (now Chief Justice) and Baer).

After summarizing those opinions, which will be more fully described below, the court deemed the Gehris OISR...

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