We have seen some major wins in the Pennsylvania Courts beginning in 2017 that are making an impact on the lower courts regarding the sex offender registry today. These wins have come from the PA Supreme Court (PASC) with their ruling in Com. v. Jose M. Muniz, 164 A.3d 1189 (Pa. 2017) and the P.A. Superior Court with their ruling in Com. v. Joseph Dean Butler, 173 A.3d 1212 (Pa. Super. 2017).
Com. v. Jose M. Muniz, 164 A.3d 1189 (Pa. 2017)
The Muniz Court issued two rulings: 1) After conducting an analysis of the Mendoza-Martinez factors, SORNA’s statutory scheme is punitive, and 2) SORNA’s retroactive application violates the Ex Post Facto Clauses of the U.S. and PA Constitutions. The first ruling was crucial to the second as well as to all the other cases that are challenging SORNA. SORNA was previously considered a civil penalty by the General Assembly. Civil penalties are harder to argue against because the Commonwealth needs to only meet a burden of proof that is simply by the preponderance of the evidence; and they have a lesser standard when argued on constitutionality because there are no punitive aspects. It was obvious to PASC that SORNA is not a civil penalty with its jail time for failure to register. Because SORNA has been declared punitive, the statutory scheme is now held to a higher standard when argued on constitutionality. The Commonwealth must now meet a burden of proof that is beyond a reasonable doubt, thus opening the door for many cases like Butler.
Com. v. Joseph Dean Butler, 173 A.3d 1212 (Pa. Super. 2017)
In Butler, the defendant argued “[w]hether the Commonwealth presented sufficient evidence to prove [by] clear and convincing evidence . . . that [A]ppellant is [an SVP?]” The Superior Court decided, “We are constrained to hold that section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact finder making the necessary factual findings beyond a reasonable doubt.” The Pa. Superior Court added, “Trial courts cannot designate convicted defendants’ SVPs (nor may they hold SVP hearings) until our General Assembly enacts a constitutional designation mechanism.” The trial courts did obey said order until the passage of Act 10 of 2018 and the amendment Act 29 of 2018.
Com. v. Fady Amir Shehata, Com. v. George Torsilieri, and Com. v. Claude Lacombe
We are currently seeing that trial courts (Common Pleas) in Bucks, Chester, Montgomery, and York are recognizing these decisions. In Com. v. Fady Amir Shehata out of Bucks County, accepting the unconstitutionality of SORNA thus not placing the defendant on the registry, the trial court stated, “[w]e are bound by the holdings in Muniz and Mendoza-Martinez, [372 U.S. 144 (1963)] and find that despite the current revisions of Act 29, said Act remains punitive and therefore unconstitutional. Accordingly, we cannot enter an order pursuant to its provisions.” The Common Pleas Court in Chester County ruled that SORNA violates PA’s Constitution Art. I Sec. I Right to Reputation in the case of Com. v. George Torsilieri. We believe that this is the case, arguing reputation, which will eliminate the public aspect of the registry. In Com. v. Claude Lacombe from Montgomery County, the Common Pleas Court ruled that Act 10 violates the Commonwealth’s Ex Post Facto Clause.
As of 6/26/19 the Torsilieri and Lacombe cases are currently in the PASC awaiting a decision whether they will be orally argued or the opinions will be decided based on the submitted briefs. PARSOL is keeping a very close eye on these two cases.
Our Legal Committee has been following some other cases that have made their way up to the PASC. The momentum in PA is building, as we see more counties understanding the constitutional problems that SORNA has caused. Our ultimate goal is to eliminate the public registry here in Pennsylvania. We feel that this will happen by early 2020. However, we know that the General Assembly will not give up so easily. It is up to us as citizens of this great Commonwealth that offers us many protections in its Constitution to contact our Representatives and Senators and tell them to uphold our Constitution, uphold our right to procedural due process, and uphold our right to reputation. Watch for our next article PA’s Historical Right to Reputation.