PLW: Pa. Supreme Court Further Restricts Sex Offender Registry

Matthew T. Mangino

The Pennsylvania Law Weekly

September 16, 2016

The remains of Jacob Wetterling, abducted from a rural road in Minnesota 27 years ago, were found this month.

The abduction of the 11-year-old boy led to the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which required states to maintain sex offender registries and establish guidelines for the registries.

In October 1989, Wetterling was bicycling with his brother and a friend to a store near St. Joseph, Minnesota. During the ride, an armed man wearing a nylon mask abducted Wetterling. Investigators later learned that halfway houses in St. Joseph housed sex offenders after their release from prison. The Jacob Wetterling Act required states, including Pennsylvania, to establish stringent registration programs for sex offenders—including lifetime registration for certain offenders. The registration of sex offenders in Pennsylvania, known as Megan's Law, has had a tumultuous existence, including a number of revisions to comply with several successful challenges before the Pennsylvania Supreme Court.

Last month, the state's high court further refined the state's sex offender registry. The Supreme Court made a ruling that will have an impact on determining which sex offenders will be considered lifetime registrants. The court narrowed the ability of the authorities to designate an offender as a lifetime registrant as the result of being convicted of multiple sex offenses in a single incident.

The history of Megan's Law is long and at times confusing. In 1995, Gov. Tom Ridge signed into law what has commonly been referred to as Megan's Law. Following its enactment there were several amendments to the law as a result of court decisions.

About a decade later, Gov. Ed Rendell signed into law Senate Bill No. 92, making significant changes to Megan's Law. Most notably, information on all registered sexual offenders would now be available to the public through the internet. Then in 2012, Gov. Tom Corbett signed into law Senate Bill No. 1183. The law also known as the "Adam Walsh Bill," brought the state into compliance with The Adam Walsh Child Protection and Safety Act. Pennsylvania joined a coordinated and comprehensive national sex offender registry.

Under the new law—known as the Sex Offender Registration and Notification Act (SORNA)—registrants will be placed in one of three tiers based on their underlying offenses.

• Tier I. Registration for 15 years with required annual in-person reporting to the Pennsylvania state police and updated photograph.

• Tier II. Registration for 25 years with semiannual reporting requirements.

• Tier III. Registration for life with in-person reporting every three months.

There is a mandatory minimum sentence of two or three years in prison for the first failure to report and a five-year prison sentence for the first failure to provide accurate information to the state police.

The law also required that two or more convictions of Tier I offense would bump the offender to Tier III or lifetime registration.

The Supreme Court's decision last month will have a significant impact on which tier a sex offender will be assigned. The decision will also impact how prosecutors approach plea negotiating with sex offenders and the way defense attorneys explain to their clients the collateral consequence of a conviction.

In A.S. v. Pennsylvania State Police ___ A.3d ___ (Pa. 2016), the Pennsylvania Supreme Court in an opinion written by Justice Kevin M. Dougherty held that "the statute SORNA 42 Pa.C.S. Section 9799.10-9799.41 requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a 10-year period of registration."

Prior to the decision, the state police considered multiple Tier I convictions, even if growing out of the same incident, as two or more convictions and therefore triggering lifetime registration under the act.

The A.S. decision grew out of the case of a 21-year-old Montgomery County man who was convicted of persuading his 16-year-old girlfriend to take and send photographs of herself, which were sexually explicit. He was arrested in 2000 when her father found the photographs. After pleading guilty to seven child pornography counts, he was sentenced to five months to 23 months in the county jail, plus five years of probation.

At A.S.'s sentencing in 2002, everyone including the judge believed A.S. was subject to a 10-year registration period, not lifetime registration. According to the court's opinion, A.S.'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 10-year reporting component to this punishment," to which the trial court replied, "I know." The prosecutor confirmed, "He's now facing a 10-year registration for Megan's Law. That's true."

After A.S. was released from jail, he registered as a sex offender with the state police. He then successfully completed all aspects of his criminal sentence and complied with all aspects of his reporting obligation.

After 10 years had passed, A.S. contacted the state police and requested removal of his name from the registry. The state police refused, claiming his guilty plea to sexual abuse of children and unlawful contact with a minor triggered lifetime registration under Section 9795.1(b) (1). A.S. filed a mandamus action with the Commonwealth Court.

The Commonwealth Court agreed with A.S. The Supreme Court agreed to hear the case when the state police appealed.

The Supreme Court majority included Chief Justice Thomas G. Saylor and Justices Kevin M. Dougherty, Max Baer and Christine Donohue. Justices Debra McClosky Todd and David N. Wecht dissented.

The decision means sex offenders convicted of Tier I offenses including luring a child into a vehicle, institutional sexual assault, indecent assault, corruption of minors and possessing child pornography will not be required to register for life on their first offense, regardless of the number of offenses that grew out of a single incident.

The court's decision requires that a one-time offender must become a recidivist to qualify for lifetime registration.

Dauphin County District Attorney Ed Marsico told the Harrisburg Patriot-News that the decision likely will have an impact on plea negotiations in certain sex-crime cases. The difference in registration requirements—some offenses carry registration terms as low as 15 years—can prompt a defendant to plead guilty to a lesser sex crime to avoid the lifetime registration.

"The biggest impact will be with plea negotiations," Marsico said. "These registration requirements are often at issue."

On the other hand, defense attorneys often find it challenging to provide their clients with advice on the collateral consequences of a conviction. Whether it's the length of a driver's license suspension, the disqualification of a professional license or, as with sex offenders, the level of registration, fully appreciating the collateral consequences of a conviction can be daunting.

Often the distinction is based on whether the consequences are civil or criminal. The decision with regard to sex offender registration got a little murky after the A.S. decision.

The Supreme Court has held the registration provisions are not punitive for purposes of constitutional challenges. However, the high court acknowledged in A.S., "Whether the statute is deemed a penal one subject to the rule of lenity and strict construction or not ... the fact is that interpretations—and predictions—of the statute's effect have to be made by different persons and entities at different times: prosecutors in charging decisions, defense counsel in rendering advice, defendants in determining courses of action, trial judges in imposing sentence, courts on appeal, PSP in enforcement, and then the defense, prosecution and courts repeated again if the defendant is charged with violating his or her registration obligation."

"Given the obvious burden of registration and the potentially serious criminal consequences of a lapse ... to state the law is not 'penal' is little answer to a defendant who had good reason to believe he had done all required of him, only to find himself staring at lifetime registration," wrote Dougherty.

An offender must have a chance to rehabilitate before being penalized with a second offense, the high court found.

"We do not dispute the commonwealth's argument that each image of child pornography possessed represents a separate, independent crime," Dougherty wrote.

However, Dougherty said, clear and simple, "the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses."

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll," 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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