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Charles Fross, M. Doe, D. Doe, Shawn Czerwien, Charles Meter, and v. County of Allegheny

May 25, 2011

CHARLES FROSS, M. DOE, D. DOE, SHAWN CZERWIEN, CHARLES METER, AND CHRISTOPHER HAIGH APPELLEES
v.
COUNTY OF ALLEGHENY, APPELLANT



Certification of Question of Law upon Petition of the United States Court of Appeals for the Third Circuit

The opinion of the court was delivered by: Mr. Chief Justice Castille

[J-79-2010]

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

ARGUED: October 19, 2010

OPINION

Upon certification by the U.S. Court of Appeals for the Third Circuit, we accepted for review the issue of whether Allegheny County Ordinance No. 39-07-OR (the "Ordinance"), which imposes residency restrictions on certain offenders, is preempted by the Pennsylvania Prisons and Parole Code, 61 Pa.C.S. § 101 et seq., ("Parole Code") and/or by the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et seq. ("Sentencing Code"). The Ordinance applies to offenders subject to the registration requirements of those provisions of the Sentencing Code collectively known as Megan's Law. See 42 Pa.C.S. §§ 9791-9792; 9795.1-9799.4; 9979.4-9979.9.*fn1 For the reasons that follow, we hold that the Ordinance impedes the accomplishment of the full objectives of the General Assembly, as expressed in the Sentencing and Parole Codes, and is, therefore, invalid pursuant to our conflict preemption doctrine.

Pennsylvania's current version of Megan's Law requires individuals convicted of, inter alia, kidnapping, indecent assault, or promoting prostitution, to register for ten years following release on probation or from prison. Persons convicted of two or more offenses subject to ten-year registration, sexually violent predators, and persons convicted of, inter alia, rape, involuntary deviate sexual intercourse, or aggravated indecent assault, are subject to lifetime registration upon release. 42 Pa.C.S. § 9795.1(a)-(b); see 42 Pa.C.S. § 9792 (defining "sexually violent predator"). In addition to requiring the registration of these offenders ("sex offenders" or "registrants"), the act also provides for notification of community members that such an offender will live in or near their neighborhood and mandates counseling for released sex offenders. 42 Pa.C.S. § 9791(b) (declaration of legislative policy). According to the General Assembly, Megan's Law facilitates community access to information regarding the presence in the neighborhood of sexually violent predators and other sex offenders, in recognition that these offenders pose a high risk to re-offend upon release and, thus, to endanger public safety. See 42 Pa.C.S. § 9791(a) (legislative findings). Safety of the public, according to the Legislature, is of "paramount concern." 42 Pa.C.S. § 9791(a)(3). A secondary interest is the effective operation of government. 42 Pa.C.S. § 9791(a)(5).

Pursuant to Megan's Law, a registering sex offender must provide to the Pennsylvania State Police information regarding "all current or intended" residences, employment, and school enrollment. 42 Pa.C.S. § 9795.2(a). After the initial registration, the offender is to update the information within forty-eight hours of any change in the nature or location of residency, employment, or student status. Id. The State Police is charged with a duty to verify the residence of registered offenders either quarterly (for sexually violent predators) or annually (for other offenders). 42 Pa.C.S. § 9796. For every registrant, the State Police provides the information collected to local law enforcement officials where the registered offender resides, works, or is enrolled in school; the State Police also notifies the offender's victim(s) and makes information about the offender available on the Internet. 42 Pa.C.S. §§ 9795.2(c), 9797, 9798.1. Local law enforcement is responsible for notifying the public regarding the presence of a sexually violent predator in a community, as provided in 42 Pa.C.S. § 9798.*fn2

The release from custody of a Megan's Law registrant is conducted pursuant to the provisions of the Pennsylvania Sentencing and Parole Codes, generally applicable to all offenders within the Commonwealth's jurisdiction. Sentencing courts and the Pennsylvania Board of Probation and Parole (the "Board") share duties of implementing the two statutes within their respective spheres.

In this context, the primary role of the court is to determine an appropriate sentence in each case, including confinement, probation, or intermediate punishment. A court must consider in selecting a sentence "the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(a), (b). The sentencing court may attach to probation reasonable conditions tailored to each offender. See 42 Pa.C.S. § 9754(c) (probation). For offenders who remain under the jurisdiction of the sentencing court, see infra n.3, the order of probation may be modified by the sentencing court at any time. 42 Pa.C.S. § 9771. Until termination of the sentence, probationers remain under the supervision of county probation and parole officers. 42 Pa.C.S. §§ 9911, 9912.

Within the same system, the Board's function is the administration of probation and parole in Pennsylvania. 61 Pa.C.S. § 6111(a). The Board operates the parole system with the primary purpose of protecting the public, but also with the twin goals of supplying an "opportunity for the offender to become a useful member of society" and of diverting appropriate offenders from prison. 61 Pa.C.S. § 6102(1)-(2). It must also "ensure that parole proceedings, release and recommitment are administered in an efficient and timely manner." 61 Pa.C.S. § 6102(3).*fn3

The Board exercises discretionary parole authority, but must generally balance in making its decision the "best interests" of the offender which justify or require parole, and the interests of the Commonwealth that would be injured by the offender's release on parole. 61 Pa.C.S. § 6137(a).*fn4 For these purposes, the Board has a duty to investigate and consider the individual nature and circumstances of the offender and his offense, the victim's wishes, and recommendations from the sentencing judge and prosecuting attorney.

61 Pa.C.S. §§ 6134; 6135(a). The Parole Code requires that, if an offender is eligible for parole, the Board "shall approve" parole upon a determination that the offender's re-entry plan is "adequate" and that there is no reasonable indication of the offender posing a risk to public safety. 61 Pa.C.S. § 6137(g)(4).

Probationers and parolees are subject to general and individual rules of conduct and supervision described at sentencing and/or in the parole agreement. Wilson v. Marrow, 917 A.2d 357, 363 (Pa. Cmwlth. 2007); see 42 Pa.C.S. § 9754 (order of probation); 61 Pa.C.S. § 6141 (general and specific rules for parolees); 37 Pa. Code §§ 63.4-63.5; 65.4-65.6; 67.1-67.3 (conditions of parole). For probationers, the order at sentencing may incorporate conditions to "reside in a facility established for the instruction, recreation, or residence of persons on probation," to meet family responsibilities, to obtain employment, and to attend a drug rehabilitation program. 42 Pa.C.S. § 9754(c). The purpose of Section 9754 of the Sentencing Code is to "insure [sic] or assist the defendant in leading a law-abiding life." 42 Pa.C.S. § 9754(b). Similarly, parolees must have their residence approved by the Board at release, live there, and not change residence without written permission from the parole supervision staff. 37 Pa. Code § ...


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