IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
September 27, 2012
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, ORIE MELVIN, JJ. COMMONWEALTH OF PENNSYLVANIA, APPELLEE
PATRICK JOHN GEHRIS, APPELLANT
Appeal from the Order of the Superior Court entered March 26, 2010 at No. 1960 WDA 2008, affirming the Judgment of Sentence of the Court of Common Pleas of Butler County entered August 27, 2008 at CP-10-CR-0000477-2007.
The opinion of the court was delivered by: Madame Justice Todd
ARGUED: October 18, 2011
OPINION IN SUPPORT OF AFFIRMANCE
Although the Opinion in Support of Reversal ("OISR") offers a reasoned, plausible, policy-based rationale for interpreting 42 Pa.C.S.A. § 9795.1(b)(1) as reflecting a recidivist philosophy, I nevertheless believe we are constrained by the clear and unambiguous language chosen by the legislature in enacting this statutory provision to impose the lifetime registration requirement on Appellant under the particular factual circumstances presented by this case. As a result, respectfully, I would affirm the lower courts.
This is a case of a 42-year-old man who deliberately and repeatedly engaged in communications of an explicit sexual nature regarding an individual whom he believed to be a 13-year-old girl. In these conversations, he graphically detailed his fantasies of having sexual encounters with a young girl, solicited nude pictures of the person he thought was the 13-year-old girl, mailed a digital camera with a picture of his penis loaded therein to the person he thought was the 13-year-old girl, methodically arranged a meeting with the person he believed to be the 13-year-old girl at a motel room over 200 miles away from his home, and drove continuously for an entire day specifically to have sex in the motel room with both the person he thought was the 13-year-old girl, and the person whom he believed to be her 19-year-old friend - known to him by the internet chatroom appellation of "joeyGalPa".
For these activities, Appellant was charged in a six-count criminal information with the following offenses, each of which was based on specific aspects of his conduct over the four-month period from October 2006 to February 2007: (1) unlawful contact with a minor for the purposes of engaging in involuntary deviate sexual intercourse*fn1 (for arranging the meeting at the motel with the undercover state police officer posing as the 13-year-old child); (2) unlawful contact with a minor for the purpose of engaging in sexual abuse of children*fn2 (for requesting nude photographs from the officer posing as the 13-year-old child); (3) criminal solicitation for the sexual exploitation of children*fn3 (for soliciting "joeyGalPa" to procure the 13-year-old child for sexual exploitation); (4) criminal solicitation for the sexual abuse of children*fn4 (for soliciting "joeyGalPa" to obtain nude photographs of a 13-year-old child); (5) criminal solicitation for the corruption of the morals of a minor*fn5 (for soliciting "joeyGalPa" to obtain a 13-year-old child for sexual activity) and (6) criminal attempt to corrupt the morals of a minor*fn6 (for his act of driving to the motel to engage in the planned encounter). Appellant elected to plead guilty to counts 3 through 6.
Since Appellant pled guilty to both criminal solicitation for the sexual exploitation of children and criminal solicitation for the sexual abuse of children, the trial court found that Appellant was subject to lifetime registration with the Pennsylvania State Police under subsection (b)(1) of the version of 42 Pa.C.S.A. § 9795.1 in effect on August 27, 2008 - the date of his sentencing - on which he was informed by the judge of this registration requirement.*fn7 This statutory section provided:
(a) Ten-year registration.--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. § 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 of any 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.A. § 9795.1 (superseded).
The trial court believed the circumstances of this case were similar to those present in the Superior Court's decision in Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), in which that court upheld the trial court's finding that lifetime registration was warranted for an individual who had pled nolo contendre to two separate counts of indecent assault and one count of statutory sexual assault, with each count stemming from his improper fondling of a different girl under the age of 16. The trial court rejected Appellant's argument that Merolla was distinguishable because there were multiple victims in that case, whereas in his case the only actual victim was society as a whole.
A panel of the Superior Court agreed with the trial court - determining that the language of Section 9795.1(b)(1) was clear and unambiguous in that it referred only to convictions, not to criminal episodes, and it further noted that, under Merolla, this statutory provision does not require either a previous conviction, or a sequence of events, in order for the lifetime registration requirement to apply; rather, all that is necessary for lifetime registration is two or more convictions for offenses listed in subsection (a). The court, therefore, deemed it irrelevant that Appellant's individual convictions arose out of the same criminal episode. After considering the relevant statutory provision at issue, in accordance with our well settled principles of statutory interpretation, I would affirm the Superior Court.
A proper interpretation of Section 9795.1(b)(1) must be conducted in accord with our Commonwealth's Statutory Construction Act, which provides that the paramount objective in interpreting a statute is to effectuate the General Assembly's intent. Id.; see also 1 Pa.C.S.A. § 1921(a). Our Court generally considers the best means of ascertaining the legislature's intent to be an examination of a statute's plain language. Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011). We therefore ascribe to the particular words and phrases of a statute the definitions which they have been accorded in their common and approved usage, unless those words and phrases have "acquired a 'peculiar and appropriate meaning.'" Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011); see also 1 Pa.C.S.A. § 1903(a). Consequently, if the terms of a statute are clear and unambiguous, we will not, in our interpretation, disregard the meaning of the language under the guise of pursuing the spirit of the statute. 1 Pa.C.S.A. § 1921(b). Nor is there need to resort to the tools of statutory construction set forth in 1 Pa.C.S.A. § 1921(c) if the language of a statute is explicit in its application to a particular situation. See Oliver v. City of Pittsburgh, 608 Pa. 386, 394, 11 A.3d 960, 965 (2011) ("[I]t is well established that resort to the rules of statutory construction is to be made only when there is an ambiguity in the provision.")
Further, in interpreting a particular statute, we must remain always mindful of the principle that, "although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say." Johnson, 26 A.3d at 1090 (quoting Kmonk--Sullivan v. State Farm Mut. Auto. Ins. Co., 567 Pa. 514, 525, 788 A.2d 955, 962 (2001)). Accordingly, "it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include." Johnson, 26 A.3d at 1090 (quoting Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 59--60, 213 A.2d 277, 282 (1965)).
It is true that the Statutory Construction Act specifically requires us to construe all penal statutes*fn8 strictly, see 1 Pa.C.S.A. § 1928(b)(1), and I do not quarrel with the observations of the OISR that the consequences of being required to register as a Megan's Law offender are particularly severe in their impact on the registrant's life. OISR at 19. However, as the OISR also notes, our Court has previously determined in Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003), that the registration requirements of Megan's Law are not intended to be penal in nature. As we said in that case:
[T]he legislature's intent in requiring offenders to register with the State Police regarding their whereabouts was not retribution; rather, the legislature's stated intent was to provide a system of registration and notification so that relevant information would be available to state and local law enforcement officials in order to protect the safety and general welfare of the public. Thus, the legislature's actual purpose in enacting the registration provisions was not punishment; rather its purpose was to effectuate, through remedial legislation, the non-punitive goal of public safety.
Williams, 574 Pa. at 504, 832 A.2d at 972 (quoting Commonwealth v. Gaffney, 557 Pa. 327, 333, 733 A.2d 616, 619 (1999)).
Moreover, Section 9795.1 significantly differs from a sentencing enhancement statute, which is penal in nature, in that it does not require a trial court to impose the registration requirement as part of the sentence of the individual who is convicted of any of the triggering offenses set forth in subsections 9795.1(a) and (b). Sentencing enhancement statutes, by their terms, require a court to impose a particular sentence on a defendant convicted of a particular type of offense.*fn9 By contrast, Section 9795.1 places a requirement directly on the convicted defendant to register with the Pennsylvania State Police, with the length of the registration period based on the particular triggering offenses set forth in the statute for which the defendant is convicted. The role of the sentencing court in this process is limited to informing the defendant of his or her registration obligations at the time of sentencing on the underlying offenses. 42 Pa.C.S.A. § 9795.3(1). Accordingly, as Section 9795.1(b) does not constitute the imposition of punishment, or enhance the term of a defendant's incarceration, parole, or probation as part of his or her sentence, I deem the presumption we employ that a penal statute must be strictly construed against the Commonwealth not to govern in this instance and, thus, the statute should be read in accordance with the plain meaning of its terms.*fn10
The plain language of Section 9795.1(b)(1) specifies: "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)." This language, when viewed in accordance with its commonly understood and ordinary meaning, requires any individual who is convicted two or more times of the particular offenses set forth in subsection (a) to register for life. Relevant to the question of whether the legislature intended to require lifetime registration in situations where the multiple convictions stemmed from acts which were part of one criminal episode, I deem the legislature, through the use of the unadorned language, "[a]n individual with two or more convictions of any of the offenses set forth in subsection (a)," to have elected not to require any particular sequential or temporal ordering of the multiple convictions in order for the lifetime registration requirements to apply. Rather, the legislature simply mandated that, at the point in time at which a defendant acquires two or more convictions for specified sexual offenses against children, the registration requirement is triggered. Since the legislature decided not to include language implicating the timing of the convictions, I do not believe we may judicially engraft such a requirement. See generally Johnson, supra (it is improper as a matter of statutory interpretation to add a provision to a statute which the legislature did not include). Consequently, because the timing of the multiple convictions is irrelevant under this statutory provision - even when two convictions arise out of two separate criminal acts against a single victim committed during one criminal episode, as Appellant claims - I believe lifetime registration is compelled. Cf. Vasquez, 562 Pa. at 124, 753 A.2d at 809 (holding that defendant's plea of guilty to two counts of selling controlled substances for two separate sales of drugs, each of which occurred on a different day, necessitated the imposition of an enhanced sentence under 18 Pa.C.S.A. § 7508(a)(3)(i), which requires such enhancement if a defendant, at the time of sentencing, "has been convicted of another drug trafficking offense," and specifically noting we were "bound by the unambiguous language of the statute and cannot read language into it that simply does not appear.").
I find no basis to conclude, as does the OISR, that Section 9795.1 reflects a recidivist philosophy which requires departure from this plain meaning interpretative approach. As discussed above, the primary purpose of the registration requirement is not to punish an individual convicted of sexual offenses, but, instead, registration is mandated for the protection of the public. See Williams, 574 Pa. at 504, 832 A.2d at 972 ("[T]he legislature's intent in requiring offenders to register with the State Police regarding their whereabouts was not retribution; . . . rather its purpose was to effectuate, through remedial legislation, the non-punitive goal of public safety."). Consequently, unlike the "three strikes" sentencing statute at issue in Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993), Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005), and Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d 1241 (2006)*fn11 and the mandatory sentencing for possession of child pornography at issue in Commonwealth v. Jarowecki, 604 Pa. 242, 985 A.2d 955 (2009),*fn12 which imposed successively greater levels of penal discipline for each successive conviction for the same type of crime in order to dissuade an individual from repeating that criminal conduct in the future,*fn13 the principal objective of the registration requirement is not to alter the convicted individual's behavior through punishment. Further, the specific nature of the language employed in the statutes at issue in those cases - i.e. "[w]here the person had at the time of the commission of the current offense previously been convicted," in the case of 42 Pa.C.S.A. § 9714(a)(2) (emphasis added), and "second or subsequent offense," in 18 Pa.C.S.A. § 6312(d)(2) (emphasis added) - implies a requirement that there be a separation in time between imposition of the successively greater sanctions in order to give the individual a chance to change his or her behavior in response to the lesser sanction. By contrast, as noted above, the language of Section 9795.1(b)(1) has no such language suggesting temporal separation is required between the commission of the enumerated offenses for the lifetime registration requirement to apply.
Although the overall structure of Section 9795.1 conditions its registration scheme, in part, on the nature of particular sexual offenses, since lifetime registration is required of those who commit the arguably more serious offenses enumerated in Section 9795.1(b)(2), I find it significant that the legislature also chose to impose the very same lifetime registration requirement for those convicted of two or more of any of the offenses enumerated in Section 9795.1(a)(1), the vast majority of which are offenses against children. This, from my perspective, evidences a deliberate legislative judgment, consistent with its objective of protecting public safety, to make the differing length of registration requirements dependent not only on the nature of the specific sexual offenses for which an individual is convicted, but, also, on the occurrence of a multiplicity of certain types of offenses, particularly those committed against children. In my view, this reflects a considered determination by the legislature that, in order to protect the safety and general welfare of the public, the frequency with which a convicted defendant is determined to have engaged in certain types of prohibited conduct with children is a particularly important factor in determining whether he or she should be subject to lifetime registration.*fn14
Turning to the specific facts of the case at bar, included in the list of offenses set forth in Section 9795.1(a) are the crimes of criminal solicitation to commit the sexual exploitation of children and criminal solicitation for the sexual abuse of children. Appellant entered a guilty plea to both offenses, thereby admitting that he committed the act of soliciting the undercover state police officer posing as a 19-year-old female to obtain nude photographs of a person whom he believed to be a 13-year-old child, and also that he committed the act of soliciting the undercover state police officer posing as the 19-year-old female to procure the 13-year-old child so that he could engage in sexual activity with the child, which is deemed to be sexual exploitation.15 As such,
Appellant's guilty plea for each separate act, which constituted a separate criminal offense once it was accepted by the trial court and sentence was imposed, became a conviction for that offense. See Commonwealth v. Kimmel, 523 Pa. 107, 111, 565 A.2d 426, 428 (1989) ("When the term 'conviction' is used in a statute, it means 'the ascertainment of the guilt of the accused and judgment thereon by the court"); Com. ex rel. Hough v. Maroney, 425 Pa. 411, 414, 229 A.2d 913, 914-15 (1967) ("A plea of guilty (when accepted and entered by the Court) is the equivalent of a conviction and a verdict of guilty by a jury."). Therefore, I regard the clear terms of Section 9795.1(b)(1) as requiring Appellant to register with the Pennsylvania State Police for life, since he had two convictions for offenses specifically listed in Section 9795.1(a). Consequently, I would affirm the decisions of the lower courts.
Madame Justice Orie Melvin did not participate in the decision of this case. Messrs. Justice Eakin and McCaffery join the Opinion in Support of Affirmance. Mr. Chief Justice Castille files an Opinion in Support of Reversal in which Messrs.
Justice Saylor and Baer join.