Appeal from the Order of Superior Court entered March 26, 2010 at No. 196 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: Mr. Chief Justice Castille
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION IN SUPPORT OF REVERSAL
The issue in this appeal is whether the lifetime registration provisions of Megan's Law, set forth at 42 Pa.C.S. § 9795.1(b), should be imposed when two of the statute's enumerated offenses are committed in the context of a single nonviolent course of criminal conduct. The trial court, the Superior Court, and the Opinion in Support of Affirmance ("OISA") conclude that lifetime registration is warranted, without leeway, whenever "two or more" enumerated offenses are committed by a defendant, regardless of whether the offenses are committed during a single episode, are crimes of violence or inchoate offenses, or if there are multiple, single, or even no actual human victims. For the reasons set forth below, we would vacate the Superior Court's order, vacate the portion of appellant's sentence imposing lifetime registration, and return this matter to the trial court for imposition of the ten-year registration requirement.
In late 2006, appellant began using an internet chat room where he corresponded with an individual whom he believed to be a nineteen-year-old female who called herself "joeyGalPa." "joeyGalPa" was actually a Pennsylvania State Police officer trained to pose online as a teenager in order to collect evidence and investigate potential sexual predators. Appellant's initial exchanges with "joeyGalPa" included suggestions and requests by appellant to meet any younger girls (roughly eleven to thirteen years of age) that "joeyGalPa" might know. In early 2007, appellant emailed "joeyGalPa" that he fantasized about being with two "girls" sexually. Appellant wrote that he wanted to talk to the younger girl on the phone and asked "joeyGalPa" to take pictures of the younger girl and send them to him; appellant also emailed "joeyGalPa" a picture of his face and shoulders. In early February 2007, appellant sent a digital camera to an address he was given, which was monitored by the state police, who discovered that the camera had on it several pictures of appellant's penis. About ten days later, appellant called a phone number he had been given, which was answered by two female state police officers posing as "joeyGalPa" and the younger girl. During the course of conversation, appellant asked for a picture of the younger girl's breasts, arranged an encounter to take place on February 19, 2007 at a Comfort Inn in Butler County, approximately 200 miles away from appellant's residence in Lancaster, and suggested that the younger girl should have some alcohol beforehand to relax herself. Appellant arrived at the Comfort Inn on the arranged date and time, but evidently had second thoughts or suspected he might be apprehended; he turned his vehicle around in the parking lot and attempted to leave, but was arrested by state police who were waiting for him.
Appellant was charged in April 2007 with one count of first-degree felony unlawful contact with a minor, one count of second-degree felony unlawful contact with a minor, one count of second-degree felony criminal solicitation to commit sexual exploitation of a child, one count of second-degree felony criminal solicitation to commit sexual abuse of a child, one count of first-degree misdemeanor criminal attempt to corrupt a minor, and one count of first-degree misdemeanor criminal solicitation to corrupt a minor.*fn1
In January 2008, appellant pleaded guilty to all three solicitation charges and the single attempt charge, which amounted to two second-degree felonies and two first-degree misdemeanors. Upon pleading guilty to predicate offenses under Megan's Law (criminal solicitation to commit sexual exploitation of a child and criminal solicitation to commit sexual abuse of a child), appellant was ordered to undergo evaluation by the Pennsylvania Sexual Offender Assessment Board ("SOAB"). In April 2008, the SOAB determined that appellant was not a sexually violent offender and in August 2008, appellant's sentencing proceeding took place. Appellant's expert, Paul Mark Bernstein, a psychologist who had served on the SOAB and testified in numerous similar proceedings, stated that appellant had serious mental and emotional troubles that had been triggered by the dissolution of his life over the past several years, professional and marital problems, the arrest and prosecution for the crimes in this appeal, the subsequent loss of his job, home, and family, and the prospect of imprisonment and further punitive measures as a result of his criminal actions. Dr. Bernstein believed that appellant understood, regretted, and accepted responsibility for his actions. Dr. Bernstein did not see appellant as psychotic, psychopathic, or suffering from neurosis or a serious mental abnormality. Dr. Bernstein conceded that appellant's criminal conduct was disturbing, distressing, reprehensible, and borderline pedophiliac, but concluded that overall, appellant was a good candidate for rehabilitation as long as he continued treatment and therapy. N.T., 8/27/08, at 14-55. The trial court ultimately imposed total incarceration of one to two years, to be followed by eight years of probation.
At appellant's sentencing, the sides also debated whether he should be subject to the ten-year period of registration pursuant to Section 9795.1(a) of Megan's Law, which is triggered when a defendant is convicted of committing (or attempting, conspiring, or soliciting to commit) any of ten enumerated offenses upon minors or children,*fn2 or the more stringent lifetime registration mandated in Section 9795.1(b), which is triggered when a defendant is convicted of "two or more convictions of any of the offenses set forth in subsection (a)" or one of five more serious enumerated offenses upon minors or children.*fn3 , *fn4 The Commonwealth sought lifetime registration on the grounds that appellant pleaded guilty to two of the requisite enumerated subsection (a) offenses. Appellant's counsel responded that the "two or more" language in the provision should pertain only to prior Megan's Law convictions, which would mark the defendant as an un-rehabilitated repeat offender warranting the more serious penalty of lifetime registration. Appellant, his counsel asserted, may have committed more than one enumerated offense, but the offenses in question arose from the same criminal course of action or episode, were nonviolent, and appellant had no prior record at all of any Megan's Law offenses. The trial court agreed with the Commonwealth, noting that subsection (b) has no exception that would allow contemporaneous offenses or convictions to be the basis for imposing the shorter ten-year registration requirement. N.T., 8/27/08, at 67-69.
Appellant's post-sentence motion challenging the lifetime registration requirement was denied by the trial court.*fn5 The court relied upon Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006) for the position that a defendant convicted of more than one subsection (a) offense (in that case, indecent assault on different minor victims), even if the convictions occur at a single proceeding, is subject to the lifetime registration requirement because, unlike other sentencing schemes, Section 9795.1(b) does not distinguish between offenses that occur separately or sequentially and offenses that arise from the same criminal episode. The trial court rejected appellant's attempt to distinguish Merolla; appellant had argued that the defendant in Merolla committed his offenses upon multiple victims over several years, whereas appellant engaged in only one nonviolent (albeit continuing) course of contact over a relatively brief period of time, and there were no actual individual human victims harmed through his actions. Trial Ct. Op., 10/29/08, at 1-2.*fn6
The Superior Court affirmed in a March 2010 memorandum opinion. To the panel, Section 9795.1(b) expressly and clearly requires lifetime registration when an offender has "two or more" convictions of any of the subsection (a) offenses. The panel rejected appellant's argument that if the two convictions arise out of a single nonviolent criminal episode, then lifetime registration may not be warranted. Like the trial court, the panel cited Merolla for the proposition that there need not be a prior conviction for an offense or offenses committed earlier in time in order for lifetime registration to be imposed; the panel saw no basis for a sequential or chronological approach. To the panel, it was immaterial whether subsection (a) offenses or convictions are contemporaneous; the mere fact of multiple convictions mandates lifetime registration. Super. Ct. Op., 3/26/10, at 5-6.
This Court granted appellant's petition for allowance of appeal, rephrasing for clarity the question presented: "Does the lifetime registration requirement under 42 Pa.C.S.A. § 9795.1(b)(1) apply to those who plead guilty to two or more listed offenses when those offenses arise out of one, non-violent criminal episode?" Commonwealth v. Gehris, 13 A.3d 462 (Pa. 2011).
Appellant argues generally that imposing lifetime registration when an offender's multiple convictions arise from a single nonviolent criminal episode undermines the recidivist philosophy incorporated into the graduated statutory scheme. Appellant points out that a number of similarly graduated sentencing schemes, such as those for driving under the influence and the "three strikes" law regarding crimes of violence at 42 Pa.C.S. § 9714, entail some passage of time between offenses and/or convictions so that the offender has some opportunity to demonstrate remorse and rehabilitation. Should the offender squander the initial leniency and commit another offense, then the subsequent conviction will result in the harsher measures appropriate for repeat offenders. Appellant's Brief at 10-13.
Appellant also asserts that Merolla, upon which both lower courts relied, was decided on an improper reading of Section 9795.1 in comparison with the "three strikes" law. According to appellant, Section 9795.1 should be read on its own terms, and since it is silent on whether multiple convictions are to be understood as sequential, it is ambiguous and should be construed in appellant's favor, resulting in the ten-year registration requirement as opposed to the lifetime registration requirement, which appellant posits should be deployed only when a true "repeat offender" fails to mend his or her ways. Appellant's Brief at 13-15.
Appellant refers as well to Commonwealth v. [Gomer] Williams, 832 A.2d 962 (Pa. 2003), in which this Court concluded that in enacting Megan's Law, the General Assembly had public safety concerns primarily in mind, but also that the Legislature did not intend the registration, reporting, and counseling requirements to be punitive or unlimited. Appellant reads Williams as implying that when possible, "rehabilitation of the offender," "reducing the likelihood of recidivism," and "ensuring that offenders do not relapse into harmful behavior" are also legislative goals, even if they may be secondary to public safety.*fn7 Appellant's Brief at 15-16 (citing Williams, 832 A.2d at 977-81).
As a matter of logic, appellant continues, the tiered framework of Section 9795.1 implies a recidivist mindset that would be defeated by "mechanical" application, which was the flaw committed by the courts below and in Merolla. Appellant posits that under Merolla, a first-time nonviolent offender (like himself) who commits multiple "lesser" offenses simultaneously is given no chance to alter his or her future conduct. That offender would be automatically considered no different for registration purposes from defendants who commit the most serious violent offenses against minors and children, such as rape and incest, and who are formally deemed sexually violent predators. Appellant explains that in light of the nonviolent nature of his offenses, his voluntary submission to treatment and therapy, and the testimony by Dr. Bernstein that appellant is a "good candidate" for rehabilitation and reform, ten-year registration, along with supervised probation and continued counseling, is appropriate and sufficient while lifetime registration is disproportionately severe. Appellant's Brief at 16-21.
Alternatively, appellant argues that Merolla is factually distinguishable and inapplicable. In Merolla, the defendant pleaded guilty to two counts of indecent assault and one count of statutory sexual assault upon three different victims in separate incidents over several years. While not belittling the seriousness or "repugnance" of his own offenses, appellant compares his own lack of any past offenses, the nonviolent nature of the actions he committed here, which occurred in the course of a single criminal episode over a few weeks, and notes that since he was apprehended through a sting operation, no actual minor or child victims were harmed. Appellant adds that the rapid recent advancement of technology, such as internet chatting, makes it possible now for more than one enumerated offense, such as obscenity or unlawful contact, to occur during a single online encounter that would subject the offender to lifetime registration. To appellant, this result seems incongruous with how Megan's Law was intended to operate when it was adopted in 1995 and when the two-tiered registration provision was enacted in 2000. Appellant's Brief at 23-24.
The Commonwealth responds that because the registration requirements of Megan's Law are not punitive, per this Court's opinion in [Gomer] Williams, there is no basis for construing Section 9795.1 strictly in appellant's favor. The Commonwealth reasons that this appeal rests on the plain language of Section 9795.1, citing Commonwealth v. Vasquez, 753 A.2d 807 (Pa. 2000), for the point that courts may not "read language into" a statute if the language is clear as it stands: "Where there is no ambiguity, there is no room for interpretation." Id. at 809 (quoting Commonwealth v. [Tyrone] Williams, 652 A.2d 283, 285 (Pa. 1994)). To the Commonwealth, Section 9795.1 "means what it says": a defendant convicted of "two or more" enumerated offenses will be subject to lifetime registration regardless of whether the offenses or convictions were simultaneous or in sequence.
Nor does the Commonwealth concede that appellant's conduct amounted to a "single criminal episode." Rather, the Commonwealth describes an "extended period of criminal conduct" during which appellant committed all of the crimes to which he ultimately pleaded guilty. The Commonwealth argues that to coagulate these separate and distinct offenses would afford defendants like appellant a "volume discount" allowing commission of any number of Megan's Law offenses that would count only as ...