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Commonwealth of Pennsylvania v. Patrick John Gehris

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT


September 27, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
PATRICK JOHN GEHRIS, APPELLANT

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.

ARGUED: October 18, 2011

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 one, and lead to imposition of the lesser ten-year registration period -- an improper windfall. Commonwealth's Brief at 5-7.

This issue presents a question of statutory interpretation and application, which in turn presents a question of law. Our review, therefore, is plenary and non-deferential. See Commonwealth v. Conklin, 897 A.2d 1168, 1175 (Pa. 2006). It is well-settled that the object of statutory interpretation is to ascertain the intention of the General Assembly and that the plain language of the statute is generally the best indicator of such intent. 1 Pa.C.S. § 1921(a), (b). The words of a statute shall be construed according to rules of grammar and according to their common and approved usage. 1 Pa.C.S. § 1903(a). We will only look beyond the plain meaning of the statute where the words of the statute are unclear or ambiguous. 1 Pa.C.S. § 1921(c); see also Commonwealth v. Diodoro, 970 A.2d 1100, 1106 (Pa. 2009). Every statute shall be construed, if possible, to give effect to all its provisions, and when ascertaining legislative intent, there is a presumption that the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. § 1922(1).

If, however, it is determined that the plain language of a statute reveals ambiguity, there are a number of tools available to facilitate interpretation. These include: the occasion and necessity for the statute; the circumstances under which it was enacted; the mischief to be remedied; the object to be attained; former law, if any, including other statutes upon the same or similar subjects; the consequences of a particular interpretation; the contemporaneous legislative history; and any available legislative and administrative interpretations of the statute in question. See 1 Pa.C.S. § 1921(c).

Section 9795.1 of Megan's Law requires offenders to register with state police and notify community authorities in the area where they reside. The relevant language in the version current at the time of appellant's sentencing on August 27, 2008, read as follows:

(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. § 2901 (relating to kidnapping) where the victim is a minor.

18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle).

18 Pa.C.S. § 3124.2 (relating to institutional sexual assault).

18 Pa.C.S. § 3126 (relating to indecent assault) where the offense is graded as a misdemeanor of the first degree or higher.

18 Pa.C.S. § 4302 (relating to incest) where the victim is 12 years of age or older but under 18 years of age.

18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses) where the actor promotes the prostitution of a minor.

18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to obscene and other sexual materials and performances) where the victim is a minor.

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. § 9795.1. This is a graduated, two-tiered scheme. See Commonwealth v. Wilson, 910 A.2d 10, 18 (Pa. 2006) (describing ten-year registration requirements of Section 9795.1(a) as "milder sanction" than lifetime requirements set forth in Section 9795.1(b)).

In and of itself, subsection (b)(1), which imposes the lifetime registration requirement upon "[a]n individual with two or more convictions of any of the offenses set forth in subsection (a)" is not ambiguous or unclear. The problem confronted in this appeal arises when subsection (b)(1) is applied to an offender who has committed "two or more" subsection (a) offenses during the course of a single continuous criminal episode or course of conduct. As appellant points out, in our age of ever more rapid and varied technological communications, it is increasingly likely that this circumstance will arise often or in almost every case. This reveals an unfortunate lack of specificity in potential application of Section 9795.1. If the statutory scheme entails a "recidivist philosophy," as discussed in greater depth infra, then mechanical imposition of the lifetime registration requirement may not always be proper.

The essence of the recidivist philosophy is to afford first-time offenders (or offenders convicted of less serious offenses) some amount of time within which to modify their behavior away from criminality. Should they fail to take advantage of the opportunity, and transgress a second time or more, the "next" sentence will be more severe. The general concept has long been part of the common law. In 1716, English Serjeant-at-law William Hawkins wrote: "[W]here a Statute makes a second Offence Felony, or subject to a heavier Punishment than the first; it is always implied, That such second Offence ought to be committed after a Conviction for the first; from whence it follows, That if it be not so laid in the Indictment, it shall be punished but as the first Offence; for the gentler Method shall first be tried, which perhaps may prove effectual." WILLIAM HAWKINS, PLEAS OF THE CROWN, bk. I, c. 40, § 3 (1716).*fn8

In two recent cases, the U.S. Supreme Court has conveyed that certain sentencing schemes do imply a recidivist philosophy. See Sykes v. United States, ---U.S.---, --- (2011), 131 S.Ct. 2267, 2277 ("The provision [of the Armed Career Criminal Act at 18 U.S.C. § 924(e)] instructs potential recidivists regarding the applicable sentencing regime if they again transgress. It states an intelligible principle and provides guidance that allows a person to 'conform his or her conduct to the law.'");

United States v. Rodriguez, 553 U.S. 377, 385 (2008) ("[A]n offense committed by a repeat offender is often thought to reflect greater culpability and thus to merit greater punishment. Similarly, a second or subsequent offense is often regarded as more serious because it portends greater future danger and therefore warrants an increased sentence for purposes of deterrence and incapacitation [pursuant to the Armed Career Criminal Act at 18 U.S.C. § 924(e)]."). In the context of probation, other cases by the High Court have also portrayed, eloquently, a similar viewpoint. See Burns v. United States, 287 U.S. 216, 220 (1932) (stating that probation "was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable"); United States v. Murray, 275 U.S. 347, 357-58 (1928) ("The great desideratum [of probation] was the giving to young and new violators of law a chance to reform . . . . If the case was a proper one, great good could be done in stopping punishment by putting the new criminal on probation. . . . Probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence.").

This Court has explored the recidivist philosophy in several contexts. Commonwealth v. Dickerson, 621 A.2d 990 (Pa. 1993) addressed the "three strikes" statutory scheme at 42 Pa.C.S. § 9714, which sets mandatory sentencing for offenders convicted of "second and subsequent" violent offenses within seven years of a prior conviction of a crime of violence. At that time, the second-time offender minimum was five years; it is now ten years. The defendant in Dickerson committed two rapes of two different women on the same night. He was convicted by a jury of the first rape in 1988 and sentenced to seven and one-half to fifteen years in prison. He pleaded guilty to the second rape in 1989 and was sentenced under Section 9714 to seven and one-half years in prison, consecutive to the first sentence. This Court, however, held that Section 9714 did not apply because in the defendant's case, the first rape conviction in 1988 did not occur within seven years prior to commission of the rape that led to the second conviction. This conclusion was based in part upon analysis of the statutory language, but also upon the "recidivist philosophy" that was found to be implicated. Although the Court did not use the term "recidivist philosophy," the theory was embodied in the Dickerson Court's view that legislation such as Section 9714 aims "to punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline." Id. at 992. The Dickerson Court quoted from Commonwealth v. Sutton, 189 A. 556, 558 (Pa. Super. 1937), to describe its approach:

It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone, except the incorrigible one, who after being reproved, 'still hardeneth his neck.' If the heavier penalty prescribed for the second violation ... is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost.

Dickerson, 621 A.2d at 992. Citing Pennsylvania cases dating back to 1901, the Dickerson Court concluded: "The rule, though hoary with age, is nonetheless viable." Id. As such, imposition of the mandatory minimum sentence was deemed not to be appropriate in Dickerson.*fn9

Since Dickerson was handed down in 1993, this Court has on several occasions addressed how and when consideration of the recidivist philosophy is appropriate. A year later in [Tyrone] Williams, this Court noted that the recidivist philosophy "is a valid tool in interpreting ambiguous statutory language," but it is not a "constitutional principle or mandate," and "possesses no authority which would override clearly contrary statutory language." As such, the Court found that the provision at issue in that case, 18 Pa.C.S. § 7508, which sets mandatory enhanced sentences for drug trafficking convictions, was clear and unambiguous, requiring enhanced sentencing "if at the time of sentencing the defendant has been convicted of another drug trafficking offense[.]" The defendant in [Tyrone] Williams had committed his offenses in 1988 and 1991. He pleaded guilty and was convicted of both offenses in October 1991 and then was sentenced on both convictions in November 1991. This Court held that even though the October 1991 convictions arose at the same time, the mandatory minimum sentence of three years in prison and fine of $10,000 were warranted because the relevant trigger for Section 7508 was the time of sentencing (November 1991), not the time of offense commission or conviction. 652 A.2d at 284-86. See also Commonwealth v. Vasquez, 753 A.2d 807 (Pa. 2000) (Section 7508 makes no distinction between multiple convictions included in single criminal complaint as long as offenses are separate and distinct from each other).*fn10

In Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005), this Court addressed squarely what had been only a component part of Dickerson: "[W]hether the recidivist philosophy influences or controls the interpretation of the three strikes law" at 42 Pa.C.S. § 9714.*fn11 In Shiffler, the defendant's first violent crime conviction was based upon a 1997 guilty plea to three separate burglaries and his "second" and "third" violent crime convictions were based upon a guilty plea to burglary, aggravated assault, theft, and resisting arrest arising from an incident that occurred in 2001. Although in Shiffler, Section 9714 was not ambiguous with regard to the defendant's circumstances, he argued that mechanical application of the statute, which was silent as to "sequentiality" -- i.e., whether in order to be "strikes," convictions for predicate crimes must be separated by some time period -- led to ambiguity and even absurdity in circumstances like his own. This Court agreed:

The anomaly of appellant's situation is thus: while he has not ever been nor could he have been -- sentenced as a second-strike offender, a reflexive application of subsection 9714(a)(2) would subject him to sentencing as a third-strike offender. . . . We do not believe that such a result was intended by the General Assembly in adopting the graduated scheme of recidivist sentencing which is reflected in Section 9714.

Id. at 194 (emphasis omitted). Recalling Dickerson, the Shiffler Court concluded that "graduated" penalty schemes implicitly draw distinctions between offenders who can and do reform themselves and those who cannot or will not do so: "The generally recognized purpose of such graduated sentencing laws is to punish offenses more severely when the defendant has exhibited an unwillingness to reform his miscreant ways and to conform his life according to the law." 879 A.2d at 195. By focusing on the manner in which the statute operated as a whole, this Court understood that without an implied sequentiality component, representing the link between punishment, subsequent "foregone opportunities" to reform, repeat criminality, and the need for enhanced punishment, deployment of schemes like Section 9714 could betray their underlying rationale aligned with the recidivist philosophy. Id. The appropriate disposition, therefore, was to sentence the defendant as a second-strike offender subject to ten years in prison rather than as a third-strike offender subject to twenty-five years in prison. Id. at 194-96.

Building upon Shiffler, this Court held in Commonwealth v. McClintic, 909 A.2d 1241 (Pa. 2006), that the defendant, who had two prior violent crime convictions (aggravated assault in 1987 and robbery in 1996), and then committed two crimes -- robbery and burglary -- in a June 2002 incident, could not be "double-charged" as, concurrently, a third and fourth strike offender for the 2002 offenses. In the Court's view, because the 2002 offenses arose out of a single criminal episode and the defendant had no opportunity to reform, they should be treated together as a third strike. Id. at 1251-52.

Most recently, in Commonwealth v. Jarowecki, 985 A.2d 955 (Pa. 2009), this Court considered 18 Pa.C.S. § 6312, which criminalizes possession and dissemination of sexually explicit depictions of children. In Jarowecki, the question was whether the defendant's eight concurrent convictions were to be treated as one "first" offense, which would be a third-degree felony, and seven "second or subsequent" offenses, which would be more serious second-degree felonies under the statute. There was no question raised to dispute that the eight convictions were separate crimes and not part of a single episode. This Court, construing the terms "first" and "second or subsequent" in Section 6312, first noted that "[s]uperficially considered," imposition of the more punitive grading scheme was viable; nevertheless, the Court continued, "the object to be attained is the authentic password to the true meaning of the words of a law." Id. at 966 (internal quotation marks omitted). Following a thorough review of recidivist philosophy precedent, the Jarowecki Court concluded that Section 6312 embodied a recidivist philosophy, vacated the harsher grading that had been imposed by the lower courts, and remanded for resentencing. Id. at 961-69.

In light of the foregoing, we are satisfied that Section 9795.1, which sets forth a graduated scheme for Megan's Law registration, similar in nature to the graduated schemes discussed in this Court's prior case law, encompasses the recidivist philosophy in addition to its perhaps more obvious goals of public protection and deterrence. Of course, registration may not be punitive for purposes of the constitutional protections afforded to offenders, as this Court concluded in [Gomer] Williams. Nevertheless, registration obviously has serious and restrictive consequences for the offender, including prosecution if the requirement is violated. Registration can also affect the offender's ability to earn a livelihood, his housing arrangements and options, and his reputation. See also Fross v. County of Allegheny, 20 A.3d 1193 (Pa. 2011).

The "two or more convictions" language in subsection (b) seems clear and unambiguous on the surface. But if Section 9795.1 is viewed as a whole and the General Assembly's legislative findings and declaration of policy at 42 Pa.C.S. § 9791 are read closely, it is clear that the primary concern is with sexually violent predators. Considering the nine subsections in Section 9791, the term "sexually violent predator" appears nine times, particularly in the provision addressing repeat offenders: "sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments and that protection of the public from this type of offender is a paramount governmental interest." 42 Pa.C.S. § 9791(a)(2). References to nonviolent offenders are comparatively few, just four in all, and two of these pertain specifically to recent amendments accounting for the circumstance of released "offenders" who may be homeless or without a "fixed place of habitation." See 42 Pa.C.S. § 9791(a)(1) & (b)(3); see also Commonwealth v. Wilgus, 40 A.3d 1201 (Pa. 2012).

It is evident that in drafting Section 9795.1, the General Assembly meant to set up a graduated registration scheme. In this tiered approach, more serious (primarily violent) offenders and "true" recidivists who squander a given opportunity to reform are understandably subject to lifetime requirements. By contrast, lesser, first-time offenders, especially those who are nonviolent, receive an opportunity for rehabilitation and eventual freedom from the requirements if they "stay on the path" for ten years.

Without in any way condoning the criminal conduct that led appellant to his current circumstances, we would conclude that the record in this case directs application of the ten-year registration requirement. Appellant's two Megan's Law offenses were nonviolent, perhaps triggered by situational problems in his marriage and career, and arose out of the same course of conduct, which ultimately did not result in direct harm to any actual victims. Appellant had no criminal past, much less a history of Megan's Law offenses, and was taken into custody without resisting. In open court, he expressed remorse and regret and accepted responsibility for his actions. He voluntarily undertook psychotherapy and has embraced the treatment, was not found to be a sexually violent predator and, in fact, was described by a former SOAB member as a good candidate for rehabilitation. It is true that appellant was convicted of "two or more" Megan's Law subsection (a) offenses, and without consideration of how this statutory scheme falls within the sphere of recidivist philosophy legislation detailed above, a strict, mechanical application of Section 9795.1(b) would result in imposition of the lifetime registration requirement. But, we would conclude that Section 9795.1 embodies the recidivist philosophy and reflects a belief that first-time and lesser offenders are capable of reform and rehabilitation if given an opportunity to do so under the still-punitive aegis of relatively lighter discipline, as well as the threat of harsher treatment next time, should there be a next time. We would therefore hold that a defendant convicted of "two or more" subsection (a) offenses are subject to the lesser sanction of the ten-year registration requirement so long as it is clear that the offenses were part of the same course of criminal conduct. We would therefore 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.

For the above reasons, we would vacate and remand.

Messrs. Justice Saylor and Baer join this opinion.


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