Argued: December 11, 2013.
Court of ORIGINAL JURISDICTION.
Anthony J. Petrone, Philadelphia, for petitioner.
Sue Ann Unger, Senior Deputy Attorney General, Philadelphia, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI. DISSENTING OPINION BY JUDGE BROBSON.
DAN PELLEGRINI, President Judge
Before the Court are the cross-motions for summary judgment of A.S. and the Pennsylvania State Police (PSP) filed pursuant to Pa. R.C.P. No. 1035.2 with respect to A.S.'s Petition for Review in the Nature of a Complaint in Mandamus (Petition) seeking to compel PSP to change his sexual offender registration status under the former Section 9795.1 of the Sentencing Code, 42 Pa. C.S. § 9795.1, from a lifetime registrant to a ten-year registrant. For the reasons that follow, we grant A.S.'s cross-motion for summary relief and the mandamus relief sought in the Petition
and we deny PSP's motion for summary relief.
This action arose out of the interactions between A.S., who was 21 years old at the time of the incident, and a 16-year-old female minor who engaged in consensual sexual relations. Because the age of consent in Pennsylvania is 16, the consensual sex between those individuals was not a crime. See Section 3122.1 of the Crimes Code, 18 Pa. C.S. § 3122.1. While it is not a crime to have sex with a 16-year-old minor, somewhat anomalously, it is a crime to photograph or cause to be photographed a 16-year-old having consensual sex and causing a minor to take photographs of herself engaging in the sexual acts. A.S. admitted that he met the victim online, developed a relationship with her which led to consensual sex, and that he persuaded the victim to take photographs of herself in various sexual positions with her digital camera. He also used the minor's digital camera to photograph the two engaging in sexual relations.
As a result of this conduct, A.S. pled guilty in the Court of Common Pleas of Montgomery County (trial court) to one count of violating Section 6312(b) of the Crimes Code, 18 Pa. C.S. § 6312(b) (sexual abuse of children), one count of violating Section 6318(a)(5), 18 Pa. C.S. § 6318(a)(5) (unlawful contact with a minor), and one count of violating Section 6301, 18 Pa. C.S. § 6301 (corruption of minors). (Guilty Plea Colloquy, attached to PSP's Memo as Exhibit D4). As a result of his guilty pleas,
the trial court sentenced A.S. to two concurrent 5- to 23-month terms of imprisonment and a consecutive 5-year probationary term. (Trial/Plea/Sentence Form, attached to PSP's Memo as Exhibit D7; N.T. 2/28/02 at 66-67, attached to PSP's Memo as Exhibit D6).
As a collateral consequence of his guilty plea to those charges, the former Section 9795.3 of the Sentencing Code, 42 Pa. C.S. § 9795.3, required the trial court to inform offenders at the time of sentencing of their registration requirements as a sex offender. At A.S.'s sentencing, the trial court advised him that he would be subject to the reporting requirements set forth in the former Section 9795.1 of the Sentencing Code, 42 Pa. C.S. § 9795.1. (N.T. 2/28/02 at 59-60). The trial court also noted that it did not find A.S. to be a sexually violent predator (SVP) as assessed under the former Section 9795.4, 42 Pa. C.S. § 9795.4, who were subject to a lifetime registration requirement under the former Section 9795.1(b)(3), 42 Pa. C.S. § 9795.1(b)(3).
The sentencing hearing transcript establishes that the trial court, the prosecuting attorney, and A.S. all believed that he would be subject to a ten-year and not a lifetime registration requirement under the former Section 9795.1 of the Sentencing Code. At the hearing, A.S.'s mother testified on his behalf stating, " 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 ten-year reporting component to this punishment ." (N.T. 2/28/02 at 29-30 (emphasis added)). To this, the trial court responded, " I know." ( Id. at 30). This statement by A.S.'s mother also supports his contention that, at the time of sentencing, he believed that the collateral consequence of his guilty pleas under Megan's Law II was a ten-year and not a lifetime registration requirement. In addition, while presenting the Commonwealth's position on sentencing, the Assistant District Attorney stated, " He's now facing a ten-year registration for Megan's Law . That's true. But why is he facing this ten-year registration ? He is because what he did is a serious offense." ( Id. at 45 (emphasis added)). No appeals were filed.
On August 2, 2002, upon his release from imprisonment, A.S. registered with PSP as a sex offender as required by Megan's Law II. Following the expiration of the ten-year period in August 2012, A.S. sought to have his name removed from the registry. PSP refused to do so, claiming that because A.S. pled guilty to one count each of violating Sections 6312(b) and 6318(a)(5) of the Crimes Code, which are each listed offenses requiring a ten-year registration period under the former Section 9795.1(a)(1) of the Sentencing Code, the former Section 9795.1(b)(1) required a lifetime registration because A.S. was " an individual with two or more convictions of ... the offenses set forth in subsection (a)." Based on PSP's refusal to remove his name from the registry, A.S. filed the instant Petition in this Court and the parties filed cross-petitions for summary relief.
A.S. argues that he is entitled to summary relief because the offenses to which he pled guilty stemmed from a single criminal act, criminal episode or course of conduct, i.e ., causing the photographing of a minor in a sexual act and only require a ten-year registration under the former Section 9795.1(a)(1). He contends that the enhancement provision of the former Section 9795.1(b)(1), requiring lifetime registration for multiple offenses, only applies to those convicted of separate acts of misconduct that lead to more than one criminal conviction, i.e ., repeat offenders and recidivists. A.S. claims that the former Section 9795.1(b)(1) should not apply to individuals who only engage in a single act of misconduct that, by statute and prosecutorial discretion, results in multiple criminal charges and convictions. He asserts that his guilty pleas to the two enumerated offenses in the former Section 9795.1(a)(1) should be treated as a single conviction and not as two or more convictions for purposes of the former subsection (b)(1). As a result, A.S. argues that it is improper for PSP to classify him as a lifetime registrant. He asserts that to hold otherwise would violate the Equal Protection Clause because disparate registration classifications would emerge for similarly-situated defendants based solely on the charging decisions made by prosecutors.
In opposition to A.S.'s motion and in support of its own, PSP argues that it properly designated A.S. as a lifetime registrant under the former Section 9795.1(b)(1). PSP claims that the language of the former subsection (b)(1) is clear and that A.S. is subject to its provisions because he is " an individual with two or more convictions of any of the offenses set forth in subsection (a)." PSP asserts that the acts underlying the crimes are of no consequence; if the defendant is convicted of two or more crimes set forth in subsection (a)(1), he or she is a lifetime registrant under subsection (b)(1). Because A.S. is such a defendant, PSP contends that he cannot show a clear right to have his lifetime registrant designation changed and is, therefore, not entitled to mandamus relief.
The question here is whether A.S.'s guilty pleas to two separate crimes involving photographs of the same minor were one or two convictions for the purpose of the sex offender registration requirements contained in the former Section 9795.1 of the Sentencing Code. If the guilty plea is considered to be one conviction for this purpose, then under that provision, A.S. is only required to register as a sex offender for ten years under the former subsection (a)(1), but if they are considered to be two convictions, he would be subject to the lifetime registration requirement of the former subsection (b)(1).
In Commonwealth v. Gehris, ___ Pa. ___, 54 A.3d 862 (2012), a defendant, Patrick Gehris, began corresponding with what he believed to be a 19-year-old female in an internet chat room in October 2006. The female was actually a PSP officer trained to pose as a teenager to collect evidence and investigate sexual predators. In early 2007, Gehris's exchanges included requests to meet younger girls 11- to 13-years old that the PSP officer might know and that he fantasized about having sex with the two girls. Gehris wrote that he wanted to talk to the younger girl on the phone and asked the PSP officer to send him pictures of the younger girl. Gehris e-mailed the PSP officer photos of his face and shoulders and sent a digital camera containing pictures of his penis to an address that he had been given. About ten days later, Gehris called a
number that he had been given and spoke with the PSP officer posing as the 19-year-old and another officer posing as a 13-year-old girl. During the conversation, Gehris asked for a picture of the younger girl's breasts and arranged a meeting at a motel approximately 200 miles from his residence with both of the girls to take place on February 19, 2007. Gehris suggested to the younger girl that she have some alcohol beforehand to relax herself. Gehris arrived at the motel at the arranged date and time, but turned his vehicle around in the parking lot and attempted to leave when he was arrested by PSP.
In April 2007, Gehris was charged with six crimes:
o unlawful contact with a minor to engage in involuntary deviate sexual intercourse in violation of Section 6318(a)(1) of the Crimes Code, 18 Pa. C.S. § 6318(a)(1), for arranging the meeting at the motel;
o unlawful contact with a minor to engage in the sexual abuse of children in violation of Section 6318(a)(5) for requesting the nude photographs;
o criminal solicitation for the sexual exploitation of children in violation of Section 902(a), 18 Pa. C.S. § 902(a), and Section 6320, 18 Pa. C.S. § 6320, for soliciting the 19-year-old to procure the 13-year-old for sexual exploitation;
o criminal solicitation for the sexual abuse of children in violation of Sections 902(a) and 6312 for soliciting the 19-year-old to obtain nude photographs of the 13-year-old;
o criminal solicitation for the corruption of a minor in violation of Sections 902(a) and 6301(a) for soliciting the 19-year-old to obtain a 13-year-old for sexual activity; and
o criminal attempt of the corruption of a minor in violation of Section 901, 18 Pa. C.S. § 901, and Section 6301(a), for driving to the motel to engage in the planned sexual activity.
Gehris pled guilty to the solicitation and attempt charges and was sentenced to a one- to two-year term of imprisonment with a consecutive eight-year probationary term. Because Gehris was guilty of both the criminal solicitation for the sexual exploitation of children and criminal solicitation for the sexual abuse of children, the trial court found that he was subject to the lifetime registration requirement of the former Section 9795.1(b)(1) of the Sentencing Code.
On appeal from an unreported Superior Court opinion affirming the trial court's determination, the Pennsylvania Supreme Court considered whether Gehris was subject to the former Section 9795.1(b)(1) lifetime registration requirement due to his guilty pleas to two subsection (a)(1) offenses arising out of a four-month course of conduct that were contained in a single criminal information. However, the six sitting Justices were unable to reach a
consensus in the case, resulting in a per curiam affirmance of the Superior Court order due to an evenly divided Supreme Court.
The Opinion in Support of Affirmance (OISA) concluded that the language of the former Section 9795.1(b)(1) was clear and unambiguous and rejected an alternative interpretation that would limit the reach of the former subsection (b)(1) to only repeat offenders or recidivists. The OISA adopted a similar statutory-construction approach to that of the Superior Court in Merolla, explaining:
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.
Gehris, ___ Pa. at ___, 54 A.3d at 867-68 (footnote omitted).
The Opinion in Support of Reversal (OISR) agreed that, in isolation, the statutory language of the former Section 9795.1(b)(1) was " not ambiguous or unclear." Gehris,
___ Pa. at ___, 54 A.3d at 875. However, in the OISR's view, that does not necessarily address the problem:
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.
Id. at, 54 A.3d at 875.
In support of this position, the OISR reviewed the history of that recidivist philosophy and its adoption and application by the United States Supreme Court and our Supreme Court. One of the cases recounted was:
Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d 1241 (2006) [in which the Supreme Court held] 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 " ...