Argued, June 18, 2014
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Court of ORIGINAL JURISDICTION.
Burton A. Rose, 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 RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE COHN JUBELIRER. Judge McCullough concurs in the result only.
COHN JUBELIRER, JUDGE
Before this Court, in our original jurisdiction, are cross-motions for summary judgment filed by Richard Coppolino (Coppolino) and the Commissioner of the Pennsylvania State Police (PSP), Frank Noonan (Commissioner), on Coppolino's Petition for Review in the Nature of a Petition for a Writ of Mandamus (Petition). In his Petition, Coppolino asks this Court to direct the Commissioner to remove Coppolino's name from the list of offenders required to comply with the provisions of the law known as Megan's Law IV or the Sexual Offender Registration and Notification Act (SORNA)., In essence, Coppolino argues
that, because he completed his sentence, including probation, before Megan's Law IV was enacted, certain provisions as applied to him constitute an unconstitutional ex post facto punishment.
On April 30, 2013, Coppolino filed his Petition with this Court seeking relief in the nature of mandamus alleging that Megan's Law IV constitutes an impermissible ex post facto punishment and is unconstitutionally overbroad in its application to Coppolino. Coppolino also alleged that the wording of the statute regarding which individuals are required to register did not include him because he never failed to register under Megan's Law III. The following facts, alleged in Coppolino's Petition, are not in dispute. Coppolino " was found guilty of Involuntary Deviate Sexual Intercourse, Aggravated Indecent Assault, Simple Assault, Recklessly Endangering Another Person, Unlawful Restraint, Terroristic Threats, and Intimidation of a Witness" on August 3, 2001, after a jury trial. (Petition ¶ 1; Answer and New Matter (Answer) ¶ 1.) On November 26, 2001, Coppolino was sentenced to five to ten years of imprisonment followed by three years of probation. (Petition ¶ 2; Answer ¶ 2.) During his incarceration, Coppolino filed a Petition for Relief under the Post Conviction Relief Act and, in an agreement to resolve the suit, Coppolino was resentenced on June 25, 2007, to a term of thirty-five months and eleven days to seventy months and twenty-two days imprisonment running from the date of his conviction, August 3, 2001 (effectively time served), followed by three years of probation. (Petition ¶ 3; Answer ¶ 3.)
At his resentencing, in June 2007, Megan's Law III was in effect and Coppolino's
conviction for Involuntary Deviate Sexual Intercourse would render him a lifetime registrant. Section 9795.1(b)(2) of Megan's Law III, formerly 42 Pa. C.S. § 9795.1(b)(2) (designating individuals convicted of involuntary deviate sexual intercourse as lifetime registrants). Under Megan's Law III, Coppolino was required to: (1) register his current and intended residences; (2) register current or intended employment; (3) register schools where he was currently enrolled or intended to enroll as a student; (4) update any changes to the registered information within 48 hours; (5) submit to photographing and fingerprinting; and (6) verify his residence annually in person. Sections 9795.2 and 9796 of Megan's Law III, formerly 42 Pa. C.S. § § 9795.2, 9796. Section 4915(c) of the Crimes Code provides, in pertinent part, that failure to comply with these requirements of Megan's Law III could result in a second-degree felony conviction for a first offense, while failure to provide accurate information when registering or verifying constituted a first-degree felony. 18 Pa. C.S. § 4915(c)(2), (4). Coppolino registered with the PSP upon his release from incarceration and verified his registration yearly thereafter. (Sexual Offender Registration, June 26, 2007, Answer Ex. R4.)
Coppolino filed a Petition for Writ of Habeas Corpus with the Montgomery County Court of Common Pleas (trial court) on June 16, 2010, asserting that the trial court had failed to inform him at any time of his Megan's Law III registration requirements. (Petition ¶ 5; Answer ¶ 5.) The trial court denied this petition and Coppolino appealed. The Superior Court held that Coppolino's claim was not amenable to habeas corpus relief and that, despite the trial court's failure to inform him of the registration requirements, Coppolino was still required to comply with Megan's Law III. Commonwealth v. Coppolino (Pa. Super., No. 80 EDA 2011, filed December 16, 2011), slip op. at 5, 9. Nonetheless, the Superior Court remanded the matter to the trial court to allow the trial court to inform Coppolino of his Megan's Law obligations. Id., slip op. at 9. However, at the time Coppolino filed his Petition with this Court, the trial court had not yet done so.
On December 20, 2011, approximately five months after Coppolino completed his sentence, including probation, Pennsylvania enacted Megan's Law IV, which went into effect a year later, on December 20, 2012. On December 3, 2012, the PSP sent Coppolino a letter notifying him that, as of December 20, 2012, he would have to comply with the requirements of Megan's Law IV, under which he was designated a Tier III offender. (Letter from PSP to Coppolino
(December 3, 2012) at 1, Petition Ex. 1.) Under Megan's Law IV, Coppolino must register a wider array of information with the PSP, including aliases, nicknames, Internet identifiers under which he communicates or posts, date of birth, social security number, telephone number, passport, driver's license, professional licenses, and license plate or motor vehicle registration numbers. Section 9799.16(b) of Megan's Law IV, 42 Pa. C.S. § 9799.16(b). Coppolino must appear in person quarterly, rather than annually, to verify his registration information. Section 9799.15(e)(3) of Megan's Law IV, 42 Pa. C.S. § 9799.15(e)(3). In addition to being fingerprinted and photographed, Coppolino must also provide palm prints and DNA samples. Section 9799.16(c)(5)-(6) of Megan's Law IV, 42 Pa. C.S. § 9799.16(c)(5)-(6). Coppolino must appear in person at a registration site at least 21 days before traveling outside of the United States and provide information about the planned trip, including dates of travel, destinations, and temporary lodging. 42 Pa. C.S. § 9799.15(i). Finally, Coppolino must update changes in his registration information, including temporary lodging, cell phone numbers, and information relating to motor vehicles he owns or operates, in person at a registration site within three business days of any change or potentially face a five year prison sentence. 42 Pa. C.S. § § 9799.15(g), 9799.21(a); 18 Pa. C.S. § 4915.1(c).
In response to Coppolino's Petition, the Commissioner filed preliminary objections in the nature of a demurrer, which this Court overruled by Opinion and Order dated July 22, 2013. Coppolino v. Commissioner of the Pennsylvania State Police (Pa. Cmwlth., No. 214 M.D. 2013, filed July 22, 2013) (single judge op.) Coppolino filed his Motion for Summary Judgment
with this Court on February 21, 2014, averring that: (1) the changes to Megan's Law IV, described above, make the law so much more punitive than previous versions of Megan's Law as to render the statute an ex post facto law; and (2) Megan's Law IV is unconstitutionally overbroad because it burdens Coppolino's right to anonymous online speech while his offense did not involve a minor or the Internet. On March 20, 2014, the Commissioner filed his Cross-Motion for Summary Judgment alleging that he is entitled to summary relief because the provisions of Megan's Law IV are not punitive, applying Megan's Law IV does not violate Coppolino's due process and equal protection rights, and Megan's Law IV is applicable to Coppolino, thereby requiring him to register as a sex offender regardless of whether he never failed to register under Megan's Law III.,,
Initially, we note that Coppolino's Petition seeks mandamus relief. With regard to mandamus, the Supreme Court has explained that:
The writ of mandamus exists to compel official performance of a ministerial act or mandatory duty. See Delaware River Port Auth. v. Thornburgh, . . . 493 A.2d 1351, 1355, 508 Pa. 11 ([Pa.] 1985). Mandamus cannot issue " to compel performance of a discretionary act or to govern the manner of performing [the] required act." Volunteer Firemen's Relief Ass'n of City of Reading v. Minehart, . . . 203 A.2d 476, 479, 415 Pa. 305 ([Pa.] 1964). This Court may issue a writ of mandamus where the petitioners have a clear legal right, the responding public official has a corresponding duty, and no other adequate and appropriate remedy at law exists. Id.; see Board of Revision of Taxes v. City of Philadelphia, . . . 4 A.3d 610, 627, 607 Pa. 104 ([Pa.] 2010). Moreover, mandamus is proper to compel the performance of official duties whose scope is defined as a result of the mandamus action litigation. Thornburgh, 493 A.2d at 1355. Thus, " we have held that mandamus will lie to compel action by an official where his refusal to act in the requested way stems from his erroneous interpretation of the law." Minehart, 203 A.2d at 479-80.
Fagan v. Smith, 615 Pa. 87, 41 A.3d 816, 818 (Pa. 2012) (second alteration in original). With these principles in mind, we turn to the arguments raised by the parties in their cross-motions for summary relief.
II. Ex Post Facto
Coppolino argues that the registration and notification provisions of Megan's Law IV are more punitive than those of previous versions of Megan's Law to such an extent that Megan's Law IV constitutes an impermissible ex post facto law as to Coppolino, where he completed his sentence prior to the enactment of these new provisions. The Commissioner, in turn, relying on decisions of the Pennsylvania courts holding the registration requirements of previous versions of Megan's Law to be non-punitive, argues that the provisions of Megan's Law IV do not implicate the ex post facto clauses of the United States and Pennsylvania Constitutions.
Both the United States and Pennsylvania Constitutions prohibit ex post facto laws. U.S. Const. Art. I § 10 (stating that " [n]o State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . ." ); Pa. Const. art. I, § 17 (stating that " [n]o ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed" ). These prohibitions on ex post facto laws in the United States and Pennsylvania Constitutions are subject to the same analytical framework. Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d 163, 184 (Pa. 2012). A law violates these prohibitions if, inter alia, it " changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed." Id. In determining whether a law inflicts punishment, Pennsylvania courts apply a two-prong analysis articulated by the United States Supreme Court in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Lehman v. Pennsylvania State Police, 576 Pa. 365, 839 A.2d 265, 271 (Pa. 2003). The first prong of this test requires examination of whether the General Assembly's intent was punitive. Id. If the intent was punitive, the statute constitutes punishment. If the intent is civil and non-punitive the second prong of the test applies, which requires examining " whether the statute is 'so punitive either in purpose or effect as to negate [Congress's] intention to deem it civil.'" Id. (quoting Smith,
538 U.S. at 92) (alteration in original). In making this determination, the United States Supreme Court has supplied seven factors (referred to as the Mendoza-Martinez factors):
1) whether the sanction involves an affirmative disability or restraint; 2) whether it has historically been regarded as a punishment; 3) whether it comes into play only on a finding of scienter ; 4) whether its operation will promote the traditional aims of punishment -- retribution and deterrence; 5) whether the behavior to which it applies is already a crime; 6) whether the alternative purpose to which it may rationally be connected is assignable for it; and 7) whether it appears excessive in relation to the alternative purpose assigned.
Lehman, 839 A.2d at 271 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)) (italics in original). In balancing these factors, some carry more weight than others. For instance, in Smith, the United States Supreme Court held that the third and fifth factors--whether the sanctions required a finding of scienter and whether the behavior to which the sanctions apply is already a crime--were " of little weight" because " [t]he regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern." Smith, 538 U.S. at 105. The sixth factor--a sanction's connection to a legitimate, non-punitive purpose, is one of the most important considerations. Id.; Commonwealth v. Williams,
574 Pa. 487, 832 A.2d 962, 979 (Pa. 2003).
In approaching this question, we, like the Superior Court, in a concurring opinion in Commonwealth v. Perez, 97 A.3d 747, 2014 PA Super 142 (Pa. Super., filed 2014):
do not question the legislature's wisdom in enacting [Megan's Law IV] or the breadth of its provisions. Our focus is the timing of the application of its provisions. Specifically, the task before this Court is to decide whether the statute crosses the line from a permissibly retroactive ...