Norman E. Gregory, Petitioner
Pennsylvania State Police, Respondent
Submitted: February 23, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE DAN PELLEGRINI,
MICHAEL H. WOJCIK, JUDGE.
this Court for disposition in our original jurisdiction are
cross-applications for summary relief regarding the
application of Pennsylvania's sex offender registration
scheme for convicted sex offenders in the act known as the
Sexual Offender Registration and Notification Act (SORNA),
which is the General Assembly's fourth iteration of the
law commonly referred to as Megan's Law. Based on the
Supreme Court's recent decision in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied,
__U.S.__, 138 S.Ct. 925 (2018), we grant in part, deny in
part, and dismiss as moot in part the cross-applications.
December 29, 2017, Norman E. Gregory (Petitioner), proceeding
pro se, filed a Third Amended Petition for Review
(Petition) against Respondent Pennsylvania State Police
(PSP). In Count I of the Petition, Petitioner
alleges that SORNA is unconstitutional as applied to him
because it denies him equal protection under the law. In
Count II, he requests that this Court strike Section
9799.11(b)(2) of SORNA, 42 Pa. C.S. §9799.11(b)(2),
which declares that SORNA "shall not be construed as
punitive." He claims it is for the courts to determine
whether or not a statute is punitive, not the General
Assembly. In Count III, he alleges that SORNA's
notification and registration requirements and related
procedures are unconstitutional as applied to him under the
Ex Post Facto clause of the U.S. Constitution, Article I,
Section 10. Petition at ¶¶16-32.
facts of this case are not in dispute and are summarized as
follows. Petitioner pled nolo contendere on March 2, 1983, in
the Allegheny County Court of Common Pleas (trial court) to
charges including Attempted Rape, Rape, Robbery, Indecent
Assault, Burglary, Terroristic Threats, False Imprisonment,
Simple Assault and Recklessly Endangering Another Person.
Gregory v. Pennsylvania State Police (Pa. Cmwlth.,
No. 245 M.D. 2015, filed October 3, 2016), slip op. at 2. On
February 15, 1984, the trial court sentenced him to an
aggregate term of incarceration of 17½ to 50 years.
Id. Petitioner is currently incarcerated at a state
correctional institution. Id. Petitioner has been
granted parole but remains incarcerated with the Pennsylvania
Department of Corrections awaiting approval of a home plan.
Id. Upon his release from incarceration, Petitioner
will be required to register as a sex offender under SORNA.
See 42 Pa. C.S. §9799.13(2).
established a three-tier classification system for sexual
offenders. 42 Pa. C.S. §9799.14. An offender's tier
status is determined by the offense committed and impacts the
length of time an offender is required to register and the
severity of the punishment should an offender fail to
register or provide false registration information. 42 Pa.
C.S. §9799.15; 18 Pa. C.S. §4915.1. Under SORNA,
Attempted Rape and Rape are Tier III offenses. 42 Pa. C.S.
§9799.14(d)(4). Tier III offenders are required to
register for the offender's lifetime. 42 Pa. C.S.
the pleadings closed, the parties filed cross-applications
for summary relief. Petitioner filed a Motion for Summary
Judgment seeking summary judgment as to Counts II, relating
to the General Assembly's classification of SORNA as
nonpunitive, and III of his Petition, his ex post facto
claim. In turn, PSP filed an Application for Summary Relief
as to all three counts. Both parties filed answers in
response and briefs in support. The cross-applications are ready
III - Ex Post Facto Law
begin by addressing the parties' applications as they
pertain to Count III of the Petition, Petitioner's ex
post facto claim. Petitioner alleges that he should not be
subjected to SORNA's registration requirements based on
the Supreme Court's recent decision in Muniz. In
Muniz, the Supreme Court held that SORNA's
enhanced registration requirements are punitive in effect and
cannot be applied retroactively. Because SORNA went into
effect after his conviction, Petitioner asserts that
application of SORNA against him violates the ex post facto
clause of the United States and Pennsylvania Constitutions.
PSP concedes that "Muniz is final and
dispositive in the instant case regarding the ex post facto
arguments set forth in Count III of the [Petition]."
Respondent's Status Report, 2/8/18, at ¶9.
the federal and state constitutions prohibit the enactment of
"ex post facto" laws. U.S. Const. art. I, §10;
Pa. Const. art. I, §17. In Muniz, our Supreme
Court examined whether SORNA constituted an unconstitutional
ex post facto law. The Court opined there are two critical
elements that must be met for a criminal or penal law to be
deemed ex post facto. First, "'it must be
retrospective, that is, it must apply to events occurring
before its enactment.'" Muniz, 164 A.3d at
1195-96 (quoting Weaver v. Graham, 450 U.S. 24, 29
(1981)). Second, "'it must disadvantage the offender
affected by it.'" Id. at 1196 (quoting
Weaver, 450 U.S. at 29). Applying this analysis to
SORNA, the Court determined that application of SORNA
implicated the ex post facto clauses because the statute
would inflict greater punishment on the sex offender than the
law in effect at the time he committed his crimes.
Id. at 1196. Thus, our Supreme Court held that the
registration provisions of SORNA are punitive in nature and a
retroactive application violates the federal Ex Post Facto
Clause of the U.S. Constitution, U.S. Const. art. I,
§10, and the ex post facto clause of the Pennsylvania
Constitution, Pa. Const. art. I, §17.
Petitioner committed his crimes and entered a plea of nolo
contendere long before SORNA went into effect, when the
registration requirements for Attempted Rape and Rape were
much less onerous. Consequently, SORNA cannot be applied
retroactively to Petitioner without violating the ex post
facto clauses of the U.S. and Pennsylvania Constitutions.
Muniz, 164 A.3d at 1192-93. Thus, Petitioner is not
required to register under SORNA for the 1982 offenses that
led to his 1983 conviction. Accordingly, we grant summary
relief to Petitioner on Count III of his Petition and
correspondingly deny summary relief to PSP on this
NOW, this 2nd day of May, 2018, upon
consideration of the parties' cross-applications for
summary relief to Petitioner's Third Amended Petition for
Review (Petition), and for the reasons set forth in the
foregoing opinion, the applications are ...