Pennsylvania Supreme Court rejects SORNA challenge

By Larry . . . In these consolidated appeals, Commonwealth v. Lacombe and Commonwealth v. Witmayer, the Commonwealth (state) challenged orders of the Montgomery County Court of Common Pleas relieving appellees Claude Lacombe and Michael Witmayer of their duties to comply with Subchapter I of the Sex Offender Registration and Notification Act.

To achieve its dual goals of ensuring public safety without creating another unconstitutionally punitive scheme, the General Assembly made a number of material changes to the operation of SORNA. In response to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and the Superior Court’s decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I) (invalidating SORNA’s mechanism for determining SVP status, the General Assembly enacted Subchapter I. See 42 Pa.C.S. §9799.51(b)(4)), rev’d 226 A.3d 972 (Pa. 2020). The retroactive application of which became the operative version of SORNA for those sexual offenders whose crimes occurred between April 22, 1996 and December 20, 2012. Subchapter I applies to those convicted of a sexually violent offense after April 22, 1996, but before December 20, 2012. See 42 Pa.C.S. §9799.52(1), (2). Those convicted of one of the triggering offenses must register either for a period of ten years or for life. See 42 Pa.C.S. §9799.55(a), (b). Those offenders designated as SVPs must register for life. Id. §9799.55(b)(3).

The court noted that General Assembly removed a number of crimes which were included in SORNA but are not necessarily from the list of triggering offenses in Subchapter I, including, but not limited to:

  • unlawful restraint;
  • false imprisonment;
  • interference with custody of children; and
  • invasion of privacy.

Subchapter I still requires that all offenders must contact the PSP within three days of any change to their registration information, including changes to residence, employment, or education. However, Subchapter I does not require that the offender appear in person to satisfy this obligation. 

Two major points are raised, the Commonwealth’s bogus jurisdictional argument, and whether or not Subchapter I imposes disabilities or restraint.

Point 1:  The Commonwealth raised for the first time on appeal that if Subchapter I is punitive, then any challenge thereto had to be raised in a timely petition under the Post-Conviction Relief Act (PCRA). The court soundly rejected that argument and held that it has not yet required that sexual offender registration statutes be challenged through the PCRA or some other procedural mechanism.

Point 2:  In my opinion, the decision tuned on point 2 in terms of whether the scheme imposes any disabilities or restraint. Subchapter I offenders are now required to report in person annually rather than quarterly 42 Pa.C.S. §9799.60(b). This limits the in-person appearances of lifetime registrants to twenty-five times over a twenty-five-year period as compared to 100 times over a twenty-five-year period, which was determined to be an affirmative disability or restraint in Muniz. The court held that the currently-required annual appearance is necessary to maintain a useful updated photograph on the Megan’s Law website. Also, the court noted that subchapter I offenders are no longer required to appear in person to report changes to registration-related information. See 42 Pa.C.S. §9799.56(a)(2). In addition, the majority of these offenders are subject only to a ten-year reporting requirement rather than the fifteen or twenty-five year periods considered in Muniz. Compare 42 Pa.C.S. §9799.55 with 42 Pa.C.S. §9799.15(a) (effective Dec. 20, 2012 through Feb. 20, 2018). Lifetime registrants may now petition for removal from the registry after twenty-five years. See 42 Pa.C.S. §9799.59.

Quoting from the court, “The in-person reporting requirements that remain in Subchapter I are minimal and clearly necessary, and we thus find Subchapter I does not impose any direct affirmative disability or restraint. As the above Mendoza-Martinez analysis clearly reflects, Subchapter I effected significant changes from the original version of SORNA, retroactive application of which we found unconstitutional in Muniz. To summarize, we find three of the five factors weigh in favor of finding Subchapter I nonpunitive. Additionally, we give little weight to the fact Subchapter I promotes the traditional aims of punishment and give significant weight to the fact Subchapter I is narrowly tailored to its nonpunitive purpose of protecting the public.”

NARSOL is disappointed in the ruling and had hoped the outcome would be different. Since this is a decision from the state’s highest court, there is no other avenue of appeal other than a cert petition to the U.S. Supreme Court. Based on the Supreme Court’s denial of cert in Muniz, it is unlikely that cert would be granted if such a petition should be filed. For all practical purposes, Subchapter I will be the law in Pennsylvania for the foreseeable future.

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