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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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

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    • #74691 Reply
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      mike

      wonderful as the bogus train ride continues it would figure not all the justices was on the same page tho theres a couple that sees thru this mess and knows its puntive but as usual majority wins i know its not gonna help me in my case now not sure anything will anymore this failure to register 4915.2 is gonna be a tuff one to beat i have a feeling

    • #74701 Reply
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      Tim in WI

      It is clear the intent of the database driven regime has always imparted affirmative restraint or bars on registrant’s liberty. And in Doe03 the court stated it upheld registration on the basis of judicial restraint and deference to the “people’s wishes” expressed via congressional act despite their utilizing forbidden plain ex post language.

      Now the offensive intent is in the open with respect to gov\ political intent therefore
      Congress no longer retains the benefit of the doubt.

    • #74699 Reply
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      Jim Sevier

      Correct me if I’m wrong, it is my belief the Declaration of Independence, the US Constitution & the Bill of Rights was never designed to restrain the people it was designed to restrain the government!! Yet the government has picked one group of people to restrain by disregarding every person’s rights within the law? Also continuing to write new laws & making them expo facto to cover over the old laws that don’t fit with their scheme of things? The government however, has not be restrained?
      Also, what about the human rights violation to the citizens of the sor, not to mention the collateral damage of the families?
      Look what hitler & the nazis did to the Jews, just about everything that was done to the Jews, (except maybe putting us in the gas chambers,which could be next? Some states want to castrate people, which is actually worse to most sane people?) the US is now doing to the so’s? And guess what, the US hated everything the Nazi’s was doing, called it a human rights violation, hummm!
      But I guess it’s ok now for the US to do it to so’s, after all it’s for public safety. The reason hitler did it was to make a superior race. When you think about it, not that much of a stretch?
      Don’t really expect an answer, however it would be nice if I did, curious to see what it might be?

    • #74709 Reply
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      Maestro

      There was a time not long ago in comments on this site that I said comparing the treatment of people required to register to the atrocities of the Jews in Nazi Germany was not a good idea.
      I have since changed my mind on that because the Jews were BRANDED with tattoos so the Germans could know who they are. The branding of passports and drivers licenses is no different. It’s a BRANDING of your personal identification. How could any President or governor endorsed this and why won’t any President or governor undo it? Simple; Political suicide. The government and LE have brainwashed the public for far too long and it’s far too late now to undo brainwashing. The only way these laws will get changed is one of two ways;

      1. Someone in a high office needs to get a taste of what they’ve done by having someone close to them end up being convicted of a sex “crime”, even something like one of their teenager kids or other relatives gets hit with “sexting” underage.

      2. We have to just say “f*ck it” and storm the local and/or federal government just like the radical left is doing for their own reasons. I’m not for the destruction of property but just a gathering of a good portion of the 1 million people on the registry PLUS just 1 friend or relative who is also effected by it.

      Every time I have mentioned such a protest, registrants cry “We’ll get arrested. I’m scared”.
      Arrested???? Have you seen the thousands of protesters being arrested? I’ll tell you what I see on people’s videos on social media – I see police officers backing off because they are OUT NUMBERED. Only the autonomous zones were raided and shut down by police. But just a protest of THOUSANDS of people in the streets is not getting anyone arrested other than the VERY FEW who either assaulted the police in the process or who actually got CAUGHT trying to damage property.

      Where do you suppose they’ll have 1 million + handcuffs to arrest us all? In your dreams maybe but not in reality.
      The time is coming. There’s 1 million now. How many will there be in 5 years or 10 years?

      The time is coming.

    • #74717 Reply
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      Jim

      I agree with one thing you said, about a protect but then that would require staying til something was done or something a lot worse was done? Beside the fact that it would take a mountain of planning, it would be extremely hard to get two people to agree on anything?
      But for the idea of someone in a high place or a close relative, probably won’t happen because just recently a judge got his son off a really Hugh number of counts of cp & a number of other related chgs plus the biggie is he won’t be on the sor, imagine that! So, it isn’t necessarily how much money you have or what you know, sometimes it’s who you know & will they actually do something? Apparently the judge had friends in high places?

    • #74716 Reply
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      Perry

      I am not surprised at all. In fact, I expected something like this. Once again, money changed hands somewhere. So it’s no surprise to me that The Corrupt State Supreme Court, along with the Equally Corrupt State Assembly-both in Harrisburg of course-would come up with something they can use to continue to depress and destroy any and all potential hope of Full Societal Restoration to Registered Citizens and especially SVP’s like me. Add to that also, The Element of Potential Law Enforcement Abuse against me because of my Ethnicity, and I have yet another reason to try like hell to get out of Pennsylvania ASAP…IF I can make it out Alive at all…which it seems like The Commonwealth DOES NOT want me to!!
      Done.

    • #74721 Reply
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      Dave C

      The PASC is a joke. Mendoza line. LOL. They clearly support the registry. It is PUNITIVE. Try and get a job or apartment. Thats called punitive. The mendosa line is BS.

      It is 7 years if you do not register appropriately. Would you trust that to the US Mail?

      What happened to Right to Reputation?

      I went to register a job change and was told to leave and not come back. They refused to register me. They pushed a paper under the window and said mail it in and dont come back unless it was the yearly.

      How can something that carries a 7 year prison sentence not be punitive?

      How can anyone say this isnt punitive? Let them try it for a year.

      The PASC is a disgrace.

    • #74724 Reply
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      w

      When I found this site a couple years ago I was glad to find that reasonable people are risking their lives and careers for the cause.

      PEOPLE.

      But our politicians are NOT sacrificing their cozy ivy-league $$$ paid careers to do what’s RIGHT! They just want to keep things quiet and move along.

      The quieter it stays the worse it gets. So now they have to be reminded of their place. And see the world they are immune to because of their shrouded existence. Because they chose to continue to do harm to the very public they pander to for votes when they need it. Citizen or convict, everyone deserves to be able to move on.

      There will be a time to blow the whistle soon enough.

    • #74725 Reply
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      nobody in particular

      I agree with Maestro: beyond full scale revolution, things will just continue to get worse. I greatly appreciate the constant efforts of advocacy groups such as Narsol, trying to change the system from within, but it seems every time a small victory, a small sliver of a crack is made in the massive fortress that is “sex offense policy”, it’s not only quickly patched, but the new masonry is twice as strong as before. I would imagine that even if some day the courts just out and admitted the whole scheme is aggressively punitive, the powers that be would simply shrug and say “It doesn’t matter anyway, because this particular group of criminals are just a bunch of dirty perverts, which don’t even qualify as human anymore,” and the bulk of the population would concur. Still, all change begins with language, knowledge, and honesty, so I am grateful that even a small glimmer of truth can survive in an ocean of lies, and for those who still hold out hope, when registrants like me have become complacent, accepting the eternal label as the “bad guy,” and the souless “monster”.

    • #74802 Reply
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      Mike

      Wow I figured there be more comments by now

    • #74822 Reply
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      James

      WOW… Im not shocked about this answer from PA Courts. Its election time and its all out war with Democrats and Republicans so they will prey on the vulnerable ROs. This State is so corrupt it aint funny. We as ROs need to start making noise and start our movement to change laws. If everyone else can do it, then we can do it. Everything goes to money.. We are Pons for the state to collect federal money.
      #solawsmovementinpa needs to start and rally. Everyone has paid their debt to society is time for us to stand together and make change.

    • #74824 Reply
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      Ed M.

      I was thinking of retiring to Pennsylvania in a few years. My conviction happened in 1991 in another state. So, it sure seems like I would not be required to register and actually not even be on the register anymore. Sure hope that is true

    • #74834 Reply
      Fred
      Fred
      Admin

      If anyone wants to join the movement in Pa. I suggest getting involved with NARSOL’s PA affiliate. https://parsol.org

    • #74920 Reply
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      JJJJ

      There may be a time to arm against tyranny.

    • #74924 Reply
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      Dennis

      What happens now to the persons who had an offense prior to Megan’s law becoming into effect, and one a decade later ?
      Pleading guilty in 2005, places me into a hybred situation.
      And having the Commonwealth use the “S.V.P.” designation to weaponize/increase punishment, doesn’t help. Chester county used to use ,( and still does at times), a Bruce Mapes to designate persons as S.V.P.s. And because he has a degree in psychology, and wrote a few books,( none of which deal with sex offenders or their offenses), he is deemed qualified.
      My grandson made some drawings with crayons. Maybe I should publish them, and have him designated as an authority on art work!

    • #74925 Reply
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      mut

      blacks law says labor is physical or mental exertion so
      it seems to me eliminating a physical in person reporting requirement only addresses half the problem. the mental burden remains a service worth over 200k per year to the state. exploitation.
      maybe one of them pompus clowns in the supreme court should be forced to assist a registrant in keeping his registration data current for the next 25 years, for free, and then if he or she thinks it a significant restraint.

    • #74936 Reply
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      mut

      but that sounds like a felony so bear not

    • #74938 Reply
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      Michael

      I knew this would happen. My charge was one count of invasion of privacy with no minors involved. Only offense ever and they made me an SVP. My case is the only one of its kind in the state of PA and my sentence is officially an illegal sentence. The legislation states that the illegal sentences will stand though. Judges are God’s. The courts do whatever they want and humanity will sadly never change. Tribalism is fueled by hatred and who better to hate than us? Welcome to the world. We don’t progress as a species because we have smartphones and pretty things. We haven’t really progressed much at all.

    • #74961 Reply
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      The Bull

      America will get its karma for this grave injustice. What if one the judges and legislators need people like you when they are in trouble ? They will have no one to look out for them cause they are burn everyone.

    • #74966 Reply
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      Michael

      Not sure if your post was directed towards my post or not, but my offense was only an M3; low level misdemeanor. My crime actually didn’t meet any of the criteria to be legally labeled SVP. I ended up homeless sleeping in a field for two weeks, lost my job, home (3 times), pension, car, all of my possessions and someone tried to murder me with a knife because they thought I was something I wasnt because of the 25 scary notifications the police hand out to my neighbors. Murderers get second chances and don’t have to live in a bad part of town forever, but don’t try to view a woman’s butt, that’s worse considering the multiple life sentence I got of a lifetime of polygraphs, treatment, and registering. Not to mention no one will hire me in spite of a great resume.

    • #75241 Reply
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      Carol Salacka

      Great point about the Govt., which has created a ‘special population,’ for extra punishment or for which many rights are denied. This is unconstitutional. The courts continue to decide on false assumptions. This decision fails to address the addition of YEARS on the registry for VOPs. My son used drugs and thanks mostly to Probation and Parole, nearly 4 years has been added to his registration. This is unconstitutional. No notice is given of tolling at plea or at going on P or P. Local attorneys told us they could help my son if he was a 25 yr or lifetime registrant, but not for a 10 year as he is, which expired in Nov. 2019. While P&P is being examined again for abuse of power we need to go to court over this. Looks like I have to write my own brief!

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