IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dana Rosenberger

, :

Petitioner :

:

v. :

: Governor Tom Wolf, : Pennsylvania General Assembly, : Pennsylvania State Police, : No. 283 M .D. 201 8

Respondent s : Submitted: September 6

, 201 9

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON , Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: November 7, 2019

Before the Court, in our origina l jurisdiction, is the Application for

Summary Relief (Application) filed by Dana Rosenberger (Petitioner) seeking relief

from his lifetime sexual offender registration requirement in Pennsylvania under the

Act of February 21, 2018, P.L. 27 (Act 10), 42 Pa.C.S. §§ 9799.10

- 9799.75

, as

amended by Act of June 12, 2018, P.L. 140 (Act 29) (collectively , Act 10 or SORNA

II). For the reasons stated herein, we deny the Application.

By way of brief statutory background, beginning in 1995,

Pennsylvania’s General Assembly has enacted a series of statutes and amendments

requiring sex offenders living within the Commonwealth to register for varying

periods of time with the Pennsylvania State Police (PSP) based on their convictions2

for certain sexual offenses. The General Assembly enacted the first of these statutes,

commonly known as Megan’s Law I, former 42 Pa.C.S. §§ 9791

- 9799.6, in 1995,

followed five years later, in 2000, by what is commonly known as Megan’s Law II,

former 42 Pa.C.S. §§ 9791

- 9799.7. In 2004, the General Assembly enacted what is

commonly known as Megan’s Law III, former 42 Pa.C.S. §§ 9791

- 9799.9, which

remained in effect until the enactment of the Sexual Offender Registration and

Notification Act (SORNA I), 42 Pa.C.S. §§ 9799.10

- 9799.41, in 2012. On July 19,

2017, the Pennsylvania Supreme Court handed down the decision in Commonwealth

v. M uniz , 164 A.3d 1189 (Pa. 2017), which held that SORNA I violated the ex post

facto clauses of the United States and Pennsylvania Constitutions by increasing

registration obligations on certain sex offender registrants. Thereafter, in 2018, to

clarify that sex offender registration provisions were not ex post facto punishment,

the General Assembly enacted SORNA II.

Petitioner was convicted of indecent assault of a person less than 13

years of age, 1 graded as a misdemeanor of the f irst degree, in 2001. In 2010,

Petitioner was again convicted of indecent assault of a person less than 13 years of

age, this time graded as a felony in the third degree. Under the recidivist provision

of Megan’s Law III, former 42 Pa.C.S. § 9795.1(b)(1), 2 Petitioner became a li fetime

sexual offender registrant upon conviction for his second indecent assault of a person

less than 13 years of age . Petitioner acknowledged this registration requirement as

a part of the plea bargain in the 2010 prosecution. See Order of Court of Co mmon

1 18 Pa.C.S. § 3126(a)(7).

2 Megan’s Law III required lifetime registration for individuals with two or more
conviction s for a set of enumerated offenses, which offenses included 18 Pa.C.S. § 3126 (relating to indecent assault). S ee former 42 Pa.C.S. § 9795.1(b)(1) (effective Dec. 8 , 2008 through Dec. 19, 2011).3

Pleas of Washington County, Docket CP

- 63

- 0001432

- 2009, dated February 5, 2010,

at 2 (pagination supplied).

On April 16, 2018, Petitioner filed a Petition for Review with this

Court. O n April 11, 2019 , Petitioner filed the instant Application. 3 In his brief,

Petitioner alleges that SORNA II is an unconstitutional ex post facto law that is

unconstitutional and punitive as applied to him. See Petitioner’s Brief at v & 1

- 8.

We disagree.

In Bill v. Noonan (Pa. Cmwlth., No. 437 M.D. 2017, filed May 1 6,

2019), 4 this Court addressed the issues here raised by Petitioner in overruling an as

applied constitutional challenge to SORNA I in the analogous situation of an

individual required to register for life by virtue of his status as a sexually violent

pre dator (SVP) . In Bill , this Court noted that the rationale in Muniz is inapplicable

in situations where SORNA I did not result in an increase of sexual offender

registration obligations. See id. , slip op. at 11. Bill involved an individual who was

contin uously subject to lifetime registration requirements since his conviction by

virtue of having been classified as an SVP

. Id. This Court noted that because

SORNA I did not increase the registration obligations of sexually violent predators

3 An application for summary relief may be granted if a party’s right to judgment is clear
and no material issu es of fact are in dispute. Pa. R.A.P. 1532(b); Jubelirer v. Rendell , 953 A.2d 514 (Pa. 2008); Eleven Eleven Pa., L LC v. Commonwealth , 169 A.3d 141 (Pa. Cmwlth. 2017). When ruling on an application for summary relief, this Court “view[s] the evidence of record in the light most favorable to the non

- moving party and enter[s] judgment only if there is no genuine
issue a s to any material facts and the right to judgment is clear as a matter of law.” Eleven Eleven

, 169 A.3d at 145 (internal quotation marks omitted).

4 Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be cited
for their persuasive value.4

– they remained lifetime registrants from Megan’s Law III to SORNA I

– SORNA

I was not an ex post facto law as applied. Id. We explained:

This Court has repeatedly determined that SORNA I is not
an unconstitutional ex post facto law as applied, to the
extent it merely continues the same registration requirement already in place under the law

.

Id. (emphasis added; internal citation omitted). The Court continued and expanded

its determination, stating that neither SORNA I nor SORNA II constitutes an

impermissible ex po st facto law as applied where an individual remains subject to

the same registration requirements. Id. at 11

- 12.

As with the SVP

- classified petitioner in Bill , neither SORNA I nor

SORNA II increased Petitioner’s sexual offender registration requirements in the

instant matter. Petitioner was subject to lifetime sexual offender registration under

Megan’s Law III upon his second conviction for indecent assault of a person less

than 13 years of age, see former 42 Pa.C.S. § 9795.1(b)(1)

. Therefore, neither

SORNA I nor SORNA II increased Petitioner’s registration requirements. As such,

the Muniz rationale does not apply and SORNA II does not constitute an

impermissible ex post facto law as applied to Petitioner. See Bill ; see also Marshal l

v. Pa. State Police (Pa. Cmwlth., No. 552 M.D. 2017, filed July 18, 2018), slip op.

at 8

- 9 (holding that a petitioner seeking relief from Act 10’s sexual registration

requirements under Muniz is afforded no relief because no ex post facto violation

exist s where the petitioner experienced no increased registration requirements).5 For the above reasons, Petitioner has failed to demonstrate a clear right

to the judgment he seeks in the Application. Accordingly, we deny the Application

. 5

__________________________________ CHRISTINE FIZZANO CANNON, Judge

5 We note that PSP correctly points out in its brief that Governor Wolf is not a proper party to the instant litigation. See PSP’s Brief at 8

- 9. In statutory challenges, the party that has the power or duty with respect to a statute’s enforcement is the proper party. Allegheny Sportsmen’s League v. Ridge , 790 A.2d 350, 355 (Pa. Cmwlth. 2002), aff’d sub nom. Allegheny Cty. Sportsmen’s League v. Rendell , 860 A.2d 10 ( Pa. 2004) . As our Supreme Court has explained,

“ PSP has enforcement authority with regard to the requirements of SORNA . . . [and] is an appropriate defendant relative to a cause of action which would result in a directive that the individual’ s registration period be reduced or eliminated .” Konyk v. Pa. State Police of Commonwealth of Pa. , 183 A.3d 981, 987 (Pa. 2018) . Governor Wol f, on the other hand, is not charged with SORNA’s enforcement and, thus, is an improper party to the instant litigation.I N THE COMMONWEALTH COURT OF PENNSYLVANIA

Dana Rosenberger, :

Petitioner :

:

v. :

: Governor Tom Wolf, : Pennsylvania General Assembly, : Pennsylvania State Police, : No. 283 M.D. 2018

Respondents :

O R D E R

AND NOW, this 7th day of November , 201 9

, the April 11, 2019

Application for Summary Relief filed by Petitioner Dana Rosenberger is DENIED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge