IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lynn Alan Padgett, : Petitioner :

: v. : No. 412 M.D. 2017
: Submitted: June 15, 2018 Frank Noonan, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 30, 2018

Before us in our original jurisdiction are Lynn Alan Padgett ’s (Padge tt) application for summary relie f and preliminary objections in the nature of a demurrer
that the Pennsylvania State Police (PSP) filed on behalf of Frank Noonan , its former
Commissioner

. 1 R epresenting himself, Padgett filed a petition for review in the
nature of mandamus alleg ing the Sex ual Offender Registration and Notification Act (SORNA) 2 was unconstitutional as applied to hi m pursuant to Commonwealth v.
Muniz , 164 A.3d 1189 (Pa. 2017)
, cert. denied
, __ U.S. __
, 138 S. Ct. 925 (2018).
PSP a ssert s Padgett fails to state a cognizable claim
, and it challenges his standing. Relying on Muniz
, Padgett seeks summary relie f. Because Padgett has a right to

1 Tyree C. Blocker succeeded Frank Noonan as Police Commissioner

.

2 Section s 9799.10

- 9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10

- 9799.41, effective December 20, 2012. SORNA
, commonly known as Megan ’ s Law IV , was enacted “[t]o bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Sa fety Act of 2006 [,] [ 42 U.S.C. §§16901

- 16945 ] .” 42 Pa. C.S. § 9799.10(1).2

relief
, we overrule PSP’s preliminary o bjections, and we grant summary relief to Padgett as limited to the relief afforded i n Muniz

.

I. Background Padgett is currently serving an aggregated sentence of 15 to 30 years in prison for rape and involuntary deviate sexual intercourse. Pet. at ¶ ¶ 4, 8. Megan’s
Law I , 3 which was in effect at the time of his 1998 convictions
, classified Padgett as a sexually violent predator. 4 Pet. at ¶7.

Padgett’ s offenses are classified as Tier III offenses requiring lifetime registration under SORNA. 42 Pa. C.S. §9799.14(d) (2) (relating to rape), (d)(4) (relating to involuntary deviate sexual intercourse)

. SORNA vests regulatory authority in PSP , and PSP maintains the sex offender registry . Pet. at ¶11.

In January 2017, our Supreme Court decided Muniz , holding that SORNA’s registration provisions were punitive in nature . A s a result, it determined

3 Megan’s Law I, Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), 42 Pa. C.S. §§9791

- 9799.6. After Megan’s Law I was held unconstitutional, the General Assembly enacted Megan’s Law II , Act of May 10, 2000, P.L. 74 . W hen that statute was also deemed constitutionally infirm, it enacted Megan’s Law III, Act of November 24, 2004, P.L. 1243.

4 Megan’s Law I defined a “sexually violent predato r” as:
A person who has been convicted of a sexually violent offense

... and who is determined to be a sexually violent predator under section 9794(e)

... due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

F ormerly 42 Pa. C.S. §9792. Our Supreme Court declared this classification and related requirements unconstitutional in Commonwealth v. Williams , 733 A.2d 593 (Pa. 1999).3

the retroactive application of those provisions violated the ex post facto clauses of the United States and Pennsylvania Constitutions

. 5

In September 2017, Padgett filed a petition for review in the nature of
manda mus, seeking relief from SORNA registration requi rements p ursuant to Muniz

. He allege d SORNA
, as applied to hi s 1998 convictions , “viol ates his rights under
the ex post facto clauses , and the due process and equal protection of the law clauses
of the United S tate s [and Pennsylvania] Constitution[s]

... and the ‘ reputation
clause ’ [A rticle I, S ection 1] of the Pennsylvania C onstitution

. ” Pet. at ¶12.

Upon PSP’s application, t his Court stayed th e matter while the appeal
of Muniz was pending before the United Stat es Supreme Court

. When the United States Supreme Court denied certiorari in early 2018, this Court directed PSP to file a responsive pleading.

PSP filed preliminary objections in the nature of a demurrer . Primarily, PSP allege s Padgett fails to state a claim because he is not subject to SORNA’s registration requirements while he remains incarcerated

. Because SORNA has not been applied to Padgett , and he is not listed in the registry , PSP contends Padgett ’s claim is not ripe

. For the same reason, P SP also asserts Padgett lack s standing.

5 Article I, Section 10 of the United States Constitution provides, in pertinent part , that,

“ No State shall

. . . pass any

... ex post facto Law

... . ” U.S. C ONST . art. I, §10. Article I, Section 17 of the Pennsylvania Constitution provides in pertinent part that, “ No ex post facto law

... shall be passe d. ” P A

. C ONST

. art. I, §17.4 Padgett responded to the preliminary objections , acknowledging his current incarceration. He also alleged h is pre

- parole is scheduled for March 2018

. In addition , P adgett filed an application for summary relief ba sed on the finality of
Muniz

.

After briefing, the matter is ready for disposition.

II. Discussion
To state a mandamus claim , the petitioner must prove “ a clear legal right
to relief

... a corresponding duty in the respondent and the lack of any other adequate and appropriate remedy.” Smires v. O’Shell , 126 A.3d 383, 387 (Pa. Cmwlth. 2015). Mandamus cannot lie “to compel performance of a discretionary act or to govern the manner of perf

orming [the] required act.” Coppolino v. Noonan , 102 A.3d 1254, 1263 (Pa. Cmwlth. 2014), aff ’ d , 125 A.3d 1196 (Pa. 2015) (citation omitted).
M andamu s only offer s a remedy to enforce established rights. Smires

.

A. Preliminary Objections A demurrer contests the legal sufficiency of a complaint. Barge v. Pa

. Bd. of Prob. & Parole , 39 A.3d 530 (Pa. Cmwlth. 2012), aff’d , 96 A.3d 360 (Pa. 2014). When assessing legal sufficiency, t his Court must accept as true all well

pled, material and rele vant facts alleged in the complaint and every inference that is fairly deducible from those facts. Markham v. Wolf , 147 A.3d 1259 (Pa. Cmwlth. 2016) ( en banc )

. The Court, however, is not required to accept as true conclusions of law, unwarranted inferenc es from facts or expressions of opinion. Doe v. Miller
, 886 A.2d 310 (Pa. Cmwlth. 2005). “To sustain preliminary objections, it must5

appear with certainty the law will not permit recovery, and any doubts should be resolved by a refusal to sustain them.” Id. at 314. With these principles in mind, we address PSP’s preliminary objections.

1. Standing & Ripeness First, we address PSP’s challenge to Padgett’s standing, and related challenge to the ripeness of his claim.

Our Supreme Court repeatedly recognizes th e “considerable overlap”
between standing and ripeness, espec ially where the objecting party’ s c hallenge to justiciability “focused on arguments that the interest asserted by the petitioner is speculative, not concrete, or would require the co urt to offer an advisory opinion.” Yocum v. Pa. Gaming Control Bd. , 161 A.3d 228, 234 (Pa. 2017) ( citation omitted)

. However, “ [s] tanding and ripeness are distinct concepts insofar as ripeness also reflects the separate concern that relevant facts are not sufficiently developed to permit judicial resolution of the dispute. ” Id.

“[T]he doctrine of ripeness mandates the presence of an ‘ actual
controversy ’ and requires consideration of ‘whether the issues are adequately developed and the hardships that the parties will suffer if review is delayed.’” Bucks Cty . S er vs., Inc. v. Phila. Parking Auth. , 71 A. 3d 379 , 390 (Pa. Cmwlth. 2013) (q uotin g Bayada Nurses, Inc. v. Dep’t of Labor & Indus. , 8 A.3d 866, 874 (Pa. 2010)).6 To have s tanding, a litigant must show his interest in the litigation is substantial, direct and immediate. Van Doren v. Mazurkiewicz , 695 A.2d 967 (Pa.
Cmwlth. 1997) (rejecting ripeness cha llenge under Megan’s Law I; holding inmate had standing to challeng e registration requirements )

. The three elements of standing
are well

- established. As this Court explained :

[A] ‘substantial’ interest is an interest in the outcome of the litigation w hich surpasses the common interest of all citizens in procuring obedience to the law. A ‘direct’ interest requires a showing that the matter complained of caused harm to the party’s interest. An ‘immediate’ interest involves the nature of the causal conn ection between the action complained of and the injury to the party challenging it ....

Markham , 147 A.3d at 1282 n.9 (quoting S. Whitehall Twp. Police S er v. v. S. Whitehall Twp. , 555 A.2d 793, 795 (Pa. 1989)).

In this matter, t here is no dispute that Padgett is currently housed in a
correctional institution for one count of rape and two counts of involuntary deviate
sexual intercourse

. Pet. at ¶4. These are sexual offenses requiring registration as a
sexual offender. He alleged that as of October 1 7, 2017, he will have served 20 years of his aggregated sentence. Pet. at ¶ 8.

PSP contends Padgett is not adversely impacted by SORNA because he is not subject to its registration requirements while he is incarcerated. We disagree.

A sexual offende r has standing to challenge registration requirements to which he may be subject upon his release from prison

. Van Doren ; see Gregory7

v. Pa. State Police , 160 A.3d 274 (Pa. Cmwlth. 2017) (single j. op.). We agree with Judge Cohn Jubelirer’s well

- reasone d single

- judge opinion in Gregory addressing the ripeness of an incarcerated petitioner’s rights to preclude PSP from applying SORNA registration requirements to him when his convictions pre

- date d SORNA’ s

enactment

.

In Gregory
, PSP also raised a challenge to the inmate’s standing to challenge SORNA registration requirements based on his incarceration. There, this
Court reasoned the inmate had a substantial and direct interest in relief from SORNA that surpassed that of other citizens in procuring obedience to the law because of the impending application of SORNA, and the harm that application would impose.

Padgett, like the inmate in Gregory
, has a direct and substantial interest in protecting himself from the retroactive application of SORNA. Our Supreme Court deemed the registration requirements punitive in nature, and held that application of SORNA to those whose convictions for sexual offe nses pre

- dated
SORNA’s enactment was unconstitutional. See Muniz

. Padgett would be aggrieved by the unconstitutional application of SORNA to him.

As to timing, this matter should be resolved prior to Padgett’s release from incarceration. Delaying revi ew and waiting for PSP to place his name on the registry will not assist our resolution. Van Doren

.

The harm Padgett complains of is not speculative or remote. Indeed,
b y operation of law, Padgett’s name will be included on the registry upon his releas e8

from prison

. Gregory v. Pa. State Police
, 185 A.3d 1202 (Pa. Cmwlth. 2018 ) (denying application for relief in part as to appl y in g SORNA to inmate) ( Gregory (2018) )

. While his release may not be imminent, that does not render the harm remote. Therefore, Padgett has standing to seek relief, and the threatened harm renders his
claim ripe.

2. Demurrer

Nex t, we consider PSP’s preliminary objection in the nature of a demurrer to Padgett’s mandamus claim.

PSP maintains Padgett is not entitled to relief from SORNA under
Muniz because the case is distinguishable on its facts. PSP argues that unlike the
inmate in Muniz , Padgett has not registered under a prior version of Megan’s Law or SORNA because the registration provisions are tolled while he is incarcerated.

Our Supreme Court’s decision in Muniz pertained to the retroactive application of SORNA, and held it was unconstitutional as applied to those whose sexual offense convictions pre

- dated its enactment. The Court did not limit its holding to only those sexual offenders who were already registered as PSP suggests.

There is no dispute that Padgett’s 1998 convictions pre

- date SORNA’s enactment in 2011. Therefore, SORNA is unconstitutional as applied to Padgett. Id. That SORNA has not ye t been applied to Padgett does not bar relief. See
, e.g. , Gregory (2018) . Accordingly, we overrule PSP’s demurrer.9 B. Summary Relief Applications for summary relief are governed by Pa. R.A.P. 1532(b). “An application for summary relief may be granted if a party ’ s right to judgment is clear and no material issues of fact are in dispute.” Markham , 147 A.3d at 1269 ( applying Pa. R.A.P. 1532(b) ). “In ruling on [an] application for summary relief, we must view the evidence of record in the light most favo rable to the non

- moving party and enter judgment only if there is no genuine issue as to any material facts and the right to judgment is clear as a matter of law.” Id. at 1270 (quoting Cent. Dauphin Sch. Dist. v. Dep’t of Educ. , 598 A.2d 1364, 1366

- 67 ( Pa

. Cmwlth. 1991) )

.

In his application for summary relief , Padgett seeks relief from SORNA registration requirements based on the holding in Muniz . He argues that Muniz held SORNA is unconstitutional as applied to him. Because Muniz is final, he contend s he has a clear legal right to relief, and PSP may not apply SORNA to him.

In Muniz , o ur Supreme Court analy zed SORNA registration requirements then in effect 6 under the ex post facto clauses of the federal and state
constitutions. 7 The Court deem ed SORNA punitive in nature, so as to violate the ex

6 Since our Supreme Court declared SORNA constitutionally infirm in Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), cert. denied , __ U.S. __ , 138 S. Ct. 925 (2018) , the General Assembly amended certain provisions through the A ct of February 21, 2018, P.L. 27, No. 10 (commonly referred to as Act 10). Act 10 also added several new sections found at 42 Pa. C.S. §§9799.42, 9799.51

- 9799.75. Act 10 was not in effect at the time the parties briefed the matters before the Court. How ever, PSP referred to Act 10 in its brief in opposition prior to its enactment. In addition, various provisions of Act 10 were reenacted and amended by the Act of June 12, 2018, P.L. 140 , No. 29 (Act 29), which became effective immediately. As neither Act 10 nor Act 29 is before us, we offer no opinion as to the application of these acts here.

7 A law violates the ex post facto clause if it “changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.” Commonwealth v. Allshouse
, 36 A.3d 163, 184 (Pa. 2012).10

post facto clause s when applied to those whose convictions pre

- dated its enactment.
See Commonwealth v. Reed (Pa., No. 10 WAP 2016, filed Aug. 22, 2017) (concurring statement, Saylor, C.J.) (recognizing t he majority consensus in Muniz to the effect that SORNA exacts punishment and retroactive application of the enactment violates constitutional norms).

We hold Muniz offers an inmate a clear legal right to relief from the retroactive application of SORNA based on our Supreme Court’s analysis of t he
statutory language then in effect. Gregory (2018)

.

Significantly, Padgett’s application for summary relief is based solely

on Muniz , and the Supreme Court’s holding as to the constitutional infirmity of the
version of SORNA it construed in that decision. Pursuant to Muniz , SORNA as then in effect may not be applied retroactively to Padgett. Padgett is entitled to summary
relief on t hat limited ground . As such, PSP is precluded from imposing SORNA registration requirements on Padgett.

Because his application for summary relief relied solely on Muniz
, which did not implicate any subsequent sexual offender legislation, this decision does not exempt Padgett from the application of any sexual offender registration

statute that has been or may be subsequently enacted . To the extent his convictions

may subject Padgett to registration under any post

- Muniz legislative changes to
S ORNA or another version of Megan’s Law
, this Court offers no relief.11 III. Conclusion For the foregoing reasons, PSP’s preliminary objections are overruled

. We also grant summary relief to Padgett on the limited grounds asserted in his application, so a s to relieve him from compliance with SORNA registration requirements in effect at the time our Supreme Court construed them in Muniz

.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lynn Alan Padgett, : Petitioner :

: v. : No. 412 M.D. 2017
: Frank Noonan, : Respondent :

O R D E R

AND NOW , this 30 th day of July
, 2018, the preliminary objections that

t he Pennsylvania State Police filed on behalf of Respondent Frank Noonan to Lynn Alan Padgett’s (Padgett) Petition for Review in the Nature of a Complaint in
Mandamus are OVERRULED

.

AND FURTHER , P adget t’s applica tion for summary relief is
GRANTED as limited to the version of the Sex ual Offender Registration and
Notification Act 8 t hat was in effect when our Supreme Court decided
Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), cert. denied , __ U.S. __, 138 S.
Ct. 925 (2018)

.

ROBERT SIMPSON, Judge

8 Section s 9799.10

- 9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10

- 9799.41, prior to amendment by the Act of February 21, 2018, P.L. 27, No. 10.