IN THE COMMONWEALTH COURT OF PENNSYLVANIA

M.A.S.B., :

Petitioner :

:

v. : No. 706 M.D. 2019

: Submitted: October 30, 2020

Robert Evanchick, Commissioner :

of the Pennsylvania State Police, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: March 11, 2021

Before the Court is the preliminary objection filed by Robert 

Evanchick, Commissioner of the Pennsylvania State Police (Commissioner), to 

M.A.S.B.’s petition for review in the nature of a complaint seeking declaratory and 

injunctive relief. M.A.S.B. requests the Court to declare the Sexual Offender 

Registration and Notification Act2to be an unconstitutional ex post facto law3as 

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt 

completed her term as President Judge.

2 Act of February 21, 2018, P.L. 27, as amended by the Act of June 12, 2018, P.L. 140, 42 Pa. C.S. 

§§9799.10-9799.75 (collectively, SORNA II).

3 The United States Constitution provides, in pertinent part, that “[n]o ... ex post facto Law shall 

be passed.” U.S. CONST. art. I, §9. The Pennsylvania Constitution likewise provides, in pertinent 

part, “[n]o ex post facto law ... shall be passed.” PA. CONST. art. I, §17. “[T]he ex post facto

clauses of both constitutions are virtually identical, and the standards applied to determine an ex 

post facto violation are comparable.” Evans v. Pennsylvania Board of Probation and Parole, 820 

A.2d 904, 909 (Pa. Cmwlth. 2003) (citing Commonwealth v. Young, 637 A.2d 1313, 1317 n.7 (Pa. 

1993)).
2

applied to him. In support thereof, M.A.S.B. cites to the Pennsylvania Supreme 

Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which 

struck down the prior version of the Sexual Offender Registration and Notification 

Act4as unconstitutional because it violated the prohibition against ex post facto

laws. For the reasons to follow, we sustain the Commissioner’s preliminary 

objection.

On December 24, 2019, M.A.S.B. filed the instant petition for review. 

The petition alleges that in August 2000, M.A.S.B. was arrested and charged with 

corruption of minors (one count) and involuntary deviate sexual intercourse (four 

counts). Petition for Review, ¶4. These charges were based on M.A.S.B.’s criminal 

conduct in November 1997. Id. M.A.S.B. was convicted and designated a sexually 

violent predator.5 This designation required M.A.S.B. to register as a sex offender 

for life. Id., ¶¶6, 14. 

The petition asserts that in Muniz, 164 A.3d 1189, the Pennsylvania 

Supreme Court declared the lifetime registration requirements of SORNA I to be 

unconstitutional because it violated the ex post facto clause of the Pennsylvania 

Constitution. Petition for Review, ¶¶10-11. The petition avers that SORNA II is 

nothing but a “re-enactment” of SORNA I and is likewise unconstitutional. The 

petition requests this Court to declare SORNA II unconstitutional and establish that 

M.A.S.B. does not have to register as a sex offender. 

The Commissioner filed a preliminary objection in the nature of a 

demurrer. He argues that SORNA II cured the deficiencies in SORNA I and does

not violate the ex post facto clause of the Pennsylvania Constitution. See

4 Act of December 20, 2011, P.L. 446, as amended, 42 Pa. C.S. §§9799.10-9799.41 (SORNA I).

5

In his Answer to the Commissioner’s preliminary objections, M.A.S.B. states that he was 

designated as a sexually violent predator. Answer to Preliminary Objections, ¶¶3, 12.
3

Commonwealth v. Butler, 226 A.3d 972, 993 (Pa. 2020) (lifetime registration, 

notification, and counseling requirements applicable to sexually violent predators in 

SORNA II are not punitive). In the alternative, the Commissioner argues that the 

Muniz rationale does not apply to the registration requirements of SORNA II. 

In response, M.A.S.B. acknowledges that after he filed his petition, the 

Pennsylvania Supreme Court decided Butler, holding that the registration 

requirements for sexually violent predators in subchapter H of SORNA II are not 

punitive. M.A.S.B. also recognizes that the Supreme Court’s recent decision in 

Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), held that subchapter I of 

SORNA II did not violate the ex post facto clause. Nevertheless, M.A.S.B. argues 

that subchapter I of SORNA II constitutes punishment because the information that 

he must provide as part of the sexual offender registration process “places his life, 

home and family in peril on a daily basis[.]” M.A.S.B. Brief at 7. Additionally, 

M.A.S.B. argues that since SORNA II was “passed years after [his] crimes 

occurred,” it “constitutes an increased maximum imposed upon him by the 

Legislature and not the courts” in violation of the separation of powers doctrine. 

M.A.S.B. Brief at 8.

In ruling on preliminary objections in the nature of a demurrer, this

Court “must consider as true all well-pleaded material facts set forth in the petition 

and all reasonable inferences that may be drawn from those facts.” Richardson v. 

Beard, 942 A.2d 911, 913 (Pa. Cmwlth. 2008). “Preliminary objections will be 

sustained only where it is clear and free from doubt that the facts pleaded are legally 

insufficient to establish a right to relief.” Id. The Court “need not accept as true 

conclusions of law, unwarranted inferences from facts, argumentative allegations, 

or expressions of opinion.” Id. 
4

In Muniz, 164 A.3d 1189, the Pennsylvania Supreme Court considered 

a constitutional challenge to the application of SORNA I by offenders who 

committed their offenses prior to its effective date of December 20, 2012. The 

Supreme Court explained that a statute violates the ex post facto clause of the United 

States Constitution where it imposes the equivalent of criminal punishment. To 

make this determination, the Supreme Court considered whether the express purpose

of SORNA I was to impose punishment, and if not, whether the statutory scheme 

was so punitive in effect as to negate the legislature’s stated nonpunitive intent. The 

Supreme Court concluded that SORNA I’s registration requirements constituted 

punishment that violated the constitutional prohibition against ex post facto laws.

Following the Supreme Court’s decision, the General Assembly 

enacted SORNA II.

In this new statutory scheme, the General Assembly, inter alia, 

eliminated a number of crimes that previously triggered 

application of SORNA [I] and reduced the frequency with which 

an offender must report in person to the [] State Police []. With 

regard to [s]ubchapter I, the General Assembly declared its intent 

that the statute “shall not be considered as punitive.” 42 Pa. C.S. 

§9799.51(b)(2).

Lacombe, 234 A.3d at 615. SORNA II has two chapters.

Subchapter H is based on the original SORNA [I] statute and is 

applicable to offenders ... who committed their offenses after the 

December 20, 2012[,] effective date of SORNA [I]; [s]ubchapter 

I is applicable to offenders who committed their offenses prior to 

the effective date of SORNA [I] and to whom the Muniz decision 

directly applied.

Butler, 226 A.3d at 981 n.11.
5

In Butler, the Supreme Court examined SORNA II on appeal from the 

Superior Court, which held SORNA II unconstitutional under Apprendi v. New 

Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013).6 The 

Supreme Court reversed the Superior Court, explaining as follows: 

Although we recognize the [registration, notification, and 

counseling] requirements impose affirmative disabilities or 

restraints upon [sexually violent predators], and those 

requirements have been historically regarded as punishment, our 

conclusions in this regard are not dispositive on the larger 

question of whether the statutory requirements constitute 

criminal punishment. This is especially so where the government 

in this case is concerned with protecting the public, through 

counseling and public notification rather than deterrent threats, 

not from those who have been convicted of certain enumerated 

crimes, but instead from those who have been found to be 

dangerously mentally ill.... Under the circumstances, and also 

because we do not find the [registration, notification, and 

counseling] requirements to be excessive in light of the 

heightened public safety concerns attendant to [sexually violent 

predators], we conclude the [registration, notification, and 

counseling] requirements do not constitute criminal punishment.

Butler, 226 A.3d at 992-93 (citation omitted) (emphasis added).

In Lacombe, the Pennsylvania Supreme Court considered a challenge 

to the constitutionality of subchapter I of SORNA II as an unconstitutional ex post 

facto law. The Supreme Court observed that the “General Assembly expressly 

declared that [s]ubchapter I ‘shall not be construed as punitive.’” Lacombe, 234 

A.3d at 618 (quoting 42 Pa. C.S. §9788.51 (b)(2)). To determine whether subchapter 

I was punitive in effect, the Supreme Court applied the factors set forth in Kennedy 

6

“In Apprendi and Alleyne, the Supreme Court of the United States held [that] any fact, which 

increases the statutory maximum penalty (Apprendi), or mandatory minimum sentence (Alleyne), 

must be submitted to a jury and proven beyond a reasonable doubt.” Butler, 226 A.3d 976 at n.3.
6

v. Mendoza-Martinez, 372 U.S. 144 (1963).7 In balancing these factors, the Supreme 

Court stated: 

Subchapter I effected significant changes from the original 

version of SORNA, retroactive application of which we found 

unconstitutional in Muniz. ... As we have not found the requisite 

“clearest proof” [s]ubchapter I is punitive, we may not “override 

legislative intent and transform what has been denominated a 

civil remedy into a criminal penalty.”

Lacombe, 234 A.3d at 626 (brackets and citations omitted). The Supreme Court held 

that subchapter I of SORNA II did not constitute criminal punishment and, thus, the 

petitioner’s ex post facto challenges failed.

Most recently, in R.H. v. Pennsylvania State Police (Pa. Cmwlth., No. 

699 M.D. 2018, filed January 12, 2021) (unreported),8this Court considered an ex 

post facto challenge to subchapter I of SORNA II. There, the petitioner was 

convicted of sex-related offenses and determined to be a sexually violent predator. 

He was obligated to register as a sex offender for his lifetime with the State Police. 

In his petition for review, R.H. challenged SORNA II as

“unconstitutional for the same reasons the Muniz Court found [] SORNA [I] 

7

 The factors to be considered by a court are:

[w]hether the sanction involves an affirmative disability or restraint, whether it has 

historically been regarded as a punishment, whether it comes into play only on a 

finding of scienter, whether its operation will promote the traditional aims of 

punishment – retribution and deterrence, whether the behavior to which it applies 

is already a crime, whether an alternative purpose to which it may rationally be 

connected is assignable for it, and whether it appears excessive in relation to the 

alternative purpose assigned[.]

Mendoza-Martinez, 372 U.S. at 168 (footnotes omitted). 

8 An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for 

its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code §69.414(a). 
7

unconstitutional.” R.H., slip op. at 3 (quotation omitted). He sought “a declaration 

confirming that SORNA II is unconstitutional and stating that he does not have to 

register as a sex offender[.]” Id. Concluding that Lacombe was dispositive, this 

Court denied R.H.’s ex post facto challenge to the registration requirements of 

subchapter I of SORNA II. R.H., slip op. at 9. 

Here, M.A.S.B. challenges subchapter I of SORNA II because it 

requires him to register as a sex offender for life. Lacombe and R.H. have established 

that the registration requirements set forth in subchapter I of SORNA II are not 

punitive and, thus, the retroactive application of these registration requirements does 

not violate the constitutional proscription against ex post facto laws. Lacombe and 

R.H. have foreclosed M.A.S.B.’s ex post facto challenge to the registration 

requirements of subchapter I of SORNA II. 

Accordingly, we sustain the Commissioner’s preliminary objection and 

dismiss M.A.S.B.’s petition.9

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

9 M.A.S.B.’s claim that subchapter I of SORNA II, as a penal law, violates the separation of powers 

doctrine because it usurps the judiciary’s function to impose a sentence is predicated upon 

M.A.S.B.’s argument that subchapter I is punitive. Since we have determined that subchapter I is 

nonpunitive, M.A.S.B.’s claim fails.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

M.A.S.B, :

Petitioner :

:

v. : No. 706 M.D. 2019

:

Robert Evanchick, Commissioner :

of the Pennsylvania State Police, :

Respondent :

O R D E R

AND NOW, this 11

th day of March, 2021, the preliminary objection 

filed by the Respondent, Robert Evanchick, Commissioner of the Pennsylvania State 

Police, is SUSTAINED, and the petition for review, filed by Petitioner M.A.S.B., is 

DISMISSED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge