IN THE COMMONWEALTH COURT OF PENNSYLVANIA

T. J., :

Petitioner :

: v. : : The Pennsylvania State Police of : the Commonwealth of Pennsylvania, : No. 123 M. D. 20 18

Respondent : Submitt ed: Dece mber 1 2 , 2022

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE FIZZANO CANNON FILED: January 9, 2023

Petitioner, T.J., through counsel, filed an amended petition for review (Petition) seeking a declaration that he is no longer required to register as a sex offender in Pennsylvania and that his personal information must be removed from the Pennsylvania State Police (Police) sex offender registry. Presently before this
Court i s T.J.’s A pplication for S ummary R elief (Application). 1 For the reasons discussed below, we deny the Application.

I. Background In September 1997, T.J. pleaded guilty in New York to one count of second degree rape based on an offense that occurred in Ma y 1994. Pet. ¶ 2;

1 The Police have not filed a parallel application.2

Declaration of Trooper Matthew Web (Web Decl.) ¶ 4. T.J. avers that he received a sentence of six years’ probation ; the Police respond that T.J. received a sentence
of five years’ probation . Pet. ¶ 3 ; Answer to Petition (Ans.) ¶ 3

.

The parties disagree about the age of the victim at the time of the offense. T.J. asserts that she was 16 years old and, moreover, that he and she have

now been married for over 20 years and are raising four children. Pet. ¶ 2 n.1 ; Appl. ¶ 20 . The Polic e aver that she was 12 years old at the time of the offense. Ans. ¶ 2.

T.J.’s conviction subjected him to reporting and inclusion in New York’s sex offender registry for a period of 20 years beginning in 1997

. Appl. ¶ 23;
We b Decl. ¶ 12 . The parties dis agree regarding whether T.J. was continuously compliant with his registration requirements in New York, but in any event, he received a letter in October 2017 from the New York State Sex Offender Registry informing him that he had completed his registratio n obligation and had been
removed from th at registry. Appl

. ¶ 19 & Ex. A

.

Meanwhile, T.J. moved to Pennsylvania in 2000. Pet. ¶ 4 ; Appl. ¶ 20 ; Ans. to Appl. ¶ 20

. Upon receiving notice from the Police in 2011 that he was required to register as a sex of fender in Pennsylvania, T.J. began registering with the
Police in 2011 and has continued to do so. Pet. ¶ 5; Ans. ¶ 5 ; Web Decl. ¶¶ 16

- 17

.

II. Issues In the Application, T.J. asserts two arguments, which we discuss in reverse order as follows. First, T. J. asserts that he committed his offense before Pennsylvania enacted any statute requiring registration by sex offenders, and he cannot be subjected to registration requirements retroactively. Appl. ¶ 25. The3

Police respond that under a line of recent ap pellate decisions, retroactive application of sex offender registration requirements is constitutionally permitted.

Second , T.J. asserts that even if he was required to register in Pennsylvania, he was required to do so only for the greater of 10 years or the remainder of his New York registration obligation. Appl. ¶ 21. Thus, he contends that he has completed his registration obligation in Pennsylvania. Id. ¶¶ 23

- 24. The Police respond that T.J.’s New York offense subjec ts him to a lifetime registration requirement in Pennsylvania. Web Decl. ¶ ¶ 14

- 15.

III. Discussion

“ At any time after the filing of a petition for review in an appellate or original jurisdiction matter, the court may on application enter judgment if the right of the applicant thereto is clear. ” Pa.R.A.P. 1532 (b). Th is Court may grant an application for summary relief only if , viewing the evidence in the light most favorable to the nonmoving party, the moving party ’ s right to judgment is clear and

no material issues of fact are in dispute. Cao v. Pa. State Police , 280 A.3d 1107, 1109 (Pa. Cmwlth. 2022) (first citing Pa.R.A.P. 1532(b); and then citing Eleven
Eleven Pa., LLC v. State Bd. of Cosmetology , 169 A.3d 141, 145 (Pa. Cmwlth. 2017) )

. With th is applicable legal standard in mind, we address the two issues raised in T.J.’s Application.

A. Retroactive Registration Requirement Recently, in Cao , this Court addressed very similar issues to those raised by T.J. The petition er in Cao , like T.J. here , asserted that the registration4

requirements of the most recent version of the Sexual Offender Registration and Notification Act (SORNA II) 2 we re punitive as applied to him and that applying those registration requirements retroactively violat ed the ex post facto clauses of the United States and Pennsylvania Constitutions. 3 Cao , 280 A.3d at 1108. We rejected those arguments in Cao , and we likewise do so here.

The predecessor statute of SORNA II, known as SORNA I, 4 was enacted in 2011, effective D ecember 20, 2012

. In Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017)
, the Pennsylvania Supreme Court held that SORNA I violated
constitutional ex post facto provisions to the extent that it was applied retroactively

to increase the registration obligations of sex offenders who were convicted of
certain crimes before SORNA I ’ s effective date. See Cao , 280 A.3d at 1108

.

In 2018, in response to the Muniz decision , the General Assembly enacted SORNA II, which amended certa in provisions of SORNA I for the purpose of curing SORNA I’s constitutional infirmities. Subsequently, in Commonwealth v.
Lacombe , 234 A.3d 602 (Pa. 2020), our Supreme Court up held the validity of SORNA II against a constitutional challenge, concluding th at retroactive application
of the sex offender registration provisions in Subchapter I of SORNA II are nonpunitive and therefore do not violate the constitutional prohibition against ex post facto laws. See Cao , 280 A.3d at 1109 ( citing and discussing Lac ombe )

.

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.

3 See U.S. Const. art. I, § 9 ( proscribing the passage of ex post facto laws); Pa. Const. art. I, § 17 (same)

. This Court has recognized that these two provisions “ are virtually identical, and the standards applied to determine an ex post facto violation are comparable. ” Cao v. Pa. St ate Police , 280 A.3d 1107, 1108 n.2 (Pa. Cmwlth. 2022) (quoting Evans v. Pa. Bd. of Prob. & Parole
, 820 A.2d 904, 909 (Pa. Cmwlth. 2003) (additional quotation marks omitted))

.

4 F ormer ly 42 Pa. C.S. §§ 9799.10

- 9799.41

.5 Nevertheless, the petitioner in Cao argued that SORNA II was unconstitutionally retroactive as to him because he committed his offenses before
the enactment of any sex offender registration laws. Cao , 280 A.3d at 1109. The
Cao petitioner relied on our Supreme Court ’ s decision in Commonwealth v. Santana
, 266 A.3d 528 (Pa. 2021), in which the Court held that Muniz applied equally to
offenders who committed their crimes in other states and later relocated to Pennsylvania , and that the critical issue was not where their offenses were committed, but when

. Cao , 280 A.3d at 1110

- 11 (citing and discussing Santana , 266 A.3d at 529

- 30). T.J. asserts exactly the same argument here and, like the petitioner in Cao , relies on Santana to sup port his position.

In Santana , the petitioner was required to register as a sex offender in New York after committing a sex offense there. He was later convicted of violating SORNA II’s reporting requirements after relocating from New York to Pennsylvania and failing to register with the Police. Our Supreme Court held that Muniz applied equally to offenders whose triggering offenses occurred in another state prior to
SORNA I ’ s enactment ; because SORNA I imposed registration requirements that
did not exist at the time of the petitioner’s triggering offense in his former home

state , the Court concluded that retroactive application of SORNA I to him was

pun itive and an unconstitutional ex post facto law under Muniz

. See Cao , 280 A.3d

at 1111

- 12 (citing and discussing Santana , 266 A.3d at 529

- 30 & 538

- 39 )

.

H owever, this Court rejected the Cao petitioner’s argument that
Santana abrogated his registration requ irement. We explained that although the
invalidation of SORNA I in Muniz applied equally to persons relocating to Pennsylvania after committing crimes in other states, Santana did not invalidate the application of SORNA II’s registration requirements. Cao , 280 A.3d at 1111

- 12

.6

As discussed above, Lacombe has established that the registration provisions of SORNA II are not punitive and therefore are not unconstitutional when applied retroactively to persons who committed offenses prior to its enactment. See Cao , 280 A.3d at 1109 ( citing and discussing Lacombe ) . Nothing in Santana , which relates solely to SORNA I, negates the holding of Lacombe , which relates to
SORNA II . Accordingly, we conclude that the registration requirements of SORNA
II are not u nconstitutional as applied to T.J. here , and we deny the Application with regard to that issue.

B. Duration of Registration Requirement

In the alternative, T.J. argues that, assuming he is subject to statutory registration obligations, Pennsylvania law re quired him to register for the longer of 10 years or the applicable registration period under New York law, which was 20

years. The October 2017 letter from the New York State Sex Offender Registry notified T.J. that he had completed his registration requ irement under New York law. Because that requirement was longer than the 10

- year registration period he asserts was applicable in Pennsylvania, T.J. reasons that he has completed his registration obligation in Pennsylvania and is entitled to be removed fr om the Pennsylvania sex offender registry.

The Police counter that T.J. was always subject to a lifetime registration obligation in Pennsylvania , not a 10

- year obligation . Therefore, they maintain that T.J.’s completion of his New York registration obliga tion and his resulting removal from the New York registry d id not end his registration obligation in Pennsylvania and do not entitle him to removal from the Pennsylvania registry.7 Under SORNA II , convictions of certain sex offenses carry a corresponding registration obligation of 10 years. 42 Pa.C.S. § 9799.55(a)(1)(A)

. Convictions of certain other sex offenses give rise to a lifetime registration obligation. 42 Pa.C.S. § 9799.55(b)(2)(i)(A)

. W h at obligation , if any, applies to
T.J. depends on which sex offense under Pennsylvania law most closely equates with
the offense for which T.J. was convicted in New York. Unfortunately, we are unable to make that determination on the existing record.

The New York statute at issue provided, at the time of T.J.’s offense,
that “[a] person is guilty of rape in the second degree when

. . . being [18] years old or more, he or she engages in sexual intercourse with another person less than [14] years old

. . . .” N.Y. Penal Law former § 130.30

. 5 Pennsylvania does not have a precisely correlating criminal statute ; rather, there are two potentially comparable statutes, depending on the age of the victim

.

In Pennsylvania, u nder Section 3121(c) of the Crimes Code, 6 “[a] person commits the offense of rape of a child, a felony of the first degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age. ” 18 Pa.C.S. § 3121 (c). A conviction under Section 3121(c) gives rise to a lifetime obligation to register as a sex offender. 42 Pa.C.S. § 9799.55(b)(2)(i)(A). The same obligation applies regarding equivalent offenses committed in other states.
42 Pa.C.S. § § 9799.55(b)(2)(ii ) & 9799.56(b)(ii)

.

Pennsylvania also has a statutory sexual assault provision , which , at the time of T.J.’s offense and conviction, stat e d :

5 The current version of Section 130 .30, which became effective in 2001, applies where the victim is less than 15 years old.

6 18 Pa.C.S. §§ 101

– 9546

.8 (a) Felony of the second degree.

-- Except as provided in section 3121 (relating to rape), a person commits a felon y of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other.

18 Pa.C.S. former ly § 3122.1. 7 Notably, there is no sex offender registration requirement associated with a conviction under Section 3122.1. See generally 42
Pa.C.S. § § 9799.55 & 9799.56

.

T he Police posit that T.J.’s offense in New York “equated to a lifetime

reg istration requirement in Pennsylvania.” Resp’t’s Br. at 2; Web Decl. ¶ 14. However, the Police cite no form al determination to that effect and offer no explanation of how they reached that conclusion

.

Recently, in A.L. v. Pennsylvania State Police , 274 A.3d 1229 (Pa. 2022), our Supreme Court held that a court must “ take [] into account all elements of the offenses being compared ” when determining whether a criminal statute from another jurisdiction is equivalent to a particular Pennsylvania statute for purposes of sex offender registration requirements

. I d. at 1238. Here, however, the record is
insufficient to allow such a comparison

. The victim’s age is an element of the
offense under each of the statutes at issue. Arguably, Section 3121 of the Crimes
Code would be equivalent to New York Section 130.30 for purposes of this case only if T.J.’s victim was less than 13 years of age ; o therwise, T.J.’s offense might be more equivalent to statutory sexual assault under Section 3122.1. Compare N.Y.
Pen al Law former § 130.30 with 18 Pa.C.S. §§ 3121 & 3122.1. As stated above, t he Police assert that T.J.’s victim was only 12 years old at the time of the offense. Ans.

7 The current version of Section 3122.1, amended in 2011, upgrades the offense to a felony of the first degree if the perpetrator is 11 or more years older than the victim.9

¶ 2. T.J. alleges she was 16. Pet. ¶ 2 n.1; Appl. ¶ 20

. We observe that T.J.’s conviction under a New York statute appli cable to victims under 14 years of age
suggests T.J.’s assertion of his victim’s age may be untrue. Nonetheless, there is nothing in the present record before this Court that allows us to reach a conclusion
on that issue. Accordingly, we cannot determine what section of the Crimes Code is equivalent to the New York statute under which T.J. was convicted. Likewise, we cannot determine what registration period, if any, presently applies to T.J. in Pennsylvania regar ding his 1994 crime in New York. Therefore, we cannot grant summary relief.

IV. Conclusion

Based on the foregoing discussion, w e are unable to conclude as a matter of law on the present record that T.J. is not subject to a lifetime registration requireme nt in Pennsylvania. Therefore, we must deny T.J.’s Application under the
current state of the record.

___________________________ _______ CHRISTINE FIZZANO CANNON , JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

T. J., :

Petitioner :

: v. : : The Pennsylvania State Police of : the Commonwealth of Pennsylvania, : No. 123 M. D. 20 18

Respondent :

O R D E R

AND NOW, this 9 th day of January , 20 2 3
, Petitioner T.J.’s Application for Summary Relief is DENIED.

_______________________________ CHRISTINE FIZZANO CANNON , Judge