IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.B., :

Petitioner :

:

v. : No. 341 M.D. 2020

: The Pennsylvania State Police, : Submitted: February 6, 2024

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: March 18, 2024

Before this Court in our original jurisdiction is an Application for

Summary Relief (Application) filed by S.B . (Petitioner), proceeding pro se , in

connection with his petition for review filed against the Pennsylvania State Police

(PSP) seeking removal of his name from PSP ’ s sex offender registry pursuant to the

Sexual Offender Registration and Notification Act (SORNA), Act of February 21,

2018, P.L. 27, No. 10, as amended by the Act of July 12, 2018, P.L. 140, No. 29

(SORNA II). 1 In support of his claim, Petitioner asserts t hat because his plea agreement

expressly state d that Megan’s Law 2 was not applicable

, PSP is violating his plea

1 42 Pa.C.S. §§ 9799.10

- 9799.75.

2 Megan ’ s Law I, formerly 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, formerly 42 Pa.C.S. §§ 9791

- 9799.7. In 2004, the General Assembly enacted what is commonly known as Megan ’ s Law III, formerly 42 Pa.C.S. §§ (Footnote continued on next page...)2

agreement by requiring him to register. Essentially, Petitioner is asking that we enforce

his plea agreement against PSP. W e deny Petitioner ’ s Application.

I. Facts and Procedural Background

On December 4, 1996, Petitioner was arrested and charged with rape,

involuntary deviate sexual intercourse, indecent assault, and corruption of minors. On

August 29, 1997 , Petitioner entered a plea of nolo contendere to all charges except for

the rape charge , which was nolle prossed

. The C ourt of C ommon P leas of York County

sentenced Petitioner to 2 1/2

- 6 years’ incarceration. The written colloquy signed by

Petitioner contained the following language:

The trial court’s August 29, 1997 sentencing order stated “[t]his i s not a Megan’s Law

case by virtue of the time at which the incidents are alleged to have occurred

. ”

(Petitioner’s Br., Ex

. B .) The date of the incident was January 1, 1996. Before his

release on parole in May 20 0 1 , Petitioner registered with PSP as a lifetime sex offender

.

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 decided Commonwealth v. Muniz , 164 A.3d 1189 ( Pa. 2017 ), in which it held that a portion of 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.3

Petitioner initiated this action, through counsel on June 9, 2020, filing a

Petition for Review and naming PSP as the sole respondent. Following the decision in

Commonwealth v. Lacombe , 234 A.3d 602 (Pa. 2020) , Petitioner twice amended his

petition, filing his First Amended Petition for Review on July 21, 2020 and his Second

Amended Petition for Review on November 11, 2020. On November 11, 2021,

Petitioner filed an Application for Summary Relief. On December 14, 2021, PSP filed

its answer to the Second Amended Petition. Shortly thereafter Petitioner’s counsel,

who had be en elected judge, sought and was granted permission to withdraw his

appearance. On March 31 , 202 3 , Petitioner

, pro se , filed a brief in support of the

A pplication along with supporting documents, including (1) a sentencing order from

August 29 , 199 7

, (2) a written guilty plea colloquy, and (3) a letter from PSP affirming

the requirement to register with Megan’s Law . On July 10, 2023, PSP filed a brief in

opposition to Petitioner ’ s Application

.
II. Issue

Petitioner does not argue that Megan’s Law violates the ex post facto law

as applied to him, but rather he asserts that because his 1997 plea agreement contained

a negotiated condition of inapplicability of Megan’s Law to his case

, his registration

with the PSP as a sex offender violates the plea agreement

, and he should be removed

from the registry.4 I II . Discussion 3

Petitioner’s offenses occurred on January 1, 1996, prior to the effective

date of Megan’s Law I of April 22, 1996. See 42 Pa.C.S. § 9799.55(b). However,

Petitioner does not dispute that the Supreme Court has held that application of

Subchapter I of SORNA II 4 to those who committed their offenses before any sex

offender registry existed (before April 22, 1996) does not violate their constitutional

rights. T.S. v. Pennsylvania State Police , 241 A.3d 1091 (Pa. 2020). Petitioner’s sole

argument is that his plea agreement was structured so that he would not have to register,

that non

- registration was a mat erial part of his plea bargain, and that he is entitled to

specific performance of that plea bargain. P e titioner states that when he was released

on parole and received notice from PSP to register his current residence and

employment address, he was under impression those were parole conditions and were

not a ssociated with Megan’s Law. (Petitioner’s Br., at 7. ) Petitioner acknowledges

that SORNA II would otherwise apply to him ; however, he argue s that due to the agreed

upon conditions of his plea bargain, the registration is not applicable in his case.

3 This Court may grant an application for summary relief if the party’s right to judgment is clear, and no material issues of fact are in dispute. Gregory v. Pennsylvania State Police , 185 A.3d 1202, 1205 n.5 (Pa. Cmwlth. 2018); Pa.R.A.P. 1532(b). In considering an application for summary relief, the record includes pleadings, depositions, answers to interrogatories, admissions, affidavits, and reports signed by expert witnesses. Summit School, Inc. v. Department of Education , 108 A.3d 192, 195

- 96 (Pa. Cmwlth. 2015). “When ruling on an application for summary relief, we must view the evidence of the record in the light most favorable to the non

- moving party and enter judgment only if there is no genuine issue as to any materia l facts and the right to judgment is clear as a matter
of law.” Gregory , 185 A.3d at 1205 (internal quotation and citation omitted). Because there are no material facts in dispute, we examine whether Petitioner’s right to judgment is clear as a matter of
law. Id. at 1205 n.5; Pa.R.A.P. 1532(b).

4 Subchapter I of SORNA II, titled “Continued Registration of Sex Offenders ,” provides, in relevant part, that its provisions shall apply to individuals who were “required to register with [PSP] under a former sexual offender registration law of this Commonwealth on or after April 22, 1996, but before December 20, 2012, whose per iod of registration has not expired.” 42 Pa. C.S. § 9799.52(2)

.5

Petitioner is asking for this Court to hold that the trial court’s August 29, 1997

sentencing order was a binding contract

, and PSP violated his plea agreement by

imposing a registration requirement on him. In essence

, Petitioner asks this Court to

enforce his plea agreement against PSP. Petitioner’s argument fails

.

In Dougherty v. Pennsylvania State Police , 138 A.3d 152 (Pa. Cmwlth.

2016), a petitioner argued that his plea agreement was conditioned on his registration

as a sex offender for ten years only. P etitioner assert ed

, inter alia , that the terms of his

plea agreement were breached by the imposition of SORNA which required him to

register for a longer period of 25 years

. PSP filed preliminary objections alleging that

the petitioner ’ s contract

- based claims failed because PSP was not a party to the plea

agreement. In sustaining PSP ’ s preliminary objections, this Court explained that “ it is

the Commonwealth, acting through the appropriate prosecutor, not the PSP, [that] is a

party to the plea agreement. ” Id. at 160. We determined:

[T]he PSP has no duty to inquire into the content or intent of any underlying plea agreement. The PSP is not a party to the plea agreement and disputes over the alleged breach of a plea agreement, and the impact of the plea agreement on a [sex offender ’ s] duty to register with the PSP, are properly resolved through the criminal justice system in the appropriate sentencing court.

Id. (emphasis in original). Dougherty continues to remain valid precedent despite

recent changes in the landscape of sex offender registration. See Huu Cao v.

Pennsylvania State Police (Pa. Cmwlth., No. 512 M.D. 2015, filed October 16, 2019);

Huyett v. Pennsylvania State Police (Pa. Cmwlth., No. 516 M.D. 2015, filed August

17, 2017).

Here, as in Doughe rt y , PSP was not a party to Petitioner ’ s plea agreement.

Because Petitioner ’ s breach of contract claim is premised on the terms of his plea

agreement, any dispute regarding those terms must involve the Commonwealth , not6

PSP. Furthermore, because the agreement was silent on the matter of registration, PSP,

here, must apply the appropriate registration based on Petitioner ’ s conviction

established in 42 Pa.C.S. §§ 9799.15, 9799.55. See W.W. v. Pennsylvania State Police

(Pa. Cmwlth., No

. 239 M.D. 2020, filed Jan. 15, 2021); Dough er ty . Thus, we must

reject Petitioner ’ s argument.

I V. Conclusion

Accordingly, we deny Petitioner’s Application.

_______________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.B., :

Petitioner :

:

v. : No. 341 M.D. 2020

: The Pennsylvania State Police, :

Respondent :

ORDER

AND NOW, this 18 th day of March, 2024

, Petitioner’s Application for

Summary Relief is hereby DENIED.

________________________________ PATRICIA A. McCULLOUGH, Judge