IN THE COMMONWEALTH COURT OF PENNSYLVANIA

N.K.D., :

Petitioner :

:

 v. : No. 622 M.D. 2019

: ARGUED: February 8, 2021

Commissioner of the Pennsylvania :

State Police, Robert Evanchick, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge1

HONORABLE MARY HANNAH LEAVITT, Judge (P)2

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: January 18, 2022

N.K.D., Petitioner, has applied for summary relief with respect to his 

petition for review against the Commissioner of the Pennsylvania State Police, 

Respondent. The petition is in the nature of a complaint in mandamus seeking 

injunctive and declaratory relief. He seeks to have his name stricken from the 

Megan’s Law Registry and website in Pennsylvania and, by direction of Respondent, 

in Virginia, where he now resides. Petitioner challenges the constitutionality of the 

current version of Subchapter H (Revised Subchapter H) of the Sexual Offender 

1 The Court reached the decision to this case prior to the conclusion of President Judge 

Emeritus Brobson’s service on the Commonwealth Court.

2 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita 

Leavitt became a senior judge on the Court.
2

Registration and Notification Act (SORNA II),3found at 42 Pa.C.S. §§ 9799.10 –

9799.39. For the reasons that follow, we deny Petitioner’s application for summary 

relief.

There is little in the way of a factual record before the Court. In July 

2017, Petitioner pled guilty to two counts of indecent assault in the Court of 

Common Pleas of York County, evidently involving sexual assault of a child.4 

Petitioner was sentenced in December 2017 to a term of eight years of probation on 

both counts, plus a lifetime of reporting and registration as a Tier III sexual offender. 

At the time of the guilty plea, Petitioner was advised of his registration obligations 

under the Pennsylvania sex offender registration laws and informed that he was a 

Tier III sexual offender for whom lifetime registration would be required. The 

previous version of the Sexual Offender Registration and Notification Act (SORNA 

I), formerly 42 Pa.C.S. §§ 9799.10 – 9799.41, was in effect.

No further legal action was taken to challenge the conviction and 

sentence. A resident of Virginia, Petitioner alleges that he has been required to 

register as a violent sex offender with the Department of State Police of the 

3 The lengthy legislative history of SORNA II, including its predecessor laws and Revised 

Subchapter H, is set forth in Commonwealth v. Torsilieri, 232 A.3d 567, 575-581 (Pa. 2020).

4 Petitioner alleges that the underlying facts of his conviction were that he touched the penis 

of a four-year-old through the child’s clothing and vice versa. (Petition for Review, ¶ 5(a); 

Application for Summary Relief, ¶ 5.) Petitioner also alleges, in a footnote to Paragraph 5(a) of 

the Petition for Review, that the sentencing judge was informed that Petitioner was autistic and 

further alleges that he has been diagnosed with a “severe and chronic” autism spectrum disorder 

with developmental disability and “extremely low” social skills. (Petition for Review at 3 n.1.) 

Respondent, stating that it lacked information to confirm the allegations concerning the facts of 

the underlying offense, denied them. (Answer and New Matter, ¶ 5(a); Answer to Application for 

Relief, ¶ 5.) In its brief, Respondent characterizes the underlying facts as follows: “On July 5, 

2017, Petitioner sexually assaulted a four[-]year[-]old.” (Respondent’s Br. at 1.)
3

Commonwealth of Virginia, commencing December 27, 2017. (Petition for Review,

¶ 5(e); Application for Summary Relief, ¶ 9.)5

Subsequent to Petitioner’s sentencing, the General Assembly amended 

SORNA I in Act 10 of 2018, Act of February 21, 2018, P.L. 27, which became 

effective on February 21, 2018. Act 10 was, in turn, reenacted as Act 29 of 2018, 

Act of June 12, 2018, P.L. 140, 42 Pa.C.S. §§ 9799.10 – 9799.75, which became 

effective immediately. Act 29 split the legislation into the Revised Subchapter H 

and new Subchapter I. Revised Subchapter H applies to crimes committed on or 

after December 20, 2012, and resembles in substance SORNA I. Revised 

Subchapter H is the version applied to Petitioner. Subchapter I was enacted in order 

to address, inter alia, the Supreme Court’s determination in Commonwealth v. 

Muniz, 164 A.3d 1189 (Pa. 2017) (plurality), that application of SORNA I to those 

convicted prior to December 20, 2012, violated those individuals’ ex post facto

rights. 42 Pa.C.S. § 9799.11(b)(4). 

Petitioner filed his petition for review in the original jurisdiction of this 

Court and Respondent filed an answer. Petitioner has filed an application for 

summary relief that is now before the Court.

Petitioner raises two arguments in support of his application for 

summary relief:6(1) that Revised Subchapter H violates the ex post facto provisions 

of the United States and Pennsylvania Constitutions and (2) that Revised Subchapter 

5 Respondent claims insufficient knowledge to confirm and therefore denies this allegation. 

(Answer and New Matter, ¶ 5(e); Answer to Application for Summary Relief ¶ 9.)

6 Pennsylvania Rule of Appellate Procedure 1532(b), Pa.R.A.P. 1532(b), allows this Court to 

enter judgment any time after the filing of a petition for review, when the applicant’s right to relief 

is clear.
4

H violates his right to due process. Respondent raises the threshold issue of 

standing,

7 which we find exists.8

Ex Post Facto Arguments

Petitioner contends that applying Revised Subchapter H to offenses 

committed prior to its effective date, such as Petitioner’s, violates the constitutional 

prohibition on ex post facto laws. We do not find his arguments availing.

Petitioner asserts that because SORNA I was repealed and SORNA II 

was enacted subsequent to the commission of his offenses, there “was no law in 

existence regarding registration and reporting requirements that applied to the 

Petitioner.” (Petitioner’s Br. at 9.) However, this is simply untrue—SORNA I was 

in effect at the time of the commission of Petitioner’s offenses and Revised

Subchapter H is an amended version of SORNA I limited so as not to apply to those 

7 The heading of this section of Respondent’s brief states that the claim is not justiciable (see

Respondent’s Brief at 2), but the short discussion therein is addressed to standing.

8 Respondent argues that Petitioner lacks standing to bring this action, because he does not 

live in Pennsylvania and is therefore not on the Commonwealth’s sex offender registry.

For standing to exist, the underlying controversy must be real and concrete, such that the party 

initiating the legal action has, in fact, been “aggrieved.” Pittsburgh Palisades Park, LLC v. 

Commonwealth, 888 A.2d 655, 659 (Pa. 2005). A party is aggrieved for purposes of establishing 

standing when the party has a substantial, direct, and immediate interest in the outcome of 

litigation. Office of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014). A party’s interest is 

substantial when it surpasses the interest of all citizens in procuring obedience to the law; it is 

direct when the asserted violation shares a causal connection with the alleged harm; finally, a 

party’s interest is immediate when the causal connection with the alleged harm is neither remote 

nor speculative. Id.

We find that standing exists for the purposes of considering Petitioner’s application for 

summary relief because subjection to Revised Subchapter H carries with it the necessary interest 

for Petitioner to be considered aggrieved as it affects his rights under the laws of the 

Commonwealth and of another jurisdiction.
5

whose ex post facto rights were affected by that law, i.e., those whose offenses 

occurred prior to December 20, 2012.

9

 Petitioner is not such a person.

Some of the specific provisions which Petitioner asserts injure him predate both his offenses and the 2018 legislation. Act 11 of 2011 enacted the following 

provisions: penalties for violation of registration requirements in 42 Pa.C.S. § 

9799.21 (relating to penalty); the in-person verification requirements in 42 Pa.C.S. 

§ 9799.25 (relating to verification by sexual offenders and the Pennsylvania State 

Police); and the requirement that the Pennsylvania State Police develop and maintain 

a public internet website in 42 Pa.C.S. § 9799.28 (relating to public internet website). 

Another provision, the mandatory additional three-year period of probation for 

sexual offenders provided for in 42 Pa.C.S. § 9718.5(a), was enacted by Act 10 of 

2018 on February 21, 2018, effective April 23, 2018, well after Petitioner’s offenses 

and sentencing. Thus, it is unclear as to how it applies to Petitioner.

Further, Petitioner’s comparison of such provisions to the “less 

stringent” provisions of Subchapter I found constitutional by the Supreme Court in 

its recent decision, Commonwealth v. LaCombe, 234 A.3d 602 (Pa. 2020), sets an 

improper baseline: the very purpose of Subchapter I was to address those for whom 

application of provisions in SORNA I did constitute ex post facto punishment, i.e., 

those whose offenses predated December 20, 2012. Revised Subchapter H applies 

to those like Petitioner whose offenses occurred subsequent to that date, for whom 

application of SORNA I would not run afoul of ex post facto rights.

9

See Section 21(1) of Act 29 (“[t]he reenactment or amendment of . . . 42 Pa.C.S. Ch. 97 

Subch. H shall apply to an individual who committed an offense on or after December 20, 2012”).
6

Due Process Arguments

Petitioner argues that Revised Subchapter H’s imposition of a lifetime 

of reporting and registration constitutes a denial of procedural due process even 

though there has been no finding by any court that he is a person whose individual 

circumstances warrant such a harsh penalty. Petitioner contends that the maximum 

sentence under the statute for indecent assault, a misdemeanor of the first degree, is 

ten years (two consecutive terms of five years) and that the reporting and registration 

requirements effectively create a sentence of lifetime probation. Petitioner also 

notes that under 42 Pa.C.S. § 9718.5(a) there is an additional mandatory term of 

three years’ probation that was not part of Petitioner’s original sentence.

Petitioner contends that the public internet website authorized by 

Revised Subchapter H provides an electronic notification option similar to the 

community notification procedure used to inform citizens when a sexually violent 

predator moves into a neighborhood, despite Petitioner never having been 

determined to be a sexually violent predator, denying him substantive due process. 

As a result of the application of Revised Subchapter H, Petitioner asserts that he will 

sustain damage to his reputation and face a stigma to his place in society not 

authorized by the Constitution.

Petitioner contends that Subchapter H subjects him to increased 

registration provisions without a jury having determined that he poses a greater risk 

of future dangerousness beyond a reasonable doubt and also violates federal and 

state constitutional separation of powers doctrines by encroaching upon the courts’ 

responsibility to impose an individualized fact-based sentence.

Our Supreme Court’s recent decision in Commonwealth v. Torsilieri, 

232 A.3d 567 (Pa. 2020), concerned a due process challenge to Revised Subchapter 
7

H. The Torsilieri Court did not reach the merits of any of the constitutional claims 

at issue, determining instead that the factual record was not sufficiently developed 

in the trial court. The Court stated as follows: 

[A]ll cases are evaluated on the record created in the 

individual case . . . . [T]his Court will not turn a blind eye 

to the development of scientific research, especially where 

such evidence would demonstrate infringement of 

constitutional rights.

Nevertheless, we also emphasize that it will be the rare 

situation where a court would reevaluate a legislative 

policy determination, which can only be justified in a case 

involving infringement of constitutional rights and a 

consensus of scientific evidence undermining the 

legislative determination. We reiterate that while courts 

are empowered to enforce constitutional rights, they 

should remain mindful that the “wisdom of a public policy 

is one for the legislature, and the General Assembly’s 

enactments are entitled to a strong presumption of 

constitutionality rebuttable only by a demonstration that 

they clearly, plainly, and palpably violate constitutional 

requirements.”

. . . .

Accordingly, we conclude that the proper remedy is to 

remand to the trial court to provide both parties an 

opportunity to develop arguments and present additional 

evidence and to allow the trial court to weigh that evidence 

in determining whether [Torsilieri] has refuted the relevant 

legislative findings supporting the challenged registration 

and notification provisions of Revised Subchapter H. 

Id. at 596 (citations omitted).

There is no factual record in this case beyond the mere fact of 

Petitioner’s conviction. Thus, there is no basis for resolving the factual issues 

identified in Torsilieri for a facial challenge to Revised Subchapter H. Further, there 
8

are factual disputes regarding the averments specific to Petitioner’s situation (the 

nature of his offense and his alleged diagnosis of autism) to determine that the

Petitioner has made a case for an as-applied challenge. Compare to Com. v. 

Muhammad, 241 A.3d 1149 (Pa. Super. 2020) (vacating requirement to comply with 

SORNA II based upon as-applied due process challenge). We may grant summary 

relief where the dispute is legal rather than factual, but not where there are disputes 

of fact. Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1220 (Pa. 

Cmwlth. 2018). We review the record in the light most favorable to the opposing 

party and resolve all doubts concerning the existence of a genuine issue of material 

fact in favor of that party. Id. While Petitioner’s arguments echo the arguments

raised in Torsilieri, it is not at all clear that he is entitled to summary relief at this 

stage. Thus, we deny the application for summary relief to allow Petitioner to 

develop a factual record in this matter. 

In light of the foregoing, we deny Petitioner’s application for summary 

relief.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

N.K.D., :

Petitioner :

:

 v. : No. 622 M.D. 2019

:

Commissioner of the Pennsylvania :

State Police, Robert Evanchick, :

Respondent :

O R D E R

AND NOW, this 18th day of January, 2022, Petitioner’s application for 

summary relief is DENIED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita