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Changes to SORNA (Megan's Law IV) Applicability

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Since Megan's Law IV became effective on December 20, 2012, there have been several decisions that have altered the Act's applicability in some cases.

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By Attorney Elisabeth K.H. Pasqualini, Megan's Law/SORNA Defense Lawyer, Harrisburg, PA

I have previously published blog articles on decisions that have altered the applicability of Megan's Law IV in several cases.  Cases involving plea agreements, juvenile offenders, and determining what offenses are actually applicable to the new Megan's Law IV based on a prior conviction.  I thought it would be worthwhile to summarize those situations into one article.

Ex post facto

Neither the federal nor the Pennsylvania ex post facto clauses prohibits the retroactive application of the 25-year registration requirement under SORNA. The SORNA statute states that it "shall not be construed as punitive." Furthermore, as evaluated under the seven-factor test in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963) , the one factor weighing in favor of finding SORNA punitive (the mandatory in-person appearance requirement) does not ultimately make the statute's retroactive application unconstitutional, because the restraint is relatively minor when balanced against the remaining factors. See Coppolino v. Noonan, 102 A.3d 1254 (Pa.Cmmwlth 2014)(Provision of Sexual Offender Registration and Notification Act (SORNA) that required registrants to update changes in their registration information, including temporary lodging or change in motor vehicle operated, in person at registration site within three business days was punitive).

Plea Agreements

A plea agreement in which the defendant was not required to register as a sex offender under Act 111 of 2011 was valid.  Com. v. Hainesworth, 2013 Pa.Super. 318, 82 A.3d 444 (2013)(en banc).  

When a ten-year registration requirement was part of an Appellant's plea bargain, he was entitled to the benefit of his bargain, and not subject to additional registration beyond that envisioned by his plea agreement. Com v. Nase, 2014 Pa.Super. 194, 104 A.3d 528 (2014)(Registration consequences were unequivocally part fo the plea negotiations and arrangement.  Law that mandated registration for only 10 years was part of the plea agreement).

Accord in Com. v. Farabaugh, 2016 Pa. Super 63 (March 11, 2016).  Where the terms of the non-registration were express in the plea agreement, the Defendant was entitled to enforcement of his agreement.  Not required to register under SORNA.

But see, federal plea where Commonwealth was not a party.  Commonwealth v. Giannantonio, 2015 Pa.Super 89 (Pa.Super. Ct. April 20, 2015).

The same principles behind the registration requirements for sexual offenders under Megan's Law apply to those subject to SORNA. Com v. McDonough, 2014 Pa.Super. 150, 96 A.3d 1067 (2014).

The Pennsylvania State Police lack standing to challenge the entry of negotiated plea agreements in sexual offense prosecutions exempting the defendants from the registration requirements of SORNA. Com v. Cheeseboro, 2014 Pa.Super. 95, 91 A.3d 714 (2014).

Due process and Juveniles

The Supreme Court has held the SORNA registration requirements are unconstitutional because they violate juvenile offenders' due process rights by utilizing the irrebuttable presumption that all juvenile offenders "pose a high risk of committing additional sexual offenses," because that presumption is not universally true and a reasonable alternative means currently exists for determining which juvenile offenders are likely to reoffend. In Re J.B., 107 A.3d 1 (Pa. 2014).

Exceptions to applicability of SORNA

A defendant who pled guilty to an earlier corruption of minors for a sexual offense (a first degree misdemeanor) was not required to register under SORNA because the former and current statutes were not "equivalent crimes."  Com v. Sampolski, 2014 Pa.Super. 74, 89 A.3d 1287 (2014).

When a defendant was convicted of indecent assault as a misdemeanor of the second degree on May 12, 2009, the conviction upon which registration was sought occurred within the time frame specified in 42 Pa.C.S.A. § 9799.13(3.1)(i)(A). However, under 42 Pa.C.S.A. § 9799.13(3.1)(ii)(B) the offense is not deemed to be a sexually violent offense. Accordingly, the appellant fell within the exception to the application of Megan's Law, and was not subject to registration under 42 Pa.C.S. § 9799.15. Com v. Bundy, 2014 Pa.Super. 74, 96 A.3d 390 (2014).

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