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Administrative Hearing Required for SORNA II

An administrative hearing is required of the Pennsylvania State Police prior to assigning sex offender to a “Tier” for a non-Pennsylvania conviction.

In an recent en banc decision announced by the Pennsylvania Commonwealth Court (M.S. v. P.S.P., ___ A.3d ___ (June 11, 2019; 335 M.D. 2017)) the Court determined that prior to classification as a “Tier III” offender, the Pennsylvania State Police were required to provide notice and the opportunity for an Administrative Law Hearing to an offender that had been convicted of a military offense that bore resemblance to a Pennsylvania sexual offense. The two issues reviewed by the Court in deciding this matter were: 1) whether PSP was required to provide him with a hearing to challenge the propriety of its equivalency determination designating him as a Tier III sex offender because he was not convicted of an express that enumerated offense set forth in Section 9799.14(d) of SORNA or SORNA II; and 2) whether the defendant, even in the absence of constitutional due process concerns, is entitled to a hearing under the Administrative Agency Law.

Administrative Agency Law

The Court determined that the Pennsylvania State Police are an administrative agency. Accordingly, under Administrative Agency Law, a hearing is required:

Even though the agency action has a direct impact on the person’s rights or privileges, and is final so as to fall within the definition of an “adjudication”, the action is not “valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard.” 2 Pa. C.S. § 504. Until a hearing is held before the administrative agency and a record of that hearing made, Section 504 of the Administrative Agency Law provides that the adjudication is not valid or effective.

Only after all administrative remedies have been exhausted can an appellant be provided an appeal and judicial review. M.S. at p. 4.

Remedy

The defendant is entitled to a post-equivalency (is the military crime and the PA crime the same or considerably the same to require registration) hearing.

“PSP necessarily engaged in a nonministerial act when it issued its equivalency determination designating Petitioner as a Tier III sex offender, because such a determination required PSP to determine whether the elements of the crimes were comparable for purposes of SORNA or SORNA II.”

Further, PSP’s denial of such administrative review denies the fundamental reputational rights and procedural due process guarantees afforded to any litigant that is designated as a Tier offender based upon an extraterritorial conviction.

It is my belief that although this matter was constrained to a military conviction, the same type of administrative review process should be afforded to any offender that is designated as a “Tier Offender” under SORNA II (Act 29 of 2018) for any extraterritorial conviction, such as from another state, Puerto Rico, another country, or the military.

If you have concerns about your designation as a sexual offender or assignment as a “Tier Offender” on SORNA II, contact our office for a consultation. You may also contact us for a free copy of our book, Defending Sexual Offenses–A Non-Lawyer’s Guide to Understanding the Criminal Process in Pennsylvania.

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