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Should I really be getting prosecuted for Failure to Register?

Many times folks that are on the Megan’s Law List or PA State Police Website shouldn’t have to register in the first place, therefore, cannot be prosecuted for failure to register

“Failure to Register” means that either a sexual offender or a sexually violent predator fails to register with the Pennsylvania State Police as required– either on an annual basis or a quarterly basis. 18 PA.C.S. § 4915.1, generally. One must verify their address, be photographed, and provide accurate information when registering. Depending on the date of the offense for which you were convicted (the predicate offense or “triggering offense”) you may be required to register for 15 years, 25 years, or life if convicted of an incident occurring after December 20, 2012. Or, if you were convicted of an offense that occurred after April 22, 1996, but before December 20, 2012, you may have to register for either 10 years or life, depending on the triggering offense.

Date the Triggering Offense Occurs Controls for Registration Purposes

Many folks that are either my client or that I speak to on a routine basis, don’t know that the date of the incident controls. Not the date of the conviction, the date you were released from prison, the date you got off parole or “maxed out.” The date of the triggering offense occurred controls your registration. Nothing else. If the State Police tell you otherwise, they just aren’t right. The application of SORNA to sexual offenders for offenses committed before its effective date violates the ex post facto clauses of the United States and Pennsylvania Constitutions. Commonwealth v. Wood, 2019 PA Super 117, 208 A.3d 131 (Pa. Super. Ct. 2019).

You cannot be convicted for Failing to Register if the Underlying Registration Act is Not Constitutional

Under Com v. Derhammer, 173 A.3d 723 (Pa. Supreme. 2017), the high court held that you cannot be convicted for failing to register as a SORNA I offender, because that particular statute was declared unconstitutional in Com v. Muniz. There are currently two challenges to SORNA II pending in the Supreme Court that have both been briefed and argued. A decision is expected early this year as to the constitutionality of SORNA II. If you have been charged with the offense of failing to register under SORNA II, the possible result may be that your charges will have to be dismissed as invalid under Derhammer.

What if My Triggering Offense Occurred before April 22, 1996?

In the case of Gregory v. Pa. State Police, 185 A.3d 1202, 1205-06 & n.6 (Pa. Cmwlth. 2018), the Commonwealth Court held that the petitioner, a registrant, could not be held to register under SORNA II when his offense was committed in 1982. Therefore, it stands to reason that if you did not need to even register, you could not then be convicted for failure to register under the current law.

There may also be variations to a degree on this front. For instance, one who has been required to register for an offense that occurred in 1996 under Megan’s Law I that was not a triggering offense, may be relieved of their obligation to register. It all depends on the date of the offense and the statute that was in effect at the time.

If you have questions or concerns, we can help. Contact us to discuss your matter.

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