OPINION BY President Judge PELLEGRINI
Before the Court are the cross-motions for summary judgment of A.S. and the Pennsylvania State Police (PSP) filed pursuant to Pa. R.C.P. No. 1035.2
This action arose out of the interactions between A.S., who was 21 years old at the time of the incident, and a 16-year-old female minor who engaged in consensual sexual relations. Because the age of consent in Pennsylvania is 16, the consensual sex between those individuals was not a crime. See Section 3122.1 of the Crimes Code, 18 Pa.C.S. § 3122.1. While it is not a crime to have sex with a 16-year-old minor, somewhat anomalously, it is a crime to photograph or cause to be photographed a 16-year-old having consensual sex and causing a minor to take photographs of herself engaging in the sexual acts. A.S. admitted that he met the victim online, developed a relationship with her which led to consensual sex, and that he persuaded the victim to take photographs of herself in various sexual positions with her digital camera. He also used the minor's digital camera to photograph the two engaging in sexual relations.
As a result of this conduct, A.S. pled guilty in the Court of Common Pleas of Montgomery County (trial court) to one count of violating Section 6312(b) of the Crimes Code, 18 Pa.C.S. § 6312(b) (sexual abuse of children), one count of violating Section 6318(a)(5), 18 Pa.C.S. § 6318(a)(5) (unlawful contact with a minor), and one count of violating Section 6301, 18 Pa.C.S. § 6301 (corruption of minors). (Guilty Plea Colloquy, attached to PSP's Memo as Exhibit D4).
As a collateral consequence of his guilty plea to those charges, the former Section 9795.3 of the Sentencing Code, 42 Pa.C.S. § 9795.3, required the trial court to inform offenders at the time of sentencing of their registration requirements as a sex offender.
The sentencing hearing transcript establishes that the trial court, the prosecuting attorney, and A.S. all believed that he would be subject to a ten-year and not a lifetime registration requirement under the former Section 9795.1 of the Sentencing Code. At the hearing, A.S.'s mother testified on his behalf stating, "My son made a mistake, a terrible, terrible error in his life that's affected him. He's been punished. He will be punished. He has a ten-year reporting component to this punishment." (N.T. 2/28/02 at 29-30 (emphasis added)). To this, the trial court responded, "I know." (Id. at 30). This statement by A.S.'s mother also supports his contention that, at the time of sentencing, he believed that the collateral consequence of his guilty pleas under Megan's Law II was a ten-year and not a lifetime registration requirement. In addition, while presenting the Commonwealth's position on sentencing, the Assistant District Attorney stated, "He's now facing a ten-year registration for Megan's Law. That's true. But why is he facing this ten-year registration? He is because what he did is a serious offense." (Id. at 45 (emphasis added)). No appeals were filed.
On August 2, 2002, upon his release from imprisonment, A.S. registered with PSP as a sex offender as required by Megan's Law II. Following the expiration of the ten-year period in August 2012, A.S. sought to have his name removed from the registry. PSP refused to do so, claiming that because A.S. pled guilty to one count each of violating Sections 6312(b) and 6318(a)(5) of the Crimes Code, which are each listed offenses requiring a ten-year registration period under the former Section 9795.1(a)(1) of the Sentencing Code, the former Section 9795.1(b)(1) required a lifetime registration because A.S. was "an individual with two or more convictions of. . . the offenses set forth in subsection (a)." Based on PSP's refusal to remove his name from the registry, A.S. filed the instant Petition in this Court and the parties filed cross-petitions for summary relief.
In opposition to A.S.'s motion and in support of its own, PSP argues that it properly designated A.S. as a lifetime registrant under the former Section 9795.1(b)(1). PSP claims that the language of the former subsection (b)(1) is clear and that A.S. is subject to its provisions because he is "an individual with two or more convictions of any of the offenses set forth in subsection (a)." PSP asserts that the acts underlying the crimes are of no consequence; if the defendant is convicted of two or more crimes set forth in subsection (a)(1), he or she is a lifetime registrant under subsection (b)(1). Because A.S. is such a defendant, PSP contends that he cannot show a clear right to have his lifetime registrant designation changed and is, therefore, not entitled to mandamus relief.
The question here is whether A.S.'s guilty pleas to two separate crimes involving photographs of the same minor were one or two convictions for the purpose of the sex offender registration requirements contained in the former Section 9795.1 of the Sentencing Code. If the guilty plea is considered to be one conviction for this purpose, then under that provision, A.S. is only required to register as a sex offender for ten years under the former subsection (a)(1), but if they are considered to be two convictions, he would be subject to the lifetime registration requirement of the former subsection (b)(1).
In Commonwealth v. Gehris, 618 Pa. 104, 54 A.3d 862 (2012), a defendant, Patrick Gehris, began corresponding with what he believed to be a 19-year-old female in an internet chat room in October 2006. The female was actually a PSP officer trained to pose as a teenager to collect evidence and investigate sexual predators. In early 2007, Gehris's exchanges included requests to meet younger girls 11- to 13-years old that the PSP officer might know and that he fantasized about having sex with the two girls. Gehris wrote that he wanted to talk to the younger girl on the phone and asked the PSP officer to send him pictures of the younger girl. Gehris e-mailed the PSP officer photos of his face and shoulders and sent a digital camera containing pictures of his penis to an address that he had been given. About ten days later, Gehris called a
In April 2007, Gehris was charged with six crimes:
Gehris pled guilty to the solicitation and attempt charges and was sentenced to a one- to two-year term of imprisonment with a consecutive eight-year probationary term. Because Gehris was guilty of both the criminal solicitation for the sexual exploitation of children and criminal solicitation for the sexual abuse of children, the trial court found that he was subject to the lifetime registration requirement of the former Section 9795.1(b)(1) of the Sentencing Code.
On appeal from an unreported Superior Court opinion affirming the trial court's determination, the Pennsylvania Supreme Court considered whether Gehris was subject to the former Section 9795.1(b)(1) lifetime registration requirement due to his guilty pleas to two subsection (a)(1) offenses arising out of a four-month course of conduct that were contained in a single criminal information. However, the six sitting Justices were unable to reach a
The Opinion in Support of Affirmance (OISA) concluded that the language of the former Section 9795.1(b)(1) was clear and unambiguous and rejected an alternative interpretation that would limit the reach of the former subsection (b)(1) to only repeat offenders or recidivists. The OISA adopted a similar statutory-construction approach to that of the Superior Court in Merolla, explaining:
Gehris, 618 Pa. at ___, 54 A.3d at 867-68 (footnote omitted).
The Opinion in Support of Reversal (OISR) agreed that, in isolation, the statutory language of the former Section 9795.1(b)(1) was "not ambiguous or unclear." Gehris, 618 Pa. at ___, 54 A.3d at 875. However, in the OISR's view, that does not necessarily address the problem:
Id. at ___, 54 A.3d at 875.
In support of this position, the OISR reviewed the history of that recidivist philosophy and its adoption and application by the United States Supreme Court and our Supreme Court. One of the cases recounted was:
Id. at ___, 54 A.3d at 878.
The OISR concluded that the registration requirements of the former provisions of the Sentencing Code encompassed a recidivist philosophy and must be read in light of that philosophy, explaining:
Id. at ___, 54 A.3d at 878-79.
As a result, the OISR concluded that, "[w]e would therefore hold that a defendant convicted of `two or more' subsection (a) offenses is subject to the lesser sanction of the ten-year registration requirement so long as it is clear that the offenses were part of the same course of criminal conduct. . . ." Id. at ___, 54 A.3d at 879. We find the OISR's interpretation of the former provisions of Section 9795.1 to be persuasive and applicable to the disposition of the instant cross-motions for summary relief and Petition.
If that interpretation is not adopted, then having a ten-year requirement under the former subsection (a) and a separate
Based on the foregoing, it is clear and free from doubt that the conduct here was a result of a "single criminal episode"
AND NOW, this 7th day of March, 2014, A.S.'s Cross-Motion for Summary Relief is granted and the relief sought in his Petition for Review in the Nature of a Complaint in Mandamus is granted; the Pennsylvania State Police's Motion for Summary Relief is denied. The Pennsylvania State Police, in its capacity under the former Section 9799.1 of the Sentencing Code, 42 Pa.C.S. § 9799.1, and the current Section 9799.16 of the Sex Offender Registration and Notification Act, 42 Pa.C.S. § 9799.16, is directed to change A.S.'s lifetime registration designation under the former Section 9795.1(b) of the Sentencing Code, 42 Pa.C.S. § 9795.1(b), to a 10-year registration designation under the former Section 9795.1(a) of the Sentencing Code, 42 Pa.C.S. § 9795.1(a).
DISSENTING OPINION
BY Judge BROBSON.
The majority holds that summary judgment in favor of Petitioner A.S. is appropriate because, as a matter of law, A.S. was subject only to the ten-year registration period for sexual offenders because his two criminal convictions were the result of a "single criminal episode" and, therefore, should be treated as a single conviction for purposes of registration under Section 9795.1(b)(1) of the Sentencing Code.
On December 7, 2000, Petitioner A.S. was charged with one count under Section 902 of the Crimes Code
When law enforcement officials investigated, they found photographs of the victim on A.S.'s computer, along with other child pornography downloaded from the internet. (Id.) A.S. admitted to law enforcement officers that he met the victim online, developed a relationship with the victim that led to consensual sex, and that he persuaded the victim to take photographs of herself in various sexual positions with her digital camera. (Id.) He also used the minor's digital camera to photograph the two engaging in sexual relations. (Id.) Bills of information subsequently filed identified a sixteen year old girl named "T." as the victim with whom A.S. had unlawful contact for purposes of Section 6318(a)(5) of the Crimes Code. (Bills of Information, attached to Respondent's Memo, Ex. D3.)
On October 5, 2001, A.S. pled guilty to one count of violating Section 6312(b) of the Crimes Code (relating to sexual abuse of children in the context of causing a minor to be photographed engaging in a prohibited sexual act or simulation thereof) and one count of violating Section 6318(a)(5) of the Crimes Code (relating to unlawful contact with minor for purposes of engaging in a violation of Section 6312).
Disputes over the length of a particular sex offender's registration period have been resolved mostly through the criminal justice system in the courts of common pleas following sentencing, through a right of appeal to the Pennsylvania Superior Court, and ultimately by discretionary appeal to the Pennsylvania Supreme Court.
In Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008), the Supreme
Four months later, at Leidig's sentencing hearing, Leidig was advised that he would be subject to a ten-year registration requirement. Later that same day, however, the attorneys for the Commonwealth and Leidig expressed concern to the sentencing court that although the crime for which Leidig pleaded guilty was a ten-year registration offense under the version of Megan's Law in effect at the time Leidig engaged in the criminal act, the subsequent passage of Megan's Law II reclassified that crime as a lifetime registration offense. The sentencing court and the attorneys, however, agreed that the version of Megan's Law in effect at the time Leidig committed the crime controlled and that, as a result, he would be subject to the ten-year registration period.
After sentencing, the Franklin County Parole and Probation Department informed Leidig that he would be subject to a lifetime registration under Megan's Law II. Leidig then filed a motion to withdraw his guilty plea, contending that his guilty plea was not knowing and intelligent, because he had been misinformed as to the registration consequences of his guilty plea. He also moved to modify his sentence. The trial court denied both motions, but, in a subsequent opinion pursuant to Pa.R.A.P. 1925(a), opined that Leidig was subject to a ten-year registration, not the lifetime registration requirement under Megan's Law II.
Leidig appealed, and the Pennsylvania Superior Court affirmed the trial court's denial of the two motions. The Superior Court, however, disagreed with the trial court on the period of registration. Citing its precedent in Commonwealth v. Fleming, 801 A.2d 1234 (Pa.Super.2002), the Superior Court held that because the purpose of Megan's Law II, in effect at the time of Leidig's sentencing, was to protect the public and not to punish Leidig, it was not, as Leidig argued, an ex post facto law in violation of the United States Constitution. Leidig, 598 Pa. at 217, 956 A.2d at 402. The Superior Court also held that Leidig was not entitled to withdraw his guilty plea as a result of the confusion over his registration status, concluding that the registration requirement under Megan's Law II was a collateral, rather than direct, consequence of the guilty plea. Because a criminal defendant's lack of knowledge about the collateral consequences of a guilty plea does not, as a matter of law, render a guilty plea unknowing or involuntary, the Superior Court reasoned that any misunderstanding at sentencing about the registration consequences of Leidig's guilty plea cannot serve as a basis to withdraw that plea. Id. at 217-18, 956 A.2d at 403.
In reviewing the issue it accepted for appeal, the Supreme Court rejected Leidig's argument that registration under Megan's Law II is a direct, rather than collateral, consequence of his conviction:
Id. at 220, 956 A.2d at 404 (footnotes omitted). In so doing, the Supreme Court reiterated its prior holdings in Commonwealth v. Gomer Williams, 574 Pa. 487, 832 A.2d 962 (2003), and Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865 (2007), wherein the Supreme Court held that the registration requirements of Megan's Law and Megan's Law II are remedial, not penal, and designed to protect the public, not to further punish the offender. The court continued:
Leidig, 598 Pa. at 223, 956 A.2d at 406.
As to the sentencing court's misinforming Leidig of the registration period at the time of sentencing, the Supreme Court found that to be an irrelevant consideration to the issue before it, that being the validity of Leidig's guilty plea four months earlier:
Id.
In Commonwealth v. Merolla, 909 A.2d 337 (Pa.Super.2006), both the Commonwealth and Alfred Merolla (Merolla) appealed rulings by the sentencing court in Merolla's criminal case. The relevant challenge, for purposes of the case now before us, was the Commonwealth's challenge to the sentencing court's decision that upon his release from prison, Merolla would be required to register with PSP under Megan's Law for ten years. The Commonwealth contended that Merolla should be a lifetime registrant under Section 9795.1(b)(1) of the Sentencing Code, due to his two separate convictions for indecent assault (18 Pa.C.S. § 3126), a predicate offense listed under Section 9795.1(a).
According to the Superior Court opinion, Merolla pleaded nolo contendere to, inter alia, two counts of indecent assault, stemming from "attacks" on three victims all under the age of sixteen. Merolla, 909 A.2d at 340. Following the plea and an assessment by the Pennsylvania Sexual Offenders Assessment Board to determine whether Merolla was a SVP, the sentencing court held, inter alia, that Merolla was not a SVP and that Merolla must register under Megan's Law II for a period of ten years. The Commonwealth filed a post-trial motion, challenging various aspects of the sentencing court's sentence, including
On appeal, the Superior Court agreed with the Commonwealth, holding that Merolla was required to register under Megan's Law for the rest of his life. Focusing on the statutory language found in Section 9795.1(b)(1) of the Sentencing Code—i.e., "[a]n individual with two or more convictions of any of the offenses set forth in subsection (a)" shall be subject to lifetime registration, the Superior Court noted the absence of any word to suggest that the convictions must occur in separate criminal proceedings for the lifetime ban to be triggered. It contrasted this statutory language with that found in what is commonly referred to as Pennsylvania's Three Strikes statute, which imposes enhanced criminal penalties "[w]here the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions." 42 Pa.C.S. § 9714(a)(2) (emphasis added). Section 9795.1(b)(1), the Superior Court noted, includes no similar language that would limit its application to situations where there is a previous conviction. The legislature's decision to include a requirement of a prior conviction in the Three Strikes statute, the Superior Court reasoned, was consistent with the purpose of that law, that being to curb recidivism through enhanced sentencing. In contrast, the purpose of Megan's Law II is not to curb recidivism, but to protect the public. Merolla, 909 A.2d at 346-47. The court opined:
Id. at 347 (citations omitted).
The Pennsylvania Supreme Court recently wrestled with the interpretation of subsection (b)(1) with regard to convictions for more than one predicate offense, although it ultimately provided no binding precedent. In Commonwealth v. Gehris, 618 Pa. 104, 54 A.3d 862 (2012), on allowance of appeal from an unreported memorandum decision of a three-judge panel of the Pennsylvania Superior Court, the Pennsylvania Supreme Court considered the question of whether a man (Gehris) who pled guilty to two subsection (a) offenses from a single criminal information, arising out of conduct that occurred over a four-month period, should be considered a lifetime registrant under the law. The trial court and the Pennsylvania Superior Court held that the statutory language was unambiguous and concluded that Gehris met the definition of a lifetime offender based on his conviction of two subsection (a) offenses.
On appeal to our Supreme Court, the six sitting Justices were unable to reach a consensus in the case, resulting in a per
Gehris, 618 Pa. at ___, 54 A.3d at 867-68 (Todd, J.).
In an opinion in support of reversal (OISR), Chief Justice Castille, joined by Justices Saylor and Baer, agreed that, in isolation, the statutory language of subsection (b)(1) was "not ambiguous or unclear." Gehris, 618 Pa. at ___, 54 A.3d at 875 (Castille, C.J.). But that, in the Chief Justice's view, does not necessarily address the problem:
Id., 54 A.3d at 875 (Castille, C.J.). The Chief Justice then set out his case as to why the registration requirement in the law encompasses a recidivist philosophy and thus must be read in light of that philosophy:
Id. at ___, 54 A.3d at 879 (Castille, C.J.).
By per curiam Order dated July 2, 2013 (No. 526 MAL 2012), the Pennsylvania Supreme Court granted the Petition for Allowance of Appeal of Adam Mielnicki (Mielnicki) from a June 13, 2012, unreported memorandum decision of a three-judge panel of the Superior Court (No. 721 EDA 2011), which affirmed the sentencing court's imposition of lifetime registration under Megan's Law II because Mielnicki pled guilty to five counts of sexual abuse of children (18 Pa.C.S. § 6312), relating to possession of child pornography. Mielnicki contended that the imposition of lifetime registration under Section 9795.1(b)(1) was in error, because he pled guilty to the five counts in a single criminal proceeding and had no prior convictions. The Superior Court rejected this argument, relying, as it did in Gehris, on its binding precedent in Merolla.
In its July 2, 2013 Order, the Supreme Court accepted review of the following issues, as stated by Mielnicki in his petition:
The Supreme Court has since docketed the appeal (No. 45 MAP 2013). Based on my review of the docket, it appears that all of the parties' briefs have been filed and the matter has been scheduled for oral argument before the Supreme Court on March 11, 2014, in Philadelphia.
At the heart of the case now before this Court is the question of whether A.S., based on his conviction history, is "[a]n individual with two or more convictions of any of the offenses set forth in subsection (a)" of Section 9795.1 of the Sentencing Code, such that he must register under Megan's Law II for the rest of his life pursuant to Section 9795.1(b)(1). A.S. advances two theories as to why he should not be subject to the lifetime registration requirement under Section 9795.1(b)(1).
First, he contends that his two convictions (i.e., guilty pleas) should be treated as one conviction for purposes of Section 9795.1(b)(1), because they arose out of a single criminal episode or course of conduct. In doing so, A.S. argues that Section 9795.1(b)(1) should not apply in his case, because the legislature's intent in that section was to deal with repeat offenders—i.e., recidivists. The majority agrees and, for that reason, grants summary judgment in favor of A.S. and orders the PSP to change A.S.'s registration period from lifetime to ten years, effectively removing A.S. from the sex offender registry. This, however, is the same argument raised by the appellant and rejected by the Pennsylvania Superior Court in its reported decision in Merolla. In at least two subsequent unreported decisions (Gehris and Mielnicki), the Superior Court rejected similar, if not identical, arguments, relying on its precedent in Merolla. And although I recognize Chief Justice Castille's well-written OISR in Gehris, adopted by the majority, his view did not garner enough support from his colleagues to upset Merolla, dutifully followed by the Superior Court since 2006.
As noted above, decisions by the Superior Court are not binding on this Court; rather, we consider them for their persuasive value. In addition, because neither the OISA or OISR in Gehris garnered the
A.S.'s second theory, not addressed by the majority, is that the legislature could not have intended that the difference between ten-year registration and lifetime registration is dependent solely on the number of convictions (a matter of plea negotiation and/or prosecutorial discretion) where the offender actually engaged in only a single act of criminal misconduct. A.S. contends that though he pled guilty to two predicate offenses under Section 9795.1(a)(1) of the Sentencing Code, he actually committed only one criminal act that just happened to meet the elements of both predicate offenses.
The logic of A.S.'s argument is as follows. Although charged with a variety of offenses, A.S. ultimately pled guilty to only two pertinent counts. A.S. pled guilty to a violation of Section 6312(b) of the Crimes Code, which, relevant to the matter now before us, makes it unlawful for "[a]ny person [to] cause[ ] . . . a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act. . . if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed." A.S. also pled guilty to a violation Section 6318(a)(5) of the Crimes Code, which makes it unlawful for a person to "intentionally . . . contact . . . a minor . . . for the purpose of engaging in an activity prohibited under . . . [S]ection 6312 (relating to sexual abuse of children)." Thus, the elements of these two predicate offenses overlap in such a way that an individual may commit both offenses by engaging in a single act of contacting a minor for the purpose of causing the minor to photograph herself engaging in a real or simulated sexual act. Also, an individual cannot be guilty of a violation of Section 6318(a)(5) unless he is attempting to commit a violation of Section 6312. In other words, in the absence of an attempt to violate Section 6312, there cannot be a violation of Section 6318(a)(5).
A.S. contends that both of his convictions relate to the single act of contacting a minor, T., for the purpose of causing the minor to photograph herself engaging in a sexual act. A.S. violated Section 6312(b) of the Crimes Code by causing photographs to be taken that would be considered child pornography. Because a violation of Section 6318(a)(5) of the Crimes Code occurs when one contacts a minor for the purpose of engaging in activity prohibited under Section 6312, the act of contacting T. for the purpose of causing her to photograph herself could form the basis for both charges. If it did, A.S.'s single act of contacting T. for the purpose of generating child pornography simultaneously and automatically constituted violations of two predicate offenses for purposes of Megan's Law II registration.
Such was the case in Gehris.
In the OISA, however, Justice Todd recognized concerns expressed by Chief Justice Castille in the OISR, suggesting there may be a consensus among the justices on the issue of whether the lifetime registration requirement of Section 9795.1(b)(1) of the Sentencing Code applies where there are multiple convictions for but a single act of criminal misconduct. Justice Todd noted:
Gehris, 618 Pa. at ___, 54 A.3d at 868 n.14 (Todd, J.) (emphasis added).
The Statutory Construction Act commands us to construe statutory language in a manner that is consistent with legislative intent. 1 Pa.C.S. § 1921(a). As part of that analysis, we must presume that the General Assembly, in crafting legislation, "does not intend a result that is absurd, impossible of execution or unreasonable." Id. § 1922(1). Based on the legislative findings and declaration of policy in Megan's Law II, and our Supreme Court's decision in Leidig, we know that the General Assembly's paramount concern in passing Megan's Law II, particularly the registration component of the law, was "to protect the safety and general welfare of the people of this Commonwealth." 42 Pa.C.S. § 9791(b). By creating a two-tier registration structure, the General Assembly determined that, as a matter of policy, certain offenders posed a greater risk to public safety than others.
Under Section 9795.1(a) of the Sentencing Code, any individual "convicted of any of the [listed] offenses," must register for ten years. Under Section 9795.1(b)(1), "[a]n individual with two or more convictions of any of the offenses set forth in subsection (a)," must register for a lifetime. The General Assembly, therefore, must have reasoned that those offenders whom it intended to fall under Section 9795.1(b)(1) are offenders who pose a greater risk to public safety than those who would otherwise be ten-year registrants. It is not unreasonable for the General Assembly to have determined that offenders who are convicted of engaging in two or more acts (or offenses) of criminal misconduct pose a greater risk to public
Sometimes, and perhaps most times, a determination of whether an offender has engaged in multiple acts of criminal misconduct is apparent by the number of convictions. But, as explained above, it may not always be so apparent. Regardless of the number of technical convictions, an offender who commits a single act of criminal misconduct that happens to be chargeable as two predicate offenses under Section 9795.1(a)(1) poses no greater risk to the public simply because he pled guilty to the two charges. Consistent with the public safety rationale, then, I would interpret the General Assembly's use of the terms convicted/convictions and offenses in Section 9795.1(a)(1) and (b)(1) as differentiating between an offender who has engaged in a single act of criminal misconduct (a one-off) and an offender who has engaged in two or more acts of criminal misconduct, the latter class of whom poses a greater risk to public safety than the former.
It is the criminal action of the offender that makes the offender a risk to the public, not the statutes themselves. And, if the General Assembly believed that a particular criminal act warranted lifetime registration, it would have included all of the statutory criminal offenses that could encompass that act in the list of lifetime offenses found in Section 9795.1(b)(2) of the Sentencing Code and not in the list of ten-year offenses in Section 9795.1(a). In creating the tiered reporting structure in Megan's Law II, and in light of the public safety purpose of the law, I do not discern an intent by the General Assembly to place the form of charging decisions and plea agreements above the substance of the criminal act. A contrary interpretation would be unreasonable and absurd, because no public safety purpose is served by a scheme that subjects two offenders, who engage in a single and similar criminal act, to disparate registration requirements merely because one pled guilty to one criminal charge and the other pled guilty to two.
I agree with PSP, however, that based on the record before the Court on summary judgment, a genuine issue of material fact remains as to whether, in the course of pleading guilty to violating Section 6312(b) of the Crimes Code (relating to sexual abuse of children in the context of causing a minor to be photographed engaging in a prohibited sexual act or simulation thereof) and Section 6318(a)(5) of the Crimes Code, A.S. was convicted of engaging in a single criminal act or two criminal acts. A.S. contends that he pled guilty only to contacting a minor, T., for the purpose of causing the minor to photograph herself engaging in a sexual act and that this single act resulted in convictions under both Sections 6312(b) and Section 6318(a)(5) of the Crimes Code. There is record support for A.S.'s position.
As the majority notes, at sentencing, the sentencing court, prosecuting attorney, and A.S. expressed, in one way or another, a shared view that A.S. would be subject only to a ten-year registration under Megan's Law II. While PSP is correct that subjective beliefs may not be controlling for purposes of determining whether A.S. was convicted of one or two offenses for purposes of the period of registration under Megan's Law (Leidig),
(N.T., Oct. 5, 2001, attached to Respondent's Memo, Ex. D5 at 6.) A.S. responded, "Yes." (Id.) In addition to detailing facts about how A.S. contacted T. for the purpose of causing her to photograph herself engaging in sexual acts, the affidavit of probable cause also provides that A.S. admitted to using T.'s digital camera to photograph the two of them engaged in sexual relations. (Respondent's Memo Ex. D2 at 4.) This act by A.S., separate and apart from his contacting T. to cause her to photograph herself, would support a charge under Section 6312(b) of the Crimes Code.
For the reasons set forth above, I respectfully dissent from the majority's adoption of the "single criminal episode" position, repeatedly rejected by the Pennsylvania Superior Court. Nonetheless, if A.S. could prove by a preponderance of the evidence that his convictions arose from a single act of misconduct, he would be entitled to the relief he seeks in this lawsuit.
In light of the conflict in the record evidence, however, that question cannot be resolved through summary judgment. Accordingly, I would deny the parties' cross-motions for summary judgment.
Judge LEADBETTER joins in this dissent.
Fagan v. Smith, 615 Pa. 87, 90, 41 A.3d 816, 818 (2012).
PSP is the state agency vested with the duty to create and maintain a statewide registry of sexual offenders under the former Section 9799.1 of the Sentencing Code, 42 Pa.C.S. § 9799.1, and the current Section 9799.16 of SORNA, 42 Pa.C.S. § 9799.16.
Hude, 500 Pa. at 491-92, 458 A.2d at 181-82 (quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U. Pitt. L.Rev. 275, 286-87 (1973)).
Gehris, 618 Pa. at ___, 54 A.3d at 878.
Section 6320 of the Crimes Code, relating to sexual exploitation of children, provides:
Gehris, 618 Pa. at ___, 54 A.3d at 862 (Todd, J.).
