PA Supreme Court Declares Retroactive Application of SORNA / Megan’s Law Unconstitutional – 2017

Since Pennsylvania's implementation of SORNA on December 20, 2012, numerous legal challenges regarding its seemingly unconstitutional application have found dead ends. That is until today, July 19 2017, when PA's highest court released its opinion of the case Commonwealth v Muniz (No. 47 MAP 2016). Today, the Pennsylvania Supreme Court has declared the retroactive application of the state's SORNA laws to be unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.

BACKGROUND

Until today, Pennsylvania courts have found that the registration, verification, and counseling requirements of Megan's Law/SORNA "were not sufficiently onerous to be considered punishment." And because the provisions were not deemed punishment, their retroactive application did not violate the ex post facto clause of Pennsylvania's Constitution. Since such rulings, such as in Commonwealth v. Williams, 832 A.2d 962 (Pa. Sept. 25, 2003) and Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. Ct. July 9, 2014), politicians and lawmakers have continued to add to the restrictions and requirements of those who were required to register as sex offenders. And as the court in Muniz found, these additional burdons have finally tipped the scale from remedial to punitive effects.

CASE SUMMARY

As a result of a conviction for Indecent Assault in Cumberland County, PA, Defendant was scheduled to be sentenced on May 8, 2007 at which time he would have been required to register as a sex offender for 10 years. Because Defendant absconded, he was not sentenced until after PA implemented its SORNA laws, and therefore was sentenced with lifetime registration requirements under SORNA. Upon appeal, the PA Superior Court affirmed the trial court's decision on August 7, 2015. Defendant appealed the decision to the PA Supreme Court, which brings us to today's ruling.

In its analysis, the PA Supreme Court court in Muniz was tasked with determining whether PA's existing SORNA requirements, when applied retroactively, violate the PA Constitution and/or the United States Constitution. Having found that the legislative intent of SORNA was not to punish, the Court was next required to determine whether SORNA is "sufficiently punitive in effect to overcome the General Assembly's stated non-punitive purpose" using the Mendoza-Martinez factors.

FINDINGS OF MENDOZA-MARTINEZ FACTOR ANALYSES

i. Whether the Statute Involves an Affirmative Disability or Restraint

"….we find the in-person reporting requirements, for both verification and changes to an offender's registration, to be a direct restraint upon appellant and hold this factor weighs in favor of finding SORNA's effect to be punitive."

ii. Whether the Sanction Has Been Historically Regarded as Punishment

"We conclude the weighing process with regard to this Mendoza-Martinez factor presents a much closer case than the Smith Court's analysis of Alaska's registration statute in 2003. We consider SORNA's publication provisions-when viewed in the context of our current internet-based world-to be comparable to shaming punishments. We also find SORNA and the Alaska statute are materially different in their mandatory conditions such that SORNA is more akin to probation. We therefore hold this factor weighs in favor of finding SORNA's effect to be punitive."

iii. Whether the Statute Comes into Play Only on a Finding of Scienter

"….we agree with the Smith Court in finding this factor is of little significance in our inquiry."

iv. Whether the Operation of the Statute Promotes the Traditional Aims of Punishment

"Under the circumstances, we conclude SORNA is much more retributive than Megan's Law II and the Alaska statute at issue in Smith, and this increase in retributive effect, along with the fact SORNA's provisions act as deterrents for a number of predicate offenses, all weigh in favor of finding SORNA punitive."

v. Whether the Behavior to which the Statute applies is Already a Crime

"As with the third Mendoza-Martinez factor discussed above, this factor carries little weight in the balance."

vi. Whether there is an Alternative Purpose to which the Statute may be Rationally Connected

"We therefore conclude there is a purpose other than punishment to which the statute may be rationally connected and this factor weighs in favor of finding SORNA to be nonpunitive."

vii. Whether the Statute is Excessive in Relation to the Alternative Purpose Assigned

"Accordingly, we conclude SORNA's requirements are excessive and over-inclusive in relation to the statute's alternative assigned purpose of protecting the public from sexual offenders."

viii. Balancing of Factors

"Our review of SORNA under the Mendoza-Martinez factors reveals significant differences between Pennsylvania's most recent attempt at a sex offender registration statute and the statutes upheld in Williams II and Smith. As stated, we have determined four of the five factors to which we have given weight-all except for whether there is an alternative purpose to which the statute may be rationally connected-weigh in favor of finding SORNA to be punitive in effect despite its expressed civil remedial purpose. We conclude SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, [*72]  including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose. Accordingly, we hold the retroactive application of SORNA to appellant violates the ex post facto clause of the United States Constitution."

State Ex Post Facto Claim

"For those reasons, we find Pennsylvania's ex post facto clause provides even greater protections than its federal counterpart, and as we have concluded SORNA's registration provisions violate the federal clause, we hold they are also unconstitutional under the state clause."

What This Means for Current Individuals on The Registry

1) If you were initially not required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was required to register retroactively as a result of this conviction due to Pennsylvania's implementation of SORNA on December 20, 2012, you are entitled to relief.

2) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to register for a longer period of time as a result of this conviction due to Pennsylvania's implementation of SORNA on December 20, 2012, you are entitled to relief.

3) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to fulfill more obligations as a result of this conviction due to Pennsylvania's implementation of SORNA on December 20, 2012, you are entitled to relief.

To put it simply, if your conviction was prior to December 20, 2012, SORNA's provisions shall not apply to you.

Do I Need a Lawyer to Get Relief?

If you want legal relief as soon as possible, you should hire a lawyer to file a motion seeking relief based upon the ruling in this case. It is possible that sometime the PA State Police will begin to remove people affected by this ruling from the registry but this could take quite some time. If you reside in SW PA, you might consider contacting the Law Offices of David J. Shrager who handles these types of cases. Please note that our law firm does not handle registration issues.

RECOGNITION

The Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers

The Association for the Treatment of Sexual Abusers

Assessment and Treatment Alternatives

The Joseph J. Peters Institute

The Collateral Consequences Resource Center

The Social Science Scholars

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. WE DO NOT HANDLE REGISTRATION MATTERS.

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PA Supreme Court: “Two or More Convictions” Must Stem From Multiple Acts & Convictions to Trigger Lifetime Registration Requirement

Section 9799.14 of Pennsylvania's sex offender registration laws classifies the State's sexual offenses into three tiers: Tier 1 requiring a 15-year registration period, Tier 2 requiring a 25-year registration period, and Tier III requiring lifetime registration. Included under the Tier 3 designation is 9799.14(d)(16), which states:

"Two or more convictions of offenses listed as Tier I or Tier II sexual offenses."

On appeal, the PA Supreme Court in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012) was tasked with deciding whether this statute meant that a person should be required to register for life if he or she was convicted of multiple Tier 1 or Tier II offenses arising from a single act and prosecution. Prior to this undertaking, the Superior Court ruled that the above language is unambiguous, and therefore a person in such a circumstance should indeed be required to register for life. Unfortunately, the PA Supreme Court in Gehris was evenly divided, and therefore the ruling of the Superior Court was affirmed.

Fortunately the PA Supreme Court in Commonwealth v. Lutz-Morrison revisited the issue, and yesterday (8-15-2016) came to a logical decision:  

"It is enough to note we hold that Section 9799.14, considered in the context of the statutory language as a whole, is susceptible to two reasonable constructions, and the statute, which sets forth a graduated (three-tier) scheme of registration, encompasses a recidivist philosophy. As such, the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise subject to a fifteen- or twenty-five-year period of registration."

It's important to note that the same general ruling was made with respect to the “two or more convictions” language included in Megan's Law II (pre-SORNA). See A.S. v. Pa. State Police, 24 MAP 2014, J-36-2016 (Pa. filed Aug. 15, 2016):

"In accordance with the Gehris Opinion in Support of Reversal (OISR), as supplemented by our analysis below, we hold the provision, considered in the context of the statutory language as a whole, is amenable to two reasonable constructions; and we further hold the statute, which sets forth a graduated scheme of registration, encompasses a recidivist philosophy.2 We therefore conclude the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration."

"Fourth and finally, and returning to the subject of predicate ambiguity, we note there is some validity in the point made in the dissent below that it would be absurd and unreasonable if a single act, giving rise to a single prosecution yielding two convictions for overlapping predicate offenses, subjected an offender to lifetime registration. In conclusion, we hold the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration. Accordingly, the award of mandamus relief is hereby affirmed." 

CONCLUSION

Please note that our firm does not handle registration issues. If you believe that this case could afford you legal relief, please contact a local attorney. For those in the Pittsburgh area, you might contact the Law Offices of David J. Shrager.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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PA’s Tender Years Hearsay Act versus the 6th Amendment

A Trial Without Testimony

Constitutional_RightsIn a previous blog titled "Right To Confrontation is Sexual Abuse Cases", we discussed how the Crawford case strengthened one's right to confront his or her accuser during the criminal court process. Prior to this ruling, prosecutors relied upon the Roberts case to have out-of-court hearsay statements admitted at trial in lieu of live testimony, so therefore a defendant could be convicted without ever having an opportunity to have his or her lawyer cross examine the accuser.

Of course, in order for this to happen, the out-of-court statements first had to be admitted via a hearsay exception rule, such as Pennsylvania's Tender Years Hearsay Act (42 Pa.C.S. § 5985.1).  This particular hearsay exception allows out-of-court statements made by individuals 12 years of age or less to be entered into evidence under certain conditions. In order for the State to have such statements admitted into evidence in lieu of live testimony, the trial court had to find that a) the statements were relevant and reliable, and b) that the child was "unavailable" as a witness.  If such determinations were made, the out-of-court statements were admitted into evidence and the defendant would go to trial without the opportunity to have his or lawyer cross examine the child witness.

Crawford Changes Things

Unfortunately at that time, a 6th amendment confrontation challenge would have failed because the Roberts case gave no protection against the above described method – as long as a court determined that the out-of-court statements had adequate "indicia of reliability", and that the declarant was "unavailable", a confrontation challenge would fail under Roberts. However in 2004, approximately 24 years after the Roberts case was decided, the Crawford decision overruled the Roberts decision and changed the landscape – the U.S. Supreme Court ruled that, regardless of a finding of adequate "indicia of reliability", any out-of-court statement that is testimonial in nature is not admissible unless the defendant has had a full and fair opportunity to cross examine the declarant regarding these statements AND the declarant is unavailable as a witness. Therefore, even if the child witness (declarant) was deemed unavailable as a witness and his or her statements were deemed reliable, the statements could not be used at trial as a substitute for live testimony unless the defendant (defendant's attorney) had a previous opportunity to cross examine the child witness.

Prosecutors Dismantle Crawford's Protection

Since then, however, prosecutors have been finding ways to work around this prosecutorial "road block."  They focused in on the fact that the Crawford decision only grants confrontation rights in cases where the out-of-court statements are "testimonial" in nature. Therefore, if a court rules that the desired out-of-court statements are non-testimonial, the Crawford decision does not preclude these statements from being used at trial in lieu of live testimony. Unfortunately, the Crawford case gave little guidance as to how a statement should be analyzed to determine whether it is testimonial or non-testimonial.

Testimonial versus Non-Testimonial

Over the years, various courts have struggled to firmly define these words. In 2015 the U.S. Supreme Court (Ohio v. Clark, 135 S. Ct. 2173 (U.S. 2015)) summarized its prior analyses of testimonial versus non-testimonial, which were made in Davis v. Washington, 547 U.S. 813 (U.S. 2006) and Michigan v. Bryant, 562 U.S. 344 (U.S. 2011):

"We held that the statements in Hammon were testimonial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  Because the cases involved statements to law enforcement officers, we reserved the question whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause.

In Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circumstances.”  And we reiterated our view in Davis that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.”  At the same time, we noted that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.”

One additional factor is “the informality of the situation and the interrogation.”  A “formal station-house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused.  And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”  In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” 

Of particular importance from the Bryant case is the following statement, which suggests that statements, while initially "non-testimoninal" in nature, can evolve into "testimomnial" statements as the scope of the questioning changes:

"a conversation which begins as an interrogation to determine the need for emergency assistance" may "evolve into testimonial statements."

We also suggest reading the Pennsylvania Supreme Court's decisions in In re N.C., 105 A.3d 1199 (Pa. 2014) and Commonwealth v. Allshouse, 614 Pa. 229 (Pa. 2012). For defense attorneys, it is critical to gain a thorough understanding of the above analyses. Undoubtedly, prosecutors will attempt to bypass defendants' 6th amendment rights and convict using only non-testimonial out-of-court statements. They can legally accomplish this without violating the Crawford ruling; however, they still need to meet the requirements of the hearsay exception used to admit the statements into evidence. In Pennsylvania, the most commonly used exception is the Tender Year's Hearsay Act (42 Pa.C.S. § 5985.1).

Pennsylvania's Tender Years Hearsay Act (TYHA)

Pennsylvania's Tender Year's Hearsay Act (42 Pa.C.S. § 5985.1) is as follows:

(a)  General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

(1)  the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2)  the child either:

(i)  testifies at the proceeding; or

(ii)  is unavailable as a witness.

(a.1)  Emotional distress. — In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following:

(1)  Observe and question the child, either inside or outside the courtroom.

(2)  Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.

(a.2)  Counsel and confrontation. — If the court hears testimony in connection with making a finding under subsection (a)(2)(ii), all of the following apply:

(1)  Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present.

(2)  If the court observes or questions the child, the court shall not permit the defendant to be present.

(b)  Notice required. — A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

Pennsylvania's Tender Years Hearsay Act Combined with Dismantled Crawford

As previously mentioned, it the State wishes to admit out-of-court, non-testimonial statements made by a child in lieu of live testimony, it can do so without violating the defendant's 6th amendment right to confrontation. However, the State must first meet the requirements of the hearsay exception, which for purposes of this discussion will be Pennsylvania's Tender Year's Hearsay Act. To meet the requirements, prosecutors must establish that a) the statements are relevant and reliable, and b) that the child witness is "unavailable" as a witness.

In order to find that the statements are relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability, the PA Superior Court in Commonwealth v. Walter, 625 Pa. 522 (Pa. 2014) stated:

"In determining whether out-of-court statements of a child contain "particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who is testifying," Delbridge, 855 A.2d at 45 [Attorney Tom Pavlinic’s case], and, therefore, are admissible under the TYHA, the focus is on the truthfulness of the statements, which is assessed by considering the spontaneity of the statements; the consistency in repetition; the mental state of the child; the use of terms unexpected in children of that age; and the lack of a motive to fabricate." 

It is important that attorneys understand that there is a clear legal distinction between competency and reliability, and therefore do not blend PA Rule 601 with 42 Pa.C.S. § 5985.1(a)(1) – the Court in Walter made clear that a child witness does not have to be declared competent to testify in order for his or her statement to meet the requirements 42 Pa.C.S. § 5985.1(a)(1):

"..we hold that a child need not be deemed competent to testify as a witness in order for the trial court to admit the child's out-of-court statements into evidence pursuant to the TYHA. "

Conclusion

In order to assure that a defendant receives a fair trial, it's imperative that his or her attorney stays current with recent rulings regarding the aforementioned issues. This article underscores the importance of hiring lawyer who has ample experience in the area of sex crimes defense. If this article is relevant to your case, or to the case of a loved one, please visit our Pennsylvania website page and/or contact our office immediately.

Disclaimer

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in 6th Amendment Issues, Hearsay Exceptions |
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Tom Speaks Regarding Sex Crimes Defense at 2015 TN National Association of Criminal Defense Lawyers Conference

After over 40 years of experience as a criminal defense attorney, with the last 22 focusing exclusively on sex crimes defense, Attorney Tom Pavlinic shares his experiences and advice with fellow criminal lawyers at the 2015 TN National Association of Criminal Defense Lawyers conference.

Posted in Criminal Procedure |
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“On or About” in Texas Sex Crime Indictments

Being accused of a sex crime against a child is perhaps the most difficult accusation to defend yourself against in a court of law. We know that children and teens make false accusations – there are often stories in the news wherein the accusers later recant their stories, or DNA evidence exonerates the accused. Nevertheless, jurys often have a difficult time trying to understand why children or teens would fabricate such stories, and this mandates defendants to prove their innocence.

Proving Something Didn't Happen Numerous Years Ago

Defending yourself against allegations of sexual conduct that took place numerous years ago adds another layer of difficulty. You are tasked with proving that something DIDN'T happen, and quite often face numerous obstacles such as 1) deceased witnesses, 2) the inability to collect physical evidence, 3) the inability to interview the accuser at the time the allegations were made, and 4) faded memories. In such cases, the only evidence that you might be able to offer to the jury is your own statement denying that the conduct occurred. Having said that, you might be wondering about using where you were when the crime was alleged to have occurred as evidence. Well, because of the "on or about" language used in Texas indictments, using that evidence can be an impossibility.

Proving Where You Weren't "On or About"

When multiple instances of sexual conduct are alleged to have occurred numerous years ago, Texas does not expect the accusers to recollect the exact dates, or even months and years when the conduct allegedly occurred. Logically, it may be true that accusers sometimes cannot recall specific dates or specific instances, but how is one to defend himself if the State cannot even tie the alleged conduct to a date or specific instance (.e.g., a party)?

A typical Texas indictment may read something like this: "The defendant did engage in sexual intercourse with the victim on or about December 17, 2000." To a lay person, "on or about" would perhaps mean a couple of days, or even within a week.  Even if this were the legal definition, you would be tasked with proving your whereabouts during each of the days which were 15 years ago. This however, would be a luxury compared to what you really are tasked with under current Texas law.

The legal definition of "on or about" is construed to mean the following [Mireles v. State, 901 S.W.2d 458 (Tex. Crim. App. 1995) citing Abston v. State, 158 Tex. Crim. 88 (Tex. Crim. App. 1952)]:

"the State may prove that an offense was committed before, on, or after the date alleged in the information, so long as the date is anterior to the presentment of the information and not barred by limitation"

Tex. Code Crim. Proc. art. 21.02(6) provides:

"The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation."

This creates a nightmare for defense counsel as well as for the accused. Here is an example of how this works:

  1. the accuser alleges that she was sexually assaulted at least 20 times from 1997 to 2000
  2. the State charges the defendant with 20 counts of sexual assault of a child using arbitrary time frames with the "on or about" language
  3. during her testimony, the accuser gives no specific dates or instances that the defendant can challenge
  4. the jury is sent out to begin deliberations, and while it believes beyond a reasonable doubt that the defendant did have sexual intercourse with the accuser, it is unable to tie the alleged conduct to any specific timeframe in the indictment
  5. the jury reads the legal definition of "on or about", and learns that it means any time before the indictment was filed as long as the statute of limitation had not expired
  6. believing that it occurred at least once, the jury has no reason to believe that it did not happen 20 times, so they enter GUILTY verdicts for all counts
  7. although sentences arising from a single criminal episode are required to be concurrent, there is an exception for sexual offenses against a child, so the judge sentences the defendant consecutively for each count

Ever-Changing Statute of Limitation

At this point you might be wondering as to why the statute of limitation had not expired in this theoretical situation. The answer is because the clock for the statute of limitation resets each time the statute of limitation is amended under law, as long as the statute of limitation prior to that amendment has not expired (see Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011).

"Texas courts have upheld the constitutionality of extending an unexpired criminal statute of limitations. Thus, a statute oflimitations may be extended by the legislature, but a prosecution within the new time period will be permitted only if the limitations period had not already run before the law was changed."

For example, let's say a crime was alleged to have occurred in April 1990 when the accuser was 8, and at that time the statute of limitation (SOL) for that crime was 10 years. Then in 1998 an amendment was made that change the SOL to 10 years after the 18th birthday of the victim. In 1998, prior to the amendment, the SOL was two years away, but because that SOL had not expired PRIOR to the amendment, the new SOL would now be 2010 (victim would be 18 in year 2000, and ten years after that birthday would be 2010.)  Furthermore, because there apparently is no need for the accuser to tie alleged conduct to a specific date or instance, the SOL could be intentionally avoided by the State simply by framing the indictment within the SOL.

Fuel for False Convictions

The aforementioned is just a taste of what someone faces when accused of committing a sex crime numerous years ago. Many of these laws have been fueled by public outcry to protect children, but in fact people are ignoring that these laws undoubtedly are fueling false convictions. Currently, Texas has no statute of limitation for sex crimes against a child. Imagine being falsely accused of such a crime and trying to defend yourself 20 years later. What evidence would you have? If you find yourself in this position, you MUST hire a lawyer with decades of experience in sex crimes defense. If you would like to speak with attorney Tom Pavlinic about your case, visit our Texas sex crimes defense website page to learn more or call him today for a free consultation.
 

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

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Child Pornography Laws in Pennsylvania

iStock_000004232195SmallA conviction for a child pornography offense in Pennsylvania can lead to a severe prison sentence. The production of such pornography yields the most severe penalties (F2), followed by the dissemination of it (F3), and the possession of it (F3).  However, viewing it is also a felony of the 3rd degree. Below are some quick facts about the laws regarding these crimes, followed by the criminal statutes.

Quick Facts About Pennsylvania's Child Porn Laws

  1. The legal age of sexual consent in Pennsylvania is 16, which means that a 16-year-old can legally have consensual intercourse with anyone above the age of 16, despite the age gap. However, if anyone photographs or video records a person under the age of 18 engaged in a prohibited sex act (see statutes below for definition), he or she is committing a felony of the 2nd degree. (§6312(b)).
     
  2. In order for someone to be found guilty of viewing child pornography, the viewing must have been "deliberate, purposeful".  An accidental viewing of suspected child pornography is not punishable under §6312. (See definitions under §6312(g) below). 
     
  3. Not all nude images of persons under the age of 18 are considered to be child pornography. Such images are considered illegal "only when depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." (See definitions under §6312(g) below; see also Commonwealth v. Davidson, 595 Pa. 1 (Pa. 2007)).
     
  4. Each image of child pornography constitutes a separate offense and does not implicate double jeopardy. (Commonwealth v. Davidson, 595 Pa. 1 (Pa. 2007); Commonwealth v. Baker, 621 Pa. 401 (Pa. 2013)).
     
  5. "Proof of age, like proof of any other material fact, can be accomplished by the use of either direct or circumstantial evidence, or both. The proof necessary to satisfy the element of age in a dissemination or possession of child pornography case is not limited to expert opinion testimony." (Commonwealth v. Robertson-Dewar, 2003 PA Super 280, P11 (Pa. Super. Ct. 2003)).
     
  6. Without consent, the searching of one's computer or cell phone is illegal without a search warrant. There are few exceptions to this. (Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. Ct. 2014)).
     
  7. Law enforcement agents can ascertain, via peer-to-peer networks (e.g., Limewire, Gnutella) whether an individual is sharing child pornography on his or her computer. They often will download said materials to use as proof. Subsequently, they will obtain a warrant to search the computer with the IP address from which the material was downloaded. (Commonwealth v. Piasecki, 2010 Pa. Dist. & Cnty. Dec. LEXIS 618 (Pa. County Ct. 2010)).
     
  8. If one opts to speak with law enforcement agents upon their serving a warrant, anything that is said can be used in court UNLESS they are conducting a custodial interrogation. If the agent is conducting a custodial interrogation, a Miranda warning must be given. "The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation." (Commonwealth v. Schwing, 964 A.2d 8 (Pa. Super. Ct. 2008).
     
  9. Mistake as to age is not a defense for a charge of §6312(b) – Photographing, videotaping, depicting on computer or filming sexual acts.)  (§6312e.1).
     
  10. Violation of Section §6312 requires involvement of a real child rather than a computer-generated image. "In this case, the trial court interpreted 18 Pa. C.S.A. § 6312(d)(1) to require any computer depiction of child pornography to involve a real child rather than a computer-generated image." (Commonwealth v. Davidson, 2004 PA Super 396 (Pa. Super. Ct. 2004)).
     

PA Child Porn Statutes – § 6312. Sexual Abuse of Children

(a) Definition. — (Deleted by amendment).

(b) Photographing, videotaping, depicting on computer or filming sexual acts.

(1) Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act commits an offense if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed.

(2) Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense. "

(c) Dissemination of photographs, videotapes, computer depictions and films. — Any person who knowingly sells, distributes, delivers, disseminates, transfers, displays or exhibits to others, or who possesses for the purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others, any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

(d) Child pornography. — Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

(d.1) Grading. — The offenses shall be graded as follows:

(1) Except as provided in paragraph (3), an offense under subsection (b) is a felony of the second degree.
(2)
(i) Except as provided in paragraph (3), a first offense under subsection (c) or (d) is a felony of the third degree.
(ii) A second or subsequent offense under subsection (c) or (d) is a felony of the second degree.
(3) When a person commits an offense graded under paragraph (1) or (2)(i) and indecent contact with the child as defined in section 3101 (relating to definitions) is depicted, the grading of the offense shall be one grade higher than the grade specified in paragraph (1) or (2)(i).

(e) Evidence of age. — In the event a person involved in a prohibited sexual act is alleged to be a child under the age of 18 years, competent expert testimony shall be sufficient to establish the age of said person.

(e.1) Mistake as to age. — Under subsection (b) only, it is no defense that the defendant did not know the age of the child. Neither a misrepresentation of age by the child nor a bona fide belief that the person is over the specified age shall be a defense.

(f) Exceptions. — This section does not apply to any of the following:

(1) Any material that is viewed, possessed, controlled, brought or caused to be brought into this Commonwealth, or presented, for a bona fide educational, scientific, governmental or judicial purpose.
(2) Conduct prohibited under section 6321 (relating to transmission of sexually explicit images by minor), unless the conduct is specifically excluded by section 6321(d).
(3) An individual under 18 years of age who knowingly views, photographs, videotapes, depicts on a computer or films or possesses or intentionally views a visual depiction as defined in section 6321 of himself alone in a state of nudity as defined in section 6321.

(g) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Intentionally views." –The deliberate, purposeful, voluntary viewing of material depicting a child under 18 years of age engaging in a prohibited sexual act or in the simulation of such act. The term shall not include the accidental or inadvertent viewing of such material.

"Prohibited sexual act." –Sexual intercourse as defined in section 3101 (relating to definitions), masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.

DISCLAIMER

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in Offenses |
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Extending Registration Period in PA Violates Contract Law

In December of 2013, we discussed the PA Superior Court's decision in Hainesworth, wherein the court found that the defendant was not required to register as a sex offender retroactively under SORNA because non-registration was a term of his plea contract. On September 9, 2014, the Superior Court expanded this legal rationale to include the extension of one's registration period. In Commonwealth v. Nase, 2014 (Pa. Super. Ct. 2014), the defendant accepted a plea bargain that required him to register under Megan's Law for a period of 10 years. Subsequent to the passage of the new version of Megan's Law on December 20, 2012, however, he was told that his registration period had been extended to 25 years. After being denied relief by the lower court, he appealed to the Superior Court of Pennsylvania. The Superior Court applied the same legal analysis used in Hainesworth, and was tasked with determining whether the "ten-year registration period was a material part of the plea agreement." It found that the record in the case did establish that a ten-year period of registration was part of Appellant's plea agreement, and that he "is entitled to the benefit of his bargain, and is not subject to additional registration beyond that envisioned by his plea agreement." It is not clear what the standard of proof is when determining whether registration, or a registration period was a condition of a plea agreement, but based upon the Hainesworth and Nase cases, one has a much better chance of winning this legal challenge if there is some mentioning of either condition in the plea transcript. This is not to say that a legal challenge could not be made based upon implicit evidence, however.

UPDATE DECEMBER 2016: See the most recent favorable verdicts regarding this issue:

1) http://cases.justia.com/pennsylvania/superior-court/2016-862-eda-2016.pdf?ts=1482358757

2) http://www.pacourts.us/assets/opinions/Supreme/out/J-29C-2016mo%20-%2010282682612021420.pdf?cb=1

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately.  If you or someone you know is currently being charged with a sex crime and needs legal assistance, please visit our website and contact us. The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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Maryland Registration: Federal Law Does Not Trump State Law

The Court of Appeals of Maryland has ruled that individuals who are not required to register with the State as a result of last years Doe decision, are not required to register with the State under federal laws.

Summary and Update of Doe

Constitutional_RightsIn March of 2013, the Court of Appeals of Maryland ruled that retroactive registration requirements imposed upon individuals as a result of the 2009 and 2010 amendments to the registration laws violate ex post facto laws contained in Article 17 of the Maryland Declaration of Rights (Doe v. Dep’t of Pub. Safety & Corr. Servs., 430 Md. 535 (Md. 2013)).

Although many people believe that this ruling should apply to any offender who was affected by these amendments, Maryland appears to be viewing this decision very narrowly – the State contends that the ruling only applies to individuals whose offenses were committed before October 1995, which is when the registry was established.  Defense Attorney Nancy S. Forster, who spearheaded the Doe case, has challenged this narrow view successfully at the circuit court level. The State has appealed the lower-court victories, so eventually clarification will come from the Court of Specials Appeals. Specifically, she contends that any individual who was required to register retroactively, or whose registration term was extended as a result of the amendments, should be afforded relief by the holding in Doe.

2014 Ruling Regarding Federal Requirements

Prior to the Doe ruling, the State contended in its brief that the federal Sex Offender Registration and Notification Act, SORNA, imposed upon Petitioner an “independent obligation to register as a Tier III sex offender.” However, the Court declined to address this issue because Defendant was only challenging the registration requirements under Maryland law. In its most recent decision, however, the Court of Appeals of Maryland did address this issue (Dep’t of Pub. Safety & Corr. Servs. v. Doe, 2014 Md. LEXIS 417). The Court concluded that SORNA does in fact create a “direct obligation on sex offenders to register in their home state, independent of that state’s implementation of SORNA”; however, “the state need not accept the registration if doing so would be contrary to state law.”

“Based on our holding in Doe I, Marylanders, like Hoosiers, enjoy “greater protection under the prohibition on ex post facto laws” of the Maryland Declaration of Rights. Andrews, 978 N.E.2d at 502. Where Appellees would only be required to register in Maryland, and where we have held that the retroactive application of the Maryland registry is unconstitutional, they, and individuals similarly situated in Maryland, cannot be required to register in Maryland.”

The Court also addressed whether circuit courts can order the removal of information from federal databases. In finding that they cannot, the Court noted that federal registration databases are “not in fact a separate registration system, but rather is a compilation of all state registries, allowing a member of the public to search all state records in one place.” Therefore, “although the State cannot directly remove information from ‘federal databases’, the State is responsible for notifying all relevant federal agencies when registration information is removed from Maryland’s registry.”

 Conclusion

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you believe you may be entitled to relief as a result of this decision, contact the Law Office of Nancy S. Forster in Towson, Maryland.

 Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Posted in SORNA |
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Sting Calls in Maryland Sex Crimes Cases

Sting Calls“Sting calls” are often used by Maryland law enforcement agencies in sex crime cases to elicit statements from alleged perpetrators. Statements given in such calls can be misinterpreted, and used to wrongly convict individuals.

Prior to the initiation of such calls, the caller is instructed on how to act, and what questions to ask. Due to this guidance by law enforcement, one may never suspect that the call is actually a “sting call” and is being recorded. Additionally, some individuals wrongly believe that because Maryland is an all-party consent state, that they have nothing to worry about.

If the call is legally recorded or otherwise intercepted, the evidence obtained often can be difficult to overcome. Below you will find a discussion of the laws governing the legality of intercepting communication in Maryland, and also you will learn why these general laws usually do NOT apply to conversations involving evidence of sex crimes.

Maryland “Wire Tapping” Law

Generally, Maryland law requires consent from all parties before a conversation can be taped or otherwise intercepted in the absence of a court order authorizing such interception (Miles v. State, 365 Md. 488 (Md. 2001)). Its laws afford more protection to citizens compared to the federal law, which only requires the consent of at least one party. Maryland’s all-party consent law applies as long as at least one party to the conversation is physically located within the State during the phone call. The applicable laws are below:

Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 10-402

(a)  Unlawful acts. —  Except as otherwise specifically provided in this subtitle it is unlawful for any person to:
(1)  Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(2)  Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or
(3)  Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.

*** “‘Intercept’ means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” (§ 10-401 (10)).

Exceptions to “Wire Tapping” in Sex Crime Cases

As with some other states, Maryland’s all-party consent laws do not apply to conversations that are elicited by law enforcement or persons collaborating with law enforcement (witnesses) in order to obtain evidence of certain sexual crimes (see Anderson v. State, 372 Md. 285 (Md. 2002) Part III). As long as one party gives consent, the interception of such conversations is not illegal under Maryland law (although privileged marital communications may be suppressed). The applicable laws are below:

§ 10-402 (2)  (i) This paragraph applies to an interception in which:
1.  The investigative or law enforcement officer or other person is a party to the communication; or
2.  One of the parties to the communication has given prior consent to the interception.

(ii)  It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence:

1.  Of the commission of:
A.  Murder;
B.  Kidnapping;
C.  Rape;
D.  A sexual offense in the first or second degree;
E.  Child abuse in the first or second degree;
F.  Child pornography under § 11-207, § 11-208, or § 11-208.1 of the Criminal Law Article;
G.  Gambling;
H.  Robbery under § 3-402 or § 3-403 of the Criminal Law Article;
I.  A felony under Title 6, Subtitle 1 of the Criminal Law Article;
J.  Bribery;
K.  Extortion;
L.  Dealing in a controlled dangerous substance, including a violation of § 5-617 or § 5-619 of the Criminal Law Article;
M.  A fraudulent insurance act, as defined in Title 27, Subtitle 4 of the Insurance Article;
N.  An offense relating to destructive devices under § 4-503 of the Criminal Law Article;
O.  A human trafficking offense under § 11-303 of the Criminal Law Article;
P.  Sexual solicitation of a minor under § 3-324 of the Criminal Law Article;
Q.  An offense relating to obstructing justice under § 9-302, § 9-303, or § 9-305 of the Criminal Law Article;
R.  Sexual abuse of a minor under § 3-602 of the Criminal Law Article;
S.  A theft scheme or continuing course of conduct under § 7-103(f) of the Criminal Law Article involving an aggregate value of property or services of at least $ 10,000;
T.  Abuse or neglect of a vulnerable adult under § 3-604 or § 3-605 of the Criminal Law Article;
U.  An offense relating to Medicaid fraud under §§ 8-509 through 8-515 of the Criminal Law Article; or
V.  A conspiracy or solicitation to commit an offense listed in items A through U of this item; or

Conclusion

If you suspect that you may be under investigation for an alleged sex crime, do NOT speak to anyone about the allegations except for your lawyer. If you do not have a lawyer, you should consider retaining one so that you do not make irreversible mistakes that will be difficult to overcome should you be charged. To learn more about our law firm, and/or to speak with an experienced Maryland sex crimes lawyer, visit our website.

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in Criminal Laws |
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Cross Examination of Social Worker in Sexual Abuse Case

In sex crime trials, the prosecution sometimes will utilize the testimony of an “expert” witness. The extent to which the prosecution can use such witnesses varies by state. In the below case, Texas v. C.K. (2014), the prosecution called a social worker to discuss the generalities of sexual abuse and sexually abused children. Attorney Pavlinic objected to the witness because 1) the Defense was not notified in advance that the witness would testify; 2) the testimony was elicited after both parties rested instead of during the case-in-chief – this denied the Defense the ability to call its own expert to challenge the testimony; and 3) the witnesses testimony consisted of generalities, and was not directly related to the facts of the case

Despite the objections, the testimony was allowed by the court. Faced with this unexpected challenge, Attorney Pavlinic aggressively and methodically cross examined the State’s “expert” witness. In the end, the jury returned with a not-guilty verdict on all counts. We hope you enjoy reading this real-life trial testimony, and also hope that this instills in you the understanding that sex crime trials are often complex and unpredictable, and therefore it is imperative to hire a defense attorney with an abundance of experience in this specific area of the law.

Cross Examination Testimony

Q. Mr. Powers, you’re not a psychologist, are you?

A. I’m a clinical social worker.

Q. So the answer is, no, you’re not a psychologist?

A. No, I’m not a psychologist.

Q. Now, in coming here to testify today did you meet with Mr. Lewis and Ms. Miller to prepare your testimony?

A. Yes.

Q. And when did you first meet with them?

A. Probably yesterday. Yeah, yesterday.

Q. So you got involved in this case yesterday?

A. No, I wouldn’t say that. I mean, we’ve discussed the case prior to this, possibly, just peripherally. But we really prepared for trial yesterday and talked.

Q. I would like to know since I wasn’t there. First you said yesterday, then you said, maybe not yesterday. So when did you get involved in this case?

A. As far as getting involved in the case I met with them yesterday. We may have had discussions about the case that I just don’t recall specifics about other than, this case is coming up, we would like you to testify in this

Q. So you normally get involved in cases of this magnitude and this importance affecting all these people the day before you’re going to testify?

A. We’ve been working together for some time. And so, we’re able to meet together and discuss a case, and I think being at a place where we’re able to work together, yes, we do that.

Q. So you work all the time with the State; is that correct?

A. I wouldn’t say all the time, but quite frequently, yes.

Q. Well, how much is frequently? Once a month?

A. Maybe — at least once a month, yes.

Q. How many cases have you collaborated with the State on?

A. I’ve testified in, I’d say over — in my 15 years of being at the advocacy center over a hundred cases.

Q. So you pretty much have this script out; is that correct? You meet with them and you say, okay, this is the testimony I’m going to give in general about abused children and the characteristics of sex offenders; is that right?

A. Well, every case is a little bit different, so I wouldn’t say I have a script, no.

Q. Well, you — what’s different about this case than all the other cases that you’ve done?

A. Well, again, every case is a little bit different and the dynamics are different. Sometimes —

Q. Well, I’m asking you.

A. I’m trying to answer your question.

Q. All right. What is —

A. Sometimes the person who is accused of the crime is a family member. Sometimes they’re not a family member. Sometimes they may be somebody in that child’s life. Sometimes it may be a mother, it may be a father. The dynamics are different in every case.

Q. So you said sometimes the person is in the child’s life or is not in the child’s life, right?

A. That’s correct.

Q. What other possibility is there?

A. Well, again, it may be a female, may be a male, may be —

Q. Well, gender — (Indiscernible crosstalk)

A. — a sibling.

Q. Please listen. Please listen.

A. I’m trying to answer your question and you’re interrupting me, so…

Q. I’m asking you a question. I’m trying to ask the question. So you said he’s either in the life or is not in the life. What is the other possibility?

A. That’s the question I was trying to answer.

Q. Okay. So what is the answer?

A. There’s a number of factors. It could be a female, it could be a male, it could be a — it could be a sibling, it could be — it could be multiple offenders. There’s a lot of factors that go into it. It’s not strictly just one offender and one dynamic.

Q. I’m sorry, I’m having a misunderstanding. I can’t understand your response. If somebody is in your life or not in your life, it could be a female, it could be a sibling, it could be your father, it could be your mother, your relative, right?

A. That’s correct.

Q. So they’re either in your life or it’s a female, brother, father, somebody else, and they’re not in your life. What is the other alternative?

A. A stranger. I mean, you know, when —

Q. So that would be in the other, not in your life if it’s a stranger, right?

A. People who sexually abuse children, especially most —

Q. Okay. But the question —

A. I’m really trying to answer your question but you keep interrupting me.

Q. The question was, if you say it’s a stranger, yes or no, a stranger would be classified as a person not in their life?

A. Some strangers abuse children, yes.

Q. So I — that’s not a response to my question.

A. I’m not understanding your question.

Q. Strangers can abuse children. My question was, if it’s a stranger he falls in the classification that he’s not in the person’s life, yes or no?

A. Yes.

Q. Now, so you work with the State all the time. And is this the customary way that you testify, you come at the end of the case and you talk about abused children and about sex offenders and about all of these characteristics? Is this the normal way that you testify?

A. I wouldn’t say it’s a normal way. Sometimes I have a lot of involvement in the case itself. Sometimes I may have treated the child that is here. Sometimes I may have supervised the case. I have different involvement in different cases, so…

Q. Okay. Let’s talk about this case, okay. So you said sometimes. In this instance we know you didn’t treat anybody; is that correct?

A. That’s correct.

Q. All right. So when you come to testify is it — when you come to testify is it your custom that you come at the end of the case and give the testimony that you normally give?

A. Sometimes I testify in the case-in-chief and sometimes I come and testify in rebuttal.

Q. And what makes the difference? What makes determine whether you — what do you mean when you testify in the case-in-chief?

A. That means during the phase where evidence is being gathered and sometimes I have knowledge of a specific case where I need to provide that knowledge to the jury as part of my testimony.

Q. So when you testify in the presence — in the State’s case-in-chief we get to hear your testimony before we put on any evidence; is that correct?

A. Yes.

Q. So in this instance what made you choose to come in and testify at the conclusion of the case as opposed to during the case-in-chief?

MR. LEWIS: Your Honor, I’ll object. The witness —

THE COURT: Excuse me. I’ll allow you to redirect at a later point.

MR. LEWIS: Okay.

MR. PAVLINIC: I’m sorry, I didn’t hear you.

THE COURT: I said I would allow him to redirect at a later point.

MR. PAVLINIC: Redirect at a later time.

Q. (BY MR. PAVLINIC) So what made you make that determination?

A. Well, as the other witnesses, I received a subpoena and I come when I’m told to. I didn’t get to choose when I come.

Q. I see.

A. I don’t think any witness gets to choose when they come. I come when I’m instructed.

Q. And you’re an expert. Did you make any suggestions to Mr. Lewis about when you thought it might be appropriate to testify?

A. I come when they ask me to come.

Q. Okay. You come when they ask you. Why — you tell me to come and I’m there, right?

A. Yes.

Q. And you testified you taught ethics?

A. I do.

Q. Do you see any ethical concerns about coming in at the conclusion of the case and giving these opinions and talking about these things when the Defense has no opportunity to respond?

A. Well, I don’t agree with your statement that you don’t have an opportunity to respond because you’re asking me questions right now. So the answer would be no, I do not — (Indiscernible crosstalk)

Q. — evidence beyond my ability to ask you questions?

A. I’m sorry. You talked over me, I didn’t hear your question.

Q. How would we respond by putting on any other evidence other than asking you questions?

A. That’s up to you to do. I don’t — I don’t know what — you know, you get a chance to talk to me too. And that’s  (Indiscernible crosstalk)

Q. — I get a chance to talk to you, correct?

A. Yes.

Q. Yes?

A. I believe so, yes.

Q. So did you — you testified that you had an understanding of the facts of the case?

A. Yes.

Q. Okay. You didn’t look at Mariah’s videotaped interview?

A. No. Tonya

Q. Now, that’s an interview that’s conducted in your own agency, the agency that you’re the head of; is that correct?

A. I’m not the head of the agency.

Q. It’s an agency in which you work?

A. The forensic interview is conducted at the Children’s Advocacy Center, that’s correct.

Q. And you’re part of the Children’s Advocacy Center, are you not?

A. That’s correct.

Q. And does Lisa Martinez work for you?

A. She does not work for me.

Q. Do you have a supervisor in that agency or are you the head of the agency?

A. I’m not — as I said, I’m not the head of the agency. I’m in charge of our clinical services.

Q. And you have the ability at any time to look at that interview and see what she said; is that correct?

A. I’m not in charge of forensic interviews. That’s separate from me. And, no, I don’t have the ability just to —

Q. All right.

A. — you know, give me any interview to see.

Q. As coming to court as an expert you want to have the most facts available to you as possible, don’t you?

A. I come to answer the questions that the attorneys ask me.

Q. You want to be as prepared as you possibly can; is that correct? You have an ethical duty to the jurors and to the Court to be as prepared and to be as professional as possible, don’t you?

A. I do.

Q. Now, you have the access to that videotaped interview, don’t you?

A. I have access to the forensic interview.

Q. If you wanted to see the videotaped interview you could have seen it, couldn’t you?

A. If I wanted to see it, I could see it.

Q. Would that have been the best source of the factual knowledge about what Mariah was saying?

A. It would be one part of it, sure.

Q. Did you hear her testimony in court?

A. I was not here for her testimony.

Q. What other basis of knowledge would you have about the facts of this case if you didn’t hear her testimony in court and you didn’t look at the interview that was conducted by your very own agency? Where do you get the factual knowledge of this case?

A. From the questions that are asked today and talking with the attorneys.

Q. So during the course of this direct examination you became familiar with the case and that’s what you’re basing your testimony on, what Mr. Lewis was telling you happened in this case?

A. Well, I believe I’m answering questions regarding the dynamics of abuse. I haven’t really answered —

Q. I haven’t asked you about — we’re going to talk about that in a second. I was asking you, sir, specifically about your knowledge of the factual allegations in this case.

A. I don’t believe —

Q. It comes from what he was telling you in the courtroom today?

A. I don’t believe I’ve asked — been asked or answered any questions regarding the facts of this case.

Q. On his direct examination you said you did not look at Mariah’s tape and — but you had an understanding of the factual allegations. That was your — those were your words that Ms. Tonya can replay for you if you wanted to. Did you say you had an understanding of the factual allegations of the case, yes or no?

A. I have a understanding of the allegations of the case.

Q. All right. So where did you get your factual understanding of the facts of this case, from whom?

A. From the district attorneys.

Q. And when?

A. At length, yesterday and today.

Q. And what were you told about the case?

MR. LEWIS: Your Honor, I’m going to object to hearsay.

THE COURT: I’ll overrule that objection.

MR. PAVLINIC: Did you overrule?

THE COURT: Yes.

Q. (BY MR. PAVLINIC) What were you told?

A. I was told that this was a case related to a sexual assault of a child, a adult in that child’s life, as well as some dynamics involving that the child had made an outcry and wasn’t necessarily believed during that outcry.

Q. And what about the specifics, did you get any details about the nature and extend of the touching?

A. No.

Q. Do you understand that the years in which the touching was supposed to have occurred?

A. I have a vague knowledge that it —

Q. What is your vague knowledge?

A. That it appeared it happened over a length of time.

Q. What years?

A. I don’t know the specific years.

Q. How many years?

A. I don’t know.

Q. You don’t know whether it was one year, two years, ten years, fifteen years?

A. I said I did not know.

Q. Okay. You don’t know. Would that have made a difference about the testimony that you gave here about all these characteristics of abused children? Wouldn’t you want to know the facts about the child that you were talking about?

A. No. My testimony today is about the dynamics of abuse, and the dynamics are the dynamics. They don’t change related to the facts of the case.

Q. I see. So you talk about the dynamics of abuse. It doesn’t make any difference what Mariah said. It doesn’t make any difference your understanding of the facts. You’re going to come in here and tell the jury — you’re going to talk about the dynamics of abuse; is that what you’re saying?

A. I’m here to answer the questions asked of me, yes.

Q. Is that what you’re saying? I know you’re here to answer the questions because that’s what your requirement is as a witness. But I’m asking you, is that what you’re saying about the quality of your testimony, that you’re just here to talk about the dynamics of sexual abuse unrelated to the factual allegations that pertain to Mariah; yes or no?

A. I’m — Q. Yes or no?

A. Please ask that again. I’m not sure I understand. It was a long question. I’m sorry.

Q. You’re talking about the general dynamics of sexual abuse?

A. Yes.

Q. Without particular reference to the dynamics involving Mariah —–; yes or no?

A. Yes.

Q. And the reason you can’t talk about the dynamics with Mariah —– because you don’t know anything about the case other than what Mr. Lewis told you in the courtroom today or yesterday before you were going to come in and testify, right?

A. That’s correct.

Q. Did you ever reach out and talk to Carlos?

A. No.

Q. Did you ever say to him, Carlos, I want to give you a polygraph examination?

A. No.

Q. Did — do you know that polygraph examinations aren’t admissible in any court of law in any state in any federal jurisdiction in the entire United States?

A. Absolutely, yes.

Q. So your profession relies on inadmissible evidence, polygraph examinations that are considered in many jurisdictions to be nothing more than a hoax and voodoo?

A. A polygraph is a standard — it’s a standard practice for working with sex offenders —

Q. It’s not admissible–

A. — all over the United States.

Q. Okay. It’s not admissible in any court because it’s not scientifically reliable.

A. Okay.

Q. You don’t see any sex offenders in this courtroom, do you?

A. I couldn’t answer that question.

Q. You haven’t evaluated anybody, have you?

A. Nobody in this courtroom, no.

Q. You’re not the treating social worker for anybody in this case, are you?

A. I’m not.

Q. You haven’t even interacted with Mariah on a personal basis, have you?

A. No.

Q. Would you recognize her if she walked into this courtroom today?

A. Yes.

Q. From where would you recognize her?

A. From meeting her in the witness room prior to coming in here.

Q. And how long did you talk to her?

A. I was in there, maybe, for 15 minutes.

Q. Do you know anything about family dynamics, about the education of her parents and what they do?

A. No.

Q. Do you know anything about the social interaction between Mariah and her father and her mother and the visitation arrangements?

A. No.

Q. Do you know anything about the nature and extent of the relationship and the quality of the relationship that Mariah had with Carlos?

A. No.

Q. You didn’t find out anything about that information before you came into court today, did you?

A. I wasn’t asked to do that.

Q. In essence, you are here — do you know what the term “bolster” means?

A. I know what the term means.

Q. What does that mean?

A. “Bolster” is to impact in a positive way, to increase knowledge or increase the intensity of something.

Q. And that’s what you’re here to do, isn’t it? You’re here to bolster the State’s case because you are their guy to go to in these types of cases; isn’t that the truth, Mr. Powers?

A. I would not agree with that.

Q. How many times have you testified for the Defense?

A. In state court I’ve been subpoenaed by the Defense one time.

Q. One time. How many times have you testified for the State?

A. I said over a hundred.

Q. Over a hundred?

A. Yes.

Q. And what were the circumstances under which you  testified for the Defense?

A. It was a sexual assault case and the Defense attorney subpoenaed me to be there, so I was there.

Q. Did you — were you there as a hostile witness?

A. I’m never a hostile witness.

Q. I’m not meaning in terms of being aggressive, like I may be being aggressive with you, but hostile in the legal sense where you’re called by the opposing party because they’re calling you to give testimony that may be adverse to the other side.

A. Well, it’s important as a licensed professional I’m not on either side. I’m here to provide knowledge to the Court and the jury in a ethical way to ensure that they get the knowledge they need. If the Defense asks me the questions, I’m going to answer them the same way.

Q. Okay. Let’s talk about that ethical way to get the best knowledge to give to the jury. So what — what have you done to try to get some information from the Defense? Did you contact Ms. Barbieri?

A. She did not contact me.

Q. Did you contact her? You’re the expert. You’re the one that can reach out for information; isn’t that right? You were the expert and you can reach out for information; isn’t that right, if you wanted?

A. If I wanted to.

Q. Did you reach out to her; yes or no?

A. She did not reach out to me.

Q. Did you try — so we’ll assume that she didn’t reach out to you. The question was, again, so we have a clear answer on the record, did you reach out to her?

A. No.

Q. Okay. Now you want to say again she didn’t reach out to you?

A. She didn’t —

Q. How about —

A. — if she would have called me I would have talked with her.

Q. Did you ask for any information that pertained to Carlos about his job employment?

A. No.

Q. About the nature and extent of his relationship with his family?

A. No.

Q. About his siblings?

A. No.

Q. About his own son, Niko? Did you ever meet — do you even know who Niko is?

A. When he was talked about here in the case.

Q. Who is he?

A. I understand that’s his son.

Q. Did you ever meet him?

A. I have not met him.

Q. He’s sitting here in the courtroom, I think.  He’s outside. You never met him. Met anybody, any significant others or anything?

A. No.

Q. No information from the Defense, right?

A. No.

Q. Okay. Tell us what you know about false accusations of abuse.

A. I know a great deal about —

Q. Okay. Let’s — I’d like to hear it. What’s the most important thing you can tell about false accusations of abuse?

A. That they happen sometimes.

Q. Okay. Under what circumstances do they happen?

A. They can happen in a number of circumstances. One of the most common ways that we see them is in custody battles.

Q. How about in high conflict divorce cases?

A. They sometimes happen, yes.

Q. And you know that the effects of false accusations of abuse can be very damaging on people, can’t they?

A. Devastating, yes.

Q. They impact people, their ability to function in life, don’t they?

A. Absolutely.

Q. Impacts their finances, doesn’t it?

A. Absolutely.

Q. It impacts their jobs, doesn’t it?

A. Yes.

Q. It impacts how they interact with their family and their peers, doesn’t it?

A. Yes.

Q. Now, do think that there should be a search and inquiry to make a determination as to whether or not there was a factual — excuse me — a false accusation of abuse?

A. I believe there is, yes.

Q. The jury is to determine whether the allegations are true or false; isn’t that correct?

A. That’s correct.

Q. You’re not saying that [defendant] is a sexual offender, are you?

A. Absolutely not.

Q. You’re not saying that Mariah is a victim of sexual abuse, are you?

A. I have not said that.

Q. That’s not proper testimony for you to give, is it?

A. That’s true.

Q. Tell us about Dr. Caudill. How much professional interaction did you have with Dr. Caudill?

A. I just reviewed her records.

Q. For the first time — first time on these cases, the first professional interaction you had with her?

A. Was I reviewed her records, yes.

Q. Okay. Reading the records in this case was the first time you had any interaction with Dr. Caudill; is that correct?

A. I’ve heard her name. I’ve been practicing a long time. But we don’t have any real professional contact, no.

Q. You’ve never been to her office?

A. No.

Q. You’ve never conducted any seminars with her?

A. I couldn’t tell you whether she’s been in one of my seminars or not.

Q. The question was, did you conduct any seminars with her?

A. And my answer is, I don’t know if she was present during one of my seminars or not. There’s sometimes 2 or 300 people in the room, so…

Q. Did you and she ever engage in any joint seminars together?

A. No.

Q. Do you know what her practices and policies are with regard to how she interacts with her clients?

A. I don’t know her practices and policies.

Q. You obviously — you weren’t there in the interview with Carlos when he was there talking to Dr. Caudill, were you?

A. No.

Q. And you never got his version as to what happened, other than what you heard here in court today; is that correct?

A. That’s correct.

Q. And Dr. Caudill’s referral to Chris White is contingent upon Dr. Caudill’s understanding of what she was told by Carlos; isn’t that correct?

A. I would think so, yes.

Q. And if she didn’t understand correctly, she may  have referred him to an inappropriate therapist; isn’t that possible?

A. That’s possible.

Q. And shouldn’t a therapist take the time to allow their own patient the opportunity to explain and clarify? Should a professional allow a person that comes to them for help the opportunity to explain and clarify?

A. I would hope so.

Q. Is there a reason you would think that they should not have an opportunity to fully explain and clarify if they come to a professional for help?

A. I can’t think of a reason.

Q. Did you hear Dr. Caudill’s testimony about what happened?

A. I was —

Q. Were you here for her testimony?

A. I was not here for her testimony.

Q. Would it surprise you to learn that she said that in one instance that Carlos declined to give any explanation and then later on in her testimony said, well, he tried to clarify and I stopped him? Do you think that was good practice? Mr. Powers, is that good practice not to allow your patient to clarify?

A. I think it’s important to allow a patient to clarify.

Q. So you’re a clinician on occasion, right?

A. I am a clinician.

Q. If you have a client in your office, a patient in your office and you want that person to feel comfortable with you, they come to you in a trust position, didn’t they?

A. Yes. Trust is an important part.

Q. You want them to be free to tell you what’s on their mind?

A. Yes.

Q. Isn’t it?

A. Yes.

Q. And if she misunderstood what he said — the referral to Chris White is only as good as her understanding about the nature of the problem; isn’t that right?

A. That would be correct.

Q. And if she doesn’t understand the problem, she’s not making the correct referral, is she?

A. Correct.

Q. Did you ever get Chris White’s notes?

A. I have not seen Chris White’s notes.

Q. Did you learn that Carlos told Chris White he was there because he had a problem with pornography and his marriage was going bad?

A. I learned that here in the courtroom.

Q. Pardon?

A. I learned that here in the courtroom.

Q. So did you accept that as valid?

A. I accepted the —

Q. So if he’s there for —

A. — to the extent of the knowledge that I’ve learned about that, yes.

Q. If he’s there for problems that have to do with pornography and his marriage going bad, he has no business being in Chris White’s office then, does he?

A. Well, Chris White also is a licensed clinical social worker, he could treat those issues also.

Q. So he could treat him on other issues?

A. He could.

Q. So when you talked about Chris White you emphasized in your testimony only that he was a treatment provider for sexual predators?

A. No, I said he was a licensed clinical social worker and a licensed sex offender treatment provider.

Q. But you didn’t talk about his other aspects of the practice. You only talked about he was treating sexual offenders?

A. That’s a primary focus of his practice.

Q. So that’s the primary focus of his practice. That’s what stood out to you; is that correct?

A. That’s the question that was asked of me.

Q. All right. But you didn’t reach out to Chris White and say, hey, Mr. White, I know that you interviewed — you had a patient, Mr. —-, did you talk to him at all, get any of his records?

A. That would be inappropriate.

Q. Well, you could have gotten a HIPAA form release from Carlos, couldn’t you?

A. Mr. White couldn’t speak to me —

Q. Could you have gotten a HIPAA form release from Carlos if you asked for it?

A. If I asked for it?

Q. If he was willing to give it to you?

A. I suppose I could.

Q. Well, is there any reason that would have not enabled you to get it if you asked for it and said, here it is? Mr. Powers?

A. Yes.

Q. The answer is — I suppose is — the answer is not, I suppose I would. The answer is, yes, I could have —

A. I have no reason to —

Q. — gotten permission?

A. I have no reason to interact with Chris White, so I have no reason to get the HIPAA form.

Q. I see. So — but you had a reason to talk about Chris White, right?

A. Well, I answered the questions.

Q. So let’s — now, you talked about cutting, the children react — they’re going to cut themselves. Did you see any cuts? Did you look at her arms? Did you see any cuts on Mariah?

A. No.

Q. None. You didn’t see any, did you?

A. No.

Q. Did you get any of the medical records where she said she went to to treatment for being sexually abused?

A. No.

Q. You could have gotten a medical authorization from her family or from Mariah to get those records, couldn’t you?

A. If I was working with her, I would, yes.

Q. Well, you could have been able to testify more ethically and more completely if you had medical records; isn’t that right, Mr. Powers?

A. No, I don’t agree with you.

Q. Why?

A. I’m not testifying about Mariah, and so, I have no reason to get her medical records.

Q. Okay. So if none of this testimony that you gave was about Mariah, what’s the relevance of the testimony that doesn’t have to do with Mariah and the case?

A. I’m here to talk about the dynamics of abuse and sexual abuse and sex offenders.

Q. You’re here to talk the dynamics of sexual abuse in an effort to bolster the State’s case, to make Mariah seem more credible through your expertise; isn’t that right? Isn’t that right? You have to admit that, that’s what you’re here for.

A. I’m not here to bolster.

Q. So let’s just wind up by talking about people that — what about the children that make false accusations of abuse, teenagers? What happens to them if they make a false accusation of abuse?

A. Well, a number of things can happen. You know, they could be charged with a crime. They — you know, a number of consequences may happen within their family. But in the most extreme cases they could be charged with a crime.

Q. So what — you haven’t taken any independent investigation to determine whether the allegations in this case are true or false, have you?

A. No, that would be inappropriate.

Q. That’s not even your role, is it?

A. It’s not my role.

Q. So you didn’t do anything independent with regard to Mariah and her family, with regard to Carlos and his family; that’s the truth, isn’t it?

A. It’s not my role in this case.

Q. But you know — you know that your testimony can be used to influence a jury, can’t you?

A. My testimony is to educate the jury.

Q. And you know that you have an ethical responsibility to give the most objective testimony possible, don’t you, as an expert?

A. Absolutely.

Q. And, yet, you didn’t do anything to ensure the objectivity of your testimony, did you?

A. I believe I did.

Q. What did you do?

A. I provided the information that I was asked here in the courtroom.

Q. Yeah, from the State. What objective undertaking did you, as a professional, an ethical professional, say, I have an obligation, I’m an expert, I’m going to come into court and testify? What did you do?

A. I discussed it with the District Attorney’s Office and I came here to testify and answer the questions.

Q. And you know the consequences that people that get falsely convicted of abuse, don’t you?

A. There is some —

Q. They go to jail, don’t they?

A. They very well could, yes.

Q. They go on the sexual registry, don’t they?

A. Yes.

Q. And they go on the sexual registry, in some cases, for the rest of their lives, don’t they?

A. That’s correct.

Q. And they’re subject to mandatory prison, aren’t they? And that’s a pretty —

MR. LEWIS: Your Honor, I’m going to object to relevance and argumentative.

MR. PAVLINIC: Your Honor, everything —

THE COURT: Excuse me. I haven’t had a chance to rule yet.

MR. PAVLINIC: Pardon me?

THE COURT: I didn’t have a chance to rule yet.

MR. PAVLINIC: I’m sorry.

THE COURT: I’ll overrule the objection.

Q. (BY MR. PAVLINIC) They go for the rest of their lives?

A. You mentioned mandatory prison and not all sex offenders —

Q. Some sex offenses are mandatory sentences, aren’t they?

A. Some are.

Q. And so, therefore, when we’re doing these things everybody has an obligation here, you as the expert, the State as the prosecutor, the judge, the Defense to present this jury with the most objective and fair evidence so that they can make a determination about the credibility of these accusations, and not you, right?

A. Yes.

MR. PAVLINIC: If I may just have a minute, Your Honor?

THE COURT: Yes.

Q. (BY MR. PAVLINIC) Just one final area, adult pornography is legal?

A. Yes.

Q. Isn’t it?

A. Yes.

Q. And not everybody that uses adult pornography is a child molester, are they?

A. Absolutely.

Q. And not everybody who masturbates is a child molester, are they?

A. That’s correct.

Q. And there are many people that find their sexual stimulation in pornography and not in personal relationships, don’t they?

A. True.

Q. And there are many people that masturbate rather than have normal sexual relationships, don’t they?

A. True.

Q. And there’s no correlation, whosoever, in any of the literature between adult pornography and masturbation and any type of pedophilia, is there?

A. Not with pedophilia, no.

Q. And you heard Carlos testify that the only thing that he did, because his marriage was going bad, was to use adult pornography?

A. Yes.

Q. You didn’t hear him talk anything about child pornography, did you?

A. No, I did not.

Q. Would it surprise you to learn that Mariah said that the touching happened and it lasted a second?

A. It would not surprise me, no.

Q. That wouldn’t surprise you?

A. No.

Q. You would think there would be sexual gratification for an adult male if he touches a child for one second when she’s seven years old?

A. An adult can get sexually gratified from touching a child for one second, yes.

Q. From the facts of this case, the jury — they’re going to determine whether the facts of this case support that legal conclusion. Would it surprise you — you said it wouldn’t surprise you that it stopped for years at a time?

A. That would not surprise me.

Q. But you — of course you don’t know how many — you don’t know how many years it stopped for, do you?

A. Not in this specific case.

 

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Q. And you didn’t look at the tape, so you know that — you don’t know on the tape Mariah didn’t give any specifics about any year or any event at any time?

MR. LEWIS: Your Honor, I’m going to object to that as facts not in evidence, hasn’t been presented.

THE COURT: Sustain the objection.

MR. PAVLINIC: Your Honor.

THE COURT: I’ve sustained the objection as to the contents of the tape.

MR. PAVLINIC: I don’t think I have anymore questions of this witness.

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Corruption of Minors Misdemeanor Not Registrable Offense in PA

There has been much debate within the Pennsylvania judicial system as to whether a conviction for misdemeanor Corruption of Minors (18 Pa.C.S. § 6301(a)(1)) under former law qualifies as a registrable offense under current law, which was enacted December 20, 2011.

Legislative History

Prior to December 6, 2010 (under former law), Corruption of Minors did not contain the two subparagraphs (i and ii) that exist in current law, and was graded as a misdemeanor. The passage of Act 69 created the new subparagraphs, which gave legal distinction between acts involving a sexual element and acts that did not, (ii), and (i), respectively. It also categorized § 6301(a)(1)(i) as a misdemeanor, and § 6301(a)(1)(ii) as a felony.

Under the new law (Section 9799.14(b)), Corruption of Minors is listed as a Tier 1 offense; however, it is the felony count of this offense (18 Pa.C.S. § 6301(a)(1)(ii)), and not the misdemeanor (18 Pa.C.S. § 6301(a)(1)(i)).

The question that arose was whether Corruption of Minors (18 Pa.C.S. § 6301(a)(1)) under former law was a registrable offense as a result of Section 9799.14(b)(21) of the new law, which states that a "comparable military offense or similar offense under the laws of another jurisdiction or foreign country or under a former law of this Commonwealth," also constitutes a Tier I crime.

Recent Superior Court Decision

On April 11, 2014, a PA Superior Court panel in Commonwealth v. Sampolski, 2014 (Pa. Super. Ct. 2014) found that Corruption of Minors under former law is not "similar" to felony Corruption of Minors (18 Pa.C.S. § 6301(a)(1)(ii)) under current law, even when the factual basis for the conviction involved sexual conduct.

In its analysis, the Court found that they are distinct crimes with different elements.

1) "Corruption (Former) may be satisfied by a single action ("any act"), whereas Corruption (F3) requires multiple actions amounting to a 'course of conduct.'"

2) "Corruption (Former) is satisfied by any act that tends to corrupt the morals of a minor, whereas Corruption (F3) requires a more specific subset of actions — namely those that violate Chapter 31 (relating to sexual offenses)."

3) "Similarly, Corruption (Former) is violated if the person who "aids, abets, entices or encourages" a minor in the commission of any crime, whereas Corruption (F3) is more narrowly limited to aiding or encouraging a violation of a sexual offense under Chapter 31."

4) "…the two crimes are different because Corruption (Former) is a misdemeanor of the first degree, whereas Corruption (F3) is a felony of the third degree."

Conclusion

We suspect that are many individuals throughout Pennsylvania who are currently registered as a result of a conviction of Corruption of Minors (18 Pa.C.S. § 6301(a)(1)) who may be entitled to relief as a result of this ruling. Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately. If you reside in the Pittsburgh area, you might consider contacting The Law Offices of David S. Shrager who handles such issues.

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Joining Multiple Sex Crime Cases in Virginia

In Virginia, as with other states, it is not uncommon for prosecutors to attempt to "merge" or "join" multiple sex crime charges stemming from separate acts into a single indictment and trial. For example, if John Doe was accused of sexually abusing Person 1 and Person 2, the prosecutor may move to have a single trial to address the charges related to both alleged victims. When this happens, the Defense must be prepared to convince the court that the cases should remain separate, or should be severed if the cases have already been joined.

Why? A merger can create serious bias:

  1. jurors may be persuaded solely by the fact that there are multiple accusers
  2. evidence of "bad acts" in one case could be applied to the other case
  3. a determination of guilt in one case by the jury, alone, could cause a determination of guilt in the other case
  4. multiple cases could affect the jury's decision concerning appropriate punishment

For these and other reasons, Virginia courts have developed stringent rules that mandate when cases/offenses can be joined. Assuming the defendant does not agree to the merger, the offenses must meet the requirements of Va. Sup. Ct. R. 3A:6(b):

"Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan."

For purposes of this discussion, we shall assume that offenses were NOT "based on the same act or transaction" or "connected". Therefore, the prosecution would have to prove that the acts were part of a common scheme or plan.  In Scott v. Commonwealth, 274 Va. 636, the Virginia Supreme Court defined each of these phrases:

Common Scheme

"The term 'common scheme' describes crimes that share features idiosyncratic in character, which permit an inference that each individual offense was committed by the same person or persons as part of a pattern of criminal activity involving certain identified crimes."

Prosecutors will often attempt to convince the courts that because there were similarities between the alleged acts of criminal conduct, that these similarities create a "common scheme". As the high courts have stated, however, there often will be similarities between similar cases. For example, with an allegation of sexual abuse, one would expect that there might be "grooming", that the perpetrator might lure the child into a secluded place, that the perpetrator might tell the child to not tell anyone about the conduct, etc.  The acts, however, must be "idiosyncratic in character", sometimes referred to as a modus operandi. For example, if the perpetrator has a propensity for using a barbie doll to elicit sex acts, and calls the doll "Sally", this type of specific and unusual behavior could reach the threshold of being a common scheme.

Common Plan

"…the term 'common plan' describes crimes that are related to one another for the purpose of accomplishing a particular goal."

This element of Va. Sup. Ct. R. 3A:6(b) is used less often in sex abuse cases compared to the "common scheme" element. To illustrate what a "common plan" is, we shall use a hypothetical example. An assailant plans to sexually assault a neighbor, but is aware that this neighbor lives with her mother, who is always home. In order to accomplish his "goal", he physically assaults the mother so that she cannot interfere with his ultimate goal, which is the sexual assault. In this case, although the crimes were separate, the fist (assault) was committed for the purpose of being able to commit the second (sexual assault).  Therefore, the criminal charges that results from these crimes could be merged.

Conclusion

If you are currently being charged for multiple criminal sexual acts in Virginia, the chances are high that the prosecutor is planning to file a motion to join your cases. They have nothing to lose by trying, even in instances when the cases clearly should not be joined. If a judge allows the merger and you are found guilty of the crimes, it is much more difficult to have the conviction overturned than it would have been for a capable attorney to preclude the merger. It's imperative to hire a qualified attorney to fight this motion from the onset so that you can get a fair trial. If you need help with this matter, be sure to call Attorney Tom Pavlinic, 24/7. If your case involves registration, or post conviction matters, you can contact PNA Law.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. Furthermore, we were given permission by our client to discuss his case.

 

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PA Supreme Court Finds 2004 Megan’s Law Bill Unconstitutional

The “single subject” rule of Article III, Section 3 of the Pennsylvania Constitution states:

No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.

Simply put, legislators cannot "bundle" together in a bill provisions that are not "germane to the overarching subject of the legislation." For example, one could not create a bill about Subject A, which has a high likelihood of being approved, and simultaneously sneak in Subject B to the bill so that it also will get approved, even though Subject B is not germane to Subject A. Generally speaking, the “single subject” rule of Article III, Section 3 forbids legislative "hitchhiking."

Senate Bill 92 / Act 152

Prior to its enactment in 2004, Act 152 began as Senate Bill 92 in 2003. The bill was amended numerous times over a span of roughly 22 months before it was finally approved and became Act 152. Early-on subjects of the bill during this time included the following: 

  1. governing deficiency judgment procedures in the courts of common pleas after an execution sale of real property
  2. amending the Municipal Police Jurisdiction Act to establish the jurisdiction of county park police in counties of the third class

Prior to the bill's being signed by the governor, however, the Rules Committee added 15 new sections, which accomplished the below changes. These amendments were implemented at the very end of the amendatory process and just before Act 152 was voted on by both houses of the General Assembly.

  1. established a two-year limitation for asbestos actions;
  2. amended the Crimes Code to create various criminal offenses for individuals subject to sexual offender registration requirements who fail to comply
  3. amended the provisions of the Sentencing Code which govern “Registration of Sexual Offenders
  4. added the offenses of luring and institutional sexual assault to the list of enumerated offenses which require a 10-year period of registration and established local police notification procedures for out-of state sexual offenders who move to Pennsylvania
  5. directed the creation of a searchable computerized database of all registered sexual offenders (“database”)
  6. amended the duties of the Sexual Offenders Assessment Board (“SOAB”)
  7. allowed a sentencing court to exempt a lifetime sex offender registrant, or a sexually violent predator registrant, from inclusion in the database after 20 years if certain conditions are met;
  8. established mandatory registration and community notification procedures for sexually violent predators
  9. established community notification requirements for a “common interest community” — such as a condominium or cooperative — of the presence of a registered sexually violent predator
  10. conferred immunity on unit owners’ associations of a common interest community for good faith distribution of information obtained from the database
  11. directed the Pennsylvania State Police to publish a list of approved registration sites to collect and transmit fingerprints and photographs of all sex offenders who register at those sites 
  12. mandated the Pennsylvania Attorney General to conduct annual performance audits of state or local agencies who participate in the administration of Megan’s Law, and, also, required registered sex offenders to submit to fingerprinting and being photographed when registering at approved registration sites.

Constitutional Challenge

In 2005, Appellant  was arrested for various sex crimes, and was subsequently convicted in 2007. He filed an appeal with the trial court, but was unsuccessful  in arguing that the legislature's passage of Act 152 violated Article III, Section 3 of the Pennsylvania Constitution because it contained multiple topics which were not germane to a single subject. He then filed an appeal with the PA Superior Court, which ultimately ruled that Act 152 did violate Article III, Section 3. The court opined that there "was 'little relationship' between the amendments to Megan’s Law and the provisions of Act 152 amending the deficiency judgment statutes, nor, in the court’s view, was there any apparent way to harmonize the other subjects of the bill involving the establishment of statutes of limitations and county police jurisdiction" (Quote from Supreme Court Decision).

However, the Superior Court did not strike down Act 152 in its entirety. Instead, the court reasoned that, "since there was a single unifying subject of Act 152 to which the majority of its various provisions were germane — 'the regulation of sexual predators' — those provisions could remain intact, while its other extraneous unrelated provisions could be stricken pursuant to PAGE and Section 1925. Neiman, 5 A.3d at 360" (Quote from Supreme Court Decision). In the end, the Superior Court affirmed Appellant’s judgment of sentence issued by the trial court. Appellant next appealed at the Supreme Court level. The Supreme Court stayed (paused) the decision of the Superior Court until it could give further orders. 

The PA Supreme Court ultimately ruled:

…we are constrained to conclude that Act 152 clearly, palpably, and plainly violates Article III, Section 3 of the Constitution and, consequently,
we affirm the Superior Court’s ruling in this regard.

Additionally, 

When an act of the legislature violates the single subject rule, all of its provisions are equally repugnant to the constitution, and, thus, equally void; so there is no basis to distinguish among the act’s various sections to decide which of them offend the constitution to a greater or lesser degree.

Accordingly, the order of the Superior Court is hereby reversed and the entirety of Act 152 is stricken as violative of Article III, Section 3 of our Constitution. Our decision is stayed for 90 days.

What This Means for Current "Offenders"

First of its important to understand that the Supreme Court stayed (suspended or paused) its decision for 90 days. This means that ruling will have no legal impact meanwhile. Unfortunately its too early to know the exact the ramifications of this ruling. We will be following closely our contacts for this matter, and will update this blog as soon as we learn more. Seemingly, there should be some relief afforded to individuals who were affected by the provisions of Act 152, but at this time we could only speculate.

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately. If you reside in the Pittsburgh area, you might consider contacting The Law Offices of David S. Shrager who handles such issues. If you or someone you know is currently being charged with a sex crime and needs legal assistance, please visit our law firm's main website and contact our sex crime defense attorneys.

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
33 Comments

PA Superior Court Upholds Enforcement of Plea Agreement Precluding Sex Offender Registration

Prior to reading this article, we recommend that you first read our previous article in which we discussed the laws surrounding plea agreements, and the issue of plea agreements involving sex offender registration.

On December 12, 2012, a Pennsylvania Common Pleas Court issued an order precluding Defendant from having to register as a sex offender under the new laws because his plea agreement was negotiated by both parties to avoid this consequence. The Commonwealth appealed the ruling, and the PA Superior court released its opinion on December 12, 2013.

BACKGROUND – TRIAL COURT

In the instant case (Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. Ct. 2013)), Defendant was charged with three counts of statutory sexual assault (18 Pa.C.S. § 3122.1), two counts of aggravated indecent assault (18 Pa.C.S. § 3125(a)(8)), three counts of indecent assault (18 Pa.C.S. § 3126(a)(8)), and two counts of criminal use of a communication facility (18 Pa.C.S. § 7512). A plea was negotiated, however, where Defendant plead guilty to three counts of statutory sexual assault, three counts of indecent assault, and one count of criminal use of a communication facility, none of which charges required registration under laws at that time (2009). The two counts of aggravated indecent assault, which would have required registration were withdrawn.

After learning that he would be required to register pursuant to SORNA laws that were to be enacted in PA on December 20, 2012, Defendant filed a motion seeking termination of his supervision on December 13, 2012. The trial court denied the petition, but entered an order stating that Defendant was not subject to the registration requirements of SORNA:

Application of [SORNA] to [Defendant] violates due process of law, fundamental fairness, and provisions of the negotiated plea agreement entered into between Defendant and the government. It would also destroy the process of negotiated plea agreements essential to the efficient disposition of criminal cases in Westmoreland County.

SUPERIOR COURT OPINION

The Commonwealth appealed the decision, and the Superior Court issued its opinion. Defendant argued that that non-registration was a term of his plea agreement, and he is due the benefit of his bargain. As expected, the Commonwealth attempted to use the "collateral consequence" argument; however, the high court noted that this was not the proper standard of review, and instead, that Defendant properly framed the issue as an analysis of contract law.

The first part of their analysis was to determine "what the parties to this plea agreement reasonably understood to be the terms of the agreement." The court noted two important and obvious pieces of evidence that addressed this question: 1) the specific discussions of not having to register in the sentencing transcript, and 2) the fact that every count of the one crime that required registration was withdrawn by the Commonwealth. With this evidence, the Court concluded that the plea was fashioned to preclude Megan's Law registration.

The next question was whether "it was error for the trial court to order specific enforcement of the terms of that bargain."  The court again noted that the Commonwealth's contention that SORNA registration is a non-punitive collateral consequence was not relevant to the instant standard of review, and that "the dispositive question is whether registration was a term of the bargain struck by the parties to this appeal."  The court stated:

The terms of plea agreements are not limited to the withdrawal of charges, or the length of a sentence. Parties may agree to — and seek enforcement of — terms that fall outside these areas. See Kroh, 654 A.2d at 1169 (ordering specific enforcement of a plea bargain that barred the Commonwealth from calling the defendant as a witness in a separate proceeding). Moreover, even though a plea agreement arises "in a criminal context, it remains contractual in nature and is to be analyzed under contract law standards." Id. at 1172.

In negotiating a plea that will not require him to register as a sex offender, the defendant trades a non-trivial panoply of rights in exchange for his not being subject to a non-trivial restriction. Fundamental fairness dictates that this bargain be enforced.

[Defendant’s] reliance on the decision of the United States Supreme Court in Santobello v. New York, 404 U.S. 257 (1971), lends support to this conclusion. The Santobello Court ruled that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."

The Commonwealth attempted to analogize the instant case to prior decisions, but the high court found these analogies to be misplaced. In one case relied on by the Commonwealth Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004)), the defendant entered a plea of guilty that subjected him to a 10-year registration requirement, but later was required to register for life when a new version of Megan's Law was enacted. The defendant argued that his plea was involuntary and unlawful because he was not made aware of the registration requirement by the trial court, or, in the alternative, that he should be subject to the 10-year requirement in effect at the time of his plea. The high Court found the this case was easily distinguishable from the instant case because registration WAS a requirement of his plea, AND the record did not support the defendant's contention that he had bargained for non-registration as a term of his plea.

The Superior Court also stated that "the cases relied upon by the Commonwealth address the voluntariness of those defendants' pleas. (See Benner, supra; Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008)). The defendants in Leidig and Benner did not seek specific enforcement of their pleas under contract law principles. In the instant case, [Defendant] does not challenge the validity of his plea, or seek to withdraw it; rather, he asks this Court to enforce the terms of his plea. Thus, the cases cited by the Commonwealth do not control the issue currently before this Court."

SUPERIOR COURT RULING

Accordingly, we conclude that the parties to this appeal entered into a plea bargain that contained a negotiated term that Hainesworth did not have to register as a sex offender. As such, it was not error for the trial court to order specific enforcement of that bargain, and we affirm the trial court's order.

Conclusion

What does this mean? This means that if you have "proof" that your plea agreement was fashioned to avoid sex offender registration, and you were subsequently required to register pursuant to SORNA, you should contact a defense attorney to file a motion to enforce your agreement based upon the outcome of this case. The level of "proof" required is not explicity clear, but examples of proof include: 1) transcripts, 2) correspondence documents, 3) admissions by prosecutors, and 4) legal documents showing which charges were dismissed.

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately. If you reside in the Pittsburgh area, you might consider contacting The Law Offices of David J. Shrager who handles such issues. If you or someone you know is currently being charged with a sex crime and needs legal assistance, please visit our website and contact our sex crime defense attorneys.

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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Breach of Plea Agreement | PA Sex Offender Registration

We have received many inquiries on our blog from Pennsylvanians related to whether a plea agreement is breached if a defendant is told he or she must register retroactively, despite the fact a condition of the agreement was no Megan's law registration. In order to begin the discussion, it should be noted that in order for this potential defense to be viable, there should be some evidence that no registration was a condition of plea. This could be in the form a court transcript, correspondence documents between the defense attorney and prosecutor, or simply an admission by the prosecutor. Equipped with such evidence, the defendant can potentially establish prejudice, i.e., he or she would not have pled guilty and would have insisted on going to trial. It is important to note that the information herein is for informational purposes only, contains opinions, and is not legal advice.  The PA Superior Court is currently considering the issue discussed in this document.

Pennsylvania Rule of Criminal Procedure 590 governs guilty pleas and plea agreements and states in relevant part:

When counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the Commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.

Supporting Case Law

A negotiated guilty plea, "is a two-sided agreement that imposes obligations on both the defendant and the Commonwealth.  Significantly, the court ensures that the Commonwealth upholds its end of the bargain. Further, the court demands that the defendant, in return, fulfill his own obligations under the plea agreement in order to retain the benefits granted to him in that bargain." [(Commonwealth v. Infante, 63 A.3d 358 (Pa. Super. Ct. 2013), citing Commonwealth v. Coolbaugh, 2001 PA Super 77 (Pa. Super. Ct. 2001)]

In interpreting Pa.R.Crim.P. 590, the PA Supreme Court held "Where a plea agreement has been entered of record and accepted by the trial court, the state is required to abide by the terms of the plea agreement [Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993) (rehearing denied), cited by Commonwealth v. Mebane, 58 A.3d 1243 (Pa. Super. Ct. 2012)].

Noted in Mebane, the Spence decision relied heavily upon the landmark United States Supreme Court decision in Santobello v. New York, 404 U.S. 257 (U.S. 1971): " When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."

In Commonwealth v. Anderson, 2010 PA Super 64, 995 A.2d 1184, the Superior Court discussed in length the nature, enforcement and breach of plea agreements.  The Court in Anderson noted, in referring to Commonwealth v. Fruehan, 384 PA Super 156, 557 A.2d 1093, 1094 (1989), that “there is an affirmative duty on the part of the prosecutor to honor any and all promises made in exchange for a defendant’s plea.  Our courts have demanded strict compliance with that duty in order to avoid any possible perversion of the plea bargaining system, evidencing the concern that a defendant might be coerced into a bargain or fraudulently induced to give up the very valued constitutional guarantees attendant the right to trial by jury.”

Where the Commonwealth violates a term of the plea agreement, the defendant is entitled to receive the benefit of the bargain. (Commonwealth v. Anderson, 2010 PA Super 64, 995 A.2d 1184, Commonwealth v. Potosnak, 289 PA Super 115, 432 A.2d 1078, 1081 (1981).

When the government fails to adhere to the plea agreement, the sentence must be vacated and the case remanded to the district court to either allow the appellant to withdraw his plea or grant specific performance of the plea agreement. (United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir. N.J. 1989), cited by Commonwealth v. Kroh, 440 Pa. Super. 1 (Pa. Super. Ct. 1995)).

Distinguishing, and Extinguishing the Leidig Decision

The PA Supreme Court in Commonwealth v. Leidig, 598 Pa. 211 (Pa. 2008) reaffirmed its prior ruling (Commonwealth v. Leidig, 2004 PA Super 167 (Pa. Super. Ct. 2004)) that sex offender registration is a collateral consequence, and a defendant's lack of knowledge of collateral consequences to the entry of a guilty plea does not render a plea unknowing or involuntary.

The Leidig case addressed a situation where the defendant expressly agreed to a plea bargain that required sex offender registration; however, he was misinformed by the Court and his attorney regarding the length of the registration period. (It's important to emphasize that registration WAS a part of his plea bargain, and the lifetime-registration requirement WAS a legal consequence that existed at the time of his plea.) Subsequently he appealed, claiming ineffective assistance of counsel led to his plea not being entered knowingly and intelligently. The Court, relying upon the holding in Commonwealth v. Frometa, 555 A.2d 92 (Pa. 1989), ruled that registration is a collateral consequence, and a defendant's lack of knowledge of collateral consequences to the entry of a guilty plea does not render a plea unknowing or involuntary.

It's important to note, however, that the holdings in Leidig and Frometa appear to be inapplicable to the present legal argument regarding breach of plea contracts. The holdings in the latter cases were with regard to ineffective assistance of counsel claims. The present legal argument pertains to breach of plea agreements under contract-law standards. "Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards (Commonwealth v. Kroh, 440 Pa. Super. 1 (Pa. Super. Ct. 1995).  Although irrelevant, it should be noted that subsequent to the Leidig ruling, the holding in Frometa was abrogated in part by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010), which found it “uniquely difficult to classify [deportation] as either a direct or a collateral consequence” because it is a “particularly severe penalty,” and one which was “intimately related to the criminal process.” Resultantly, the Court decided that the "direct versus collateral consequences analysis” was "ill-suited" in this case.

In conclusion, it's hard to imagine any court not enforcing a plea agreement that was structured expressly to prevent registration requirements. The Courts noted above in "Supporting Case Law" drew no distinction between consequences deemed collateral or direct: "When a plea rests in any significant degree on a promise or agreement of the prosecutor….", "there is an affirmative duty on the part of the prosecutor to honor any and all promises.." Furthermore, it is the Commonwealth's obligation to uphold the plea agreement, not just the prosecutor's: "…the state is required to abide by the terms of the plea agreement", "Where the Commonwelath violates a term of the plea agreement.." Again, the PA Superior Court is currently considering the issue discussed in this document.

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you will be negatively affected by certain laws, we suggest that you contact the Pennsylvania chapter of RSOL (reform sex offender laws), and/or contact the Pennsylvania ACLU to learn about any current appeals that may be planned. If you or someone you know is being charged with a sex crime and needs legal assistance, please visit our website and contact us.

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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Courts Applying Padilla to Sex Offender Registration

Many state and federal courts have ruled that sex offender registration is a collateral consequence of a plea bargain, and not a "direct" consequence. The major consequences of such rulings can be 1) defendants cannot win an ineffective counsel claim as a result of their defense attorneys not informing them about a registration requirement, and 2) defendants cannot win an ex post facto violation claim if they are required to register retroactively.

Padilla – Direct v Collateral Analysis "Ill-Suited"

Prior to the US Supreme Court's decision in Padilla (2010), deportation was also viewed as a collateral consequence (see Frometa 1989), and therefore an ineffective counsel claim based upon a defendant's not being told that he would be deported was invalid.  However the Justices in Padilla decided to abandon the "direct versus collateral" analysis used in Frometa when determining whether Defendant's Sixth Amendment’s guarantee of effective assistance of counsel was violated when his attorney failed to advise him that he would be deported. The Court stated that it was “uniquely difficult to classify [deportation] as either a direct or a collateral consequence” because it is a “particularly severe penalty,” and one which was “intimately related to the criminal process.” Resultantly, the Court decided that the "direct versus collateral consequences analysis” was "ill-suited" in this case.

Padilla Applied to Sex Offender Registration

Post-Padilla, the question became whether other consequences deemed "collateral" such as sex offender registration would someday be analyzed via Padilla instead of via the "direct versus collateral consequences analysis”.

In People v. Fonville, 804 N.W.2d 878 (2011), the Court of Appeals of Michigan expanded the rationale used in Padilla while deciding that "…defense counsel's failure to inform Fonville that his plea would require registration as a sex offender affected whether his plea was knowingly made. This failure, therefore, prejudiced Fonville to the extent that, but for counsel's error, the result of the proceeding would have been different."  Based upon this legal basis, Defendant was entitled to withdraw his plea. In their analysis, the Court stated:

"Like the consequence of deportation, sex offender registration is not a criminal sanction, but it is a particularly severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency-reporting requirements and place-of-domicile restrictions. Moreover, sex offender registration is 'intimately related to the criminal process.' The 'automatic result' of sex offender registration for certain defendants makes it difficult 'to divorce the penalty from the conviction ….'."

More recently, in United States v. Riley, 72 M.J. 115 (2013), the United States Court of Appeals for the Armed Forces concluded that a military judge abused his discretion when he accepted Defendant's guilty plea without questioning defense counsel in order to ensure Defendant knew of the sex offender registration consequences of her guilty plea. The Court stated that the military judge bears the burden of assuring the accused's guilty plea is knowing and voluntary. The Court agreed with the reasoning used in Padilla and Fonville, and additionally, went a step further by stating:

"we hold that in the context of a guilty plea inquiry, sex offender registration consequences can no longer be deemed a collateral consequence of the plea."

Padilla Applied to Plea Agreements

The Court's finding in Riley that registration can no longer be considered a collateral consequence is of great significance, and could be a great stepping stone if referenced by other courts. The above cases analyze sex offender registration in the context of ineffective counsel. However, a closely related issue is whether retroactive registration requirements violate ex post facto clauses in cases where plea agreements were contingent upon NO registration requirement. It would be illogical for courts to provide relief to those whose attorneys failed to inform them about registration requirements that were "automatic", while NOT providing relief to those whose plea agreement, having been accepted by the court, was conditioned upon not having to register. The broad issue that was generally addressed in Padilla, and specifically addressed in Fonville and Riley, is that a plea agreement cannot be knowing and voluntary if the defendant does not know he or she will have to register as a sex offender.

Some state courts such as Maryland and Oklahoma have ruled that retroactive registration requirements violate their respective State's constitutional ban against ex post facto laws, and have done so without applying the rationale used in Padilla. In other states, such as Pennsylvania, sex offender registration is currently considered a "collateral consequence" by the courts (Commonwealth v. Leidig, 598 Pa. 211 (2008)); therefore, claims of ex post facto violations, ineffective counsel, and "non-knowing and voluntary" pleas are currently invalid.  However, two potential legal arguments are ripe:

1) the 2012 changes to Megan's Law based upon SORNA have transformed sex offender registration requirements from collateral to punitive, and therefore retroactive application of these requirements violates the State's ex post facto clause; and

2)  the direct versus collateral analysis is ill-suited in determining whether retroactive sex offender registration requirements violate PA's constitutional ban against ex post facto laws, and instead, the rationale used in Padilla should be applied.

Conclusion

It will be interesting to see if and how the Padilla rationale is used by other courts with regard to sex offender registration requirements. We will keep you posted on any important cases related to this issue. If you are aware of other cases that have applied this rationale, please post.

 

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you are facing allegations of sexual abuse and are seeking legal counsel, however, please contact our law office or visit our main website to read about how our sex crime lawyers can help you.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Oklahoma Supreme Court: Retroactive Application of SORA’s Registration Requirements is Unconstitutional

In a landmark decision made by the Oklahoma Supreme Court on June 25, 2013, retroactive application of SORA's (sex offenders registration act) registration requirements has been deemed unconstitutional because it violates the ex post facto clause of the Oklahoma Constitution.

Case Background

On October 12, 1998, Defendant pled nolo contendere to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas, and received a deferred adjudication. That same year he moved to Oklahoma, and was therefore required to register as a sex offender under Oklahoma's SORA provisions for a period of 10 years. Prior to when Defendant's ten-year registration period was set to expire, the Department (Department of Corrections) assigned him a level 3 life-time registration classification which meant that he would be required to register for life. Defendant filed a petition in August 2009 pursuant to 57 O.S. Supp. 2008, § 582.5 (D) of SORA to have a court override his level assignment, and then filed his Plaintiff's Motion For Summary Judgment on December 10, 2010.

In addition to asserting that Defendant was required to register for life pursuant to the 2007 tiered risk level assessment amendment, the Department also opined that Defendant was subject to the 2004 amendment which changed the start time of the registration period from "the date of registration" to "the date of the completion of the sentence". Therefore, because Defendant was required to complete 10 years of community supervision, "this amendment, if applied retroactively, essentially doubled his registration period" to 20 years.

2011 Trial Court Decision

On May 10, 2011 the trial court granted summary judgment in favor of Defendant. The court opined that the legislative intent was not for SORA to be applied retroactively, and therefore Defendant was only required to register in Oklahoma for 10 years. The Department of Corrections appealed the trial court's decision to the Oklahoma Supreme Court. *Notably the trial court found that the registration period began when Defendant received his deferred sentence, but the Supreme Court would later disagree, stating that the registration period began when Defendant entered Oklahoma. However, because the there were no amendments made during 1998, the 10 year period was affirmed.

2013 Supreme Court Analysis and Decision

The Oklahoma Supreme Court delivered its opinion on June 25, 2013. In regard to the level assignment system created in 2007, the court was to decide whether or not it was intended to be applied retroactively. "If we find it was intended to be applied retroactively, then we must determine whether its retroactive application violates the ex post facto clause." The high court agreed with the trial court, and ruled that the level assignment system was not to be retroactively applied based upon legislative intent. The court stated that the continual amendments to SORA have increased the duties and obligations of a sex offender, and resultantly are substantive amendments. The court then cited from Reimers v. State ex rel. Dept. of Corrections, 2011 OK CIV APP 83, 257 P.3d 416 and State of Oklahoma v. Timothy Lynn Smith, S-2009-944, filed October 28, 2010: "'clear expression' from the legislature is necessary before a substantive change may be made retroactive." Additionally, the court ruled that the Department of Corrections had applied the level assignments retroactively, and this application violates the ex post facto clause of the Oklahoma Constitution.

The next issue to decide was whether the 2004 amendments regarding the starting point of the registration period was intended to be applied retroactively, and if so, whether its retroactive application violates the ex post facto clause. Based upon the language of the amendment, the court found that the amendment was intended to apply retroactively. In applying its analysis in regard to ex post facto, the Supreme Court relied upon Smith v. Doe 2003 which was derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963). In Smith, the court ruled that a law can only be declared unconstitutional based upon the ex post facto clause IF the law is punitive, and not civil in nature. Using this analysis, the Oklahoma Supreme Court had to first answer two general questions: 1) was the legislative intent of SORA and/or its amendments intended to be punitive, and 2) if not, whether the scheme is so punitive either in purpose or effect as to negate its civil intent.

The court stated: "Although there is evidence pointing to a civil intent, there is considerable evidence of a punitive effect. Even if we assume the act as amended was intended to be a civil regulatory scheme that fact does not dispose of the issue. The second part of the test, whether SORA's effects are punitive, is dispositive."

Mendoza-Martinez Factors

To determine whether the registration scheme was punitive, the court utilized the Mendoza-Martinez factors that were used in Smith v. Doe (2003):

  1. "whether the sanction involves an affirmative disability or restraint";
  2.  "whether it has historically been regarded as a punishment";
  3. "whether it comes into play only on a finding of scienter";
  4. "whether its operation will promote the traditional aims of punishment—retribution [48] and deterrence";
  5.  "whether the behavior to which it applies is already a crime";
  6. "whether an alternative purpose to which it may rationally be connected is assignable for it"; and
  7.  "whether it appears excessive in relation to the alternative purpose assigned

Oklahoma Constitution versus U.S. Constitution

Prior to revealing its analysis, the court made it clear that the analysis was based upon the Oklahoma Constitution, which can provide a greater degree of protection than the United States Constitution:

"The people of this state are governed by the Oklahoma Constitution, and when it grants a right or provides a principle of law or procedure beyond the protections supplied by the federal constitution, it is the final authority. This is so even if the state constitutional provision is similar to the federal constitution. The United States Constitution provides a floor of constitutional rights – state constitutions provide the ceiling."

Alaska Requirements versus Oklahoma Requirements

Even though the outcome of Smith v Doe was that Alaska's sex offender registration requirements did not violate the United States Constitution, the high court analyzed Oklahoma's requirements which are substantially different. In its analysis, the court discussed requirements and issues such as:

  1.  "in person" registration and verification requirements, where failure to comply is a felony subject to 5 years imprisonment and a fine not to exceed $5,000
     
  2.  residency restrictions – "An offender may not reside, either temporarily or permanently, within a two-thousand-foot radius of any public or private school, educational institution, property or campsite whose primary purpose is working with children, a playground or park operated or supported in whole or part by public funds, or a licensed child care center. If a person owns a home within a prohibited area and becomes subject to SORA registration, they must vacate the property."
     
  3.  heightened driver's license renewal requirements – "A person registered under SORA must renew their driver's license or issued identification card every year as opposed to non-registrants who renew every four years. Therefore registrants are required to pay four times the amount of a non-registrant."
     
  4. public dissemination of personal data – "Some courts have found such aggressive public notification of sex offender crimes 'exposes sex offenders to profound humiliation and community-wide ostracism.'"
     
  5. offenders to have the words "Sex Offender" placed on his or her driver's license
     
  6. "SORA determines who must register based solely on the criminal statute a person is convicted of violating and not any individual determination of the risk the person poses to the community."

IN CONCLUSION, the court determined that the sex offender registration scheme of Oklahoma's SORA was punitive, and therefore its retroactive application is unconstitutional under Oklahoma law.

"We find the legislature necessarily implied the provisions of 57 O.S., § 583 as amended in 2004 were to be applied retroactively. Further, we find this retroactive extension of Starkey's registration period from 10 years to 10 years from the date of completion of the sentence violates the ex post facto clause of the Oklahoma Constitution. We also find the Department's retroactive application of the level [80] assignment provisions of 57 O.S. Supp. 2007, §§ 582.1 – 582.5, as amended, violates the ex post facto clause."

Congratulations to Attorney John M. Dunn, counsel of record, for your tremendous battle and ultimate success in this case!

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you have been charged with a sex crime and are seeking legal counsel, however, please contact our law office or visit our main website to read about how our lawyers can help you.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Maryland: Retroactive Sex Offender Registration Law Unconstitutional (2013)

A terrific, and far-reaching ruling was made today (March 04, 2013) by the Maryland Court of Appeals in the case of John Doe v. Department of Public Safety & Corrections: requiring an individual to register as a sex offender retroactively “as a result of the 2009 and 2010 amendments violates the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights.”

Pre- Court of Appeals Synopsis

On June 19, 2006 the petitioner plead guilty to and was convicted of child sexual abuse under Maryland law (Section 35A(a)(4)(i)). Sex offender registration was not mentioned during the plea agreement; however, the judge imposed this as a condition of his probation. Petitioner challenged this as an illegal sentence based upon various legal grounds. The Circuit Court agreed, and ordered that the he shall not be required to register.

In 2009, Maryland passed new sex offender laws based upon SORNA, that required Petitioner to register as a sex offender. He appealed, but was denied relief by the Circuit Court for Washington County and then by the Court of Special Appeals. Petitioner appealed to Maryland’s highest court, the Maryland Court of Appeals.

Oral Argument – Maryland Court of Appeals (09/07/2012)

Court of Appeals Analysis and Opinion (03/04/2013)

Upon being denied relief by the lower courts, Petitioner appealed to the Maryland Court of Appeals, who considered the following question:

Given the highly punitive and restrictive nature of Maryland’s newly enacted sex offender registration laws, does their retroactive application violate the federal constitutional ban on ex post facto laws and both clauses of Article 17 of the Maryland Declaration of Rights prohibiting ex post facto laws and ex post facto restrictions?”

In its analysis, the court departed from the United States Supreme Court’s interpretation of ex post facto prohibition under Smith v. Doe (2003). In the latter case, the U.S. Supreme Court utilized a two-pronged test to determine if a provision constituted retroactive punishment forbidden by the Ex Post Facto Clause: 1) whether the legislature’s intent in enacting the provision at issue was punitive, and if not 2) whether there is “the clearest proof” that the provision is “so punitive either in purpose or effect as to negate the intention to deem it civil.”

The Maryland Court of Appeal departed from this analysis, and reaffirmed their holding in Frost, that the “two critical elements” that “must be present” for a criminal or penal law to be an unconstitutional ex post facto law is that the law is retroactively applied to an offender, and that it disadvantages the offender.

As to the disadvantage standard, the Court stated” Article 17 prohibits the retroactive application of laws that have the effect on an offender that is the equivalent of imposing a new criminal sanction or punishment.” The Court opined that requiring Appellant to register as a sex offender retroactively is the equivalent of imposing a new criminal sanction. In reaching this decision, the Court reasoned:

1) Requiring Petitioner to register has essentially the same effect on his life as placing him on probation:

When the State imposed registration upon him in 2009, however, it had an effect that was the equivalent of placing Petitioner on probation for life as a result of his sex offense . Thus, although the statute may be labeled “civil” or “regulatory,” it effectively imposes upon Petitioner an additional criminal sanction for a crime committed in the 1980s.”

2) Petitioner must disclose a significant amount of personal information:

“The result is that the dissemination of information about registrants, like Petitioner, is the equivalent of shaming them, and is, therefore, punitive for ex post facto purposes.”

“…may implicate social ostracism, loss of employment opportunities, and possibly verbal and physical harassment”

3) If Petitioner fails to comply with these conditions, he faces terms of imprisonment:

This is the same circumstance a person faces when on probation or parole; as the result of a criminal conviction, he or she must report to the State and must abide by conditions and restrictions not imposed upon the ordinary citizen, or face incarceration.”

Conclusion

In conclusion, the Court stated:

“Therefore, we conclude that the imposition of the registration requirement upon Petitioner, as the result of amendments passed 25 years after Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights.”

This case is a tremendous victory for all of those who were unfairly required to register retroactively when Maryland changed its laws in accordance with SORNA in 2009 and 2010. Undoubtedly the decision in this case will positively affect numerous other individuals in Maryland, and allow them to move on with their lives. It’s relieving to hear an opinion that is not dis-attached from reality, and we commend the Maryland Court of Appeals for their judicial prudence, as well as Attorney Nancy S. Forster and Attorney Pat Cresta-Savage for their relentless pursuit of justice.

It’s important to note, however, that the Court did not address whether Appellant would be required to register pursuant to SORNA under federal law. The State argued that the federal Sex
Offender Registration and Notification Act (SORNA) imposes an “independent obligation to register as a Tier III sex offender”. This situation is generally similar to laws regarding marijuana use in Colorado: the State laws deem it legal, but federal laws deem it illegal. A fair assumption based upon other states that have declared SORNA to be unconstitutional, however, would be that this will not be an issue.

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. However, we have been made aware that the following two Maryland law offices are handling such cases: the Law Office of Nancy S. Forster in Towson, Maryland, and/or the Law Offices of Pat Cresta-Savage in Bowie, Maryland.

 

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

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Padilla – What It Means for Ex Post Facto Violations

Sex offender registration (SOR) in Pennsylvania has long been considered to be a collateral consequence as opposed to a direct consequence. A few examples of "collateral consequences" include the loss of the right to vote, the loss of the right to carry a firearm, and the suspension of one's drivers license. The ramifications of this opinion are numerous and serious for those that have been convicted of sex crimes.

For example, courts have ruled that because SOR is a collateral consequence, defendants have no right to withdrawal their plea simply because they were not informed that they would be required to register. Claims of ineffective assistance of counsel raised based upon a collateral consequence are invalid; defense attorneys are not required to warn their clients of potential collateral consequences.

(Direct versus Collateral) versus (Punitive versus Civil)

The court in Commonwealth v. Duffey (1994) (cited in Commonwealth v. Abraham (2012)) stated, "The distinction between a direct and collateral consequence of a guilty plea has been effectively defined by this Court as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control." In other words, if the consequence is not considered to be punitive (a criminal penalty), then it is a "collateral consequence". Commonwealth v. Masker (2011) was the latest case to uphold the opinion that sex offender registration is not punitive. Interestingly, in regard to what constitutes a collateral consequence, this case relied upon the findings of Commonwealth v. Leidig (2008), which relied upon Commonwealth v. Leidig (2004), which relied upon Commonwealth v. Frometa (1989).

The court in Frometa (1989) ruled that because deportation was a collateral consequence, counsel was not required to advise the defendant of this possible consequence: "Deportation is but one of a host of collateral consequences of pleading guilty". However, this ruling was just recently abrogated by the United States Supreme Court in Padilla v. Kentucky (2010). This court stated that because deportation is a “particularly severe penalty," is “intimately related to the criminal process,” and the statutory provisions providing for the imposition of the consequence are “succinct, clear, and explicit”, the direct versus collateral analysis used in Frometa (1989) is "ill-suited". The court explained:

"We have long recognized that deportation is a particularly severe “penalty,” but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context."

This was a highly significant ruling for those who are charged with sex crimes. In essence, the court set aside the direct versus collateral analysis, and instead relied upon whether the consequence was intimately related to the criminal process, certain, automatic, and severe. The next chapter of the journey began with Commonwealth v Abraham (2012). In this case, the defendant argued that his plea was not entered voluntarily and knowingly pursuant to Padilla, because his counsel failed to warn him that he would lose his state pension.

Ultimately, the court ruled that:

"..we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis."

Based upon this statement, it appears as though the court conceded that when a consequence is "enmeshed in the criminal process", a Padilla analysis would be appropriate as opposed to a direct versus collateral analysis. This obviously would give great hope to those convicted of sex crimes. After all, what is more intimately related to the criminal process, certain, automatic, and severe than sex offender registration?

"Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa's general holding remains:
a defendant's lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea."

This seems to be a fair and encouraging ruling. The court is stating that in cases where the consequence is not deportation, a direct versus collateral analysis MAY still be appropriate pursuant to Frometa. In other words, the court is saying that the direct versus collateral analysis is not dead because of Padilla, and is still viable in certain instances. Depending upon how one interprets the case, it does not appear that the court is saying that the Padilla analysis can only be applied to deportation. Although in a very recent Superior Court case, a more literal interperation was used Commonwealth v. Perri (2013) (non-precedential).

It will be interesting to see how Padilla is ultimately applied to sex offender registration requirements by the Pennsylvania Supreme Court. Could this be applied to ex post facto considerations? After all, ex post facto issues are based upon a direct versus collateral analysis. Perhaps its time for the PA Supreme Court to apply Padilla here. It should be noted that Commonwealth v. Masker (2011) touched upon the Padilla / SOR issue, but very "weakly".  One might say that this court's (Superior, not Supreme) reference to Padilla was misplaced (read the dissenting opinion). It should also be noted that this case was in regards to SVP status, not registration in general (which is automatic).

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you will be negatively affected by certain laws, we suggest that you contact the Pennsylvania chapter of RSOL (reform sex offender laws), and/or contact the Pennsylvania ACLU to learn about any current appeals that may be planned. If you or someone you know has been charged with a sex crime and has not yet been convicted, please contact our experienced team of sex crime defense attorneys.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Posted in SORNA |
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Appealing Pennsylvania’s New Megan’s Law

On December 20, 2012, Pennsylvania will begin enforcing its new changes to Megan's Law. By now, many people have realized that they or their friends will be negatively impacted by these laws. For most, it's probably hard to grasp how such laws could be legal. Undoubtedly, many appeals will be filed to challenge these laws. In some states such as Ohio, many of the retroactive provisions have been found to be unconstitutional upon being appealed, and have been reversed. In other states, the high courts have upheld the new laws. The purpose of this article is to educate you all about why these new laws may or may not ultimately be determined to be illegal.

The United States Constitution, as well as the Pennsylvania Constitution, contain clauses that prevent legal consequences from being changed retroactively. Section 17 of the Pennsylvania Constitution reads:

"No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed."

For example, one cannot be arrested today based upon a new law if the actions of that individual were legal during the time the actions were taken. Additionally, if an individual were sentenced to the maximum term of 10 years of imprisonment for a crime in 1999, and in 2002 the maximum sentence for that crime changed to 20 years, the sentence of that individual cannot be changed retroactively to conform to the new law.

However, in order for a retroactive law to violate the ex post facto clause, the legal consequence that is changed retroactively must be "punitive" (i.e., considered to be punishment), as opposed to civil, remedial, or a collateral consequence.  Some examples of collateral consequences include loss of the right to vote, enlist in the armed services, or own a firearm. Although it may be hard to imagine, some high courts have ruled that sex offender registration requirements are not punitive, but are instead collateral consequences.

However, in State v. Williams,129 Ohio St.3d 344, 2011-Ohio-3374, the Ohio Supreme Court concluded that the requirements of Ohio's new sex offender laws based upon the Adam Walsh Act had transformed the law from remedial to punitive. Their decision was not based upon a single requirement, but instead was based upon the totality of the requirements. The Court cited the various new requirements, and also stated two other factors that influenced their decision: 1)  the procedures for registration and classification of sex offenders were placed within Ohio's criminal code, and 2) failure to comply with certain registration requirements subjected an offender to criminal prosecution.

Some notable comments in this analysis include:

"The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender's actions.’

"When we consider all the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we conclude that S.B. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws."

A video of the oral argument that was administered prior to the decision is below.

In a recent Pennsylvania Supreme Court case (Commonwealth v. Abraham 2012), the court analyzed whether the appellant's losing his pension unknowingly as a result of a plea bargain was a collateral consequence. Although this case is not directly related to the issue at hand, the court discussed an analysis to determine whether a provision is punitive, or civil.

  • The first inquiry is whether the legislature's intent in enacting the provision at issue was punitive. If the intent is found to be non-punitive and therefore civil,
  • the second inquiry is whether, despite this intent, “the statute is ‘so punitive either in purpose or effect as to negate [the] intention to deem it civil.

"In applying the second prong, courts “ordinarily defer to the legislature's stated intent,” and “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty."

Ultimately the court ruled that the appellant's loss of pension was a collateral consequence. Based upon the rationale used by this court, if the PA's new sex offender laws are going to be challenged, the appellant should have "the clearest of proof" that he or she has been subject to punitive consequences as a result of the new laws.

Some of the consequences are listed below, but the Court should also realize that if it deems these new laws constitutional, additional consequences / conditions are sure to follow. The court should also consider, as did the Ohio Supreme Court, that it perhaps did not fully envision the negative effects of Megan's Law during the passage of the original law. In essence, the conditions imposed by Megan's Laws are tantamount to sentences of supervision that have historically been considered to be punishment.

There are basically two "Tiers" of offenders: 1) those that were already required to register, but whose conditions will be changed, and 2) those that were not required to register, and now must.

Please share your stories of how you have been affected by Megan's Law, or how you envision the new laws will negatively affect you.

  1. Required to register under Megan's Law even though one's plea agreement precluded such a condition
  2. Reclassification into higher tiers without causal reason (offense-based, not risk-based)
  3. Reclassification into higher tiers due to convictions for multiple lower-tiered "sexually violent offenses" that resulted from the same act
  4. Extensions of registration periods
  5. Increased reporting frequencies
  6. More-detailed personal information requirements on the website
  7. Prison sentences if in violation
  8. Inclusion of juvenile offenders on Megan's Law website
  9. Loss of employment, or prevention of employment
  10. Loss of ability to live with your children
  11. Residency restrictions
  12. Forced to move
  13. Homelessness
  14. GPS monitoring
  15. Travel restrictions
  16. Loss of the right to use the internet and/or social media
  17. Banned from parks
  18. Ostracism by communities and friends
  19. Depression, loss of will, and suicide
  20. Harassment of offenders, and/or harassment of offenders' children

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you will be negatively affected by these new laws, we suggest that you contact the Pennsylvania chapter of RSOL (reform sex offender laws) to join the fight, and/or contact the Pennsylvania ACLU to learn about any current appeals that may be planned.  Additionally, the Law Offices of David S. Shrager in Pittsburgh, PA have been successful in precluding Megan's Law registration in some cases. If you are currently being investigated for child sexual abuse, please visit our main website immediately.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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