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

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

  1. Mike says:

    Looks like we the pa Supreme Court got it right and found that SORNA is a violation of the Ex Post Facto clause of the pa and us constitution!!

    Here is the text, waiting for attorney to get back to me on how to move forward.

    I will follow up. Good luck to all!!

    http://www.pacourts.us/assets/opinions/Supreme/out/J-121B-2016oajc%20-%2010317692521317667.pdf?cb=1

  2. Paul says:

    Reeds lawyer did argue well, wish he had some bullet points on the punitive and reputation points. Looks like some of the justices have some in mind already. I hope we can get some action oriented people together so we can assist these lawyers on cases like this its important. The tar and feathers wont just be for SOs in the near future if this isn’t stoped.

    • Michael says:

      I don’t think Reeds attorney did argue his case well, but I don’t think that mattered. Ryan Dobo, Counsel for the Commonwealth, did so poorly he, in my opinion, did Reeds’ attorney a huge service. When asked if he [Dobo] expected the court to believe that incarceration for failing to register wasn’t punitive, and he said he did, I almost shat myself.

      Hard to say where this will end up but it did appear that at least some of the justices were not fully in favor of SORNA.

  3. Mike says:

    Here is the video from the Reed case on youtube.

    https://www.youtube.com/watch?v=FI9O0igMs5Y

  4. Mike says:

    I just got done watching the PA Supreme Court case of Commonwealth v. Reed. One word describes this 34 minutes of argument, WOW!

    This is the case that everyone that was convicted before SORNA and was to register for 10 years and are not somewhere between 10 years and the rest of their lives have been waiting. This is Ex Post Facto and by the way that the justices handled the matter, my score card has it at 5-2 and possibly 6-1 in favor of the Ex-Offenders!

    The lawyer for Reed did an excellent job defending our position and the Commonwealths attorney……lets just say not too good. If you are affected by SORNA in anyway and if your time on the ML registry has increased by any amount, I highly recommend that you take a look a this argument. its available on PCNTV, the network of Transylvania. Get a one day membership, it is worth the $12. it is the first case and make sure to watch the conversation with the lawyer from the commonwealth and the banter between the Justices in between the Reed case and the Wells Fargo case, it is “Must See TV”.

    I think that it is important for everyone that has contributed to this string and all the other ML strings on this site to see that Judges at the Appellate level work VERY differently than the Judges that have unfortunately crossed our paths for one reason or another.

    I believe that a decision has to come out before November time frame? I’m sure that everyone will hear before they read it on this site, but I truly feel that this nightmare is rapidly coming to an end.

    Mike

  5. Jim says:

    yesterday i received a letter from the PASC stating that my tier has been reduced from a 3 to a 2. i am going to call down next week and see why i am at a 2 because nothing that is listed in tier 2 is identifiable with what i pled guilty to. i an pleased i no longer have to register quarterly, but still i should not even be on the registry any more.

  6. Mike says:

    [Truncated by Moderator]

    I don’t think Ritz is a strong enough case to get all of us Pre-AWA people off the list, but I do believe the next round scheduled for march are. I am however hopeful that the PASC might surprise everyone with a ruling on Gilbert. M

    Worst case, we see the ruling for the march docket in Oct -Nov, best case we see ruling for Gilbert shortly before March session in Philly.

  7. J says:

    As far as the Ritz case goes- I think the Commonwealth asked for re-argument ?… (from the docket).

    Apparently whether or not that reargument is granted or not – will be decided in March.

    Delay, delay, delay. The Commonwealth lawyers cannot accept their losing position at almost every turn- so delay is the best and only option.

    Imagine the money that has been spent on appeals for Sorna in Pa.
    since December 2012. It has been 5 years of endless and constant appeals from the county level through the PASC. Not very difficult to understand why things are moving begrudgingly slow.

  8. Becky says:

    My bf was wrongfully accused of his ex gf yrs ago after he broke up with her. She accused him of indecent assault of her family member. He could not afford a lawyer and was appointed a defender. The defender advised him to take a plea or else he would spend 10 yrs in jail so he took the plea and was told he’d have to register as a sex offender for 10 yrs as a Tier 1. While in jail, paperwork came back that no evidence was found but it was too late because he had taken the plea. In Dec 2012 he got a letter saying he was bumped to lifetime. He is now in jail again after someone called the police and said he was volunteering at a store. No where in his paper work from 9 yrs of registering did it state he had to report volunteer work. All of a sudden when he brought that to his lawyer’s attention; the police added it to the paperwork. Also there were things he updated at the police station that the police chose not to update due to being lazy asses. How is it his fault that they can’t do a simple task? He signed a deal for 6-14 months. All of a sudden the day of the sentencing his lawyer says its 9-23 months. The judicial system is so full of crap. All the lawyers, DA, and judges are pals who work together to screw innocent people over. There doesn’t have to be evidence or proof to convict. Crazy thing is, the people who make false accusations get to go on with their lives and sleep at night. What goes around comes around. All we can do is pray that someone with a brain gets rid of SORNA and put the Tier 1 10 yr registrants back to the terms they agreed to. I feel like John Walsh has been insane ever since his son was murdered. He paints everyone with the same brush. He will never find peace until he can get rid of that hate in his heart.

  9. Michael Smith says:

    Happy New Year all,

    I wanted to update everyone on my case as well as clarifying my previous post concerning PA v. Gilroy.

    I am in similar situation as many where i was convicted in 2006 and had 10 years built into a doc that the State made me sign. I was moved to “lifetime” in 2010 and “tier 3” in 2012. I hired an attorney who wrote two letters last year.

    First letter- stating the 2 counts does not mean two convictions and that I should be tier 1. That letter was received and through my lawyer, I was the first person in PA moved to the correct tier.

    Second letter – was alerting the PSP that I had solid evidence that my agreement with the court was for only 10-years. PSP said that they have absolutely NO intention of taking anyone off of Registry unless there is a court order or new law in place.

    At this point in time, I am at a standstill based on all of the cases that came out in our favor last year. Simple reason is that I have a probation violation and thus am unable to exercise Martinez, Lutz, or Mcginnis . There is a case PA v. Purdy that never made it to PASC that will not allow anyone that has a probation violation exercise Hainsworth and the Contract Clause of a plea agreement.

    BUT THEN – The aforementioned PA v. Ritz comes out on 12/21/2016 and may have made a very big impact on SORNA as a whole. The operative word being “May”. I suggest that anyone who is reading this take a look at the decision. posted link but understand if blog moderator excludes.

    http://www.pacourts.us/assets/opinions/Superior/out/J-S90038-16ro.pdf?cb=1

    The Ritz case is all over the place but all of its decisions and case points are exactly what we have been fighting. The only outstanding question is, is it enough to act as a silver bullet in reverting all of us back to 10 years? I am waiting until 1/22/2017 to see if it is appealed and to get some more feedback from some more experts.

    Gilbert Case-

    Gilbert was consolidated with Reed and Muniz and were to be THE Ex Post Facto cases like we have read about in Williams in Ohio. These cases could be our silver bullet to get everyone who was convicted of a 10 year ML case before dec 2012 (AWA), back to 10 years.

    As you have read, the cases were pushed/continued to the Philly session on 3/7/2017. But, both attorneys in the Gilbert cases showed up in December and argued their respective sides to the case. which was the Ex Post Facto administration of the Adam Walsh Act to people who were convicted before Dec 2012.

    The only question that remains, and was discussed by the PASC, was do we rule on this case as the case to decide if AWA is punishment and in violation of the PA constitution or do we wait until the rest of the crew argues in March? There was no decision, but it seemed like the Super Majority of the jurists were ready to rule in favor of Gilbert and all of us. We will have to wait and see if they rule and, if so, what does the ruling look like for us and is it going to be a simple line in the sand that forces the PSP to act or is this going to be one off fights with the Commonwealth to get what we are deserved?

    Mike

    • Jim says:

      i am curious on how the commonwealth can appeal and appealed decision? i was always under the understanding that if a court order is appealed and the decision is not in favor of the filer then that appellant cant file another one based on the decision.

      so doesnt that basically render the ritz decision by the SC over and done with? the ruling basically says SORNA is unreasonable.

      i dont understand why the PSP continues to fight this when the commonwealth is losing every decision left and right. the PSP is not the law, the SC is! it amazes me how they can say they are not removing anyone off the list without a court order. we need one of these SC judges to put into one of the rulings that the decision not only affects the person filing for relief, but all the individuals who were wrongly moved up in tier because of SORNA.

      i have a feeling it is going to get to a point where someone is going to sue the PSP themselves for blatantly not following the SC’s rulings and i hope it happens very soon.

  10. Jim says:

    **In addition**

    Since this is a ruling based on an appeal by the Commonwealth on a ruling from back in feb of 2016, and they lost this appeal am i correct that the commonwealth are not legally allowed to appeal this decision?

    If so does that mean the PSP has no choice now but to start rolling back those who had plea agreements and were given more time? in other words will this be considered a blanket ruling that the PSP has to abide by and can no longer drag their feet?

  11. Jim says:

    It seems that the superior court ruling on 12/21/16 on the appeal filed by the commonwealth is pretty substantial in that it was ruled that SORNA is basically unreasonable and that those individuals who had specific amounts of time to register written into their plea deal and were extended under SORNA should in fact be returned to their original time as stated in their binding contract of a plea agreement.

    Does this mean that this could be the start of seeing SORNA being dismantled altogether as was the case in Ohio or at least the retroactivity portions of it?

  12. Jim says:

    What rulings are on hold and being appealed by the PSP?

    The 2 or more convictions making a person an auto tier 3?
    A judgement entry/plea agreement deal in fact being a legal contract that is recognized under PA and US Contract Law?
    SORNA adding time to a person?
    Those who were off the list now having to re-register?

    • Michael says:

      “What rulings are on hold and being appealed by the PSP? The 2 or more convictions making a person an auto tier 3?”

      Wasn’t that settled in Commonwealth v. Lutz-Morrison?

      • Jim says:

        Yes but i thought i read that the PSP even with this ruling dont consider it a blanket ruling and have stopped reviews but also have filed an appeal regarding those decision

        • Michael says:

          Can you post a link?

          Appeal it where? Commonwealth v. Lutz-Morrison was decided in the PA Supreme Court.

        • Michael says:

          If I remember correctly, Lutz-Morrison was decided based upon the decision in A.S., Petitioner v. Pennsylvania State Police, which was an Action in Mandamus [Writ of Mandamus]. Appealing Lutz-Morrison won’t change the mandamus action in A.S. v. PSP, and I don’t know that a Writ of Mandamus can be appealed.

  13. J says:

    Can you provide a date that the case you mentioned was argued??
    Can’t seem to find a Gilbert or Gilroy in the dockets…

    Thanks

  14. SB says:

    Mike,

    Thanks so much! Eagerly awaiting any updates and insight you provide.

  15. Mike says:

    This has been quit annoying. Someone from the prosecution side was sick this month and the case was moved to march. One case was argued Gilbert or Gilroy and the justices actually spoke about ruling on that case as the ex post facto rule of the land.

    It was actually a pretty interesting watch and you can check it out through PCN ($12). It sounding like there is a chance that they could come down with a decision base on the case that was argued. Neither side really good a good job, but the rep from the district attorneys office basically argued for us.

    Also during this case, it was clear that all the judges were on our side, except for the Todd who has her own agenda and did not say a word. I have reached out to the Public Defender who argued the case to see if he got any other sense of weather there could be a decision and I will update the group.

    Mike

  16. Paul says:

    I was 10 year Thay put me back to t 1 but 15 years

  17. Paul says:

    Sue them for breach of contract a good multi million law suit might get them to honor contracts.

  18. SB says:

    What happened? Was this argued or not on 12/6/16? How many times an they put this off? ***Sigh***

    https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=10+wap+2016

    Comments:
    AND NOW, this 5th day of December, 2016, the Commonwealth’s application for continuance of argument is hereby GRANTED. This matter will be re-listed for the March 2017, Philadelphia argument session.

  19. Dave from PA says:

    Mike,

    Just so I understand clearly were you able to have this changed yourself or was it necessary to have a lawyer or take it to court?
    I recently contacted Megan’s Law in Harrisburg and was told there are many people waiting to be reviewed for the multiple count law but I was not on the list since my case was different. I accepted a 10 year registration as a plea deal in 2006 and was changed to lifetime under Sorna.
    Harrisburg told me if I have a document signed by the judge stating 10 years registration they will honor that. I have called and had my file pulled and am going to the courthouse next week.

    • Mike says:

      Dave,

      I have a lawyer, but you are correct that the PSP is not making any changes where you will get off the list without court order. I.E. Something with judges signature that there is an agreement for 10 years.

      Your issue is going to be that Judges don’t just open their chamber doors and write orders. Contact the defenders association of Philadelphia, they might have the form u need. They did this for Hainsworth folks.

  20. Mike says:

    I wanted to provide an update on my situation with the new pa Supreme Court decisions (A.S. and Martinez)

    My attorney contacted the PA State Police (PSP) shortly after he won the A.S. decision. The PSP quickly change my status from tier 3 to tier 1. This was a nice victory as an end date is in now a reality.

    I was convicted in 2006 of 10 counts of possession of CP, agreed to 10 years on ML.

    Shortly after Martinez was decided, it appeared that I had all the needed docs to present to the PSP to be completely removed from site. I had transcripts and signed paperwork stating 10 years. They came back this week with a simple “we won’t be removing anyone without a court order”.

    I’m sure no one is very surprised that the PSP is going to continue to milk this law for all they can. The next question is going to be what vehicle to use and how hard is the PSP going to fight on each of these cases??

    I will keep everyone updated on my plight. I am fighting and my atty is working with the Defenders of Philly, [name removed by moderator], to see what everyone can come up with as the path of least resistance to invoking this new decision.

    Mike

  21. SB says:

    Great info thanks Mike!

  22. Mark David says:

    Can you share Supreme court updated law, for more better understanding.

  23. Mike says:

    SB

    I thought that I was out of luck until I went back and got all the docs from my case back in 2006. After reading my transcript, I was still in a hard place to prove that 10 years was part of my plea. I then went to the court of clerks and got all the docs from that day and it turns out I was required to sign an addendum that outlined all the ways that PA could throw me in jail for not complying with ML. This addendum also stated that the state and I agreed to 10 years.

    If this doesn’t help you, there is still the ex post facto case of Commonwealth v. Reed which is fighting sornas retroactively altogether. This case should have been argued this year but it appears that everyone wants in on the action. The PASC just let the PA District Attorneys have a shot at a brief. Guess they felt left out since the “good guys” have a pretty extensive team on OUR side. Take a look at the players on the enclosed link to the docket.

    Don’t give up. If you do some research you will see that the PASC is stacked in our favor and there is a Federal Case in Midwest that will most likely go to scotus next year as well.

    Stay tuned and be positive!!

    https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=10+wap+2016

    Mike

    • Mike says:

      Just an FYI to everyone but the case that I referenced above, Commonwealth V. Reed is scheduled for oral arguments 12/06/2016 in Harrisburg.

      This case is linked together with two other cases Gilbert and Muniz. All of them are challenging the retroactive application of SORNA. These aruments are public and are usually broadcast the following day on PCN (www.pcntv.com) or on your local cable PNC channel.

      I think it is worth noting that, in addition, to the three lawyers representing their clients, the follow group of lawyers has joined the fight on the side of the ex-offenders.

      Attorney: Conyngham, William Joseph
      Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.
      Representing: Collateral Consequences Resource Center, Appellant Amicus Curiae
      Attorney: Hare, John Jacob
      Marshall, Dennehey, Warner, Coleman & Goggin, P.C.
      Representing: Social Science Scholars, Appellant Amicus Curiae
      Attorney: Leckerman, Jason A.
      Ballard Spahr LLP
      Assoc. for Treatment of Sexual Abusers, etc. and Joseph J. Peters Inst., Appellant Amicus
      Attorney: Marcus, Aaron Joshua
      Attorney: Gelso, Philip
      Defender Association of Philadelphia

  24. SB says:

    So this really isn’t that great of news then correct? This is not a blanket ruling that says that everyone will return to their original registration requirements that were enacted onto them before the SORNA changes took place in December of 2012 and moved the finish line for everyone, correct? So in order to be returned to your original registration time period your lawyer must have explicitly included language regarding the term or exclusion all together of having to register as part of Megan’s Law? If so ugh.

    • Michael says:

      No. It applies to anyone who may have initially been a tier I or II offender, but was later required to register for life because the state used multiple counts as the reason for lifetime registration — e.g., a tier one offender was convicted of possession of child pornography pre SORNA. He had registered for 8 of 10 years by 12/2012. SORNA changed the requirement to 15 years, but because there was more than one image, and the state can consider each image a separate count, the registration requirement became lifetime. The court held that, regardless of the number of counts, it takes more than one conviction to trigger the lifetime registration requirement.

      Make better sense?

  25. Mike says:

    Jim,

    My lawyer let me know of the change in tier status and I received a letter from Psp. Unfortunately, my anniversary date is Oct 19, so I they still got me for all 4 quarterly registrations this year.

    This should be the last time I have to go based on the latest ruling.

    I suggest that anyone who is looking to get down to 10 years, get the following from the court and court reporter.

    Written guilty plea (colloquy)
    Transcript from plea date and sentencing date.
    Any SOAB or Megan’s law docs from plea date

    I was saved by a doc that had all my Megan’s law rules on it that I have to initial 20 times. Within that “Addendum” also laid out the ten year registration period for my offense in 2005

    • Jim says:

      Thanks Mike!

      I did my guilty plea in march of 2004. However it was out of state in Ohio. But still my plea was 2 counts of the same offense. Both are tier 1. I was given a 10 yr registration and it was clearly written into my agreement. The judge in my case issued me a letter in 2014 stating that i had fulfilled my 10 yr registration requirements and was released from registering. However, PA has chosen not to recognize this and kept me at tier 3. I am hoping with these latest rulings that i will be removed from reporting as i should have been back in 2014.

  26. J says:

    B- Free;

    Could you explain the latest Pa. Supreme ruling (Shower, Marinez and Grace from yesterday?)

    Would it also apply to those that had plea deals prior to 2012 for non registerable offenses but we’re then captured by Sorna?

    Thank you

  27. Mike says:

    Good news. The Martinez case came out today and the pa Supreme Court that pleas that included 10 year registration period can’t be changed by Sorna.

    This is great news, if you and your lawyer had the good sense to include those little words “10 years” in your plea.

    If you are in the same situation that I am and trying to get back to 10 years, you might have to take a trip to the court house and get all your docs.

    Wish you all luck!! Mike

    http://www.pacourts.us/assets/opinions/Supreme/out/J-29A-2016mo%20-%2010282682412017349.pdf?cb=1

  28. Jim says:

    i called down there this morning to inquire about my file and was told mine is marked for review and she said some have already been changed but there are still thousands left and there is only a small number of individuals working on them so it will take some time. i figured i would check before having to go down to psp and do my quarterly check-in.

  29. Mike says:

    I did use the same attorney that argued for A.S. He let me know that it would have happened anyway and that all cases are being reviewed in accordance with that case.

    The next fight might be a little more involved and I will keep this site updated as to the approach that we take. It all depends on what happens with the pa v. GABRIEL J. MARTINEZ

    Thanks for a great forum for all! This is the first place I go whenever something happens in these matters.

  30. Mike says:

    I am very happy to report that I have been moved from teir e to teir 1!!!

    I am however in a fight to get back to my original 10 year status and am awaiting the PASC decision on Marteniz.

  31. Breeziemontana says:

    I would like to ask if my friends 10 yrs was up in July 2016, does this mean it’s over for them? Or do they have to wait for the PSP to change it since they can’t afford a lawyer? Thank you

  32. SB says:

    Has there been a decision yet from the PASC on the unconstitutionality of Tier 1 registrants who were sentenced to 10 years registration and then Tier 1 being moved to 15 years registration in December of 2012? Has this been decided on yet? These findings might shed some positive light on that outcome perhaps…

    • Mike says:

      the cases are still awaiting a ruling. McGinnis, shallow and Martinez. These series of cases are going to decide if the people that were registered under ML 1 and 2 and were first assigned a 10 year registration and were moved to lifetime under ML 3 and eventually to a tier 3 under AWA are able to be moved back to 10 years as agreed during the plea process.

      Also those cases were decided in the appellate court in favor of the ex-offenders and it was the state that appealed. Just like in A.S. And Lutz Morrison.

      Hope this helps you out?

  33. Jim says:

    so does this ruling mean those unfortunate individuals who has their tier changed from I to III because they had 2 charges on them will be automatically reverted back to their original status? and in some cases those who were done registering and then had to be put back on the list because of the 2 more or more statute will now be once again removed?

  34. Mike says:

    Thanks for posting the word, this will make a lot of ex-offenders in PA very happy. It is very disheartening to plan your life around poor choices in a 10 or 15 year holding pattern to wake up one morning to find out that you have been black listed for the rest of your life.

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