            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Victor Young III,                                  :
                        Petitioner                 :
                                                   :
                v.                                 :
                                                   :
Pennsylvania State Police,                         :    No. 448 M.D. 2017
                  Respondent                       :    Submitted: October 12, 2018


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                                 FILED: December 14, 2018


                Before the Court are the Preliminary Objections to the Amended
Petition for Review (Preliminary Objections) filed by the Pennsylvania State Police
(PSP) in this Court on June 6, 2018 in response to Petitioner Victor Young III’s
(Petitioner) Amended Petition for Review Per Commonwealth Court Order of April
24, 2018 (Amended Petition). Representing himself, Petitioner seeks relief from
sexual offender registration requirements. PSP challenges Petitioner’s standing and
asserts that he fails to state a cognizable claim because he is not yet subject to
registration requirements while he remains incarcerated. For the reasons that follow,
we overrule PSP’s Preliminary Objections.
                On April 3, 2007, Petitioner entered a plea of guilty but mentally ill1 to
one count of rape and one count of involuntary deviate sexual intercourse in the

      1
          A plea of guilty but mentally ill has the effect of a guilty plea.
Court of Common Pleas of Erie County (court of common pleas). On August 1,
2007, the court of common pleas imposed an aggregate sentence of 17 to 34 years
of incarceration.2 On September 27, 2017, Petitioner filed his Petition for Writ of
Mandamus (Petition) claiming that, pursuant to Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), cert. denied sub nom. Pennsylvania v. Muniz, __ U.S. __, 138 S.
Ct. 925 (2018),3 he cannot be subjected to the registration and notification
requirements of the Sex Offender Registration and Notification Act (SORNA).4 See
Petition at 3-6 (pagination supplied).          On April 30, 2018, Petitioner filed the
Amended Petition.5 On June 6, 2018, PSP filed the instant Preliminary Objections
that argue: (1) Petitioner lacks standing; and (2) Petitioner has failed to state a claim
upon which relief can be granted or, in the alternative, has stated a claim which is
moot. See Preliminary Objections at 2-4. On July 27, 2018, Petitioner filed his
Answer to Respondent’s Preliminary Objections to the Amended Petition for Writ
of Mandamus (Answer) and his Brief in Support of the Answer to Respondent’s
Preliminary Objections. On August 14, 2018, the Court filed an order directing the

       2
          Rape and Involuntary Deviate Sexual Intercourse were both Tier III sexual offenses
subject to lifetime registration requirements under Megan’s Law III, the predecessor of the Sex
Offender Registration and Notification Act (SORNA), which was in effect at the time of
Petitioner’s convictions. See Former 42 Pa.C.S. §§ 9799.14(d)(2) & 9799.15(a)(3).

       3
        In Commonwealth v. Muniz, 164 A.3d 1189, 1218 & 1223 (Pa. 2017), our Supreme Court
determined that the retroactive application of increased registration requirements enacted by
SORNA violated the United States and Pennsylvania Constitutions.

       4
           42 Pa.C.S. §§ 9799.10–9799.41.

       5
          The Amended Petition elaborates on Petitioner’s claim that he cannot be subjected to
Megan’s Law III, 42 Pa.C.S. §§ 9791-9799.9, registration requirements by arguing that, because
our Supreme Court struck down the statute that enacted Megan’s Law III as violative of the single
subject rule in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), Megan’s Law III was void ab
initio. See Amended Petition at 3-5 (pagination supplied).

                                               2
Preliminary Objections to be decided on briefs. The parties have each submitted
briefs, and the matter is now ripe for determination by this Court.6
                PSP characterizes its first preliminary objection as alleging that
Petitioner lacks standing. See Preliminary Objections at 2-3. PSP argues that,
because Petitioner is currently incarcerated and has no actual obligation to register
as a sex offender until his release from prison, any challenge to his future registration
requirement is non-justiciable until that time. Id. We disagree.
                Previously, in Gregory v. Pennsylvania State Police, 160 A.3d 274 (Pa.
Cmwlth. 2017), this Court faced a nearly identical PSP preliminary objection to a
still-incarcerated individual’s petition seeking to avoid SORNA compliance. In that
matter, we noted that such an allegation “could equally be construed as asserting a
ripeness challenge because [PSP’s] objection focuses on the timing of the action, not
whether Petitioner is the right person to assert the cause of action.” Id. at 276. We
further explained that, “since ripeness overlaps substantially with standing, and the
difference between the two concepts is one of the most confused areas of the law,
the Court will address the [PSP preliminary objection] as if it generally alleges that
there is no case or controversy and will analyze both standing and ripeness.” Id.
(internal quotations, brackets, and citation omitted).                    The same analysis is
appropriate in the instant matter.


       6
           When ruling on preliminary objections,

                the courts accept as true all well-pleaded allegations of material facts
                as well as all of the inferences reasonably deducible from the facts.
                For preliminary objections to be sustained, it must appear with
                certainty that the law will permit no recovery, and any doubt must
                be resolved in favor of the non-moving party.

Gregory v. Pa. State Police, 160 A.3d 274, 276 (Pa. Cmwlth. 2017).

                                                   3
             Our Supreme Court has noted the following regarding standing and
ripeness:

             [T]here is considerable overlap between the two doctrines,
             especially where the objecting party’s claim that the
             matter is not justiciable is focused on arguments that the
             interest asserted by the petitioner is speculative, not
             concrete, or would require the court to offer an advisory
             opinion.

             Generally, the doctrine of standing is an inquiry into
             whether the petitioner filing suit has demonstrated
             aggrievement, by establishing a substantial, direct and
             immediate interest in the outcome of the litigation. . . . In
             this sense, a challenge that a petitioner’s interest in the
             outcome of the litigation is hypothetical may be pled either
             as determinative of standing or restyled as a ripeness
             concern although the allegations are essentially the same.
             Standing and ripeness are distinct concepts insofar as
             ripeness also reflects the separate concern that relevant
             facts are not sufficiently developed to permit judicial
             resolution of the dispute.

Yocum v. Pa. Gaming Control Bd., 161 A.3d 228, 234 (Pa. 2017) (internal citations
and quotations omitted).
             “[T]he doctrine of ripeness mandates the presence of an actual
controversy and requires consideration of whether the issues are adequately
developed and the hardships that the parties will suffer if review is delayed.” Bucks
Cty. Servs., Inc. v. Phila. Parking Auth., 71 A.3d 379, 390 (Pa. Cmwlth. 2013)
(internal quotations and citation omitted). Additionally, “[f]or a party to have
standing to initiate an action under Pennsylvania’s prudential standing principles,
the underlying controversy must be real and concrete, such that the party initiating
the legal action has, in fact, been ‘aggrieved.’” Gregory, 160 A.3d at 276 (internal

                                          4
quotations and citation omitted). “An aggrieved party is one who can establish a
substantial, direct and immediate interest in the outcome of the litigation.” Id.
(internal quotations and citation omitted).

             A party’s interest is substantial when it surpasses the
             interest of all citizens in procuring obedience to the law; it
             is direct when the asserted violation shares a causal
             connection with the alleged harm; finally, a party’s interest
             is immediate when the causal connection with the alleged
             harm is neither remote nor speculative.

Id. at 276-77. In determining ripeness, courts determine “whether the issues are
adequately developed for judicial review and what hardships the parties will suffer
if review is delayed.” Id. at 277.
             Here, no dispute exists that Petitioner is currently in prison serving a
17- to 34-year sentence based on a guilty but mentally ill plea to one count of rape
and one count of involuntary deviate sexual intercourse. See Amended Petition at
1; Preliminary Objections at 2; Answer to Respondent’s Preliminary Objections to
the Amended Petition for Writ of Mandamus at 4. Under either SORNA or Megan’s
Law III, these sexual offenses require lifetime registration as a sexual offender. See
42 Pa.C.S. §§ 9799.14(d)(2) & 9799.15(a)(3). Further, there is no dispute that
Petitioner is not eligible for parole until the year 2023. See Amended Petition at 1;
Preliminary Objections at 2-3; Answer to Respondent’s Preliminary Objections to
the Amended Petition for Writ of Mandamus at 4.
             PSP contends Petitioner is not adversely impacted by SORNA because,
as he is still incarcerated, he is not yet subject to SORNA’s registration requirements.
See Preliminary Objections at 2-3. We disagree.



                                           5
             Sexual offenders have standing to challenge the registration
requirements to which they will be subject upon their release from prison. See
Gregory, 160 A.3d at 276; see also Van Doren v. Mazurkiewicz, 695 A.2d 967, 972
(Pa. Cmwlth. 1997) (holding inmate had pre-release standing to challenge Megan’s
Law I registration requirements). In Gregory, this Court concluded that, despite not
having pre-release registration obligations under SORNA, an inmate had standing
to challenge SORNA because (1) he had a substantial and direct interest in
determining whether SORNA was unconstitutional as applied to him, and (2) the
harm the inmate would suffer was not speculative because it would be imposed by
operation of law upon his release from prison. Gregory, 160 A.3d at 277. Likewise,
the Gregory Court found ripe for disposition an inmate’s claim regarding future
SORNA requirements because “waiting for SORNA to be imposed . . . would add
little to this Court’s review[.]” Id. at 278.
             Here, like the inmate in Gregory, Petitioner was sentenced under a
previous version of Megan’s Law and has a direct and substantial interest in
determining the constitutionality of the application of current registration
requirements to his case. See Muniz, 164 A.3d at 1218 & 1223. Further, Petitioner
does not claim a speculative or remote harm. By operation of law, Petitioner’s name
will be included upon the PSP’s sexual offender’s registry website upon his release
from prison. The fact that his release may not be imminent does not render
Petitioner’s harm remote. Additionally, the matter should be resolved prior to
Petitioner’s release from incarceration, as delaying review will not assist our
resolution. Petitioner has standing to seek relief, and the threatened harm renders
his claim ripe.     Accordingly, PSP’s first preliminary objection claiming that
Petitioner lacks standing to sue is overruled.


                                            6
              In its second preliminary objection, PSP alleges that the Amended
Petition fails to state a claim, or, alternatively, the claim is moot because it seeks
relief only from registration requirements established by Megan’s Law III and/or
SORNA. See Preliminary Objections at 3-4. PSP agrees that neither Megan’s Law
III nor SORNA should be applied to Petitioner, but argues instead that the recently-
enacted registration scheme established by the Act of February 21, 2018, P.L. 27
(Act 10) and the Act of June 12, 2018, P.L. 140, No. 29 (Act 29) currently does
apply to Petitioner. Preliminary Objections at 3-4; see also PSP’s Brief at 4-6. PSP
argues, however, that because the Amended Petition seeks relief only from Megan’s
Law III registration requirements, and not subsequent versions, the Amended
Petition fails to state a claim. Preliminary Objections at 3-4; see also PSP’s Brief at
4-6. Petitioner argues that he has stated a claim because SORNA and its subsequent
replacements/amendments are amendments of the previous iterations of
Pennsylvania’s Megan’s Laws, the imposition of which he challenges. Petitioner’s
Brief at 7.
              Our Supreme Court held in Muniz that certain retroactive applications
of SORNA that increased sexual offenders’ registration requirements violated the
United States and Pennsylvania Constitutions. See Muniz. No dispute exists that
Petitioner’s convictions predate SORNA.         Therefore, questions regarding the
constitutionality of the application of SORNA or its amendments to Petitioner’s
convictions raise a claim. That SORNA has yet to be applied to Petitioner does not
bar relief. See Gregory. Accordingly, we overrule PSP’s second preliminary
objection to the extent it raises a claim in the nature of a demurrer to the Amended
Petition.



                                          7
             For the foregoing reasons, we overrule PSP’s Preliminary Objections.7, 8



                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       7
         Procedurally, we note that, because PSP concedes that Petitioner should not be required
to comply with the sexual offender registration requirements of either Megan’s Law III or the
version of SORNA Petitioner challenges in his Petition, Petitioner may be entitled to the relief he
seeks. Preliminary Objections at 3-4; see also PSP’s Brief at 4-6. However, given this matter’s
procedural posture and the pleadings currently before us, we may not grant such relief at this time.
       8
          We further acknowledge that, following our Supreme Court’s decision in Muniz, the
Generally Assembly amended SORNA through the enactment of Act 10 and Act 29, which now
collectively represent the currently operable version of SORNA outlining registration
requirements for sexual offenders in Pennsylvania. However, because neither the Petition nor the
Amended Petition seek relief under either Act 10 or Act 29, we offer no opinion as to the
application of these acts here.

                                                 8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Victor Young III,                      :
                    Petitioner         :
                                       :
            v.                         :
                                       :
Pennsylvania State Police,             :   No. 448 M.D. 2017
                   Respondent          :

                                  ORDER


            AND NOW, this 14th day of December, 2018, the Pennsylvania State
Police’s June 6, 2018 Preliminary Objections to the “Amended Petition for Review
Per Commonwealth Court Order of April 24, 2018” (Amended Petition) are
OVERRULED.          The Pennsylvania State Police shall file an Answer to the
Amended Petition within 30 days of this Order.




                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
