J-S01044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH ALLEN LUCAS                          :
                                               :
                                               :   No. 1112 MDA 2018
    APPEAL OF: PENNSYLVANIA BOARD              :
    OF PROBATION AND PAROLE                    :

                  Appeal from the Order Entered June 8, 2018
      In the Court of Common Pleas of Clinton County Criminal Division at
                        No(s): CP-18-CR-0000360-2004


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 11, 2019

       The Pennsylvania Board of Probation and Parole (Board) appeals from

an order of the Court of Common Pleas of Clinton County (trial court) directing

it to pay fees associated with Keith Allen Lucas’s (Lucas) Sexually Violent

Predator (SVP) counseling. It contends that the trial court erred in finding

that it was the entity required to pay those costs because it was not the “parole

office” upon which 42 Pa.C.S. § 9799.36(a) imposed costs, but rather those

costs must be imposed on the local county parole office. For the following

reasons, we affirm the trial court.



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*   Retired Senior Judge assigned to the Superior Court.
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       In 2005, Lucas pled guilty to one count of sexual assault and was

sentenced to fifty-four months to ten years’ incarceration. Lucas was deemed

an SVP making him subject to the Sexual Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.42.1

       In addition to being subject to lifetime registration and quarterly in-

person reporting requirements, SVPs are subject to mandatory monthly

counseling sessions, codified as follows:

       (a)    General rule.--A sexually violent predator who is not
              incarcerated shall be required to attend at least monthly
              counseling sessions in a program approved by the board and
              be financially responsible for all fees assessed from the
              counseling sessions.      The board2 shall monitor the
              compliance of the sexually violent predator. If the sexually
              violent predator can prove to the satisfaction of the court
              that the sexually violent predator cannot afford to pay for
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1 Over the years, due to both legislative amendments made to the Act and
court decisions that struck down certain of its provisions, SORNA has been
both amended or reenacted several times. At all times before the trial court,
the provisions cited above were applicable. However, after the trial court
decision, 42 Pa.C.S. §§ 9799.51-9799.75, effective June 12, 2018, was added.
These provisions apply to individuals who were convicted of certain offenses
committed on or after April 22, 1996, but before December 20, 2012, and
whose period of registration under former sexual offender registration laws
had not yet expired. 42 Pa.C.S. § 9799.52. The provisions in that subchapter
are identical to the provisions at issue here.
2   The term “board” as used in SORNA is defined as “The State Sexual
Offenders Assessment Board.” 42 Pa.C.S. § 9799.12. Its members are
composed of psychiatrists, psychologists and criminal justice experts, each of
whom is an expert in the field of the behavior and treatment of sexual
offenders and whose members are appointed by the Governor. 42 Pa.C.S. §
9799.35.




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              the counseling sessions, the sexually violent predator shall
              nonetheless attend the counseling sessions, and the
              parole office shall pay the requisite fees.

42 Pa.C.S. § 9799.36(a) (emphasis and footnote added).3

        Lucas completed his term of incarceration in 2015, but at some point

became unable to pay for counselling and the associated fees and filed a

motion requesting that costs be paid by someone else. The trial court found

that he was unable to pay and, over its objection, found that the Board was

the “parole office” required to pay for the mandated counseling because it was

the only agency that had ever supervised Lucas on parole. The Board then

filed this appeal.4, 5

        Not disputing that Lucas is unable to pay, the Board contends that the

trial court erred when it ordered the Board to pay the counseling fees because

it is not the “parole office” required to pay such fees. It contends that the

“parole office” refers to the county parole office. The Board contends that the


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3   See also 42 Pa.C.S. § 9799.70.

4 Because the Board is a state administrative agency, we issued a rule to show
cause why this appeal should not be transferred to the Commonwealth Court.
We agree with the Board’s response that because the appeal involves an order
of the type not listed at 42 Pa. C.S. § 762, which gives the Commonwealth
Court jurisdiction over appeals of Commonwealth agencies, jurisdiction over
this appeal properly resides with us.

5 When addressing a question of statutory construction, our scope of review
is de novo and the scope of our review is plenary. Commonwealth v.
Barbaro, 94 A.3d 389, 391 (Pa. Super. 2014) (citation omitted).




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General Assembly clearly meant the county parole office6 because it did not

use the term “Board of Probation and Parole” when it provided who was to

pay.

       The term “parole office” is not defined in SORNA; it could refer to a local

board of probation and parole office, the county parole office or, as found by

the trial court, both, i.e., the office that had supervisory control over the SVP.

When the meaning, as here, is not clear, unambiguous or is indefinite, our

cardinal rule is to ascertain and effectuate the intent of the Legislature. See

1 Pa.C.S. § 1921(a).        In doing so, we do not interpret statutory words or

phrases in isolation, but must read them with reference to the context in which

they appear. Moreover, we may also consider such factors as the mischief to

be remedied, see 1 Pa.C.S. § 1921(c)(3); the object to be attained, see 1

Pa.C.S. § 1921(c)(4); and the consequences of a particular interpretation, see

1 Pa.C.S. § 1921(c)(6).

       Throughout SORNA, though, the General Assembly specifically and

separately identified the board of probation and parole and the county office

of probation and parole when imposing obligations and duties. See, e.g., 42

Pa. C.S. § 9799.13 (requires registration by an inmate being supervised either

by the Pennsylvania Board of Probation and Parole or by the county probation



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6  The Board appeared in the proceeding at the request of the trial court.
Clinton County or its parole office is not a party to this appeal.


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or parole); 42 Pa.C.S. § 9799.16(d) (requiring cooperation between the

Pennsylvania State Police, State and county correctional institutions, the

Pennsylvania Board of Probation and Parole, the county office of probation and

parole, and any court with jurisdiction over a sexual offender); 42 Pa. C.S. §

9799.30 (“The Pennsylvania Board of Probation and Parole and county

probation authorities may impose supervision conditions that include tracking

through global positioning system technology”); 42 Pa.C.S. § 9799.31(6)

(“The following entities shall be immune from liability for good faith conduct

under this subchapter: . . . . County probation and parole offices and their

agents and employees.”)

      With regard to SVPs within their jurisdiction, SORNA imposes obligations

on government actors that vary depending on its particular level of interaction

with the offender. For example, 42 Pa.C.S. § 9799.22(d) requires entities to

alert the Pennsylvania State Police when an offender refuses to provide

required information. Those bodies include the court with jurisdiction over the

sexual offender, the Board and the county office of probation and parole.

Additionally, 42 Pa. C. S. § 9799.19 places on each agency -the Board or the

county office of probation and parole – to obtain information needed for the

SVP to be included on the state registry where the individual is being

supervised under the compact for committing a sexually violent offense in

another jurisdiction or foreign country.




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       What those above-cited provisions show is that if the General Assembly

wanted to provide that either the Board or the county board of probation and

parole was the agency exclusively responsible for all counselling fees, it knew

how to do so. The provisions also show that the General Assembly wanted

the entity with control over the SVP to be responsible for his or her compliance

with SORNA. This means that the agency charged with supervision would be

required to pay for counselling when the trial court determines that the SVP

is financially unable to do so.                This interpretation is in accord with

Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007), where our Supreme Court

quoted the challenged language and suggested that where an SVP cannot pay

“the responsible parole office shall pay.” Id. at 70 n.17 (emphasis added).7

       In this case, 42 Pa.C.S. § 9799.36(a) provides that the "parole office" is

responsible for the payment of counseling sessions for a sexually violent


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7 As to the Board’s argument that it is good public policy to require the local
parole office to pay for counseling because it would ensure that trial courts
would conduct a robust investigation as to whether the SVP could not pay for
those sessions, that implies that the trial court’s inquiry would be less than
robust if the state would have to pay. Aside from being somewhat insulting
to trial courts, if the trial court erroneously found that the person did not have
the money to pay for the counseling fees when that person did, then an appeal
could be taken to this Court to rectify that error.

The Board also argues that because the SVP resides in a local community, we
should interpret the parole office to be the county parole office because SVP
counselling benefits the local community, which should pay for that treatment.
What that argument ignores is that SVP supervision is effectuated at a
statewide level, and it is good public policy for the Board to pay for such
treatment.


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predator who cannot afford to pay such fees.       In the underlying criminal

matter, Lucas was supervised solely by the Board. The Clinton County Adult

Probation and Parole Office never exercised any control over Lucas. Because

we hold that the parole office that has supervision over the SVP is responsible

for SORNA counseling fees and the Board was solely in charge of supervision

over Lucas, we affirm the trial court’s order imposing those fees on the Board.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/11/2019




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