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                             2018 PA Super 275

 COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                              :                  PENNSYLVANIA
                              :
          v.                  :
                              :
                              :
 JOSHUA DENAPOLI              :
                              :
               Appellant      :             No. 950 MDA 2017
                              :

                Appeal from the Order Entered May 9, 2017
    In the Court of Common Pleas of Centre County Criminal Division at
                     No(s): CP-14-CR-0000350-2001,
                         CP-14-MD-0000170-2017


BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.

OPINION BY BOWES, J.:                            FILED OCTOBER 10, 2018

     Joshua DeNapoli appeals from the order denying his petition for a limited

access order pursuant to 18 Pa.C.S. § 9122.1. We affirm.

     In 2001, Appellant was arrested and charged with rape and sexual

assault. A jury acquitted him of the rape charge, but a mistrial was declared

as to the sexual assault charge.     The Commonwealth filed an amended

criminal information adding a charge of indecent assault, graded as a

misdemeanor of the second degree. In 2002, Appellant entered a plea of nolo

contendre to the indecent assault charge, and was sentenced to two years

probation. The sexual assault charge was nolle prossed.

     At the time of Appellant’s plea and sentencing, a conviction of indecent

assault did not require registration as a sex offender under Pennsylvania law.

However, in 2011, the Pennsylvania legislature enacted the Sexual Offenders

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.41,

effective December 20, 2012, which designated indecent assault as an offense

that required registration. In 2016, the Pennsylvania legislature enacted 18

Pa.C.S. § 9122.1, pursuant to which a qualified defendant may petition for a

limited access order that would restrict the dissemination of his or her criminal

history record information. Relevantly, § 9122.1(b) enumerates certain types

of convictions which are ineligible for a limited access order, including offenses

designated   by SORNA as         requiring     sex   offender    registration.     See

§ 9122.1(b)(9) (“An order for limited access under this section shall not be

granted to an individual who has been convicted at any time of any . . . offense

which requires registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to

registration of sexual offenders.”)).

      On January 27, 2017, Appellant filed a petition for an order limiting

access to his indecent assault conviction pursuant to § 9122.1.                    The

Commonwealth opposed the petition on the basis that indecent assault is an

offense that requires registration under SORNA, and therefore Appellant’s

conviction   is   ineligible   for   a   limited     access     order   pursuant    to

§ 9122.1(b)(9). On March 30, 2017, the trial court denied Appellant’s petition.

Appellant filed a timely motion for reconsideration. The trial court granted

reconsideration and held a hearing.       The trial court thereafter denied the

petition on May 7, 2017. This timely appeal followed.

      Appellant raises the following issue for our review:


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            Whether the trial court erred in denying Appellant’s petition
      for order for limited access pursuant to Pa.R.Crim.P. 791 and 18
      Pa.C.S. § 9122.1 since [he] satisfied all of the requirements for
      such an order, including the requirement that [he] has never at
      any time been convicted of an offense which requires registration
      under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of
      sexual offenders), and where other similarly situated petitioners
      were granted limited access relief in the same jurisdiction?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      Appellant’s issue presents a question of first impression. As it involves

a matter of statutory interpretation, our scope of review is plenary and our

standard of review is de novo. See Commonwealth v. Taylor, 104 A.3d

479, 486 (Pa. 2014).

      Section 9122.1 provides for the entry of an order, under specified

circumstances, limiting the dissemination of a particular defendant’s criminal

history.

      (a)    General rule.— The following shall apply:

           (1) Notwithstanding any other provision of this chapter, upon
           petition of a person who has been free of arrest or prosecution
           following conviction or final release from confinement or
           supervision, whichever is later, for a period of 10 years, the
           court of common pleas in the jurisdiction where the conviction
           occurred may enter an order that criminal history record
           information maintained by any criminal justice agency
           pertaining to a conviction for a misdemeanor of the second
           degree, a misdemeanor of the third degree or an ungraded
           offense which carries a maximum penalty of no more than two
           years be disseminated only to a criminal justice agency or a
           government agency as provided in section 9121(b.1) and (b.2)
           (relating to general regulations).

           (2) Except when requested or required by a criminal justice
           agency, or by and for the official use of a government agency
           described in section 9121(b.1) or 9124(a) (relating to use of

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          records by licensing agencies), no individual shall be required
          nor requested to disclose information about the person’s
          criminal history records that are the subject of a court order
          for limited access granted under this section.

      (b) Exceptions.— An order for limited access under this section
        shall not be granted to an individual who has been convicted at
        any time of any of the following:

               ....

          (9) An offense which requires registration under 42 Pa.C.S. Ch.
          97 Subch. H (relating to registration of sexual offenders).

18 Pa.C.S. § 9122.1(a), (b)(9).

      Pennsylvania Rule of Criminal Procedure 791, adopted in 2016,

delineates the procedures for requesting and entering an order for limited

access.   Subsections (a)(2)(a)-(k) and (3) set forth the information and

documentation which must be included in a petition seeking a limited access

order. Subsection (b)(1) provides that, in response to such a petition, the

Commonwealth may consent or object to the petition, or do nothing.

Subsection (b)(2) provides that the trial court must grant or deny the petition.

      Appellant asserts that he is entitled to an order limiting access to his

2002 indecent assault conviction because his conviction was graded as a

second-degree misdemeanor and he has been free from arrest or prosecution

for more than ten years, as required by § 9122.1(a)(1). Appellant points out

that, at the time of his plea and sentencing in 2002, his indecent assault

conviction did not require registration as a sexual offender. Appellant argues

that indecent assault did not become an offense requiring registration until


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after he had completed his probationary sentence. Since he has never been

convicted of a crime that, at the time of conviction, required him to register

as a sexual offender, Appellant contends that his 2002 indecent assault

conviction is eligible for a limited access order.      Appellant asserts that

application of § 9122.1(b)(9) to his 2002 conviction is prohibited by

Commonwealth v. Richardson, 784 A.2d 126 (Pa.Super. 2001) (holding

that the registration requirement under Megan’s Law I did not apply to a

sexual offender who previously served the full sentence for his sex offense by

the date of the statute’s enactment), and Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017) (concluding that a retroactive application of SORNA’s

registration provisions violates the ex post facto clause of the Pennsylvania

Constitution).

      Appellant further claims that because the word “requires,” as used in

§ 9122.1(b)(9), is “conjugated in present indicative,” it should be construed

to mean only offenses which required registration on the date of conviction.

Appellant’s brief at 10, 19. While Appellant recognizes that subsection (b)(9)

broadly applies “to an individual who has been convicted at any time,” he

argues that this phrase “is used as a modifying subordinate clause of the word

‘individual,’ meaning [Appellant].”   Appellant’s brief at 18.    According to

Appellant, “the phrase ‘which requires registration under 42 Pa.C.S. Ch. 97

Subch. H (relating to registration of sexual offenders)’ is a second modifying

subordinate clause of the word[s] ‘an offense’ that relates to the ‘individual;’


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namely [Appellant].” Appellant’s brief at 19. Appellant avers that the trial

court erred by considering the current version of SORNA without giving

consideration to Appellant, as the “individual.” Id. Finally, Appellant argues

that § 9122.1 should be categorized as a penal statute, and that the rule of

lenity should apply to its interpretation. Id. at 19-21. In support, he points

out that § 9122.1 appears in the Crimes Code, and the process for obtaining

a limited access order is governed by Rule 791 of the Rules of Criminal

Procedure. Id. at 20.

      We first consider Appellant’s claim that § 9122.1 is penal in nature.

Notably, Appellant cites no relevant case law supporting his bald assertion

that the statute is punitive. Instead, he merely cites Richardson and Muniz

for the proposition that retroactive application of SORNA’s registration

requirements violates the ex post facto laws of the Pennsylvania Constitution.

      Here, we are not dealing with SORNA or the retroactive application of

its registration requirements. Appellant was not required to register as a sex

offender under SORNA at the time of his 2002 indecent assault conviction, nor

is he retroactively required to do so now. Thus, Richardson and Muniz are

inapposite. Simply because § 9122.1 refers to SORNA in order to identify

certain convictions which the General Assembly has deemed ineligible for a

limited access order does not, ipso facto, render SORNA applicable to

Appellant’s conviction. Appellant’s suggestion otherwise is meritless.




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      Moreover, our Supreme Court has explained that a limited access relief

is “closely related” and “similar” to expungement relief, which is civil in nature:

      Act [5 of 2016] originated from a proposal for an expansion of the
      current expungement statute to cover second and third degree
      misdemeanors but was subsequently modified to introduce a new
      concept, a petition for limited access. The Act added new Section
      9122.1 to the Crimes Code, 18 Pa.C.S. § 9122.1, that provides
      that a qualified defendant may petition for an order that would
      allow only certain entities access to criminal history record
      information, primarily criminal justice or other government
      agencies. The offenses in question are, with certain exceptions,
      misdemeanors of the second and third degree and ungraded
      offenses carrying a maximum penalty of no more than two years.

            ....

      Because the Act requires a petition to be filed with the court and
      subsequent order to be produced, there was a need for procedural
      rules implementing the Act. Given the history of the Act, the
      Committee concluded that the concept of limiting access to a
      conviction record is closely related to expungement and that the
      procedures should be similar. The procedures for obtaining a
      limited access order contained in new Rule 791 are derived from
      the court case expungement procedures in Rule 790. These new
      procedures are in a separate rule rather than an addition to the
      expungement rule since the nature and purpose of this procedure
      is different from expungement and placing it in the same rule as
      expungement procedures might have led to confusion. . . .

In re: order Adopting New Rule 791, 2016 Pa. LEXIS 2542, at *25 (Pa.

2016).

      Thus, limited access relief was originally intended to be an expansion of

expungement relief, but now exists as a “closely related” parallel form of relief.

Notably, despite the fact that expungement relief is provided by a criminal

statute, 18 Pa.C.S. § 9122, and the procedure for obtaining expungement

relief is governed by Rule 790 of Pennsylvania Rules of Criminal Procedure,

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“an expungement hearing is not a criminal proceeding and the relief sought is

civil in nature.”   Commonwealth v. Moto, 23 A.3d 989, 997 (Pa. 2011)

(citing Commonwealth v. Bailey, 419 A.2d 1351, 1352 (Pa.Super. 1980)

(“Although a petition to expunge finds its genesis in criminal charges against

the petitioner, the relief requested is, in essence, civil in nature . . .”)). Under

our statutory scheme, we believe the same rationale extends to limited access

orders. Moreover, penal statutes are statutes that define criminal offenses

and specify their corresponding fines and punishment. See Commonwealth

v. Henderson, 663 A.2d 728, 733 (Pa.Super. 1995). Section 9122.1 does

neither. Rather, it offers a form of civil relief to qualified individuals under a

narrow set of circumstances. Thus, we conclude that the prospect of limited

access relief provided by § 9122.1, and the procedure for seeking a limited

access order governed by Rule 791 of Pennsylvania Rules of Criminal

Procedure, are civil, rather than penal, in nature.

      We next look to the specific provisions of § 9122.1. When interpreting

statutory provisions, we aim to ascertain and effectuate the intent of the

General Assembly. 1 Pa.C.S. § 1921(a). The best indication of the General

Assembly’s intent may be found in the plain language of the statute.

Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011). “When the words

of a statute are clear and free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). We

will only look beyond the plain language of the statute when words are unclear


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or ambiguous, or the plain meaning would lead to “a result that is absurd,

impossible of execution or unreasonable.” Id. at § 1922(1). Therefore, when

ascertaining the meaning of a statute, if the language is clear, we give the

words their plain and ordinary meaning. Commonwealth v. Hall, 80 A.3d

1204, 1211 (Pa. 2013).

      Here, the statutory language of § 9122.1 is explicit and must be

construed as written. The statute embraces two distinct approaches to limited

access relief: situations where limited access to criminal history is possible in

the discretion of the trial court, and situations where a limited access order

cannot be granted under any circumstances.         Subsection (a)(1) describes

situations where access to criminal record history may be limited in the

discretion of the trial court. 18 Pa.C.S. § 9122.1(a)(1) (“upon petition of a

person who has been free of arrest or prosecution . . . for a period of 10 years,

the court . . . may enter an order that criminal history record information . . .

be disseminated only to a criminal justice agency or a government agency”).

Contrarily, subsection (b) describes situations where limited access to criminal

history records can never be granted. See id. at (b) (“An order for limited

access under this section shall not be granted to an individual who has been

convicted at any time of any of the following . . .”).

      Notably, subsection (b)(9) focuses upon whether the petitioner has been

previously convicted “at any time” of any of the crimes requiring sexual

offender registration under Chapter 97, subchapter H of the Crimes Code,


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Registration of Sexual Offenders (§§ 9791-9799.42). The operative words of

subsection (b) are “at any time,” and in analyzing these words, we must

construe them according to their common usage. See Commonwealth v.

Morris, 958 A.2d 569, 579 (Pa.Super. 2008) (concluding that the phrase “at

any time” was unambiguous); see also Commonwealth v. Thompson, 106

A.3d 742, 761 (Pa.Super. 2014) (same).

     Notwithstanding the inclusion of the phrase “at any time,” Appellant

asks us to construe Section 9122.1(b) in a manner which limits application of

subsection (b)(9) to those offenses for which the offender was actually

required to register upon conviction. We decline to do so. Subsection (b)(9)

does not limit the application of subsection (b)(9) to only those petitioners

who have, in fact, been required to register as a sexual offender. Nor does it

make any distinction between convictions that took place prior to or after its

enactment in 2016.      Rather, the plain and unambiguous language of

subsection (b)(9) requires only that the trial court determine whether the

petition relates to a conviction designated as requiring sexual offender

registration under Chapter 97, subchapter H of the Crimes Code.       We are

bound by the language of the statute, and cannot insert additional

requirements that the legislature has not included. See Thompson, supra

at 761.




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       In the instant matter, Appellant entered a plea of nolo contendre in 2002

to indecent assault, graded as a second-degree misdemeanor.1                When

Appellant filed his petition for a limited access order in 2017, indecent assault,

graded as a second-degree misdemeanor, was (and continues to be)

considered an offense requiring sexual offender registration under SORNA. 2

Thus, the trial court properly determined that Appellant’s 2002 conviction of

indecent assault is ineligible for a limited access order pursuant to

§ 9122.1(b)(9). Accordingly, we find no error in the trial court’s denial of

Appellant’s petition for a limited access order.

       Order affirmed.




____________________________________________


1 Notably, at the time Appellant pled nolo contendre to indecent assault in
2002, § 9122.1 had not been enacted, and Pennsylvania law did not provide
for limited access relief. Additionally, at the time of his 2002 conviction,
Appellant was ineligible for expungement relief under § 9122, as the General
Assembly had expressly prohibited courts from expunging convictions for
indecent assault. See 18 Pa.C.S. § 9122(b.1) (2002); Act 1997-5 (H.B. 149),
P.L. 73, § 4, approved Apr. 22, 1997, eff. in 60 days).

2 Under SORNA, indecent assault, graded as a second-degree misdemeanor,
is a Tier I offense pursuant to 42 Pa.C.S. § 9799.14(b)(6). Under section
9799.15(a)(1), an individual convicted of a Tier I offense is required to register
as a sexual offender for a period of fifteen years.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2018




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