          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lynn Alan Padgett,                           :
                             Petitioner      :
                                             :
               v.                            :   No. 412 M.D. 2017
                                             :   Submitted: June 15, 2018
Frank Noonan,                                :
                             Respondent      :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: July 30, 2018

               Before us in our original jurisdiction are Lynn Alan Padgett’s (Padgett)
application for summary relief and preliminary objections in the nature of a demurrer
that the Pennsylvania State Police (PSP) filed on behalf of Frank Noonan, its former
Commissioner.1 Representing himself, Padgett filed a petition for review in the
nature of mandamus alleging the Sexual Offender Registration and Notification Act
(SORNA)2 was unconstitutional as applied to him pursuant to Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, __ U.S. __, 138 S. Ct. 925 (2018).
PSP asserts Padgett fails to state a cognizable claim, and it challenges his standing.
Relying on Muniz, Padgett seeks summary relief. Because Padgett has a right to



      1
          Tyree C. Blocker succeeded Frank Noonan as Police Commissioner.
      2
          Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41,
effective December 20, 2012. SORNA, commonly known as Megan’s Law IV, was enacted “[t]o
bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and
Safety Act of 2006[,] [42 U.S.C. §§16901-16945].” 42 Pa. C.S. §9799.10(1).
relief, we overrule PSP’s preliminary objections, and we grant summary relief to
Padgett as limited to the relief afforded in Muniz.


                                        I. Background
                Padgett is currently serving an aggregated sentence of 15 to 30 years in
prison for rape and involuntary deviate sexual intercourse. Pet. at ¶¶4, 8. Megan’s
Law I,3 which was in effect at the time of his 1998 convictions, classified Padgett as
a sexually violent predator.4 Pet. at ¶7.


                Padgett’s offenses are classified as Tier III offenses requiring lifetime
registration under SORNA. 42 Pa. C.S. §9799.14(d)(2) (relating to rape), (d)(4)
(relating to involuntary deviate sexual intercourse).                SORNA vests regulatory
authority in PSP, and PSP maintains the sex offender registry. Pet. at ¶11.


                In January 2017, our Supreme Court decided Muniz, holding that
SORNA’s registration provisions were punitive in nature. As a result, it determined



       3
           Megan’s Law I, Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), 42 Pa. C.S.
§§9791-9799.6. After Megan’s Law I was held unconstitutional, the General Assembly enacted
Megan’s Law II, Act of May 10, 2000, P.L. 74. When that statute was also deemed constitutionally
infirm, it enacted Megan’s Law III, Act of November 24, 2004, P.L. 1243.
       4
           Megan’s Law I defined a “sexually violent predator” as:

                A person who has been convicted of a sexually violent offense … and who
                is determined to be a sexually violent predator under section 9794(e) …
                due to a mental abnormality or personality disorder that makes the person
                likely to engage in predatory sexually violent offenses.

Formerly 42 Pa. C.S. §9792. Our Supreme Court declared this classification and related
requirements unconstitutional in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999).



                                                2
the retroactive application of those provisions violated the ex post facto clauses of
the United States and Pennsylvania Constitutions.5


               In September 2017, Padgett filed a petition for review in the nature of
mandamus, seeking relief from SORNA registration requirements pursuant to Muniz.
He alleged SORNA, as applied to his 1998 convictions, “violates his rights under
the ex post facto clauses, and the due process and equal protection of the law clauses
of the United States [and Pennsylvania] Constitution[s] … and the ‘reputation
clause’ [Article I, Section 1] of the Pennsylvania Constitution.” Pet. at ¶12.


               Upon PSP’s application, this Court stayed the matter while the appeal
of Muniz was pending before the United States Supreme Court. When the United
States Supreme Court denied certiorari in early 2018, this Court directed PSP to file
a responsive pleading.


               PSP filed preliminary objections in the nature of a demurrer. Primarily,
PSP alleges Padgett fails to state a claim because he is not subject to SORNA’s
registration requirements while he remains incarcerated. Because SORNA has not
been applied to Padgett, and he is not listed in the registry, PSP contends Padgett’s
claim is not ripe. For the same reason, PSP also asserts Padgett lacks standing.




       5
         Article I, Section 10 of the United States Constitution provides, in pertinent part, that,
“No State shall . . . pass any … ex post facto Law ….” U.S. CONST. art. I, §10. Article I, Section
17 of the Pennsylvania Constitution provides in pertinent part that, “No ex post facto law … shall
be passed.” PA. CONST. art. I, §17.


                                                3
             Padgett responded to the preliminary objections, acknowledging his
current incarceration. He also alleged his pre-parole is scheduled for March 2018.
In addition, Padgett filed an application for summary relief based on the finality of
Muniz.


             After briefing, the matter is ready for disposition.


                                   II. Discussion
             To state a mandamus claim, the petitioner must prove “a clear legal right
to relief … a corresponding duty in the respondent and the lack of any other adequate
and appropriate remedy.” Smires v. O’Shell, 126 A.3d 383, 387 (Pa. Cmwlth. 2015).
Mandamus cannot lie “to compel performance of a discretionary act or to govern the
manner of performing [the] required act.” Coppolino v. Noonan, 102 A.3d 1254,
1263 (Pa. Cmwlth. 2014), aff’d, 125 A.3d 1196 (Pa. 2015) (citation omitted).
Mandamus only offers a remedy to enforce established rights. Smires.


                            A. Preliminary Objections
             A demurrer contests the legal sufficiency of a complaint. Barge v. Pa.
Bd. of Prob. & Parole, 39 A.3d 530 (Pa. Cmwlth. 2012), aff’d, 96 A.3d 360 (Pa.
2014). When assessing legal sufficiency, this Court must accept as true all well-
pled, material and relevant facts alleged in the complaint and every inference that is
fairly deducible from those facts. Markham v. Wolf, 147 A.3d 1259 (Pa. Cmwlth.
2016) (en banc). The Court, however, is not required to accept as true conclusions
of law, unwarranted inferences from facts or expressions of opinion. Doe v. Miller,
886 A.2d 310 (Pa. Cmwlth. 2005). “To sustain preliminary objections, it must



                                          4
appear with certainty the law will not permit recovery, and any doubts should be
resolved by a refusal to sustain them.” Id. at 314. With these principles in mind, we
address PSP’s preliminary objections.


                              1. Standing & Ripeness
             First, we address PSP’s challenge to Padgett’s standing, and related
challenge to the ripeness of his claim.


             Our Supreme Court repeatedly recognizes the “considerable overlap”
between standing and ripeness, especially where the objecting party’s challenge to
justiciability “focused on arguments that the interest asserted by the petitioner is
speculative, not concrete, or would require the court to offer an advisory opinion.”
Yocum v. Pa. Gaming Control Bd., 161 A.3d 228, 234 (Pa. 2017) (citation omitted).
However, “[s]tanding 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.” Id.


             “[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)
(quoting Bayada Nurses, Inc. v. Dep’t of Labor & Indus., 8 A.3d 866, 874 (Pa.
2010)).




                                          5
             To have standing, a litigant must show his interest in the litigation is
substantial, direct and immediate. Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa.
Cmwlth. 1997) (rejecting ripeness challenge under Megan’s Law I; holding inmate
had standing to challenge registration requirements). The three elements of standing
are well-established. As this Court explained:

             [A] ‘substantial’ interest is an interest in the outcome of the
             litigation which surpasses the common interest of all citizens in
             procuring obedience to the law. A ‘direct’ interest requires a
             showing that the matter complained of caused harm to the
             party’s interest. An ‘immediate’ interest involves the nature of
             the causal connection between the action complained of and the
             injury to the party challenging it ....

Markham, 147 A.3d at 1282 n.9 (quoting S. Whitehall Twp. Police Serv. v. S.
Whitehall Twp., 555 A.2d 793, 795 (Pa. 1989)).


             In this matter, there is no dispute that Padgett is currently housed in a
correctional institution for one count of rape and two counts of involuntary deviate
sexual intercourse. Pet. at ¶4. These are sexual offenses requiring registration as a
sexual offender. He alleged that as of October 17, 2017, he will have served 20 years
of his aggregated sentence. Pet. at ¶8.


             PSP contends Padgett is not adversely impacted by SORNA because he
is not subject to its registration requirements while he is incarcerated. We disagree.


             A sexual offender has standing to challenge registration requirements
to which he may be subject upon his release from prison. Van Doren; see Gregory




                                          6
v. Pa. State Police, 160 A.3d 274 (Pa. Cmwlth. 2017) (single j. op.). We agree with
Judge Cohn Jubelirer’s well-reasoned single-judge opinion in Gregory addressing
the ripeness of an incarcerated petitioner’s rights to preclude PSP from applying
SORNA registration requirements to him when his convictions pre-dated SORNA’s
enactment.


             In Gregory, PSP also raised a challenge to the inmate’s standing to
challenge SORNA registration requirements based on his incarceration. There, this
Court reasoned the inmate had a substantial and direct interest in relief from SORNA
that surpassed that of other citizens in procuring obedience to the law because of the
impending application of SORNA, and the harm that application would impose.


             Padgett, like the inmate in Gregory, has a direct and substantial interest
in protecting himself from the retroactive application of SORNA. Our Supreme
Court deemed the registration requirements punitive in nature, and held that
application of SORNA to those whose convictions for sexual offenses pre-dated
SORNA’s enactment was unconstitutional. See Muniz. Padgett would be aggrieved
by the unconstitutional application of SORNA to him.


             As to timing, this matter should be resolved prior to Padgett’s release
from incarceration. Delaying review and waiting for PSP to place his name on the
registry will not assist our resolution. Van Doren.


             The harm Padgett complains of is not speculative or remote. Indeed,
by operation of law, Padgett’s name will be included on the registry upon his release



                                          7
from prison. Gregory v. Pa. State Police, 185 A.3d 1202 (Pa. Cmwlth. 2018) (denying
application for relief in part as to applying SORNA to inmate) (Gregory (2018)).
While his release may not be imminent, that does not render the harm remote.
Therefore, Padgett has standing to seek relief, and the threatened harm renders his
claim ripe.


                                   2. Demurrer
              Next, we consider PSP’s preliminary objection in the nature of a
demurrer to Padgett’s mandamus claim.


              PSP maintains Padgett is not entitled to relief from SORNA under
Muniz because the case is distinguishable on its facts. PSP argues that unlike the
inmate in Muniz, Padgett has not registered under a prior version of Megan’s Law
or SORNA because the registration provisions are tolled while he is incarcerated.


              Our Supreme Court’s decision in Muniz pertained to the retroactive
application of SORNA, and held it was unconstitutional as applied to those whose
sexual offense convictions pre-dated its enactment. The Court did not limit its
holding to only those sexual offenders who were already registered as PSP suggests.


              There is no dispute that Padgett’s 1998 convictions pre-date SORNA’s
enactment in 2011. Therefore, SORNA is unconstitutional as applied to Padgett. Id.
That SORNA has not yet been applied to Padgett does not bar relief. See, e.g.,
Gregory (2018). Accordingly, we overrule PSP’s demurrer.




                                         8
                                      B. Summary Relief
               Applications for summary relief are governed by Pa. R.A.P. 1532(b).
“An application for summary relief may be granted if a party’s right to judgment is
clear and no material issues of fact are in dispute.” Markham, 147 A.3d at 1269
(applying Pa. R.A.P. 1532(b)). “In ruling on [an] application for summary relief, we
must view the evidence of record in the light most favorable to the non-moving party
and enter judgment only if there is no genuine issue as to any material facts and the
right to judgment is clear as a matter of law.” Id. at 1270 (quoting Cent. Dauphin
Sch. Dist. v. Dep’t of Educ., 598 A.2d 1364, 1366-67 (Pa. Cmwlth. 1991)).


               In his application for summary relief, Padgett seeks relief from SORNA
registration requirements based on the holding in Muniz. He argues that Muniz held
SORNA is unconstitutional as applied to him. Because Muniz is final, he contends
he has a clear legal right to relief, and PSP may not apply SORNA to him.


               In Muniz, our Supreme Court analyzed SORNA registration
requirements then in effect6 under the ex post facto clauses of the federal and state
constitutions.7 The Court deemed SORNA punitive in nature, so as to violate the ex
       6
          Since our Supreme Court declared SORNA constitutionally infirm in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, __ U.S. __, 138 S. Ct. 925 (2018), the General
Assembly amended certain provisions through the Act of February 21, 2018, P.L. 27, No. 10
(commonly referred to as Act 10). Act 10 also added several new sections found at 42 Pa. C.S.
§§9799.42, 9799.51-9799.75. Act 10 was not in effect at the time the parties briefed the matters
before the Court. However, PSP referred to Act 10 in its brief in opposition prior to its enactment.
In addition, various provisions of Act 10 were reenacted and amended by the Act of June 12, 2018,
P.L. 140, No. 29 (Act 29), which became effective immediately. As neither Act 10 nor Act 29 is
before us, we offer no opinion as to the application of these acts here.

       7
         A law violates the ex post facto clause if it “changes the punishment, and inflicts a greater
punishment than the law annexed to the crime when committed.” Commonwealth v. Allshouse,
36 A.3d 163, 184 (Pa. 2012).


                                                  9
post facto clauses when applied to those whose convictions pre-dated its enactment.
See Commonwealth v. Reed (Pa., No. 10 WAP 2016, filed Aug. 22, 2017)
(concurring statement, Saylor, C.J.) (recognizing the majority consensus in Muniz
to the effect that SORNA exacts punishment and retroactive application of the
enactment violates constitutional norms).


             We hold Muniz offers an inmate a clear legal right to relief from the
retroactive application of SORNA based on our Supreme Court’s analysis of the
statutory language then in effect. Gregory (2018).


             Significantly, Padgett’s application for summary relief is based solely
on Muniz, and the Supreme Court’s holding as to the constitutional infirmity of the
version of SORNA it construed in that decision. Pursuant to Muniz, SORNA as then
in effect may not be applied retroactively to Padgett. Padgett is entitled to summary
relief on that limited ground. As such, PSP is precluded from imposing SORNA
registration requirements on Padgett.


             Because his application for summary relief relied solely on Muniz,
which did not implicate any subsequent sexual offender legislation, this decision
does not exempt Padgett from the application of any sexual offender registration
statute that has been or may be subsequently enacted. To the extent his convictions
may subject Padgett to registration under any post-Muniz legislative changes to
SORNA or another version of Megan’s Law, this Court offers no relief.




                                         10
                                III. Conclusion
            For the foregoing reasons, PSP’s preliminary objections are overruled.
We also grant summary relief to Padgett on the limited grounds asserted in his
application, so as to relieve him from compliance with SORNA registration
requirements in effect at the time our Supreme Court construed them in Muniz.




                                     ROBERT SIMPSON, Judge




                                       11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lynn Alan Padgett,                           :
                            Petitioner       :
                                             :
              v.                             :    No. 412 M.D. 2017
                                             :
Frank Noonan,                                :
                            Respondent       :



                                         ORDER

              AND NOW, this 30th day of July, 2018, the preliminary objections that
the Pennsylvania State Police filed on behalf of Respondent Frank Noonan to Lynn
Alan Padgett’s (Padgett) Petition for Review in the Nature of a Complaint in
Mandamus are OVERRULED.


              AND FURTHER, Padgett’s application for summary relief is
GRANTED as limited to the version of the Sexual Offender Registration and
Notification Act8 that was in effect when our Supreme Court decided
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, __ U.S. __, 138 S.
Ct. 925 (2018).




                                          ROBERT SIMPSON, Judge



       8
        Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41, prior
to amendment by the Act of February 21, 2018, P.L. 27, No. 10.
