            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bryan K. Williams, Jr.,                     :
                  Petitioner                :
                                            :
               v.                           :
                                            :
Pennsylvania State Police,                  :   No. 20 M.D. 2017
                         Respondent         :   Submitted: February 9, 2018



BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                         FILED: March 21, 2018


               Before this Court in our original jurisdiction are the preliminary
objections of the Pennsylvania State Police (PSP) to Bryan K. Williams’ pro se
petition for a writ of mandamus. Williams’ petition asks this Court to direct PSP to
modify the registry of convicted sex offenders maintained pursuant to the Sexual
Offender Registration and Notification Act1 (SORNA), so that Williams’
registration requirement is reduced from the term of his life to ten years.




      1
          42 Pa. C.S. §§ 9799.10-9799.41.
               Williams is currently incarcerated at the State Correctional Institution-
Waymart, where he is serving a sentence of six to twelve years2 for the following
Crimes Code3 offenses:


               (1) Involuntary deviate sexual intercourse with a child, a
                   first-degree felony in violation of section 3123(b), 18
                   Pa. C.S § 3123(b);

               (2) Incest of a minor (under the age of 13), a second-
                   degree felony in violation of section 4302(b)(1), 18
                   Pa. C.S § 4302(b)(1);

               (3) Corruption of minors, a third-degree felony in
                   violation of section 6301, 18 Pa. C.S § 6301; and

               (4) Indecent assault, a first-degree misdemeanor in
                   violation of section 3126(a)(7), 18 Pa. C.S §
                   3126(a)(7).

Three of Williams’ offenses are classified as Tier III offenses under SORNA. 42
Pa. C.S. § 9799.14(d). Individuals convicted of Tier III offenses are required to
register as sex offenders with PSP for life. 42 Pa. C.S. § 9799.15(a)(3).
               Consequently, Williams is subject to a lifetime registration
requirement. In his petition, however, he contends that his term of mandated
registration should be reduced pursuant to the Pennsylvania Supreme Court’s ruling
in A.S. v. Pennsylvania State Police, 143 A.3d 896 (Pa. 2016).
               In A.S., the court considered “the proper construction of the lifetime
registration triggering language ‘two or more convictions’ in Pennsylvania’s former


      2
        Williams’ minimum sentence expires June 29, 2020; his maximum sentence expires June
29, 2026. Petition for Writ of Mandamus, 1/29/2017, 2.
      3
          18 Pa. C.S. §§ 101-9546.
                                            2
sex offender registration statute, Megan’s Law II (formerly codified at 42 Pa. C.S. §
9795.1(b)(1) (superseded)).” 143 A.3d at 897. The sex offender in A.S. was
simultaneously convicted of sexual abuse of children, 18 Pa. C.S. § 6312, and
unlawful contact with a minor, 18 Pa. C.S. § 6318. Id. at 899. Though each of these
offenses individually triggered only a ten-year period of registration, PSP classified
him as a lifetime registrant pursuant to statutory language subjecting individuals
convicted of two or more enumerated offenses to a lifetime registration requirement.
Id. at 900. The A.S. court concluded that the recidivist philosophy underlying the
second iteration of Megan’s Law required “an act, a conviction, and a subsequent
act to trigger lifetime registration for multiple offenses otherwise triggering a ten-
year period of registration.” Id. at 898. For that reason, the A.S. court reduced the
registration requirement of the sex offender in that case to ten years because his
convictions occurred simultaneously.      Id. at 908. The court expressly noted,
however, that its ruling in A.S. pertained to “a Megan’s Law II question, not a
SORNA question.” Id. at 897 n.1.
              In his petition, Williams argues that pursuant to A.S. his lifetime
registration requirement should be reduced to ten years. PSP raises two preliminary
objections in response to Williams’ petition: (1) the petition is time-barred; and (2)
the petition should be dismissed pursuant to Pa.R.C.P. No. 1028(a)(4) because it
fails to state a legal claim.
              PSP argues that Williams’ claim is subject to the six-month statute of
limitations set forth in section 5522(b)(1) of the Judicial Code, which provides that
an “action against any officer of any government unit for anything done in the
execution of his office” must be commenced within six months. 42 Pa. C.S. §
5522(b)(1). PSP cites Curley v. Smeal, 41 A.3d 916 (Pa. Cmwlth. 2012), in support
of this argument. However, this Court expressly overruled Curley in Morgalo v.
Gorniak, 134 A.3d 1139 (Pa. Cmwlth. 2016), where we acknowledged the Supreme
                                          3
Court’s criticism of subjecting mandamus claims to a six-month statute of
limitations. Curley “offers dubious authority for establishing a six-month limitations
period for mandamus claims.” Bahret v. Pennsylvania State Police (Pa. Cmwlth.,
No. 500 M.D. 2015, filed May 16, 2016).4 Where doubt exists as to whether a
preliminary objection should be sustained, that doubt should be resolved by
overruling the objection. Pa. State Lodge, Fraternal Order of Police v. Dep’t of
Conservation & Natural Res., 909 A.2d 413, 416 (Pa. Cmwlth. 2007). Applying
this standard, we overrule PSP’s preliminary objection based on the statute of
limitations.
               With respect to PSP’s preliminary objection in the nature of a demurrer,
we note that when ruling on challenges to the legal sufficiency of a complaint—

               we must accept as true all well-pled material facts and all
               inferences reasonably deducible from those facts. [Christ
               the King Manor v. Dep’t of Pub. Welfare, 911 A.2d 624
               (Pa. Cmwlth. 2006)]. However, we are not required to
               accept as true any unwarranted factual inferences,
               conclusions of law or expressions of opinion. Id. For this
               Court to sustain preliminary objections, it must appear
               with certainty that the law will not permit recovery. Id.
               Any doubt must be resolved in favor of the non-moving
               party. Id.

Barge v. Pa. Bd. of Prob. & Parole, 39 A.3d 530, 538-39 (Pa. Cmwlth. 2012).

               PSP argues that the Supreme Court’s holding in A.S. is inapplicable to
Williams’ case. We agree. Unlike the sex offender in A.S., Williams’ lifetime
registration requirement is not based on the recidivist-oriented multiple conviction
provisions of Megan’s Law II. Williams was convicted in June 2014 after the


       4
         Section 414 of this Court’s Internal Operating Procedures authorizes the citation to
unreported panel decisions issued after January 15, 2008, for their persuasive value.
                                             4
enactment of SORNA. His lifetime registration requirement is not based on multiple
convictions of offenses subject to individual ten-year suspensions as in A.S.
Williams’ lifetime registration requirement is based on his conviction for crimes
designated as Tier III offenses under SORNA, each of which triggers a mandate for
lifetime registration. 42 Pa. C.S. §§ 9799.14(d) and 9799.15(a)(3). The Supreme
Court explicitly stated that A.S. did not pertain to SORNA, the source of Williams’
lifetime registration requirement. Williams has failed to state a claim upon which
relief can be granted. Consequently, we sustain PSP’s preliminary objection in the
nature of a demurrer to Williams’ petition.5




                                               __________________________________
                                               CHRISTINE FIZZANO CANNON, Judge




       5
          We note that in response to PSP’s preliminary objections, Williams filed a document
titled Notice to Plead to Respondent’s Preliminary Objections in which he sought to advance a
new theory for relief based on the Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017). In Muniz, the court ruled that SORNA is punitive in nature, and therefore,
retroactive application of the statute violates the ex post facto clauses of the federal and state
constitutions. Id. However, Williams cannot prevail on this basis for two reasons. First, an “action
filed in mandamus must define the issues. . . in the complaint.” Nickson v. Pa. Bd. of Prob. &
Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005). Williams failed to advance an ex post facto claim
in his petition. Second, “[t]he material facts on which a cause of action. . . is based shall be stated
in a concise and summary form.” Pa.R.C.P. No. 1019(a). In particular, “[a]verments of time. . .
shall be specifically stated.” Pa.R.C.P. No. 1019(f). In an ex post facto claim, the date of the
offense at issue is an essential fact, but Williams has failed to include the dates of his crimes in
any of his pleadings. For these reasons, we decline to address Williams’ Muniz claim.

                                                  5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Bryan K. Williams, Jr.,                  :
                  Petitioner             :
                                         :
            v.                           :
                                         :
Pennsylvania State Police,               :   No. 20 M.D. 2017
                   Respondent            :

                                    ORDER


            AND NOW, this 21st day of March, 2018, the Preliminary Objections
of the Pennsylvania State Police (PSP) to the Petition for a Writ of Mandamus in the
above-captioned matter are OVERRULED in part and SUSTAINED in part:

            (1) PSP’s preliminary objection based on the statute of
                 limitations is OVERRULED;
            (2) PSP’s preliminary objection in the nature of a
                 demurrer is SUSTAINED; and
            (3) The Petition for a Writ of Mandamus is DISMISSED
                 WITH PREJUDICE.




                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge
