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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MARK P. GEHRET

                            Appellee                 No. 2042 MDA 2014


               Appeal from the Order Entered November 5, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004251-2003



BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 06, 2015

        The Commonwealth appeals from the order entered in the Court of

Common Pleas of Berks County granting Mark P. Gehret’s “Motion to Enjoin

Sex Offender Registration Requirements.” Upon careful review, we affirm.

        On June 1, 2004, Gehret entered an open guilty plea to one count of

statutory sexual assault1 after engaging in sexual intercourse in a parking lot

with a fifteen-year-old girl. At the time, Gehret was thirty years old. Gehret

was sentenced to serve ten to twenty-three months’ incarceration followed

by seven years of probation. At the time of the guilty plea, Gehret was not

required to register as a sex offender under the version of Megan’s Law then
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3122.1.
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in effect.     Thereafter, Gehret violated both the parole and probationary

portions of his sentence. Most recently, Gehret was re-sentenced to eight

months to two years of incarceration followed by six years of probation on

June 14, 2010. Thereafter, he was informed by the Pennsylvania Board of

Probation and Parole that he would be required to register as a sex offender.

      On August 6, 2014, Gehret filed a “Motion to Enjoin Sex Offender

Registration Requirements.” On November 3, 2014, the trial court granted

the motion, finding that, under recent amendments to the Sexual Offenders

Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9791-9799,

Gehret was not required to register as a sex offender. The Commonwealth

then filed a timely notice of appeal to this Court, as well as a court-ordered

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      On appeal, the Commonwealth claims that the trial court erred by

finding that Gehret is not required to register under SORNA.           Appellant’s

Brief, at 5.

      The Commonwealth’s claim of error requires this Court to engage in

statutory      interpretation   of   section   9799.13   of   SORNA.   “Statutory

interpretation is a question of law, and therefore our scope of review is

plenary, and our standard of review is de novo.”               Commonwealth v.

Giulian, 111 A.3d 201, 203 (Pa. Super. 2015).

      When interpreting a statute:

      [W]e look to ascertain and effectuate the intention of the
      General Assembly. Additionally, we must give effect to all of the
      law[’]s provision[s] and are not to render language superfluous

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        or assume language to be mere surplusage. If the text of the
        statute is clear and free from all ambiguity, the letter of it is not
        to be disregarded under the pretext of pursuing its spirit.

In re T.P., 78 A.3d 1166, 1174 (Pa. Super. 2013) (citations and quotation

marks omitted).

        Where there is a conflict in the terms of the language of a statute,

section 1933 of the Statutory Construction Act provides as follows:

        Whenever a general provision in a statute shall be in conflict with
        a special provision in the same or another statute, the two shall
        be construed, if possible, so that effect may be given to both. If
        the conflict between the two provisions is irreconcilable, the
        special provisions shall prevail and shall be construed as an
        exception to the general provision, unless the general provision
        shall be enacted later and it shall be the manifest intention of
        the General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933.

        We now turn to section 9799.13 of SORNA, which provides in pertinent

part:

        § 9799.13. Applicability.

        The following individuals shall register with the Pennsylvania
        State Police as provided in sections 9799.15 (relating to period
        of registration), 9799.19 (relating to initial registration) and
        9799.25 (relating to verification by sexual offenders and
        Pennsylvania State Police) and otherwise comply with the
        provisions of this subchapter:

                                       ***

        (2) An individual who, on or after the effective date of this
        section, [December 20, 2012], is, as a result of a conviction for
        a sexually violent offense, an inmate in a State or county
        correctional institution of this Commonwealth, including a
        community corrections center or a community contract facility, is
        being supervised by the Pennsylvania Board of Probation and
        Parole or county probation or parole, is subject to a sentence of
        intermediate punishment or has supervision transferred pursuant

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       to the Interstate Compact for Adult Supervision in accordance
       with section 9799.19(g).

                                       ***

       (3.1) The following:

         (i) An individual who between January 23, 2005, and
         December 19, 2012, was:

            (A) convicted of a sexually violent offense;

            (B) released from a period of incarceration resulting from a
            conviction for a sexually violent offense; or

            (C) under the supervision of the Pennsylvania Board of
            Probation and Parole or county probation or parole as a
            result of a conviction for a sexually violent offense.

         (ii) For purposes of this paragraph, the term “sexually violent
         offense” shall have the meaning set forth in section 9799.12
         (relating to definitions), except that it shall not include:

            (A) Convictions:

              (I) Under the following provisions of 18 Pa.C.S. (relating
              to crimes and offenses):

                                       ***

              Section 3122.1 (relating to statutory sexual assault).

42 Pa.C.S. § 9799.13. Paragraph (3.1) was amended on March 14, 2014,

but made retroactive to December 20, 2012.

       The Commonwealth argues that the exception to registration under

paragraph    (3.1)(ii)(A),   applies   to   offenders   who   were   convicted   of

enumerated offenses between January 23, 2005, and December 19, 2012

and, because Gehret was convicted in 2004, the exception does not apply to

him.    However, the Commonwealth ignores subsection (C) of paragraph

(3.1)(i), which also includes those, like Gehret, who were under parole or



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probationary   supervision     during   that   same   time   period,   where   the

supervision was the result of a conviction for a sexually violent offense.

      We find Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super. 2014),

to be controlling. There, the appellant was convicted of indecent assault in

2009. At the time of his conviction, he was not required to register as a sex

offender under Megan’s Law. However, following a subsequent resentencing

resulting from a probation violation, Bundy was advised that he would be

required to register as a result of a recent amendment to Megan’s Law.

Thereafter, Bundy filed a petition with the trial court seeking relief from the

registration provision.   While Bundy’s petition was pending, the legislature

passed, and the governor signed, the SORNA amendments at issue in the

instant matter.   This Court held that because Bundy’s conviction occurred in

2009, within the timeframe provided in paragraph (3.1)(i)(A) of section

9799.13, and because paragraph (3.1)(ii)(B) excludes indecent assault from

the definition of a sexually violent offense triggering registration, Bundy was

not subject to registration.

      Here, Gehret was, in fact, under parole and probationary supervision

between January 23, 2005 to December 19, 2012 for statutory sexual

assault, as provided in section 9799.13(3.1)(i)(C).          However, statutory

sexual assault is an offense that the General Assembly excluded from the list

of crimes defined as sexually violent offenses for purposes of registration

under paragraph (3.1)(ii). Thus, Gehret’s offense falls within the exception

to the registration requirement.

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      The Commonwealth also argues that Gehret is required to register

pursuant to paragraph (2) of section 9799.13. Section 9799.13(2) requires

an individual who was, inter alia, under supervision for a sexually violent

offense at any time after the effective date of the act to register as a sex

offender.   This would seemingly conflict with the language of paragraph

(3.1)(ii) and require Gehret to register, as he was subject to supervision

after the effective date of the statute.

      However, in Bundy, we recognized the conflict between the two

paragraphs of section 9799.13 and reconciled them as follows:

      We are mindful that there is possible tension between Paragraph
      (3.1)(ii) and Paragraph (2) of Section 9799.13, with the latter
      stating, in relevant part, that the registration requirements apply
      to “[a]n individual who, on or after the effective date of this
      section [December 20, 2012], is, as a result of a conviction for a
      sexually violent offense, ... being supervised by the Pennsylvania
      Board of Probation and Parole or county probation or parole[.]”
      42 Pa.C.S. § 9799.13(2). Nevertheless, to the extent there may
      be a conflict in the statute, the general provision in Paragraph
      (2) yields to the specific provision set forth in Paragraph (3.1)
      and Paragraph (3.1) controls.

Bundy, 96 A.3d at 395 n.4.

      Here, Gehret was under supervision for a statutory sexual assault

conviction between January 23, 2005, and December 19, 2012. This crime

is specifically excluded as a sexually violent offense for purposes of

registration under paragraph (3.1)(ii).      Since paragraph (2) yields to

paragraph (3.1), see id., Gehret falls within the exception created by the

General Assembly in paragraph (3.1). Accordingly, Gehret is not subject to



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registration under section 9799.13 and the trial court properly granted his

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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