J-S56026-16

                                  2016 PA Super 220



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

TYSON DENNELL DEMORA

                            Appellant                   No. 2120 MDA 2015


              Appeal from the Order Entered November 10, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003045-1995


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY PANELLA, J.                                FILED OCTOBER 03, 2016

        Appellant, Tyson Dennell Demora, appeals from the order denying his

request to be exempted from continued registration under the Sexual

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§

9799.10-9799.41. Demora contends that the trial court erred in failing to

enforce the terms of his plea agreement. We conclude that the trial court

lacked jurisdiction due to Demora’s failure to join an indispensable party, the

Pennsylvania State Police (“PSP”). We therefore affirm.

        In 1995, Demora was charged with one count each of aggravated

indecent assault, unlawful restraint, and rape by forcible compulsion. On July

19, 1996, he pled guilty to one count of Aggravated Indecent Assault, and
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*
    Former Justice specially assigned to the Superior Court.
J-S56026-16


was sentenced to a term of imprisonment of two to five years, with credit for

time served. Under then-existing law, Megan’s Law I,1 this conviction

subjected him to a ten-year reporting requirement.

       Demora served his maximum term of imprisonment, and on July 16,

2000, he began reporting to the PSP under Megan’s Law II. There is no

indication in the record that Demora ever failed to comply with required

reporting and registration requirements. Furthermore, it is uncontested that

he is not currently on probation or parole.

       On December 3, 2012, the PSP notified Demora that pursuant to

SORNA he was required to register as a Tier III offender and that he was

now subject to a lifetime reporting requirement. In October 2015, he filed

the instant petition seeking an order declaring that he is not subject to the

reporting requirements imposed by the PSP.

       The trial court received the arguments of Demora and the Lancaster

County District Attorney’s Office and reviewed the record. At the close of its

review, the court concluded that Demora had not established, among other

considerations, that the registration requirement was a material term of his

plea agreement. This timely appeal followed.


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1
  42 Pa.C.S.A. §§ 9791–9799, amended by The Registration of Sexual
Offenders Act of May 10, 2000, P.L. 74, No. 18, § 3 (Megan’s Law II); 42
Pa.C.S.A. §§ 9791–9799.9, expired pursuant to SORNA, 42 Pa.C.S.A. §
9799.41.



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       On appeal, Demora raises several arguments, primarily that the PSP’s

imposition of the registration requirement under SORNA violates the terms

of his plea agreement. We need not reach any of Demora’s arguments,

however, as we conclude that the trial court lacked jurisdiction to entertain

Demora’s petition, as he did not name the PSP as a defendant.

       We may raise the issue of jurisdiction sua sponte. See Kulp v.

Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000). We begin by noting that the

general concept of sexual offender registration under Megan’s Law I,

Megan’s Law II, and SORNA has been consistently held to constitute a

collateral civil consequence of a conviction, and not a punitive measure.2

See, e.g., Taylor v. Pennsylvania State Police of Com., 132 A.2d 590

(Pa. Cmwlth. 2016); Commonwealth v. Giannantonio, 114 A.3d 429 (Pa.

Super. 2015); Coppolino v. Noonan, 102 A.2d 1254 (Pa. Cmwlth. 2014),

aff’d, 125 A.3d 1196 (Pa. 2015).

       This Court has, in the past, entertained appeals similar to Demora’s.

See, e.g., Giannantonio; Commonwealth v. Perez, 97 A.3d 747 (Pa.

Super. 2014); Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014);

Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013). With the



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2
 As will be discussed later, certain specific provisions have been held to be
punitive in nature, but the general framework of sexual offender registration
and reporting has not. See Taylor.



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exception of Partee, however, the basis for jurisdiction in these cases has

not been explicit.

       In Partee, the panel held that a petition seeking immunity from a

reporting requirement did not fall under the ambit of the PCRA. See 86 A.3d

at 247. Rather, the panel concluded that it had jurisdiction to hear the

appeal pursuant to Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa.

Super. 2001).

       In Deaner, the appellant had filed a petition pursuant to 61 P.S. § 81,

Transfer and Retransfer of Inmates, which provided for a modification of a

sentence if the petitioner was so seriously ill that it was necessary for the

petitioner to be removed from the prison for the purpose of medical

treatment.3 As noted, the panel in Deaner was reviewing a matter brought

under an explicit grant of jurisdiction from the legislature. No party has

identified such a legislative grant of jurisdiction in this matter. Furthermore,

the appellant in Partee was serving a sentence of imprisonment at the time

he filed the petition under review. See 86 A.3d at 246. In the present

matter, Demora is no longer serving any part of his sentence.

       In a search to ground this case jurisdictionally, we observe that in the

seminal case of Hainesworth, the panel held that the issue of whether the

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3
  Section 81 was repealed in 2009, and replaced with 42 Pa.C.S.A. §
9777(a)(1), which allows for a deferral of sentence based upon medical
needs.



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imposition of reporting requirements under SORNA violated the terms of a

plea agreement is based in contract law. See 82 A.3d at 447. In contrast,

the Commonwealth Court has concluded that these claims “sound in

declaratory and injunctive relief” against a Commonwealth agency. Taylor,

132 A.3d at 599.

     Turning to the procedural posture of the present case, Demora is no

longer serving any part of his relevant sentence. Nor has the Lancaster

County District Attorney’s Office taken an action against him. It the PSP’s

action requiring Demora to register and report under SORNA to which he

objects. As such, the PSP is an indispensable party to Demora’s action.

     “Under Pennsylvania law, the failure to join an indispensable party

implicates the trial court’s subject jurisdiction.” Orman v. Mortgage I.T.,

118 A.3d 403, 406 (Pa. Super. 2015) (citation omitted). This issue may be

raised sua sponte. See id.

      “An indispensable party is generally one whose rights are so

connected with the claims of the litigants that no decree can be made

without impairing or infringing upon those rights.” Sprague v. Casey, 550

A.2d 184 (Pa. 1988). See also Commercial Banking Corp. v. Culp, 443

A.2d 1154 (Pa. Super. 1982) (“Person is necessary and indispensable party

only when his rights are so connected with claims of litigants that no decree

can be made without impairing his rights.”) Put more simply, “an

indispensable party is one whose rights are so directly connected with and


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affected by litigation that he or she must be a party of record to protect such

rights, and his or her absence renders any order or decree of court null and

void for want of jurisdiction.” CRY, Inc. v. Mill Service, Inc., 640 A.2d

372, 375 (Pa. 1994). See also 3 Standard Pennsylvania Practice 2d §

14:158. In evaluating this issue, the following issues must be considered:

      1. Do absent parties have a right or an interest related to the
         claim?
      2. If so, what is the nature of that right or interest?
      3. Is that right or interest essential to the merits of the issue?
      4. Can justice be afforded without violating the due process
         rights of absent parties?

Martin v. Rite Aid of Pennsylvania, Inc., 80 A.3d 813, 814 (Pa. Super.

2013) (citation omitted).

      Clearly, the first three issues are satisfied in favor of the necessity of

naming the PSP a party, as the PSP has a statutory duty to enforce

registration and reporting requirements under SORNA. It may be arguable

that justice can afforded without violating the due process rights of the PSP.

However, we conclude that the PSP has the right to tailor its arguments and

strategy to reflect its priorities and policies in fulfilling its duties under

SORNA.

      While the Lancaster County District Attorney’s Office has ably fulfilled

the function of arguing against Demora, we observe that it is possible in

future cases that a District Attorney’s office and the PSP will have different

opinions on policy, legal merit, or strategy concerning the application of

SORNA’s reporting requirements on a given individual. In the end, it is the

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PSP’s legal conclusion that Demora is subject to SORNA’s requirements that

is at issue here, not the District Attorney of Lancaster County. Any

determination that holds that the PSP’s conclusion is wrong directly impacts

the PSP and its statutory duty to administer the registration of offenders

under SORNA. Thus, the appropriate form of action for the relief sought by

Demora is a petition sounding in declaratory and injunctive relief against the

PSP. See Taylor, 132 A.2d at 599.

      We therefore conclude that the PSP is an indispensable party to

Demora’s petition. Thus, the failure to join the PSP resulted in a lack of

subject matter jurisdiction in the trial court. We affirm on this basis. See

Commonwealth v. Burns, 988 A.2d 684, 690 n.6 (Pa. Super. 2009) (“[A]n

appellate court may affirm the lower court on any basis, even one not

considered or presented in the court below.”)

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2016




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