            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Raymond J. Smolsky,                  :
                Petitioner           :
                                     :
       v.                            :             No. 254 M.D. 2018
                                     :             SUBMITTED: December 7, 2018
Tyree C. Blocker, Commissioner       :
of The Pennsylvania State Police     :
of the Commonwealth of Pennsylvania, :
                  Respondent         :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                 FILED: May 20, 2019

       Raymond J. Smolsky has filed with this Court a pro se Application for Summary
Relief, seeking a declaration that he is not required to register as a sex offender with
the Pennsylvania State Police under the Act of February 21, 2018, P.L. 27, No. 10, 42
Pa. C.S. §§ 9799.10-9799.75 (commonly known as Act 10),1 and that Act 10 is


       1
         The Sexual Offender Registration and Notification Act (SORNA), 42 Pa. C.S. §§ 9799.10-
9799.41, became effective on December 20, 2012. In February 2018, the General Assembly enacted
Act 10, amending certain provisions of SORNA and adding new sections, 42 Pa. C.S. §§ 9799.42 and
9799.51-9799.75, which became effective immediately.

        Specifically, in Subchapter H, the General Assembly modified the registration requirements
for individuals who committed offenses on or after SORNA’s effective date of December 20, 2012.
See 42 Pa. C.S. § 9799.11. Also, in Subchapter I, the General Assembly created new registration
requirements for individuals who committed offenses between April 22, 1996 and December 20,
2012, as well as for sex offenders who were required to register under a pre-SORNA statute between
unconstitutional as applied to him under Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2016).2 On March 7, 2019, we directed both parties to file supplemental briefs with
this Court, limited to the issue of whether Mr. Smolsky is required to register as a sex
offender with the Pennsylvania State Police under the Act of June 12, 2018, P.L. 140,
No. 29, 42 Pa. C.S. §§ 9799.10-9799.75 (commonly known as Act 29). See Smolsky
v. Blocker (Pa. Cmwlth., No. 254 M.D. 2018, filed March 7, 2019).
       We have now received the parties’ supplemental briefs. For the reasons that
follow, we grant Mr. Smolsky’s Application for Summary Relief.
                                         Background
       On March 19, 2018, the Pennsylvania State Police sent Mr. Smolsky a letter
advising him that he “may be” subject to Act 10’s sex offender registration
requirements and that he must comply with such requirements by May 22, 2018. Pet.
for Review, 4/12/18, ¶¶ 8-9 & Ex. A.
       On April 12, 2018, Mr. Smolsky filed a pro se Petition for Review in this Court’s
original jurisdiction, seeking relief from Act 10’s sex offender registration
requirements. In his Petition for Review, Mr. Smolsky avers that in October 1989, he
was convicted of rape, involuntary deviate sexual intercourse, and corruption of a
minor for offenses he committed in 1987. Id., ¶ 8. He further avers that in April 1991,
he was sentenced to 22½ to 45 years in prison for those convictions. Id. Mr. Smolsky
asserts that applying Act 10 to his 1989 convictions is unconstitutional under Muniz.




April 22, 1996 and December 20, 2012 and whose registration periods had not yet expired. See 42
Pa. C.S. § 9799.52.

       2
          The Muniz Court held that retroactive application of SORNA’s registration provisions
violates the ex post facto clauses of the United States and Pennsylvania Constitutions. 164 A.3d at
1223-25.


                                                2
       On August 13, 2018, Mr. Smolsky filed a pro se Motion for Judgment on the
Pleadings, which this Court treated as an Application for Summary Relief under
Pennsylvania Rule of Appellate Procedure 1532(b).3 In his pro se Application for
Summary Relief and supporting brief, Mr. Smolsky alleges that Act 10 cannot lawfully
be applied to him because he was convicted in 1989, prior to SORNA or any other law
requiring sex offender registration. Appl. for Summ. Relief, 8/13/18, at 1-2; Br. in
Support of Appl. for Summ. Relief, 9/19/18, at 2. In response, Tyree C. Blocker,
Commissioner of the Pennsylvania State Police, argues that: (1) Muniz’s holding does
not apply to Act 10 because Act 10 was enacted after, and in response to, Muniz; and
(2) Act 10 does not violate the ex post facto clauses of the United States and
Pennsylvania Constitutions. Resp. to Appl. for Summ. Relief, 8/16/18, at 1-7.
       On March 7, 2019, this Court issued a memorandum decision directing the
parties to submit supplemental briefs to this Court. In our decision, we explained that
both Mr. Smolsky’s Petition for Review and his Application for Summary Relief
challenge his registration obligation under Act 10, which was the version of the statute
in effect at the time he filed his Petition for Review. However, on June 12, 2018, before
Mr. Smolsky filed his Application for Summary Relief, the General Assembly
reenacted and amended some provisions of Act 10 in Act 29, which became effective
immediately. We further explained that because Act 29 replaced Act 10, Act 29 is now
the only statute under which Mr. Smolsky could be compelled to register as a sex
offender. Consequently, we ordered the parties to brief the issue of whether the
provisions of Act 29 apply to Mr. Smolsky.
       In his supplemental brief, Mr. Smolsky asserts that he is not required to register
as a sex offender under Act 29 because Act 29, like Act 10, is an ex post facto law

       3
          Pennsylvania Rule of Appellate Procedure 1532(b) states: “At any time after the filing of a
petition for review in an appellate or original jurisdiction matter[,] the court may on application enter
judgment if the right of the applicant thereto is clear.” Pa. R.A.P. 1532(b).

                                                   3
under Muniz. Mr. Smolsky’s Suppl. Br. at 1-3. Mr. Blocker, on the other hand, asserts
that Muniz did not declare Act 29 unconstitutional and that, contrary to this Court’s
statements in its memorandum decision, the dates of Mr. Smolsky’s convictions and
release on parole are immaterial to the issue of whether Act 29 is constitutional. Mr.
Blocker’s Resp. to Suppl. Br. at 1-2.4
                                             Analysis
       Under Pennsylvania Rule of Appellate Procedure 1532(b), this Court may grant
an application for summary relief “if a party’s right to judgment is clear and no material
issues of fact are in dispute.” Calloway v. Pa. Bd. of Prob. & Parole, 857 A.2d 218,
220 n.3 (Pa. Cmwlth. 2004); Pa. R.A.P. 1532(b). In ruling on an application for
summary relief, we must view the evidence in the light most favorable to the non-
moving party and may grant relief only if there are no genuine issues of material fact
and the right to judgment is clear as a matter of law. Cent. Dauphin Sch. Dist. v. Dep’t
of Educ., 598 A.2d 1364, 1366-67 (Pa. Cmwlth. 1991).
       Mr. Smolsky avers that he was convicted of rape, involuntary deviate sexual
intercourse, and corruption of a minor in October 1989 for offenses he committed in
1987 and that he was sentenced in April 1991 to 22½ to 45 years in prison. Pet. for
Review, ¶ 8. He also avers that he was released on parole in April 2017. Br. in Support
of Appl. for Summ. Relief, 9/19/18, at 4-5; Appl. for Leave to Proceed In Forma
Pauperis, 4/12/18, at 2. Significantly, in his supplemental brief, Mr. Blocker does not
dispute the dates of Mr. Smolsky’s underlying convictions or the date of his release on



       4
          Although they filed their supplemental briefs in a timely fashion, we must note that Mr.
Smolsky and Mr. Blocker failed to adequately address the question posed by this Court or to provide
any meaningful legal analysis to assist this Court in deciding whether the provisions of Act 29 apply
to Mr. Smolsky. However, because we have given the parties an opportunity to address the Act 29
issue, notwithstanding their failure to do so, we are prepared to rule on Mr. Smolsky’s Application
for Summary Relief.

                                                 4
parole. See Mr. Blocker’s Resp. to Suppl. Br. at 1 (“It is of no moment that [Mr.
Smolsky] was convicted in 1989 and paroled in 2017[] . . . .”).
      Subchapter H of Act 29, titled “Registration of Sex Offenders,” states in Section
9799.11(c) that its provisions “shall apply to individuals who committed a sexually
violent offense on or after December 20, 2012, for which the individual was convicted.”
42 Pa. C.S. § 9799.11(c) (emphasis added). Subchapter I of Act 29, titled “Continued
Registration of Sex Offenders,” states in Section 9799.52 that its provisions shall apply
to individuals

      (1) convicted of a sexually violent offense committed on or after April 22,
      1996, but before December 20, 2012, whose period of registration with
      the Pennsylvania State Police, as described in section 9799.55 (relating to
      registration), has not expired; or

      (2) required to register with the Pennsylvania State Police under a former
      sexual offender registration law of this Commonwealth on or after April
      22, 1996, but before December 20, 2012, whose period of registration has
      not expired.

42 Pa. C.S. § 9799.52 (emphasis added); see also 42 Pa. C.S. § 9799.55 (setting forth
the registration requirements for various categories of sex offenders). Thus, the
relevant dates for determining whether an individual is required to register are: (1) the
date of his underlying offense; and (2) the date he was first required to register under a
prior version of SORNA.
      We conclude that Act 29, by its plain terms, does not apply to Mr. Smolsky.
First, he was not convicted of a sexually violent offense committed “on or after
December 20, 2012,” nor was he “convicted of a sexually violent offense committed
on or after April 22, 1996, but before December 20, 2012.” 42 Pa. C.S. §§ 9799.11(c),
9799.52(1). Rather, it is undisputed that Mr. Smolsky was convicted in 1989 for
offenses he committed in 1987.


                                            5
       Second, Mr. Smolsky was not “required to register with the Pennsylvania State
Police under a former sexual offender registration law of this Commonwealth on or
after April 22, 1996, but before December 20, 2012.” 42 Pa. C.S. § 9799.52(2). A
convicted sex offender’s registration obligation does not begin until he or she is
released from incarceration. See 42 Pa. C.S. § 9799.15(b)(1)(i)(A) and (B) (stating that
a sex offender’s period of registration “shall commence upon . . . release from
incarceration in a State or county correctional facility” or upon “parole or a sentence
of probation”). It is undisputed that Mr. Smolsky was released on parole in April 2017.
Thus, even if Mr. Smolsky had been required to register under a prior version of
SORNA, he would not have been required to register between April 22, 1996 and
December 20, 2012 because he was still incarcerated during that period, as Mr. Blocker
plainly acknowledges. See Mr. Blocker’s Resp. to Suppl. Br. at 1 (stating that Mr.
Smolsky’s “obligation to register did not commence until his release on parole”).
       We recognize that the basis for Mr. Smolsky’s Application for Summary Relief
is his assertion that Act 10 (now Act 29) is unconstitutional as applied to him under
Muniz.5 However, we need not reach that question because we conclude that, by its
own terms, the statute is inapplicable to Mr. Smolsky, based on the date of his
underlying offenses and the date of his release on parole. Accord Gregory v. Pa. State
Police, 185 A.3d 1202, 1205-06 & n.6 (Pa. Cmwlth. 2018) (granting a petitioner’s
application for relief from SORNA’s registration requirements and noting that
“[b]ecause [the] [p]etitioner committed his offenses in 1982 and was convicted in 1983,
it would appear that Act 10 does not apply to [him]”).




       5
          We note that the Pennsylvania Supreme Court recently granted review, in its original
jurisdiction, to consider the constitutionality of Act 10 and Act 29 in Commonwealth v. Lacombe, 35
MAP 2018 (Pa. 2018).

                                                6
                                     Conclusion
      We conclude that the record establishes that Mr. Smolsky is entitled to relief
from the registration requirements of Act 29 as a matter of law. Accordingly, we grant
Mr. Smolsky’s Application for Summary Relief.



                                         _______________________________
                                         ELLEN CEISLER, Judge




                                          7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Raymond J. Smolsky,                  :
                Petitioner           :
                                     :
       v.                            :      No. 254 M.D. 2018
                                     :
Tyree C. Blocker, Commissioner       :
of The Pennsylvania State Police     :
of the Commonwealth of Pennsylvania, :
                  Respondent         :



                                   ORDER

      AND NOW, this 20th day of May, 2019, we hereby GRANT the Application
for Summary Relief filed by Raymond J. Smolsky. Mr. Smolsky is not required to
register as a sex offender with the Pennsylvania State Police under the Act of June
12, 2018, P.L. 140, No. 29, 42 Pa. C.S. §§ 9799.10-9799.75 (commonly known as
Act 29).



                                      ________________________________
                                      ELLEN CEISLER, Judge
