             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


J. J. M.,                                      :
                             Petitioner        :
                                               :   CASE SEALED
                     v.                        :   No. 386 M.D. 2017
                                               :
Pennsylvania State Police,                     :
                         Respondent            :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge



OPINION BY
JUDGE COHN JUBELIRER                               FILED: March 20, 2018


       Before this Court is J.J. M.’s (Petitioner) Petition for Review in the Nature of
a Complaint in Mandamus and for Declaratory Relief (Petition) and Petitioner’s
Application for Summary Relief in the Nature of a Mandatory Preliminary and
Permanent Injunction (Application) directing the Pennsylvania State Police (PSP) to
remove Petitioner’s information from PSP’s public website, commonly referred to
as the Megan’s Law website,1 publications and documents, and to declare that
Petitioner is not subject to registration under the Sex Offender Registration and
Notification Act (SORNA).2 Also before this Court is PSP’s Motion to Dismiss the
Petition and Application as moot (Motion to Dismiss), which it filed in lieu of a



       1
         Section 9799.28 of the Sentencing Code, 42 Pa. C.S. § 9799.28, directs PSP to maintain
a public Internet website containing information about individuals convicted, inter alia, of a
sexually violent offense.
       2
         Sections 9799.10 to 9799.41 of the Sentencing Code (SORNA), 42 Pa. C.S. §§ 9799.10-
9799.41.
responsive pleading to the Petition, and a Motion to Accept its Motion to Dismiss
the Petition and Application as timely.
        Petitioner filed the Petition seeking an order directing PSP to remove all
references to Petitioner from its records and to destroy any such records already
created, and declaring that he is no longer required to register as a sex offender
pursuant to SORNA.            (Petition ¶ 15, Wherefore Clause.)              According to the
allegations in the Petition, on February 8, 1999, Petitioner was convicted of indecent
assault, incest, and endangering the welfare of children, contrary to, respectively,
Sections 3126, 4302, and 4304 of the Crimes Code, 18 Pa. C.S. §§ 3126, 4302, 4304.
(Id. ¶ 5.) Petitioner completed his prison term and then, on January 8, 2014, he
completed his probation. (Id. ¶ 6.) As part of his sentence, Petitioner was required
to register as a sex offender under then-effective 42 Pa. C.S. §§ 9791-9799.5
(expired), commonly known as Megan’s Law I. (Id. ¶ 7.) Petitioner’s registration
period was set to expire, he alleges, in August 2013. (Id.) However, on December
20, 2012, SORNA went into effect, and PSP notified Petitioner that it was
reclassifying him as a Tier III offender. (Id. ¶¶ 8-9.); Section 9799.14(d)(9) of
SORNA, 42 Pa. C.S. § 9799.14(d)(9). As a result, Petitioner notes, he is required to
register on a quarterly basis for the rest of his life. Sections 9799.15(a)(3) and
9799.25(a)(3) of SORNA, 42 Pa. C.S. §§ 9799.15(a)(3) and 9799.25(a)(3).
Petitioner alleges that, based on our Supreme Court’s holding in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), retroactively applying SORNA to him violates
the Ex Post Facto Clauses of both the United States and Pennsylvania Constitutions.3

       3
         Article I, Section 17 of the Pennsylvania Constitution provides, “No ex post facto law . . .
shall be passed.” Pa. Const. art. I, § 17. The United States Constitution has two provisions that
prohibit ex post facto laws, one, contained in Article I, Section 9, clause 3 of the United States
Constitution, U.S. Const. art. I, § 9, cl. 3, which applies to Congress, and the other, contained in



                                                 2
(Petition ¶ 12.) However, notwithstanding Muniz, Petitioner alleges, PSP has
directed him to appear for his quarterly registration. (Id. ¶ 11.) Therefore, Petitioner
requests that this Court declare that he is not subject to registration under SORNA
and require PSP to remove all references to him from its records and destroy any
such records already created.
        PSP then applied to stay this proceeding on the basis that, on October 13,
2017, the Commonwealth filed a Petition for Writ of Certiorari (Writ) in Muniz with
the United States Supreme Court. By order dated December 27, 2017, this Court
denied PSP’s application to stay this proceeding. On January 22, 2018, the United
States Supreme Court denied the Commonwealth’s Petition for Writ of Certiorari in
Muniz.
        Thereafter, in lieu of a responsive pleading to the Petition, PSP filed its
Motion to Dismiss because PSP had removed Petitioner’s information from the
Megan’s Law website. Attached to PSP’s Motion to Dismiss is a letter dated January
26, 2018, informing Petitioner that his information had been removed from the
Megan’s Law website. PSP also filed with this Court its Motion to Accept its Motion
to Dismiss as timely. PSP explains that when it attempted to file its Motion to
Dismiss on the date it was due, PACFile was not working. PSP filed its Motion to
Dismiss the next business day.4
        Petitioner opposes PSP’s Motion to Dismiss, arguing that this matter is not
moot because there is no enforceable declaration stating that he is not required to
register as a sex offender. Petitioner asserts that his improper designation as a sex


Article I, Section 10, clause 1 of the United States Constitution, U.S. Const. art. I, § 10, cl. 1, which
applies to the states.
        4
          This Court grants PSP’s Motion to Accept its Motion to Dismiss as timely filed and will
consider the merits of PSP’s Motion to Dismiss.


                                                   3
offender “has national implications because, in every state in which he travels, he
will be deemed to have been required to register in Pennsylvania.” (Answer to
Motion to Dismiss ¶ 3.) Petitioner notes that in PSP’s letter of January 26, 2018,
PSP itself stated that if Petitioner traveled to, or resided, worked, or attended school
in another state, he should contact the agency responsible for registration in that
jurisdiction so as to “acquire information that is applicable to your status.” (Id. ¶ 4
(quoting PSP Letter dated January 26, 2018).) Petitioner requests that in order to
avoid an improper construction of the record in this case, this Court enter an order
declaring that he is not subject to registration.
      In general, a court will not decide a moot question. Pub. Defender’s Office of
Venango Cty. v. Venango Cty. Ct. of Common Pleas, 893 A.2d 1275, 1279 (Pa.
2006). Rather, there must be an actual controversy at every stage of the judicial
process. Cty. Council of the Cty. of Erie v. Cty. Exec. of the Cty. of Erie, 600 A.2d
257, 259 (Pa. Cmwlth. 1991). “A case is moot when a determination is sought on a
matter which, when rendered, cannot have any practical effect on the existing
controversy.” Chruby v. Dep’t of Corr., 4 A.3d 764, 770 (Pa. Cmwlth. 2010)
(internal quotation marks and citation omitted). Due to an intervening change in the
applicable law or the facts of the case, an issue may become moot. Pub. Defender’s
Office of Venango Cty., 893 A.3d at 1279.
      However, even when an issue has been rendered moot, a court may address
the merits of the claim “where the conduct complained of is capable of repetition yet
likely to evade review, where the case involves issues important to the public interest
or where a party will suffer some detriment without the court’s decision.” Sierra
Club v. Pa. Pub. Util. Comm’n, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997) (en banc).




                                            4
      Here, the Petition is moot because Petitioner has been removed from the
Megan’s Law website, just as he requested PSP to do. Nevertheless, the issue here
fits within the exception to the mootness doctrine that Petitioner will suffer some
detriment without this Court’s decision. Petitioner has shown, as indicated by PSP’s
January 26, 2018 letter, that without a declaration that he is no longer required to
register in the Commonwealth as a sex offender, should he travel to another
jurisdiction, the agency in that jurisdiction tasked with registering sex offenders may
require him to register. See In re D.A., 801 A.2d 614, 616-17 (Pa. Super. 2002)
(holding that even though common pleas closed child’s dependency case, mother
resumed legal custody of child, and child’s status as a dependent child was dissolved,
mother still suffered a detriment due to the dependency finding as any future
allegation regarding the mother’s care of child would necessarily encompass
consideration of the dependency finding).
      On the merits, as PSP effectively concedes, after Muniz, retroactively
applying SORNA to Petitioner so to require him to register as a sex offender for life,
when under Megan’s Law I he was subject to only 10 years of registration, violates
the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions. In
Muniz, our Supreme Court held that applying SORNA to the defendant there,
making him subject to lifetime registration, when, had he not absconded before
sentencing, he would have been ordered to register for 10 years under the then-
effective Megan’s Law III,5 violated the Ex Post Facto Clauses of the United States
and Pennsylvania Constitutions.             Muniz, 164 A.3d at 1218, 1223.        The
Commonwealth filed a Petition for Writ of Certiorari in Muniz with the United States
Supreme Court, but it denied the requested relief. Since there is no argument that


      5
          42 Pa. C.S. § 9795.1 (expired).


                                              5
this case is distinguishable from Muniz, Muniz controls. After Muniz, to apply
SORNA to Petitioner based on a February 1999 conviction would violate the Ex
Post Facto Clauses of the United States and Pennsylvania Constitutions.
      Accordingly, this Court grants the Petition and Application because, pursuant
to Muniz, PSP may not enforce SORNA’s registration requirements against
Petitioner as a result of his February 8, 1999 conviction. We decline to order PSP
to remove all references to Petitioner from the Megan’s Law website, related
publications and documents, or destroy its records referring to him.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


J. J. M.,                                    :
                            Petitioner       :
                                             :   CASE SEALED
                     v.                      :   No. 386 M.D. 2017
                                             :
Pennsylvania State Police,                   :
                         Respondent          :


                                         ORDER


       NOW, March 20, 2018, the Motion of the Pennsylvania State Police (PSP) to
accept as timely its Motion to Dismiss the Petition for Review and the Petitioner’s
Application for Summary Relief is GRANTED. PSP’s Motion to Dismiss the
Petition for Review and the Petitioner’s Application for Summary Relief is
DENIED. The Petition for Review and the Petitioner’s Application for Summary
Relief are GRANTED in part, and PSP shall not enforce the Sex Offender
Registration and Notification Act’s (SORNA)1 registration requirements, which the
Pennsylvania Supreme Court declared violated the ex post facto clauses of both the
United States and Pennsylvania Constitutions in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), against Petitioner as a result of his February 8, 1999 conviction.


                                          _____________________________________
                                          RENÉE COHN JUBELIRER, Judge




       1
          Section 9799.10 to 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.
