          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas E. Huyett,                        :
                                         :
                          Petitioner     :
                                         :
                    v.                   : No. 516 M.D. 2015
                                         : Submitted: February 10, 2017
Pennsylvania State Police,               :
Commonwealth of Pennsylvania,            :
                                         :
                          Respondent     :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                          FILED: August 17, 2017

              Before this Court in our original jurisdiction are the preliminary
objections of the Pennsylvania State Police (PSP) to Thomas Huyett’s (Petitioner)
Petition for Review in the Nature of a Complaint in Mandamus (Petition). For the
reasons that follow, we sustain in part and overrule in part PSP’s preliminary
objections.


                                  I. Background
              Petitioner, a convicted sex offender, filed the Petition against PSP
challenging his registration requirements under the Sexual Offender Registration
and Notification Act (SORNA),1 which is the fourth iteration of the law commonly
known as Megan’s Law.2 In support of his Petition, he alleged the following. In
March 2004, Petitioner was charged with 12 offenses including misdemeanors and
felonies.       Specifically, he was charged with:                  (1) indecent exposure,
18 Pa. C.S. §3127 (M2); (2) open lewdness, 18 Pa. C.S. §5901 (M3); (3)
promoting prostitution, 18 Pa. C.S. §5902(a)(1) (M3); (4) promoting prostitution,
18 Pa. C.S. §5902(a)(2) (M3); (5) harassment, 18 Pa. C.S. §2709(a)(4) (M3); (6)
interference with custody of children, 18 Pa. C.S. §2904(a) (F3); (7) criminal
coercion, 18 Pa. C.S. §2906(a)(2) (M2); (8) promoting prostitution, 18 Pa. C.S. §
5902(b)(3) (F3); (9) corruption of minors, 18 Pa. C.S. §6301(a) (M1); (10)
possession of child pornography, 18 Pa. C.S. §6312(d)(1) (F3); (11) unlawful
contact or communication with a minor, 18 Pa. C.S. §6318 (F3); and, (12) criminal
use of a communications facility, 18 Pa. C.S. §7512(a) (F3). Petition, ¶¶3-4.
                “Pursuant     to   a   negotiated     Plea    Arrangement        between      the
Commonwealth” and Petitioner, the “Commonwealth agreed” that if Petitioner
pled “guilty to three of the felonies, that the Commonwealth would be agreeable to
the dismissal of the remaining nine charges.” Petition, ¶7. Petitioner admits the
guilty plea was an “open plea.” Petition, ¶9. In February 2005, Petitioner entered
an open guilty plea to three felonies of the third degree: possession of child
pornography, unlawful contact or communication with a minor and criminal use of
a communications facility. In May 2005, the sentencing court sentenced Petitioner



       1
           42 Pa. C.S. §§9799.10–9799.41.

       2
          Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1). This first version of the act is
referred to as Megan’s Law I.


                                                2
to 23 months in prison, six months of house arrest and ten years of probation.
Petition, ¶15.
              Petitioner maintains that, as part of the plea agreement, he was
required to register as a sex offender under Megan’s Law for 10 years. Petition,
¶13. At the time of his plea as well as sentencing, the second iteration of Megan’s
Law (Megan’s Law II)3 was in effect, which required a 10-year registration period.
Former Section 9793 of Megan’s Law II, 42 Pa. C.S. §9793. In November 2004,
the General Assembly enacted Megan’s Law III.4 Then, on December 20, 2011,
the General Assembly enacted SORNA, which is the fourth iteration of Megan’s
Law. SORNA took effect one year later on December 20, 2012. Under SORNA,
the General Assembly required lifetime registration for individuals convicted of
two or more offenses requiring 10-year registration. 42 Pa. C.S. §9799.15(a)(3).
SORNA is the sexual offender registration law currently in effect.
              After SORNA was enacted, PSP notified Petitioner that he was now
subject to lifetime sex offender registration. Petition, ¶58. Petitioner contacted
PSP and requested the agency remove his name from PSP’s sex offender website.
Petition, ¶58. PSP denied the request, advising, “[i]f you believe that a legal basis
exists to have [Petitioner] removed due to negotiations with the Berks County



       3
        Act of May 10, 2000, P.L. 74. The General Assembly enacted Megan’s Law II in
response to Megan’s Law I being ruled unconstitutional by our Supreme Court in
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999).

       4
         Act of November 24, 2004, P.L. 1243. The General Assembly enacted Megan’s Law
III to address portions of Megan’s Law II, Act of May 10, 2000, P.L. 74, which the Supreme
Court declared unconstitutional in Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003).
Megan’s Law III also required Petitioner to register for ten years for his convictions. Former
Section 9795.1(a)(1) of Megan’s Law III, 42 Pa. C.S. §9795.1(a)(1).


                                              3
District Attorney’s Office, we recommend that you contact that office with any
concerns.” Petition, Exhibit C.
              In October 2015, Petitioner filed a petition for review in the nature of
a complaint in mandamus in this Court’s original jurisdiction, challenging his
registration status under SORNA.5 Petitioner alleges that his period of probation
will terminate in 2015 pursuant to his plea agreement. Petition, ¶56. He also
alleges that under the terms of his initial plea agreement, his 10-year registration
period should have terminated in August 2015. Petition, ¶57.
              Petitioner maintains that his initial 10-year sex offender registration
period was part of his plea bargain.           Petition, ¶¶11-13.      He argues that plea
bargains are subject to the laws of contract and contract principles. Petition, ¶30.
He maintains that the Constitution prohibits states from making any law that
impairs the obligation of contracts and that SORNA is unconstitutional to the
extent that it changes the obligation of plea bargains and deprives him of equal
protection under the law as well as liberty without due process.
              Although his claims are not separated or enumerated as counts, we
have gleaned three counts based on the retroactive application of SORNA’s
registration provisions: (I) deprivation of due process; (II) deprivation of equal
protection under the law; and (III) breach of Petitioner’s plea agreement with the
Commonwealth. Ultimately, he requests this Court to enter a rule to show cause



       5
         Prior to that, in December 2014, Petitioner filed in the Court of Common Pleas of Berks
County (trial court) a “Petition to Enforce Plea Bargain and/or to Terminate
Registration/Supervision Requirement.” Petition, Exhibit C, Appendix A at 11 (Common Pleas
Docket). The trial court issued a rule to show cause and scheduled a hearing. Id. Thereafter,
Petitioner filed a motion to withdraw the Petition to Enforce Plea Bargain. Id.


                                               4
upon PSP to show why his plea agreement should not be strictly enforced and his
period to register as a sex offender be terminated.
             In response, PSP filed preliminary objections. PSP objects to the
Petition in its entirety on the grounds that the Petition is barred by the statute of
limitations and mandamus will not lie against PSP. PSP also objects to each count
on the basis that the Petition is legally insufficient (demurrer) pursuant to
Pa. R.C.P. No. 1028(a)(4). Specifically, PSP asserts Petitioner’s due process claim
fails as a matter of law as the courts of this Commonwealth have held that
SORNA’s registration provisions do not constitute an ex post facto law; his equal
protection claim fails because SORNA does not create a suspect classification and
Petitioner does not state to which suspect class he belongs; and his contract claim
fails because PSP is not the proper party.


                              II. Preliminary Objections
             A demurrer contests the legal sufficiency of a complaint. Barge v.
Pennsylvania Board of Probation and Parole, 39 A.3d 530, 538 (Pa. Cmwlth.
2012), affirmed, 96 A.3d 360 (Pa. 2014). In ruling on preliminary objections, the
courts must accept as true all well-pled facts that are material and all inferences
reasonably deducible from the facts. Id. However, the courts are not required to
accept as true any unwarranted factual inferences, conclusions of law or
expressions of opinion. Id. For preliminary objections to be sustained, it must
appear with certainty that the law will permit no recovery. Id. Any doubt must be
resolved in favor of the non-moving party. Id. With these principles in mind, we
address PSP’s preliminary objections.




                                             5
                             A. Statute of Limitations & Mandamus
               First, PSP objects on the grounds that the Petition is barred by the
statute of limitations and mandamus will not lie against PSP. Recently, this Court
addressed and rejected identical objections in another Megan’s Law case, Taylor v.
Pennsylvania State Police, 132 A.3d 590 (Pa. Cmwlth. 2016). In light of this
controlling case law, PSP concedes its objections should be determined
accordingly. Respondent’s Brief in Support of Preliminary Objections, at 11 n.6.
Therefore, based on Taylor, we overrule PSP’s objections that Petitioner’s claims
are barred by the applicable statute of limitations and that mandamus will not lie
against PSP.


                                B. Demurrer to Due Process Claim
               Next, PSP demurs on the basis that the Petition is legally insufficient
pursuant to Pa. R.C.P. No. 1028(a)(4).                Petitioner alleges the retroactive
application of SORNA’s registration requirements deprives him of constitutional
due process.6 According to PSP, Petitioner’s due process claims fail as a matter of
law because SORNA is nonpunitive in nature and therefore any retroactive
application is not unconstitutional as alleged.
               Recently, the Pennsylvania Supreme Court held that the registration
provisions of SORNA are punitive in nature and a retroactive application violates
the federal ex post facto clause, U.S. Const. art. I, §10, and the ex post facto clause

       6
         Where a case does not involve application of a judicial precedent interpreting a statute
or judicial abrogation of the common law, it is more properly framed as an ex post facto
challenge and not a due process issue. Commonwealth v. Rose, 81 A.3d 123, 126 n.3 (Pa. Super.
2013), aff’d, 127 A.3d 794 (Pa. 2015) (citing Metrish v. Lancaster, __ U.S. __, 133 S.Ct. 1781
(2013) (discussing difference between ex post facto violation and related due process
challenge)).


                                               6
of the Pennsylvania Constitution, Pa. Const. art. I, §17. Commonwealth v. Muniz,
__ A.3d __, __ (Pa., No. 47 MAP 2016, filed July 19, 2017), slip op. at 55.7 As it
now appears that the law may permit recovery on Petitioner’s claim, we overrule
the PSP’s objection.


                             C. Demurrer to Equal Protection Claim
               PSP also demurs to Petitioner’s equal protection claim because
Petitioner does not state a claim that the application of SORNA deprives him of
equal protection under the law. According to PSP, Petitioner does not identify
what suspect class to which he belongs or state how SORNA creates any suspect
classification.
               Equal protection is the constitutional principle that “‘like persons in
like circumstances will be treated similarly’” under the law. Doe v. Miller, 886
A.2d 310, 315 (Pa. Cmwlth. 2005) (quoting Curtis v. Kline, 666 A.2d 265, 267 (Pa.
1995)). The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides: “No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” Article I, Sections 1 and 26 of the
Pennsylvania Constitution provide the basis for equal protection under state law.
Pa. Const. art. I, §1 (“All men are born equally free and independent, and have
certain inherent and indefeasible rights.”); Pa. Const. art. I, §26 (“Neither the
Commonwealth nor any political subdivision thereof shall deny to any person the

       7
          Although the Muniz opinion is technically a plurality opinion, Justice Wecht’s
concurring opinion, in which Justice Todd joins, provides precedential value to that portion of
the opinion holding that applying the federal ex post facto standards leads to the conclusion that
SORNA is punitive in nature and cannot be applied retroactively. However, Justice Wecht does
not share the plurality’s interpretation of the Pennsylvania Constitution as providing greater
protection than its federal counterpart and concurs in result only to that portion of the opinion.


                                                7
enjoyment of any civil right, nor discriminate against any person in the exercise of
any civil right”).8
              In Miller, we addressed whether the classification scheme of Megan’s
Law II, which created classifications for sexual and non-sexual offenders, violated
the Equal Protection Clauses of the United States and Pennsylvania Constitutions.
886 A.2d at 313. We reasoned that “‘[t]he prohibition against treating people
differently under the law does not preclude the Commonwealth from resorting to
legislative classifications, provided that those classifications are reasonable rather
than arbitrary and bear a reasonable relationship to the object of the legislation.’”
Id. at 315 (quoting Curtis, 666 A.2d at 268 (citations omitted)). Determining
whether a classification is arbitrary depends on the type of classification at issue.

              The types of classifications are: (1) classifications which
              implicate a “suspect” class or a fundamental right; (2)
              classifications implicating an “important” though not
              fundamental right or a “sensitive” classification; and (3)
              classifications which involve none of these. Should the
              statutory classification in question fall into the first
              category, the statute is strictly construed in light of a
              “compelling” governmental purpose; if the classification
              falls into the second category, a heightened standard of
              scrutiny is applied to an “important” governmental
              purpose; and if the statutory scheme falls into the third
              category, the statute is upheld if there is any rational
              basis for the classification.



       8
         Although Petitioner does not make it clear whether he is pursuing an equal protection
claim under the United States Constitution or the Pennsylvania Constitution, we analyze the
equal protection provisions of the Pennsylvania Constitution “under the same standards used by
the United States Supreme Court when reviewing equal protection claims under the Fourteenth
Amendment to the United States Constitution.” Love v. Borough of Stroudsburg, 597 A.2d
1137, 1139 (Pa. 1991).


                                              8
Id. (quoting Curtis, 666 A.2d at 268 (citation omitted)). Upon determining that
“convicted sexual offenders as a category of felons[ ] is not ... a suspect class,” we
reviewed Megan’s Law II’s registration requirements under a rational basis
standard and concluded that the classification scheme met equal protection
standards because it sought to promote the legitimate state interest of promoting
public safety and welfare. Id. at 316.
             Based on our holding in Miller, Petitioner’s equal protection claim
under SORNA must likewise fail. Convicted sex offenders are not a suspect class.
Miller, 886 A.2d at 316. Petitioner vaguely asserts there is a classification between
convicted sex offenders with enforceable plea agreements and those without. He
claims that this somehow implicates important rights or creates a “sensitive”
classification warranting heightened scrutiny. However, SORNA does not create
any such classification between offenders with plea agreements and those without.
Rather, SORNA affords identical treatment to all Pennsylvania residents convicted
of a registering offense, without regard to whether the conviction was the result of
a negotiated plea agreement. Petitioner does not claim that he is being treated
differently than persons convicted of the same crime as Petitioner. Even under the
rational basis test, SORNA is rationally related to the legitimate state interest of
promoting public safety and welfare. See Miller. For these reasons, we sustain
PSP’s preliminary objection to Petitioner’s equal protection claim.


                         D. Demurrer to Breach of Contract Claim
             Lastly, PSP demurs to Petitioner’s breach of contract claim on the
basis that it is not the proper party to the plea agreement. Petitioner alleges that the
PSP’s retroactive application of SORNA, which requires lifetime registration, is a


                                           9
breach of his plea agreement, which required a 10-year registration. Petitioner
asserts he is entitled to strict enforcement of his plea agreement as a matter of
contract law. He asks this Court to enforce the plea agreement and order PSP to
reduce his registration period to 10 years.
             “[T]he convicted criminal is entitled to the benefit of his bargain
through specific performance of the terms of the plea agreement.” Commonwealth
v. Martinez, 147 A.3d 517, 533 (Pa. 2016). “Thus, a court must determine whether
an alleged term is part of the parties’ plea agreement. If the answer to that inquiry
is affirmative, then the convicted criminal is entitled to specific performance of the
term.” Id.
             When a dispute over any particular term of a plea agreement arises,
courts will examine “what the parties to this plea agreement reasonably understood
to be the terms of the agreement.” Commonwealth v. Hainesworth, 82 A.3d 444,
447 (Pa. Super. 2013) (quoting Commonwealth v. Fruehan, 557 A.2d 1093, 1095
(Pa. Super. 1989) (internal citations omitted)). A determination will be made
“based on the totality of the surrounding circumstances,” and “[a]ny ambiguities in
the terms of the plea agreement will be construed against the [Commonwealth].”
Id. (quoting Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995)
(internal citations omitted)).
             In Dougherty v. Pennsylvania State Police, 138 A.3d 152 (Pa.
Cmwlth. 2016), this Court addressed the issue raised here. We explained that
PSP’s role in SORNA is ministerial. Dougherty, 138 A.3d at 159. With regard to
the breach of contract claim against PSP, we held:

             The PSP is not a party to the plea agreement and disputes
             over the alleged breach of a plea agreement, and the
             impact of the plea agreement on a sexually violent

                                          10
              offender’s duty to register with the PSP, are properly
              resolved through the criminal justice system in the
              appropriate sentencing court. . . . Such disputes should
              name the Commonwealth as the defendant as it is the
              Commonwealth, acting through the appropriate
              prosecutor, not the PSP, who is a party to the plea
              agreement.
Id. at 160.
              Upon receipt of information concerning an offender convicted of a
sexually violent offense prior to the enactment of SORNA, the PSP may take one
of the following three steps:

              If the sentencing order provided to the appropriate
              correctional institution, office or board of probation and
              parole, or PSP by the sentencing court includes a specific
              term of registration, the PSP is bound to apply the
              registration term included in the sentence and nothing
              more. If, however, the sentencing order is unclear or
              ambiguous, the PSP may seek guidance from the
              sentencing court and/or other appropriate entities before
              applying the registration period upon a sexual offender.
              See Section 9799.16(d) of SORNA, 42 Pa. C.S.
              §9799.16(d) (stating that “[t]here shall be cooperation
              between the [PSP], State and county correctional
              institutions, the Pennsylvania Board of Probation and
              Parole, the county office of probation and parole, any
              court with jurisdiction over a sexual offender ... to
              ensure” that information is collected and placed on the
              registry.). Finally, if[] the sentencing order is silent on
              the term of registration imposed upon the offender, the
              PSP must apply the appropriate registration period based
              on the offense of conviction as required by Section
              9799.15 of SORNA, 42 Pa. C.S. §9799.15.

Id. at 159-160 (internal citation omitted). However, PSP does not have a duty, in
any of these circumstances, to inquire into the content or intent of any underlying
plea agreement. Id.


                                          11
               Here, Petitioner alleged that the 10-year registration period was part
of the plea negotiations and agreement. Petition, ¶¶10, 11, 16, 18, 20. Petitioner
attached to his Petition the sentencing court’s Notification of Duty to Register
(Notification), dated May 9, 2005.             Petition, Exhibit A.      According to the
Notification, the sentencing court acknowledged Petitioner’s guilty plea to three
third-degree felonies, found him not to be a sexually violent predator, and directed,
among other things:

               After you are released from prison, you must register a
               current address with the [PSP]. You are required to
               register a current address for a period of ten years.
Id.
               However, the Notification merely demonstrates that the sentencing
court informed Petitioner of his duty to register. The Notification is not the plea
agreement. See Pa. R. Crim. P. 590(B).9 The Notification does not reflect the

      9
          Rule 590(B) of the Rules of Criminal Procedure provides:

               (B) Plea Agreements

                      (1) When counsel for both sides have arrived at a plea
               agreement, they shall state on the record in open court, in the
               presence of the defendant, the terms of the agreement, unless the
               judge orders, for good cause shown and with the consent of the
               defendant, counsel for the defendant, and the attorney for the
               Commonwealth, that specific conditions in the agreement be
               placed on the record in camera and the record sealed.

                      (2) The judge shall conduct a separate inquiry of the
               defendant on the record to determine whether the defendant
               understands and voluntarily accepts the terms of the plea
               agreement on which the guilty plea or plea of nolo contendere is
               based.

(Footnote continued on next page…)
                                              12
terms of the plea agreement, i.e., that the ten-year period of registration was part of
the bargained-for exchange in sentencing. On its face, the Notification merely
shows that the sentencing court complied with the requirements of former Section
9795.3 of Megan’s Law II; it does not reflect a “specific term of registration” as
part of the plea arrangement required to bind PSP. See Dougherty, 138 A.3d at
159-60.
              Because Petitioner’s breach of contract claim is premised on the terms
of his plea agreement, any dispute regarding those terms must involve the
Commonwealth, not the PSP. As we explained in Dougherty, PSP is not a party to
the plea agreement.         Therefore, a breach of contract claim against PSP is
inappropriate. See Malone v. Pennsylvania State Police, (Pa. Cmwlth., No. 577
M.D. 2015, filed April 28, 2017) (dismissing the petitioner’s breach of contract
claim against PSP in a similar case).10            Thus, we sustain PSP’s preliminary
objection.




                                      III. Conclusion
              In conclusion, we overrule the PSP’s preliminary objections that the
Petition is time barred and mandamus will not lie against PSP. We also overrule
the PSP’s demurrer to Petitioner’s due process claim in light of Muniz. However,



(continued…)

Pa. R. Crim. P. 590(B).
       10
          Section 414 of this Court’s Internal Operating Procedures authorizes the citation of
unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as
binding precedent. 210 Pa. Code §69.414.


                                              13
we sustain PSP’s demurrers to Petitioner’s equal protection and breach of contract
claims and dismiss these claims with prejudice.




                                      MICHAEL H. WOJCIK, Judge




                                        14
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas E. Huyett,                       :
                                        :
                         Petitioner     :
                                        :
                    v.                  : No. 516 M.D. 2015
                                        :
Pennsylvania State Police,              :
Commonwealth of Pennsylvania,           :
                                        :
                         Respondent     :


                                      ORDER


            AND NOW, this 17th day of August, 2017, the Pennsylvania State
Police’s (PSP) preliminary objections to Thomas E. Huyett’s Petition for Review
in the Nature of a Complaint in Mandamus (Petition) are disposed of as follows:


      1. PSP’s preliminary objections in the nature of demurrer on the basis that
         the Petition is time barred and mandamus relief is not available are
         OVERRULED.

      2. PSP’s preliminary objection in the nature of demurrer to Petitioner’s due
         process claims is OVERRULED.

      3. PSP’s preliminary objection in the nature of demurrer to Petitioner’s
         equal protection claim is SUSTAINED. Petitioner’s equal protection
         claim is DISMISSED with prejudice.
      4. PSP’s preliminary objection in the nature of demurrer to Petitioner’s
          breach of contract claim is SUSTAINED. Petitioner’s breach of contract
          claim is DISMISSED with prejudice.


PSP is hereby directed to file an answer to the Petition within thirty (30) days of
the date of this order.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
