           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Norman E. Gregory,                  :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 245 M.D. 2015
                                    : Submitted: February 23, 2018
Pennsylvania State Police,          :
                                    :
                         Respondent :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE WOJCIK                                          FILED: May 2, 2018


              Before this Court for disposition in our original jurisdiction are cross-
applications for summary relief regarding the application of Pennsylvania’s sex
offender registration scheme for convicted sex offenders in the act known as the
Sexual Offender Registration and Notification Act (SORNA),1 which is the General
Assembly’s fourth iteration of the law commonly referred to as Megan’s Law.2

       1
          Section 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41,
effective December 20, 2012.

       2
         The General Assembly enacted Megan’s Law I, Act of October 24, 1995, P.L. 1079 (Spec.
Sess. No. 1), which became effective 180 days thereafter. In response to Megan’s Law I being
ruled unconstitutional by our Supreme Court in Commonwealth v. Williams, 733 A.2d 593 (Pa.
1999), the General Assembly enacted Megan’s Law II, Act of May 10, 2000, P.L. 74. Our
Supreme Court held that some portions of Megan’s Law II were unconstitutional in
Commonwealth v. Gomer Williams, 832 A.2d 962 (Pa. 2003), and the General Assembly
Based on the Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), cert. denied, __ U.S. __, 138 S.Ct. 925 (2018), we grant in part,
deny in part, and dismiss as moot in part the cross-applications.
               On December 29, 2017, Norman E. Gregory (Petitioner), proceeding
pro se, filed a Third Amended Petition for Review (Petition) against Respondent
Pennsylvania State Police (PSP).3 In Count I of the Petition, Petitioner alleges that
SORNA is unconstitutional as applied to him because it denies him equal protection
under the law. In Count II, he requests that this Court strike Section 9799.11(b)(2)
of SORNA, 42 Pa. C.S. §9799.11(b)(2), which declares that SORNA “shall not be
construed as punitive.” He claims it is for the courts to determine whether or not a
statute is punitive, not the General Assembly. In Count III, he alleges that SORNA’s
notification    and     registration    requirements      and     related    procedures      are
unconstitutional as applied to him under the Ex Post Facto clause of the U.S.
Constitution, Article I, Section 10. Petition at ¶¶16-32.
               The facts of this case are not in dispute and are summarized as follows.
Petitioner pled nolo contendere on March 2, 1983, in the Allegheny County Court

responded by enacting Megan’s Law III, Act of November 24, 2004, P.L. 1243. The United States
Congress expanded the public notification requirements of state sexual offender registries in the
Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§16901-16945, and the
Pennsylvania General Assembly responded by passing SORNA on December 20, 2011, “[t]o bring
the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety
Act of 2006.” 42 Pa. C.S. §9799.10(1). SORNA went into effect a year later on December 20,
2012. Megan’s Law III was also struck down by our Supreme Court for violating the single subject
rule of Article III, Section 3 of the Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d
603 (Pa. 2013). However, by the time that it was struck down, Megan’s Law III had been replaced
by SORNA.

       3
          For additional history regarding this case, please refer to the Court’s prior opinions
entered in this matter. See Gregory v. Pennsylvania State Police (Pa. Cmwlth., No. 245 M.D.
2015, filed October 3, 2016); see also Gregory v. Pennsylvania State Police (Pa. Cmwlth., No.
245 M.D. 2015, filed March 21, 2017) (single judge op., Cohn Jubelirer, J.).
                                               2
of Common Pleas (trial court) to charges including Attempted Rape, Rape, Robbery,
Indecent Assault, Burglary, Terroristic Threats, False Imprisonment, Simple Assault
and Recklessly Endangering Another Person. Gregory v. Pennsylvania State Police
(Pa. Cmwlth., No. 245 M.D. 2015, filed October 3, 2016), slip op. at 2. On February
15, 1984, the trial court sentenced him to an aggregate term of incarceration of 17½
to 50 years. Id. Petitioner is currently incarcerated at a state correctional institution.
Id.   Petitioner has been granted parole but remains incarcerated with the
Pennsylvania Department of Corrections awaiting approval of a home plan. Id.
Upon his release from incarceration, Petitioner will be required to register as a sex
offender under SORNA. See 42 Pa. C.S. §9799.13(2).
             SORNA established a three-tier classification system for sexual
offenders. 42 Pa. C.S. §9799.14. An offender’s tier status is determined by the
offense committed and impacts the length of time an offender is required to register
and the severity of the punishment should an offender fail to register or provide false
registration information.      42 Pa. C.S. §9799.15; 18 Pa. C.S. §4915.1.          Under
SORNA,        Attempted      Rape      and       Rape    are    Tier     III    offenses.
42 Pa. C.S. §9799.14(d)(4).     Tier III offenders are required to register for the
offender’s lifetime. 42 Pa. C.S. §9799.15.
             Once the pleadings closed, the parties filed cross-applications for
summary relief. Petitioner filed a Motion for Summary Judgment seeking summary
judgment as to Counts II, relating to the General Assembly’s classification of
SORNA as nonpunitive, and III of his Petition, his ex post facto claim. In turn, PSP
filed an Application for Summary Relief as to all three counts. Both parties filed




                                             3
answers in response and briefs in support.4 The cross-applications are ready for
disposition.5


                              Count III – Ex Post Facto Law
                We begin by addressing the parties’ applications as they pertain to
Count III of the Petition, Petitioner’s ex post facto claim. Petitioner alleges that he
should not be subjected to SORNA’s registration requirements based on the
Supreme Court’s recent decision in Muniz. In Muniz, the Supreme Court held that
SORNA’s enhanced registration requirements are punitive in effect and cannot be
applied retroactively.       Because SORNA went into effect after his conviction,
Petitioner asserts that application of SORNA against him violates the ex post facto
clause of the United States and Pennsylvania Constitutions. PSP concedes that
“Muniz is final and dispositive in the instant case regarding the ex post facto
arguments set forth in Count III of the [Petition].” Respondent’s Status Report,
2/8/18, at ¶9.

       4
        Shortly after the parties filed briefs, PSP filed an Application for Stay in this proceeding
pending disposition of a petition for a writ of certiorari filed with the United States Supreme Court
in Muniz, which we granted. Commonwealth Court Order, 9/12/17, at 1. The United States
Supreme Court denied the petition for a writ of certiorari. See Pennsylvania v. Muniz, __ U.S. __,
138 S.Ct. 925 (2018). This Court lifted the stay. Commonwealth Court Order, 2/12/18, at 1.

       On March 1, 2018, Petitioner filed an unopposed motion to expedite, which this Court
granted. Commonwealth Court Order, 4/1318, at 1.

       5
         An application for summary relief may be granted if a party’s right to judgment is clear
and no material issues of fact are in dispute. Pa. R.A.P. 1532(b); Jubelirer v. Rendell, 953 A.2d
514, 521 (Pa. 2008); Eleven Eleven Pennsylvania, LLC v. Commonwealth, 169 A.3d 141, 145 (Pa.
Cmwlth. 2017). When ruling on an application for summary relief, “‘we must view the evidence
of record in the light most favorable to the non-moving party and enter judgment only if there is
no genuine issue as to any material facts and the right to judgment is clear as a matter of law.’”
Eleven Eleven, 169 A.3d at 145 (quoting Markham v. Wolf, 147 A.3d 1259, 1270 (Pa. Cmwlth.
2016) (citation omitted)).
                                                 4
              Both the federal and state constitutions prohibit the enactment of “ex
post facto” laws. U.S. Const. art. I, §10; Pa. Const. art. I, §17. In Muniz, our
Supreme Court examined whether SORNA constituted an unconstitutional ex post
facto law. The Court opined there are two critical elements that must be met for a
criminal or penal law to be deemed ex post facto. First, “‘it must be retrospective,
that is, it must apply to events occurring before its enactment.’” Muniz, 164 A.3d at
1195-96 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). Second, “‘it must
disadvantage the offender affected by it.’” Id. at 1196 (quoting Weaver, 450 U.S. at
29). Applying this analysis to SORNA, the Court determined that application of
SORNA implicated the ex post facto clauses because the statute would inflict greater
punishment on the sex offender than the law in effect at the time he committed his
crimes. Id. at 1196. Thus, our Supreme Court held that the registration provisions
of SORNA are punitive in nature and a retroactive application violates the federal
Ex Post Facto Clause of the U.S. Constitution, U.S. Const. art. I, §10, and the ex post
facto clause of the Pennsylvania Constitution, Pa. Const. art. I, §17. Id.6
              Here, Petitioner committed his crimes and entered a plea of nolo
contendere long before SORNA went into effect, when the registration requirements
for Attempted Rape and Rape were much less onerous. Consequently, SORNA
cannot be applied retroactively to Petitioner without violating the ex post facto
clauses of the U.S. and Pennsylvania Constitutions. Muniz, 164 A.3d at 1192-93.
Thus, Petitioner is not required to register under SORNA for the 1982 offenses that



       6
          In response to Muniz, the General Assembly amended SORNA by enacting the Act of
February 21, 2018, P.L. 27 (Act 10), which became effective immediately. See 42
Pa. C.S. §9799.11(b)(4). Because Petitioner committed his offenses in 1982 and was convicted in
1983, it would appear that Act 10 does not apply to Petitioner.


                                              5
led to his 1983 conviction. Accordingly, we grant summary relief to Petitioner on
Count III of his Petition and correspondingly deny summary relief to PSP on this
count.7




                                           MICHAEL H. WOJCIK, Judge




       7
         In light of this disposition, which is dispositive, we need not address the remaining
grounds asserted for summary relief, which are rendered moot.
                                              6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Norman E. Gregory,                  :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 245 M.D. 2015
                                    :
Pennsylvania State Police,          :
                                    :
                         Respondent :

                                     ORDER
             AND NOW, this 2nd day of May, 2018, upon consideration of the
parties’ cross-applications for summary relief to Petitioner’s Third Amended
Petition for Review (Petition), and for the reasons set forth in the foregoing opinion,
the applications are granted in part, denied in part, and dismissed as moot in part, as
follows:
             1. Petitioner’s Motion for Summary Judgment as to Count III of the
Petition (the ex post facto clause claim) is GRANTED, and Respondent’s
Application for Summary Relief in this regard is DENIED. Respondent shall not
enforce the Sexual Offender Registration and Notification Act’s1 registration
requirements against Petitioner for the offenses that led to his 1983 conviction.
             2. Counts I and II of the Petition and the parties’ respective applications
as they pertain to these counts are DISMISSED AS MOOT.


                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge


      1
          Section 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41,
effective December 20, 2012.
