           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tommy Lee Jackson,              :
                     Petitioner :
                                :
         v.                     :
                                :
Commonwealth of Pennsylvania,   : No. 388 M.D. 2014
                     Respondent : Argued: June 6, 2016


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: July 7, 2016


               Before this Court, in our original jurisdiction, are cross-applications
for summary relief filed by Tommy Lee Jackson (Jackson) and the Pennsylvania
State Police (PSP) on Jackson’s Petition for Review in the Nature of a Writ of
Mandamus1 (Petition). In his Petition, Jackson asks this Court to direct the PSP to

       1
         “The writ of mandamus exists to compel official performance of a ministerial act or
mandatory duty. Mandamus cannot issue to compel performance of a discretionary act or to
govern the manner of performing the required act. [Courts] may issue a writ of mandamus
where the petitioners have a clear legal right, the responding public official has a corresponding
duty, and no other adequate and appropriate remedy at law exists. . . . Thus, we have held that
mandamus will lie to compel action by an official where his refusal to act in the requested way
stems from his erroneous interpretation of the law.” Fagan v. Smith, 41 A.3d 816, 818 (Pa.
2012). (Citations and internal quotes omitted.) While just styled as a mandamus action,
Jackson’s Petition requests this Court to declare that SORNA, as applied to Jackson, is
unconstitutional because it violates the Equal Protection Clause of the United States Constitution
and, therefore, Jackson is no longer required to register with the PSP as a sex offender. This
claim asserting that SORNA is unconstitutional sounds in declaratory and injunctive relief, not
mandamus.
remove his name from the list of offenders required to comply with the provisions
of the Act known as Megan’s Law IV or the Sexual Offender Registration and
Notification Act (SORNA)2 because he completed his registration period prior to
the law’s enactment or, in the alternative, hold that the application of SORNA to
Jackson violates the Equal Protection Clause of the United States Constitution. For
the following reasons, we grant Jackson’s application on equal protection grounds
and deny the cross-application of the PSP.


                                               I.
              The following facts are taken from the parties’ joint stipulation of
facts. In October 1990, Jackson was charged with violation of Texas Penal Code
§21.11, Indecency with a Child by Contact. On or about April 12, 1991, Jackson


       2
          Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§9799.10-9799.41.
SORNA is the fourth iteration of Megan’s Law. Megan’s Law I, the Act of October 24, 1995,
P.L. 1079 (Spec. Sess. No. 1), was enacted on October 24, 1995, but because it was largely ruled
unconstitutional by our Supreme Court in Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999),
Megan’s Law II, the Act of May 10, 2000, P.L. 74, No. 18, was enacted. “Our Supreme Court
held that some portions of Megan’s Law II were unconstitutional in Commonwealth v. Gomer
Williams, 574 Pa. 487, 832 A.2d 962 (Pa. 2003), and the General Assembly responded by
enacting Megan’s Law III on November 24, 2004. 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 states were required to
implement its provision or lose certain federal funding. Taylor v. Pennsylvania State Police, 132
A.3d 590, 595 n.7 (Pa. Cmwlth. 2016). In response, our General Assembly passed SORNA on
December 20, 2011, with the declared purpose of “bring[ing] 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, 624 Pa. 53, 84 A.3d 603,
616 (Pa. 2013). However, by the time it was struck down, Megan’s Law III had been replaced
by SORNA.” Taylor, 132 A.3d at 595, n.7.




                                               2
pleaded guilty to one count of Indecency with a Child by Contact and was
sentenced to ten years’ probation. In May 1993, Jackson violated his probation by
failing, inter alia, to report to the probation office and pay court costs. He was
subsequently resentenced to ten years imprisonment, for which he served five
years in prison and the remaining five years on parole. Jackson was discharged
from all supervision on January 15, 2003.


                Pursuant to Texas’ version of Megan’s Law,3 Jackson registered as a
sexual offender in the State of Texas in 1997, 2000, 2001 and 2002. Jackson
moved to the State of Delaware in 2002 where he was likewise required to register
as a sexual offender, and then moved to the Commonwealth of Pennsylvania in
June 2004. By the time he moved to Pennsylvania, Jackson had been registering as
a sex offender in his previous states of residence for approximately six years.


                When Jackson moved to Pennsylvania in 2004, Megan’s Law II 4 was
in effect and Jackson’s Texas conviction for Indecency with a Child by Contact
required him to register with the PSP for ten years.5 In 2008, Jackson requested a

       3
        See Act of May 26, 1991, 72d Leg., ch. 572 §1, 1991 Tex. Gen. Laws 2029. The
Commonwealth’s first sexual offender registration statute, referred to as Megan’s Law I, Act of
October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was not enacted until October 24, 1995, and
became effective 180 days thereafter.

       4
           Act of May 10, 2000, P.L. 74, formerly 42 Pa. C.S. §§9791-9799.7.

       5
          The PSP categorized Jackson’s Texas conviction for Indecency with a Child by Contact
as being similar to the Pennsylvania crime of Indecent Assault, 18 Pa. C.S. §3126, graded as a
first-degree misdemeanor and carrying a ten-year registration period. See Section 9795.1(a) of
Megan’s Law II, formerly 42 Pa. C.S. §9795.1(a).




                                                3
review of his sexual offender registration status to which the PSP responded that
his period of registration began on June 25, 2004, when he ostensibly first
registered with the PSP after moving to Pennsylvania, and would run until June 25,
2014.


               SORNA was enacted on December 20, 2011, and went into effect a
year later, establishing a three-tier classification system for sexual offenders. See
Section 9799.14 of SORNA, 42 Pa. C.S. §9799.14. On or about December 3,
2012, the PSP notified Jackson that pursuant to SORNA, he was now classified as
a Tier III offender and would have to register quarterly every year for the rest of
his life. Jackson is no longer on probation or parole for his Texas conviction and is
still currently registering with the PSP as a sexual offender pursuant to SORNA.


                                                 II.
               Both parties filed applications for summary relief.6                       Jackson’s
application for summary relief asserts that under Megan’s Law III,7 he was entitled
to credit for the six years he registered as a sex offender out-of-state prior to
moving to Pennsylvania. Jackson contends that under that version of Megan’s


        6
          Pa. R.A.P. 1532(b). An application for summary relief may be granted “[a]t any time
after the filing of a petition for review in an appellate or original jurisdiction matter . . . if the
right of the applicant thereto is clear.” Id. The application will be denied where there are
material facts in dispute or it is not clear that the applicant is entitled to judgment as a matter of
law. Brown v. Department of Corrections, 932 A.2d 316, 318 (Pa. Cmwlth. 2007).

        7
         Section 9795.2(b)(4) of Megan’s Law III, formerly 42 Pa. C.S. §9795.2(b)(4). This
provision of Megan’s Law III expired on December 20, 2012, per Section 9799.41 of SORNA,
42 Pa. C.S. §9799.41.




                                                  4
Law, his ten-year registration period expired prior to the enactment of SORNA on
December 20, 2012, and he is no longer required to register as a sex offender. In
the alternative, Jackson asserts that the PSP’s application of SORNA discriminates
against him by not giving him credit for the years he complied with his out-of-state
registration requirements, and he is treated differently than those sexual offenders
who began their registration period in Pennsylvania.


               The PSP’s cross-application for summary relief asserts that Jackson is
classified under SORNA as a Tier III sexual offender based on his Texas criminal
conviction, which is the equivalent of the Tier III Pennsylvania offense of Indecent
Assault, 18 Pa. C.S. §3126(a)(7).8 The PSP argues that application of SORNA to
Jackson does not violate equal protection because Jackson is treated the same as
any Megan’s Law II offender whose ten-year registration period was unexpired on
the date SORNA went into effect. The PSP also asserts that SORNA is reasonably
related to the legitimate state interests of promoting public safety and
accountability by ensuring that foreign sex offenders do not move to Pennsylvania
to avoid registering.




       8
         The PSP also asserts that Jackson was required to register as a sex offender for life in
Texas (Respondent’s Brief at 6), a representation that Jackson’s Counsel disputed at oral
argument. More importantly, the PSP’s assertion is in direct contravention of the Stipulation of
Facts and a letter that it sent to Jackson regarding his registration requirement, stating that he
only had to register for ten years.




                                                5
                                         III.
                                         A.
             Jackson contends that he should not be required to register under
SORNA because he completed his ten-year registration requirement prior to
SORNA’s effective date because he should be given credit for the approximate six
years he registered in Texas and Delaware before moving to the Commonwealth.
Megan’s Law III did give credit “as a result of prior compliance with registration
requirements” to sex offenders convicted in another jurisdiction and who met
certain criteria. Section 9795.2(b)(iii) of Megan’s Law III, formerly 42 Pa. C.S.
§9795.2(b)(iii). However, Megan’s Law III, including this provision that Jackson
relies upon, was declared unconstitutional for violation of the single subject rule of
Article III, Section 3 of the Pennsylvania Constitution. See Commonwealth v.
Neiman, 84 A.3d 603 (Pa. 2013).


             Megan’s Law II was in effect when Jackson moved to Pennsylvania in
2004 making it the operable statute. Under Megan’s Law II, sex offenders entering
the Commonwealth were required to register with the PSP: (1) if they were
convicted of an offense that was similar to an enumerated Pennsylvania Megan’s
Law predicate offense, or (2) if they were convicted of an offense that required
them to register as a sex offender in their originating jurisdiction. See section
9795.2(b)(1) of Megan’s Law II, formerly 42 Pa. C.S. §9795.2(b)(1).


             Jackson stipulates that neither Megan’s Law II nor SORNA provide
“credit” to sex offenders for the time period in which they properly registered in
another jurisdiction. Jackson also admits that in October 1990, he pleaded guilty to



                                          6
the charge of Indecency With a Child by Contact in the state of Texas and that this
offense is similar to the Pennsylvania offense of Indecent Assault, as the victim
was under the age of 13, 18 Pa. C.S. §3126(a)(7), which, in 2004, was graded as a
first degree misdemeanor.          Under Megan’s Law II, a conviction for Indecent
Assault graded as a first degree misdemeanor required individuals to register with
the PSP for a period of ten years. See section 9795.1(a)(1) of Megan’s Law II,
formerly 42 Pa. C.S. §9795.1(a)(1).


               Because Jackson was convicted of an offense similar to an
enumerated Pennsylvania Megan’s Law predicate offense, he was required to
register as a sex offender with the PSP for ten years. If Jackson is not given credit
for the time he registered out of state, his ten-year period of required registration
under Megan’s Law II would not have expired until 2014. SORNA states that
individuals “who had not fulfilled [their] period of registration as of December 20,
2012” were subject to its provisions, including the lifetime registration
requirement. See section 9799.13(3)(i) of SORNA, 42 Pa. C.S. §9799.13(3)(i).
Jackson would fall under this provision of SORNA because he had not completed
his ten-year period of registration prior to December 20, 2012, unless he was
unconstitutionally denied credit for the years he registered in other states.9


       9
         Jackson has not raised the issue that the PSP’s failure to give him credit for the time he
spent registering out-of-state violates the Full Faith and Credit Clause of the United States
Constitution, nor does he claim that the PSP improperly classified him as a Tier III offender
under SORNA or that SORNA is an ex post facto law. We will not address issues which have
not been specifically raised because “[i]t is not our role to invent arguments for” a petitioner,
Bruce L. Rothrock Charitable Foundation v. Zoning Hearing Board of Whitehall Township, 651
A.2d 587, 591 n.9 (Pa. Cmwlth. 1994), especially when that petitioner is represented by counsel.




                                                7
                                                  B.
                Jackson argues that even if he is subject to SORNA, its application to
him violates the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.10 Jackson asserts that as an out-of-state offender, he is
being treated differently than Pennsylvania offenders because SORNA does not
provide credit for time spent registering in another jurisdiction, requiring him to


      10
           Equal Protection requires that all:

                Persons in like circumstances will be treated similarly. However,
                it does not require that all persons under all circumstances enjoy
                identical protection under the law. The right to equal protection
                under the law does not absolutely prohibit the Commonwealth
                from classifying individuals for the purpose of receiving different
                treatment, and does not require equal treatment of people having
                different needs. The 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. In other words, a classification
                must rest upon some ground of difference which justifies the
                classification and have a fair and substantial relationship to the
                object of the legislation. Judicial review must determine whether
                any classification is founded on a real and genuine distinction
                rather than an artificial one.            A classification, though
                discriminatory, is not arbitrary or in violation of the equal
                protection clause if any state of facts reasonably can be conceived
                to sustain that classification. In undertaking its analysis, the
                reviewing court is free to hypothesize reasons the legislature might
                have had for the classification. If the court determines that the
                classifications are genuine, it cannot declare the classification void
                even if it might question the soundness or wisdom of the
                distinction.

Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005) (quoting Curtis v. Kline, 666 A.2d 265,
267 (Pa. 1995) (footnote and internal citations omitted)).




                                                  8
register for a longer period of time than an individual who committed his predicate
offenses in the Commonwealth.


             The PSP, in essence, is saying that if you are convicted of an offense
in another state, are required to register in that state for ten years, complete that
registration, and then move to Pennsylvania, you are still required to register in the
Commonwealth for another ten years or a lifetime, depending on how that offense
is now classified under SORNA.


             In general, economic and social legislation, including legislation
creating classifications or categories among criminal offenders, receives rational
basis review. Doe v. Miller, 886 A.2d 310, 315 (Pa. Cmwlth. 2005). Under this
standard, we must first determine whether the challenged statute seeks to promote
a legitimate state interest or public value. Id. at 316 (citing Commonwealth v.
Albert, 758 A.2d 1149 (Pa. 2000)). If so, we “must next determine whether the
classification adopted in the legislation is reasonably related to accomplishing that
articulated state interest or interests.” Miller, 886 A.2d at 316.


             The question here then becomes is there a rational basis for requiring
Jackson to register for a lifetime when a Pennsylvania offender who committed the
same act, on the same day, and who registered for ten years with the PSP is not
subject to a lifetime registration requirement under SORNA because he is
considered to have completed his registration period prior to the law’s enactment.
More simply, is there a rational basis for this difference in registration




                                           9
requirements based solely on the fact that Jackson’s offense occurred in another
state.


              When enacting Megan’s Law I, the General Assembly stated that:

              It is hereby declared to be the intention of the General
              Assembly to protect the safety and general welfare of the
              people of this Commonwealth by providing for
              registration and community notification regarding
              sexually violent predators who are about to be released
              from custody and will live in or near their neighborhood.
              It is further declared to be the policy of this
              Commonwealth to require the exchange of relevant
              information about sexually violent predators among
              public agencies and officials and to authorize the release
              of necessary and relevant information about sexually
              violent predators to members of the general public as a
              means of assuring public protection and shall not be
              construed as punitive.


Section 9791(b) of Megan’s Law I, formerly 42 Pa. C.S. §9791(b); see also
Commonwealth v. Gaffney, 733 A.2d 616, 619 (Pa. 1999).                  Megan’s Law II
contains identical language in that statute’s declared purpose. See Commonwealth
v. Gomer Williams, 832 A.2d 962, 969, 972 (Pa. 2003). Relying solely on this
statutory language, our Supreme Court, in both Gaffney and Williams, determined
that the General Assembly’s purpose in enacting the respective statutes was not
retribution, but to protect public safety.11

         11
         Courts within the Commonwealth have held that the various iterations of Megan’s Law
sought to promote the legitimate state interest of protecting public safety and welfare. See
Gaffney, 733 A.2d at 621 (regarding Megan’s Law I); Williams, 832 A.2d at 986 (regarding
Megan’s Law II); Miller, 886 A.2d at 316 (regarding Megan’s Law II); Coppolino v. Noonan,
102 A.3d 1254 (Pa. Cmwlth. 2014) (regarding SORNA).



                                            10
             In carrying out that purpose, our General Assembly in Megan’s Law
II classified individuals differently based on their perceived potential danger to the
community. Specifically, sexually violent predators were required to register for
their lifetime whereas individuals who were convicted of lesser offenses, referred
to as merely sexual offenders, were only required to register for ten years. See
Section 9795.1 of Megan’s Law II, formerly 42 Pa. C.S. §9795.1. Presumably
under this classification system, sexual offenders were considered less of a danger
to the community and, if not convicted of another like offense for ten years, the
statute’s registration and notification requirements were no longer needed to
protect public safety. See Miller, 886 A.2d at 316 (stating “courts are free to
hypothesize reasons why the legislature created the particular classification at
issue” and hypothesizing that Megan’s Law II identified the class of sexual
offenders as “deserving of attention because of the character of the predicate
offenses, the difficulties in rehabilitating offenders, and the consequent concern for
re-offense.”).


             Jackson was classified a sexual offender when he moved to
Pennsylvania in 2004 and the PSP admits that he was only required to register for
ten years. We can assume then that the PSP did not consider Jackson to pose the
same risk to the citizens of the Commonwealth as individuals classified as sexually
violent predators who were required to register for life. Because Pennsylvania
sexual offenders who completed their ten-year registration period before SORNA
was enacted are not required to register for the rest of their lives, requiring Jackson
to now register for the rest of his life under SORNA and not count all the years that
he has registered in other states, merely because his offense was committed in



                                          11
another state, is not reasonably related to enhancing public safety and welfare.
This fact was recognized in Megan’s Law III, although that statute was found
unconstitutional for other reasons. Consequently, the PSP’s decision not to credit
Jackson for the approximately six years he spent registering out-of-state is arbitrary
and not reasonably related to the object of the Commonwealth’s sex offender
legislation; therefore, the PSP’s application of the law violates the Equal Protection
Clause of the United States Constitution.12


              Jackson’s ten-year registration period should have expired sometime
in 2008 and there are no allegations that he has committed any new sexual offenses
since his 1991 Texas conviction. Because Jackson had successfully completed his
registration period prior to SORNA’s effective date in December 2012, he was not
subject to the act and the PSP erred in mandating that he continue to register as a
sexual offender under SORNA.


              For the foregoing reasons, we grant Jackson’s application for
summary relief, deny the PSP’s cross-motion, and order that Jackson’s name be
removed from the list of offenders required to register under SORNA.




                                                  DAN PELLEGRINI, Senior Judge

       12
         Jackson has not raised an equal protection claim under the Pennsylvania Constitution.
However, we note that “[t]he equal protection provisions of the Pennsylvania Constitution are
analyzed under the same standards used by the United States Supreme Court when reviewing
equal protection claims under the Fourteenth Amendment.” Love v. Borough of Stroudsburg,
597 A.2d 1137, 1139 (Pa. 1991).



                                             12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tommy Lee Jackson,              :
                     Petitioner :
                                :
         v.                     :
                                :
Commonwealth of Pennsylvania,   :
                     Respondent : No. 388 M.D. 2014




                                    ORDER


                AND NOW, this 7th day of July, 2016, we hereby grant Tommy
Lee Jackson’s application for summary relief, deny the Pennsylvania State Police’s
cross-application for summary relief, and hold that Jackson is no longer required to
register as a sexual offender.




                                             DAN PELLEGRINI, Senior Judge
