                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Dennis Johnson,                        :
                  Petitioner                  :
                                              :    No. 343 M.D. 2017
              v.                              :
                                              :    Submitted: May 25, 2018
Frank Noonan, Commissioner                    :
Pennsylvania State Police,                    :
                   Respondent                 :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                FILED: July 17, 2018


              Presently before this Court in our original jurisdiction is the application
for summary relief filed by Robert Dennis Johnson (Johnson), pro se, in relation to his
petition for review in the nature of mandamus seeking his removal from the registration
requirements imposed on convicted sex offenders under 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
               Johnson was convicted of rape and involuntary deviate sexual intercourse
in 1993 and sentenced to an aggregate term of incarceration of 20-40 years. (Petition
for Review at ¶4.) At the time of his conviction, Pennsylvania had no statutes requiring
Johnson to register as a sex offender. (Petition for Review at ¶9.) However, Johnson
was paroled in 2014, at which time he was required to register under SORNA as a Tier
III offender. (Petition for Review at ¶5.) SORNA vests regulatory authority with the
Pennsylvania State Police (PSP) and the PSP maintains the sex offender registry.
(Petition for Review at ¶7.)
               On July 19, 2017, our Supreme Court issued a decision in Commonwealth
v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, __ U.S. __ (2018), which held that
SORNA’s registration provisions constituted punishment and that retroactive
application of these provisions to individuals convicted prior to the enactment of
SORNA violated the ex post facto clauses of the United States and Pennsylvania
Constitutions.3 Shortly after our Supreme Court’s decision in Muniz, Johnson filed his


that some portions of Megan’s Law II were unconstitutional in Commonwealth v. Williams, 832 A.2d
962 (Pa. 2003), and the General Assembly responded by enacting Megan’s Law III, Act of November
24, 2004, P.L. 1243. The United States Congress thereafter 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 subsequently 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
         Article I, Section 10 of the United States Constitution provides, in pertinent part, that, “No
State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.” U.S. CONST. art. I, §10. Article I, Section 17 of the
Pennsylvania Constitution provides that, “No ex post facto law, nor any law impairing the obligation
of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.”
PA. CONST. art. I, §17.


                                                  2
petition for review in the nature of mandamus seeking removal of the registration
requirements imposed upon him under SORNA. Johnson alleged that, because his
convictions pre-dated the enactment of SORNA, Muniz mandates the removal of these
requirements.
             The Office of Attorney General, on behalf of Frank Noonan, then-
Commissioner of the PSP (the Commissioner), filed an answer with new matter,
essentially denying the material allegations of Johnson’s petition for review. In new
matter, the Commissioner asserted that the Commonwealth was required to comply
with federal law, namely, the Adam Walsh Child Protection and Safety Act of 2006,
which states that registration requirements can be applied retroactively to convicted sex
offenders. Additionally, the Commissioner noted that the General Assembly passed
SORNA to ensure compliance with this federal law. The Commissioner indicated that,
under SORNA, any individual who was required to register with the PSP prior to
December 20, 2012, the effective date of SORNA, and did not do so must comply with
the SORNA registration requirements.           Because Johnson had not fulfilled his
registration obligation as of December 20, 2012, the Commissioner averred that he was
required to register pursuant to SORNA. The Commissioner further averred that
SORNA did not constitute criminal punishment; rather, it merely established a civil
registration system. (Answer and New Matter at ¶¶ 13-26.)
             The Commissioner recognized our Supreme Court’s decision in Muniz but
noted that, as of the date of filing of its answer with new matter, our Supreme Court
had granted a stay in Muniz pending an appeal to the United States Supreme Court.
The Commissioner characterized the Muniz decision as attempting to evade federal law
and indicated his belief that the decision would be overturned.             Hence, the




                                           3
Commissioner contended that Johnson’s reliance on Muniz was misplaced.4 Finally,
the Commissioner contended that SORNA did not violate the due process, ex post
facto, or any other clauses of the United States or Pennsylvania Constitutions. (Answer
and New Matter at ¶¶ 27-39.)
               On December 13, 2017, Johnson filed a reply to the new matter denying
the material allegations and reiterating that the Supreme Court’s decision in Muniz was
controlling. That same day, Johnson also filed an application for summary relief,
reiterating his allegation that the Supreme Court’s decision in Muniz is controlling and
provides him with a clear legal right to relief.5 The Commissioner filed an answer to
this application noting that the United States Supreme Court had not yet ruled on the
Commonwealth’s petition for a writ of certiorari in the Muniz case and any predictions
on the outcome of said petition were merely speculative.6
               In a brief in support of his application, Johnson simply reiterates his
allegation that our Supreme Court’s decision in Muniz, which held that retroactive
application of SORNA’s sexual offender registration requirements to individuals
convicted prior to the enactment of SORNA violated the ex post facto clauses of the

       4
       The Commissioner sought a stay in this case pending a final decision in the Muniz case.
However, this Court denied the Commissioner’s request.

       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); 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)).
         6
           The Commissioner’s answer to Johnson’s application for summary relief was filed on
January 10, 2018. Less than two weeks later, on January 22, 2018, the United States Supreme Court
denied the Commonwealth’s petition for writ of certiorari.




                                                  4
United States and Pennsylvania Constitutions, provides him with a clear right to relief.
In his brief in opposition to Johnson’s application, the Commissioner concedes that
retroactive application of SORNA to Johnson would be invalid in light of Muniz.
However, the Commissioner notes that the General Assembly enacted new legislation,
which was signed into law by the Governor on February 21, 2018,7 and that any
requirement that Johnson register as a sexual offender was the result of this new
legislation and not the result of pre-Act 10 SORNA. Hence, the Commissioner
contends that Johnson’s application must be denied.
              At the time of his parole in 2014, Johnson was required to register with
the PSP as a sexual offender under the original provisions of SORNA.                       The
Commissioner now concedes that the retroactive application of these pre-Act 10
SORNA registration requirements to Johnson would be invalid in light of our Supreme
Court’s decision in Muniz. Thus, it is clear that Johnson is entitled to summary relief
with respect to imposition of the pre-Act 10 SORNA provisions.
              Nevertheless, as the Commissioner notes in his brief, Johnson may be
subject to the newly-enacted registration requirements set forth in the Act 10
amendments to SORNA. To be clear, this Court makes no determination whether the
Act 10 amendments and the specific registration requirements contained therein apply
to Johnson.
              Accordingly, we grant Johnson’s application for summary relief, but only
to the extent that Johnson is relieved of any registration requirements under the pre-
Act 10 SORNA provisions.

       7
          See Act of February 21, 2018, P.L. 27, No. 10 (commonly referred to as Act 10). Act 10
amended several existing provisions of SORNA and also added several new sections found at 42
Pa.C.S. §§9799.42, 9799.51-9799.75. We note that the Governor recently signed new legislation
striking the Act 10 amendments and reenacting new SORNA provisions, effective June 12, 2018. See
Act of June 12, 2018, P.L. 1952, No. 29.


                                               5
________________________________
PATRICIA A. McCULLOUGH, Judge




6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Dennis Johnson,                  :
                  Petitioner            :
                                        :    No. 343 M.D. 2017
            v.                          :
                                        :
Frank Noonan, Commissioner              :
Pennsylvania State Police,              :
                   Respondent           :


                                    ORDER


            AND NOW, this 17th day of July, 2018, the application of Robert
Dennis Johnson for summary relief is hereby granted, but only to the extent that
Johnson is relieved of any registration requirements under the pre-Act 10 (Act of
February 21, 2018, P.L. 27, No. 10) provisions of the Sexual Offender Registration
and Notification Act.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
