SORNA Update: PA Superior Court Finds Trial Court Must Reduce Megan’s Law Tier of Registrants Who Had Tiers Retroactively Increased

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has issued an incredibly important decision for Megan’s Law registrants who found their registration requirements and terms increased by Pennsylvania’s SORNA law. In Commonwealth v. Fernandez, the Court held that trial courts have the jurisdiction to and should reduce Megan’s Law registrants’ registration tiers to the tier that was in effect at the time of the plea. This means that if you initially pleaded guilty to or were found guilty of a Tier I offense for a registration period of ten years and later learned that you would have to register as a Tier III offender for life, you may be able to obtain relief by filing a Petition in the Court of Common Pleas which heard your case. This decision is a no brainer – obviously, the Pennsylvania State Police should not be able to retroactively increase the punishment associated with a conviction. However, until this decision, it was unclear how someone affected by the Supreme Court’s decision in Muniz which found that SORNA could not be applied retroactively could obtain relief or if Muniz even applied retroactively.   

Fernandez is the decision of an en banc panel of the Superior Court, meaning it is binding on all other panels unless reversed by the Pennsylvania Supreme Court. In Fernandez, nineteen Megan’s Law registrants filed identical Petitions to Enforce the Plea Agreement or for a Writ of Habeas Corpus in the Court of Common Pleas of Philadelphia. Each of the defendants had pleaded guilty to charges involving sexual offenses prior to the enactment of Pennsylvania SORNA’s statute on December 20, 2012. Under the previous version of Megan’s Law, two of the defendants pleaded guilty to crimes which did not require sex offender registration at all, and the remaining defendants had to register as Tier I offenders for ten years.

These cases were all unrelated, but there were similarities in terms of the plea bargains. In exchange for the guilty pleas, the Commonwealth withdrew various other charges which would have triggered lengthier periods of Megan’s Law Registration. At sentencing, each defendant was informed of whether they would have to register, and if so, for how long. All nineteen defendants subsequently violated their probation and were sentenced either to new periods of probation or incarceration.

When they were re-sentenced, the defendants were told that the new SORNA law increased their registration requirements – meaning some were now required to register for 15 years, some for 25 years, and some for life. SORNA drastically increased the punishments and Megan’s Law consequences for many sex offenses, converting crimes that did not require registration such as Indecent Assault (M2) into Megan’s Law crimes and increasing the term of registration for many offenders. It even required registration for some crimes which did not involve sex acts. 

Because each of these defendants had pleaded guilty in Philadelphia, they filed the petitions in the Philadelphia Court of Common Pleas. Each defendant challenged the retroactivity of SORNA to their cases and argued that it violated the plea deals that each had made with the Commonwealth. The trial court denied the petitions, finding that the defendants were not entitled to specific performance of the negotiated plea agreements because the defendants had violated the terms of the agreements by violating their probation. The defendants all appealed to the Pennsylvania Superior Court.

The Superior Court reversed the decision of the trial court. It found that the required periods of Megan’s Law registration were an implied part of the negotiations in each case. Further, the law on the enforcement of plea deals is well-settled. Although a plea agreement occurs as part of a criminal case, it remains contractual in nature and therefore must be analyzed under contract-law standards.

In evaluating whether a plea deal has been breached, the court must look at what the parties to the deal reasonably understood to be the terms of the agreement. When the Commonwealth makes a promise as part of a plea deal, the Commonwealth must live up to that promise. Here, the Commonwealth promised certain terms of registration in exchange for the guilty plea. Therefore, regardless of whether the defendants violated the plea deals by violating their probation, the Pennsylvania Supreme Court’s decision in Muniz prohibits the retroactive application of SORNA. Likewise, the legislature responded to Muniz by amending the SORNA statute to clarify that the previous registration terms which were in effect at the time of the offenses should again apply. Therefore, the Superior Court held that the defendants should be subject to the original periods of sexual offender registration and conditions imposed at the time of the plea bargains, if applicable.

This decision is incredibly helpful to those who have had their Megan’s Law Registration tiers retroactively increased. It also establishes that trial courts have the jurisdiction to re-classify offenders following Muniz. Previously, it was unclear whether defendants seeking relief would be barred by the jurisdictional and time-limit requirements of the Post-Conviction Relief Act and when those time limits would begin to run. The Superior Court here concluded that courts always retain the power to correct an illegal sentence. Because the Supreme Court found that SORNA is punitive and part of a criminal sentence, the trial courts retain the power to correct an improper order to register as a sex offender because the registration is part of the criminal sentence.

Facing criminal charges? We can help.

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.

PA Supreme Court: Retroactive Application of SORNA (Megan's Law) Unconstitutional

BREAKING NEWS: In the case of Commonwealth v. Muniz, the Pennsylvania Supreme Court has ruled that Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) may not be applied retroactively without violating the Pennsylvania and United States Constitutions. In this new ruling, the Court held:

1. SORNA’s registration provisions constitute criminal punishment;

2. Retroactive application of SORNA’s registration provisions violates the federal ex-post facto clause, and

3. Retroactive application of SORNA’s registration provisions also violates the ex-post facto clause of the Pennsylvania Constitution.

I will write more about the reasoning of this ruling in a later blog post, but for now, the ruling is so ground breaking that we wanted to post this news as quickly as possible. 

As some readers have learned through terrible experience, Pennsylvania law required many people to register as sex offenders either a) long after they had completed their sentence and probation, or b) to start registering as a sex offenders even when the offense to which pleaded or were found guilty was not an offense that required registration at the time. Many others found that they had pleaded or been found guilty to offenses which required ten years of registration or even no registration only to learn after a few years that ten years of registration had become a lifetime of Megan's Law registration. 

Prior to this new opinion, the Pennsylvania Superior Court repeatedly found that SORNA’s registration provisions should not be considered punishment. Therefore, retroactive application of registration requirements for those convicted of sex offenses prior to SORNA’s effective date did not violate either the federal or state ex-post facto clauses.

As anyone who has been required to register knows, sex offender registration is one of the most severe punishments the law can impose. It is second only to incarceration, and in many cases, may be worse. Sex offender registration requires regular meetings with the State Police, prohibits contact with children (even when the original conviction had nothing to do with children and may not have even involved a sexual act of any kind), and results in the offender's image, place of employment, address, and vehicles being placed on the State Police website for the world to see. Given the severity of the punishment, particularly in the case of lifetime registration, countless people would have taken their cases to trial had they known at the time of the plea that they would later be required to register for life instead of for ten years or not at all. The risk of trial may have been well worth the reward of avoiding lifetime registration. This new ruling should bring relief to those in the position. 

This ruling should also help those who were originally required to register as Tier I & Tier II offenders but who have now been informed their offense is now a Tier III offense (required lifetime registration and check-ins with the state police every three months.)

If you pleaded guilty to a crime and were originally not required to register at all or were required to register only for a limited period of time and later found out that your tier changed, call us. We may very well be able to assist you. Your consultation is 100% free and confidential. Call 267-225-2545 to speak with a Philadelphia criminal defense lawyer today. 

New Limits on PA Civil Asset Forfeiture

In a unanimous 73-page opinion, the Pennsylvania Supreme Court has provided significantly increased protections for property-owners in civil forfeiture cases where the matter arises out of some sort of criminal wrongdoing for which there may not have been a prosecution. The Court’s opinion will particularly benefit property owners who face a civil forfeiture action due to wrongdoing committed by someone who uses or has access to the property but does not actually own it. In Commonwealth v. The Real Property and Improvements Known as 416 S. 62nd Street, Philadelphia, PA 19143 (Elizabeth Young), the Court found that the Excessive Fines Clause of the Eighth Amendment to the United States Constitution provides significant constitutional limitations on the government’s ability to seize property from someone who has not been convicted of a crime.

What is CIVIL ASSET Forfeiture? 

There have traditionally been two types of forfeiture which could relate to criminal wrongdoing. In general, criminal forfeiture is less problematic and controversial. Criminal forfeiture is the idea that someone who has been convicted of a crime may be ordered by the sentencing court to forfeit property related to the crime or profits generated through criminal activity. The criminal forfeiture is part of the defendant’s sentence, and it requires that the defendant have been convicted beyond a reasonable doubt. For example, if you are convicted of money laundering, you could be ordered by the sentencing court to forfeit the money.

Civil Forfeiture

The other type of property forfeiture, civil forfeiture, is much more problematic and controversial because it does not a criminal conviction or even a prosecution. Civil forfeiture involves the government filing a lawsuit against the property itself instead of a criminal defendant. Historically, if the government could show some sort of nexus between the property and some sort of criminal activity, then the government could seize the property even if the defendant had not committed the crime or even been involved in it. Thus, civil forfeiture at its worst allows the government to take your house if someone else in your house commits a crime while in the house even though you, as the property owner, had nothing to do with the crime. Civil forfeiture is also problematic because it disrupts law-enforcement incentives by providing cash-strapped cities and states with a financial incentive to focus on drug crime, where the police are likely to be able to seize cash, weapons, cars, and jewelry, instead of more serious crimes like rape and murders where law enforcement are not going to make any money through civil forfeiture. In an era of tight governmental budgets, civil forfeiture can be a real way for police and prosecutors to stave off cuts to their own departments. Thus, police and prosecutors could become more interested in arresting people for selling marijuana than solving violent crimes.     

Commonwealth v. Elizabeth Young

Commonwealth v. Elizabeth Young provides one of the clearest examples of civil forfeiture abuse and the need for increased protections. In Young, the Philadelphia District Attorney’s office attempted to use civil forfeiture to take the house of a 71-year-old grandmother who owned and resided in a property in West Philadelphia. She had owned the house since the 1970s, and in 2006, her health began to deteriorate. Her adult son and two grandchildren moved into the house, and her adult son began selling relatively small amounts of marijuana. On a number of occasions, her son sold marijuana to police officers or confidential informants. He also used her Chevrolet Minivan to meet with buyers during some of these drug transactions. On at least one occasion, police warned Ms. Young that her son was selling marijuana, but the marijuana sales apparently continued.

Eventually, Ms. Young’s son was convicted of Possession with the Intent to Deliver marijuana and sentenced to a short county jail sentence. Ms. Young was never charged with a crime, but the District Attorney’s Office filed a petition for forfeiture of her house and vehicle under the Controlled Substances Forfeiture Act. Although the Commonwealth never charged her with a crime, prosecutors sought to put a 71-year-old grandmother out on the street due to the fact that she was unable to prevent her adult son from selling small amounts of marijuana.

The trial court, finding that Ms. Young had not done enough to stop her son from selling marijuana, ordered the house and car forfeited to the Commonwealth. The trial court found a nexus between the marijuana sales and the home and vehicle in that both the house and the car were used to store and sell marijuana. Under Pennsylvania law, there is an “innocent owner” defense to civil forfeiture in that a defendant may retain the property if the defendant can show that he or she did not know about the illegal activity or did not consent to it. However, the court found that the innocent owner exception did not apply because police had warned Young of the sales and she had not done anything to stop her adult son from selling marijuana after that date. In other words, she was unable to convince her son to stop, and she was also not willing or able to throw him out of the house. The trial court further found that that the forfeiture did not constitute an excessive fine because the maximum financial penalty for the drug crimes would have been $80,000, and that amount exceeded the value of the home and automobile.

Increased Protections in Civil Forfeiture Cases

On appeal, the Commonwealth Court reversed the trial court’s ruling, and last week, the Pennsylvania Supreme Court upheld the decision of the Commonwealth Court. The Court traced the history of both civil and criminal forfeiture and the Excessive Fines Clause of the Eighth Amendment and ultimately concluded that the trial court erred in ordering that the property be forfeited. The Court found that a trial court must consider two issues in a challenge to a civil forfeiture under the Excessive Fines Clause.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

— The Eighth Amendment to the United States Constitution

First, the trial court must determine whether the property sought to be forfeited is an instrumentality of the underlying criminal offense. If the property is not an instrumentality, then the forfeiture is unconstitutional and the property may not be forfeited. If the trial court finds that the property is in fact an instrumentality, then the court must still determine whether the value of the property sought to be forfeited is grossly disproportional to the gravity of the underlying offense.

In making the decision on the threshold instrumentality issue, the court should consider at least the following factors: 

(1) whether the property was uniquely important to the success of the illegal activity;

(2) whether the use of the property was deliberate and planned or was merely incidental and fortuitous to the illegal enterprise;

(3) whether the illegal use of the property was an isolated event or repeated;

(4) whether the purpose of acquiring, maintaining or using the property was to carry out the offense;

(5) whether the illegal use of the property was extensive spatially and/or temporally; and

(6) whether the property is divisible with respect to the subject of forfeiture, allowing forfeiture of only that discrete property which has a significant relationship to the underlying offense.

If the property is an instrumentality of the crime, the court must weigh the value of the property against the gravity of the offense. In evaluating value, the court must consider the following factors: 

(1) the fair market value of the property;

(2) the subjective value of the property taking into account whether the property is a family residence or if the property is essential to the owner’s livelihood;

(3) the harm forfeiture would bring to the owner or innocent third parties; and

(4) whether the forfeiture would deprive the property owner of his or her livelihood.

Once the court has determined the value of the property, the court must then weigh the value of the property under the above four factors against the gravity of the offense, considering factors such as:

(1) the nature of the underlying offense;

(2) the relation of the violation of the offense to any other illegal activity and whether the offender fit into the class of persons for whom the offense was designed should be considered;

(3) the maximum authorized penalty as compared to the actual penalty imposed upon the criminal offender;

(4) the regularity of the criminal conduct — whether the illegal acts were isolated or frequent, constituting a pattern of misbehavior;

(5) the actual harm resulting from the crime charged, beyond a generalized harm to society; and

(6) the culpability of the property owner.

Clearly, the court must now consider a large number of factors when making a civil forfeiture decision, and the majority of the factors are going to weigh against taking a 71-year-old grandmother’s home due to a limited number of marijuana sales by a non-owner of the property. Thus, the Pennsylvania Supreme Court remanded the case to the trial court to reconsider its findings in light of the new guidance provided by the decision. Additionally, the Supreme Court rejected the trial court’s relatively cursory analysis of the issue under the innocent owner defense. The Court noted that the innocent owner defense can be shown through two ways: either a lack of knowledge or lack of consent. Thus, simply having knowledge of illegal activity may not be enough. If the defendant ordered her son to stop selling drugs and believed he had done so, then that may have been enough to show a lack of consent even if she did originally have knowledge.

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The Court’s ruling greatly strengthens the protections for people who are facing civil forfeiture actions but have not been found guilty of any criminal wrongdoing themselves. It also should not really limit the Commonwealth’s ability to take property which his truly being used for criminal activity. In the case of a house which has really become a drug house, or property which has been used to commit a crime, then prosecutors should still be able to show that the factors weigh in favor of forfeiture. But in cases like Young, the Commonwealth will have a much more difficult time putting grandmothers out on the street because they have difficulty stopping adult children from selling marijuana.

As always, if you are facing criminal charges, under investigation, or dealing with a forfeiture action, you should speak with one of our Philadelphia criminal defense lawyers today. We can help with state and federal charges in Pennsylvania and New Jersey. Call 267-225-2545 for a free criminal defense strategy session with an award-winning defense attorney.

Collateral Consequences - the Impact of a Criminal Case on the Rest of Your Life

After a conviction, most people are not sent to jail. Most people are given probation or no further penalty. And yet, every contact with the criminal justice system is incredibly dangerous and needs to be taken seriously because besides the embarrassment of a criminal record following you around for the rest of your life, you can also lose important rights as a result of that conviction. For many, it isn't the conviction that is the most ruinous, it's the so-called, "collateral consequence." 

Collateral Consequences are nothing new. They have been a part of legal systems since at least the Ancient Greeks. The Greeks had ἀτιμία, the Romans infamia, and in early English Common law civiliter mortuus (civil death).   

In early English Common law, the idea of civil death was pretty simple. You may be physically alive, but you were legally dead. That's to say, upon conviction the Crown completely severed all legal and civil rights. The complete loss of one's civil rights, probably made sense because there was often just one penalty for a felony in early English Common Law: death. Extinguishing the rights of a person might make sense when you were just aligning his (or her) legal rights with the physical rights of his soon to be dead body (that's to say none).  

The loss of rights under civil death was total. A convict lost the right to enter into contracts, transmit property by inheritance and devise, marry (or, conversely - remain married as civil death also had the effect of dissolving the marriage), serve as a witness in any court case criminal or civil and vote. Civil death also had the effect of passing what property and estates a convict might have to his or her heirs upon sentencing (often not an issue because the Crown often took all the property) meaning a convicted person had no funds to appeal or fight his case after his conviction. 

All in all civil death was harsh and unfair. Clearly, we know better today and civil death isn't a feature in modern American jurisprudence.

 Or is it?

In an unending wail to "be tough on crime," simple imprisonment is not considered enough punishment by some. So many states, Pennsylvania in particular, have civil penalties in addition to the criminal ones. These civil penalties are not part of any sentence that is handed down by a court such as incarceration, fines, or probation. They are actions taken by the state and they encompass a wide array of life. And you may not be told anything about them other than, "there may be some consequences." 

In Pennsylvania, these collateral consequences (the children of Civil Death) encompass adoption and foster care, child custody, restriction of a professional licenses (or complete loss of that license), loss of a driver's license, employment, the right to serve on a jury, the ability to obtain financial aid, the right to own a firearm, the ability to receive public benefits, the right to subsidized housing. These collateral consequences can even include your legal right to remain in this country or become a U.S. citizen. And while this list might seem broad, it in no way a comprehensive of all collateral consequences. 

If, for example, you are convicted of Knowing and Intentional Possession of a Controlled Substance (also known as K&I in Philadelphia) under 35, § 780-113 et. seq. you will also have your driver's license suspended under 75 Pa. C.S. § 1532 for six months for even a first offense. For a third, you will lose it for two years. See: (http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=75&div=0&chpt=15&sctn=32&subsctn=0)

If you've been convicted of aggravated assault (18 Pa.C.S. § 2702), 18 Pa.C.S. § 6114 (relating to contempt for violation of order or agreement) or 75 Pa.C.S. Ch. 38 (DUI), the court shall consider these convictions if you are involved in a child custody proceeding. Nor is this a complete list; there are many other crimes that will interfere with your ability to keep custody of your children. 

If you are convicted of various sex offenses you may not be allowed to live with your children, you may not be allowed to live in certain areas of the city, you may have to "register" with the state police, give your name, your identification, your living address. You may have to have this information posted on a publicly available website. You may be even be banned from taking certain jobs. 

If you are convicted of a crime of domestic violence, you will never again be allowed to purchase a gun. This is true even for a misdemeanor conviction. 

As you can see, the consequences of a criminal conviction go far beyond incarceration and “a record.” The long term effects are mind boggling and far reaching. You can not and should not go this road alone. If you are currently charged with or could be charged with a crime, then you should contact an attorney as soon as possible. Before you can make any decision you must know all the facts, and to know all the facts, you must speak to an experienced criminal defense attorney.

The Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC have extensive experience fighting all types of state and federal charges in Pennsylvania and New Jersey. We know the consequences of a conviction and will do everything in our power to prevent one. Call 267-225-2545 now for a free consultation.