Collateral Consequences

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

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. 

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

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."