Philadelphia Criminal Defense Blog
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:
SORNA’s registration provisions constitute criminal punishment;
Retroactive application of SORNA’s registration provisions violates the federal ex-post facto clause, and
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.
Appealing PA Megan's Law Retroactivity Provisions
PA Megan's Law Retroactivity
As Attorney Zak Goldstein previously wrote, Pennsylvania has seen significant changes in the laws governing sex offender registration. Specifically, recent cases have provided some hope for a limited number of Megan's Law and SORNA registrants to downgrade from Tier III lifetime offenders to lower tiers depending on the circumstances of their cases and pleas. Registrants who meet very specific conditions may have the possibility of obtaining a reduced Tier if they can show that they either committed multiple Tier I or Tier II offenses as part of the same case or, in limited circumstances, that the Commonwealth has violated a plea bargain by retroactively requiring the offender to register at a higher tier.
Potential Ways to Lower Megan's Law Tier in PA
Aside from the issues written about in that previous post, there are other ways for a person, required to register under SORNA, to downgrade their registration status or even remove it completely, and that is to enforce the plea that was bargained for at the time of sentencing. It isn't unusual for us to see cases where a defendant has specifically bargained for Tier I registration as part of an agreement to plead guilty. Pennsylvania courts have upheld that such agreements are governed by contract law and enforceable under contract law. This means that, while the offense pleaded guilty to may require higher registration, even lifetime registration the agreement, made at the time of the plea, will often be the deciding factor on how long a someone will have to register. But we've often found when someone is released from prison or from supervision they've been told their registration status has been changed to lifetime registration or from Tier I to Tier III. It may be possible to challenge such a change to one's SORNA registration requirements. However, it can be expensive and difficult, and success is never guaranteed.
information on the Adam Walsh Act (SORNA)
As of 2012, Pennsylvania substantially implemented Title I of the Adam Walsh Act, the Sex Offender Registration and Notification Act (SORNA). SORNA requires that offenders register for a duration of time based on the tier of the offense of conviction. Specifically, SORNA requires Tier I offenders register for 15 years, Tier II offenders register for 25 years, and Tier III offenders register for life.
SORNA requires that offenders make in-person appearances at the registering agency based on the tier of the offense of conviction. Specifically, this Act requires that Tier I offenders appear once a year, that SORNA Tier II offenders appear every six months, and Tier III offenders appear every three months. SORNA requires that each jurisdiction maintain a public sex offender registry website and publish certain registration information on that website.
PENNSYLVANIA MEGAN'S LAW REGISTRATION TIERS
Pennsylvania has three categories of registrants for purposes of duration of registration requirements and frequency of reporting to law enforcement for verification:
Tier I offenders, who are required to appear annually to verify registration information and register for a period of 15 years.
Tier II offenders, who are required to appear every 180 days to verify registration information and register for a period of 25 years.
Tier III offenders, who are required to appear every 90 days to verify registration information and register for life.
SORNA Tier I requires offenders to register for a minimum of 15 years and annually verify registration information. The following offenses listed in Pennsylvania Statutes would require, at a minimum, Tier I registration requirements under SORNA:
18 Pa. C.S. § 2902 – Unlawful restraint (non-parental, victim under 18)
18 Pa. C.S. § 2903 – False imprisonment (non-parental, victim under 18)
18 Pa. C.S. § 2904 – Interference with custody of children (non-parental, victim under 18)
18 Pa. C.S. § 2910 – Luring a child into a motor vehicle or structure
18 Pa. C.S. § 3124.2 – Institutional sexual assault (adult victim)
18 Pa. C.S. § 3126 – Indecent assault where the offense is graded as a misdemeanor of the first degree or higher (if punishment less than one year)
18 Pa. C.S. § 6312[d] – Sexual abuse of children (possession of child pornography)
18 Pa. C.S. § 7507.1 – Invasion of privacy
SORNA Tier II requires offenders register for a minimum of 25 years and semiannually verify registration information. The following offenses listed in Pennsylvania Statutes would require, at a minimum, Tier II registration:
18 Pa. C.S. § 3124.2 – Institutional sexual assault (victim age 16-17)
18 Pa. C.S. § 3126 – Indecent assault where the offense is graded as a misdemeanor of the first degree or higher (if recidivist or punishment greater than one year)
18 Pa. C.S. § 5902[b] – Prostitution and related offenses, where the actor promotes the prostitution of a minor
18 Pa. C.S. § 5903[a] [3], [4], [5], or [6] – Obscene and other sexual materials and performances, where the victim is a minor
18 Pa. C.S. § 6312[b], [c] – Sexual abuse of children (production/distribution of child pornography)
18 Pa. C.S. § 6318 – Unlawful contact with minor
18 Pa. C.S. § 6320 – Sexual exploitation of children SORNA
Tier III Offenses requires lifetime registration and quarterly verifications. The following offenses listed in Pennsylvania Statutes would require, at a minimum, Tier III registration requirements under SORNA:
18 Pa. C.S. § 2901 – Kidnapping, where the victim is a minor (non-parental)
18 Pa. C.S. § 3121 – Rape • 18 Pa. C.S. § 3122.1 – Statutory sexual assault
18 Pa. C.S. § 3123 – Involuntary deviate sexual intercourse
18 Pa. C.S. § 3124.1 – Sexual assault • 18 Pa. C.S. § 3124.2 – Institutional sexual assault (victim under 16)
18 Pa. C.S. § 3125 – Aggravated indecent assault
18 Pa. C.S. § 3126 – Indecent assault where the offense is graded as a misdemeanor of the first degree or higher (if victim under 13 and punishment greater than one year)
18 Pa. C.S. § 4302 – Incest (victim under 13, or victim 13-18 years old, and offender more than 4 years older)
HOW OUR PENNSYLVANIA MEGAN'S LAW LAWYERS CAN HELP
Demetra Mehta, Esq. - PA Megan's Law Attorney
If you think you have been required to register for the wrong tier, please contact us to discuss your case. After a brief consultation, we may be able to advise you how to best move forward. If we think we can be of assistance we will investigate your case and offer an opinion on if a challenge to your registration requirements will be successful. We offer a free phone consultation in these matters, and if further investigation is warranted, we typically charge a reasonable initial fee to obtain court records and transcripts, investigate the case, and determine the likelihood of success.
Charged with a crime? Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of cases. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session.
Knowing Your Rights Could Be the Difference Between Decades in Prison and Freedom
In my last post, I wrote about the collateral consequences of a conviction. It is worth repeating that a conviction will follow you for the rest of your life. I feel that I left out an important fact: unlike many other laws dealing with criminal convictions there is no ex-post facto to save you. At any time the legislature can add a collateral consequence that is essentially retroactive. You can be convicted or plead guilty in one decade only to have new rights taken away from you in a different one. This is unlike any other area of criminal law.
That written, I want to add something that is less about law, consequences, or statues and more about your rights as a person when contacted by the police or any other agent of the state.
You have the right to remain silent.
Anything you say can and will be used against you in court.
You have the right to an attorney.
if you cannot afford one, one will be appointed to represent you.
Anyone who has ever watched a police thriller knows that litany. I just typed it out from memory because I’m on a train and there is no internet access (technically there is internet access, it is so slow and spotty it is worse than no internet access). I’m willing to bet good money that anyone reading this knows the litany I’ve written above. Why then do so many people make inculpatory statements to the police? They know they don’t have to, they’ve seen and heard that they have the right to remain silent on TV 1000s times. They know they have the right to an attorney, Law & Order said so.
Here’s the problem: most people want to be useful. They want to help. They think “if I just talk to the police all of this will be cleared up and I can go home.” Maybe - maybe that’s true, but the more likely scenario is that the police officer talking to you and the detective questioning you think you have committed a crime. Why are you helping them? To them this isn’t personal, you’re not their friend. This is business. To put it in the simplest possible terms: if the police had an airtight case - would they bother getting a statement from you. No, because they didn’t need it. Talking to them to “clear the air” will only hurt you.
As a criminal defense attorney, I have never been grateful that a client made a statement. Never, in all the years I have practiced law. Not once. It never helps. You do not have to talk to the police, you do not have to agree to a search of your person or a search of your vehicle, or a search of your home (if the police have warrant, that’s a different story - but you still don’t have to talk to them other than to agree you are who you are).
I can hear people telling me right now, “But Mrs. Mehta - the police told me they don’t need a warrant to search my car.” Technically this is true. In Pennsylvania it was once true that the police needed a warrant to search your vehicle, and then for various reasons, we will not get into here that law changed, but the standard to search your car or vehicle has remained the same, the police still need probable cause to search your car. But you don’t need to make it even easier for them by saying, “sure officer, feel free to search my car, I am absolutely, 100% sure none of my friends have left anything in there that might come back to bite me. I am 150% sure the car I borrowed from my friend, who is always in trouble, is clean.” Refusal to consent to a search does not give rise to probable cause, but just about anything else you say will start to help the police make a case that they had probable cause to search your car/house/person. The police officer might say, “he was being evasive, she seemed nervous, his story kept on changing, she was speaking rapidly.”
And frankly, most of that is probably true. I know when I see red and blue lights behind me on the highway I quickly suss through the last 20 years of my life and briefly wonder if there is some terrible sin I have forgotten or an unpaid ticket that finally made its way into a computer system somewhere.
So what are you to do?
Scenario 1
PO: Sir, we’d like to speak to you.
You: Officer, am I under arrest?
PO: No
You: Am I free to go?
Police: Yes
THEN GO.
And call an attorney.
Scenario 2
PO: Sir, we’d like to speak to you.
You: Officer, am I under arrest?
PO: Yes
You: I would like to speak to my attorney, here is their card.
I would not like to make a statement.
Don’t have a lawyer’s card? Print out mine, carry it with you, know your rights, and know to do when the rest of your life is on the line:
What to Do if Police Are Asking About Illegal Pornographic Material on Your Computer
Getting Help With Megan's Law Allegations
Of all the crimes one may be charged with, sex crimes are especially scary, and perhaps none more so than possession, receipt, production, or distribution of child pornography. Even if eventually found not guilty in a court of law, the damage to your reputation can be life-altering. If found guilty, there may be serious jail time involved and decades on Megan's List.
Getting help is difficult. What kind of lawyer can you speak to? Will what you say to that lawyer be kept confidential given reporting laws? Will searching for a lawyer on the internet trigger suspicion from Google or the Government?
So first, some ground rules: yes, anything that you say to your lawyer, is confidential. There was a time when the legislature in Pennsylvania contemplated making lawyers mandatory reporters. Luckily, someone came to their senses and realized it would be impossible to represent those accused of such crimes from mounting a defense if they could not safely and confidentially tell their lawyer their side of the story.
Pennsylvania And Federal Child Pornography Laws
Second, child porn laws are far-reaching. When I was a kid (many, many years ago), a girl might show a boy she liked him by kissing him, holding hands, dating. Today, some kids do something a little dumber and far more permanent: they take pictures and send them to their new found loves on their smart phones (sexting). The law often treats these children as criminals; and more importantly, this "criminal activity" can have lifelong consequences requiring registration as a sex offender if the one who sends the material is over the age of 18. What was just a little fun has now become a serious, possibly federal case.
Worse, many people using the internet are not particularly tech-savvy. There was a time when to use the internet conferred a certain guarantee of technical know-how. Today, if you have a laptop, you're free to surf the information superhighway; with no safeguards in place, you can quickly become the victim of ransomware hackers.
Often parents allow their children free access to the internet and the home computer without thinking what kind of material their children may have access to. I've seen cases where a son downloads terabytes of movies off Russian servers only to infect the computer with computer viruses and child pornography. Or, teens, not thinking about long-term consequences go on to websites like Reddit or 4chan and access material they should not have touched.
In general, the law does not care how you came to be in possession of the material, the law only cares that you possessed it. Why, might be something that is sorted out later - but not before your reputation is destroyed and your name has been plastered all over the news.
What To Do If The Police Are Asking Questions
If you think you need legal assistance because of material you've encountered on the internet, you should contact a lawyer as soon as possible. If you receive any correspondence from a law enforcement agency, it is in your best interest to seek out a lawyer to ensure your rights will be safeguarded and you will be treated as fairly as possible.
Beyond a Reasonable Doubt
Remember: whenever the Government brings a criminal prosecution, the Government has to prove the defendant's guilt beyond a reasonable doubt. Even when prohibited images or videos are found on a computer, the Government may not be able to prove who downloaded them. Therefore, it is absolutely imperative that you do not speak with investigators without first consulting with an attorney.
A Philadelphia Criminal Defense Lawyer Can Help With Child Pornography Charges
Internet Crimes Lawyers - Philadelphia, PA
Child pornography cases can be incredibly complex and come with such serious consequences this is not the time to delay and see what happens. You must act quickly and aggressively to protect yourself and your family. Call 267-225-2545 for a free, confidential consultation.