Philadelphia Criminal Defense Blog

Zak Goldstein 8/25/20 Zak Goldstein 8/25/20

PA Superior Court: Megan's Law Registrant May Challenge Retroactive Changes to Registration Laws Outside of PCRA Process

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Duncan. This decision did not make any substantive changes in the law. Rather, it dealt with some of the procedural difficulties that defendants have had in challenging their sex offender registration status following recent changes in the law stemming from Pennsylvania Supreme Court and Superior Court decisions. In this case, the court held that the defendant should have been appointed counsel to represent him when he was challenging the requirement that he register as a sex offender despite being a juvenile when he committed the crimes which triggered registration. This decision makes it clear that registrants may bring challenges to their registration status in the trial court in many cases even when the time for filing a post-conviction relief act petition has expired.

Commonwealth v. Duncan

The defendant entered into a negotiated guilty plea to the charges of robbery, kidnapping of a minor, unlawful restraint, recklessly endangering another person, and carrying firearms without a license. The defendant received a sentenced of 4-10 years’ imprisonment. Notably, the defendant was a juvenile when he committed his offenses, even though he was charged as an adult. The defendant did not file a direct appeal from his judgment of sentence.

More than a decade after his plea, the defendant filed a pro se petition for writ of error coram nobis. The defendant alleged that right before he was to be released from prison, the Pennsylvania Department of Corrections told him that he must register as a sex offender upon his release pursuant to the then-effective version of Megan’s Law. This would be due to the kidnapping of a minor conviction. The defendant argued that requiring him to register as a sex offender violated the Ex Post Facto principles of the Pennsylvania Supreme Court’s decision in Commonwealth v. Muniz. Further, the defendant argued that the Commonwealth was in breach of their agreement because he had never agreed to register as a sex offender. At the time that he pleaded guilty, that charge did not require sex offender registration.

The court initially treated his petition as a Post-Conviction Relief Act (“PCRA”) petition. At first, the PCRA court agreed with the defendant and ordered that he be removed from the sex offender registry. However, the PCRA court later vacated its decision to allow the Commonwealth an opportunity to respond to his petition. The Commonwealth responded that his request should be denied because it was an untimely filed PCRA petition. The PCRA imposes very strict deadlines and if a defendant misses a deadline they will often not be afforded any relief. Consequently, because the PCRA court thought the PCRA governed the defendant’s petition, it denied his request due to his petition being untimely. The defendant was subsequently appointed counsel, and he then filed a timely appeal. On appeal, the defendant only argued that he should have been appointed counsel to help him litigate his claim.

The Ex Post Facto Clause of The United States and Pennsylvania Constitutions

Both the United States and the Pennsylvania Constitutions prohibit Ex Post Facto laws. Those are laws that criminalize past behavior. The reason behind is that individuals have the right to adequate notice and should not be punished for actions that were legal when they did took them. In order to qualify as an Ex Post Facto law, the law must 1) apply retroactively and 2) negatively impact the offender.

In the late ‘90s and early 2000’s, states across the country began passing laws that required individuals convicted of sexual offenses to register as sex offenders. These early Megan’s Law statutes imposed onerous requirements on defendants that were often seemingly punitive in nature. These laws were frequently challenged as violations of the Ex Post Facto clause because they applied to defendants retroactively (i.e. defendants were required to register as sex offenders even though they committed their crimes before the passage of these statutes).

Pennsylvania and many other states would argue that these Megan’s Law requirements were not punitive and therefore the Ex Post Facto clause of their respective constitutions did not apply. And, unfortunately, some of these governments had some success. For example, the state of Alaska was successfully able to defend its Megan’s Law statute all the way to the United States Supreme Court. However, in Pennsylvania, the Pennsylvania Supreme Court ruled in Commonwealth v. Muniz that Pennsylvania’s Megan’s Law statute violated the Ex Post Facto clauses of both the Pennsylvania and United States Constitutions. Nonetheless, the Pennsylvania Legislature passed a new Megan’s Law (SORNA) statute in the aftermath of the Muniz decision which certainly guarantees that this fight is far from over.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court agreed with the defendant that he should have been appointed an attorney to represent him when he litigated his PCRA petition. The Court further stated that the PCRA court was not required to treat the defendant’s petition as a PCRA petition. Specifically, the Superior Court cited the Pennsylvania Supreme Court’s decision in Commonwealth v. Lacombe which held that because he was raising Ex Post Facto claims, the PCRA court was not required to treat his filing as a PCRA petition and therefore he was not subjected to the stringent filing deadlines of the PCRA. Further, the Superior Court stated that the defendant “might have a valid Ex Post Facto and due process claim” and therefore remanded his case for consideration. This is an important decision due to the deadline issues. The PCRA requires a defendant to file his or her post-conviction relief act petition within one year of his or her sentence becoming final. Obviously, when the legislature passes a new law ten years later imposing new sex offender requirements on someone who did not have to register at that time that they were convicted, that person should have some procedural mechanism for challenging the law. By imposing the one-year deadline for filing a PCRA petition on these petitioners, the courts were able to block them from ever challenging these unconstitutional laws. By recognizing that these filings are not really PCRAs, the appellate courts have removed some of the deadlines for filing them and allowed these important issues to be resolved on the merits.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/11/20 Zak Goldstein 5/11/20

Title IX Update: US Dept of Education Releases New Guidelines for Campus Sexual Assault Allegations

The United States Department of Education has released new guidelines on how colleges and universities are to handle sexual assault allegations on college campuses. Secretary of Education Betsy Devos said that these new regulations will allow colleges and universities to “combat sexual misconduct without abandoning our core values of fairness, presumption of innocence, and due process.”

For the better part of the decade, individuals who were accused of sexual assault had scant protections. Specifically, there were reports that colleges and universities felt obligated to side with the accusers based on Obama Administration guidelines that were issued in 2011 and 2014. Those guidelines threatened severe repercussions (i.e. losing federal funding) if they did not ramp up their investigations. They also led to many schools starting investigations based on a belief that they should believe the complainant instead of applying a presumption of innocence. Now, although the new regulations are not perfect, accused students should find themselves with more rights and protections when confronted with potentially false allegations of sexual assault and harassment.

What is Title IX and How Does it Relate to Sexual Assault Allegations?

Title IX is a federal civil rights law signed by President Richard Nixon in 1972 as part of a larger Education bill. At its core, Title IX prohibits discrimination on the basis of sex in educational institutions when those institutions receive federal aid. Title IX also makes schools responsible for taking steps to prevent sex-based harassment, including sexual harassment, and for responding quickly and effectively to harassment when it occurs.

What Are the New Changes to Title IX Investigation Procedures?

The new regulations provide a number of increased protections to students who have been accused of sexual misconduct or sexual harassment.

First, and perhaps most importantly, the guidelines require that a school apply a presumption of innocence. Previously, schools were permitted to start from a position of assuming that a complaint must be true. Under the new rules, the school must require some evidence in order to find an accused student responsible and impose sanctions.

Second, the regulations modify the recommended burden of proof which schools should apply in deciding whether or not the accused has committed a violation. Under the previous regulations, schools were encouraged to apply a “preponderance of the evidence standard.” Under a preponderance of the evidence standard, the school would find against the accused if the fact-finder found that it was 51% or more likely that the accused committed a violation. The new guidelines allow schools to require “clear and convincing evidence,” which is a higher standard than 51%. This is the standard used in many family court proceedings such as child custody cases. It is, however, still a lesser burden than requiring proof beyond a reasonable doubt as is usually required in a criminal case. Schools may also continue to use the preponderance of the evidence standard. But if they do so, they must still apply that lower standard to accusations made against their own employees.

Third, the new rules require that the accused receive a live hearing in front of the decision maker. The previous regulations encouraged the use of the single investigator model. Under the single investigator model, a school that had received a complaint would then retain an investigator to resolve the complaint. This would often be an outside attorney or retired law enforcement officer who had been retained by the school specifically to resolve these issues. That investigator would review the complaint, speak with the complainant and the accused, interview potential witnesses, review any other evidence provided by the parties such as text messages or medical reports, and then make findings of fact as to whether or not the sexual harassment or assault had occurred. Depending on the school, the investigator may also recommend the punishment for an offense, but at some schools, a board of faculty members would decide on punishment without hearing from the accused student directly.

The new rules eliminate this procedure. No matter what standard of proof a school decides to apply, the accused student is now entitled to an in-person hearing in front of the person or people that will make the decisions as to guilt or innocence and the penalty in the case of a finding of guilt. This is a significant change as it ensures some level of due process. Instead of simply giving a statement to an investigator and being found guilty, the accused student may now present a defense to the people making the decisions.

Fourth, the rules also provide that the accused shall have the opportunity to cross-examine the complainant. This generally does not mean that the individual student gets to ask questions of the complainant himself or herself. Instead, the accused’s faculty counselor or attorney may ask the questions or submit the questions to the fact-finder for them to ask the questions. Further, the parties may appear remotely by video. Cross-examination allows the accused student the opportunity to challenge the complainant’s story and demonstrate potential credibility problems or motive to fabricate. This is an extremely important change because sexual assault cases often hinge on how credible the alleged victim is.

Fifth, colleges and universities will now only be responsible for investigating cases that occurred within their programs or their activities. For example, a school would not be liable for an alleged assault that occurred in an apartment that is not affiliated with the school.

Finally, schools may not impose any sanctions on an accused student until the case has been adjudicated. A school may still, however, impose temporary restraining orders prohibiting contact between the parties. A school may also remove a student from campus if there is a finding that the student is an immediate, dangerous risk to safety.

These regulations become effective on August 15, 2020. Accordingly, they will be in place by the time students return to campus for the fall semester. There is no doubt that there will be some growing pains with these regulations, and it is likely that there will be legal challenges to them as well. The regulations also do not necessarily prevent schools from continuing to enforce rules which are worse for the accused than those suggested by the guidelines. However, they remove much of the pressure on schools to enforce rules which give the accused no opportunity to defend themselves. Therefore, this is an important step in providing accused students with a fair opportunity to present a defense. Contrary to some negative reporting in the press, the guidelines do not suggest that schools should not take complaints seriously or believe the accused. They simply add some level of due process to the proceedings so that accused students have a chance to defend themselves and obtain a fair result.

How Can a Title IX Defense Attorney Help if You Are Accused of Sexual Misconduct on Campus?

The processes currently in place prior to the new regulations gave very little thought to the rights of the accused. However, many schools may begin to change their policies in order to implement the new guidelines, and each school’s disciplinary processes will likely be somewhat different. For that reason, anyone accused of sexual misconduct should not attempt to go it alone. Nor should they allow any kind of embarrassment they may feel to silence them.

Given the potential consequences, which can include expulsion from school without a refund and a permanent notation on the students transcript, someone accused of this sort of sexual misconduct must reach out to an attorney as quickly as possible. An attorney who has previously represented other students at one of these hearings can best guide the accused in how to defend themselves. The first days following an accusation are among the most important and if you have been informed you are under investigation, there are certain steps that must happen as quickly as possible. An experienced defense attorney may be able to help you with the following things:

Preparing to give a statement to the school’s Title IX Investigator
Reviewing and editing written submissions which may be required as part of the investigation
Conducting a thorough investigation into the allegations, including locating third-party witnesses and obtaining witness statements
Obtaining and preserving digital and social media evidence such as text messages, Facebook posts
Providing advice on how to avoid criminal charges while responding to the allegations
Helping you to understand the school’s procedures for the investigation and potential appeals and making sure that you understand all of your rights
Presenting a defense at a hearing and conducting cross-examination as schools begin to provide enhanced protections

Facing Criminal Charges or a Campus Investigation? We Can Help.

If you are facing criminal charges or are under investigation by the police or campus authorities, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We also have extensive experience defending clients against allegations of sexual misconduct in Title IX investigations. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 3/26/20 Zak Goldstein 3/26/20

PA Supreme Court Revives Sexually Violent Predator Designation

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Butler, reversing the Superior Court and finding Pennsylvania’s scheme for designating some sex offenders as “sexually violent predators” or “SVPs” constitutional. The Court rejected the Superior Court’s prior ruling that the mechanism for finding a defendant to be an SVP was unconstitutional because it allowed a judge to make the decision instead of a jury. This opinion will likely have an immediate and dramatic effect as prosecutors throughout Pennsylvania, many of whom had stopped pursuing the SVP designation in sex offense cases, will likely begin moving to have many defendants classified as sexually violent predators under Pennsylvania’s Megan’s Law. This classification requires lifetime Megan’s Law Registration for most defendants and carries with it a number of other negative consequences.

The Facts of Butler

In Butler, the defendant pleaded guilty to statutory sexual assault and corruption of minors after having sexual intercourse with a 15-year-old girl on approximately 50 occasions. Under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), the defendant was required to undergo an assessment by the Sexual Offender Assessment Board (“SOAB”) to determine whether he should be designated as an SVP. The SOAB recommended that he be designated an SVP, and the trial court held a hearing on the issue at sentencing. The judge found that the Commonwealth met its burden under the statute of producing clear and convincing evidence that the defendant was a sexually violent predator, and so the judge ordered that the defendant be designated as such. The trial court also imposed a sentence of 12 to 30 months’ incarceration followed by 90 months’ probation.

The defendant filed post-sentence motions, and the trial court denied those motions. He appealed to the Superior Court, and the Superior Court overturned the SVP portion of his sentence. The Superior Court found that Pennsylvania’s procedures for designating SVPs were unconstitutional because they allowed the trial judge to impose the additional punishment of being an SVP by making factual findings that should be made by a jury. Therefore, the Superior Court ruled that the defendant did not have to register as an SVP and that the whole scheme was unconstitutional because it allowed the judge to impose criminal punishment without a jury finding. Due to this ruling, prosecutors throughout Pennsylvania mostly stopped moving for SVP hearings, but the Commonwealth appealed in this case to the Pennsylvania Supreme Court.

What is a sexually violent predator?

The SVP designation is particularly problematic in Pennsylvania both because of the stigma that it entails and because it requires lifetime Megan’s Law registration even for offenses which would otherwise require a shorter registration period such as 15 years or 25 years. Under SORNA, an SVP must appear in person every three months to register and be photographed by the State Police. They must appear in person to report any changes to their registration information. They must submit to the registry their names, addresses, computer IP addresses, phone numbers, social security numbers, employer information, professional licensing information, vehicle information, and birthdates. Failure to comply with the Megan’s Law and sexually violent predator registration requirements is a serious felony.

Once an SVP registers with the State Police, the State Police notify the local police, and the local police must notify the SVP’s victim of the offender’s name, residence, address of employment, and any address at which the SVP is enrolled as a student. Local police must notify neighbors, the local county’s children and youth agency director, local school superintendents, local day-care centers and preschool programs, and local colleges and universities regarding the SVP. This notice must provide the person’s name, address, offense for which the person was convicted, a statement that the person has been designated an SVP, and a photograph of the person.

The offender must also attend monthly counseling sessions in a program approved by the SOAB and is financially responsible for paying for those sessions unless he or she can prove indigence. The offender must verify compliance with the counseling requirements during the quarterly registration, and failure to comply with the counseling requirement is a misdemeanor.

Many of these requirements are far worse than those imposed on other Megan’s Law registrants, particularly than those imposed on Tier I offenders. However, even someone who has been convicted of a Tier I offense can be designated a sexually violent predator.

The Pennsylvania Supreme Court’s Ruling

The Pennsylvania Supreme Court accepted the Commonwealth’s appeal and reversed the ruling of the Superior Court. The Superior Court had ruled that the SVP scheme was unconstitutional because the SVP designation constitutes criminal punishment and the fact-finding necessary to impose criminal punishment must be completed by a jury instead of a judge.

The Supreme Court rejected this finding, holding that despite all of the horrific consequences of SVP registration, the SVP designation is not a criminal punishment but instead an attempt by the legislature to help the offender and avoid re-offending. Because the Court ruled that the designation does not constitute criminal punishment, there is no requirement that a jury make the findings necessary for a person to be labeled a sexually violent predator. The Court also strongly approved of the fact that Pennsylvania did amend the statute to allow for an SVP to petition the trial court for removal from Megan’s Law after 25 years on the list.

This decision is difficult to reconcile with the Supreme Court’s recent decision in Commonwealth v. Muniz in which the Court held that requiring someone to register with Megan’s Law constitutes criminal punishment. Ultimately, the Court has now found that sex offender registration in general constitutes criminal punishment and cannot be imposed ex post facto, but the increased requirements of the SVP designation are not an additional criminal punishment. Therefore, the Court rejected the defendant’s arguments in Butler.

It is still important to note that there are a number of pending appeals regarding Pennsylvania’s Megan’s Law registration scheme and whether it is constitutional to make someone register based solely on the offense of conviction without any individualized fact finding as to whether the person is actually a risk to society. In the short term, it is extremely important that anyone who is charged with a sex offense retain a lawyer with experience in this field as avoiding the SVP designation is absolutely critical given the additional negative consequences that stem from such a finding. Our lawyers have extensive experience defending clients against sex offense charges and in contesting the sexually violent predator designation. We regularly work with some of the best experts in this field to have our clients evaluated and convince prosecutors and judges that they do not need to register for life.

If you need a criminal defense lawyer in Philadelphia, PA, we can help.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 1/16/20 Zak Goldstein 1/16/20

Third Circuit Court of Appeals: Mistake of Age is Not a Defense to Charges of Transporting a Minor to Engage in Prostitution

The United States Third Circuit Court of Appeals has decided the case of United States v. Tyson, holding that a mistake-of-age defense is not applicable to the charges of transporting a minor to engage in prostitution or producing child pornography. The decision also holds that knowledge of the victim’s age is not required to secure convictions under either of these statutes. This decision is not surprising given that the majority of circuit courts have held that mistake of age or knowledge that a victim is underage is a defense to the aforementioned charges.

United States v. Tyson

In August 2017, the defendant contacted a seventeen-year-old female on Facebook to engage her in prostitution. After communicating for several days via Facebook and text messages, the defendant traveled from Pennsylvania to New York City. The defendant picked up the complainant and her friend and brought them to Harrisburg, Pennsylvania. He then rented several rooms at a hotel in New Cumberland, Pennsylvania between August 15 and August 20, 2017. Phone records reveal that several individuals from Harrisburg contacted the complainant to engage in commercial sexual activity. On August 22, 2017, after a relative of the defendant brought the victim to a Quality Inn in New Cumberland, FBI agents and local law enforcement recovered her during a sting operation. Investigators then interviewed her and reviewed her phone. After they reviewed her phone, they found a video of her performing oral sex on the defendant.

On October 18, 2017, the defendant was indicted for knowingly transporting a minor to engage in prostitution and producing child pornography. Before trial, the Government filed a motion in limine to prohibit the defendant from eliciting evidence to establish mistake of age and from asserting mistake of age as an affirmative defense. The District Court granted the motion. The Court reasoned that evidence of mistake of age is irrelevant because the statutes that the defendant was charged under do not require proof of a defendant’s knowledge that the victim was a minor.

After this ruling, the defendant entered into a conditional plea agreement. According to the terms of the plea agreement, Government agreed to recommend to the District Court that the sentences be served concurrently for a total of 180 months’ imprisonment. The agreement also preserved the defendant’s right to appeal the District Court’s order granting the Government’s motion in limine. On December 19, 2018, the District Court sentenced the defendant to 180 months’ imprisonment for each count, to be served concurrently. The defendant then filed a notice of appeal with this court challenging the District Court’s order.

What is a Motion in Limine?

A motion in limine is a motion that can be filed by either the prosecution or the defense. The purpose of this motion is to have the judge make a ruling on a particular piece of evidence or argument that the party intends to make outside the presence of the jury. In criminal trials, it is common for defendants to file these motions to keep out particular pieces of evidence. There are strategic reasons for filing these motions. In jury trials, a defense attorney may not want to be seen objecting to particular pieces of evidence because it can be interpreted by the jury that they are attempting to hide something. As such, motions in limine are useful because a defense attorney is able to pre-emptively “object” to this evidence and keep it out before it is heard by the jury. It also allows both sides to know what evidence will be admissible at trial before the trial starts.

Motions in limine can also be used to preclude a particular party from arguing certain defenses. In the instant case, the Government filed a motion in limine to prevent the defense from arguing mistake of age defense. However, defendants can use motions in limines to prevent the prosecutor from making certain arguments. For example, prosecutors frequently like to argue witness intimidation even when there is no evidence to support this. As such, a defense attorney can file a motion in limine to preclude the prosecutor from making this argument when there is no such evidence to support this claim. This is just one example. Therefore, defense attorneys should anticipate what evidence the prosecutor intends to introduce at trial so they can file motions in limine to keep out harmful evidence and arguments against their clients. In state court, it is relatively uncommon for the prosecution to make motions in limine prior to trial. In federal court, however, prosecutors routinely file motions in limine in an attempt to undercut potential defense arguments. Therefore, it is important if you are facing federal charges to retain an attorney who has the experience to fight these motions.

The Third Circuit’s Ruling

The Third Circuit denied the defendant’s appeal. The Court analyzed the relevant statutes and other appellate decisions that have addressed this issue, including United States Supreme Court decisions. In its analysis, the Third Circuit found that the majority of other circuit court decisions have held that that it is not necessary for a defendant to know that the age of a victim to convict him of either transportation of a minor to engage in prostitution or production of child pornography. The Third Circuit found that by not specifically requiring knowledge of the victim’s age in the statutory language, Congress eliminated an offender’s opportunity to prey on children without consequence by claiming ignorance of the victim’s age. Further, the Third Circuit found that any potential prejudice to defendants was outweighed by the Government’s compelling interest in protecting children. Because knowing a victim’s age is not relevant to convicting a defendant under these statutes, a defendant cannot use the mistake of age defense. Consequently, the defendant will not get a new trial, and he will be forced to serve his sentence.

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