PSP’s Standing under 42 Pa.C.S. §9799.74 in PCRA Petition for Removal from Sex Offender Registry

Commonwealth v. Kale, 2020 WL 2465250 (Pa. Super.) (unreported), allocatur granted Dec. 14, 2020, appeal dockets 72 & 73 MAP 2020

In this case, the Supreme Court will consider whether the Pennsylvania State Police (PSP) have standing pursuant to 42 Pa.C.S. §9799.74 to intervene in a PCRA petition that seeks removal of a convicted sex offender from the Sex Offender Registration and Notification Act (SORNA) registry.

Kale was originally sentenced on February 23, 2016, pursuant to a negotiated guilty plea, to serve one-and-a-half to three years in prison for his convictions of two counts of aggravated indecent assault. In 2017, the Supreme Court issued its Opinion in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which found the SORNA to be punitive in nature, and held that the retroactive application of SORNA’s registration and reporting requirements violates the ex post facto clauses of the United States and Pennsylvania Constitutions. Following the Muniz decision, the Pennsylvania General Assembly enacted Act 10 of 2018, 42 Pa.C.S.A. §§ 9799.51, et seq. to include two separate tracks for registration: Subchapter H, applied to offenses committed after December 20, 2012; and Subchapter I, applied to offenses committed between April 22, 1996, and December 20, 2012. Because SORNA applied to individuals who committed offenses occurring prior to the effective date, lifetime registration was imposed on Kale pursuant to Subchapter I. Following the enactment of Act 10 Kale filed a Petition for relief under the Post Conviction Relief Act (“PCRA”) for removal from the registry. At the hearing, the Commonwealth did not oppose relief. The PCRA court granted Kale’s Petition and issued an order removing Kale from the Registry. PSP then filed a “Motion to Intervene and Vacate Nunc Pro Tunc” from the PCRA court’s Order. In the Motion, PSP claimed that it was not served with any of Kale’s PCRA Petitions, nor was it served with the PCRA court’s order directing Kale’s removal from the Registry. PSP argued that the General Assembly granted PSP “standing to appear and contest a filing in a court of this Commonwealth which seeks to challenge in any way the obligation of an individual required to register with the [PSP] under this subchapter.” 42 Pa.C.S.A. § 9799.74. Thus, PSP argued that it was deprived of its due process rights to contest the PCRA court’s removal of Kale from the Registry. The PCRA court issued an Order denying PSP’s Motion. PSP then filed separate Notices of Appeal specifically appealing from the PCRA court’s Order denying PSP’s Motion to Intervene and Superior Court, sua sponte, consolidated PSP’s appeals.

Superior Court quashed PSP’s appeal as untimely. Nonetheless, the court concluded that even if PSP had filed a timely appeal, the court would afford it no relief on the merits based on lack of standing. Superior Court rejected PSP’s argument that PSP had a right to be heard in Kale’s case based on the General Assembly’s grant of standing to the PSP in 42 Pa.C.S.A. § 9799.74, reasoning:

In this case, Kale was determined to no longer be an “individual required to register,” as the PCRA court, in agreement with the Commonwealth, determined that Kale was not subject to the registration requirements. PSP’s obligations in this case are, and remain, exclusively ministerial in nature, and nothing in the plain reading of the statute indicates that PSP’s responsibilities under SORNA expand beyond the mere ministerial. To that end, we conclude PSP’s argument that it was denied due process when it was not initially served with notice of the PCRA court’s Order to be without merit, as nothing in the statute compels service upon PSP, and PSP possessed no adjudicatory interest in the underlying matter.

Slip op. at 7 (footnote omitted).

The Supreme Court granted allocatur limited to the following issue:

Should the Superior Court’s Opinion and Order be reversed because its interpretation of PSP’s standing, pursuant to 42 Pa.C.S. §9799.74, is contrary to the plain language set forth in the statute?

For more information, contact Kevin McKeon or Dennis Whitaker.