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HomeMy WebLinkAbout99-0849 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JUAN A. ORTIZ 99-0849 CRIMINAL TERM IN RE: CONSTITUTIONAL CHALLENGE TO MEGAN'S LAW II BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., February 13, 2002:-- On October 30, 2001, a jury convicted defendant, Juan Ortiz, of involuntary deviate sexual intercourse,~ and indecent assault? A pre-sentence investigation was ordered. On November 1, 2001, pursuant to 42 Pa.C.S. Section 9791-9799.7 ("Megan's Law II), an order was entered directing that defendant be assessed by The State Sexual Offenders Assessment Board. On November 13, 2001, defendant filed a motion challenging the constitutionality of "Megan's Law I1.' On the same date, the order directing that defendant be assessed by The State Sexual Offenders Assessment Board was vacated pending resolution of defendant's motion. Defendant maintains that Megan's Law II is unconstitutional because the registration/notification requirements are punitive, so as to constitute punishment, and that the statute is vague, capricious and arbitrary. In deciding a constitutional challenge to a statute, ~ 18 Pa.C.S. § 3123(a)(6)(7). 2 18 Pa.C.S. § 3126(a)(7). 99-0849 CRIMINAL TERM there is a strong presumption that the legislative enactment does not violate the constitution. Commonwealth v. Barud, 545 Pa. 297 (1996). A statute "will only be found unconstitutional if it clearly, palpably and plainly violates the constitution." Id. Megan's Law II was effective on July 9, 2002. It provides for a determination by the court of whether a defendant, who has been convicted of enumerated sexual crimes which include involuntary deviate sexual intercourse and indecent assault, is a "sexually violent predator." Section 9792 of the Act defines the term "sexually violent predator" as: A person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. The term includes an individual determined to be a sexually violent predator where the determination occurred in another state, territory, federal court, the District of Columbia or by court martial. The term "predatory" is defined as: An act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization. Upon conviction of a predicate offense, there must be a referral to The State Sexual Offenders Assessment Board for a determination of whether the defendant is a sexually violent predator. After the assessment, the District Attorney decides whether to proceed with a judicial determination of whether the defendant is a sexually violent predator. At a hearing, in which both sides may present evidence, the Commonwealth has the burden of proof, by clear and convincing evidence, that defendant is a sexually violent predator. If the court makes such a finding it does not affect the maximum sentence to which the defendant may be -2- 99-0849 CRIMINAL TERM incarcerated, nor does it trigger any mandatory minimum sentence. If defendant herein, who was convicted of involuntary deviate sexual intercourse, is determined to be a sexually violent predator, when released from any period of incarceration he will be required to participate in counseling, on a monthly basis for life, the type of which is designated by the Board. He will also be required to register all current residences or intended residences with the Pennsylvania State Police, for life.3 A violation of the registration provision is a criminal offense punishable by up to life imprisonment. The statute does not authorize a sexually violent predator to petition for a change in status. In Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999), the Supreme Court of Pennsylvania held that the predecessor statute to Megan's Law II was unconstitutional. That statute, Megan's Law I, provided for enhanced imprisonment of a person found to be a sexually violent predator in that the offender's maximum term of confinement for a predicate offense was increased to life imprisonment notwithstanding any lesser statutory maximum penalty. The statute provided: An offender convicted of any offense set forth in section 9793(b) shall be presumed by the board and the court to be a sexually violent predator. This presumption may be rebutted by the offender by clear and convincing evidence at a hearing held in accordance with subsection (e). (Emphasis added.) The Supreme Court stated that "[i]n a sentencing proceeding, due process requirements are applicable." The Court held: 3 A conviction for some enumerated sexual offenses requires registration for ten years, rather than life. -3- 99-0849 CRIMINAL TERM Given the foregoing analysis, we believe that the state must bear the burden of demonstrating that an offender is a sexually violent predator. Where resolution of competing facts is outcome determinative, "requiring the prosecutor to affirmatively convince the court of the important facts can be expected to materially reduce the risk of error." E.B.v. Verniero, 119 F.3d 1077 at 1109 (3rd Cir. 1997). Based on the foregoing, we find the sexually violent predator provisions of the Act to be violative of the procedural due process guarantees of the Fourteenth Amendment. (Footnotes omitted.) (Emphasis added.) The Court further stated: Given that we view the increased criminal sentencing provisions applicable to sexually violent predators to be punitive, we need not reach the additional argument put forth by Appellee that the enhanced notification provisions imposed on those who are deemed to be sexually violent predators are, likewise, punitive.4 (Emphasis added.) Before deciding Commonwealth v. Williams, supra, the Supreme Court of Pennsylvania held that the registration/notification requirements in Megan's Law I were not a form of punishment. Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999). In the pre- Williams case of Commonwealth v. Mountain, 711 A.2d 473 (Pa. 1998), the Superior Court of Pennsylvania stated: "[b]alancing the unobtrusive registration provision of Megan's Law with the Commonwealth's compelling interest in public safety, we find the momentary inconvenience of disclosing.., information to the police is greatly outweighed by the need to ensure public safety." The registration/notification requirements of Megan's Law II bear a similarity to the registration requirements found constitutional in Megan's Law I. The Third 4 Prior to the decision of the Supreme Court in Williams, this court, Hess, J., in Commonwealth v. Dick, 47 Cumberland L.J. 105 (1998), held that Megan's Law I was unconstitutional because of the presumption that the offender was a sexually violent predator which the defendant had the burden of rebutting. -4- 99-0849 CRIMINAL TERM Circuit Court of Appeals has held that the registration/notification requirements in New Jersey's Megan's Law, which are quite similar to Pennsylvania's requirements, do not constitute punishment. E.B.v. Vemiero, 119 F.3d 1077 (3r~ Cir. 1997); Paul P. v. Farmer, 227 F.3d 98 (2000). Based on the foregoing, we conclude that the registration/notification requirements in Megan's Law II are not punitive, and the statute is not vague, capricious and arbitrary. Defendant further maintains that Megan's Law II constitutes double jeopardy, cruel and unusual punishment, and that it is unconstitutional because an offender can be subjected to enhanced punishment based on a non-jury finding on a standard of proof of clear and convincing evidence rather than beyond a reasonable doubt. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2 435 (2000), the defendant was convicted of possession of a firearm for unlawful purposes, and unlawful possession of a prohibited offensive weapon. A New Jersey statute allowed a judge to make factual determinations, based on the preponderance of evidence, with respect to certain acts of hate, that could increase the maximum sentence of the defendant from ten to twenty years. The United States Supreme Court held that this provision violated due process because any fact, other than a prior conviction, that increases a penalty for a crime beyond the statutorily prescribed statutory maximum penalty must be submitted to a jury, and proven beyond a reasonable doubt. Unlike the New Jersey statute in Apprendi, Megan's Law II is not punitive and cannot result in an enhancement of a sentence. Therefore, a determination of whether a defendant is a sexually violent predator can be made by clear and convincing evidence, and does not -5- 99-0849 CRIMINAL TERM require proof beyond a reasonable doubt. Accordingly, there is no double jeopardy violation. Nor do the provisions of the statute constitute cruel and unusual punishment. Defendant further maintains that Megan's Law I1: (1) violates his right to counsel and right against self-incrimination, (2) violates his right to present a defense and right to equal protection, (3) violates the doctrine of separation of powers, (4) constitutes a gross and unjustifiable violation of his state and federal right to privacy, (5) may violate his confidentiality protections, and (6) violates Article III, Section 3 of the Pennsylvania Constitution in that the Act contains more than one subject. These allegations are without merit. In accord, Commonwealth v. Sessoms, (Philadelphia Co. No. 1140 March Term 1999, June 6, 2001); Commonwealth v. Krouse, (Indiana Co. 394 Criminal, December 7, 2000).~ ORDER OF COURT AND NOW, this day of February, 2002, the motion of defendant challenging the constitutionality of 42 Pa.C.S. § 9791-9799.7, IS DISMISSED. By the Court, Edgar B. Bayley, J. ~ Megan's Law II has also been found constitutional in Berks and Lebanon County. It has been found unconstitutional by a different judge in Philadelphia County, and in Centre, Erie, Delaware, Lycoming, Lancaster, Bucks and Montgomery counties. The issue of the constitutionality of the Act is currently before the Supreme Court of Pennsylvania. -6- 99-0849 CRIMINAL TERM Jonathan R. Birbeck, Esquire Jaime Keating, Esquire Assistant District Attorneys Ellen K. Barry, Esquire First Assistant Public Defender Karl Baker, Esquire Amici Curiae Defender Association of Philadelphia 70 North 17th Street Philadelphia, PA 19103 Diane L. Dombach, Executive Director Pennsylvania Board of Probation and Parole Sexual Offenders Assessment Board 1101 South Front Street, Suite 5700 Harrisburg, PA 17104-2533 Gregory Miller, Probation Officer :saa -7-