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HomeMy WebLinkAbout97-0913 CriminalCOMMONWEALTH ROBERT WAYDE DICK OTN: F003394-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-0913 CRIMINAL TERM CHARGE: (1) RAPE (2) STATUTORY SEXUAL ASSAULT (3) INVOLUNTARY DEVIATE SEXUAL INTERCOURSE (4) INDECENT ASSAULT AFFIANT: DET. RONALD EGOLF IN RE: DEFENDANT'S MOTION FOR EXTRAORDINARY RELIEF BEFORE HESS, J. ORDER AND NOW, this 2. c/-- day of April, 1998, the request of the defendant for extraordinary relief is GRANTED. The court, for reasons appearing in the opinion filed of even date herewith, declines to conduct a hearing with respect to whether or not the defendant is a sexually violent predator. He is ordered and directed to appear for sentence on Tuesday, May 5, 1998, at 1:30 p.m. BY THE COURT, Jaime M. Keating, Esquire Chief Deputy District Attorney Ellen K. Barry, Esquire Assistant Public Defender Hess, J. :tim COMMONWEALTH ROBERT WAYDE DICK OTN: F003394-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 9%0913 CRIMINAL TERM CHARGE: AFFIANT: (1) RAPE (2) STATUTORY SEXUAL ASSAULT (3) INVOLUNTARY DEVIATE SEXUAL INTERCOURSE (4) INDECENT ASSAULT DET. RONALD EGOLF IN RE: DEFENDANT'S MOTION FOR EXTRAORDINARY RELIEF BEFORE HESS, J. OPINION AND ORDER BACKGROUND This case is before us on a motion for extraordinary relief challenging the constitutionality of what is commonly known as Pennsylvania's Megan's Law (42 Pa.C.S.A. 9791-9799.6). On November 5, 1997, the defendant, Robert Wayde Dick, was convicted by a jury of involuntary deviate sexual intercourse, statutory sexual assault, and indecent assault. The jury trial was held before this court. The events which led to the charges are as follows. The York County Children and Youth Services received a report that the defendant was having sexual intercourse with his daughter Alyssa. At the time the report was issued, the defendant was in the York County Prison pending burglary charges. The Children and Youth Agency interviewed Alyssa and she reported that the defendant had been having sexual contact with her from the time she was twelve years old through the time she was sixteen years old. At 97-0913 CRIMINAL trial, Alyssa testified that starting at age twelve her father began fondling the outside of her clothes, and, after time, that her father began performing oral sex and eventually had vaginal intercourse with her. Alyssa also testified that the acts constituting sexual intercourse and involuntary deviate sexual intercourse occurred after the effective date of Megan's Law. After the defendant was convicted of involuntary deviate sexual intercourse, an enumerated offense under Megan's Law, the defendant was ordered to appear before an Assessment Board as required under the statute. 42 Pa.C.S.A. Section 9794(a). The defendant was advised by his counsel to remain silent in front of the Board. Prior to the hearing by this court to determine if the defendant is a "sexually violent predator" as defined under the statute, the defendant filed this petition for extraordinary relief requesting the statute be found unconstitutional. THE STATUTE A conviction for certain offenses listed in Section 9793~, such as involuntary deviate 1Section 9793(b) provides: (b) Persons required to register. -- (1) Persons convicted of any of the following offenses that are classified as a felony and involve a victim who is a minor: 18 Pa.C.S. § 2901 (relating to kidnaping) except by a parent. 18 Pa.C.S. § 3121 (relating to involuntary deviate sexual intercourse). 18 Pa.C.S. § 3125 (relating to aggravated indecent assault). 18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses). 18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to obscene and other sexual materials and performances). (2) Persons convicted of any of the following offenses regardless of the age 2 97-0913 CRIMINAL sexual intercourse, triggers a proceeding to determine if the convict is a "sexually violent predator." Section 9794 outlines the procedure for this determination: § 9794. Designation of sexually violent predators (a) Order for assessment. -- After conviction, but before sentencing, a court shall order a person convicted of a sexually violent offense specified in section 9793(b) (relating to registration of certain offenders for ten years) to be assessed by the board. The order for an assessment shall be sent to the administrative officer of the board within ten days of the date of conviction. (b) Presumption. --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). (c) Assessment. --Upon receipt from the court of an order for an assessment, two members of the board as designated by the administrative officer of the board shall conduct an assessment of the offender to determine if the offender is a sexually violent predator. Such an assessment shall include, but not be limited to, such factors as: (1) Age of the offender. of the victim: 18 Pa.C.S. § 3121. 18 Pa.C.S. § 3123. 18 Pa.C.S. § 3125. 18 Pa.C.S. § 3128(a) and (b) (relating to spousal sexual assault). (3) Persons convicted of 18 Pa.C.S. § 3126 (relating to indecent assault) when the offense is a misdemeanor of the first degree. 42 Pa.C.S. § 9793(b). 97-0913 CRIMINAL (2) Offender's prior criminal record, sexual offenses as well as other offenses. Age of the victim. Whether the offense involved multiple (3) (4) victims. (5) Use of illegal drugs by the offender. (6) Whether the offender completed any prior sentence and whether the offender participated in available programs for sexual offenders. (7) Any mental illness or mental disability of the offender. (8) The nature of the sexual contact with the victim and whether the sexual contact was part of of a demonstrated pattern of abuse. (9) Whether the offense included a display of unusual cruelty by the offender during the commission of the crime. (10) Any behavioral characteristics that contribute to the offender's conduct. All state, county and local agencies shall cooperate in providing the necessary information as requested by the board in connection with the required assessment. (d) Submission of report by board. --The board shall submit a written report containing its assessment to the court no later than 60 days from the date of conviction of the defendant. Where the board members disagree on the assessment of the offender, both members shall submit a written report to the court. (e) Court review of findings. --Upon receipt of the board's report, the court shall determine if the offender is a sexually violent predator. This determination shall be made based on evidence presented at a hearing held prior to sentencing and before the trial judge. The offender and district 97-0913 CRIMINAL attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the offender shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one. After a review of all evidence presented at this hearing, the court may determine whether the presumption arising under subsection (b) has been rebutted and shall set forth this determination on the sentencing order. A copy of the sentencing order containing the determination shall be submitted to the Pennsylvania Board of Probation and Parole and the Department of Corrections. (f) Subsequent board review. --No sooner than one year prior to release from a state or county correctional institution, or in five-year intervals thereafter, an offender designated as a sexually violent predator may petition the court with original jurisdiction in the matter for reconsideration of the determination. The court may review the determination and request a new report by the board. The court may enter an order terminating the designation in which case the court shall notify the Pennsylvania State Police. 42 Pa.C.S. Section 9794(a)-(f). Section 9792 defines a "sexually violent predator" as: A person who has been convicted of a sexually violent offense as set forth in section 9793(b) (relating to registration of certain offenders for ten years) and who is determined to be a sexually violent predator under section 9794(3) (relating to designation of sexually violent predators) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. 97-0913 CRIMINAL 42 Pa C.S. Section 9792. The term "personality disorder" is undefined, but a "mental abnormality" under the statute is: A congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. 42 Pa.C.S. Section 9792. Once a trial court finds that an individual is a sexually violent predator, the individual is subject to a sentence enhancement, counseling, and registration requirements. Section 9799.4 states in pertinent part: § 9799.4. Sexually violent predators (a) Increased mandatory maximum sentence.-- Upon the court's finding that the offender is a sexually violent predator, the offender's maximum term of confinement for any offense or conviction specified in section 9793(b) (relating to registration of certain offenders for ten years) shall be increased to the offender's lifetime notwithstanding lesser statutory maximum penalties for these offenses. (b) Counseling. --The sexually violent predator shall be required to attend at least monthly counseling sessions in a program approved by the board and be financially responsible for all fees assessed from such counseling sessions. If the sexually violent predator can prove to the satisfaction of the court that the person cannot afford to pay for the counseling sessions, that 97-0913 CRIMINAL person shall still attend the counseling sessions and the parole office shall pay the requisite fees. In addition to the sentence enhancement and counseling requirements, a sexually violent predator must register his address with the Pennsylvania State Police upon release from incarceration pursuant to Section 9795. Once registered, the statute requires the police to notify certain members of the public concerning the presence of the sexually violent predator. The notification provision states: § 9798. Other notification (a) By municipality's chief law enforcement officer. -- Notwithstanding any of the provisions of 18 Pa.C.S. Ch. 91 (relating to criminal history record information), the chief law enforcement officer of the police department of the municipality where a sexually violent predator lives shall be responsible for providing written notice as required under this section. (1) The notice shall contain: (I) The name of the convicted sexually violent predator. (ii) The address or addresses at which he resides. (iii) The offense for which he was convicted. (iv) A statement that he has been designated by court order as a sexually violent predator, if available. (2) The notice shall not include any information that might reveal the victim's name, identity and residence. 97-0913 CRIMINAL (b) To whom written notice is provided. --The chief law enforcement officer shall provide written notice, under subsection (a), to the following persons: (1) Neighbors of the sexually violent predator. (2) The director of the county children and youth service agency of the county where the sexually violent predator resides. (3) The superintendent of each school district and the equivalent official for private and parochial schools enrolling students up through grade 12 in the municipality. (4) The director of each licensed day care center and licensed preschool program in the municipality. (5) The president of each college, university and community college located within 1,000 feet of a sexually violent predator's address. (c) Urgency of notification. --The municipal police department's chief law enforcement officer shall provide notice within the following time frames: (1) To neighbors, notice shall be provided within 72 hours after information of the sexually violent predator's release date and address has been received by the chief law enforcement officer. Notwithstanding the provisions of subsections (a) and (b), verbal notification may be used if written notification would delay in meeting this time requirement. (2) To the persons specified in subsection (b)(2), (3), (4) and (5), notice shall be provided within seven days after the chief law enforcement officer receives information regarding the sexually violent predator's release date and address. (d) Public notice. --All information provided in accordance with subsection (a) shall be available, upon request, to the general public. 97-0913 CRIMINAL 42 Pa.C.S. Section 9798(a)-(d). DISCUSSION Defendant raises several objections to the provisions of the statute cited above under both the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. More specifically, the defendant claims that the statute violates the due process clause, the right against self-incrimination, the double jeopardy clause, and the defendant's right to privacy; he further claims that the statute is a bill of attainder and that it imposes cruel and unusual punishment. We will, however, address the primary issue which we believe entitles the defendant to relief. This is his contention that the statutory presumption in Megan's Law violates due process. Specifically, the defendant argues that the burden of proving that he is a "sexually violent predator" should rest with the Commonwealth, and that he should not be required to rebut a presumption to this effect (by clear and convincing evidence or otherwise). One of the few appellate cases dealing with Megans' Law is the case of Com. v. Davis, 1998 Pa. Super. LEXIS 29 (February 2, 1998). The court in Davis addressed whether the determination of the "sexually violent predator" status constituted double jeopardy, in the form of a second prosecution for the same offense. Id~ at 8. The court held that the hearing to determine a defendant's status was not a second prosecution and, therefore, found that the statute did not violate the defendant's right against double jeopardy. See Id. at 12. The court stated that the "sexually violent predator" status is not a separate "charge," but rather a "designation" which 97-0913 CRIMINAL applies to certain individuals convicted of sex offenses. Id__~. at 11-12. The court further stated that the hearing "is no more a 'second trial' than a sentencing hearing or a hearing on post-trial motions. Appellant's trial (entry of guilty plea) rendered him a sexually violent predator; the hearing is offered to provide appellant the opportunity to overcome that presumption." Id___~. at 12- 13. Following the superior court's reasoning, this statute allows a judge to presume that an individual has a "mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses" based on a finding by the judge or a jury beyond a reasonable doubt that the defendant committed the underlying offense. We hasten to add that the court in Davis did not go on to address, as we must, the constitutionality of such a presumption. The United States Supreme Court has addressed the propriety of presuming facts in a criminal proceeding. In United States v. Romano, 382 U.S. 136 (1965), the Court stated: The test of validity of a statutory inference of guilt in a criminal case is whether there is a rational connection between the fact proved and the fact presumed or whether the inference of one from proof of the other is arbitrary because of the lack of connection between the two in common experience. Another Supreme Court case, Tot v. United States., 319 U.S. 463 (1943), illustrates the type of situation which the above test addresses. The Tot case involved a section of the Federal Firearms Act (52 Stat 1250, ch 850, 15 USC Section 902(0) declaring that the possession of a firearm or ammunition by any person who has been convicted of a crime of violence or is a fugitive from justice shall create a presumption that the firearm was shipped or transported or received by such person in violation the Act (through interstate commerce). The Court held that the presumption 10 97-0913 CRIMINAL violated due process since there was no rational connection between the possession of a firearm by the described individuals and the fact that the firearm was shipped through interstate commerce. Likewise, we question whether there is justification for the presumption in the statute before us today. Certainly there are some individuals who are convicted of sex crimes who may have mental abnormalities or personality disorders which make them likely to engage in future sexually violent offenses. The defendant in this case may be just such an individual. Many sex crime convicts, however, may not have a mental abnormality or a personality disorder. The statute covers a large area of offenses ranging from rape to kidnaping of minors to aggravated indecent assault, and we have no basis for holding that, in common experience, conviction for one of these crimes is necessarily related to being a sexually violent predator. Furthermore, under Section 9794(c), the Act instructs the Assessment Board to consider, a non-exhaustive list of factors which have little or nothing to do with the facts constituting the underlying offense. Most of the factors relate to the manner in which the crime was committed, or the history of the defendant, or behavioral characteristics of the defendant. These factors are an indication that there is much more to consider in determining if an individual is a sexually violent predator than the facts constituting the elements of the underlying offense. It is difficult to say, for example, that an eighteen-year-old boy who kidnaps a seventeen- year-old girl for ransom money and is convicted under 18 Pa.C.S. Section 2901, should be presumed to be a sexually violent predator. Nor could the same be said of a young adult whose 97-0913 CRIMINAL love affair with a teenager results in certain consensual but illegal sexual activity; activity which can result in a conviction for involuntary deviate sexual intercourse - the same crime as in this case. In fact, we are satisfied that there are as many examples as not of the commission of offenses under Megan's Law by persons not necessarily disposed to commit future sexually violent acts. Furthermore, nowhere in the statute does the legislature explain the nexus between the elements constituting the underlying offenses and the elements of being a sexually violent predator. The superior court's decision in Davis is clear in saying that Megan's Law doesn't create a separate criminal proceeding for the purpose of double jeopardy. The superior court, however, does not clearly define what the determination hearing under Megan's Law is. Our analysis above assumes that the superior court has likened Megan's Law to a presumption statute such as the one in Tot. We are fully aware, however that there are some crucial distinctions between the statute before us and the firearms statute in Tot, most notably the separate hearing in Megan's law which calls for additional fact finding, and the fact that an individual convicted of an underlying offense in Megan's Law is subject to two possible maximum sentences whereas the statute in Tot only involved one possible maximum sentence. The Supreme Court has addressed the constitutionality of at least two statutes which allow fact finding in a proceeding after trial. See McMillan v. Pennsylvania, 477 U.S. 79 (1986); Specht v. Patterson, 386 U.S. 605 (1967). Both statutes are distinguishable from the law before us, but the Court's analysis of the statutes sheds light on the constitutionality of this statute in its current procedural configuration. 12 97-0913 CRIMINAL The United States Supreme Court has held that the United States Constitution requires "proof of a criminal charge beyond a reasonable doubt." In re Winship, 397 U.S. 358, 362 (1970). Specifically, the Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt." Id at 375. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Supreme Court found constitutional a Pennsylvania Act which provides that anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years imprisonment if the sentencing judge finds, by a preponderance of the evidence, that the individual "visibly possessed a firearm" at the time of the offense. The judge is directed to consider evidence presented at the trial and at the sentencing hearing, and is not authorized to sentence the defendant in excess of that otherwise allowed for that offense. The petitioners in McMillan argued that a court should be required to find beyond a reasonable doubt that they visibly possessed a firearm. The Court noted, however, that the visible possession was not an element of the underlying offense, but instead only a sentencing factor that comes into play after the defendant has been found guilty. The Court conceded that "in certain limited circumstances [a] reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged." Id.__~. at 86 (citing Patterson v. New York, 432 U.S. 197 (1977)). The Court refrained, however, from defining the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases, but it found that the Pennsylvania statute did not offend due process. 13 97-0913 CRIMINAL More precisely, the Court found that "the statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense." Id. at 88. In other words, the Court was satisfied that the finding of a fact by a preponderance of the evidence at the sentencing hearing did not violate due process: The finding of visible possession of a firearm of course "ups the ante" for a defendant, or it would not be challenged here: but it does so only in the way that we have previously mentioned, by raising the minimum sentence that may be imposed by a trial court. En route to its decision, the McMillan Court distinguished another Supreme Court case, Specht v. Patterson, 386 U.S. 605 (1967). The Court in Specht addressed a Colorado statute very similar to the one before us. The Colorado Sex Offenders Act (Colo. Rev. Stat. Ann. Sections 39-19-1 to 10 (1963)) was triggered when a trial court was of the opinion that an individual convicted of specified sex offenses "if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender or mentally ill." After the court made this determination, the individual was subjected to a complete psychiatric examination resulting in reports which the court would review in determining a term of imprisonment anywhere from one day to life? The Court was only faced with the narrow issue of whether the petitioner should have been afforded notice and a full hearing before being sentenced under the Act. In finding that the petitioner was afforded these rights the court explained what the Colorado legislature had created: 2 The petitioner was convicted of indecent liberties which carries a maximum sentence of ten years. (Colo. Rev. Stat. Ann. Section 40-2-32 (1963)). 97-0913 CRIMINAL The Sex Offenders Act does not make the commission of a specified crime the basis for the sentencing. It makes the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact that was not an ingredient of the offense charged. The punishment under the Second Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm. Id___~. at 608-609. The Court went on to agree with and quote the Court of Appeals for the Third Circuit which had spoken of a "comparable" Pennsylvania statute: It is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing · before the magnified sentence was imposed. At such a hearing the requirements of due process cannot be satisfied by partial or niggardly procedural protections. A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial. Id.~. at 609 (quoting Gerchman v. Maroney, 355 F2d 302, 312 (1966)). In the statute before us, a determination that an individual is a sexually violent predator results in an increased sentence of life. This is not a situation in which a mandatory minimum sentence is set and where the maximum sentence remains unaltered. In this latter event, the Supreme Court of the United States has determined that a burden of proof by a preponderance of the evidence does not violate due process. Reading Winship and McMillan together, however, it is logical to conclude that, where the determination of an issue results in the increase in the maximum sentence (i.e. to life imprisonment), the burden of proof ought to be on the prosecution 97-0913 CRIMINAL beyond a reasonable doubt. Whether the burden under Megan's Law ought to be beyond a reasonable doubt or by a preponderance of the evidence, we need not resolve. Of one thing we are certain, where the issue is whether a person should be sentenced to life imprisonment instead of a lesser term of years, the burden of proving the contrary cannot be upon the defendant. The above discussion, of course, deals with the enhancement of the sentence to life imprisonment. There remains the question of the burden of proof with regard to the registration/notification provisions. As we have noted, a person determined to be a sexually violent predator not only receives an increased sentence, but must also register so that notification may be made of his status. Because we hold that Megan's Law incorrectly forces the defendant to bear the burden of presenting clear and convincing evidence to rebut the presumption that he is a sexually violent predator, it follows that Section 9799.4(a) is not valid. However, a statute may be partially valid and partially invalid when the provisions "are distinct and not so interwoven as to be inseparable." Heller v. Frankston, _ Pa ..... 475 A.2d 1291, 1296 (1984). Turning to the registration and notification provisions under Section 9795 and Section 9797(a) respectively, we believe these sections are distinct and separable from the sentence enhancement provisions under Section 9799.4(a). Neither section is dependent upon the other, but, rather, both are only dependent upon the defendant first being designated a sexually violent predator. In fact, the term "Megan's Law" is generally used to denote the registration requirements accompanying the conviction of a defendant of certain enumerated sexual offenses in most states. John Gibeaut, Defining Punishment, ABA JOURNAL, March 16 97-0913 CRIMINAL 1997, at 36. Our research has revealed that Pennsylvania is the only state to also mandate sentence enhancement as well as registration and notification. At the same time, we can discern no reason why the registration and notification requirements are not deserving of their own due process analysis. Thus, we address whether the notification3 provisions constitute punishment and further, whether the burden should rest with the defendant. In determining what constitutes punishment, the Third circuit in Artway v. Attorney General, formulated a three prong test to address this question. 81 F.3d 1235, 1263 (3rd Cir. 1996). We note, the Pennsylvania Superior Court, in Com. v. Gaffney, adopted the circuit court's approach while recognizing that it was not binding upon it. See 702 A.2d 565,567 (Pa. Super. Ct. 1997). In light of two United States Supreme Court cases that deviated from Artway insofar as that decision attempted to establish a test for determining punishment in all contexts, the Third Circuit, in E.B.v. Vemiero, 119 F.3d 1077 (3rd Cir. 1997), "refined the Artway formulation and reaffirmed its applicability to legislative measures such as Megan's Law." Gaffney, 702 A.2d at 567. The Gaffney court stated the applicable standard as follows: [a]t present, the Third Circuit will consider a measure punishment if: (1) the legislature's actual purpose is punishment, (2) if the "objective" purpose is punishment or (3) if the effect of the statute is so harsh that "as a matter of degree" it constitutes punishment. 3 For purposes of this opinion, the term "registration" will, hereinafter, be used to refer to the registration provisions attached to the "offender" status. 42 Pa.C.S.A. Section 9793. "Notification," however, will be used to refer to the heightened registration and notification provisions applicable to the defendant who has been deemed to be a "sexually violent predator." Id__~. Section 9795-98. 17 97-0913 CRIMINAL Id__~.(citing E.B., 119 F.3d at 1093). Gaffney went on to hold that the registration provisions under Section 9793 do not constitute punishment under the Pennsylvania's Constitution. See 702 A.2d at 569-70. We note, however, the Gaffney court only examined the registration procedures as they apply to "offenders" and did so in the context of an Ex Post Facto claim under the Pennsylvania Constitution. Our research has revealed no case in this Commonwealth in which the court addresses the issue of whether the notification provisions under Sections 9797 and 9798 constitute punishment. First, we must consider whether the legislature's actual purpose is punishment. The legislative findings and declaration of policy indicate that the purpose of Megan's Law is to allow communities to prepare themselves and their children for the release of sexually violent predators who pose a high risk of engaging in further offenses. See 42 Pa. C.S.A. Section 9791(a)(1-6). The purpose is made even clearer by "the stated policy to authorize the release of necessary and relevant information about violent predators to members of the general public as a means of assuring public protection and shall not be construed as punitive." Id~ Section 9791 (b). We believe this purpose applies equally to the registration requirements that the Gaffney court found to be constitutional as well as to the heightened notification requirements for sexually violent predators. In fact, the term "sexually violent predators" as opposed to mere "offenders" is used in the findings and policy. We, therefore, conclude that the actual purpose of the notification provision of Megan's Law is not punishment. Second, we must consider if the "objective" purpose is to punish. This prong requires us 97-0913 CRIMINAL to first look at whether the measure is reasonably related to the legitimate good. See E.B., 119 F.3d at 1097. As indicated earlier, the goal of furthering public safety is a legitimate exercise of legislative power. Allowing law enforcement agents in the community to be aware of and prepare for the presence of a sexually violent predator is not an unreasonable purpose. See id. at 1098. Furthermore, the notification is only made to those in the community who have been deemed to need the opportunity to prepare for the offender's release. We do not believe the goal of public safety has been pursued in a way that imposes an unreasonable burden on the registrant. In addressing this aspect of New Jersey's Megan's Law, the Third circuit found that the dissemination of information beyond law enforcement personnel was not analogous to public shaming, humiliation and banishment. Rather, the court believed the more heightened notification standards under New Jersey Tier 2 and Tier 34 closely resembled various forms of state warnings such as quarantine notices and posters of individuals who are to be considered armed and dangerous. See E.B:, 119 F.3d at 1100-01. The state has a right to issue warnings and notices about a risk in the community, even though the individuals involved "can expect to 4 In New Jersey, the prosecutor of the county where the offender intends to reside and the prosecutor of the county of conviction use the registration information to jointly assess the risk of recidivism by the individual and determine the appropriate tier that corresponds to the recidivism risk. Every registrant is deemed to qualify for a classification that involves extending notification only to law enforcement agencies likely to encounter the registrant. Those registrants posing a moderate risk under Tier 2, known as "law enforcement, school and community organization alter," have their information distributed to law enforcement agencies registered schools, day care centers, summer camps, all other community organization providing care to woman and children and where individuals are likely to encounter a sex offender. Finally, Tier 3 or "community notification" is for higher risk registrants and therefore members of the public likely to encounter the registrant are notified. N.J.S.A. 26:7-8d(1). 97-0913 CRIMINAL experience embarrassment and isolation", and the negative effects are not to be regarded as punishment. We conclude, as did the E.B. court, that because these close analogies have not been regarded as punishment, "historical precedent does not demonstrate an objective punitive purpose." Id._~. at 1101. The third consideration under the "objective purpose" program as stated by the E.B. court is as follows: [E]ven if the remedial purpose of a measure cannot fairly be said to justify all of its aspects, it will nevertheless be found nonpunitive if measures of this type, like taxes, have traditionally served both remedial and deterrent purposes and the particular measure before the court serves such purposes in a manner consistent with its analogous antecedents. E.B., 119 F.3d at 1101. We believe, as did the Third circuit in E.B. and Artway, that the remedial purpose of Megan's Law justifies its aspects and any deterrent effects are incidental and will not invalidate it as being punitive. See 119 F.3d at 1101; 81 F.3d 1266. Finally, a law may still constitute punishment because of its effects. See Artway, 81 F.3d at 1260. However, those effects would have to be especially onerous. See 119 F.3d at 1101. We believe Pennsylvania's Megan's Law is sufficiently similar to that of New Jersey as to allow us to further rely upon the court's analysis in E.B. Furthermore, the arguments posited by the defendants in that case are strikingly similar to those put forth in the case at bar. By comparing two U.S. Supreme Court cases that held denaturalization as a remedy for citizenship fraudulently obtained and pretrial detention and post-sentence civil commitment of dangerous offenders were not to be regarded as punishment, the E.B. court held "It]he direct effects of Megan's Law clearly 20 97-0913 CRIMINAL do not rise to the level of extremely onerous burdens that sting so severely as to compel a conclusion of punishment." Id. at 1102. The E.B. court goes on to address two types of indirect effects, harm to reputation and exposure to an increased risk of private violence. In these regards we note the Supreme Court's holding in Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976) that a police department's publication by photos on flyers distributed to merchants describing the defendant as an "active shoplifter," even though the defendant had only been arrested for, but never convicted of, shoplifting, was not violative of the fundamental privacy rights of the defendant. From that holding the Third circuit concluded that the New Jersey's publication, through notification, of the defendant's past conviction and findings of dangerousness did not implicate any fundamental constitutional interest. E.B., 119 F.3d at 1102. Because of the similarities of the Pennsylvania and New Jersey statutes, we are satisfied that the impact of notification on the defendant's interest in his reputation does not constitute punishment? With regard to the increased risk of private violence, we do not feel that the magnitude of the risk is so high as to consider notification punishment. This risk of private violence stems not s Although we are aware that reputation is a fundamental right under the Pennsylvania Constitution, for purposes of the "effects" prong, we are unable to locate any Pennsylvania case law in which the effects on a person's reputation have been likened to punishment. Furthermore, the notification stems from the defendant's conviction for a certain type of offense. In other words, only truths are to be disseminated and any ramifications on the defendant's arise from the defendant's own actions. Lest it be forgotten, the conviction which the defendant does not want the community to be made aware came about after he was afforded due process in a trial in which his guilt was determined. 23_ 97-0913 CRIMINAL from the notification but from the registrant's prior criminal acts. See id. at 1104. The state is providing accurate information about the registrant's crimes and while this may extend the period the registrant is at risk of private harm, this risk does not raise this measure to the level of punishment. See id. There is background risk of private violence assumed by everyone in society and whenever anyone "commits a reprehensible crime and is publicly prosecuted, that risk is undoubtedly augmented to a limited degree." Id_~. Finding that the notification provisions under Megan's Law do not constitute punishment, we turn to the due process considerations surrounding the burden of proof. The Fourteenth Amendment to the United States Constitution states that "no person shall be deprived of life, liberty, or property without due process of law." U.S. CONST. amend. XIV. Article I, Section 9 of the Pennsylvania Constitution contains similar language. Relevant to our discussion is the fact that this Commonwealth's Constitution recognizes and protects an individuals reputation.6 See Simon v. Commonwealth, 659 A.2d 631,636 (Pa. Commw. Ct. 1995). In fact, our superior court has recognized that conviction of an individual for sexual abuse of a child has a negative impact on one's reputation bolstering the constitutional right of confrontation of witnesses. See In the Interest ofTina K., 390 Pa. Super. 94, 100-01,568 A.2d 210, 214 n.2 (1989). This effect 6 Article I, Section 1 of Pennsylvania's Constitution provides: All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. Pa. Const. Art. I, Section. 22 97-0913 CRIMINAL on a registrant's reputation will last his entire life and therefore this protected interest may not be infringed upon without due process as required by the federal and state constitutions. In considering the statute's placement of the burden of persuasion, we look again to the Third Circuit and its due process analysis of the notification provisions of New Jersey's Megan's Law in E.B.v. Verniero. The Third Circuit followed Mathews v. Eldridge, 424 U.S. 319 (1976), which outlined the factors to consider as follows: [D]ue process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471,481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) .... More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. E.B.., 119 F.3d at 1106-07 (quoting Mathews, 424 U.S. at 334-35). We will analyze Pennsylvania's Megan's Law in light of the above factors. First, the interest of the individual who is subject to these notification procedures are substantial. We agree with the court in E.B. that "[n]otification puts the registrant's livelihood, domestic tranquility, and personal relationships with all around him in grave jeopardy." Id. at 1107. This "grave jeopardy" will, in the event of a sexually violent predator designation as 23 97-0913 CRIMINAL opposed to "offender" status, last for the remainder of the registrant's life.7 Because of these dramatic consequences, a registrant has a significant interest in an accurate determination of whether he is a sexually violent predator. Second, the Commonwealth also has a compelling interest in protecting its citizens through notification of the registrant's neighbors and other parties who may be affected by his presence. This interest is especially substantial given the high risk of recidivism, the particularly repugnant nature of the crimes and the vulnerability of the victims. However, the Commonwealth also has an interest in ensuring that the court's determination and the subsequent notification procedures are fair and accurate. The interest of the defendant and the Commonwealth are essentially in balance. We, therefore, turn to the question of the risk of error in the procedure utilized by the statute. The statute requires a finding by the court that the individual who has been convicted of a predicate offense possesses "a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A. Section 9792. This is a complex determination involving a careful judgment by the court regarding the future of the registrant. While a state may require a court to engage in such an assessment, "it is an undertaking involving substantial uncertainty." E.B., 119 F.3d at 1108. 7 We recognize that an offender who is designated as a sexually violent predator will be able to petition the court of original jurisdiction for reconsideration of his designation as a sexually violent predator during the year before he is released and in five year intervals thereafter. However, the court does not have to grant the petition and assuming it does, the registrant will have to proceed again with the burden of persuasion on his shoulders. 24 97-0913 CRIMINAL This determination of future dangerousness will necessarily involve the resolution of issues of credibility. Both sides are permitted to present witnesses whose testimony may conflict and the judge will therefore have to determine the truth. We recognize this as a normal function of the court acting as fact finder, but where there are conflicting accounts, the burden of persuasion may prove to be determinative of the outcome. See id. at 1109. Thus, allocation of the burden on the prosecution will materially reduce the risk of error in those cases where there is conflict in the testimony concerning the defendant's status as a sexually violent predator. See id. We further believe that allocating the burden of persuasion onto the prosecution will in no way impede the Commonwealth's ability to receive a prompt determination nor impose new administrative burdens on it. The prosecution will have the assessment board's findings as well as its usual assortment of resources available to it at the hearing. Additionally, the prosecutor may rely on live testimony. In any event, the prosecutor is in a better position to gather evidence in anticipation of such a hearing than is the registrant. We conclude that both the Commonwealth and the registrant have significant interests in an accurate determination of whether the individual is a "sexually violent predator" and that the reallocation of the burden of persuasion onto the prosecution will reduce the risk of error. We hold, therefore, that Pennsylvania's Megan's Law's allocation of the burden of proof on the question of whether an individual is a sexually violent predator, for notification purposes, violates due process requirements under the U.S. and Pennsylvania Constitutions. Although we choose not to discuss, in detail, the other arguments raised by the defendant, 25 97-0913 CRIMINAL nor do they serve as a basis for our holding, we note that there may be merit in two of the arguments. The d~fendant argues his right against self-incrimination, pursuant to the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, is violated because he is required to give statements in psychiatric evaluations that may be used against him in sentencing. J_udge Kuhn in the Court of Common Pleas of Adams County, in a well-reasoned opinion addressing the same issues before us, found that pursuant to Estelle v. Smith, 451 U.S. 454 (1981), Megan's Law violated a defendant's right against self-incrimination. See Commonwealth v. Harget, No. CC-678-96 (Adams County 1997). Judge Kuhn stated, "Estelle clearly establishes a defendant's right to be free from self- incrimination during a psychiatric evaluation when the findings of that evaluation may be used against him in the penalty phase of a criminal trial." Id._~. at 18. While we see merit in Judge Kuhn's reasoning, we note that it should only apply to the sentence enhancement aspect of the statute and not the registration and notification requirements. The defendant also argues that his right against cruel and unusual punishment, pursuant to the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Section 13 of the Pennsylvania Constitution, is violated by Megan's Law. Specifically, he contends that by imposing a life sentence upon him pursuant to Section 9799.4(a), he is being punished for his mental status rather than for his criminal conduct. Judge Kuhn concludes, pursuant to Robinson v. California, 370 U.S. 660 (1962), that it is unconstitutional to punish an 26 97-0913 CRIMINAL individual for a disease or mental condition, and that Megan's Law does just that. See Harget No. CC-678-96 at 26-28. Again, however, we note that the registration and notification requirements in the statute do not, in any event, violate a defendant's right against creel and unusual punishment. ORDER AND NOW, this 2. ~ '~ day of April, 1998, the request of the defendant for extraordinary relief is GRANTED. The court, for reasons appearing in the opinion filed of even date herewith, declines to conduct a hearing with respect to whether or not the defendant is a sexually violent predator. He is ordered and directed to appear for sentence on Tuesday, May 5, 1998, at 1:30 p.m. BY THE COURT, Jaime M. Keating, Esquire Chief Deputy District Attorney Ellen K. Barry, Esquire Assistant Public Defender Hess, J. :rim 27