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HomeMy WebLinkAboutCP-21-CR-0001137-1985 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1137-1985 : : DONALD LEE ACKLEY : IN RE: PETITION FOR EXEMPTION FROM CERTAIN NOTIFICATIONS UNDER 42 P.S. § 9795.2 OPINION AND ORDER For consideration at this time is Defendant’s Petition for Exemption from Certain Notifications Under 42 P.S. § 9795.2. In March, 1986, Defendant was sentenced for rape, a violation of 18 Pa.C.S.A. § 3121. After serving the maximum sentence of fifteen years, Defendant was released from prison on January 1, 2001. During Defendant’s term of incarceration, the Commonwealth of Pennsylvania enacted Megan’s Law II, which became effective July 9, 2000. In 2004, Megan’s Law III became effective and required certain information of sex offenders to be published through the Internet. Defendant has filed the instant petition raising the following two issues: first, whether Defendant is retroactively subject to the registration requirements of Megan’s Law II, and second, if so, whether Defendant may properly be granted an exemption from the application of 42 Pa.C.S.A. § 9798.1 (relating to information made available on the Internet). The facts of this case are not in dispute. Defendant was sentenced in March, 1986 for the crime of rape. A sentence of five to fifteen years was imposed, and Defendant served the entire maximum term of fifteen years in prison. He completed his sentence January 1, 2001, and was thereafter subject to certain reporting requirements because of the crime for which he was convicted. Following his release from prison, Defendant married Tracey Ackley, and the two have an inspiring young son. Because of the reporting requirements of the Megan’s Law statutes, life has become extremely difficult for Defendant and his family. At a hearing on the petition sub judice, Defendant and his wife testified to the hardships which have come about as a result of the Internet publication of his information. Though the Defendant has paid the full measure of punishment for the crime he committed and is now legally blind, he struggles with constant evictions and harassment by the community while attempting to raise his son and protect his marriage. The purpose of Megan’s Law is to protect the public. We are completely satisfied that the people of the Commonwealth are not endangered by Mr. Ackley. Accordingly, we enter our order in this case with great reluctance. Because the reporting requirements of Megan’s Law I which were in effect at the time Defendant was first sentenced had changed by the time of Defendant’s release, the first issue for consideration is whether or not the new and more stringent reporting requirements of Megan’s Law II are applicable to Defendant. For the crime of which Defendant was convicted, Megan’s Law I imposed reporting and registration requirements to last for a duration of ten years. Under Megan’s Law II, however, the crime of rape warrants a lifetime registration requirement. Megan’s Law II, which became effective July 9, 2000, provides, in pertinent part, as follows: Lifetime registration (b) . The following individuals shall be subject to lifetime registration: (2) Individuals convicted of any of the following offenses: 18 Pa.C.S. § 3121 (relating to rape). . . . . 42 Pa.C.S.A. § 9795.1. Section 5 of the enabling legislation for Megan’s Law II outlines the individuals to which the act applies. That legislation provides, in pertinent part, as follows: Section 5. This act shall apply as follows: (1)To proceedings initiated on or after the effective date of this act. 2 (2)The reenactment and amendment of 42 Pa.C.S. Ch. 97 Subch. H shall apply to individuals incarcerated on or after the effective date of this act. (3)This act shall not affect the requirements for individuals registered pursuant to 42 Pa.C.S. Ch. 97 Subch. H prior to the effective date of this act. Act No. 2000-18, Section 5, enacted May 10, 2000 (emphasis added). In Commonwealth v. Rivera, 2010 PA Super 237, 10 A.3d 1276, the Superior Court took up the question of whether Subpart 2 of the above-quoted legislation meant that the Megan’s Law reporting requirements applied to individuals incarcerated for any crime at the time of its enactment, or whether an individual had to be incarcerated for a crime which was covered by Megan’s Law in order for the provisions to subsequently be applicable to the offender. The Superior Court held that “the registration provisions are intended to apply to an offender only upon release from a term of imprisonment served as a direct result of a Megan's Law offense.” Rivera, 10 A.3d at 1284. This retroactivity is permissible because the registration requirement is defined as a collateral consequence of a defendant’s criminal punishment, that is, “one that is not related to the length or nature of the sentence imposed on the basis of the plea.” Commonwealth v. Leidig, 2004 PA Super 167, ¶ 12, 850 A.2d 743, 747 (internal citations omitted). The Superior Court has also held elsewhere that “the collateral effect of current legislation may be imposed on the defendant so long as he remains in the custody of correctional authorities to discharge any part of his sentence for the offense.” Commonwealth v. Benner, 2004 PA Super 243, ¶ 11, 853 A.2d 1068, 1072. Pennsylvania courts have retroactively applied the registration requirements of Megan’s Law to sex offenders who were incarcerated at the time the statute went into effect. Specifically, in Brenner, supra, the Superior Court held that the lifetime registration requirement of Megan’s Law II could be retroactively applied to a defendant who was incarcerated at the time the requirement went into effect. Brenner, 853 A.2d at 1072. In that case, the defendant had entered 3 a guilty plea to one count of aggravated indecent assault and was sentenced to two and a half to five years imprisonment. Id. at 1069. The defendant was imprisoned from April, 1999 until November, 2003, when he was granted parole. Id. The court found that because the defendant “continued to serve his sentence for the sex offense at issue after the promulgation of Megan’s II, he remains subject to the collateral effect of its application.” Id. at 1072. The court further explained that although a defendant is only subject to one conviction under the statutes in effect on the date of his sentence, the application of the registration requirements of Megan’s Law II are not as limited and may be retroactively applied due to their collateral nature. Id. The facts presented in the present petition are similar to those presented in Benner. Defendant Ackley was convicted of a sex offense and was incarcerated under Megan’s Law I at the time Megan’s Law II went into effect in July of 2000. Furthermore, in both cases, the terms of incarceration the defendants were serving were directly related to their sex crimes conviction. In Benner, the defendant entered a guilty plea to a single count of aggravated indecent assault and was imprisoned from April, 1999 to November, 2003. Similarly, Defendant Ackley was convicted of rape and was incarcerated from March, 1986 until his release on January 1, 2001. Just as in Brenner, where the court held that the reporting requirement of Megan’s Law II could be retroactively applied to sex offenders who were incarcerated at the time the statute went into effect, Defendant Ackley must be subject to the reporting requirements of Megan’s Law II and the collateral effect of its application. Because Megan’s Law II requires lifetime registration for a conviction under 18 Pa.C.S.A. § 3121 (Rape), Defendant is subject to the lifetime registration requirement of Megan’s Law II. We turn now to the issue of whether Defendant may be exempted from the Internet publication aspect of the reporting requirements contained in 42 Pa.C.S.A. § 9798.1. Section 4 9798.1 begins with a general finding of the Pennsylvania legislature of the purpose and intent of the Internet reporting requirements. That section provides, in pertinent part, as follows: (a) Legislative findings.-- It is hereby declared to be the finding of the General Assembly that public safety will be enhanced by making information about sexually violent predators, lifetime registrants and other sex offenders available to the public through the Internet. Knowledge of whether a person is a sexually violent predator, lifetime registrant or other sex offender could be a significant factor in protecting oneself and one's family members, or those in care of a group or community organization, from recidivist acts by sexually violent predators, lifetime registrants and other sex offenders. The technology afforded by the Internet would make this information readily accessible to parents and private entities, enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk. Public access to information about sexually violent predators, lifetime registrants and other sex offenders is intended solely as a means of public protection and shall not be construed as punitive. 42 Pa.C.S.A. § 9798.1. As is clear, the Legislature was under the general belief that the publication of information of lifetime registrants would result in an enhanced public safety. The statute goes on to list the data and information which will be published of those to whom the statute is applicable. The following is a non-exhaustive list of what is made public via the Internet: the name and all known aliases of the offenders, home addresses, employment addresses, photographs, physical descriptions, identifying marks, license plate numbers and vehicle descriptions, a description of the offenses for which the person was convicted, and the date of the offense. 41 Pa.C.S.A. § 9798.1(c). The statute provides for two potential options for the duration of the reporting requirements: ten years or lifetime, depending on the nature of the offense. The Internet provision is only modified by one potential escape hatch for those subject to the Internet publication portion of the statute. As applicable to the present petition, Section 9795.5(a) provides, in pertinent part, as follows: (a) Lifetime registrants not classified as sexually violent predators.-- 5 (1) An individual required to register under section 9795.1 (relating to registration) who is not a sexually violent predator may petition the sentencing court to be exempt from the application of section 9798.1 (relating to information made available on the Internet) provided no less than 20 years have passed since the individual has been convicted in this or any other jurisdiction of any offense punishable by imprisonment for more than one year, or the individual's release from custody following the individual's most recent conviction for any such offense, whichever is later. 42 Pa.C.S.A. § 9795.5 (emphasis added). Lifetime registrants may, therefore, only be exempted from the Internet publishing portion of the statute provided that no less than 20 years have passed since that individual has been convicted of any offense punishable by imprisonment for more than one year, or the individual’s release from custody following the individual’s most recent conviction for any such offense, whichever is later. In the case of petitioner, therefore, the statute results in a mandatory minimum period of Internet publication of 35 years from the date of sentencing with no hope of reprieve until approximately the year 2021. Even with a judicial finding that Petitioner is no threat to public safety, and that his Internet status will not aid in the protection of the public, only after a period of 20 years has passed from the date of his release from custody may Petitioner seek relief from having his information disseminated via the Internet. In this case, we are satisfied that no greater good is served by having Petitioner’s information published on the Internet. Regrettably, however, the law requires that twenty years must pass before one may petition for exemption from the Internet publication element of the statute. Because the required twenty year period has not passed since the conclusion of Petitioner’s incarceration, we are constrained to deny his petition for exemption under the provisions of 42 Pa.C.S.A. § 9795.5(a). For the reasons stated above, Defendant’s Petition for Exemption from Certain Notifications under 42 P.S. § 9795.2 must be denied. 6 ORDER th AND NOW, this 11 day of October, 2011, upon consideration of Defendant’s Petition for Exemption From Certain Notifications Under 42 P.S. § 9795.2, and for the reasons contained in the accompanying opinion, Defendant’s Petition is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P.J. Joshua Yohe, Esquire Assistant District Attorney Grace D’Alo, Esquire For the Defendant :rlm 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1137-1985 : : DONALD LEE ACKLEY : IN RE: PETITION FOR EXEMPTION FROM CERTAIN NOTIFICATIONS UNDER 42 P.S. § 9795.2 ORDER th AND NOW, this 11 day of October, 2011, upon consideration of Defendant’s Petition for Exemption From Certain Notifications Under 42 P.S. § 9795.2, and for the reasons contained in the accompanying opinion, Defendant’s Petition is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P.J. Joshua Yohe, Esquire Assistant District Attorney Grace D’Alo, Esquire For the Defendant :rlm