SORNA & SORNA II. Sexual Offender Registration and Notification Act 42 Pa.C.S

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1 SORNA & SORNA II Sexual Offender Registration and Notification Act 42 Pa.C.S

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3 Probation & Parole Official v. Unofficial Duties Official duty: (1) Initially register defendants; and (2) notify the PSP when a probationer/parolee is incarcerated; 42 Pa.C.S Unofficial duties: (1) register folks using the SORT system; (2) notify law enforcement of violations; and (3) answer a lot of questions.

4 Court Errors Don t Excuse You Failure by the court to provide the information required in this section, to correctly inform a sexual offender of the sexual offender's obligations or to require a sexual offender to register shall not relieve the sexual offender from the requirements of this subchapter (b)(1).* *Court orders are different.

5 Muniz and the new paradigm; Act 29 (the new law) how it s set up, what is required of registrants; Common misconceptions and quirks; Failure to comply issues; What to expect in coming months in SORNA and from the PSP; Questions and Answers.

6 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) SORNA is Punishment: Cert denied 1/22/18 Docket No A little history first. Date that matters: 12/20/2012 SORNA cannot apply retroactively. Does not invalidate the entire Act. Court offered NO guidance on what happens now. Roughly 17,000 people fall into this category.

7 2 Classes of People Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) PROSPECTIVE REGISTRANTS RETROACTIVE REGISTRANTS Those people whose registerable sexual offense occurred AFTER December 20, SORNA applies to this group. Those people whose registerable sexual offense occurred BEFORE December 20, SORNA cannot apply to this group of people!

8 Muniz left a gap!

9 Act 10 of 2018 (HB 631) (Feb. 2018) Act 29 of 2018 (HB 1952) (June 12, 2018)

10 THE BASICS Act 29 of 2018: H.B Creates a separate registration scheme for Offenses committed on or after 12/20/12 and those offenses committed prior to that date. Prospective: 3 changes from SORNA. Retroactive: brings back a hybrid of ML II, ML III, and SORNA for retroactive registrants. SVP hearings are back, kinda

11 ACT 29 STRUCTURE The Offense Date Timeline April 22, 1996 Dec. 20, 2012 Now NONE SUBCHAPTER I: SORNA II SUBCHAPTER H: SORNA Offense occurred and person was not registered prior to 12/20/12, then NO REGISTRATION NOW Must register if Committed offense between these dates, OR previously registered under a prior Megan s Law statute between these dates. (and other applicability provisions are met) Must register if Committed offense on or after 12/20/12. (and other applicability provisions are met)

12 Date of the offense matters Limited possibility of removal Telephonic verification.

13 Enumerated offense under Committed on or after 12/20/2012; AND The person must: o Be serving a sentence in pa; o Have a residence; o Be a student; o Be a transient; OR o Be employed in the state. 42 Pa.C.S

14 Included Offenses SORNA Subchapter H. 42 Pa.C.S SORNA is Categorical: a conviction triggers the registration obligation. Included Offense o Most sexual crimes, including attempts, conspiracy, etc. o Indecent Assault of ALL gradations o Unlawful restraint and false imprisonment of a minor by non parent. o Interference with custody of minors (non parent) o Invasion of privacy (M3) o Kidnapping of minors o Child pornography o Corruption of Minors (F3 sex acts) o Stat sex 8 years or more age difference Not Included o Indecent Exposure o Simple Assault o Prostitution (unless involving minors) o Open Lewdness o Corruption of Minors (M1) o Endangering Welfare of Children o Stat sex 4-7 year age difference.

15 SORNA (H) Periods of Registration Tier I (15 year registration period) verify annually. Tier II (25 year registration period) verify semiannually. Tier III (lifetime registration) verify quarterly. Sexually Violent Predators ( SVP ) (lifetime registration) verify quarterly and attend monthly counseling. Sexually Violent Delinquent Children ( SVDC ) (lifetime registration) verify quarterly. Transient offenders must appear monthly. Updates & Changes to Information in person within 72 hours.

16 Telephonic Verification SORNA requires annual in person verification always. Telephonic verification may be used to facilitate the other verifications. Must be compliant for the three prior years, and have no convictions for any new crimes above an M3. The system is NOT YET in effect! PSP will notify of effective date of the system.

17 SORNA (H) REQUIRED INFO Name Internet monikers Telephone numbers SSN Address Temporary habitat Temporary lodging Passport Date of birth Employment If no fixed workplace, general travel routes and general areas Professional license School Vehicle any owned and operated, colors, etc. Where it is parked addresses Transient Info!

18 SORNA (H) QUIRKS Residence: Includes places where the person lives or intends to live for 30 or more consecutive days during the calendar year. Temporary lodging: Place the registrant is staying when away from a residence for 7 or more days. Must be away from the home for more than 7 days before it counts. Long term single place stays. Not occasional weekends at girlfriend s house. Transient: residency status must first terminate. Transient: Only need to update once a month. Changes in transient info do not need to occur more often.

19 Included Offenses SORNA II Subchapter I. 42 Pa.C.S Included Offenses o The serious crimes. o Indecent Assault M1 or higher only. o Luring (but only as of 2005 or after) o Institutional sexual assault (but only 2005 or after) o Attempts, conspiracy, and solicitation of the above crimes. Not Included o Same exclusions AND o Stat sex all gradations. o Indecent Assault M2 gradations o Corruption of Minors all gradations o Invasion of privacy o Unlawful restrain of minor o False imprisonment of minor o Interference with custody

20 SORNA II Periods of Registration Ten Year Offenses: Most of the less serious crimes, verify 1 x year Lifetime Offenses: Most serious crimes & repeat offenders, verify 1 x year Sexually Violent Predators ( SVP ) (lifetime must appear quarterly) Sexually Violent Delinquent Children ( SVDC ) (lifetime registration) must appear quarterly. Persons without a residence: offenders must appear every 30 days. Updates & Changes to Information offenders must appear in person* to report any changes, additions or deletions to registered info within 72 hours.

21 Residence: Same definition SORNA II (Subchapter I) Temporary lodging is NOT registerable. Registration includes ONLY: Residence, Employment, and Schooling Not included: vehicles, routes to or from work, licenses, s, phone numbers; etc. The SORT tool has NOT been updated to reflect these fewer obligations. Cannot require them.

22 Things that apply to BOTH Subchapter H & I!

23 SORNA I & II DO NOT APPLY TO KIDS In re J.B., 107 A.3d 1 (Pa. 2014). Juvenile offender * 42 Pa.C.S , category is unconstitutional. Pennsylvania no longer has juvenile offender registrants Sexually Violent Delinquent Children (those registered under Act 21) remains. PSP is not registering or trying to register those who were adjudicated delinquent (except SVDCs but only 54 of them).

24 SORNA & SORNA II Limited Right to Removal Newly added possibility of removal. 42 Pa.C.S (a.2); 42 Pa.C.S (a) (Applies to Tier III, Lifetime Offenders, and SVPs). 3 Criteria years have elapsed on the registry 2. No convictions for crimes of above an M3. 3. Assessed by SOAB and determined in the absolute discretion of the court by clear and convincing evidence that he is not likely to pose a threat to the safety of any other person.

25 Out of State Registration If convicted of a similar offense in another state and moves here, even if didn t have to register in that state. For example, corruption of morals of a minor as an F-3 (course of sexual contact). If defendant had to register in his home state, he has to register in PA

26 GPS Monitoring Both SORNA & SORNA II allow GPS monitoring as a as a condition of probation. NOT Carte Blanche allowance to impose on any sexual offender. Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012). Either directly related to court ordered condition or request the court to impose it. Order of sex offender probation is likely not sufficient. Must be germane to enforce the specific condition.

27 Must register for life. Active notification. Must get monthly counseling.

28 SVPs and Poverty Monthly counseling: SVPs are required to attend. Insurance pays for most, but not all of the treatment. Can ask a court to order Parole office to pay. 42 Pa.C.S (a); (a): Applies to either county or state when the court finds indigent. Applies even after person completes probation or parole sentence.

29 Does Subchapter H or I apply. But it s

30 Problem 1: No or Inaccurate Tier PSP or Court will classify person: Tier I, Tier II, or Tier III (not always accurate right now). No Tier listed? SORNA II have no tier listed or will still be tier I sometimes. Lots of mistakes right now. Not until December might we have a clearer picture.

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32 Number of Registrants SORNA Effective 12/20/12 Sampolski: CMOM M1 removed PSP Data 3/1/12 - Present A.S. & Lutz- Morrison 8/15/16 SVPs Lifetime Registrants Tier I Tier II Total Count of Registrants

33 Problem 1: No or Inaccurate Tier Sometimes EASY to figure out. Did arrest occur for registerable offense BEFORE or AFTER 12/20/12. If before: the Subchapter I (SORNA II) applies If after: need to do more (your options to follow )

34 1. The grading of the original crime. (ex. M2 vs. M1 indecent assault). 2. Improper determination that SORNA II offender did not complete a prior 10 year period of registration 3. Improper assessment of out of jurisdiction offense. 4. Offender improperly registered after parole violation hit.

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36 Call Legal Analysts at PSP: Call the District Attorney. Look at the complaint/arrest report Call the Defense Attorney. me happy to advise if I have the time.

37 FAILURE TO COMPLY

38 . Failure to Comply (know your crimes) Failure to register, 18 PA.C.S (a)(1) ; (a)(2). Punishes the failure to to initially register, or update registration information with any changes, additions, or deletions. Failure to verify information, 18 PA.C.S (a)(2); (a)(2) Punishes the failure to appear for verification dates. Failure to provide accurate information, 18 PA.C.S (a)(3); (a)(3). Punishes lying to the Pa. State Police.

39 Failure to Comply Under Act 10 Which registration scheme applies?. 1. Matters because different obligations! Verification dates, less updating info, phone number changes do or don t matter. 2. Most cases will be clear. 3. If conviction occurred before 12/20/12 Only can apply.

40 Defendant convicted in 2014 for rape that occurred in Started registered for the first time in March. Does he need to register in June on his quarterly date? Defendant convicted of attempted rape in You find him with a cell phone he hasn t registered. What s the violation? Defendant says he s staying at homeless shelter. He s been there for a month. A month later you hear he s been gone for 3 weeks. Is there a SORNA violation? What do you need to know?

41 Homelessness and Failures SORNA: every month to update and get photographed. No need to appear more often. SORNA II: Every 30 days. This gets complicated. Meant to be every month, but a drafting error was made here. Leaving a shelter: should not be deemed changing residence unless (1) you believe the registrant does not have an intent to return within the calendar year, or (2) he has taken up a new residence.

42 What is the PSP Doing?

43 THINGS WE KNOW PSP is still reviewing thousands of individual cases. PSP still needs to send letters making determinations Updates to Website and SORT coming around new year. PSP makes mistakes

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45 STATE SEX OFFENDER PROBATION AND PAROLE CONDITIONS State Board standard conditions will be amended 4 & 14 1) anti-pornography condition 2) search condition (eliminated) must comply with 61 Pa.C.S Proposed Amended #4: You must not possess, view, listen to or read any obscene materials or materials which depict or describe sexual conduct including, but not limited to, any articles, books, magazines, photographs, s, websites, digital images, animates photographs or images, tapes, videos, or any content that may be or is broadcast by radio, television or computer (including by satellite).

46 LOTS OF NEW LITIGATION PA SUPREME COURT HAS CASE NOW ON WHETHER SUBCHAPTER H IS CONSTITUTIONAL. SUBCHAPTER I IS BEING LITIGATED

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