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National

PA: State Supreme Court remanding cases after Muniz

[floridaactioncommittee.org]

Sex offender cases in Pennsylvania are being remanded in the wake of Commonwealth v. Muniz, the PA case which found their registry unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.

In Commonwealth v. Polzer, the appellant introduced the issue of whether, “SORNA’S irrebuttable presumption that all sexual offenders pose a high risk of reoffending violates procedural and substantive due process under the Pennsylvania Constitution.” and the due process clause of the Fifth and the Fourteenth Amendments to the United States Constitution.

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  1. AlexO

    Good. Let’s hope it keeps snowballing this way. I’d love for them to start doing stuff like this automatically the way many cities in California started doing this with marijuana charges. (It’s really how our new tiered registry should be handled instead of the petitioning thing it has now)

  2. Robin

    First the author on this is incorrect. It was not remanded, the lower court was overturned and the PA supreme court HELD.
    That means their decision was final and would not go back to lower court.

    • Tony two Times

      Robin no offense but when the supreme court makes a ruling in favor of the person they remit it back to the lower court for action The lower court makes the changes based off what the supreme court rules, that is what happened here.

      • Robin

        Tony… i corrected my statement with my next one. That did in fact happen with this case.

        But with Muniz it did not go back. Read the end of the opinion….

        We reverse the Superior Court’s decision affirming appellant’s judgment of
        sentence, and vacate that portion of the sentence requiring appellant to comply with
        SORNA.
        Jurisdiction relinquished.
        does that not take away the lower courts jurisdicition on the matter. They also never state remanded anywhere, unless I missed it.

        • Jimmy two Times

          Robin the lower court gains back jurisdiction when they relinquish it They reversed the courts decision so the lower court is who forces PSP to take him off in the end the trial court he was in.

      • Robin

        Okay looked into it more..
        The reversal goes back to lower court to be looked at again, and make judgement based on what the higher court ruled, and the vacate basically does away with whatever, and the lower court has to correct that portion.

        I stand corrected! Thanks Tony for pointing it out to me and causing me to look into it more.

  3. Robin

    Correction….misread..didn’t see it is other cases.

  4. TS

    For those in PA who watch the Supreme Court there and their action related to RC cases, this could be interesting possibly to watch and wonder on its make up if successful (which I hope not):

    Pennsylvania GOP Moves To Impeach Supreme Court Democrats For Gerrymandering Ruling

    https://www.huffingtonpost.com/entry/pennsylvania-republicans-move-to-impeach-supreme-court-democrats-for-gerrymandering-ruling_us_5ab16875e4b0decad044dee0

    • Tony two Times

      Good luck with that just a smoke and mirror show Legislators are crooks no respect for the courts.

    • Wants off

      The US Supreme Court unanimously rejected the PA Republicans’ motion to have the original map re-instated. This impeachment crap just further exposes Republicans as the bitter, cheating, racist morons they are.

    • Robin

      Wow attacking most of the judges on the Muniz v PA case.

      This just shows even more so how PA legislature is vindictive, and that laws they pass could be construed as such.

      PA just lost a lot of money, having to remove thousands from the registry, that the US govt pays them for the registry. They won’t be subject to the 10% clause, since it give a state good cause if it were to violate that states constitution for not being in full compliance, but don’t they get their funding based on per person on the registry?

    • Michael

      They know that would only start a tit for tat.

  5. Brian

    Don’t they all have to fallow the law though no matter what as far as the constitution goes ?

    • Robin

      @ Brian…
      Yes they do, but they don’t too.
      With regard to the ruling in Muniz they have to follow or could be charged with contempt. And that is provable as records are kept on the yay’s and nay’s, and who voted what.
      As for any law they write: As long as they are acting in “good faith” that they are not violating law or constitution they are covered. If one can prove they acted with intent, malice, or vindictively then they are not covered under good faith and can face action civil and or possibly criminal.
      Basically they can be charged with contempt for writing into Act 10 the web site, when the opinion clearly stated that it was like shaming and was punitive and unconstitutional.
      I would have to go back and read again to see if having punitive action for non compliance was in the ruling, but I think it was. They wrote that into act 10 too, as being Felony 3
      So technically the Governor can be held in contempt for signing it, and the legislators that voted yay could as well (Like we will ever see that happen). As the court did NOT remand but held the decision. Which meant, if an appeal was denied, which it was, then it was final. So the power lies in that court to press the issue.
      And now with them attempting to impeach the justices, for other reasons, that were members of the court in the Muniz case shows they are acting vindictively

      • Michael

        The PASC can rule and the PA legislature and PSP can ignore the ruling. Who’s going to enforce any contempt order?

  6. Robin

    I just found something looking in Civil Law that could help Lawyers in cases against ML.

    42.5108.b b) Statutory restriction.–Except in an action for fines and penalties, or as punishment for contempt, or to prevent departure from the Commonwealth, a defendant may not be arrested in any civil matter.

    So they claim ML is civil and had arrested many on failure to register etc. so it is truly punitive and thus violates the constitution….as if we all didn’t know since it was in criminal code it was anyway. They have been operating under the guise of civil all along only to get the $$$$

    I’m looking for statute of limitations on filing suit and it looks good 🙂 Even for you Brian if you choose to go that route. It sates “cause of action accrued” that means the statute of limitations starts as soon as you discover you were in fact injured…note injury does not just mean physically.

    One area that covers government states 6 months, so we all may only have 6 months to file any kind of suits on the civil end.

    • Brian

      @Robin
      Honestly I was thinking I just want off the registry but if I could get compensated for damages, like the last 15 and a half years well that may very well be worth a suit, is that what you mean by damages being owed compensation? Sorry for my uneducated touch here on law, I only found out about Muniz in June 2017 and ever sense I have been learning things I should have paid attention to in school but I was to busy being class clown, now I regret that..

      • Robin

        @ Brian

        It’s not to late to better yourself bother! I have done so just from pure will of wanting to.

        And yes I mean compensation. The june 17 really shouldn’t matter, nor the march 2014 as it would have effected you then to.
        The way I read it is once you learn of the actual damage. Which I guess for you was last Friday when you spoke to your lawyer, it’s honestly when you learned you should not have been put on it to begin with. They can claim good faith as far as putting you on but really since Act 19 they almost can’t being that former judge made a big deal out of IA a 1 being removed from the requirement and psp was ordered to take him off. Then there is also the fact that they are supposed to investigate all the information about your case to determine what crime from the other state equals what crime in PA. They can’t just guess and cassify anything that sounds good. If they send you a letter stating you’re off that’s good, but you could still go after them and say nothing less than a letter stating you were originally put on it in error.

        You should really talk to a lawyer, the one you have now may not be able to handle a suit if he/she is criminal defense, unless they are up on damage suits also.
        Look at the 3 guys in CO that won damages and cost. DAVID MILLARD,EUGENE KNIGHT,ARTURO VEGA, vs MICHAEL RANKIN, in his official capacity as Director of the Colorado Bureau of Investigation
        FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award
        reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42 U.S.C. § 1988(b).

      • Robin

        @ Brian,

        Also with your case, if you do sue, make sure it is trial by jury. You WANT that jury.

        A jury will feel sympathetic with her being 17 and you 19 at the time. They won’t like that you were put on it when you shouldn’t have been.

        All of the restrictions of movement, anxiousness, depression, slander, hard to find jobs, loss of any jobs, etc. needs to be put to the court and the jury. Odds of them finding judgment for you is better than 70% I would say.

        • Brian

          @Robin
          I don’t think I want to put my wife through anymore then we have gone though already, plus a lawsuit of that caliber can take many years, I just want to be off and be able to live free, plus if you think about it the media will put their noses in it and then post all sorts or false information and call people pediphile, I know the outcome would probably be a lot of money. I know it sounds stupid but to me it’s not worth it.

        • Robin

          Brian I fully understand what you mean. I know the feeling.
          Know this, I don’t think you ever have to show up in the court at all, and you can request to file as “doe” to keep your name out of it, being you have already been through enough and to not use “doe” would further your damage.
          Something to think about.
          I know if I do it that is how I will do it as I don’t want any publicity either.

  7. Robin

    Just looked at act 10 to see if it has charges for non compliance and it still does…F3 for non compliance.
    So any that read this and are arrested for this take it all the way as unconstitunal and punitive not civil based on the code i put above.
    It still I think is in direct violation of the Muniz V PA ruling which is also a good defense.

  8. Brian

    @Robin
    I dint know you didn’t have to show up in a court room, doesn’t make sense but is what it is, also I didn’t know I could use DOE instead of my name. Well that’s something to think about for sure then. Thanks Robin

    • Robin

      Brian…you can’t just use doe…I think your attorney would have to request the courts permission and there has to be justifiable reason….which there is…the attorney just has to make sure the request shows the hardship it would cause otherwise.
      Again I’m no lawyer and don’t know all the aspects of doing so, but it is, from what I have read on a couple of the doe cases that have been used.
      And I am not 100% on not having to be in court, but I know my dad was never in court when my cousin handled 2 of his civil suits. And yes, it can drag out and take time, sometimes even a couple to a few years. But with the CO US District Court case and the win, (which has been appealed) it sets precedent for others. I am watching on that case to see if Circuit court will not hear it or not.
      For cases like you and I that should never have been on it to begin with as law was written even before Muniz, our cases are better than the one in CO.

  9. Brian

    Robin
    It’s actually good though if you look at my case, because CO is already in the same fight and winning that I was charged in CO, that just ads more to my fight in Pa because they can’t go back and say well you have to register in Co but Co is now unconstitutional also.

  10. Michael

    “… SORNA’S irrebuttable presumption that all sexual offenders pose a high risk of reoffending violates procedural and substantive due process under the Pennsylvania Constitution, and as such, SORNA’s Internet notification provision and quarterly verification requirements constitute an ex post facto law under the Pennsylvania Constitution …”

    I had been coming off like a broken record after Muniz because I felt the irrebuttable presumption doctrine that was raised in Muniz was going to be important, and less than a year later it was used again in Commonwealth v. Polzer.

    The legislature can not presume that every person convicted of a certain enumerated offense is a high risk. If a certain fact is proved, then the court must draw a certain conclusion from the proved fact and such conclusions are conclusive, unquestionable and incontrovertible. There has been no case in PA, and none that I can think of in federal court that proves this presumption empirically.

    If the state can not presume all offenders are a high risk, and therefore can not impose strict registration requirements like SORNA retroactively, then how can it apply any registration requirement at all without first determining if that person poses a risk?

    I am not legal scholar but, it seems like a no-brainer.

    ….

  11. ashtoreth

    Just came across this site. Of course im not a sex offender but, just out of curiosity and know someone who might not be getting off the registry. I told her that the Pennsylvania sex offender registry is done their reviews and if not they are just probably now sorting people into tier levels. She hoped out of fear that they might be still reviewing to be off the registery. I had told her that even though her 10 years been up since 2015 she might still have to go under Act 10. She was a tier 2 out of state. Her out of state only gave her the 10 years only. She has no prior offences except for 2 misdemeanors of failure to register back in 2008. Spent 0 time in jail for those two. It did not add more time on the registery. So, if Pennsylvania has now the Act 10, why would people like her and many others had not gotten off the registry? When they took a lot of people off the registery. Act 10 had stated pre-sorna if 10 years been up and or time served then Act 10 does not apply? Meaning that due to being off the registery. But, yet no out of state offenders has not come off the registery and the no wording of active is gone. Does not make much since. I had went threw a handful of people on the registery. 1 person i saw registerd a 4 days ago under Act 10 and still had no tier and the word of active is still not there. So that cant be just awaiting for tier cause they would of giving him a tier level already. Nothing makes since much. I went on ro read o. Narsol and everyone seems abit confused and lost and many diffrent stories on this Act 10 deal on how Pennsylvania sex offender registry is going about things and how they are working it out. My guess is that they are going or were going in the order of the SID numbers. Can anyone provide any factual ideas or clise to all these questions?
    Thank you,
    ashtoreth

    • Robin

      You should have posted this on PA names coming off registry.

      Reviews are not completed. Out of state people will take longer than in state offenders.

    • Michael

      What does being out of state have to do with anything? If a similar enumerated offense in PA is 10 years, then it’s 10 years. There is also credit for time on another registry.

      ….

      • Robin

        @ Michael I’m going to respond to you on the proper thread. PA names being removed.

    • Brian

      I would tell them to contact the ML section 800 number to get some sort of answer.

  12. Bob C.

    I was convicted in 1988 during a jury trial, having a VERY INEFFECTIVE ATTORNEY, of an offense that I had no part of, which was to have involved 5 person’s total and was sentenced to 4-30 year’s. I never had the money to fight the conviction due to having a family which included 2 very young children at that time.The other 4 person’s charged were all aquited of all charges prior to the commencement of my trial. None of whom ever mentioned my name during their own separate trial’s.
    I did 4 year’s in prison and walked off the remaining 26 on parole.
    When I was sentenced in 1988 there was no such thing as Megans Law. But when Megans Law was introduced in 1996 in Pennsylvania, I was put on it and was forced to be listed online as a sex offender for 10 year’s and was then removed from the registry.
    In December of 2012 I was put back on to the Megans Law online registry due to the introduction of SORNA in Pa and was kept on it until mid February of 2018. At which time I had been removed from it again due to recent Pa court case decision’s ruling my being on it unconstitutional in both federal and state jurisdiction’s.
    Last Thursday, March 29th I received a letter in the mail from the Pa State Police informing me that I have been identified as a sex offender. And that there have been changes in the Pa Megans Law which may affect me. And that I have to report to a State Police location by May 22, 2018 to have my picture taken and register.
    I have no clue what the hell is going on with this crap and was hoping someone here may be able to shed some light on what may be going on, based on the new court decision’s regarding Pa.’s ex post facto law.
    Thanks in advance for any info!

    • Jimmy two Times

      Bob I think they are using the fact that you were on parole until 2016 to keep you on. The letter you got does not mean they can put you back on. If you cower and go register they will let you. Get a lawyer ASAP before you go in and register again.Call PSP and ask them if you 100% have to go in and if they finished your review if they haven’t ask them if they will have it done before the time is up on your letter they sent saying you might have to register. Unless the letter says you do have to register they are playing with a law suit.

      • Bob C.

        JIMMY TWO TIMES, the way I read the new law is that if the date of the alleged crime was prior to the introduction of SORNA, and SORNA regulation’s being obviously punitive in nature, no matter the politician’s claim that it is not, then based on the federal and Pa. constitution’s pertaining to ex post facto law, nothing of a punitive nature may be added to the sentencing court’s origional sentence as handed down way back then. Particularly when at that time there was no enhancement of the sentence what so ever.
        The registry on it’s face is punitive and detrimental to those on it as well as their family’s. And regardless of when a person max’s out their individual sentence should have no bearing on the politician imposed addition to the court’s sentence and the fact that this addition, imposed after the fact and being undeniably punitive violates our constitutional right’s both on the federal and state level’s.
        Thought’s?

        • Jimmy two Times

          Thats a fact and it only gets better from hear the legislature went back to ML2 scheme in hopes it would pass muster because it did pass muster back then but now is a whole other ball game. PSP is responding to what they have to now But there will be some wins in the near future for people my guess is the SVP thing will be first then the fact that they still are retro putting people on internet that were not on it in the past or when their crime was committed. Then you have the punitive effects that will challenge the Internet thing all together and the travel restrictions. Also them bring to pass failure to comply F1 F2 F3 charges off as non punitive based off a civil law Just because they put it under a different section of the law it is still based off of civil laws that are punitive. If people that run these orgs concentrated their efforts on this it would be a win. Instead they waste time on halloween and stupid crap.

  13. Act 10 - HB 631

    Alright everyone is receiving these letters to comply with ACT 10. Has anyone been down to the PSP to comply with this New Retroactive Unconstitutional Law that is applied to PRE-ACT 10 Offenders?

    What are they asking you to provide because I have court order stating to comply with Megans Law 2 requirements from 2006. Which relieved me from SORNA requirements when my motion to enforce plea agreement from 2006 for an IDSI conviction.

    The question I have is this,

    “If the court order to comply with Megan’s Law 2 Requirements, per plea agreement and sentence in 2006, like Hainsworth and Nace should I only be giving Megans Law 2 requirements only?”

    If forced under Act 10 to provide any thing more that what the court order states, Only Megans Law 2 requirements only, would that be illegal per my court order?

    Also at no time was internet identifiers required before SORNA, are these being required under ACT 10?

    If any has any insight on this matter.

    My court order clearly reads, must comply with Megans Law 2 Requirements and remove him from all SORNA requirements per Muniz.

    This court order was obtained prior to receiving Act 10 letter in the mail.

    In my thinking, the court order should relieve me from Act 10, because it says to only comply with Megans Law 2 requirements. Whether I am lifetime or not, Megans Law 2 doesnt exist, but does not state to register under ACT 10, only Megans Law 2.

    • Robin

      Act 10 – HB 631

      One would think as long as you have a copy of that with you, and a copy of ML2 when you go to register, you can refuse anything beyond the scope of ML2. The court order supersedes anything PSP can say or do.

      Now, could they get pissy and arrest you, maybe but it should be thrown out as soon as you get in front of a judge.
      Could you then sue for false arrest, I would say so but then that is just me.

      You have to decide what is right for you and or how far you want to take it should PSP tell you or do otherwise.

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