Commonwealth v. Ackley

58 A.3d 1284, 2012 Pa. Super. 275, 2012 WL 6585549, 2012 Pa. Super. LEXIS 4094
CourtSuperior Court of Pennsylvania
DecidedDecember 18, 2012
StatusPublished
Cited by7 cases

This text of 58 A.3d 1284 (Commonwealth v. Ackley) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ackley, 58 A.3d 1284, 2012 Pa. Super. 275, 2012 WL 6585549, 2012 Pa. Super. LEXIS 4094 (Pa. Ct. App. 2012).

Opinion

OPINION BY

LAZARUS, J.

Donald Lee Ackley appeals from the order of the Court of Common Pleas of Cumberland County denying his petition for exemption from the provision of Megan’s Law requiring internet posting of photographs and information regarding lifetime registrants. See 42 Pa.C.S. § 9798.1. For the reasons that follow, we affirm.

On February 7, 1986, Ackley pled guilty to rape, and on March 18, 1986, the court sentenced him to a term of five to fifteen years’ imprisonment. After completing his maximum sentence, Ackley was released from prison on January 1, 2001.1

In 1996, during Ackley’s incarceration, Megan’s Law I went into effect, imposing a ten-year reporting and registration requirement for individuals convicted of rape.2 On June 9, 2000, Megan’s Law II went into effect, requiring lifetime registration for individuals convicted of rape.3

On January 24, 2005, four years after Ackley was released from prison, Megan’s Law III went into effect, adding, inter alia, the following provision:

§ 9798.1 Information made available on the Internet and electronic notification
(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 and electronic notification. 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 and electronic notification would make this information readily accessible to [1286]*1286parents 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. § 9798.1(a).

After his release from prison, Ackley married and became a father. For the past seven years he has been legally blind as the result of a hereditary disease. Because of the internet publication of information regarding his lifetime registrant status, Ackley “struggles with constant evictions and harassment by the community while attempting to raise his son and protect his marriage.” Trial Court Opinion, 10/11/11, at 2.

In September 2008, Ackley pled guilty to violating Section 4915(a) of the Crimes Code, 18 Pa.C.S. § 4915(a) (failure to comply with registration of sexual offenders requirements) and was sentenced to probation. N.T. 8/17/11, at 7. On January 21, 2009, Ackley filed a pro se petition seeking exemption from application of the internet posting requirements of Megan’s Law III. Shortly thereafter, on January 29, 2009, he again pled guilty to violating Section 4915(a) of the Crimes Code, and was sentenced to three years’ probation.4

On June 16, 2009, the trial court denied Ackley’s petition for exemption from the internet posting requirements. However, by order filed October 3, 2009, it appointed counsel to file a second petition. Following the filing of a counseled petition on January 25, 2011, the court scheduled a hearing on August 17, 2011. On October 11, 2011, the court denied relief, although it was “completely satisfied that the people of the Commonwealth are not endangered by ... Ackley.”

On November 4, 2011, Ackley filed a timely notice of appeal, and now raises the following issues for our review.

Is [Ackley] retroactively subject to the internet registration requirements under Megan’s Law that became effective in [January of 2005] when:
1. [H]e completed his sentence in 2001 and was not under probation, parole or any intermediate sentence; [and]
2. [T]he [trial] court concluded [Ack-ley] is not a threat to public safety; and found that posting [his] internet information serves “no greater good”?

Brief of Appellant, at 4.

During Ackley’s incarceration, he became subject to the lifetime registration requirement of Megan’s Law II, which became effective on July 9, 2000. See 42 Pa.C.S. § 9795.1. The legislative findings included in the portion of Megan’s III governing internet and electronic notification clearly state that posting information on the internet regarding lifetime registrants enhances the public safety. 42 Pa. C.S. § 9798.1.

Ackley asserts that Section 9798.1 does not apply to him because he finished serving his entire sentence before it was enacted. Accordingly, the crux of his claim is that that Section 9798.1 is an ex post facto law. In Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999), the Supreme Court reviewed a claim that the registration requirements of Megan’s Law I “constitute^ an ex post facto violation where Appellant pled guilty to the offenses of involuntary deviate sexual intercourse [1287]*1287and aggravated assault and where the commission of these offenses occurred pri- or to the effective date of the registration provisions.” Id. at 616-17. The Court identified the central issue as whether the registration provisions constituted punishment, and set forth the following three-prong test: (1) whether the legislature’s actual purpose was punishment; (2) whether the objective purpose was punishment; and (3) whether the effect of the statute is so harsh as to constitute punishment. Id. at 618.

With respect to the legislature’s purpose, Section 9798.1(a) provides that “public access to information about ... lifetime registrants ... is intended solely as a means of public protection and shall not be construed as punitive.” Accordingly, the first prong of the Gaffney test is met here.

With respect to the objective purpose of Section 9798.1(a), making information “readily accessible to parents and private entities, enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk” is remedial, not punitive.

With respect to the harshness of effect prong, the Supreme Court’s discussion of the notification requirements of Megan’s Law II in Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962, 976 (2003) is instructive:

The critical issue for our present purposes is that, even to the extent that notification under Megan’s Law II may have some punitive effect in terms of shaming the sex offender, such effect has not been demonstrated to be sufficient in itself to render the challenged measures criminal punishment for constitutional purposes. For one thing, whether a sanction constitutes punishment is not determined from the defendant’s perspective, as even remedial sanctions carry the sting of punishment.

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Cite This Page — Counsel Stack

Bluebook (online)
58 A.3d 1284, 2012 Pa. Super. 275, 2012 WL 6585549, 2012 Pa. Super. LEXIS 4094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ackley-pasuperct-2012.