Commonwealth v. Bannigan

60 Pa. D. & C.4th 55, 2001 Pa. Dist. & Cnty. Dec. LEXIS 320
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedSeptember 18, 2001
Docketno. 5733/2000
StatusPublished
Cited by1 cases

This text of 60 Pa. D. & C.4th 55 (Commonwealth v. Bannigan) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bannigan, 60 Pa. D. & C.4th 55, 2001 Pa. Dist. & Cnty. Dec. LEXIS 320 (Pa. Super. Ct. 2001).

Opinion

EN BANC, BIEHN, J„ JJ. RUFE, J. AND BIESTER JR., S.J.,

Defendant James Bannigan has challenged the constitutionality of Pennsylvania’s Megan’s Law. This is an issue of first impression in Bucks County.

PROCEDURAL HISTORY

On January 11, 2001, defendant James Bannigan entered a plea of guilty to the charge of aggravated indecent assault, 18 Pa.C.S. §3125, and other related offenses in connection with a sexual assault on his mentally handicapped niece. Aggravated indecent assault is an enumerated offense under Pennsylvania’s Megan’s Law. 42 Pa.C.S. §9791 et seq. Following defendant’s conviction, [57]*57the State Sexual Offenders Assessment Board was ordered to determine whether defendant should be classified as a sexually violent predator.

Upon completion of the assessment, the Commonwealth filed a praecipe for a sexually violent predator hearing pursuant to 42 Pa.C.S. §9795.4. By order dated May 2, 2001 a sexually violent predator hearing was scheduled for May 4, 2001. Prior to the hearing, defendant filed a motion for extraordinary relief to challenge the constitutionality of the sexually violent predator provisions of Pennsylvania’s Megan’s Law, to suppress evidence, to bar ex post facto prosecution and to bar a second prosecution for the same offense. The American Civil Liberties Union together with the Pennsylvania Association of Criminal Defense Lawyers, Defender Association of Philadelphia and the Public Defender Association of Pennsylvania filed an amicus curiae memorandum of law in support of defendant’s constitutional challenges. The Commonwealth submitted a responsive memorandum.

On July 12, 2001 the Honorable R. Barry Me Andrews, President Judge, appointed the undersigned three-judge panel to hear argument on defendant’s motions. On July 25, 2001, argument was conducted in open court. The matter is now ripe for disposition.

A. Pennsylvania’s Megan’s Law

1. Background

The original version of Pennsylvania’s Megan’s Law (Megan’s Law I) was signed into law by the legislature [58]*58in 1995. The statute had two main components: (1) registration provisions applicable to all offenders convicted of any of the enumerated predicate offenses and (2) sexually violent predator/notification provisions. In Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999), the Pennsylvania Supreme Court struck down the notification/sexually violent predator portions of the original version of the Act as “violative of the procedural due process guarantees of the Fourteenth Amendment.” Specifically, the court found those portions of the Act, which placed a burden on a defendant to rebut the presumption that the defendant was a sexually violent predator, were contrary to fundamental constitutional principles. After careful analysis, the court concluded that the Commonwealth must bear the burden of demonstrating that an offender is a sexually violent predator. Id.

On May 10, 2000, the Pennsylvania State Legislature enacted an amended version of Megan’s Law (Megan’s Law II), which became effective on July 9, 2000. Megan’s Law II complies with the requirements of Williams, insofar as the burden of persuasion for determining whether an offender is a sexually violent predator now rests with the Commonwealth. Megan’s Law II also retained the registration provisions applicable to all offenders and the sexually violent predator/ notification provisions of Megan’s Law I. The legislature, however, made some changes to the registration provisions as well as to other portions of the Act.

2. Persons Covered by the Act

All convicted sex “offenders” as defined under Megan’s Law II are subject to its requirements. Offender [59]*59is defined in the Act as an individual required to register under section 9795.1(a), (b)(1), or (2). Sexually violent predator is defined as a person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. The term includes an individual determined to be a sexually violent predator where the determination occurred in other state, territory, federal court, the District of Columbia or by court martial.

3. Registration

Megan’s Law II requires all offenders to register their residence with the Pennsylvania State Police upon discharge, release or parole. The duration and frequency of the registration obligation depends upon whether the sex offender is classified as an offender pursuant to section 9795.1(a) or section 9795.1(b). An offender who has been convicted of kidnapping, indecent assault, incest, promoting prostitution of a minor, sexual abuse of children, unlawful contact with children, sexual exploitation of children, and crimes relating to obscene and other sexual materials and performances of minors falls under the provisions of 9795.1(a) and must register with the Pennsylvania State Police for a period of 10 years. An offender who has been convicted of rape, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, or incest relating to a vie[60]*60tim under the age of 12, or is a repeat offender or sexually violent predator falls under the provisions of 9795.1(b) and must register with the Pennsylvania State Police for life.

All offenders are required to notify the Pennsylvania State Police within 10 days of a change of residence. In addition, offenders not classified as sexually violent predators must verify their residence in person at a Pennsylvania State Police station annually. To register, offenders must complete a verification form and be photographed.

All offenders required to register must do so or risk a criminal penalty. An offender who fails to verify his or her residence is guilty of a felony of the third degree. Lifetime registrants who fail to verify their residence may be subject to a mandatory minimum of lifetime probation or a maximum of lifetime incarceration.

4. Sexually Violent Predator Assessment/Notification

After a person is convicted of one of the enumerated offenses, a trial court must defer sentencing and order the Sex Offender’s Assessment Board to assess the defendant. Upon receipt of the court order, the board must conduct an assessment of the offender to determine if the individual should be classified as a sexually violent predator. After completion of the assessment, the board must submit to the district attorney a written report containing its assessment. Following receipt of the assessment, the district attorney may file a praecipe for a hearing to adjudicate whether the offender is a sexually violent predator.

[61]*61At the hearing, the Commonwealth bears the burden of proving that the offender should be classified as a sexually violent predator by clear and convincing evidence. The offender has the right to counsel, the right to call expert witnesses and the right to cross-examine the Commonwealth’s witnesses. At the conclusion of the hearing, the court must make a determination as to the status of the offender.

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Related

Commonwealth v. Leddington
908 A.2d 328 (Superior Court of Pennsylvania, 2006)

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Bluebook (online)
60 Pa. D. & C.4th 55, 2001 Pa. Dist. & Cnty. Dec. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bannigan-pactcomplbucks-2001.