Konyk, S., Aplt. v. PA State Police

Opinion

[J-30-2017] [MO: Saylor, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

STEVEN KONYK, : No. 11 MAP 2016 : Appellant : Appeal from the Order of the : Commonwealth Court at No. 538 MD : 2014 dated January 12, 2016 v. : : SUBMITTED: March 27, 2017 : THE PENNSYLVANIA STATE POLICE : OF THE COMMONWEALTH OF : PENNSYLVANIA, : : Appellee :

CONCURRING AND DISSENTING OPINION

JUSTICE DONOHUE DECIDED: April 26, 2018

I join Justice Wecht’s well-reasoned Concurring and Dissenting Opinion in full. I

write separately to indicate that if the decision of the Commonwealth Court were to be

reversed, as Justice Wecht argues persuasively that it should be, upon remand Appellant

would be positioned to seek leave to amend his presently pending petition for review in

the Commonwealth Court to assert a claim for relief pursuant to this Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In Muniz, this Court held that

SORNA’s registration provisions constitute punishment and may not be applied

retroactively. Id. at 1193 (finding that retroactive application of SORNA violates the ex

post facto clause of the Pennsylvania Constitution). In light of Muniz, a sex offender who

negotiated a plea agreement, in federal or state court, or who would otherwise be subject

to Megan’s Law III, now has a straightforward constitutional claim that he or she may not be subjected to SORNA’s more onerous registration requirements. See Muniz, 164 A.3d

at 1193.

In accordance with Rule 1033 of the Pennsylvania Rules of Civil Procedure, leave

to amend should be liberally granted and should not be withheld where there is a

reasonable possibility that amendment can be accomplished successfully, absent some

prejudice to an adverse party. Morrison Informatics, Inc. v. Members 1st Fed. Credit

Union, 139 A.3d 1241, 1245 (Pa. 2016); Bata v. Central-Penn Nat. Bank of Phila. 224

A.2d 174, 182 (Pa. 1966). In my view, given the clarity of our decision in Muniz,

amendment could be successfully accomplished and would afford Appellant the relief he

now seeks. I note that even the Majority recognizes the possibility for federal plea bargain

defendants to seek relief pursuant to Muniz. See Majority Op. at 12 n.9. There would

also be little or no prejudice to the PSP, as although Appellant has not yet asserted a

claim based upon Muniz in the present action, the arguments in his original brief filed with

this Court make plain that he is seeking the same kind of relief (based on a remarkably

similar theory) to which he is now entitled in light of Muniz, namely, an order barring the

PSP from retroactively applying SORNA. See Konyk’s Brief at 27 (urging that “application

of SORNA to [him] materially undermines his bargain and subjects him to severe

conditions that he did not bargain for”).

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