Pennsylvania Superior Court Cases - Superior Court Case Law from PA - Pennsylvania Superior Court - unoffical reports - Microsoft Word

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

J. A15008/04
2004 PA Super 295
COMMONWEALTH OF PENNSYLVANIA
:
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
Appellant :

:

v. :

:

CHARLES JOHN BAIRD,
:
:

Appellee
:
No. 908 MDA 2003

Appeal from the Judgment of Sentence May 7, 2003
In the Court of Common Pleas of Berks County
Civil Division at No. 6557/02

BEFORE: BENDER, McCAFFERY and TAMILIA, JJ.

OPINION BY BENDER, J.: Filed: July 27, 2004

¶ 1 The Commonwealth appeals from the May 7, 2003 judgment of
sentence of three years' probation imposed upon Charles John Baird (Baird)
for possession of child pornography. We vacate the judgment of sentence
and remand for resentencing.
¶ 2 On May 7, 2003, the trial court held a hearing whereby Baird pled
guilty to one count of possession of child pornography under the Crimes
Code, 18 Pa.C.S. § 6312(d). At the hearing, the trial court sentenced Baird
to three years' probation immediately after conducting a guilty plea colloquy
and accepting Baird's guilty plea. See N.T. Guilty Plea and Sentencing
Hearing, 5/7/03. However, at the hearing, the Commonwealth argued that
the trial court could not legally sentence Baird without first ruling on the
applicability of Megan's Law, 42 Pa.C.S. §§ 9791 9799.7. See id. at 2-3.
The basis for this argument is that, in cases where Megan's Law is

J. A15008/04
applicable, sentencing must wait until after a determination is made under
Megan's Law, i.e., a determination whereby an offender is found to fit the
definition of a sexual offender or a sexually violent predator ("SVP"), as such
terms are defined in section 9752 of Megan's Law. This is because the trial
court must inform an offender or SVP of his reporting obligations under
Megan's Law at the time of sentencing and, since such obligations may differ
depending on the offender's status under Megan's Law, the court must await
the outcome of a Megan's Law assessment prior to sentencing. Despite this
argument, the trial court proceeded to sentence Baird to probation without
first waiting for the assessment of Baird to be completed by the State Sexual
Offenders Assessment Board (SOAB) pursuant to Megan's Law. See 42
Pa.C.S. § 9795.4 ("Assessments").
¶ 3 The Commonwealth filed this timely appeal from the trial court's
judgment of sentence imposed on Baird on May 7, 2003. The
Commonwealth raises one issue: "DID THE TRIAL COURT ERR BY
SENTENCING [BAIRD] PRIOR TO HIS MEGAN'S LAW ASSESSMENT?"

Commonwealth's brief at 4 (footnote omitted).1
¶ 4 The question the Commonwealth presents concerns a matter of law in
that it requires us to examine and interpret the Megan's Law statute.
Accordingly, we note that "application of a statute is a question of law, and
our standard of review is plenary. Furthermore, as this matter involves only

1 Baird did not file an appellee's brief.

- 2 -

J. A15008/04
a question of law, our standard of review is limited to a determination of
whether the trial court committed an error of law." Commonwealth v.
Mackert, 781 A.2d 178, 185 (Pa. Super. 2001) (citations omitted). Since
we will interpret certain provisions of Megan's Law, we are mindful of our
rules of statutory construction. Particularly relevant herein are the following
rules: (1) "[t]he object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General Assembly[;]" and (2)
we must, if possible, construe every statute "to give effect to all its
provisions." 1 Pa.C.S. § 1921(a).
¶ 5 A conviction of possession of child pornography under 18 Pa.C.S.
§ 6312(d) constitutes a predicate offense under Megan's Law. Accordingly,
an individual convicted of this offense, without more, is subject to the ten-
year registration requirements of Megan's Law, which requires him to
periodically keep the Pennsylvania State Police apprised of, inter alia, his
residence and place of employment. See 42 Pa.C.S. § 9795.1(a) [indicating
that an individual convicted under 18 Pa.C.S. § 6312 (relating to sexual
abuse of children, which includes possession of child pornography) "shall be
required to register with the Pennsylvania State Police for a period of ten
years"]. Megan's Law serves to protect the public by providing them with
adequate notice and information about a sexual offender planning to live,
work or reside in any given community, thereby providing the community
with an opportunity to develop a constructive plan to prepare themselves

- 3 -

J. A15008/04
and their children for the offender's release. 42 Pa.C.S. § 9791(a)(1)
("Legislative findings").
¶ 6 The term "offender" as used in Megan's Law, refers to, inter alia,
anyone required to register for ten years pursuant to section 9795.1
("Registration"). See also id. at § 9792 ("Definitions"). On the other hand,
the label of "SVP" refers to a person convicted of a sexually violent offense
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." Id. Offenders who are determined to be SVPs must comply with
the applicable provisions of Megan's Law for the rest of their lives. Id. at
§ 9795.1(b).2 Sexual offenders and SVPs also differ, for example, in that (1)
SVPs are subject to the quarterly verification requirement (i.e., verification
of residence with the Pennsylvania State Police), whereas offenders not
classified as SVPs are subject to annual verification, id. at 9796(a), (b);
(2)
victim notification differs depending upon whether the convicted

2 Other types of offenders besides SVPs are also subject to lifetime
registration. For example, individuals with two or more convictions of
certain sexual offenses and individuals convicted of more "serious" sex
crimes such a rape or aggravated indecent assault are subject to lifetime
registration. See 42 Pa.C.S. § 9795.1(b)(1), (2). These individuals may or
may not be SVPs. In any event, for the general purposes of this opinion, our
use of the term "offender" will refer to an offender subject to the ten-year
registration period under section 9795.1(a).

- 4 -

J. A15008/04
individual is classified as an offender or SVP, id. at § 9797; and (3) SVPs are
subject to certain counseling requirements, id. at § 9799.4.
¶ 7 Both sexual offenders and SVPs must comply with their Megan's Law
registration and other applicable requirements "upon release from
incarceration, upon parole ... or upon the commencement of a sentence
of ... probation" as the case may be. Id. at § 9795.2 ("Registration
procedures and applicability") (emphasis added). Thus, Baird, who was
sentenced to probation, must, upon the commencement of his sentence,
comply with whatever Megan's Law obligations are applicable to him, which
itself depends upon whether he is determined to be an offender or SVP.
Accordingly, it makes sense that the sentencing court, at the time of
sentencing, must inform an offender or SVP, as the case may be, of his or
her registration obligations, as these obligations will differ depending on
whether the convicted individual is classified as an offender or as an SVP,
see supra.
¶ 8 Indeed, the plain language of section 9795.3 outlines the sentencing
court's duty, at the time of sentencing, to inform the offender or SVP about
what is required of him to comply with Megan's Law:
§ 9795.3. Sentencing court information

The sentencing court shall inform offenders and
sexually violent predators at the time of sentencing of the
provisions of this subchapter. The court shall:

(1) Specifically inform the offender or sexually violent predator
of the duty to register and provide the information required for

- 5 -

J. A15008/04
each registration, including verification as required in section
9796(a) (relating to verification of residence).

(2) Specifically inform the offender or sexually violent predator
of the duty to inform the Pennsylvania State Police within ten
days if the offender or sexually violent predator changes
residence or establishes an additional residence or residences,
changes employer or employment location for a period of time
that will exceed 14 days or for an aggregate period of time that
will exceed 30 days during any calendar year or terminates
employment or changes institution or location at which the
person is enrolled as a student or terminates enrollment.

(2.1) Specifically inform the offender or sexually violent predator
of the duty to inform the Pennsylvania State Police within ten
days of becoming employed or enrolled as a student if the
person has not previously provided that information to the
Pennsylvania State Police.

(3) Specifically inform the offender or sexually violent predator
of the duty to register with a new law enforcement agency if the
offender or sexually violent predator moves to another state no
later than ten days after establishing residence in another state.

(4) Order the fingerprints and photograph of the offender or
sexually violent predator to be provided to the Pennsylvania
State Police upon sentencing.

(5) Specifically inform the offender or sexually violent predator
of the duty to register with the appropriate authorities in any
state in which the offender or sexually violent predator is
employed, carries on a vocation or is a student if the state
requires such registration.

(6) Require the offender or sexually violent predator to read and
sign a form stating that the duty to register under this
subchapter has been explained. Where the offender or sexually
violent predator is incapable of reading, the court shall certify
the duty to register was explained to the offender or sexually
violent predator and the offender or sexually violent predator
indicated an understanding of the duty.

- 6 -

J. A15008/04
Id. at § 9795.3 (emphasis added). Obviously, at the time of sentencing,
the sentencing court must be cognizant of whether the convicted individual
is classified as a sexual offender or an SVP so that it can properly inform the
offender or SVP, as the case may be, of his obligations under Megan's Law,
which will differ depending upon whether the individual is determined to be
an offender or SVP.
¶ 9 Of course, not all persons convicted of sexual offenses are considered
SVPs. See 42 Pa.C.S. § 9792. However, in all sexual offense cases subject
to Megan's Law, the trial court must order, within 10 days of the date of
conviction, the SOAB to conduct an SVP assessment. Id. at § 9795.4(a)
("Order for assessment"). We explained what should occur procedurally
after an individual is convicted of a predicate sexual offense that triggers the
applicability of Megan's Law:
After conviction of an offense as enumerated in § 9795.1 but
prior to sentencing, the court shall order an individual to be
assessed by the [SOAB]. See 42 Pa.C.S.A. § 9795.4(a). The
[SOAB] shall designate a member to conduct the assessment of
the individual to determine if the individual should be classified
as a sexually violent predator. See 42 Pa.C.S.A. § 9795.4(b).
The [SOAB] shall submit a written report to the District
Attorney's office. See 42 Pa.C.S.A. § 9795.4(d). The court then
conducts a hearing to determine whether the individual is a
sexually violent predator. See 42 Pa.C.S.A. § 9795.4(e)(1).
The Commonwealth and the individual shall be given the
opportunity to be heard, the right to call witnesses, the right to
call expert witnesses, and the right to cross-examine witnesses.
See 42 Pa.C.S.A. § 9795.4(e)(2). The individual shall have the
right to counsel. See 42 Pa.C.S.A. § 9795.4(e)(2). The court
then makes the final determination, i.e., whether, after hearing
all of the evidence, the Commonwealth has proven by clear and

- 7 -

J. A15008/04
convincing evidence that the individual is a sexually violent
predator. See 42 Pa.C.S.A. § 9795.4(e)(3).

Commonwealth v. Howe, 842 A.2d 436, 447 (Pa.Super. 2004). The SOAB
has 90 days from the date of conviction to submit its report to the district
attorney, 42 Pa.C.S. § 9795.4(d), and then, presumably with reliance on the
SOAB's report, the district attorney decides whether to file a praecipe for a
hearing whereby the court will determine if an offender meets the SVP
criteria, id. at § 9795.4(e)(1). In other words, an SVP hearing does not
automatically occur after receipt of the SOAB report, as the passage above
from Howe implies, but, rather, the district attorney decides whether to
pursue the SVP classification by filing, or not filing, a praecipe for an SVP
hearing. Thus, if the district attorney does not file a praecipe, then there
would be no SVP determination hearing. Also, it makes sense that the
district attorney would wait for the SOAB report before deciding whether to
pursue an SVP determination, since, if such a hearing should eventually
occur, the Commonwealth has the burden of establishing, by clear and
convincing evidence, that the offender meets the SVP criteria. 42 Pa.C.S.
§ 9795.4(e)(3).
¶ 10 Notably, in the instant case, the sentencing court did not inform Baird
of his duties under Megan's Law at the time of sentencing, in contravention
of section 9795.3, because the SOAB assessment process had not yet even
been initiated at the time (i.e., court had ten days after conviction to order
the assessment and conviction occurred when court accepted Baird's guilty

- 8 -

J. A15008/04
plea). Yet, the Megan's Law requirements applicable to Baird, whatever they
may be, are especially important because he is the one who must comply
with these requirements upon the commencement of his sentence of
probation. See id. at § 9795.2(a)(1).
¶ 11 Given the above provisions of Megan's Law, especially when construed
together, we conclude that the SOAB assessment must be ordered and
completed, and the SOAB report submitted to the district attorney, prior to
sentencing. In sum, our reasons for this conclusion are as follows:
(1) registration, verification, and counseling requirements differ under
Megan's Law depending upon whether a convicted individual is deemed an
offender or an SVP; and (2) the sentencing court must inform an offender or
SVP, as the case may be, of his reporting obligations under Megan's Law at
the time of sentencing and, therefore, must necessarily know his
classification by the time of sentencing. Accordingly, the procedure of
reaching a determination of whether one is an offender or an SVP, as
outlined in Megan's Law, must necessarily precede sentencing. See id. at
§ 9795.4 (describing, inter alia, requirement that court order assessment
within ten days of conviction and SOAB complete assessment within 90 days
of conviction). Only when the offender's status under Megan's Law is
determined, can the court proceed with sentencing, at which time it informs
the offender of the applicable reporting obligations.

- 9 -

J. A15008/04
¶ 12 Accordingly, we are compelled to vacate the judgment of sentence and
remand this case for resentencing at a time when the SOAB assessment and
report are completed.
¶ 13 Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.

- 10 -