Cumberland County DA Freed to request U.S. Supreme Court review of sex offender decision

7-28-17 Pennsylvania:

Roughly two weeks ago the Pennsylvania Supreme Court deemed the state’s current sex offender registration law to be punishment and ultimately barred by both the state and federal constitutions when applied retroactively.

That decision may now end up under review from the highest court in the country.

Cumberland County District Attorney David Freed said Friday his office would ask the Supreme Court of the United States to review the decision, which was handed down on July 19.

Freed contends the state court was split on whether the state constitution provides protections independent of the federal constitution, leaving the door open for possible review by the U.S. Supreme Court. ..Continued..

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Big win for sex offenders in PA as registration held punishment

See also: Court: Retroactive sex offender registration rules unconstitutional

7-19-17 Pennsylvania:

Yesterday, in Commonwealth v. Muniz, __A.3d__ (Pa., July 19, 2017) (47 MAP 2016), the Pennsylvania Supreme Court held what for a long time has been obvious to many: that sex offender registration is punishment. Five Justices declared that Pennsylvania’s Sex Offender Registration and Notification Act’s (SORNA) “registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. The majority of the Court held in no uncertain terms: ..Continued..

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Lawsuit Says Lewisburg Prison Counsels Prisoners With Crossword Puzzles

6-18-17 Pennsylvania:

At the United States Penitentiary at Lewisburg, Pa., prisoners with serious mental illness are handed crossword and sudoku puzzles instead of counseling, according to a lawsuit that says prisoners at one of the most violent federal prisons are denied routine mental health care.

The lawsuit also alleges that prisoners at Lewisburg are cut off from the medications they were given at other prisons and housed in small cells, where they often spend up to 24 hours a day with other prisoners, who also often have serious mental illnesses.

Filed on June 9, McCreary v. The Federal Bureau of Prisons says the meager mental health treatment violates the U.S. Constitution's protections against cruel and unusual punishment. It also says the inadequate treatment is in violation of the Bureau of Prisons' own rules, which say men with serious mental illness should, in most cases, be removed from the Special Management Unit for violent prisoners at Lewisburg.

A spokesman for the Bureau of Prisons declined to respond to the lawsuit, saying in an email, "the Bureau of Prisons cannot comment on matters that are the subject of legal proceedings."

Last year, an investigation by NPR and the Marshall Project showed high rates of violence at Lewisburg, where inmate-on-inmate assaults are six times more common than at all federal prisons. The investigation linked the heightened violence to the lack of mental health care, the practice of double-cell solitary confinement — putting two men in one small cell — and the frequent use of restraints. ..Continued..

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Convicted child molester can't keep suing his victim, Pa. court says

3-8-17 Pennsylvania:

A convicted child molester can't keep suing his victim on unsupported allegations that he is the imprisoned victim of lies, a state Superior Court panel has ruled.

The state court ruling, issued this week in an opinion by Judge Robert Simpson, comes months after Scott Newton Kerns received an added prison term for his repeated attempts to sue the girl he pleaded guilty to sexually abusing.

Kerns appealed to the state court after a Berks County judge ordered him not to file any more lawsuits against the victim, who police said was a preteen when Kerns was arrested for molesting her in 2000.

Kerns is serving a 7 1/2 to 20-year state prison term after pleading guilty to indecent deviate sexual intercourse with a child under 13. He has been filing his suits from prison. Kerns, who has acted as his own lawyer, filed his first suit in 2007 and his second in 2015.

Kerns, now 43, claimed in the suits that the victim lied about the molestation as part of a conspiracy involving a relative and prosecutors to send him to prison. Those supposed lies violated his civil rights, he insisted. Both complaints were dismissed.

County Judge Madelyn S. Fudeman imposed the ban on further suits by Kerns when she tossed out his latest complaint. She concluded that "allowing Kerns to relitigate his claims would allow him to re-victimize the victim," Simpson noted.

Simpson likewise rejected Kerns' claim that Fudeman was biased when she dismissed his latest suit.

Kerns' propensity to sue resulted in the county DA's office filing new criminal charges against him last year. During a nonjury trial, county Judge Thomas G. Parisi found him guilty of barratry - the filing of vexatious lawsuits - and ordered him to serve another 6 to 12 months in prison consecutive to the sentence he is serving in the molestation case. ..Source.. by Matt Miller

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2016 Crime Review: A look at the effectiveness of sex offender registries

2-14-17 Pennsylvania:

It may run counter to conventional wisdom, but it is exceedingly rare for a person registered as a sex offender to be charged with a new sexual offense in Cumberland County.

Of the 75 charged sex crime cases in Cumberland County in 2016, only two were committed by a person listed on the sex offender registry, according to an analysis of court records conducted by The Sentinel.

Neither of those offenses involved a direct assault on a child.

Of the more than 300 charged sex crime cases in Cumberland County between 2013 and 2016, only six cases involved a person listed on the sex offender registry.

Those stats show that the more than 290 remaining cases — including some of the most heinous sexual assaults against children — were committed by people who were not registered.

“It’s really clear that all of the evidence and all of the data shows that most sex offenses are committed by first-time offenders,” said Emily Horowitz, professor of sociology and criminal justice at Saint Francis College. “For whatever reason, people who are on the registry have a very low recidivism rate, and if one is really concerned about decreasing sex offenses, they kind of have to look elsewhere instead of people who have already been convicted of sex offenses.”

The Sentinel reviewed more than 450 charged sex crime cases in Cumberland, Dauphin, Perry, Franklin and Adams counties in 2016 and found only 15 cases where the defendant was on the registry at the time of the offense.

More than 96 percent of all sex crime cases in those five counties involved defendants who were not on the sex offender registry.

“You can look at that and say ‘people on the registry aren’t committing sex crimes,’” Cumberland County District Attorney David Freed said.

Policies

Freed said the low number of defendants on the sex offender registry may also be an indicator the policies are working.

“Would they be more likely to do so if we didn’t have a registry?” he said. “I can’t answer that. ... Is it effective? That’s the question for all these punishments.” ..Continued.. by Joshua Vaughn The Sentinel

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Superior Court questions whether Common Pleas judge is over-punishing sex offenders

1-16-17 Pennsylvania:

The Pennsylvania Superior Court questioned whether a veteran Allegheny County judge is meting out overly harsh sentences in sex assault cases in a strongly worded opinion ordering that a defendant be resentenced.

In the 36-page opinion last week, the appellate panel suggested that Common Pleas Judge Donna Jo McDaniel, who presides over sex offender court, has shown a pattern in those types of cases.

“We note our awareness of a possible emerging pattern in this particular sentencing court of routinely sentencing sex offenders in the aggravated sentencing range and/or outside the guidelines,” wrote Superior Court President Judge Emeritus John T. Bender.

The opinion then cited in a footnote another of Judge McDaniel’s cases, that against Gabino Bernal, who last month also was awarded a second new sentencing hearing on charges of unlawful contact with a minor, indecent assault of a person less than 13 and corruption of minors. The Superior Court panels in both cases included the same members, Judge Bender, Judge Lillian Harris Ransom and Senior Judge John L. Musmanno.

Judge McDaniel did not respond to a request for comment.

In Bernal’s appellate brief, filed by the Allegheny County Public Defender’s office, his attorneys listed 14 cases currently on appeal — 10 for sexual offenses — in which Judge McDaniel sentenced the defendants to serve the maximum possible penalty and ran multiple sentences consecutively.

“There will always be cases where circumstances call for, if not practically compel, sentences which exceed the standard guideline recommendations,” Judge Bender wrote, noting that trial judges have wide discretion. “However, we expect that sentencing courts understand that a standard range sentence is the norm and, consequently, that sentences which exceed (or fall below) the standard recommendation should be relatively infrequent by comparison.

“The appearance of bias, and doubt regarding a court’s commitment to individualized sentencing, both rationally emerge when such a pattern of routine deviation from sentencing norms is demonstrated by adequate evidence.”

In the most recent case, captioned as the Commonwealth vs. A.S., the defendant, now 21, pleaded guilty on Feb. 17, 2015, in two separate cases to four counts of indecent assault of a child less than 13, two counts of unlawful contact with a minor, two counts of endangering the welfare of children, two counts of corruption of minors, sexual assault, indecent assault and incest.

The charges involved his siblings, which is why he is identified in the opinion only by his initials.

At sentencing on June 24, 2015, Judge McDaniel ordered A.S. to serve 7½ to 15 years in prison.

However, under the sentencing guidelines in the case, the standard range on the first case would have been 3 to 12 months incarceration -— she gave him 30 to 60 months, which was outside of the aggravated sentencing range.

In the second case, the standard recommended range was 36 to 54 months, and Judge McDaniel gave A.S. 60 to 120 months, which was in the aggravated range.

A.S. challenged the sentence, arguing that Judge McDaniel relied on information not present in the case to support the punishment she meted out.

Among the statements made by Judge McDaniel at sentencing that the defense -— and subsequently the Superior Court -— said were untrue were:

• That the defendant had prior sexual contact with the victims, as well as with another minor, several years earlier.

The Superior Court said that the record in the case does not substantiate that claim, and that the pre-sentence investigation showed that the defendant had no prior convictions as a juvenile or adult, and there was no evidence he was ever charged with another offense.

• That the defendant did not seek psychiatric help for his sexual misconduct until after he was arrested.

The appellate panel found that the court record directly contradicted that finding, and that it was A.S. who went to an area hospital with depression and suicidal ideation and disclosed what he had done, prompting the investigation to begin.

Then, when interviewed by the police, A.S. again admitted his crimes, the court found.

“The clear impression given by the sentencing court was that [A.S] only self-servingly sought mental health treatment for his sexual dysfunction after he was arrested. This is a clear misrepresentation of the record,” Judge Bender wrote.

• That the impact of the crimes on the victims must be “absolutely horrendous.”

At sentencing, Judge McDaniel received letters from the two victims in the case, who wrote that they have forgiven their brother and miss him. Both wrote that they did not want him to go to jail and that they would like him to continue treatment.

“I think in spite of the letters that your brother and sister sent me, that the impact on them must be absolutely horrendous,” Judge McDaniel said at sentencing. “I can’t imagine a child of that age, children of that age going through being attacked by someone that they loved and trusted.”

But the Superior Court wrote that outside of those letters, there was nothing in the record concerning the impact of the crime.

Most concerning, the opinion continued, all of those impermissible factors considered by Judge McDaniel, appeared to guide her sentence above the recommended guidelines.

The court found a “disconnect” in evidence presented in the case which “told a wildly different story” than the sentence crafted by Judge McDaniel.

A.S. is a young man with no prior record of any kind, Judge Bender wrote, who has admitted his crimes and is seeking treatment. He has a supportive family that has forgiven him and wants to assist him in continuing his treatment.

Referencing the possible trend presented by the Bernal case, Judge Bender wrote that Judge McDaniel’s sentence of A.S. tends “to match such a pattern, given the extreme dissonance between the circumstances of this case and the sentence(s) imposed. This invites the obvious question: if the circumstances at issue here do not warrant a standard or mitigated range sentence, when, if ever, will such a sentence be warranted?” Judge Bender wrote.

Although the court did not go so far as to remove Judge McDaniel from the case against A.S. -— saying it did not have the authority to do so on its own -— it did suggest that he is able to ask for her to recuse herself from the resentencing. “in which context he may seek to develop a record of a pattern of bias, if one can be demonstrated by competent evidence.”

The Superior Court made a similar recommendation in its Dec. 19 opinion on Bernal, which it remanded for resentencing a second time.

Bernal was first sentenced by Judge McDaniel in 2013 to serve nine to 18 years in prison. However, the Superior Court found that punishment to be in error and ordered a new sentencing hearing.

Judge McDaniel then resentenced Bernal in 2015. Although the defense said at that hearing the guidelines called for three to 12 months incarceration in the standard range for the felony count, and probation for the misdemeanors, Judge McDaniel ordered Bernal to serve a total of six to 17 years in prison. That punishment included the statutory maximum for each count and stacked each one to run consecutively.

Bernal argued in his second appeal that Judge McDaniel abused her discretion and used the sentence as “retribution” for the crime.

“[T]he record reflects that the sentencing judge was determined to impose the maximum sentences permitted by statute, regardless of the guidelines,” the Superior Court wrote. ..Source.. by Paula Reed Ward

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Pa. Supreme Court Further Restricts Sex Offender Registry

See also: A deal is a deal: Pa. Supreme Court blocks retroactive registration boosts for sex offenders

9-16-2016 Pennsylvania:

The remains of Jacob Wetterling, abducted from a rural road in Minnesota 27 years ago, were found this month.

The abduction of the 11-year-old boy led to the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which required states to maintain sex offender registries and establish guidelines for the registries.

In October 1989, Wetterling was bicycling with his brother and a friend to a store near St. Joseph, Minnesota. During the ride, an armed man wearing a nylon mask abducted Wetterling. Investigators later learned that halfway houses in St. Joseph housed sex offenders after their release from prison. The Jacob Wetterling Act required states, including Pennsylvania, to establish stringent registration programs for sex offenders—including lifetime registration for certain offenders. The registration of sex offenders in Pennsylvania, known as Megan's Law, has had a tumultuous existence, including a number of revisions to comply with several successful challenges before the Pennsylvania Supreme Court.

Last month, the state's high court further refined the state's sex offender registry. The Supreme Court made a ruling that will have an impact on determining which sex offenders will be considered lifetime registrants. The court narrowed the ability of the authorities to designate an offender as a lifetime registrant as the result of being convicted of multiple sex offenses in a single incident.

The history of Megan's Law is long and at times confusing. In 1995, Gov. Tom Ridge signed into law what has commonly been referred to as Megan's Law. Following its enactment there were several amendments to the law as a result of court decisions.

About a decade later, Gov. Ed Rendell signed into law Senate Bill No. 92, making significant changes to Megan's Law. Most notably, information on all registered sexual offenders would now be available to the public through the internet. Then in 2012, Gov. Tom Corbett signed into law Senate Bill No. 1183. The law also known as the "Adam Walsh Bill," brought the state into compliance with The Adam Walsh Child Protection and Safety Act. Pennsylvania joined a coordinated and comprehensive national sex offender registry.

Under the new law—known as the Sex Offender Registration and Notification Act (SORNA)—registrants will be placed in one of three tiers based on their underlying offenses.

• Tier I. Registration for 15 years with required annual in-person reporting to the Pennsylvania state police and updated photograph.

• Tier II. Registration for 25 years with semiannual reporting requirements.

• Tier III. Registration for life with in-person reporting every three months.

There is a mandatory minimum sentence of two or three years in prison for the first failure to report and a five-year prison sentence for the first failure to provide accurate information to the state police.

The law also required that two or more convictions of Tier I offense would bump the offender to Tier III or lifetime registration.

The Supreme Court's decision last month will have a significant impact on which tier a sex offender will be assigned. The decision will also impact how prosecutors approach plea negotiating with sex offenders and the way defense attorneys explain to their clients the collateral consequence of a conviction.

In A.S. v. Pennsylvania State Police ___ A.3d ___ (Pa. 2016), the Pennsylvania Supreme Court in an opinion written by Justice Kevin M. Dougherty held that "the statute SORNA 42 Pa.C.S. Section 9799.10-9799.41 requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a 10-year period of registration." ..Continue Sub.. by Matthew T. Mangino, The Legal Intelligencer

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Federal appeals court restores gun rights for minor offenders

9-10-2016 3rd Circuit, Pennsylvania:

[JURIST] The US Court of Appeals for the Third Circuit [official website] on Thursday restored [opinion, PDF] gun ownership rights of two individuals convicted of minor crimes. One of these individuals was 41-year-old Daniel Binderup, who was convicted of having a sexual relationship with a 17-year-old female employee at his bakery. Binderup was aware that the employee was a minor, but the legal age of consent in Pennsylvania at the time was 16.

Binderup only served three years probation in addition to being required to pay a $300 fine, court costs and restitution. The other individual was Julio Suarez, previously convicted of being in possession of a firearm without a permit and of a separate DUI charge. Both individuals successfully challenged the state prohibitions against their ownership of firearms in Pennsylvania in 2009, but the federal prohibition continued to this date.

The appeals court concluded that Suarez and and Binderup have "rebutted the presumption that they lack Second Amendment rights by distinguishing their crimes of conviction from those that historically led to exclusion from Second Amendment protections" and that "the Government has failed to present sufficient evidence to demonstrate under even intermediate scrutiny that it may, consistent with the Second Amendment, apply § 922(g)(1) to bar Binderup and Suarez from possessing a firearm in their homes." Counsel for Binderup and Suarez stated that they expect the Department of Justice to appeal the ruling. ..Source.. by JURIST

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Banning all ex-offenders from eldercare work ruled unconstitutional

1-14-16 Pennsylvania:

A Pennsylvania appellate court has unanimously ruled against a state law that bans people with a wide range of criminal convictions from ever working in a nursing home or other long-term or elder care facilities.

On Dec. 30, a seven-judge panel of a Pennsylvania appellate court on Dec. 30 ruled as unconstitutional a state law imposing a lifetime ban of employment for people with a criminal record for a convictions for violent crimes but also much less serious offences including a single, theft-related felony, two theft-related misdemeanors, a drug felony or forgery/document falsification.

The Pennsylvania Commonwealth Court, which hears cases in which the state is a party and administrative appeals affecting state agencies, ruled section 503(a) of the state’s Older Adult Protective Services Act violated the state constitution’s due process guarantee by being overly broad and making unsupported, inflexible assumptions.

The court’s unanimous opinion found the law so sweeping that it violated the constitution’s requirement of due process, because the lifetime employment ban applied regardless of the type of job involved, how long ago the crime occurred, or any record of the offender’s rehabilitation. The court’s opinion faulted the challenged portion of the state law for making “no provision for consideration” of such factors.

The court’s ruling came in Peake et al. v. Commonwealth, a challenge brought by five ex-offenders ranging in age from 39 to 60, each with a conviction between 15 and 39 years earlier, but no subsequent crimes.

Lead plaintiff Tyrone Peake had been arrested at age 18 while in a stolen car his friend had hotwired. Convicted of a felony, Peake was never imprisoned, but spent three years on probation. He lost a number of jobs when his criminal record came to light, but by the age of 52 had earned as associate degree in behavioral health and compiled a long, successful record of employment.

Joining the challenge to the state law was Resources for Human Development, a non-profit social service group based in Philadelphia, which runs programs to serve persons with mental illness, retardation and chemical dependency issues. The organization had employed Peake as a part-time counselor, and wanted to promote him to a full-time position in a facility covered by the Older Adult Protective Services Act; his conviction as a teenager over three decades earlier prevented the organization from doing so.

Incredibly, the new decision was not the first time Pennsylvania courts had ruled the lifetime employment ban unlawful. In 2001, a few years after the state tightened the lifetime ban but did not apply it to workers who had been in a covered job for a year or more, a group of ex-offenders brought a similar challenge and won a ruling the same court.

Two years later, the state’s Supreme Court also found the provision illegal (in part due to the seeming irrationality of exempting from the new rules workers who had been on the job for a year or more), but limited the scope of its opinion to the individuals who had brought the challenge - apparently anticipating the Pennsylvania General Assembly would revise the law, though the legislature failed to act over the ensuing dozen years.

In contrast, the new decision flatly declares the lifetime ban unconstitutionally overbroad and irrational, and orders the three state agency defendants - the Departments of Aging, Health and Human Services - not to enforce it.

While state officials have not yet indicated whether they will accept or appeal the decision, we at Prison Law Blog are very hopeful these and similar laws (such as the incredibly punitive Ban the Box) will soon be struck down also to help released inmates find meaningful work and reintegrate into their communities. ..Source.. by Christopher Zoukis

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PA Supreme Court decision keeps sex assault victims off stand

1-11-16 Pennsylvania:

HARRISBURG – State Supreme Court let stand a lower court ruling that victims do not have to testify at sexual predator hearings among a flurry of late-year activity involving Mercer County cases.

The court on Dec. 31 said it would not hear an appeal by Joshua D. Miller in a sex assault case. The ruling leaves in place the July 14 Superior Court ruling that Mercer County Common Pleas Court Judge Thomas R. Dobson erred when he ruled an expert’s testimony was “fatally flawed” because it relied on statements the victim made to police, not testimony from the victim.

Miller pleaded guilty in March 2014 to a charge of aggravated indecent assault for conduct that occurred when the victim, a girl, was 12 and 15 and he was 17 and 21. He was sentenced to 4 to 10 years in prison.

The crime triggers an evaluation by the Sexual Offenders Assessment Board, which measures whether a defendant has a mental abnormality that makes it likely he or she will reoffend. A common pleas court judge has the final say on whether the defendant is a sexually violent predator, the designation increasing the defendant’s reporting and counseling requirements under the Sexual Offenders Registration and Notification Act.

The district attorney’s office appealed Dobson’s ruling and Superior Court agreed with prosecutors, saying the assessment board member’s testimony given in Miller’s case is considered expert testimony, which allows an expert opinion to be based on facts and data the expert has observed or been made aware of as long as experts in his or her field rely on that kind of information in forming an opinion.

The facts and data do not have to be admissible as evidence at trial, and the sexually violent predator hearing is not a trial, Superior Court said.

The court added that defense attorneys can cross-examine the expert about his or her opinion and the information it is based on.

Ex-Mercer County District Attorney Robert G. Kochems had hailed the Superior Court ruling because forcing a victim to testify could “severely traumatize” him or her.

The case will return to Dobson for a new sexually violent predator hearing.

Supreme Court also denied hearings on:

• Dec. 20 in the oil and gas drilling case known as Norm’s Ltd. versus Atlas Noble LLC, Atlas Resources LLC, Chevron Appalachia LLC, Atlas American Inc. and Atlas Resources Inc.

Norm’s is a family-owned company that owns 99 acres in Sandy Lake Township.

The parties signed a lease in 2000 and Atlas created a single drilling production unit in 2001 using 10 acres of Norm’s property and 40 acres of a neighboring property. A well was drilled on the neighboring property. Norm’s sued in 2012 alleging breach of contract because Atlas did not seek its permission for the site of the well, nor develop all 99 acres.

Judge Robert G. Yeatts granted the Atlas companies summary judgment.

Superior Court ruled May 18 that Yeatts was correct in concluding Norm’s waited too long to file its breach of contract claim, and that the specific terms of the lease preclude any implication that Atlas had to develop all 99 acres.

• Dec. 30 in the property case of Brian S. and Kathleen S. Colquhoun and Rodney B. and Brenda A. McAdams versus Larry L. and Lilian R. Stefanick. The parties are neighbors on Morefield Road, Hermitage, and the dispute is over ownership of a former Sharpsville Railroad Co. rail line that was abandoned in 1930 and borders their properties.

Former Judge John C. Reed examined documents dating back to 1864 and concluded the Colquhouns and McAdams owned the property in dispute. He ordered the Stefanicks off the land and planned to hold trial as to whether the Stefanicks should pay damages for cutting down trees on the property. Superior Court agreed with Reed on April 17. ..Source.. by JOE PINCHOT Herald Staff Writer

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City will pay $50,000 to settle sex offender lawsuit

9-28-15 Pennsylvania:

City Council agreed last week to pay $50,000 toward the settlement of a lawsuit which was filed against the city for discriminating against a registered sex offender.

During a meeting on Monday night, March 16, council voted unanimously to make the payment as part of a proposed $60,000 settlement with Leo Conway, Archbald.

City solicitor Atty. Frank Ruggiero noted that Allied World Assurance Co. will pay the remainder of the amount.

“Under the proposed agreement, the city would pay $50,000 and our carrier would cover the other $10,000 as well as our litigation costs,” he related. “Now that council has voted, we should have the agreement signed and executed within the next few weeks.”

Three years ago, Conway and his son Patrick were removed from a residence they shared on Brooklyn St. because it was located across the street from White Bridge Playground and near the Carbondale Area elementary and high school campus.

Their eviction was prompted by Mayor Justin Taylor's discovery that Patrick had been convicted in 2009 of unlawful contact or communication with a minor, and his subsequent listing on the Megan’s Law Registry.

Under a city ordinance which was in effect at that time, registered sex offenders were prohibited from living within 2,500 feet of any facility or area where children might gather, such as a school, park or playground.

In August of 2013, Conway and his son attended a meeting of City Council, where Conway accused the mayor of targeting his son and forcing them both out of the city.

Having served as a magistrate judge in Wyoming County for 25 years before moving to Carbondale, Conway said his family name had been “defamed.” “We were very happy here,” he recounted. “But then the mayor told me, ‘Pat has to go!’ That was it.”

Conway acknowledged that his son “did wrong,” but insisted “he wouldn’t hurt anybody.” He threatened legal action against the city, arguing that a 2011 state Supreme Court ruling had rendered the city’s ordinance unconstitutional.

A month later, in an attempt to avoid litigation, council introduced and later adopted a revised ordinance relaxing the housing restrictions on registered sex offenders like Patrick Conway who are classified as “non-violent.”

Nevertheless, Conway did file a lawsuit against the city just about a year ago, which claimed that Mayor Taylor and the city acted in a “capricious, unreasonable and discriminatory manner” in enforcing the previous ordinance.

In the suit, Conway argued that his son was among 15 sex offenders who were registered under Megan’s Law and living in the city at the time of the eviction, but Patrick was the only one who was forced to move in order to comply with that ordinance.

Conway said he also informed Taylor of the state Supreme Court ruling in an effort to resolve the situation, but the mayor refused to recognize it. ..Source.. by Tom Flannery

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Sex offender sues Delco prison, claims illegal detention

8-20-15 Pennsylvania:

MEDIA COURTHOUSE >> A Clifton Heights man is seeking damages of more than $75,000 for what he contends was an illegal detention at George Hill Correctional Facility in Concord following his conviction on child pornography charges.

John Marchetti has alleged claims for false imprisonment, malicious prosecution, violations of due process, cruel and unusual punishment and failure to train against the county, as well as state and local corrections officers.

Prison Solicitor Bob Diorio said he had not been served with notice of the suit as of Wednesday and could not comment. Laura Treaster, an information specialist with the state Board of Probation and Parole, likewise said her office had not been served but that she would be unable to comment on pending litigation.

Marchetti entered a “no contest” plea to one count of sexual abuse of children for possessing child pornography on Feb. 17, 2009 and was sentenced to two to 23 months in prison, according to court records. He was also sentenced to two years of probation after pleading guilty to driving while under the influence and reckless endangerment in an unrelated case. He was resentenced to 18 to 36 months in January 2012 for a probation violation.

The complaint, filed last week in the Eastern District of Pennsylvania by attorney Matthew Weisberg, indicates Marchetti completed his child pornography sentence on or about March 29, 2014.

That sentence required Marchetti to enroll in and complete a sexual offender’s program at the prison and “comply with general rules and regulations governing probation and/or parole,” according to court records. He was also ordered to register as a sex offender under Megan’s Law, but the complaint claims the sentence imposed no sex offender probation or parole requirements.

According to a recording of the 2012 probation violation hearing, however, Judge Patricia Jenkins informed Marchetti that: “During your periods of parole and probation, you must comply with the standard rules of adult probation and parole and, in addition, with the special rules that are enumerated in an order bearing today’s date regarding sexual offenders.”

A copy of that order was not immediately available Wednesday.

The complaint indicates an Altoona parole agent and Chester Adult Probation and Parole Officer Newt Condict refused to allow Marchetti to leave the state correctional institution at Laurel Highlands without accepting additional sexual-abuse related probation requirements.

Two days prior to his release from prison, Marchetti claims the defendants secured a probation violation and detainer against him, then placed him in solitary confinement for one week over his protestations that it would trigger his Post-Traumatic Stress Disorder.

Marchetti was then transferred to the county prison in Concord, where he was held in solitary for “several more weeks without any reasonable basis,” according to the complaint.

After his removal from solitary, Marchetti claims he was placed into an area of the prison reserved for mentally unstable prisoners for three weeks, where his allegedly HIV-positive bunkmate smeared the walls with bodily fluids.

The complaint indicates Marchetti was held a total of four months past the maximum of his sexual abuse sentence and suffered a relapse of PTSD. He was released in July 2014 only after signing documents agreeing to additional sex offender probation requirements. Marchetti initially refused to sign, but was told he would not be released without doing so, according to the complaint.

Marchetti says he now lives in fear that he will be returned to the prison on some false pretext that he violated the sex offender requirements of his probation. He has previously claimed to be a target of law enforcement due to his civil rights advocacy organization, Citizens Against Abusive Power Systems.

The complaint is seeking statutory and compensatory damages for financial loss, physical injuries and emotional distress. Marchetti is also seeking costs associated with bringing suit, and injunctive relief in the form of training and monitoring of prison officials. ..Source.. by Alex Rose covers court proceedings for the Daily Times.

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Court: Admitted child rapist can't dodge sex predator label

7-8-15 Pennsylvania:

An admitted child rapist who spent years molesting a preteen girl was rightly labeled a sexually violent predator, a state Superior Court panel has ruled.

The decision, outlined in an opinion issued this week by President Judge Emeritus John T. Bender, shoots down Kenneth Elwood Spriggle's challenge to the predator designation slapped on him by a Snyder County judge.

Spriggle, now 48, of Selinsgrove, pleaded guilty in July 2014 to child rape charges and is serving a 12- to 40-year state prison sentence. He only challenged his sex predator designation on appeal, however.

As Bender noted, state police said Spriggle admitted to molesting the girl when troopers confronted him. The girl said Spriggle began sexually abusing her just before she turned 9 years old and continued until right before her 13th birthday.

Bender found that county Judge Michael T. Hudock was right to accept an assessment by a psychologist from the state Sexual Offender Assessment Board that Spriggle is a pedophile whose cultivation of a sexual relationship with the victim constituted predatory behavior.

The sex predator designation means Spriggle will have to register with state police for life, and they will tell his neighbors about his crimes. He also will have to undergo lifetime sex offender counseling. ..Source.. by Matt Miller

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Federal court assumes jurisdiction over visa non-issuance

6-19-15 Pennsylvania:

PHILADELPHIA – A motion to dismiss filed on behalf of U.S. Immigration Services and the Department of Justice regarding the non-issuance of an immigrant visa for lack of subject matter jurisdiction was denied in federal court on June 10.

Judge John R. Padova, of the U.S. District Court for the Eastern District of Pennsylvania, ruled the Court is within its right to assume jurisdiction over the litigation regarding the denial of an immigrant visa for the wife of Phoenixville resident Ahmed Bakran, a convicted sex offender.

In 2004, Bakran was convicted of one count of aggravated indecent assault and one count of unlawful contact with a minor. Two years later, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006, which amended the Immigration and Nationality Act (INA), to bar citizens convicted of a “specified offense against a minor” from filing any family-based visa petition – unless the citizen can prove to the satisfaction of the Secretary of Homeland Security that they pose no risk to the intended immigrant.

In 2012, Bakran married a foreign woman, Zara Qazi. Bakran summarily filed an I-130 immigrant visa petition in July 2012, seeking to have his wife classified as an immediate relative, so she could come to the United States.

Approximately a year and a half later, Bakran received notice of intent to deny his I-130 petition from the United States Citizenship & Immigration Services (CIS) department in January 2014 – unless he could show that his offenses were not committed against a minor and that he was not a danger to Qazi.

Despite submitting documentation to that effect, Bakran’s I-130 petition was officially denied by the government through a Notice of Decision in December. CIS cited the parameters of the Walsh Act as grounds for denying the petition, since Bakran’s offenses were committed against a minor.

Bakran then filed the instant complaint in January, charging the denial of his I-130 petition violated both the U.S. Constitution and Administrative Procedures Act (APA). His suit named Department of Homeland Security Secretary Jeh Johnson, U.S. CIS Director Leon Rodriguez, U.S. CIS Lee’s Summit, Mo. Field Office Director Robert Cowan and U.S. Attorney General Eric Holder as defendants. ..Continued.. by Nicholas Malfitano

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Supreme Court ruling on state juvenile sex offender registration had Monroe County roots

6-18-15 Pennsylvania:

Pa. Supremes affirm local decision on registering

Should minors be forced to live their entire lives under a label that will shun them from the rest of society?

The Pennsylvania Supreme Court says no. And it based its opinion in part on decisions issued in two Monroe County cases.

The court in December 2014 said that forcing juveniles to register as sex offenders for the rest of their lives violates state laws.

Prior to the decision, Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), signed in December 2011, required all juvenile sex offenders who commit serious offenses including rape and aggravated sexual assault to be included in Pennsylvania’s sex offender registry, a public database that feeds into a national database.

The law in essence applied to 14-year-olds just as it applied to adult pedophiles.

“We were painting them with the same brush,” Monroe County Chief Probation Officer Steve Houloose said.

SORNA arose from the federal Adam Walsh Child Protection and Safety Act of 2006. The federal law forced states to impose registration requirements on juvenile sexual offenders or lose 10 percent of the state’s law enforcement grants, according to the Supreme Court decision.

“It’s follow the dollars. And when the final legislation came out, it was either impossible to legislate or had unintended consequences,” Houloose said.

Pennsylvania’s SORNA law made the juvenile registration requirements retroactive.

“Kids who went through due process and plead, we had to go back, track them down and notify them because they needed retroactive registration.” Houloose said.

But according to the opinion overturning the law, the justices agreed with the Monroe County Court of Common Pleas, which, like the York County Courts in another case, declared that SORNA infringes on juveniles’ constitutional guarantee of due process by presuming a high risk of reoffense without allowing evidence to the contrary. The local courts also said that SORNA violates Pennsylvania’s constitutional right to reputation.

The Monroe County Court declared unconstitutional the parts of the state registration law relating to juvenile offenders who are not determined to be sexually violent delinquent children, and released those juveniles from registration requirements, according to the decision.

The Supreme Court decision also cited the Monroe County court’s observation that, while the finding of delinquency involves a hearing on the facts of the crime, there were no ways to address the juvenile’s likelihood of reoffending, the very reason for registration.

The Supreme Court cited research that showed the recidivism rates for juvenile sex offenders are far lower than the recidivism rates of adult offenders. The rate for juvenile sexual offenders to commit another sexual offense was less than 2 percent.

“Obviously, when you deal with kids, you are never dealing with the average sex offender,” Houloose said.

And the juveniles accused of offenses had to make deals. They felt they couldn’t fight the allegations because they were thinking, if I lose, I’m unemployable for the rest of my life, he noted.

Houloose said Pennsylvania’s Legislature never consulted with probation, state police or other parties involved in judging juvenile sex offenders before writing the law.

“(The act) was thrown together in a hasty way to get the federal funds available. The deadline was coming, and the state wouldn’t be able to access the federal dollars. But the state never established juvenile sex offender rules. The legislators never really understood what they were putting in motion.”

“We all breathed a sigh of relief. The courts did the right thing,” he said. ..Source.. by Howard Frank

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Cop jailed in child-sex case gets chance to fight for his public pension

4-22-15 Pennsylvania:

A Commonwealth Court ruling issued Wednesday gives a former police officer who was sent to prison on a child-sex conviction a chance to try to save his publicly-paid pension.

A panel of the state court found that Philadelphia's Board of Pensions didn't give ex-cop Tyrone Wiggins an adequate chance to challenge its decision to deny him a pension. So it sent the case back to the city board for further consideration.

That board voted to pull Wiggins' pension after he was found guilty of molesting a girl who was a student of a karate class he taught while off-duty. Investigators said the sexual encounters began in 1997, when the girl was 12, and continued for more than eight years until the victim reported the abuse.

Wiggins, now 55, is serving a 17 1/2- to 35-year sentence in the state prison at Mahanoy on his convictions for multiple sex crimes. He denied the sex abuse claims.

The decorated 23-year veteran resigned from the city police in November 2009 and began collecting a $3,005-a-month pension immediately before being arrested in the child-sex case. He was convicted a year later, and in November 2011 the pension board notified him it was cutting off his benefits.

The problem, Judge Mary Hannah Leavitt wrote in the Commonwealth Court ruling, is that the pension board notice didn't give Wiggins enough information to allow him to challenge the pension-pulling decision. That violated Wiggins' right to due process of law, she wrote.

Wiggins also argued in his appeal to the state court that he remains eligible for a city pension because the crimes of which he was convicted are not listed in Philadelphia's pension statute as grounds for denying pension benefits.

He contends as well that a reason the pension board belatedly put forth for the pension denial, that he had committed "malfeasance in office and employment," is invalid because his supposed sex crimes did not involve his job as a cop.

Levitt wrote that Wiggins, who joined the Philly police force in 1986, first had sex with the girl in early 1997. He took the girl and her brother to the 39th District Police Headquarters, where he was stationed, told the boy to use the weight room, then drove the girl to Fairmont Park where they had a sexual encounter, the judge wrote.

In subsequent years, Wiggins had sex with the girl at his home, in his van and at her home and in hotel rooms. At times, the two got into physical altercations, but when police arrived, Wiggins would flash his badge and avoid an investigation, Levitt wrote.

When she became an adult, Wiggins first tried to get the victim a job with the city police, then undermined her employment bid when she tried to end their relationship. She finally told authorities about the sexual abuse in 2006 after Wiggins choked her outside a hospital where she was working as a security guard, according to court filings.

On the pension dispute, Leavitt noted that neither the state's nor the city's pension statutes specifically list Wiggins' conviction among the crimes that automatically require benefit forfeitures. The crimes that trigger forfeitures under those regulations include such offenses as theft, bribery, forgery, perjury and tampering with public records, she observed.

She cited a section of Philly's pension law that allows for pension forfeitures for convictions that require sex offender registration, but only if those crimes occurred in connection with the person's public employment.

"It is true that Wiggins' convictions are undisputed," Leavitt wrote. "However, what is lacking is a factual record that connects Wiggins' criminal conduct to 'malfeasance in office or employment'."

In sending the dispute back to the pension board, Leavitt said that panel must inform Wiggins of the charges against him and the sections of law it is citing, and specify what conduct he supposedly engaged in during the course of his city employment that merits a pension denial. ..Source.. by Matt Miller

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Judge rules sexual offender must register for life

Laws with cutoff dates + jurisdictional hooks should be outlawed; effectively jurisdictional hooks are a risk assessment without considering the facts of the crime. There is no logical public safety reason to distinguish between the two groups here, esp when the result is 10 years registration or life, and ignoring the types of crimes a person was convicted of. Unfortunately this is the opinion of one who cannot change the way a law is written.

3-7-15 Pennsylvania:

A Lackawanna County judge on Friday denied a convicted sex offender’s challenge of a law that extended his obligation to report under Megan’s Law from 10 years to life.

Matthew Woodruff argued he should not be subject to the lifetime requirement under the Sexual Offender Registration and Notification Act because he pleaded guilty prior to law’s effective date. He also argued the law was unconstitutional because it equated to additional punishment.

Mr. Woodruff, formerly of Clarks Summit, pleaded guilty on Oct. 7, 2002, to indecent assault for touching the genitals of a 12-year old girl. He was sentenced on Jan. 31, 2003, to six to 18 months in prison. As a sexual offender he was also ordered, upon his release, to register his address with Pennsylvania State Police for 10 years.

In January 2013, Mr. Woodruff was notified by the state police that his classification as a sexual offender had changed and he would not be required to register for life.

Mr. Woodruff’s attorney, Harold Spizer,argued the lifetime requirement did not apply to Mr. Woodruff because SORNA, which altered reporting requirements, did not become effective until Dec. 20, 2012, which was more than 10 years after he entered his guilty plea.

Judge Terrence Nealon rejected that argument, noting the act states that it applies to any defendant who had not yet completed their registration requirement as of the date the act became effective. Mr. Woodruff was required to begin registering as a sex offender after his release from prison on Oct. 14, 2003. That meant he had not yet completed his 10 years of registration until October 2013, more than a year after the act’s effective date.

Mr. Woodruff, who is now blind and lives in Florida with his parents, also argued the lifetime registration requirement was overly punitive as it punished him twice for the commission of a single crime.

While acknowledging Mr. Woodruff is now subjected to more demanding reporting requirements, Judge Nealon said prior appellate courts have held those requirements are not punishment, but a remedial regulation designed to protect members of the public by ensuring police know the whereabouts of convicted sex offenders. ..Source.. by TERRIE MORGAN-BESECKER

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PA Supreme Court suspends former Montgomery County GOP chairman Robert Kerns’ law license

2-9-2015 Pennsylvania:

The attorney who was formerly the head of the Montgomery County Republican Committee will have his law license temporarily suspended, according to a press release from The Disciplinary Board of the Supreme Court of Pennsylvania sent out on Monday.

The release states Robert Kerns, 67, of North Wales, will have his license temporarily suspended effective March 8, 2015. The Pennsylvania Supreme Court made the order on Feb 6, according to the press release. The temporary suspension will last until the disciplinary board decides on further action which could include Kerns being disbarred.

In November, Kerns entered a plea of no contest to assaulting a former co-worker after a work party for the law firm he used to partner in.

By pleading no contest, he did not admit to the assault, but acknowledged the Attorney General’s Office had enough evidence to convict him. Pleading no contest to a charge still counts as a conviction in the eyes of the court.

“This is absolutely a conviction,” Deputy Attorney General Daniel Dye said in November after the hearing. “There is no difference under the law between a guilty plea and a no-contest plea. In other words, a guilty-plea is ‘I did it’ and a no contest plea is ‘you got me.’”

Kerns was sentenced to two years of probation and ordered to pay a $500 fine and $153.39 in restitution to the victim. He also has to register as a sex offender with the state police for the next 15 years.

He was first accused of drugging and raping a co-worker after a work place party in October 2013 in King of Prussia. However, prosecutors in the Montgomery County District Attorney’s Office later learned a lab report was read incorrectly and the victim was not drugged. The district attorney’s office withdrew the charges against Kerns and forwarded the case to the Office of the Pennsylvania Attorney General.

The Office of the Attorney General took the case before Senior Judge John Braxton, who oversaw the no contest plea on the day it was scheduled to go to a bench trial. ..Source.. by Dan Clark

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Fayette sex offender's life sentence overturned

1-15-2015 Pennsylvania:

A Mill Run man who was sentenced to life in prison as a repeat sex offender had his sentence overturned by a panel of Superior Court judges, but he still faces a mandatory resentencing of 25 years in prison.

Senior Judge Gerald Solomon sentenced Richard Glenn Bowers, 73, to life in prison in 2012 following his conviction on an indecent assault charge on a girl.

The girl testified she was between 3 and 7 years old when Bowers had sexual intercourse with her on at least 15 occasions in his garage and a nearby wooded area between 2006 and 2008.

The life sentence was based on Pennsylvania's three strikes rule, according to the panel's opinion, which was posted online on Wednesday.

Bowers in 1985 was sentenced to 4 to 10 years in prison for sexually assaulting three girls, ages 8, 12 and 12, on multiple occasions. The sentences were imposed consecutively at a single hearing, the Superior Court judges found.

Citing case law, the judges found that for the state's three strikes law to apply, the 1985 sentences would have had to have been imposed separately. Otherwise, they count as just one conviction toward the three strikes law.

The judges vacated Bowers' life sentence and remanded the case to Fayette County for resentencing. They noted the minimum mandatory sentence Bowers now faces is 25 years. A new sentencing date has not yet been set. ..Source.. by The Tribune-Review

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Lifetime registration mandate for juvenile sex offenders is unconstitutional, Pa. Supreme Court says

See also: Pa. court throws out juvenile sex-offender registration

12-30-2014 Pennsylvania:

A Pennsylvania law that requires juveniles who commit the most serious types of sex crimes to register with police for life is unconstitutional because it breeches the youngsters' civil rights, the state Supreme Court ruled Monday.

The decision by the state's highest court upholds earlier rulings by judges in York and Montgomery counties against the juvenile sex offender registration rules of the Sexual Offender Registration and Notification Act.

The state Legislature adopted the latest version of SORNA under federal pressure in 2011.

In the York County case, on which the Supreme Court ruling is based, attorneys for seven juveniles challenged the lifetime registration decree. The dispute came to the Supreme Court after the district attorney's office appealed county Senior Judge John C. Uhler's conclusion that SORNA violates the law in regard to juvenile sex offender registration.

Chief Justice Ronald D. Castille and Justices Max Baer, Thomas G. Saylor, J. Michael Eakin and Debra McCloskey Todd upheld Uhler's decision. Justice Correale F. Stevens issued a dissenting opinion, arguing that the right of juvenile sex offenders "should not have precedence over a rape victim's anguish that very well may last a lifetime."

The Supreme Court's majority opinion, written by Baer, comes seven months after the justices heard arguments on the case.

At issue, Baer noted, is whether SORNA improperly treats adult and juvenile sex offenders alike and whether the rights of serious juvenile offenders are breached by SORNA's automatic lifetime registration requirement.

Under SORNA, the lifetime registration applies only if a juvenile offender is at least 14 years old and has been adjudicated guilty by a county judge of rape, involuntary deviate sexual assault or aggravated indecent assault. Juveniles can apply to be removed from the sex offender registry at age 25, however.

Baer wrote that the SORNA requirement is unconstitutional in that it saddles juvenile offenders with an "irrefutable presumption" that they are likely to reoffend and so violates their rights to due process of law. The juveniles have no "meaningful" opportunity to challenge whether they should be subject to lifetime registration, he noted.

He cited arguments by opponents of the registration mandate that, unlike adult sex offenders, juveniles who commit sex crimes are statistically far less likely to re-offend. SORNA's registration rule simply doesn't take that into account, and so "improperly brands" youthful offenders, Baer found.

Pennsylvania already has a "reasonable alternative," however, he concluded. Adult sex offenders are evaluated individually before being designated for 10- or 25-year or lifetime registrations, Baer noted. "A similar process could be utilized to assess which juvenile offenders are at a high risk to recidivate," he wrote.

In his dissenting opinion, Stevens noted that SORNA already provides an opportunity for juvenile sex offenders to get off the registration list at 25, provided they don't commit further serious crimes and have completed treatment programs.

By adopting the juvenile offender registration requirements of SORNA, "the Legislature recognized violent sexual crimes such as rape must be treated as the serious crimes they are," Stevens wrote. ..Source.. by Matt Miller

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