PA: 5 years for missed re-registration date goes back for resentencing
A Pennsylvania man who received a five to 10 year prison sentence for being three weeks late for a registration, will get a re sentencing.
The 45 year old man was required to register because of a 2004 conviction in Maryland. He registered in Maryland for years and then continued to register in Pennsylvania for a number of years, before simply forgetting – yet registering 24 days late.
The oversight got him a substantial prison sentence, because in Pennsylvania, the mandatory minimum sentence for a failure to register is five years! That is until now…
The man appealed his sentence, arguing that the mandatory sentence was illegal. A jury, not a judge, must determine if facts justified a mandatory sentence. Here, a judge made the determination.
The court vacated his sentence but not his conviction. He’s still going to be charged for missing his registration date, but hopefully will get a more reasonable sentence.
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I’m not a lawyer, and this is certainly not legal advice, but the Fifth and Fourteenth Amendments are in certainly play here. The Fifth Amendment guarantees the protections against compuslory self incrimination and the right to due process to challenge criminal penalties that are based on compulsory self incrimination, as discussed below.
SCOTUS has applied Fifth Amendment protections to the states via the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 3-6 (1964). SCOTUS has also ruled: that if a person can show that his compelled information “could be used in a criminal proceeding against him brought by the Government of either the United States or one of the States, he would be entitled to invoke the privilege. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, in which the witness reasonably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent state or federal criminal proceeding.” U.S. v. Balsys, 524 U.S. 666, 627 (1998). So, the compelled act of providing registration information to the states or federal government for subsequent use in a criminal case is prohibited.
Although I research this particular area of law frequently, I haven’t seen any cases involving the specific issue of sex offenders being compelled by court order (i.e., sentencing order) claiming Fifth and Fourteenth Amendment protections as a defense in a failure to register case. Perhaps it is time someone should.
Since FDLE compels me to provide my phone numbers and Internet identifiers, among other things, as part of registration, I’m potentially providing evidence that could be used to prosecute me (for instance, if I were accused of chatting with a minor). Registration violates the 5th amendment, I believe.
Unfortunately, what will likely happen is that the judge will simply sentence him to the same thing at resentencing, calling it the judge’s discretion rather than a mandatory minimum.
TO FAC,
I just got a letter from FDLE stating that it is MY responsibility to go onto the FDLE website and update all info. I was told by FDLE twice to send them a copy of the updates and to give a copy to the Det. TO SIGN as acknowledgement of receipt–the cop, of course refused.
Since when does FDLE give sex-offenders unfettered access to their own files? online? without FDLE approval??
Please answer for me.
Also, I have been banned/trespassed from the Broward County Courthouse because I have a Medical Condition that causes me to pass out without warning.
I, according to BSO Sex-Offender unit at the Courthouse “I pose a safety risk and serious liability to the Courthouse, therefore they have asked me to be trespassed and not to enter the courthouse anymore”
FDLE has an online portal for updating Internet Identifiers, University Info, phone numbers, employment info. and to change your password.
The other information cannot be updated through the website. We don’t know any way that we can and we’ve never heard of anyone having the ability to do that.
If you email a copy of the letter to [email protected], we’d be happy to take a look at it.
Sean, if i understand this correctly the LAW states to report in person but police, etc… tell you not to and put you in violation of the law. i never knew that the law has exceptions i always thought the law is the law PERIOD! perhaps if the police have an issue with it they should address it to lawmakers and have the law rewritten
That’s the cause we should be fighting in court. IML is bad but challenging the constitutionality of a strict liability felony (something there is much precident for already) is a venue where all the current research on recidivism comes into play, and if failure to register can be forced into the misdemeanor arena the whole game will change, you’ll be fighting counties where resources are limited instead if states and Uncle Sam.
This man forgot to register, then in good faith went to register knowing he was late. In those 24 days the state is going to be hard pressed to demonstrate his lapse in registration (which likely didn’t even include changes, same address, phone, employer, shoe size…) Contributed to some great community anxiety (his online registration was probably still correct though not current, and nobody besides the police likely knew). He wasn’t caught by police somehow taking advantage of his registration lapse… If you substituted “vehicle registration” for “sex offender registration” the narrative doesn’t change, merely the cruel and unusual punishment.
gee, I wonder, does Sam’s club still prosecute you with the threat of fines, GPS monitoring and /or jail/prison if you dont renew you application on time every year ? I mean, according to Justice Kennedy, they are basically the same thing
I, myself, have been trespassed and banned from the Broward County Courthouse (the place where I am supposed to register) because I have COPD and a condition called “syncope with collapse”. I cough and I pass out.
So, I am determined to be a “safety risk and a liability to the Courthouse”.
I AM OK WITH THAT ! You see, now the cops have to come to ME with my 3 month paperwork. I save on the Parking fees, trying to quickly cross the street without getting run down, wait in line while I an being frisked, told to sit in a seat and subjected to the unusually “raised voices” asking if my DOB is correct and restate that info.
I do not miss that and am glad that I, for once, have the small power over the cops that they have to come to me. This month I gave the deputy ALL of my “internet Identifiers” and ALL of my “updated info” concerning my licensing and Certifications. BOY WAS THAT COP PISSED!!!! He kept saying “you dont need to do this, why are you being a pain in the ass now; 25+ years later?
I informed him of the Fla.SS., the SORR, Registry requirements. He just kept asking “why am I being a pain in the ass now”…
WELL… How about being compliant with the law?
He really got pissed when I put in the box above where you sign your name that I WAS compliant and (sheriff) had all of my updated info. ANY INFO deleted, and or, missing is the problem of the Broward Sheriffs Office, not mine. (he refused to sign his name stating he received the paperwork— which FDLE said he should have) I sent a copy of updated info to FDLE also
Then I signed….
…vc Mr Sean ****** ****on
EX POST FACTO CHALLENGE
(under duress– with malice and, or prejudice)
The reason WHY I signed the form that way was to let them know that I am signing under duress–IF I dont sign, I will go to jail. So it is not under my “free will” to sign this–I am being forced, under the threat of being put in jail (For a crime I never committed )
I understand the position that FAC takes. It is the good fight. BUT, by the time anything is done, I will be long dead and gone (with my name STILL on the list)
Lady Justice has a blindfold over her eyes for a reason. She is oblivious to the cries of the people. She can only hear money as it slips thru the fingers of the “upper crust” of our society, not the people who need justice, yet cant “AFFORD TO PAY’ for justice to be done.
She still has the chains around her feet, binding her from enacting justice.
She has the Bible in her left hand. FOR WHAT?? Justice, law, even the name of GOD has been removed, wiped clean from out courts for the greed of whomever has the most money.
Yeh but just remember that is not punishment though. 5 years is not punishment in prison. Prison must be considered a upscale resort. Punishment is having your cell phone taken away for 2 weeks.
huh??
Sarah. I’m being sarcastic