MEMORANDUM OPINION BY JUDGE BROBSON FILED: July 16, 2019

Petitioner Alexander Lopuchin filed an amended petition for review in the nature of a request for injunctive and declaratory relief (Petition) against the Pennsylvania State Police (PSP), relating to PSP’s classification of Petitioner as a Tier III sex offender under Pennsylvania’s Sex Offender Registration and Notification Act (SORNA),1 42 Pa. C.S. §§ 9799.10-.41, which has now been order requiring PSP to reclassify him as a Tier I sex offender or, alternatively, declare SORNA’s irrebuttable presumption of a high risk of recidivism unconstitutional as applied to Petitioner. Before the Court is Petitioner’s application for summary relief (Application). We now grant Petitioner’s Application, in part. In 2014, Petitioner was convicted at a trial by court-martial of a violation of Article 120 of the UCMJ and “sentenced to be reduced in military rank, to be discharged from the Navy[,] and to serve 60 days [of] confinement.”2 (Petition ¶ 4.) Petitioner appealed his conviction, but it became final and the sentence executable on March 9, 2016. (Petition ¶ 5.) As a result of his conviction, PSP classified Petitioner as a Tier III sex offender under SORNA.^[3] (See Petition at ¶ 19.) According to a Department of Defense (DOD) form, entitled “Notice of Release/Acknowledgment of Convicted Sex Offender Registration Requirements” (DOD Form), attached to PSP’s brief, DOD notified Petitioner that he was required to register as a sex offender. (PSP’s Br. at Ex. B.) Petitioner appears to have signed the DOD Form on April 4, 2014. Through the DOD Form, Petitioner acknowledged that he was convicted in March 2014 of the offense of Aggravated Sexual Abuse, 18 U.S.C. § 2241, although the parties represent that Petitioner was convicted of Sexual Assault under subsection (b) of Article 120, 10 U.S.C. § 920(b).4 Through the DOD Form, Petitioner further acknowledged that the offense for which he was convicted requires him to register as a sex offender following his release from military confinement. (Id.) According to PSP, after returning to Pennsylvania, Petitioner reported to PSP to register on May 10, 2014. Thereafter, PSP notified Petitioner that it classified him as a Tier III sex offender. PSP attached to its brief another document, entitled “Out of State (OOS) Registration/Tier,” dated June 12, 2014, which PSP refers to as its Equivalency Determination Sheet. (PSP’s

will be the responsibility of the PSP to determine the specific offense for which Petitioner was convicted under the UCMJ and its relevant equivalency, if any, under Pennsylvania law.

Br. at Ex. C.) The Equivalency Determination Sheet identified the crime for which Petitioner was convicted as “Sexual Assault” and identified the similar offense as “PA 3124.1,” presumably shorthand for 18 Pa. C.S. § 3124.1, pertaining to Sexual Assault. 5 By letter dated June 9, 2016, Petitioner requested PSP to reconsider the classification, contending (1) that the military conviction on which PSP based its classification is properly analogous to a Tier I offense, not a Tier III offense, and (2) that SORNA’s irrebuttable presumption that all sex offenders pose a high risk for recidivism as applied to Petitioner resulted in a violation of his due process rights. (Petitioner’s Br. at Ex. E.) PSP responded by letter dated June 24, 2016, stating that, after a review of Petitioner’s file, pertinent statutes, and case law, PSP determined that Petitioner is correctly registered as a Tier III sex offender based on his military conviction being the equivalent of a conviction for the offense of Sexual Assault under 18 Pa. C.S. § 3124.1.6 (Petitioner’s Br. at Ex. A.) In its brief to this Court, PSP contends, however, that it found the military offense for which Petitioner was

5 18 Pa. C.S. § 3124.1, pertaining to Sexual Assault, provides: “Except as provided in [18 Pa. C.S. §] 3121 (relating to rape) or [18 Pa. C.S. §] 3123 (relating to involuntary deviate sexual intercourse), a person commits a felony of the second degree when that person engages in sexual intercourse or deviate sexual intercourse with a complainant without the complainant’s consent.”

convicted to be the equivalent of the Pennsylvania offense of Aggravated Indecent Assault, 18 Pa. C.S. § 3125(a)(4).7 In his Petition, Petitioner avers that he complied with the SORNA registration requirements while seeking review of his military conviction, and, upon completion of the military appeals process when his conviction became final, he sought review of his registration tier by PSP. Petitioner contends that a military offense for which he was convicted—i.e., Sexual Assault—is distinguishable from a conviction for similar sexual offenses under Pennsylvania law, because military law provides for “a broader definition of impairment by alcohol that involves both a subjective and objective analysis of knowledge of impairment by the accused that is significantly different [from] Pennsylvania law.”8 (Petition ¶ 25.) As a result, Petitioner contends that PSP’s statutory duty required it to exercise discretion in determining the equivalent Pennsylvania offense, if any, and to provide him with due process, including an evidentiary hearing, the latter of which PSP failed to do. Petitioner further contends that SORNA’s irrebuttable presumption that all sex

7 18 Pa. C.S. § 3125(a)(4), pertaining to Aggravated Indecent Assault, provides, in part: (a) . . . a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if: .... (4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring[.]

offenders have a high rate of recidivism also violates his due process rights and that PSP must afford him the opportunity to rebut the presumption during the course of an evidentiary hearing.^[9] Petitioner then filed the subject Application, contending that PSP violated his due process rights when PSP classified him as a Tier III sex offender based upon his military conviction without conducting an evidentiary hearing and allowing him an opportunity to rebut SORNA’s presumption that all sex offenders have a high rate of recidivism. The gist of Petitioner’s argument appears to be that PSP’s analysis of his case required more than a review of his file, statutory provisions, and case law, because his conviction under the UCMJ is not the same as any conviction under Pennsylvania law. Rather, Petitioner asserts that PSP’s review required additional analysis of the severity of the military offense of “Sexual Assault” for which he was convicted to determine the appropriate SORNA classification and suggests that the offense for which he was convicted is more equivalent to “Indecent Assault”10 than “Sexual Assault”11 under Pennsylvania law based upon the range of sentences for both. Petitioner’s assertion that additional analysis is required is based on his view that the offense under the UCMJ allows for negligent acts to result in a conviction, which distinguishes the military offense of Sexual Assault from Pennsylvania’s offense of Sexual Assault. In support of this argument, Petitioner observes that the Superior Court has opined that “[t]he UCMJ, while containing a wide variety of criminal offenses, is not as comprehensive as our own Crimes Code. Thus, while the UCMJ covers many prominent offenses, a strong possibility exists that there will not be a readily comparable offense in our own Crimes Code.” Cmwlth. v. Coleman, 854 A.2d 978, 981-82 (Pa. Super. 2004) (footnote omitted), vacated in part on other grounds, 874 A.2d 1150 (Pa. 2005). Petitioner further posits that, because Tier III classification requires lifetime registration, he should have been afforded an evidentiary hearing and assessment similar to that provided when determining whether an individual is a “Sexually Violent Predator” (SVP) under Section 9799.24(b) of SORNA, 42 Pa. C.S. § 9799.24(b), given that a classification as an SVP also results in lifetime registration.^[12] Petitioner argues that PSP’s failure to do so resulted in a violation of his constitutional due process rights, because he was not afforded an opportunity to challenge SORNA’s presumption regarding the likelihood of recidivism.^[13] Petitioner, in support of his constitutional due process claim, asserts a fundamental right to his reputation that will be significantly impacted throughout the time period that he is subjected to SORNA registration requirements. By order dated November 27, 2018, this Court directed the parties to be prepared to address at oral argument whether PSP’s classification of Petitioner as a Tier III sex offender under SORNA, 42 Pa. C.S. §§ 9799.10-.42, constitutes an adjudication under Section 101 of the Administrative Agency Law, 2 Pa. C.S. § 101, and, if so, whether it is an invalid adjudication under Section 504 of the Administrative Law, 2 Pa. C.S. § 504, because Petitioner did not receive notice and an opportunity to be heard.^[14] See Phila. Cty. Med. Soc’y v. Kaiser, 699 A.2d 800 (Pa. Cmwlth. 1997) (en banc) (Kaiser).

Butler, 173 A.3d at 1217-18. Petitioner, although referencing the hearing provided by Section 9799.24(e)(3) of SORNA, does not acknowledge that the Superior Court struck that provision from SORNA. This failure on Petitioner’s part, however, does not impact this Court’s ability to appreciate his argument that Petitioner should receive some form of a hearing nor does the Superior Court’s striking of this statutory provision dispose of the matter now before this Court.

Since argument on this matter, our Court, sitting en banc, has addressed this precise matter in M.S. v. Pennsylvania State Police, ___ A.3d ___ (Pa. Cmwlth., No. 335 M.D. 2017, filed June 11, 2019)—a case which involves circumstances similar to those present in the matter now before this Court.^[15] In M.S., the petitioner, while a Cadet at the United States Coast Guard Academy, was convicted at a trial by general court-martial of sexual assault in violation of Article 120(b)(3)(A) of the UCMJ, 10 U.S.C. § 920(b)(3)(A). After his release from confinement and return to Pennsylvania, PSP designated the petitioner as a Tier III sex offender under SORNA—subject to lifetime registration and publication—based on the asserted similarity of his military offense to Section 3125(a)(4) of the Pennsylvania Crimes Code, 18 Pa. C.S. § 3125(a)(4). The petitioner, having requested to no avail a hearing from PSP to object to the determination, filed in this Court’s original jurisdiction a petition for review in the nature of a complaint in mandamus and for declaratory relief. The petitioner, in part, asserted that PSP was required to provide him with a hearing to challenge the propriety of its equivalency determination designating him as a Tier III sex offender because he was not convicted of an expressly enumerated offense set forth in Section 9799.14(d) of SORNA. We concluded that the petitioner, “even in the absence of constitutional due process concerns, [was] entitled to a hearing under the Administrative Agency Law.” M.S.,

court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions. ^[2] Pa. C.S. § 101. Section 504 of the Administrative Agency Law, 2 Pa. C.S. § 504, provides, in part: “No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard.”

___ A.3d ___, slip op. at 8. More specifically, we held that “PSP must, consistent with the Administrative Agency Law, provide a sex offender with a post- equivalency determination administrative appeal remedy, which must include reasonable notice of a hearing and an opportunity to be heard” and result in a “valid adjudication, which would then be appealable to this Court. See 42 Pa. C.S. § 702.” M.S., ___ A.3d ___, slip op. at 11 (footnote omitted). In the matter now before this Court, we agree with Petitioner that, because he was convicted of an offense not specifically enumerated in SORNA’s tier classification scheme, PSP necessarily engaged in a nonministerial act when it classified Petitioner as a Tier III sex offender. Furthermore, it is apparent to the Court that, when PSP made its equivalency determination in 2014, it considered its determination to be final. It is beyond dispute that PSP’s determination affected Petitioner’s personal rights or obligations, because SORNA’s registration requirements have the potential to affect one’s reputation16 and impose continuing obligations on registrants. It is also apparent that, in rendering its equivalency determination, PSP did not afford Petitioner “reasonable notice of a hearing and an opportunity to be heard,” as required by Section 504 of the Administrative Agency Law. Thus, PSP’s equivalency determination constituted an invalid adjudication under the Administrative Agency Law. See M.S., ___ A.3d ___, slip op. at 11. For these reasons, we declare that PSP must comply with the Administrative Agency Law and provide Petitioner with a post-equivalency determination administrative appeal remedy, as set forth more fully in M.S. Because we are directing PSP to provide Petitioner with an evidentiary hearing under the Administrative Agency Law, we need not consider whether PSP’s failure to provide Petitioner with an evidentiary hearing constituted a violation of his constitutional due process rights. Furthermore, as PSP has not yet issued a valid adjudication as to Petitioner’s tier status and Petitioner has not yet been afforded the process to which he is entitled under the Administrative Agency Law, it would be premature for this Court to consider Petitioner’s remaining issue—i.e., whether Petitioner must be afforded an opportunity to rebut the presumption that all sex offenders have a high rate of recidivism. Only after PSP issues a valid adjudication can this Court consider whether Petitioner received sufficient due process or whether he must receive additional process to allow him an opportunity to rebut that presumption. Accordingly, Petitioner’s Application is granted to the extent that it seeks an order from this Court, declaring that PSP must provide Petitioner a post-determination administrative remedy and adjudication on the question of whether he should be designated as a Tier III sex offender as a result of his military conviction.

P. KEVIN BROBSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alexander Lopuchin, : Petitioner : : v. : No. 587 M.D. 2016 : Pennsylvania State Police, : Respondent :

ORDER AND NOW, this 16th day of July, 2019, Petitioner’s application for summary relief is GRANTED to the extent that it seeks an order from this Court, declaring that the Pennsylvania State Police (PSP) must provide Petitioner a post-determination administrative remedy and adjudication on the question of whether he should be designated as a Tier III sex offender as a result of his military conviction. PSP is directed to afford Petitioner an administrative remedy consistent with the accompanying opinion and the Administrative Agency Law, 2 Pa. C.S. §§ 501-508, 701-704. P. KEVIN BROBSON, Judge