Judges hold En Banc hearing to address similar issues
MIFFLINTOWN — In an effort to address three sex-offender cases dealing with similar issues, President Judge Kathy Morrow and Judge Kenneth Mummah held an En Banc, or a full court decision, hearing on Thursday afternoon in the Juniata County Court of Common Pleas.
Attorney Nevin Zimmerman represented Bradley Kemp, 47, of McAlisterville. Kemp was convicted in August 2018 of four criminal counts, including indecent sexual assault of a child and corruption of minors.
Public Defender Nancy Schrum represented Michael S. Kline, 22, of Mount Pleasant Mills. Kline pleaded guilty in September 2018 to three count statutory sexual assault, one count aggravated indecent assault and three counts corruption of minors.
Both attorneys argued that their individual clients’ Sexual Offender Registry and Notification Act requirements would be punitive, if they were respectively deemed Sexually Violent Predators by the Sexual Offenders Assessment Board. Zimmerman and Schrum both requested that the judges overule their clients’ pending SVP designations. The attorneys’ arguments included outlining the additional requirements imposed on registered SVPs, that SVPs do not have the option to use telephonic verification, that there are seven factors and that define the recent statute as punitive and that disseminating sex offender information online could lead to community retribution against the offenders.
“At the end of the day, it still remains a public shaming,” Zimmerman said.
Both cited case law that indicated punitive aspects of SORNA and that recent legislation–Acts 10 and Acts 29– did not alleviate the punitive aspects of SORNA.
Juniata County District Attorney Cory Snook argued that the case law cited by the defense is not controlling case law, rebutted the seven factors with documentation that shows that SORNA is not punitive and that Act 29 specifically states that the intent of the law is not punitive.
Schrum also represented 48-year-old Michael Whelply, of Brockway. Documents indicate that, in 2013, Whelply pleaded guilty to two counts of indecent assault of a minor in Jefferson County and was sentenced to incarceration followed by probation. On March 6, Whelply was charged with failing to register with Pennsylvania State Police, according to court documents. Documents indicate that Whelply was documented as residing in an East Waterford apartment, but PSP was notified that he was not living at the reported residence. PSP reported having no known address for Whelply from Feb. 22 to March 11, 2018. Whelply ultimately registered a Brockway address with PSP on March 11, where PSP learned from Whelply that he had been staying in Mount Union, then in Pittsburgh before registering in Brockway.
Schrum said Whelply was deemed an SVP and was required to register as a sexual offender under Megan’s Law 3, which was declared unconstitutional after his adjudication. Schrum argued that, because Megan’s Law 3 was now unconstitutional, Whelply’s SVP should be vacated. Schrum also that said Whelply committed the crimes to which he pleaded prior to 2012, which alleviated his requirement to register under SORNA, according to recent legislation.
Snook argued that Whelply is subject to Act 10, sub-chapter I, which outlined that his registration requirements are still valid.
“There’s a lot to digest,” Morrow said, at the conclusion of the 90-minute hearing. Morrow said she and Mummah will review the arguments, case law and documents presented and issued an order that she and Mummah are reserving their decision.