Commonwealth, Aplt. v. Arnett, R.

[J-34-2025]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 19 MAP 2023

:

Appellant : Appeal from the Order of the York

: County Court of Common Pleas,

: Criminal Division, at No. CP-67-CR-

v. : 1632-2004, dated April 27, 2022.

:

: ARGUED: May 13, 2025

ROBERT W. ARNETT, :

:

Appellee :

OPINION

JUSTICE WECHT DECIDED: March 26, 2026

In 1995, Pennsylvania enacted its inaugural version of Megan’s Law, 1 a

comprehensive regulatory scheme designed, among other things, to “[p]rotect the safety

and general welfare of the people of this Commonwealth by providing for registration,

community notification and access to information regarding sexually violent predators and

offenders who are about to be released from custody and will live in or near their

1 See 42 Pa.C.S. §§ 9793-9795 (repealed). The first sexual offender regulatory

scheme was enacted by New Jersey in 1994. See N.J.S.A. §§ 2C:7-1 to 2C:7-11

(repealed). That law, and many like it that would follow, was named “Megan’s Law,”

because it was passed as a response to the rape and murder of a seven-year-old girl,

Megan Kanka. Shortly thereafter, Congress conditioned the allocation of certain federal

funding to states upon their passage of similar sexual offender registration and notification

statutes. See 42 U.S.C. § 14071 (repealed). Pennsylvania’s enactment responded to

this federal legislation.

neighborhood.”2 Since then, that law has been amended, revised, replaced, and

renamed. 3 All told, there have been four versions of Megan’s Law and two of SORNA,

most of which have faced a variety of constitutional challenges. 4 These laws have been

challenged upon due process grounds, 5 upon the manner in which the law was passed, 6

and as violations of the ex post facto clauses in the United States and Pennsylvania

Constitutions. 7 Until today, however, this Court has not had occasion to examine the

propriety of the mechanisms utilized to challenge a sexual offender registration statute.

2 42 Pa.C.S. § 9799.51(b)(1).

3 Megan’s Law was renamed as the “Sexual Offender Registration and Notification

Act,” commonly referred to by its acronym, “SORNA.” See 42 Pa.C.S. §§ 9799.11-

9799.75.

4 See, e.g., Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999) (Megan’s Law I);

Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999) (“Williams I”) (Megan’s Law I);

Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (“Williams II”) (Megan’s Law II);

Commonwealth v. Killinger, 888 A.2d 592 (Pa. 2005) (Megan’s Law II); Commonwealth

v. Wilson; 910 A.2d 10 (Pa. 2006) (Megan’s Law II); Commonwealth v. Neiman, 84 A.3d

603 (Pa. 2013) (Megan’s Law III); Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)

(SORNA I); Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020) (SORNA II).

5 See Williams I, supra n.4.

6 See Neiman, 84 A.3d at 616 (holding that Megan’s Law III violated the “single

subject” provision of the Pennsylvania Constitution); see PA. CONST. art. III, § 3 (“No bill

shall be passed containing more than one subject, which shall be clearly expressed in its

title, except a general appropriation bill or a bill codifying or compiling the law or a part

thereof.”).

7 See Muniz & Lacombe, supra n.4. The prohibition on ex post facto laws appears

twice in the United States Constitution. The first proscription is found in Article 1, Section

9, and serves as a limitation on Congress’ authority to pass laws: “No Bill of Attainder or

ex post facto Law shall be passed.” U.S. CONST. art. 1, § 9. The limitation appears for

the second time in Article 1, Section 10, and, in this usage, constitutes a restriction on the

power of the states: “No State shall . . . pass any Bill of Attainder, ex post facto Law, or

Law impairing the Obligation of Contracts, or grant any Title of Nobility.” U.S. CONST. art.

1, § 10. Pennsylvania’s ex post facto provision is found in Article 1, Section 17 of our

Constitution, and states that: “No ex post facto law, nor any law impairing the obligation

of contracts, or making irrevocable any grant of special privileges or immunities, shall be

passed.” PA. CONST. art 1, § 17.

[J-34-2025] - 2

We begin that process today by considering whether a petition for relief under the Post

Conviction Relief Act 8 is a viable mechanism to challenge the constitutionality of such a

law. Because the PCRA only authorizes petitions related to a person’s “conviction or

sentence,”9 and because SORNA II is non-punitive, i.e., not a criminal sentence, 10 we

hold that the PCRA is not available in this context.

In 2003, Robert Arnett engaged in sexual intercourse with a fourteen-year-old girl.

Arnett was arrested and charged with aggravated indecent assault, 11 statutory sexual

assault, 12 three counts of indecent assault, 13 and two counts of corruption of the morals

of a minor. 14 On June 14, 2004, Arnett pleaded guilty to those charges. The trial court

sentenced him to serve an aggregate term of five to ten years’ incarceration.

Under the sexual offender registration statute that governed at the time, Arnett’s

aggravated indecent assault conviction subjected him to lifetime registration as a sexual

offender. 15 After Arnett was released from prison, Megan’s Law was replaced by SORNA,

and then by SORNA II, which also subjects Arnett to lifetime compliance. 16

8 Hereinafter “PCRA.” See 42 Pa.C.S. §§ 9541-46.

9 Id. § 9543(a)(2).

10 See Lacombe, supra n.4; see also Commonwealth v. Torsilieri, 316 A.3d 77 (Pa.

2024) (“Torsilieri II”).

11 18 Pa.C.S. § 3125.

12 Id. § 3122.1.

13 Id. § 3126.

14 Id. § 6301.

15 See 42 Pa.C.S. § 9795.1(b)(2)(i) (expired). Following an assessment, Arnett was

determined not to be a sexually violent predator. See id. § 9795.4 (expired).

16 See id. § 9799.55(b)(2)(i)(A). Because Arnett’s offenses occurred before

December 20, 2012, he is subject to Subchapter I of SORNA II. See id.; see also id. §

(continued…)

[J-34-2025] - 3

On August 13, 2020, over fifteen years after his judgment of sentence became

final, 17 Arnett filed a pro se PCRA petition. The PCRA court appointed counsel, who, on

March 15, 2021, filed an amended PCRA petition 18 on Arnett’s behalf. Among other

things, Arnett argued that SORNA II unconstitutionally infringed upon his fundamental

right to reputation, 19 because it rests upon the “irrebuttable presumption that all sex

offenders, regardless of their individual characteristics or even the particular offense

involved, ‘pose a high risk of engaging in further offenses even after being released from

incarceration or commitments.’” 20 Arnett contended that, statistically, the presumption

9799.52 (subjecting to Subchapter I those who were “convicted of a sexually violent

offense committed on or after April 22, 1996, but before December 20, 2012 whose period

of registration with the Pennsylvania State Police . . . has not expired” or who were

“required to register with the Pennsylvania State Police under a former sexual offender

registration law of this Commonwealth on or after April 22, 1996, but before December

20, 2012, whose period of registration has not expired”).

17 Under the PCRA, a judgment of sentence becomes final “at the conclusion of direct

review, including discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” Id.

§ 9545(b)(3). Arnett was sentenced in 2004, over fifteen years before he filed his PCRA

petition.

18 Arnett styled his amended petition as an “Amended PCRA Petition/Motion for Writ

of Habeas Corpus.” Despite the dual title, Arnett asked only that the PCRA court grant

his petition and enjoin “the enforcement of sex offender registration requirements on him.”

Amended Petition, 3/5/2021, at 5 (unpaginated). As discussed below, we directed

supplemental briefing in this case only to review whether the PCRA is a suitable method

for challenging a sexual offender’s obligation to comply with SORNA II. We leave the

viability of habeas corpus as such a mechanism for a later day.

19 See PA. CONS. Art. 1, §1 (“All men are born equally free and independent, and

have certain inherent and indefeasible rights, among which are those of enjoying and

defending life and liberty, of acquiring, possessing and protecting property and reputation,

and of pursuing their own happiness.”).

20 Amended Petition, 3/5/2021, at 4 (unpaginated) (quoting 42 Pa.C.S. §

9799.51(a)(2)). We rejected this precise legal claim in Torsilieri II. Arnett also argued

that he was not required to register as a sexual offender at all, because Megan’s Law III

was in effect at the time that he committed his offenses, which this Court held

(continued…)

[J-34-2025] - 4

was not universally true and that, instead of a blanket presumption, there existed

reasonable alternative means to ascertain whether an offender poses a risk of recidivism.

The Commonwealth filed an answer. It did not argue specifically that the PCRA

was the incorrect mechanism to challenge the constitutionality of SORNA II. Although

the Commonwealth stressed that the petition was “grossly untimely” under the PCRA, it

acknowledged that, in Lacombe, this Court declined, for the time being, to find that “the

PCRA, or any other procedural mechanism, is the exclusive method for challenging

sexual offender registration statutes[.]”21 As to the merits, the Commonwealth criticized

Arnett for failing to analyze the specific terms of SORNA II or offer cases interpreting

SORNA II in support of his claim that the statutory scheme violated his reputational right.

The Commonwealth emphasized that Arnett did not mention, let alone account for, the

provision in SORNA II that provided a mechanism through which a sexual offender can

be relieved of his reporting obligations. 22

The PCRA court held a hearing on November 15, 2021, at which neither party

presented any lay or expert testimony. In an April 27, 2022 opinion and order, the PCRA

court agreed with Arnett that SORNA II was unconstitutional, and it granted his petition.

unconstitutional. See Neiman, 84 A.3d at 616. The PCRA court ultimately rejected this

argument. When Megan’s Law III was stricken as unconstitutional, Megan’s Law II

reverted to operation. At all times, Arnett was under the continuous obligation to comply

with one version of Megan’s Law or SORNA. That claim no longer is a part of this appeal.

21 Answer, 5/12/2021, at 3 (quoting Lacombe, 234 A.3d at 618).

22 See 42 Pa.C.S. § 9799.59. This section permits a sexual offender to request

exemption from SORNA II’s obligation to register with the PSP, verify his or her address,

employment, or education status, and to appear on the publicly accessible website. The

offender becomes eligible to petition for this exemption once twenty-five years have

passed after the offender commenced registering as a sexual offender, “during which time

the petitioner has not been convicted in this Commonwealth or any other jurisdiction or

foreign country of an offense punishable by imprisonment of more than one year, or the

petitioner's release from custody following the petitioner's most recent conviction for an

offense, whichever is later.” Id. § 9799.59(a)(1).

[J-34-2025] - 5

The Commonwealth appealed the order to the Superior Court. 23 On February 27,

2023, a panel of that court explained that, by granting Arnett’s PCRA petition, the PCRA

court “declared SORNA’s Subchapter I unconstitutional.”24 Appeals of such orders, the

panel noted, fall within this Court’s exclusive jurisdiction. 25 Thus, the panel transferred

the Commonwealth’s appeal to this Court.

As Arnett’s PCRA petition proceeded through the lower courts, this Court was

considering the legal issue at the heart of Arnett’s challenge to SORNA II. 26 In 2018, the

Chester County Court of Common Pleas declared SORNA II unconstitutional because,

inter alia, the statutory scheme “violated [a sexual offender’s] right to due process by

impairing his right to reputation, as protected by the Pennsylvania Constitution, through

the utilization of an irrebuttable presumption.” 27 On appeal, we were unable to resolve

the issue on the existing record. In large part, the trial court’s ruling was predicated upon

three expert affidavits, to which the Commonwealth stipulated, challenging the legislative

presumption that all sexual offenders pose a high risk of recidivism. 28 Because the trial

23 On May 27, 2022, the PCRA court directed the Commonwealth to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 15,

2022, the Commonwealth timely complied. On July 22, 2022, the PCRA court issued a

Pa.R.A.P. 1925(a) opinion.

24 Commonwealth v. Arnett, 293 A.3d 642, 2023 WL 2232705, at *2 (Pa. Super. Feb.

27, 2023) (memorandum).

25 Id. at *1-2 (quoting 42 Pa.C.S. § 722(7)).

26 See Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020) (“Torsilieri I”).

27 Id. at 574 (summarizing the trial court opinion). The court also held that SORNA

II was unconstitutional because it failed to afford an offender adequate notice and an

opportunity to be heard, violated the doctrine of separation of powers, and deprived an

offender of the right to a trial by jury as provided by the Sixth Amendment to the United

States Constitution. Id. at 574-75.

28 Id. at 594.

[J-34-2025] - 6

court did not have the “benefit of the opposing science,” we remanded the case to the

trial court “to provide both parties an opportunity to develop arguments and present

additional evidence and to allow the trial court to weigh that evidence in determining

whether [the sexual offender] has refuted the relevant legislative findings supporting

[SORNA II].” 29 Notably, in Torsilieri I, only Subchapter H of SORNA II was challenged.

While Torsilieri I percolated in the lower court on remand, Arnett’s appeal reached

this Court. On July 19, 2023, we placed Arnett’s appeal on hold pending a final resolution

in Torsilieri.

On remand, the Torsilieri trial court held three days of evidentiary hearings, at

which three experts testified for the defense that recent empirical data demonstrated that

sexual offenders do not pose a high risk of recidivism. 30 The Commonwealth presented

its own expert, who opined that, because many sexual offenses go unreported, the data

relied upon by the defense experts was unreliable. 31 The trial court credited the defense

experts and rejected the Commonwealth’s expert’s criticism. Thus, the court concluded,

Subchapter H of SORNA II was unconstitutional because it was predicated upon an

irrebuttable presumption that infringed upon an individual’s reputational rights under

Article I, Section 1 of the Pennsylvania Constitution. 32

This Court reversed. To overturn a legislative policy under the irrebuttable

presumption doctrine, a challenger must demonstrate: (1) an interest protected by the

due process clause; (2) utilization of a presumption that is not universally true; and (3) the

29 Id. at 596.

30 Torsilieri II, 316 A.3d at 84.

31 Id.

32 Id. at 85.

[J-34-2025] - 7

existence of a reasonable alternative means to ascertain the presumed fact. 33 Because

the first prong was not disputed, we proceeded directly to the second prong. We noted

that, while this prong suggests that a presumption must be true in every instance, without

exception, such a standard is a practical impossibility. 34 Thus, the question to be asked

is whether there is a verifiable consensus regarding the veracity of the presumption.35

For a sexual offender subject to SORNA II, this is a “heavy burden” to meet. He or she

must “establish that there exists a scientific consensus that sexual offenders pose no

greater risk of committing additional sexual crimes than other groups not subject to similar

registration laws.” 36 A consensus is more than “a mere disagreement among experts” 37

with the status quo. Before a court may take the “extraordinary step” of overturning a

legislative presumption, there must be “clear and indisputable evidence,” “as the General

Assembly made a considered policy choice that sex crimes were uniquely abhorrent to

the victims and society, and relying on the presumption that, as a group, those who

commit such crimes are more likely to commit another crime of a sexual nature.”38

The trial court found that the irrebuttable presumption at the heart of SORNA II

was not universally true. That court determined that there existed a consensus among

the relevant scientists that sexual offenders do not pose a high risk of reoffending. The

court credited the defense experts’ testimony that 80-95% of sexual offenders will not

33 In re J.B., 107 A.3d 1, 15-16 (Pa. 2014).

34 Torsilieri II, 316 A.3d at 98.

35 Id.

36 Id. at 98-99.

37 Id. at 99.

38 Id.

[J-34-2025] - 8

reoffend. 39 Upon review, we held that, by considering individual recidivism rates, the trial

court focused upon the wrong statistical measure. The correct “meaningful statistical

measure,” we explained, is “whether the percentage of those who have committed a

sexual offense and go on to commit a second sexual offense—the group SORNA

targets—is higher than the percentage of those who first commit a non-sexual offense

followed by a second, sexual offense.”40 Applying the correct rubric, we stressed that the

defense experts had “concede[d] that adult sexual offenders reoffend at a rate . . . at least

three times higher than other individuals convicted of non-sexual offenses.” 41 “[R]ather

than refuting it, the evidence supports the legislative presumption; the evidence

validat[ed] the statutory underpinnings” of SORNA II. 42 We thus reversed the trial court,

because the defense had failed to meet its “heavy burden.” 43

We next considered whether SORNA II was punitive in effect. If it were, other

constitutional concerns would arise, such as the doctrine of separation of powers, the

prohibition on cruel and unusual punishments, and the right to trial by jury. When a civil

regulatory scheme is challenged as penal in nature, we apply the analytical framework of

Kennedy v. Mendoza-Martinez. 44 The first part of that rubric requires courts to inquire

whether, by enacting the regulatory scheme, the legislature intended to punish those

39 Id. at 85.

40 Id. at 99.

41 Id.

42 Id. (emphasis in original).

43 Id. at 99-100.

44 372 U.S. 144 (1963).

[J-34-2025] - 9

subjected to its terms or conditions. 45 With regard to Subchapter H of SORNA II, we held,

“the clearly expressed legislative purpose, findings, and declaration of policy all establish

that, rather than intending to punish, the General Assembly desired to enact a civil,

regulatory scheme.” 46

Discerning the General Assembly’s non-punitive intent does not end the inquiry.

The second part of the Mendoza-Martinez framework necessitates an examination of

whether the regulatory scheme is nonetheless punitive in effect, notwithstanding the

legislative intent. For this examination, a court must consider the following seven factors:

[w]hether the sanction involves an affirmative disability or restraint, whether

it has historically been regarded as a punishment, whether it comes into

play only on a finding of scienter, whether its operation will promote the

traditional aims of punishment—retribution and deterrence, whether the

behavior to which it applies is already a crime, whether an alternative

purpose to which it may rationally be connected is assignable for it, and

whether it appears excessive in relation to the alternative purpose

assigned. 47

We reviewed each of the applicable factors 48 and determined that two (factors two

and four) weighed in favor of finding Subchapter H to be punitive, while three (factors one,

six, and seven) favored non-punitivity. We balanced those factors against each other,

and we held as follows:

45 Torsilieri II, 316 A.3d at 102 (citing Torsilieri I, 232 A.3d at 588; Lacombe, 234 A.3d

at 618).

46 Id. In fact, the General Assembly expressly directed to courts that Subchapter H

“shall not be construed as punitive.” 42 Pa.C.S. § 9799.1(b)(2).

47 Mendoza-Martinez, 372 U.S. at 168-69.

48 As we did in Muniz, 164 A.3d at 1214, Lacombe, 234 A.3d at 603-04, 606, and

Torsilieri I, 232 A.3d at 589, we found that factors three—whether the law comes into play

only on a finding of scienter—and five—whether the behavior to which the sanction

applies is already a crime—were not particularly significant in an evaluation of sexual

offender registration statutes and assigned them no weight in the overall balancing of

factors. Torsilieri II, 316 A.3d at 102.

[J-34-2025] - 10

In our view, weighing the Mendoza-Martinez factors does not compel the

conclusion that Subchapter H is punitive. Here, the General Assembly

created a tier-based classification system organized by seriousness of the

offense, which, in turn, is tied to the degree of harm caused by the crime.

This is a policy-based decision vested in the legislature. Like Subchapter I,

we find that Subchapter H significantly changed the original version of

SORNA with the apparent goal of ensuring that the legislation was not

punitive in nature. Indeed, Subchapter H has a significantly less

burdensome impact on the life of the offender than its predecessor.

Moreover, we find compelling the Commonwealth's argument that not only

does Subchapter H offer a valid non-punitive purpose of informing and

protecting the public, but that [the record contained no] compelling evidence

establishing that its registration and notification requirements were

excessive, i.e., not rationally or reasonably related to this legislative

purpose. 49

In sum, while Arnett’s present appeal was on hold, we held in Torsilieri II that

Subchapter H of SORNA II did not violate a sexual offender’s due process rights under

the irrebuttable presumption doctrine and that it was not punitive in its effect on the

offender. Once the opinion issued, we turned our attention back to Arnett’s appeal.

Rather than summarily dispose of that appeal in light of Torsilieri II, we instead decided

to examine, among other things, the propriety of Arnett’s utilization of the PCRA as the

mechanism for challenging the constitutionality of the governing sexual offender

registration law. Thus, on August 20, 2024, we agreed to hear oral arguments in the

case. We directed the parties to provide supplemental briefing that specifically addressed

the following issues:

1. Whether, in light of this Court’s decisions in Commonwealth v. Torsilieri,

316 A.3d 77 (Pa. 2024), and Commonwealth v. Lacombe, 234 A.3d 602

(Pa. 2020), holding that Pennsylvania’s Sex Offender Registration and

Notification Act’s (SORNA) registration requirements are non-punitive,

[Arnett’s] constitutional challenge to Subchapter I of SORNA is properly

brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-[]46?

49 Id. at 109.

[J-34-2025] - 11

2. If so, did the PCRA court have jurisdiction to consider the merits of

[Arnett’s] facially untimely PCRA petition?

3. What effect, if any, does this Court’s decision in [Torsilieri II] have on a

PCRA court’s conclusion that Subchapter I of SORNA imposed an

unconstitutional irrebuttable presumption upon [Arnett]? 50

In the three decades since our General Assembly enacted Megan’s Law I, this

Court never has “required that sexual offender registration statutes be challenged” using

any particular “procedural mechanism.”51 Our hesitation has been due, in large part, to

the “frequent changes to sexual offender registration statutes, along with more onerous

requirements and retroactive application, [which] complicate [a] registrant[’]s ability to

challenge new requirements imposed years after their sentence[] become[s] final.” 52 This

laissez-faire approach has resulted in challenges arising from various procedural starting

points. Williams II began with a challenge to Megan’s Law II lodged in a pre-sentence

“Motion for Extraordinary Relief.” 53 The registrant in Muniz claimed that SORNA I was

unconstitutional in a post-sentence motion (and on direct appeal), 54 as did the challenger

in Torsilieri. 55 The arguments in Lacombe directed at Subchapter I of SORNA II arose in

a “petition to terminate [] sexual offender registration requirements” and in a pro se PCRA

50 Order, 8/20/2024, at 1.

51 Lacombe, 234 A.3d at 617.

52 Id.

53 Williams II, 832 A.2d at 965. There were two challengers to Megan’s Law II in

Williams II: Gomer Williams and Bruce Peters. Like Williams, Peters filed a pre-

sentencing “Motion for Relief.” Id. In both instances, the trial court found Megan’s Law II

to be unconstitutional and granted the respective petitions. Id. at 970.

54 Muniz, 164 A.3d at 1193.

55 Torsilieri II, 316 A.3d at 81-82.

[J-34-2025] - 12

petition. 56 We also have seen constitutional arguments emanate from a “Petition to

Enforce Plea Agreement or for a Writ of Habeas Corpus” 57 and from a petition for a writ

of mandamus. 58

This permissive approach has been understandable, given the fact that, between

successful court challenges and legislative amendment, sexual offender laws frequently

undergo vast and substantial revision. It is not uncommon for offenders subject to one

version of a law to find themselves obliged years later to conform to a new statutory

scheme, one that imposes more stringent requirements on the offenders and that requires

compliance for a much longer period of time. These revisions sometimes occur decades

after an offender has been convicted and sentenced. Consequently, there must be some

flexibility with regard to the manner in which challenges to these laws are brought.

While some latitude is warranted in these circumstances, it does not follow that the

universe of motions or petitions available to a challenger knows no bounds. Each

mechanism, be it a petition for a writ of mandamus, a petition for review in the

Commonwealth Court, a motion for extraordinary relief, etc., can serve only the purposes

for which it exists, and can be invoked only according to that mechanism’s terms and

conditions. That some flexibility is necessary in this dynamic, oft-changing area of law

does not license courts or litigants to disregard jurisdictional or constitutional limitations

or, as is the case here, the intent and plain terms of a statute. We must enforce the law

as written by our legislators. 59 When a statute’s terms preclude that statute from serving

56 Lacombe, 234 A.3d at 606.

57 Commonwealth v. Martinez, 147 A.3d 517, 523 (Pa. 2016).

58 A.S. v. Pa. State Police, 143 A.3d 896, 903 n.7 (Pa. 2016).

59 “The domain of the judiciary is in the field of the administration of justice under the

law; it interprets, construes[,] and applies the law.” Commonwealth v. Sutley, 378 A.2d

780, 783 (Pa. 1977) (quoting Commonwealth v. Widovich, 145 A. 295, 299 (Pa. 1929))

(continued…)

[J-34-2025] - 13

as a vehicle to challenge the constitutionality of a sexual offender regulatory scheme,

those terms must be enforced, especially when those terms relate to cognizability or

jurisdiction. The PCRA’s terms do just that.

Before proceeding to the particulars of the PCRA, we pause to note aspects of

SORNA’s history that substantiate the conclusion that the PCRA cannot serve as a

mechanism for challenging a sexual offender registration law. SORNA I replaced

Megan’s Law as Pennsylvania’s sexual offender regulatory scheme in 2012. In Muniz,

this Court found that SORNA I was punitive in effect and amounted to criminal

punishment. 60 We held that SORNA I’s registration requirements, when applied

retroactively, constituted an unconstitutional ex post facto law. 61 The General Assembly

responded by enacting a new regulatory system. In SORNA II, the General Assembly

bifurcated SORNA within the Sentencing Code, creating two subchapters: Subchapter H

and Subchapter I. The former applies to those sexual offenders whose triggering

offenses were committed on or after December 20, 2012. The latter applies to those

whose offenses occurred before that date.

In Lacombe, this Court considered an ex post facto challenge to Subchapter I of

SORNA II. After applying and balancing the Mendoza-Martinez factors, this Court held

that the General Assembly had remedied the constitutional defects that plagued SORNA

I 62 and that Subchapter I of SORNA II was not punitive in effect and, thus, did not

(footnote omitted); see also Commonwealth v. Small, 238 A.3d 1267, 1284 (Pa. 2020)

(“Courts must apply statutes as they are written.”).

60 Muniz, 164 A.3d at 1218.

61 Id.

62 Lacombe, 234 A.3d at 626 (“As the above Mendoza-Martinez analysis clearly

reflects, Subchapter I effected significant changes from the original version of SORNA,

retroactive application of which we found unconstitutional in Muniz.”).

[J-34-2025] - 14

constitute a criminal punishment. 63 Later, in Torsilieri II, we held the same with regard to

Subchapter H of SORNA II in Torsilieri II. 64 The legal character of both subchapters of

SORNA II is now settled. Neither constitutes criminal punishment. Because the PCRA

applies only to those matters related to a conviction or sentence, the legal designation is

largely dispositive of the question at bar.

We begin with the PCRA’s stated purposes. The statute states, in no uncertain

terms, that the PCRA “provides for an action by which persons convicted of crimes they

did not commit and persons serving illegal sentences may obtain collateral relief.” 65 A

challenge to the constitutionality of SORNA II’s registration and reporting requirements

does not relate to either of these purposes. A successful constitutional challenge to this

regulatory scheme would have no impact upon the criminal conviction(s) that subjected

the offender to SORNA II in the first place, nor would it alter the offender’s sentence or

require resentencing. Because such a challenge does not fall within the ambit of the

PCRA’s dual purposes, it follows that the General Assembly did not intend for the PCRA

to “provide for an action” challenging a non-punitive regulatory scheme. In fact, the PCRA

states that it “is not intended . . . to provide relief from collateral consequences of a

criminal conviction.” 66 The PCRA exists to provide a means to challenge collaterally a

criminal defendant’s conviction or sentence, not the non-punitive consequences

attendant to that conviction or sentence.

63 Id. at 626-27 (“We hold [that] Subchapter I does not constitute criminal

punishment[.]”).

64 Torsilieri II, 316 A.3d at 109-110.

65 42 Pa.C.S. § 9542.

66 Id.

[J-34-2025] - 15

The availability of the PCRA as a mechanism to challenge SORNA II is precluded

not only by the PCRA’s intent, but by the statute’s terms as well. Subsection 9543 of the

PCRA—entitled “Eligibility for relief”—establishes the criteria that a PCRA petitioner must

meet in order to be eligible for relief. 67 A petitioner must “plead and prove by a

preponderance of the evidence” that he is “currently serving a sentence of imprisonment,

probation or parole for the crime,” or that he is “awaiting execution of a sentence of death

for the crime.” 68 This criterion demonstrates that the General Assembly did not intend the

PCRA to be used to test the constitutionality of non-punitive civil statutory schemes. An

offender’s obligation to register under SORNA II does not begin until he or she is released

from prison, and that obligation can last for at least a decade and, for many, a lifetime.

The vast majority of registration obligations will persist long after an offender completes

his or her sentence, at which point the offender is no longer eligible to seek PCRA relief.

This is not the population upon which the General Assembly intended to confer an avenue

for relief when it created the PCRA.

For those that are serving a sentence (or awaiting execution), the PCRA lists the

types of claims that may be raised in a petition for relief. A petitioner may assert a violation

of his or her constitutional rights, may claim that counsel was ineffective, may argue the

existence of newly-discovered evidence, may complain that his or sentence is illegal,

etc. 69 These claims are cognizable only if the asserted error or violation contributed in

some way to the “sentence or conviction.”70 By its unambiguous terms, the PCRA is

confined to collateral attacks on a conviction or sentence. Lacombe and Torsilieri II

67 Id. § 9543.

68 Id. § 9543(a)(1)(i)-(ii).

69 Id. § 9543(a)(2)(i)-(viii).

70 Id. § 9543(a)(2).

[J-34-2025] - 16

establish that SORNA II is not a criminal punishment. Hence, a constitutional challenge

to SORNA II”s registration terms (and other obligations) is not related to the offender’s

“sentence or conviction.” Such a claim is not cognizable under the PCRA. 71

For these reasons, the PCRA is precluded by its own terms from being invoked as

a means to challenge the constitutionality of a non-punitive sexual offender regulatory

scheme. 72 Because the PCRA was not available to Arnett, we need not consider the

second question upon which we directed supplemental briefing in this case—whether

Arnett established the PCRA court’s jurisdiction over his facially untimely petition. 73 That

question is now moot.

We do not dismiss Arnett’s petition with prejudice. As noted earlier, Arnett styled

his petition as both a PCRA petition and a petition for a writ of habeas corpus. The PCRA

court appointed counsel to assist Arnett. Appointed counsel filed an amended petition,

which counsel also styled as both a PCRA petition and a petition for a writ of habeas

71 Challenging SORNA II under the PCRA is complicated further by the PCRA’s

jurisdictional time limit. To be timely, and thus invoke the PCRA’s court’s jurisdiction, a

PCRA petitioner must file a petition within one year of his or her judgment of sentence

becoming final. 42 Pa.C.S. § 9545(b)(1). The vast majority of sexual offenders, whose

SORNA II obligations commence upon release from prison, will be jurisdictionally barred

from seeking relief under the PCRA because their judgments of sentence finalized long

before the first time they appear before the PSP to register as a sexual offender. The

only option to circumvent the time bar is to plead and prove one of these statutory

exceptions: (1) governmental interference; (2) the discovery of a newly-discovered fact;

or (3) the novel recognition of a constitutional right that applies retroactively. Id. §

9545(b)(1)(i)-(iii). Facially, neither the governmental interference exception nor the

retroactive constitutional right exception facially is applicable. And, even if a change in

the law could be considered a newly-discovered fact, a sexual offender still would not be

able to demonstrate that his or her claim is cognizable.

72 Our holding depends in substantial part upon our determinations that SORNA II,

in its current form, is non-punitive in effect. If a future iteration of SORNA is found to be

punitive, today’s ruling will require reconsideration.

73 Order, 8/20/2024, at 1.

[J-34-2025] - 17

corpus. While we reject Arnett’s use of the PCRA, his pursuit of a writ of habeas corpus

remains. Consistent with this Court’s decision in Lacombe not to limit the mechanisms

available to a challenger without full development of the issue, 74 and although both the

Commonwealth and Arnett agree that a petition for a writ of habeas corpus (and a petition

for a writ of coram nobis) is a feasible method of challenging SORNA II, 75 we leave

consideration of the viability of other non-PCRA mechanisms for another day. We

directed the parties to brief only the availability of the PCRA. Consideration of any other

mechanisms would exceed the scope of that directive.

Justice Brobson would decide the issue now. He would hold that a petition for a

writ of habeas corpus is not available to challenge the legality or constitutionality of

SORNA. He would rule that the lower court lacked subject matter jurisdiction in this

case. 76 However, doing so would vitiate the restraint that we deemed necessary in this

context in Lacombe. Although a court may consider matters pertaining to subject matter

jurisdiction sua sponte, 77 we have declined to do so where no party has raised a fully

developed argument against the mechanism used by a sexual offender to challenge the

constitutionality of SORNA. 78 In Lacombe, where no such challenge was developed, we

found that subject matter jurisdiction existed and addressed the merits of only the issues

74 See Lacombe, 234 A.3d at 618.

75 See Supplemental Br. for the Com. at 6-7; Supplemental Br. for Arnett at 10.

76 See Conc. and Diss. Op. at 3-5.

77 Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974) (“Whether a court has

subject matter jurisdiction over an action is a fundamental issue of law which may be

raised at any time in the course of the proceedings, including by a reviewing court sua

sponte.”) (emphasis added).

78 See Lacombe, 234 A.3d at 617-18.

[J-34-2025] - 18

raised in the appeal. 79 We did not venture into any unraised matters. Our reluctance to

dismiss an action in this context on jurisdictional grounds sua sponte stems from the fact

that SORNA frequently undergoes substantial legislative revisions, imposing upon

offenders new and different requirements, often years after a sentence becomes final. 80

Here, the principal parties do not dispute meaningfully the propriety of the use of habeas

corpus petitions to challenge SORNA. Only the OAG takes the opposite position, and

only briefly, which leaves us with, at best, a one-sided argument. Thus, we exercise the

same restraint that we found to be imperative in Lacombe and we decline to review the

matter further. 81

Justice Brobson would forge ahead. Although Justice Brobson agrees that the

PCRA cannot be used to contest SORNA’s requirements, 82 he then asks “what vehicle

may Arnett use to challenge the constitutionality of those requirements and what court

79 Id. at 618 (“[W]e decline to find the PCRA, or any other procedural mechanism, is

the exclusive method for challenging sexual offender registration statutes and we thus

conclude the trial court had jurisdiction to consider Lacombe's ‘Petition to Terminate His

Sexual Offender Registration Requirements.’”).

80 See id. at 617 (“Our approach in this regard takes into account the fact that

frequent changes to sexual offender registration statutes, along with more onerous

requirements and retroactive application, complicate registrants’ ability to challenge new

requirements imposed years after their sentences become final.”).

81 We do not cavalierly “waive off jurisdictional concerns,” as Justice Brobson alleges.

Conc. and Diss. Op. at 2. We are instead adhering to the protocol agreed upon by a

majority of Justices in Lacombe. Justice Brobson questions our “commitment to restraint”

because we address the merits of the lower court’s decision without addressing whether

a habeas corpus petition suffices to invoke that court’s jurisdiction. See Conc. and Diss.

Op. at 7 n.4. We hold the contrary perspective: in declining to address questions not

prompted by the questions upon which we directed supplemental briefing, and in

confining ourselves to the issues fully developed by the parties, our “commitment to

restraint” is clear.

82 Conc. and Diss. Op. at 2.

[J-34-2025] - 19

has jurisdiction over the matter?”83 Ignoring the approach that we adopted in Lacombe,

Justice Brobson suggests that a writ of mandamus filed in the Commonwealth Court’s

original jurisdiction is the proper mechanism when a party files an action against the PSP

seeking removal from SORNA’s registry. This conclusion may have some facial appeal

and statutory support. 84 However, neither SORNA’s text or history, nor this Court’s

precedents, require all claims for SORNA relief be funneled exclusively into one particular

court. In fact, SORNA does not divest courts of common pleas of jurisdiction entirely.

SORNA directs sexual offenders seeking to be removed from the registry via SORNA’s

removal mechanism to file such petitions with the sentencing court, not with the

Commonwealth Court. 85 Having envisioned a role for courts of common pleas, it is not

at all clear that the General Assembly intended that those courts—who are tasked with

determining whether an offender is a sexually violent predator, ordering an offender to

comply with SORNA at sentencing, presiding over trials for offenders charged with failing

to comply with SORNA’s obligations, and deciding whether an offender should be

released from those obligations—be stripped of jurisdiction to hear any other SORNA-

related claims. It is a question we should only decide in the normal course, with briefing

and argument.

The need to proceed with caution becomes evident upon a cursory review of the

issue. The question of whether habeas corpus is available to challenge SORNA is not

one that can be summarily decided, as Justice Brobson would. Historically, the

availability of habeas corpus has been limited to those in custody, 86 or to those facing the

83 Id.

84 See id. at 5 n.1 (citing 42 Pa.C.S. § 761(a)(1)(b)).

85 See 42 Pa.C.S. § 9799.59 (a)(2).

86 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

[J-34-2025] - 20

possibility of being placed in custody. 87 Although we have held that SORNA is not

punitive, and, therefore, not a criminal sentence, we twice have held that SORNA’s

obligations create a regulatory scheme that is akin to a traditional sentence of probation. 88

A violation of these probation-like conditions results in a new criminal charge and a

potential new sentence. 89 Thus, we have at least acknowledged that SORNA operates

in some ways like a traditional form of criminal punishment and, once subject to its terms

and conditions, future incarceration is a possibility. 90 Whether those factors suffice to

allow SORNA to be challenged via a petition for a writ of habeas corpus is far from clear,

and is not a decision that should be made in a cursory fashion. Such arguments (and

any others) should be raised and developed by trained advocates, not by this Court. For

this reason, we decline to opine on any issues beyond those necessary to dispose of the

present appeal.

Thus, to the extent that Arnett’s petition constitutes a habeas corpus petition, we

do not dismiss it in its entirety. Instead, we proceed to the question of “what effect, if any,

does this Court’s decision in Torsilieri II have on a PCRA court’s conclusion that

Subchapter I of SORNA II imposed an unconstitutional irrebuttable presumption upon

87 U.S. ex rel. Dessus v. Com. of Pa., 452 F.2d 557, 559–60 (3d Cir. 1971) (noting

that “the sine qua non of federal habeas corpus jurisdiction is that petitioner be in custody.

. . . Thus, custody is the passport to federal habeas corpus jurisdiction. Without custody,

there is no detention. Without detention, or the possibility thereof, there is no federal

habeas jurisdiction.” (cleaned up) (emphasis added)).

88 See Lacombe, 234 A.3d at 623; Torsilieri II, 316 A.3d at 105.

89 See 18 Pa.C.S. § 4915.1 (grading an offender’s failure to comply with Subchapter

H’s registration, counseling, and reporting requirements a felony); § 4915.2 (grading an

offender’s failure to comply with Subchapter I’s registration, counseling, and reporting

requirements a felony).

90 See U.S. ex rel. Dessus, 452 F.2d at 460 (indicating that even the possibility of

incarceration is sufficient to warrant habeas corpus review).

[J-34-2025] - 21

Arnett?” 91 The answer is straightforward. Torsilieri II requires that we vacate the PCRA

court’s order.

In Torsilieri II, we considered whether “the General Assembly’s determination . . .

that individuals who commit sexual offenses pose a high risk of committing additional

sexual offenses constitutes an unconstitutional irrebuttable presumption violative of due

process, because it impairs the right to reputation under the Pennsylvania Constitution.”92

Arnett raised a nearly identical question in his “Amended PCRA Petition/Motion for Writ

of Habeas Corpus.” 93 However, Arnett argues that Torsilieri II is not controlling here,

because that case involved a challenge to Subchapter H of SORNA II whereas his

challenge is directed at Subchapter I. He contends, inter alia, that, because Subchapter

I applies retroactively, while Subchapter H applies prospectively, the two subchapters

must be treated differently. The evidence that this Court found insufficient to invalidate

the irrebuttable presumption in Torsilieri II has no applicability here, Arnett maintains,

because that evidence was directed at offenders subject to Subchapter H, not those

subject to Subchapter I, many of whom necessarily are older and farther removed from

the time of their crimes. According to Arnett, due to their age, Subchapter I offenders are

less likely to recidivate, so the standards applicable to Subchapter H offenders should

have no bearing here. 94 We disagree.

91 Order, 8/20/2024, at 1 (cleaned up).

92 Torsilieri II, 316 A.3d at 79.

93 See “Amended PCRA Petition/Motion for Writ of Habeas Corpus,” 3/5/2021, at 4-

5 (unpaginated).

94 Arnett also argues that Torsilieri II should not govern his constitutional challenge

because he raised an as-applied challenge, not a facial challenge. However, it is not at

all clear that he raised an as-applied challenge in the court below. In his amended

petition, Arnett supported his constitutional argument with broad, group-based empirical

data. None of the arguments focus upon his individual circumstances, age, etc. Arnett

(continued…)

[J-34-2025] - 22

Subchapter H and Subchapter I are in many ways the same. Subchapter I applies

only to those whose offenses were committed before December 20, 2012. Subchapter

H governs those whose offenses occurred thereafter. Both subchapters require a sexual

offender to comply with SORNA II’s numerous obligations for lengthy periods of time. And

both require the offender to report in person to the Pennsylvania State Police, and to

update that agency when the offender changes addresses, employment, and educational

status. Both require the offender’s photograph and personal information to be displayed

on a publicly accessible website. Failure to comply with the terms and conditions of either

subchapter constitutes a separate criminal offense. 95

In some ways, the subchapters are different. Because Subchapter I applies

retroactively, and thus is subject to ex post facto concerns, some of its requirements are

less stringent than those imposed by Subchapter H. For instance, a Tier III sexual

offender subject to Subchapter I must report in person to the PSP once per year,96

whereas under Subchapter H, a Tier III offender must report quarterly. 97 And, Arnett’s

premise is correct: Subchapter I offenders, generally, are older and further removed

temporally from their crimes than Subchapter H offenders.

makes no argument that the presumption that sexual offenders are more likely to

recidivate is inapplicable to him. Nor did he adduce any evidence at the PCRA hearing

specifically related to his circumstances and how they differ from the underlying

irrebuttable presumption. Regardless, because both an as-applied challenge and a facial

challenge stem from the same presumption, which is evaluated using the same legal test,

the outcome in this instance would be the same.

95 For a detailed description of the terms and conditions of Subchapter I, see

Lacombe, 234 A.3d at 615-17; for Subchapter H, see Torsilieri II, 316 A.3d at 123-28

(Wecht, J., concurring and dissenting).

96 See 42 Pa.C.S. § 9799.60(b).

97 Id. § 9799.15(e)(3).

[J-34-2025] - 23

However, the differences between the subchapters are irrelevant for present

purposes. None of these differences distinguish Subchapter I from Subchapter H for

purposes of applying our ruling in Torsilieri II. This is because both subchapters are

predicated upon the same presumption. In Subsection 9799.11(a) of Subchapter H, the

General Assembly stated as one of its “findings” the legislative judgment that “[s]exual

offenders pose a high risk of committing additional sexual offenses and protection of the

public from this type of offender is a paramount governmental interest.” 98 In Subsection

9799.51(a) of Subchapter I, the General Assembly declared that sexual offenders “pose

a high risk of engaging in further offenses even after being released from incarceration or

commitments, and protection of the public from this type of offender is a paramount

government interest.”99 The presumptions for all relevant purposes are the same. We

must treat them the same.

In Torsilieri II, we held that the presumption did not violate sexual offenders’ due

process or reputational rights. Because the expert testimony in that case confirmed that

“adult sexual offenders reoffend at a rate of at least three times higher than other

individuals convicted of non-sexual offenses,” we opined that the relevant scientific data

supported the legislative presumption. 100 Arnett has offered no evidence to counter this

conclusion. Arnett presented no evidence at his PCRA hearing, let alone expert

testimony, to support his argument that he is not one of those sexual offenders likely to

reoffend or that those subject to Subchapter I differ substantively from those “adult sexual

offenders” that we considered in Torsilieri II. Because Subchapter I and Subchapter H

98 Id. § 9799.11(a)(4).

99 Id. § 9799.51(a)(2).

100 Torsilieri II, 316 A.3d at 99.

[J-34-2025] - 24

arise from the same presumption, and because we upheld that presumption in Torsilieri

II, we discern no basis on this record to deviate here.

Torsilieri II controls the disposition of this case. The lower court erred in ruling

Subchapter I of SORNA II unconstitutional. We vacate the lower court’s order, and we

dismiss Arnett’s petition.

Chief Justice Todd and Justices Donohue, Dougherty, Mundy and McCaffery join

the opinion.

Justice Brobson files a concurring and dissenting opinion.

[J-34-2025] - 25