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Declining to weigh in on whether defendants deemed sexually violent predators (SVPs) should eventually be given the chance to prove they are not, a Superior Court panel has affirmed the sentence of a Bucks County man who in late 2003 pleaded guilty to sexually abusing his pre-adolescent stepdaughter. But the 30-page opinion in Commonwealth v. Mullins does bring to the forefront questions concerning the permanency of SVP designations under Pennsylvania law. Writing on behalf of the panel, Judge John T. Bender noted that state Supreme Court precedent has not made clear whether SVPs such as Thomas Mullins – who hopes to one day be rid of that designation – have to prove that they are no longer a substantial risk to the community or that they are fully cured. That lack of clarity could result in future court battles because, as Bender points out in a footnote to his opinion in Mullins, Pennsylvania’s current incarnation of Megan’s Law allows SVPs to petition for exemption from certain notification provisions, but not for termination of that status. Bender was joined by Judges Debra Todd and Susan Peikes Gantman. Mullins and other SVPs sentenced between 2000 and early January 2005 – when Pennsylvania’s Megan’s Law II was still in effect – were not originally afforded the option of seeking notification exemptions. However, Megan’s Law I – which covered offenders whose cases were handled between 1995 and 2000 – provided for possible reconsideration of a convict’s SVP status. According to the opinion, when Mullins pleaded guilty before Bucks Common Pleas Judge Mitchell S. Goldberg in November 2003, the court heard that Mullins had first started molesting his victim before she began the second grade and that he would typically abuse her when her mother – his wife – was traveling. After Mullins pleaded guilty, Goldberg ordered that he be subject to review by the state’s Sexual Offenders Assessment Board, as called for by the various versions of Megan’s Law, including Megan’s Law II, which was in effect when Mullins’ case was handled. Ultimately, Goldberg was convinced during a May 2004 hearing that an SVP designation was warranted in Mullins, and Mullins was sentenced to an aggregate of six to 12 years’ incarceration. Mullins soon filed a motion challenging the constitutionality of Megan’s Law II; he called attention to the fact that that version of the law did not allow him to petition for termination of his SVP status. Eventually, both sides presented oral arguments on the issue before a panel consisting of Mullins and fellow Bucks Common Pleas Judges John J. Rufe and Albert J. Cepparulo. Bucks County Chief Deputy District Attorney Robin Twombly, who has headed the prosecution’s case in Mullins, said that those hearings marked the second time in her six years in the county that a three-judge common pleas panel has heard oral arguments. The other instance was Megan’s Law-related as well, Twombly noted. The common pleas panel in Mullins rejected Mullins’ constitutional objections in a February 2005 opinion. “As the trial court in the instant case noted,” Bender wrote, “it is not clear if the [state Supreme] Court, based on [its Megan's Law-related precedent], intended that a petitioner establish that he was no longer a substantial risk to the community or that he was fully cured in order to merit termination of his SVP designation. “Nevertheless . . . we agree with the trial court that [Mullins] met neither evidentiary standard to warrant finding Megan’s Law II unconstitutional on the basis of excessiveness.” Bender was specifically referring to Justice Thomas G. Saylor’s lead 2003 opinion in Commonwealth v. Williams. (In its 1999 decision in Commonwealth v. Donald Francis Williams, often referred to as Williams I, the high court struck down as unconstitutional certain provisions of Megan’s Law I; Williams II, whose full caption is Commonwealth v. Gomer Robert Williams, declared that the registration and notification provisions of Megan’s Law II were not punitive in nature.) According to Bender, the trial court’s opinion states that the Williams II court had “left open the question of whether Megan’s Law II could withstand a constitutional challenge in a case where the evidence on record rebuts the underlying legislative findings and/or proves the possibility of successful treatment for SVPs, inviting challengers to establish such a record.” Mullins is presently unable to meet that “high evidentiary standard,” Bender wrote. But in a footnote, he wrote that there is “no reason why [Mullins] could not utilize” the Megan’s Law III provision allowing SVPs to seek exemption from certain of the law’s notification requirements. Mullins’s attorney of record in his case, Christa Schott of the Bucks County Public Defender’s Office, did not respond to calls seeking comment. Twombly said the Bucks County District Attorney’s Office is pleased with the Superior Court’s decision. (Copies of the 30-page opinion in Commonwealth v. Mullins , PICS No. 06-1095, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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