Inmate loses court challenge

Hesley contested sexually violent predator finding

A Bedford County man who entered a no contest plea in 2010 to the rape of a child has lost his challenge to a court finding that he was a sexually violent predator, which means he must register as sex offender.

Albert Lee Hesley, 49, is serving a state prison term of eight to 16 years at the State Correctional Institution at Marienville, Forest County.

Since his sentence, Hesley has challenged his classification as a violent predator, a designation that has been upheld by the Pennsylvania Superior Court in at least one past decision.

On Friday, a Superior Court panel upheld a decision without a hearing by visiting Judge Todd M. Sponseller of Franklin County, dismissing Hesley’s latest appeal to the predator designation.

Hesley, through his appeals attorney, Mark S. Zearfaus of Altoona, contended that recent state Supreme Court decisions have opened the door for him to challenge his status as a child predator.

The Superior Court panel ruled that Hesley’s most recent appeal was untimely. A post-conviction petition must be filed within one year from the point when a sentence becomes final.

If the post-trial petition is declared untimely, neither the appeals court nor court of common pleas has jurisdiction over the petition, and therefore does not have the jurisdiction to address the claims.

In the Hesley case, his appeals were exhausted. and his sentence became final on Sept. 22, 2014, which means he had until Sept. 22, 2015, to file his most recent petition.

The petition before the court last week was filed Aug. 20, 2018.

Zearfaus argued an exception to the time limit should be allowed because of court rulings.

Pennsylvania’s child abuse laws state that sex offenders are required to periodically register with the state police, depending on the seriousness of the offenses they commit.

Over the years, however, the registration requirements have been altered.

Hesley was declared a predator under what was known as Megan’s Law.

Since then, there have been two versions of a new set of registration regulations under the Pennsylvania Sex Offender Registration and Notification Act, which was patterned after federal law.

In a landmark case, Commonwealth v. Muiz, the state Supreme Court found that applying tougher SORNA regulations to offenders convicted under Megan’s Law was a constitutional violation of both the state and U.S. Constitutions.

In a second case, Commonwealth v. Butler, the Supreme Court ruled that SORNA’s SVP designation violated the state and federal constitutions because it increased the criminal penalty to which a defendant is exposed without a fact-finder (a jury or judge) determination of the findings beyond a reasonable doubt.

The Superior Court ruled with respect to Hesley’s argument that the Butler case so far has not been made retroactive to pre-SORNA SVP rulings .

“The holding in Butler does not apply to SVP findings made pursuant to Megan’s Law, nor have our appellate courts held that Butler may be applied retroactively to pre-SORNA SVP designations,” the ruling on Friday stated.

The three-judge panel found that the defense in the Hesley case had failed to show an exception to the timeliness requirements.

In a footnote to the opinion, it stated that if the Pennsylvania Supreme Court eventually determines the Butler case applies retroactively, then Hesley will have a year to file another post-trial petition attempting to challenge his sexually violent predator designation.

Hesley was charged in both Mifflin and Bedford counties with the sexual abuse of a former girlfriend’s young child.

He was originally charged in Bedford County with 56 offenses including child rape, involuntary deviate sexual intercourse, unlawful contact with a minor and indecent assault.

He entered a no-contest plea to one count of child rape in Bedford and one county of involuntary deviate sexual intercourse in Mifflin County and received concurrent sentences.