State v Dykes

5-9-2012 South Carolina:

State v Dykes

Jennifer Rayanne Dykes appeals the circuit court's order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes' substantive due process rights and reverse and remand for further proceedings.

Case turns on:
Before analyzing the right argued by Dykes, we note that we must tread carefully in this arena. Over the years, the Supreme Court of the United States has expanded the liberty interest protected by the Due Process Clause beyond the specific freedoms contained in the Bill of Rights. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that the Supreme Court has found the right to marry, have children, direct the education of one's children, marital privacy, use contraception, retain bodily integrity, and receive an abortion are all protected). The Supreme Court, however, "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this uncharted area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Furthermore, when a court deems a right fundamental under the umbrella of substantive due process, it effectively removes the matter from discussion and legislative debate. Glucksberg, 521 U.S. at 720. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court." Id. (internal citations and quotations omitted).

....

Having served her sentence, I believe Appellant possesses a liberty interest that is violated by the mandatory, non-reviewable provisions of section 23-3-540(C). Applying the rational basis test to Appellant's due process challenge, I would find the mandated lifetime satellite monitoring and absence of any judicial review related to an assessment of an individual's likelihood of re-offending renders the challenged provision arbitrary. Further, in light of the legislature's predication of the statutory scheme on the substantial purpose of protecting the public from sex offenders who may re-offend, I would find the lack of risk assessment within section 23-3-540(C) not rationally related to such purpose, and thus unconstitutional. See Addington v. Texas, 441 U.S. 418 (1979) (finding an individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by clear and convincing proof); Kansas v. Hendricks, 521 U.S. 346 (1997) (upholding sexually violent predator commitment statute and emphasizing the role of the review to ensure commitment lasts only so long as it is necessary to protect the public); see also Lyng v. Int'l Union, 485 U.S. 360 (1988) (noting that although allegedly arbitrary legislation invokes the least intrusive rational basis test, that standard of review is "not a toothless one"); Luckabaugh, 351 S.C. at 139-40, 568 S.E.2d at 346 (finding due process ensures that a statute which deprives a person of a liberty interest has "at a minimum, a rational basis, and may not be arbitrary").

I believe the finding of arbitrariness is additionally supported by the South Carolina Constitution, which, unlike the United States Constitution, has an express privacy provision. See S.C. Const. art. I, § 10 ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated . . . ."). While our constitution's privacy provision does not transform a purported privacy interest into a fundamental right for purposes of applying the strict scrutiny test, I believe it does inform the analysis of whether a state law is arbitrary and lends additional support to the conclusion that section 23-3-540(C) is unconstitutional. Cf. State v. Weaver, 374 S.C. 313, 649 S.E.2d 479 (2007) (holding that by articulating a specific prohibition against unreasonable invasions of privacy, the people of South Carolina have indicated a higher level of privacy protection than the federal Constitution).

Therefore, I concur in result to reverse and remand.

The rest of the case is worth reading.

State v Kimbrough

4-20-2012 Ohio:

State v Kimbrough

The essence of this is, that AWA/SORNA changed the penalty for failure to register, and that new penalty cannot be applied to folks who were previously registered (before AWA/SORNA was enacted in Ohio)

The court said:

The state of Ohio appeals from the termination entry ordering defendant-appellee Robert Kimbrough to serve five years of community-control sanctions for failing to notify the sheriff of Montgomery County that he had changed his address as required by R.C. 2950.05(A).

In December 2005, Kimbrough was convicted of gross sexual imposition and two counts of rape. He, therefore, became subject to the notification requirements of Ohio’s version of Megan’s Law. See former R.C. Chapter 2950. At the time, former R.C. 2950.05(A) required those required to register under R.C. 2950.04 to notify the sheriff “at least twenty days prior to changing the offender’s . . . residence address * * * .” Former R.C. 2950.05(F)(1) provided: “No person who is required to notify a sheriff of a change of address pursuant to division (A) of this section shall fail to notify the appropriate sheriff in accordance with that division.” A violation of former R.C. 2950.05 was a third-degree felony. Former R.C. 2950.99(A)(1)(a)(i).

In 2007, the General Assembly enacted the Ohio version of the federal Adam Walsh Act, P.L. No. 109-248, 120 Stat. 587, codified at Section 16901 et seq., Title 42 U.S. Code.

The Ohio version included two parts: (1) 2007 Am.Sub.S.B. No. 10, which adopted a three-tiered system of sex offender classification that depended upon the identity of the sex offense of which the offender was convicted, with different, and generally more onerous, reporting, notification, and registration requirements; and (2) 2007 S.B. 97, which changed the penalties attached to conviction for failure to comply with requirements, and, in many situations, enhanced those penalties. Both parts of the Adam Walsh Act became effective on January 1, 2008. State v. Buelow, 2d Dist. Montgomery No. 24570, 2012-Ohio-832, ¶ 6.

R.C. 2950.05 continues to provide that those offenders required to register under R.C. 2950.04 shall notify the sheriff of any change in residence address “at least twenty days prior to changing the address * * * .” R.C. 2950.05(A). And as before, R.C. 2950.05(F)(1) states that “[n]o person who is required to notify a sheriff of a change of address pursuant to division (A) of this section * * * shall fail to notify the appropriate sheriff in accordance with that division.” But now, under R.C. 2950.99,

If the most serious sexually oriented offense * * * that was the basis of the * * * change of address notification * * * is a felony of the first, second, third, or fourth degree if committed by an adult * * * the offender is guilty of a felony of the same degree as the most serious sexually oriented offense * * * that was the basis of the notice of * * * change of address * * * requirement that was violated * * * .” R.C. 2950.99(A)(1)(a)(ii).

Nevertheless, this court has recognized that application of the Adam Walsh Act classification scheme and reporting, notification, and registration requirements to someone who committed his or her offense before the enactment of the Adam Walsh Act constitutes a retroactive application of a punitive statute, in violation of the Retroactive Laws prohibition in Article II, Section 28, of the Ohio Constitution. Buelow at ¶ 7, citing State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.

Following this precedent, we overrule the state’s single assignment of error and affirm the judgment of the trial court.

State v Coman

3-30-2012 Washington:

State v Coman

Another case of statutory construction. Effectively this fellow convicted of bestiality did not have to register as a sex offender because these statutes did not support doing that for bestiality.

Key part of decision:
Joshua Coman pled guilty to misdemeanor criminal sodomy, as defined in K.S.A. 21-3505(a)(1), based upon an incident with a dog. The Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., requires registration for those who commit sexually violent crimes. KORA's definition provision, K.S.A. 22-4902, includes a list of crimes that are per se "sexually violent crimes," i.e., crimes which always require KORA registration.

But the list, under K.S.A. 22-4902(c)(4), only includes felony criminal sodomy as defined in K.S.A. 22-4902(a)(2) and (3), and omits the misdemeanor criminal sodomy for which Coman was convicted. Nevertheless, in addition to specifically named crimes, the list includes a catch-all provision under K.S.A. 22-4902(c)(14), which requires registration for those committing sexually motivated acts. The district court found that Coman was required to register because the act giving rise to his conviction for the unlisted version of criminal sodomy was sexually motivated.

Coman appealed, and a divided Court of Appeals panel affirmed the district court's registration order. State v. Coman, 42 Kan.App.2d 592, 214 P.3d 1198 (2009). We granted review. Construing the applicable statute as a whole, we hold that the legislature did not intend to include the acts constituting the sex crime defined in K.S.A. 21-3505(a)(1) to be included within the catch-all provisions of K.S.A. 22-4902(c)(14). Accordingly, we reverse both the Court of Appeals and the district court.

State v Caton

4-5-2012 Washington:

State v Caton

This is a very interesting case of statutory interpretation, and this time the registrant WON! The main reason for posting this is, when trying to fight a failure to register, one MUST always consider changes to the laws and when those changes occurred.

The court begins:
The Lewis County Superior Court found Michael Caton guilty of failure to report as a sex offender under former RCW 9A.44.130 (2008). Caton appealed, arguing among other things that the evidence did not support his conviction. The Court of Appeals affirmed the conviction. State v. Caton, 163 Wn.App. 659, 260 P.3d 946 (2011). Caton filed a petition for review. Because the evidence was insufficient, we grant the petition and reverse the conviction.

Key part of decision:
The information charged Caton with violating the statute by "knowingly and unlawfully ... failing to report in person to the Lewis County Sheriff's office on the required day for the 90 day reporting requirement." CP at 1. The superior court found that Caton failed to report on the date specified by the sheriff and thus determined that he was guilty of violating former RCW 9A.44.130(7) as charged.

But former RCW 9A.44.130(7) did not clearly make it a criminal offense to fail to report on the date specified by the sheriff. The statute at the outset only required offenders to "report, in person, every ninety days to the sheriff of the county where he or she is registered." Although the second sentence stated that "[r]eporting shall be on a day specified by the county sheriff's office," the statute went on to state that an offender who complied "with the ninety-day reporting requirement with no violations for a period of at least five years in the community may petition the superior court to be relieved of the duty to report every ninety days." Former 9A.44.130(7).

The gravamen of the offense is failure to report every 90 days, not failure to report on a specific date. To the extent the statute can be read as making it an offense to not report on the sheriff's specified date, even if the offender reports within the 90-day period, it is ambiguous. It is further ambiguous as to the event triggering the 90-day reporting period. State v. Kintz, 169 Wn.2d at 562 (statute is ambiguous if it remains subject to multiple interpretations after analyzing its plain language). In this circumstance, the rule of lenity requires the statute to be construed in favor of the defendant, absent clear legislative intent to the contrary. Id.

Interpreting the statute in this manner, the State did not prove that Caton failed to report within 90 days of the date of his registration. He reported on June 10, 2009, and again on June 17, 2009, both dates well within 90 days of registration on May 19, 2009. We reverse Caton's conviction.

State v Tober

3-29-2012 Texas:

State v Tober

The State of Texas appeals the trial court's pre-trial determination and finding of entrapment as a matter of law in favor of the accused, appellee, Anthony Tober. See TEX. CODE CRIM. PROC. ANN. art. 28.01 § 1(9) (West 2006); TEX. PENAL CODE § 8.06 (West 2011); see also Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App. 2005) (listing the elements a defendant must establish to present a prima facie case of entrapment). We dismiss the State's appeal for want of appellate jurisdiction.

At his pre-trial hearing on his motion on entrapment, Tober testified that around the time of December 2010, he was homeless, without proper photo identification, and was denied entry into the Corpus Christi Police Department in order to register as required. The Corpus Christi Police Department's internal policy requires all visitors to present themselves at a security checkpoint and show photo identification prior to gaining access to the building. Tober testified that sometime before an attempt to re-register at the police station, he lost his driver's license and was unable to obtain a new one because he lacked a physical address. As a result, Tober was denied entry into the police station to register as he was required to do under the law, and was in violation of the registration statute.

Additional testimony was elicited from Brenda Rodriguez and Dianne Berry, whose jobs were to register offenders, such as Tober, at the Corpus Christi Police Department. Both Rodriguez and Berry testified that occasionally prior to December 2010, Tober was allowed through the security checkpoint at the station and permitted to register without photo identification.

After taking it under advisement, the trial court sustained Tober's motion on entrapment as a matter of law, found that entrapment was present in this case, and concluded that the State was barred from prosecuting Tober under the charged offense. This appeal ensued.

Here, the trial court ordered in its findings of fact and conclusions of law that the defendant met his pre-trial burden of proving entrapment as a matter of law and thus barred the State from prosecuting the Defendant on the allegations presented. The trial court effectively dismissed the prosecution with prejudice and did not issue an order that touched or concerned the State's charging instrument against Tober. See Taylor, 886 S.W.2d at 265.

In following the Court of Criminal Appeals's holding in Taylor, and since the State's right to appeal is regulated under article 44.01 of the code of criminal procedure, we conclude that an appealable order was not entered by the trial court, and we are without jurisdiction to consider the State's appeal. See TEX. CRIM. CODE PROC. ANN. art. 44.01; Taylor, 886 S.W.2d at 266.