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.

People v Hofsheier

3-6-2006 California:

People v Hofsheier
(39 Cal.Rptr.3d 821 (2006)

Defendant, a 22-year-old man, pled guilty to oral copulation with a 16-year-old girl in violation of Penal Code section 288a, subdivision (b)(1) (hereafter section 288a (b)(1).)1 Under section 290, anyone convicted of certain sexual offenses, including a violation of section 288a (b)(1), must, while residing in California, register for life as a sex offender with the appropriate law enforcement agency. Defendant was therefore ordered to register as a sex offender.

Defendant appealed. He contended that he was denied the constitutionally guaranteed equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor (§ 261.5) under the same circumstances would not be subject to mandatory registration. The Court of Appeal agreed and ordered the trial court's order granting probation modified to eliminate the registration requirement. Because the Court of Appeal's holding conflicted with People v. Jones (2002) 101 Cal.App.4th 220, 124 Cal.Rptr.2d 10 (Jones), we granted review to resolve the conflict.

We now hold, in accord with the decision of the Court of Appeal in this case, that to subject defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A) would deny defendant the equal protection of the laws. We direct the Court of Appeal to remand the case to the trial court, however, to exercise its discretion to determine whether defendant should be required to register as a sex offender under section 290, subdivision (a)(2)(E).

US v Wahchumwah

3-29-2012 National:

US v Wahchumwah

Rudy Lee Wahchumwah was charged with, and convicted of, failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). After we affirmed his conviction in a memorandum disposition, see United States v. Wahchumwah, 409 Fed. App'x 130, 132 (9th Cir. 2010), Wahchumwah filed a petition for rehearing and a motion to dismiss the indictment. The motion to dismiss was predicated on our opinion in United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010), in which we held that SORNA was not applicable until August 1, 2008 for those individuals whose convictions predated the enactment of SORNA. See id. at 1160.

Wahchumwah's conviction for a sex offense predated the enactment of SORNA and his failure to register occurred prior to August 1, 2008. Because SORNA did not apply to Wahchumwah prior to August 1, 2008, his indictment for a violation of SORNA's registration requirements was invalid.

We hereby grant Wahchumwah's motion to dismiss the indictment, vacate our prior disposition, and remand this case to the district court for dismissal of the indictment against Wahchumwah. This action renders the petition for rehearing moot.

Appellant's Motion to Dismiss Indictment for Lack of Subject Matter Jurisdiction filed on January 4, 2011, is GRANTED. The prior disposition, filed on December 8, 2010, is VACATED. This case is REMANDED to the district court for Dismissal of the Indictment.

States and Courts WILL use any forms signed earlier in time, for the rest of your life!

READER TIPS: Whenever we learn of something important it will be posted under "Reader Tips."

Readers too can submit tips to be posted, it just has to be something unusual they have learned and is of value to others. eAdvocate

3-30-2012 National:

STATE REGISTRATION FORMS:
Most important to note here is, that once a registrant signs ANY state form, which indicates that if they move to another state they must register there, ALL Courts (State and Federal) ignore the boundaries between state and federal law.

Yes, federal law (SORNA) commands that the USAG use a form to notify registrants of their registration requirements (Sec. 117(a) 42 USC 16917(a)) and to prescribe RULES to notify registrants convicted before SORNA of their registration requirements (Sec 117(b) 42 USC 16917(b)).

However, the USAG has FAILED to prescribe any RULE for the notification of registrants convicted before SORNA of their registration requirements. Courts are IGNORING that federal mandate (42 USC 16917(b)), if their is a signed state form (even one signed YEARS BEFORE) which says something similar, and the registrant has signed the state form.

In this writer's opinion that is clear trickery, and does not satisfy due process, but I am one person and not a lawyer or a court. It is what it is, be forewarned!

For legal advise which you can take to court, see a lawyer where you live, s/he can assess your facts and the law that applies to it, and properly advise you..

People v Brooks

3-29-2012 Colorado:

People v Brooks

Defendant, Lorenzo Brooks, appeals the judgment of conviction following a bench trial in which the court found him guilty of failure to register as a sex offender. Because we conclude defendant was not required to register as a sex offender in Colorado, we reverse the judgment of conviction.

When the two offenses are contrasted, it is clear that Colorado requires an additional element that the crime be "under circumstances in which such conduct is likely to cause affront or alarm to another person." The Texas statute lacks this additional element.2 Thus, defendant's Texas conviction for indecency with a child by exposure did not satisfy all the elements of the crime of indecent exposure in Colorado. Consequently, the People failed to prove defendant's crime was one which, if committed in Colorado, would require defendant to register as a sex offender.

Therefore, we conclude defendant is not required to register as a sex offender because his conviction in Texas does not fall within the statutory requirements of sections 16-22-103(1)(b), 18-3-411(1), 18-3-412.5(1), and 18-7-302(1)(a).3

The judgment of conviction is reversed.

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Colorado Court Overturns Failure To Register As A Sex Offender Conviction § 18-3-412.5(1), C.R.S., 16-22-103(1)(b), C.R.S. Based On Out Of State Conviction

In a recent Colorado case - People v Lorenzo Brooks - the defendant's conviction's conviction for failure to register as a sex offender was overturned because his out of state Texas conviction had no Colorado sex crime equivalent. The case addresses when an out of state resident - or a resident with an out of state sex crime conviction - must register in the state of Colorado.

The Colorado court of appeals concluded that Brooks was not required to register as a sex offender in - here is the analysis. The Colorado Supreme Court recently reaffirmed the decision.

The rule in Colorado - in this complex case - which addresses Colorado's Sex Offender registration laws - and discusses whether section 16-22-103(1)(b), C.R.S. 2011, which requires an element-by-element comparison of a defendant's out-of-state conviction with that of an existing unlawful sexual offense in Colorado to make the determination of whether sex offender registration - was properly followed.

The Factual Background of The Case
In 1994, the defendant pleaded guilty in Harris County, Texas, to the crime indecency with a child by exposure, Tex. Penal Code Ann. § 21.11(a)(2) and was sentenced to ten years in the Texas Department of Corrections.

His case was then transferred to El Paso County, Colorado, where he pleaded guilty to the Colorado crime of aggravated robbery and again received a lengthy prison sentence.
After his parole in 2007 the defendant was told that he must register as a sex offender under the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S., based upon the Texas conviction. He did - for 7 quarters - but then moved without updating the sex offender registry.

He was later charged with - and convicted of two felony counts of failing to register as a sex offender.

The Analysis of Colorado's Failure to Register Law - 16-22-103(1)(b)As It Applies To Out of State Sex Crime Convictions

The Duty to Register As A Sex Offender In Colorado
The Court found that Brooks was not required to register as a sex offender, and, therefore, could not be legally convicted of failing to register.

Colorado's Sex Offender Registration Requirements
In Colorado - to be guilty of the criminal offense of failing to register as a sex offender, the defendant must be "[a] person who is required to register pursuant to article 22 of title 16, C.R.S [the sex offender registration statute]." § 18-3-412.5(1), C.R.S. 2011.

The Colorado law reads that

- "the purpose of sex offender registration is not to inflict additional punishment on a person convicted of a sexual offense, but rather to aid law enforcement officials in investigating future sex crimes and to protect the public safety." (and that).. Any person who was convicted on or after July 1, 1991, in another state or jurisdiction . . . of an offense that, if committed in Colorado, would constitute an unlawful sexual offense, as defined in section 18-3-411(1), C.R.S." is required to register under the Colorado Sex Offender Registration Act. § 16-22-103(1)(b), C.R.S. 2011.

The Colorado Crime of Indecent Exposure 18-3-411
Section 18-3-411(1), C.R.S. 2011, states that an unlawful sexual offense includes "indecent exposure, as described in section 18-7-302. Indecent Exposure was then defined as knowingly expose[d] his genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person." § 18-7-302(1)(a)

The Court compared the elements of the defendant's Texas conviction of indecency with a child by exposure. Tex. Penal Code Ann. § 21.11(a)(2) to the nearest equivalent of Indecent Exposure. The court found that the the Texas conviction was not the equivalent of the Colorado sexual offense of indecent exposure because the Colorado crime of indecent exposure contained an element missing from Texas's indecency with a child statute.

Colorado Law Requires An Element by Element Comparison of the Out Of State Criminal Conviction
In this case - when the two offenses were contrasted, it was clear that Colorado required an additional element that the crime be "under circumstances in which such conduct is likely to cause affront or alarm to another person."....and that the Texas statute lacked the additional
element.

The Lesson Of This Case - Colorado's Failure to Register Law 16-22-103
If an individual moves to Colorado with a conviction for another's state's sex crime - after an analysis of the crime as compared to Colorado sex offender laws - the out of state conviction must satisfy all the elements at least one Colorado sex crime. If it does not - the individual is NOT required to register as a sex offender because the out of state conviction does not fall within the statutory requirements of sections 16-22-103(1)(b), 18-3-411(1), 18-3-412.5(1), and 18-7-302(1)(a). ..Source.. by H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the First 13 years of his career, he was an Arapahoe - Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

See this lawyer's explanation of this case.

Minnesota v Joey Wayne Nelson

3-12-2012 Minnesota:

Minnesota v Joey Wayne Nelson

The evidence is insufficient to sustain appellant’s conviction of failing to register as a predatory offender pursuant to Minn. Stat. § 243.166, subd. 3(b) (2008), because the state failed to prove beyond a reasonable doubt that appellant no longer was living at his registered primary address or that he had begun living at a new primary address.

A Pine County jury found Joey Wayne Nelson guilty of failing to register as a predatory offender, as required by Minn. Stat. § 243.166, subd. 3(b) (2008). The state presented evidence that, on one particular day, Nelson had not shoveled new-fallen snow at his registered primary address in Pine County and was present in another state. We conclude that the state’s evidence is insufficient to prove beyond a reasonable doubt that Nelson no longer was living at his registered primary address or that he had established a new primary address. Therefore, we reverse.

CONCLUSION:
The state’s evidence is insufficient to prove that Nelson violated section 243.166, subdivision 3(b). Thus, the evidence is insufficient to sustain Nelson’s conviction of failing to register as a predatory offender. Accordingly, Nelson’s conviction must be reversed.

Perkins-Bey v Housing Authority of St Louis County

3-14-2011 Missouri:

Perkins-Bey v Housing Authority of St Louis County
Case No. 4:11CV310 JCH.

This case is about Section 8 Vouchers which are used to pay a person's rent in Public Housing. Apparently there are MANY formerly convicted sex offenders in Public Housing LEGALLY; their convictions predate any state registry law, hence they did not have to reveal them on applications (Way back when), or management felt they were so old as to not be of concern.

The essence of this case is, Perkins-Bey was convicted prior to 1979 and under Missouri's registry was not required to register when he first sought Section 8 housing; then he was GRANTED Section 8 assistance.

Along comes the Adam Walsh Act and the Missouri Supreme court makes registration retroactive. Perkins-Bey then registers and completes a renewal "Application" and now disclosing his way back conviction, this causes the Public Housing Management to reject his Application because NOW he is required to register for a LifeTime. Why Lifetime? Some states, Missouri is one, require ALL registrants to register for a LifeTime. HUD Rules require rejecting applications if a person is required to register for a LifeTime on a State Registry.

As best I can guess, the court held, that, federal benefits legally obtained cannot be retroactively terminated. It appears the court used the date of conviction in its analogy.

Finally, according to the court this case is not over, a hearing for a Permanent Injunction is yet to occur.

Now from the case:

Plaintiff Alton Perkins-Bey is a fifty-five year old male, who recently had a cancerous bladder tumor removed. (Joint Stipulation of Uncontroverted Facts ("Facts"), ¶ 1). In 1975, Plaintiff was convicted of two counts of rape in Jackson County, Missouri. (Facts, ¶ 6). Plaintiff served time in prison for approximately fourteen years, and was released on parole in 1988. (Id., ¶ 7). Plaintiff's parole completion date is July 22, 2049. (Id., ¶ 9).1

In or around 2004, Plaintiff submitted an application for Section 8 housing assistance with Defendant Housing Authority of St. Louis County2 ("HASLC"), and was placed on a waiting list. (Facts, ¶¶ 2, 11). Plaintiff completed an Application Update packet, and signed a Criminal History and Activity Disclosure Statement on or about November 19, 2008. (Id., ¶ 12). Neither the information provided by Plaintiff in his initial application, nor the results of any background checks which may have been performed, is known, as those documents were destroyed by HASLC in accordance with its Administrative Plan. (Id., ¶¶ 11, 12).

After holding two meetings with Plaintiff in November, and December, 2008, and conducting a full background check, HASLC approved Plaintiff's application for the Section 8 Voucher Program. (Facts, ¶ 13). Plaintiff was admitted to the Section 8 Voucher Program in or around January, 2009, and began receiving Section 8 Voucher assistance from HASLC. (Id., ¶ 14). HASLC currently pays Plaintiff's entire rent, and until recently paid Plaintiff $74 each month to help defray the cost of utilities for his apartment. (Id., ¶¶ 2, 17).

In 2006, Congress passed the Adam Walsh Child Protection Safety Act of 2006, codified as 42 U.S.C. § 16913, and known as the Sex Offender Registration and Notification Act, or SORNA. SORNA requires that certain sex offenders register with the state sex offender registry system where the sex offender resides. See 42 U.S.C. § 16913(a).3 By regulation, SORNA was made applicable to all sex offenders, including those convicted of the offense for which registration is required prior to the enactment of the Act. See 28 C.F.R. § 72.3. Upon learning of SORNA's requirements from his parole officer, Plaintiff registered as a sex offender in August, 2009. (Facts, ¶ 19). Plaintiff did not list his rape conviction on his October 22, 2009, "Personal Declaration," completed as part of his annual recertification process with HASLC. (Id., ¶ 16). He did list the conviction on his October 7, 2010, Personal Declaration. (Id.).

On October 8, 2010, HASLC sent Plaintiff a notice entitled "Proposed Termination of Rental Assistance." (Facts, ¶ 20). The Notice advised that HASLC was considering terminating Plaintiff's assistance under the Section 8 Voucher Program effective November 30, 2010, because he:

(x) 4. Violated one or more family obligations by:
(x) c. criminal activity or substance abuse (see enclosed report)
(x) 1) lifetime registration under state sex offender registration program.

(Id., ¶ 21). A hearing on the proposed termination was held on October 21, 2010. (Id., ¶ 22). On October 28, 2010, the HASLC hearing officer issued a decision affirming the termination of Plaintiff's Section 8 Voucher Program assistance. (Id., ¶¶ 22, 23). As grounds for her ruling, the hearing officer stated as follows: "The Authority must deny assistance if any household member is subject to a lifetime registration requirement under a state sex offender registration program. 24 CFR 982.553 (Administrative Plan page 11-12)." (Id., ¶ 23).

.....

CONCLUSION Accordingly,

IT IS HEREBY ORDERED that Plaintiff Alton Perkins-Bey's Motion for Preliminary Injunction Order (Doc. No. 3) is GRANTED.

IT IS FURTHER ORDERED that Defendants Housing Authority of St. Louis County and Susan Rollins are hereby enjoined and restrained from terminating Plaintiff's Section 8 Voucher assistance until there is a hearing on Plaintiff's request for a permanent injunction.

IT IS FURTHER ORDERED that Defendants HASLC and Susan Rollins shall immediately take all steps necessary to continue to make rental assistance payments to Plaintiff's landlord, until there is a hearing on Plaintiff's request for a permanent injunction.

This Order shall continue in full force and effect until the Court issues a final ruling on the merits of this case.

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Note: Later he also won attorney fees and costs

State v Forgey

3-5-2012 Washington:

State v Forgey

The real purpose of listing this case is to show that, the BOOKING process is exempt from Miranda. In other words, if one is booked, anything you say can be used against you as it is exempt from Miranda.

From the case:
Isaac Forgey must register as a sex offender due to a 1992 third degree child rape conviction. RCW 9A.44.130. He moved to Pierce County and registered there on May 19, 2008, providing 19016 106th Street Court East in Bonney Lake, Washington (Bonney Lake house) as his address.

Bonney Lake Police Officer David Thaves conducted one or two address checks at the Bonney Lake house. Residents said Forgey lived there but was not often home. On a later November 2, 2008 check at the same house, Thaves spoke to Michael Hellerud, who said Forgey no longer lived there.

On January 26, 2009, Forgey sent a letter to the Pierce County Sheriff's Department reporting a move from the Bonney Lake house to 22304 62nd Avenue East in Spanaway, Washington (Spanaway house). Forgey made no contact with the Sex Offender Registration Unit between May 19, 2008, and January 26, 2009.

Pierce County Sheriff Deputy Andrew Gerrero went to the Spanaway house on February 19, 2009. Resident Helen Klinger told Gerrero that Forgey was asked to leave the first week of January and no longer lived there.

A warrant was issued for Forgey's arrest. He was later booked on this warrant into the Pierce County jail. Following a CrR 3.5 hearing,2 the court made the following findings of fact regarding the booking, all of which are verities on appeal because Forgey assigns no error to them:

1. On May 29, 2009 Corrections Officer Todd Klemme booked the defendant, ISAAC W. FORGEY, into the Pierce County Jail under this cause number.

2. Officer Klemme identified the defendant, ISAAC W. FORGEY, in open court as the individual named Isaac W. Forgey that Officer Klemme booked into the Pierce County Jail on May 29, 2009.

3. Officer Klemme has been employed by the Pierce County Sheriff's Department as a corrections officer in the Pierce County Jail for 17 years.

4. Officer Klemme has worked specifically as a booking officer for 15 years, in addition to being trained in, and performing, other duties within the jail, such as identification and courts.

5. On May 29, 2009 Officer Klemme was working as a booking officer in the Pierce County Jail.

6. Officer Klemme asked the defendant several questions during the booking process, including but not limited to, his name, date of birth, address, next of kin, social security number and employer information.

7. The defendant provided his information in response to the questions asked by Officer Klemme and provided his address as 1213 Hillcrest Loop, Kettle Falls, Washington.

8. The questions that Officer Klemme asked the defendant during the booking process were standard questions that are asked of every individual when they are booked into the Pierce County Jail.

9. Officer Klemme was not involved in any investigation relating to the defendant's current failure to register as a sex offender criminal charge, although Officer Klemme was aware of the charge as the reason the defendant was being booked into the jail, and did not ask the standard questions pursuant to any investigation.

10. Officer Klemme did not coerce the defendant, threaten him or make any promises to him to induce the defendant to make any statements.

11. Officer Klemme did not advise the defendant of his Miranda warnings as it is not standard procedure to do so during the booking process.

Forgey was charged with one count of failing to register as a sex offender. An amended information expanded the violation period to November 2, 2008, through April 7, 2010. At trial, witnesses provided conflicting testimony about Forgey's living arrangements.3 Forgey testified that he provided the Kettle Falls address to the booking officer at the Pierce County jail because he planned to move there.

Forgey testified that he moved to Kettle Falls in June 2009, and registered in Stevens County. He did not report his Kettle Falls move to the Pierce County Sheriff's Department. A jury found Forgey guilty as charged. The court sentenced Forgey within the standard range. Forgey appeals.