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State v Ramos

3-10-2009 Washington:

State v Ramos
202 P.3d 383 (2009)

Domingo Torres Ramos appeals his conviction of failure to report to the Thurston County Sheriff's Office as a registered sex offender, arguing that the delegated classification system is unconstitutional. Because he was not classified by any entity other than a sheriff, we agree that there is a violation of separation of powers under these facts. We reverse and remand with instructions to dismiss.1

¶ 2 In 1993, Ramos was convicted of two counts of sexual exploitation of a minor. The trial court sentenced him to 42 months' incarceration, and he completed his confinement in 1995. At the time of his conviction and at the time of his release, Washington did not require persons convicted of sexual exploitation of a minor to register as sex offenders. As a result, no government entity classified him as a level I, II, or III sex offender after his confinement.

¶ 3 The legislature later added sexual exploitation of a minor as a sex offense to the list of crimes requiring registration under RCW 9A.44.130. According to Detective Daryl Leischner, who is in charge of Thurston County's sex offender registration unit, Ramos knew of these changes and registered in 2001. In 2001, the Thurston County Sheriff's Office classified Ramos as a level II sex offender under RCW 4.24.550(6)(b). According to Leischner, level I offenders pose a relatively low risk of recidivism, level II offenders pose an intermediate risk, and level III offenders pose a high risk. Leischner testified that, although the sheriff's office is directed by statute to assign risk classifications to offenders, the statute "does not give the advice as to what the levels should consist of." Report of Proceedings at 122. Instead, the statute sets forth public notification requirements.

¶ 4 Effective September 1, 2006, the legislature enacted a law requiring level II or III sex offenders to report in person every 90 days to the sheriff of the county where the offender is registered. RCW 9A.44.130(7). On January 8, 2007, Ramos failed to report, as required by this law, to the Thurston County Sheriff. Law enforcement officers later arrested and charged him with violation of sex offender registration. RCW 9A.44.130. Following a bench trial, the court found him guilty of one count of failing to comply with the RCW 9A.44.130(7) reporting requirements. He appeals.

... ... ...

¶ 20 The proper delegation of defining an element of a crime does not always require the legislature to provide word-for-word definitions; it does, however, require that the legislature provide the other branches adequate direction to a reach a sufficient definition. For example, the legislature may instruct the judiciary to use the common law to supplement statutory definitions. State v. Chavez, 134 Wn.App. 657, 667-68, 142 P.3d 1110 (2006) (finding constitutional delegation of defining the crime of assault when the legislature instructed that the common law must supplement all penal statutes under RCW 9A.04.060). A term that is incurably vague, however, may not be delegated to another branch for definition. State v. Sansone, 127 Wn.App. 630, 642, 643, 111 P.3d 1251 (2005) ("The definition of pornography was not an administrative detail that could be properly delegated to the [community corrections officer].... The fact that one term could be defined so differently indicates the impropriety of delegation.").

¶ 21 Here, the sex offender classification statute does not provide any comparable guidance to a local law enforcement agency. At most, RCW 4.24.550(6) instructs a local law enforcement agency to consider offender classifications made by other agencies; however, these prior classifications are not binding on the law enforcement agency. RCW 4.24.550(10).9 As noted, RCW 4.24.550 itself provides neither standards nor definitions to guide law enforcement agencies in determining an offender's classification. Moreover, even if we were to assume the nonbinding determinations of other agencies provided sufficient guidance to the law enforcement agency, in Ramos's case, there were no such prior assessments for the Thurston County Sheriff's Office to review. By failing to provide criteria or standards, the legislature has delegated full responsibility for defining offenders' risk levels, an element of a felony, to local law enforcement agencies.

¶ 22 We hold that the legislature improperly delegated the task of classifying Ramos as a sex offender under RCW 4.24.550(6)(b) to the Thurston County Sheriff's Office. The remedy is to reverse with instructions to dismiss his conviction.10State v. Dougall,89 Wn.2d 118, 123, 570 P.2d 135 (1977) (reversing the trial court's denial of the defendant's motion to dismiss criminal charges based on RCW 69.50.201(d) and finding the statute an unconstitutional delegation of legislative authority); State v. Gilroy,37 Wn.2d 41, 48-49, 221 P.2d 549 (1950) (affirming the trial court's dismissal of charges against Gilroy, finding the statute improperly delegated legislative power).

¶ 23 Reversed and remanded with instructions to dismiss.

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