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Smith v Commonwealth

6-6-2013 Virginia:

Smith v Commonwealth

In this appeal, we consider whether the retroactive application of a 2008 amendment to Code § 9.1-902 resulted in contractual and constitutional violations by allegedly interfering with a 1999 plea agreement.

In February 1999, a grand jury in the City of Richmond indicted Jeremy Wade Smith for rape in violation of Code § 18.2-61. The indictment alleged that Smith, age twenty-two at the time, engaged in sexual activity with a fourteen-year-old girl, resulting in the birth of a child.

Smith entered into a plea agreement. He agreed to plead guilty to the reduced charge of carnal knowledge of a minor in violation of Code § 18.2-63, and the Commonwealth agreed to recommend a suspended sentence. The plea agreement contained an integration clause stating that it "contain[ed] the entire agreement between the parties, both oral and written." The agreement did not reference the registration requirements applicable to convicted sex offenders. The circuit court reluctantly accepted the plea agreement and sentenced Smith to ten years' incarceration with the entire term suspended. The Commonwealth reminded the court that Smith would be required to register with the Virginia Department of State Police ("State Police") as a sex offender. Smith's counsel indicated that he understood this requirement.

At the time of Smith's conviction, carnal knowledge of a minor was classified as a non-violent sex offense. Former Code § 19.2-298.1 (1995 & Supp. 1999). As a non-violent sex offender, Smith was required to register with the State Police annually for 10 years, after which he could petition for expungement.1 Former Code §§ 19.2-298.2, -298.3(A) (1995 & Supp. 1999).

In 2006, the federal government enacted the Adam Walsh Child Protection and Safety Act. See 42 U.S.C. § 16911 et seq. (2006). Title I of the Act, known as the Sex Offender Registration & Notification Act ("SORNA"), required Virginia to implement comprehensive sex offender registration standards.2 In 2008, the General Assembly amended Code § 9.1-902 (former Code § 19.2-298.1) to comply with SORNA. As a result, Smith's conviction for carnal knowledge of a minor was retroactively reclassified as a "sexually violent offense," and he became subject to more stringent registration requirements. 2008 Acts ch. 877. Particularly, Smith now must register every 90 days for the rest of his life, with no right to petition for expungement. Code §§ 9.1-903, -904.

In February 2010, Smith filed a complaint in the Circuit Court of the City of Richmond asserting that he should not be classified as a violent sex offender for purposes of the registration requirements. Smith argued that the reclassification of his offense violated his contractual and constitutional rights. He asserted that the reclassification (1) unilaterally altered the terms of his plea agreement, constituting a breach of contract; (2) deprived him of vested contractual rights without just compensation, constituting an unconstitutional taking; and (3) violated his procedural due process rights.

Smith and the Commonwealth filed cross-motions for summary judgment. Smith claimed that the sex offender registration requirements in effect when he entered the plea agreement were part of the agreement as if they had been explicitly incorporated therein. Thus, he contended that reclassifying his offense breached the plea agreement and deprived him of vested contractual rights without just compensation or due process of law. The Commonwealth responded that Smith had no contractual rights, vested or otherwise, regarding the sex offender registration requirements because the plea agreement contained an integration clause and did not reference the registration requirements.

The circuit court granted summary judgment in favor of the Commonwealth. It held that reclassifying Smith's conviction did not constitute a material breach of contract. In addition, it concluded that the registration requirements were not an integral part of Smith's inducement to enter into the plea agreement, which held no promise or vested right that the registration laws would not subsequently change. Because Smith had no vested contractual rights with respect to the registration requirements, the circuit court reasoned that there was no unconstitutional taking or procedural due process violation.3 Accordingly, the court dismissed Smith's claims with prejudice. This appeal followed.

... ... ...

For the same reason that the reclassification of Smith's conviction was not an unconstitutional taking, it also was not a violation of procedural due process. Due process analysis presupposes the existence of an enforceable right. We previously have held that convicted sex offenders have no liberty interest to be free from quarterly registration requirements. McCabe v. Commonwealth, 274 Va. 558, 565, 650 S.E.2d 508, 512 (2007). Likewise, they have no fundamental right to rely on the civil legislative scheme in existence at the time of pleading guilty. Id. at 565-66, 650 S.E.2d at 512-13. Because in this particular case Smith had no vested contractual rights with respect to the 1999 registration requirements, there was no procedural due process violation.6


Since there were no contractual or constitutional violations resulting from the reclassification of Smith's conviction, the circuit court properly dismissed his petition for expungement and for a permanent injunction. Accordingly, we will affirm the judgment of the circuit court.

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