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Starkey v Oklahoma DOC

This case can be presented in any court of any state as persuasive authority. Underlying facts would have to be spot on or similar enough to persuade a court to a favorable ruling.

6-25-2013 Oklahoma:

Starkey v Oklahoma DOC

¶ 1 This matter was assigned to this office on February 6, 2013. According to the Record, Plaintiff/Appellee James M. Starkey, Sr., (hereinafter, "Starkey") pled nolo contendere and received a deferred adjudication on October 12, 1998, to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas. The act occurred on January 15, 1997, and the age of the victim(s) was 15 years old.1 Under Texas law the act amounted to a second degree felony.2

The Oklahoma Department of Corrections and Justin Jones as Director (hereinafter, "Department") point out in Defendants Oklahoma Department of Corrections And Justin Jones Combined Response To Plaintiff's Motion For Summary Judgment And Motion For Summary Judgment (hereinafter, "response and motion for summary judgment") the equivalent crime of sexual assault under Oklahoma law is found in § 1123 of Title 21 of the Oklahoma Statutes; Lewd or Indecent Proposals or Acts to child Under 16. The deferred adjudication provided as follows:
ADJUDICATION DEFERRED PLACED ON COMMUNITY SUPERVISION FOR TEN (10) YEARS, $4,000.00 FINE, COURT COSTS, 320 CSR HOURS, 60 DAYS IN THE CALHOUN CO JAIL, RESTITUTION, DEFENDANT WAIVES HIS RIGHT TO APPEAL, SEX OFFENDER RULES.
In paragraph (27) of the document entitled "Additional Conditions of Community Supervision" he was required to register under Article 6252-13c.1 of the Texas Sex Offender Registration Program.3

... ... ...

¶ 51 Some additional legal obligations are predicated on SORA registration. One in particular pertains to a sex offender's driver's license or identification card. A person registered under SORA must renew their driver's license or issued identification card every year as opposed to non-registrants who renew every four years.67 Therefore registrants are required to pay four times the amount of a non-registrant.

¶ 57 Currently, SORA provides dissemination of substantial personal information about a sex offender not otherwise readily available from a single governmental source. We do not make any determination of the constitutionality of any of the individual registration requirements but have reviewed the requirements in their totality to address the cumulative effect on the issue of the first Mendoza-Martinez factor and the punitive effect of the act in its totality. We find SORA's registration and notification provisions impose substantial disabilities on registrants. Therefore, we find the first Mendoza-Martinez factor clearly favors a punitive effect.

CONCLUSION

¶ 80 The trial court's Order found the provisions of SORA were not to be retroactively applied. The trial court held the Oklahoma Department of Corrections was to apply the version of SORA in existence at the time Starkey pled nolo contendere to the charge of sexual assault on October 12, 1998, in Texas. Under the trial court's Order, Starkey would only be required to register for the original ten-year period which he had already completed.

¶ 81 We agree with the result of the trial court's Order which found the level assignments were not to be retroactively applied and Starkey is only required to register for 10 years. We find the legislature necessarily implied the provisions of 57 O.S., § 583 as amended in 2004 were to be applied retroactively. Further, we find this retroactive extension of Starkey's registration period from 10 years to 10 years from the date of completion of the sentence violates the ex post facto clause of the Oklahoma Constitution.104 We also find the Department's retroactive application of the level assignment provisions of 57 O.S. Supp. 2007, §§ 582.1-582.5, as amended, violates the ex post facto clause. These level assignments are only to be applied prospectively. We need not address Starkey's due process violation claims because our holding that the level assignments do not apply retroactively is dispositive.

¶ 82 We disagree, however, with the trial court's finding that the date when Starkey pled nolo contendere in Calhoun County Texas, October 12, 1998, is the correct date to determine what Oklahoma law is applicable to him. The Order only indicates he has resided in Oklahoma since 1998. The correct date to apply is when Starkey became subject to SORA registration by entering and intending to be in Oklahoma after his conviction.105 Starkey voluntarily came to Oklahoma and therefore voluntarily subjected himself to SORA after his conviction. Following his conviction, the exact date he entered Oklahoma with the intent to "be in the state" for the requisite period is relevant in determining what version of SORA is applicable. The requirements of the registry to which he must comply would be established upon his entry and intent "to be in" Oklahoma. However in Starkey's case, the applicable provisions of both versions of 57 O.S., § 582 effective during 1998 were the same and the applicable provisions of 57 O.S. Supp. 1997, § 583 were not amended in 1998. Therefore, the exact date when Starkey entered Oklahoma in 1998 does not matter for our analysis. We find the trial court's order is affirmed as modified to apply the date of Starkey's entry with the intent to be in this State following his conviction rather than the actual date of conviction in Texas as the critical point to determine which provisions of SORA would apply to him.

¶ 83 We point out that this decision does not address the requirements of the federal Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. (SORNA).



Oklahoma Supreme Court finds state's new sex offender registration requirements punitive and thus limited by ex post facto doctrine

6-28-2013 Oklahoma:

From Sentencing Law and Policy:

As reported in this local article, headlined "Attorney says up to 3,000 registered Oklahoma sex offenders could benefit from ruling," the top court in Oklahoma handed down a major ruling this week limiting the reach of the state's sex offender registration law. Here are the basics:
[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.
Rejoicing in Tuesday's ruling was convicted sex offender Brad Crawford, 58, of Oklahoma City. “It means a lot to me. It gives me freedom. It takes a monkey off my back,” said Crawford, who was convicted in 1998 in Canadian County on a charge of lewd or indecent proposals/acts to a child. “I'm tired of dealing with them and their harassment.”
Crawford lamented that being listed on the registry limits offenders from living where they want and watching their grandkids' baseball games. Registered sex offenders are not allowed to live close to schools, playgrounds or licensed child care centers....
Crawford's crime was peeking over the top of a tanning booth. He said Crawford thought he was sneaking a peek at a woman, which might have brought misdemeanor peeping Tom charges. The “woman” turned out to be a 15-year-old girl who was a day shy of her 16th birthday, so Crawford was convicted of the more severe felony charge of lewd acts with a child....
Crawford originally received a five-year suspended sentence, except for 30 days in the Canadian County jail. He also was placed on the sex offender registry for 10 years....

However, before the 10 years was over, the Oklahoma Legislature passed new laws in 2007 that created a three-tiered risk level assessment system. The law required convicted sex offenders to be placed on the sex offender registry for 15 years, 25 years, or life, depending on their assessment levels....
Jerry Massie, spokesman for the Corrections Department, said department officials are discussing the Court's ruling and expect to post something on the agency's website within the next day or two, explaining how the department will comply with the decision. Preliminary discussions have centered on department officials reviewing the registry and removing the names of sex offenders who appear to qualify under the court's ruling.
Massie said no time frame has been established for such a review, but it “might take a month or so.” At the end of the process, sex offenders who believe they were wrongfully kept on the registry could ask to have their cases reviewed, he said.
The full Oklahoma Supreme Court ruling is available at this link, and here are a few paragraphs from its closing sections:
Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws.
Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution.
This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted.
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