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Courts Applying Padilla to Sex Offender Registration


Many state and federal courts have ruled that sex offender registration is a collateral consequence of a plea bargain, and not a "direct" consequence. The major consequences of such rulings can be 1) defendants cannot win an ineffective counsel claim as a result of their defense attorneys not informing them about a registration requirement, and 2) defendants cannot win an ex post facto violation claim if they are required to register retroactively.

Padilla - Direct v Collateral Analysis "Ill-Suited"

Prior to the US Supreme Court's decision in Padilla (2010), deportation was also viewed as a collateral consequence (see Frometa 1989), and therefore an ineffective counsel claim based upon a defendant's not being told that he would be deported was invalid. However the Justices in Padilla decided to abandon the "direct versus collateral" analysis used in Frometa when determining whether Defendant's Sixth Amendment’s guarantee of effective assistance of counsel was violated when his attorney failed to advise him that he would be deported. The Court stated that it was “uniquely difficult to classify [deportation] as either a direct or a collateral consequence” because it is a “particularly severe penalty,” and one which was “intimately related to the criminal process.” Resultantly, the Court decided that the "direct versus collateral consequences analysis” was "ill-suited" in this case.

Padilla Applied to Sex Offender Registration

Post-Padilla, the question became whether other consequences deemed "collateral" such as sex offender registration would someday be analyzed via Padilla instead of via the "direct versus collateral consequences analysis”.

In People v. Fonville, 804 N.W.2d 878 (2011), the Court of Appeals of Michigan expanded the rationale used in Padilla while deciding that "…defense counsel's failure to inform Fonville that his plea would require registration as a sex offender affected whether his plea was knowingly made. This failure, therefore, prejudiced Fonville to the extent that, but for counsel's error, the result of the proceeding would have been different." Based upon this legal basis, Defendant was entitled to withdraw his plea. In their analysis, the Court stated:
"Like the consequence of deportation, sex offender registration is not a criminal sanction, but it is a particularly severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency-reporting requirements and place-of-domicile restrictions. Moreover, sex offender registration is 'intimately related to the criminal process.' The 'automatic result' of sex offender registration for certain defendants makes it difficult 'to divorce the penalty from the conviction ….'."
More recently, in United States v. Riley, 72 M.J. 115 (2013), the United States Court of Appeals for the Armed Forces concluded that a military judge abused his discretion when he accepted Defendant's guilty plea without questioning defense counsel in order to ensure Defendant knew of the sex offender registration consequences of her guilty plea. The Court stated that the military judge bears the burden of assuring the accused's guilty plea is knowing and voluntary. The Court agreed with the reasoning used in Padilla and Fonville, and additionally, went a step further by stating:
"we hold that in the context of a guilty plea inquiry, sex offender registration consequences can no longer be deemed a collateral consequence of the plea."

Padilla Applied to Plea Agreements

The Court's finding in Riley that registration can no longer be considered a collateral consequence is of great significance, and could be a great stepping stone if referenced by other courts. The above cases analyze sex offender registration in the context of ineffective counsel. However, a closely related issue is whether retroactive registration requirements violate ex post facto clauses in cases where plea agreements were contingent upon NO registration requirement. It would be illogical for courts to provide relief to those whose attorneys failed to inform them about registration requirements that were "automatic", while NOT providing relief to those whose plea agreement, having been accepted by the court, was conditioned upon not having to register. The broad issue that was generally addressed in Padilla, and specifically addressed in Fonville and Riley, is that a plea agreement cannot be knowing and voluntary if the defendant does not know he or she will have to register as a sex offender.

Some state courts such as Maryland and Oklahoma have ruled that retroactive registration requirements violate their respective State's constitutional ban against ex post facto laws, and have done so without applying the rationale used in Padilla. In other states, such as Pennsylvania, sex offender registration is currently considered a "collateral consequence" by the courts (Commonwealth v. Leidig, 598 Pa. 211 (2008)); therefore, claims of ex post facto violations, ineffective counsel, and "non-knowing and voluntary" pleas are currently invalid. However, two potential legal arguments are ripe:

1) the 2012 changes to Megan's Law based upon SORNA have transformed sex offender registration requirements from collateral to punitive, and therefore retroactive application of these requirements violates the State's ex post facto clause; and

2) the direct versus collateral analysis is ill-suited in determining whether retroactive sex offender registration requirements violate PA's constitutional ban against ex post facto laws, and instead, the rationale used in Padilla should be applied.


It will be interesting to see if and how the Padilla rationale is used by other courts with regard to sex offender registration requirements. We will keep you posted on any important cases related to this issue. If you are aware of other cases that have applied this rationale, please post. ..Source.. by B Free

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