People v Parilla

5-30-2013 New York:

People v Parilla
2013 NY Slip Op 03931

Defendant appeals from the order of the Supreme Court, Bronx County (Steven Lloyd Barrett, J.), entered on or about April 1, 2010, which adjudicated him a level three sexually violent offender pursuant to the Sex Offender Registration Act.

ANDRIAS, J.

In this appeal, we consider whether amendments made to the Sex Offender Registration Act (SORA) (Correction Law art 6-C) since 1996, that, among other things, impose more stringent registration and notice requirements for convicted sex offenders, have rendered the act a punitive statute, so that its retroactive application to defendant violates the Ex Post Facto Clause or the state and federal constitutional prohibition against double jeopardy. For the reasons that follow, we find that SORA, as amended, does not constitute an impermissible ex post facto law or subject defendant to double jeopardy and that the record supports defendant's adjudication as a level three sexually violent offender.

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NY sex offender law not punitive: appeals court

State v Giorgetti

3-4-2004 Florida:

State v Giorgetti
868 So.2d 512 (2004)

We have for review a decision from the Fourth District Court of Appeal on a question which the court certified to be of great public importance. Giorgetti v. State,821 So.2d 417 (Fla. 4th DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons stated in this opinion, we rephrase the question:

Does the crime created by the sexual offender registration statutes require the State to prove knowledge of the registration requirement by the offender as an element of the crime?

We answer the rephrased question in the affirmative and approve the Fourth District's decision, which holds that before an offender may be held criminally liable for failing to register, the State must prove that he was aware of a registration requirement.

Lambert v California

WARNING: There is no better case than this to be acquitted of FTR, BUT BUT BUT, as folks know the opposition usually presents the forms signed somewhere to show actual knowledge of duty to register. Use case only if there is absolutely no way for the opposition to prove one had knowledge.

12-16-1957 California:

Lambert v California
355 U.S. 225 (1957)

Section 52.38 (a) of the Los Angeles Municipal Code defines "convicted person" as follows:

"Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony."

Section 52.39 provides that it shall be unlawful for "any convicted person" to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.

Section 52.43 (b) makes the failure to register a continuing offense, each day's failure constituting a separate offense.

Appellant, arrested on suspicion of another offense, was charged with a violation of this registration law.* The evidence showed that she had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant asserted that § 52.39 of the Code denies her due process of law and other rights under the Federal Constitution, unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant guilty. The court fined her $250 and placed her on probation for three years. Appellant, renewing her constitutional objection, moved for arrest of judgment and a new trial. This motion was denied. On appeal the constitutionality of the Code was again challenged. The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit to the claim that the ordinance was unconstitutional. The case is here on appeal. 28 U. S. C. § 1257 (2). We noted probable jurisdiction, 352 U.S. 914, and designated amicus curiae to appear in support of appellant. The case having been argued and reargued, we now hold that the registration provisions of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment.

The registration provision, carrying criminal penalties, applies if a person has been convicted "of an offense punishable as a felony in the State of California" or, in case he has been convicted in another State, if the offense "would have been punishable as a felony" had it been committed in California. No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction.

We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.

... ... ...

Registration laws are common and their range is wide. Cf. Bryant v. Zimmerman,278 U.S. 63; United States v. Harriss,347 U.S. 612; United States v. Kahriger,345 U.S. 22. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled.

The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, "A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear." Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.

Reversed.

Wilson v Flaherty

Interesting case where fellow claimed: Being required to register, is being in custody for the purposes of a habeas corpus petition. How many restraints on one's liberty are needed for the court to consider a person is -in custody- under registration laws?

8-15-2012 Virginia:

Wilson v Flaherty
689 F.3d 332 (2012)

Five years after Eric Wilson fully served his sentence for a Virginia state rape conviction, he filed this habeas corpus petition under 28 U.S.C. § 2254, challenging his conviction. To satisfy § 2254's jurisdictional requirement that he be "in custody" at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

The district court dismissed Wilson's petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer "in custody," as required by § 2254(a).

We affirm. While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence. We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson's liberty so as to justify a finding that he is in the custody of state officials.

... ... ...

Recognizing that he filed his petition only after fully serving his sentence, Wilson contends nonetheless that he remains "in custody" of the Virginia State Police because of the "substantial restraints on his liberty" that the State Police are imposing on him by enforcing Virginia's sex offender registration statute. He does not dispute the proposition that the collateral consequences of a conviction do not generally suffice to find one "in custody" but argues that, as a sex offender, he suffers from far more substantial restraints than the normal consequences of a felony conviction. In addition to the general registration obligations, which he must fulfill in person and which require him to provide a wide "array of physical and other personal identifying information," he notes that he has to reregister every 90 days because his offense was a "sexually violent offense," see Va.Code 9.1-904. He also must reregister in person for any changes in residence, employment, vehicle ownership, or online contact information. See id. § 9.1-903. Moreover, before moving from Virginia to Texas, Wilson was required to notify the Virginia State Police, who in turn notified the designated law enforcement agency in Texas. See id. § 9.1-903(D). He asserts that when he moved to Texas, he was and continues to be subject to similar registration requirements. See Tex.Code Crim. Proc. Ann. art. 62.001, et seq. In addition, he claims that under Texas law he must carry a sex offender identification card at all times and renew his driver's license every year rather than every six years and must do so in person.

Wilson also points to other constraints resulting from his status as a sex offender that are not imposed by the registration statutes. He claims that he is unable to work as an electrician at particular jobs, such as at government buildings, or to enroll in electrician school to advance his career because he cannot pass the required background checks. He claims that he has been unable to adopt his eight-year-old stepson; that, to visit his stepson in school, he must submit to a humiliating background check; that, for an unexplained reason, he was not permitted to travel to Canada for his honeymoon; and that he must notify authorities if he is going to be away from home for more than 24 hours.

Finally, Wilson points out that his failure to comply with the state registration requirements subjects him to criminal penalties, both under state and federal law.

Based on these restraints on his liberty, Wilson contends that he remains "in custody," thereby satisfying the "in custody" jurisdictional requirement of 28 U.S.C. § 2254 and enabling the federal habeas court to consider his challenges to his rape conviction.

... ... ...

Individuals in Wilson's position are not, however, without remedies to clear their names. Wilson might be able to invoke the writ of coram nobis in state court, which "affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir.1995); see also United States v. Sandles, 469 F.3d 508, 517 (6th Cir.2006) ("The proper means of attacking the validity of a sentence which has already been served ... is by writ of error coram nobis" (alterations omitted)). The court in Estate of McKinney explained that coram nobis "provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors." Estate of McKinney, 71 F.3d at 781 (emphasis added) (internal quotation marks omitted).3

In making these observations, however, we do not pass on the merits of Wilson's claim, nor do we suggest the outcome of any further proceeding. We simply and narrowly affirm the district court's conclusion that Wilson is not "in custody" within the meaning of 28 U.S.C. § 2254(a) and that therefore the district court lacked subject matter jurisdiction to entertain his habeas petition.

People v North

Never before have I seen a "purpose of registration" esp. one that supposidly claims "..is to assure that sex offenders are readily available for police surveillance, .." Personally that is absurd, I cannot believe a court came to that conclusion.

10-20-2003 California:

People v North
5 Cal.Rptr.3d 337 (2003)
112 Cal.App.4th 621

California's sex offender registration statute requires offenders who have no residence to register in the jurisdiction where they are "located" within five working days of changing their "location," and give the authorities written notice of their new "location." (Pen.Code, § 290, subds. (a)(1)(A) and (f)(1).1) In this case, an offender convicted of violating these requirements contends the terms "located" and "location" are unconstitutionally vague.

After careful consideration of the disputed language in its statutory context, and in light of its legislative purpose, we are constrained to agree that section 290 does not give transient sex offenders fair notice of what they must do to conform with the registration requirements governing changes of "location." We also conclude transient offenders can only guess at what is meant by the requirement that they register at every "location" they regularly occupy in a single jurisdiction. (§ 290, subd. (a)(1)(B).) Section 290 fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. Accordingly, we hold the provisions governing changes of "location" and registration at multiple "locations" within a jurisdiction unconstitutionally vague.

On the other hand, the basic registration requirements for transient sex offenders— that they register in each jurisdiction in which they are regularly "located" and update their registration every 60 days (§ 290, subd. (a)(1)(A), (B), and (C))—may be reasonably and practically understood by offenders and law enforcement as mandating registration in any jurisdiction where the offender is present on five consecutive working days. Those provisions remain valid. However, the enforceable provisions of section 290 do not provide a truly comprehensive registration scheme for transient offenders. We urge the Legislature to reconsider the matter.

Our Intent is to Point Out a few things in this case:
1. Due Process Standards of Clarity
"The due process concept of fair warning is the underpinning of the vagueness doctrine, which `bars enforcement of "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application."` (United States v. Lanier [ (1997) ] 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432, quoting Connolly v. General Construction Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322; Lanzetta v. New Jersey (1939) 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 [` No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.'].) Recently, the United States Supreme Court had this to say on the topic: `Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.' (Chicago v. Morales (1999) 527 U.S. 41, 56, [119 S.Ct. 1849, 144 L.Ed.2d 67][].)" (People v. Castenada (2000) 23 Cal.4th 743, 751, 97 Cal.Rptr.2d 906, 3 P.3d 278.)

... ... ...

2. Section 290 and Transient Sex Offenders
The purpose of section 290 is to assure that sex offenders are readily available for police surveillance, because they are deemed likely to commit similar offenses in the future. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527, 63 Cal.Rptr.2d 322, 936 P.2d 101; People v. Castellanos (1999) 21 Cal.4th 785, 796, 88 Cal.Rptr.2d 346, 982 P.2d 211.) The registration system also provides information regarding high risk offenders that may be disclosed to the public, making it doubly important to maintain accurate registration information. (§ 290, subds.(m) & (n); § 290.4; Wright v. Superior Court, supra, 15 Cal.4th at p. 529, 63 Cal.Rptr.2d 322, 936 P.2d 101.)

North acknowledges the legislative purpose of the 1997 amendments adding "location" requirements was to bring transient sex offenders, who have no "residence," within the scope of section 290. However, the particular requirements North was found to have violated, and others governing his registration as a transient offender, were added after 1997. We will set out the relevant terms of section 290 as they were framed in 2000, when North's violations occurred, footnoting the legislative history of the pertinent amendments:

... ... ...

North contends these requirements are vague because the Legislature failed to specify what sorts of places qualify as "locations," which part of the day the offender must spend in a "location," how long, frequently, or regularly he must occupy a "location" before registration is required, and how precisely the "location" must be identified. The Attorney General construes "location" as parallel with "residence," to mean the place where a transient offender "spends the night." The Attorney General argues it is reasonable and practical to require transient offenders to identify the general area where they will be sleeping, with sufficient specificity to enable the police to find them. "We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. [Citation.]" (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

The Attorney General fails to grapple with the difficult element of time—how many nights, and for how long each night, must an offender spend in a particular place before it becomes a registerable "location"? The Redwood City police told North he had to tell them where he would sleep each night, but that requirement cannot be squared with the five-day grace period allowed for registration. In any event, what is the use of registering a briefly occupied "location?" The utility of obtaining registrations for places slept in only for a night or two, and perhaps never returned to, is so questionable as to cast serious doubt the Legislature intended such fleetingly relevant and rapidly accumulating information to be part of the registration scheme, which includes the forwarding of "location" information to and from the Department of Justice.

Judge dismisses charges against sex offender who served ice cream at elementary school

5-25-2013 Indiana:

The case against a registered sex offender who served ice cream to students during an informal birthday party at Hagerstown Elementary School has been dismissed.

Wayne County Superior Court II Judge Gregory A. Horn issued an order Thursday granting a motion to dismiss the case against Murvel A. Tutterrow, 51, of 12596 Indian Trail Road in Economy.

Tutterrow was faced with two counts of unlawful employment near children (a Class D felony) for serving ice cream on May 19 and May 23, 2011, during birthday parties for his niece and nephew at Hagerstown Elementary School.

Attorney E. Thomas Kemp filed a motion to dismiss the case in April, and Horn granted the dismissal with a 14-page order explaining the law as it relates to Tutterrow’s case.

Tutterrow was convicted in February 2000 of molesting a 13-year-old girl in June and July 1996 and sentenced to 10 years in prison with four suspended. He was released from the Indiana Department of Corrections on Dec. 29, 2002.

Under state law, “a sexually violent predator or an offender against children who knowingly or intentionally works for compensation or as a volunteer on school property, at a youth program center or at a public park” can be charged with unlawful employment near children.

Horn noted the statutes defining “sexually violent predator” and “offender against children” under state law did not exist until 2006, after Tutterrow had been convicted and served his time in prison and on probation.

The Indiana Constitution prohibits ex post facto laws, which impose a punishment that wasn’t available at the time an offender originally committed a crime or that impose an additional punishment.

Courts use a seven-part test to determine if an ex post facto claim is valid. Horn ruled the charges against Tutterrow violated six of those seven parts and therefore qualified for a dismissal.

Horn also noted he believed the case warranted a dismissal because Indiana law fails to define what a volunteer is when it comes to the unlawful employment near children statute.

The state will not be able to refile any charges against Tutterrow in the case as a result of the dismissal.

Since Tutterrow's appearance at Hagerstown Elementary, Nettle Creek Schools and Richmond Community Schools have adopted policies restricting access to school property by registered sex offenders except in specific instances. ..Source.. by Robert Sullivan

State ex rel ZC

7-17-2007 Utah:

State ex rel ZC
165 P.3d 1206 (2007)
2007 UT 54

¶ 1 When she was thirteen years old, Z.C. engaged in consensual1 sex with a twelve-year-old boy and became pregnant. The state prosecutor chose to file delinquency petitions against both Z.C. and the boy for sexual abuse of a child under Utah Code section 76-5-404.1, a crime that would constitute a second degree felony if committed by an adult. The twelve-year-old boy was adjudicated delinquent and given probation. Z.C. moved to dismiss the delinquency petition filed against her on the grounds that it violated her constitutional rights and that the legislature could not have intended such a result. The juvenile court denied Z.C.'s motion.

¶ 2 Z.C. then entered an admission to the delinquency petition on condition that she be able to appeal the denial of her motion to dismiss. As a result of her admission, the juvenile court adjudicated Z.C. delinquent for sexual abuse of a child but imposed a relatively light punishment. The court ordered her to obey the reasonable requests of her parents, to write an essay regarding her child and the effect of her actions on the child, to have no unsupervised contact with the father of her child, to provide a DNA sample, and to pay a $75 DNA processing fee.

¶ 3 Z.C. appealed to the Utah Court of Appeals, which, "with some reluctance," affirmed the juvenile court. State ex rel. Z.C., 2005 UT App 562, ¶ 1, 128 P.3d 561. We granted certiorari to review the court of appeals' decision.

... ... ...

¶ 24 We therefore vacate Z.C.'s adjudication. We stress, however, that our holding is narrowly confined to the application of Utah Code section 76-5-404.1 in situations where no true victim or perpetrator can be identified. Even among children under the age of fourteen, there are unfortunately situations where an older or more physically mature child abuses a younger or smaller child. In cases where there is an identifiable distinction between the perpetrator and the victim, it is manifestly logical to conclude that the legislature intended to include such acts within the scope of Utah Code section 76-5-404.1. In Z.C.'s case, however, where both children were under the age of fourteen and were of similar age, where both children met the intent requirement of the statute, and where there was no evidence of any coercion or force, we conclude that application of the child sex abuse statute produces an absurd result.10

CONCLUSION

¶ 25 Even though the plain language of section 76-5-404.1 allows Z.C. to be adjudicated delinquent for sexual abuse of a child, we conclude that the filing of delinquency petitions against both participants produces an absurd result not intended by the legislature because, like all sexual assault crimes, the statute presupposes a perpetrator and a victim. We therefore hold that the juvenile court erred in denying Z.C.'s motion to dismiss the delinquency petition. We remand this matter to the court of appeals with instructions to remand it to the juvenile court to vacate Z.C.'s delinquency adjudication.

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Girl, 13, charged as sex offender and victim

12-26-2006 Utah:

Salt Lake City - Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old girl could be both an offender and a victim for the same act - in this case, having consensual sex with her 12-year-old boyfriend.

The Ogden, Utah, girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her.

"The only thing that comes close to this is dueling," said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender.

And Chief Justice Christine Durham wondered if the state Legislature had intended the "peculiar consequence" that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.

The comments came in oral arguments on a motion asking the high court to overturn the finding of delinquency - the legal term in juvenile court for a conviction - against Z.C., who became pregnant after she and her boyfriend engaged in sex in October 2003.

State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult.

The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated.

Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime.

Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor.

For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.

A juvenile court judge denied the motion by Z.C., who then admitted to the offense while preserving her right to appeal to a higher court. The boy did not appeal.

The Utah Court of Appeals last December upheld the judge's refusal to dismiss the allegation, saying the law's "rigorous protections" for younger minors include protecting them for each other. Z.C. then appealed to the state Supreme Court.

At Tuesday's arguments, Matthew Bates, an assistant Utah attorney general, argued the prosecution of the girl was not unreasonable. He said the statute in question is designed to prevent sex with children who are 13 and younger, even if the other person is in the same age group.

By passing that law, legislators were sending a message, Bates said: Sex with or among children is unacceptable.

Randall Richards, the girl's attorney, argued that prosecuting children under a law meant to protect them is illogical.

"A child (victim) cannot also be a perpetrator in the exact same act," Richards said.

The Utah Supreme Court will issue a ruling later. ..more.. by Pamela Manson, The Salt Lake Tribune

US v Myers

12-9-2008 Florida:

US v Myers
591 F.Supp.2d 1312 (2008)

Unfortunately Myers was overturned on appeal see US v Myers (584 F.3d 1349 (2009)) full details below.

And also: US v Powers
544 F.Supp.2d 1331 (2008)

Unfortunately Powers was overturned on appeal see US v Powers (584 F.3d 1349 (2009)) see link.

THIS MATTER is before the Court upon Defendant Edward Myers's Motion To Dismiss Indictment (DE 18). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.

Defendant Edward Myers is charged in a one-count Indictment (DE 7) with failure to comply with the registration requirements of the Sex Offender Registration and Notification Act, 42 U.S.C. §§ 16901, et seq. & 18 U.S.C. § 2250 (2006) (hereinafter "SORNA"). He seeks to dismiss the Indictment on several grounds, the most compelling of which is that both § 2250 and the registration requirements found at § 16913 exceed Congress's Commerce Clause power and are therefore unconstitutional.1

This Order centers upon the constitutionality of two statutes within the Adam Walsh Act. The thrust of the discussion centers on Congress's Commerce Clause power, where the intricacies of the law are divorced from any value judgment as to whether and how society should protect itself from sex offenders. Sex offenders have undermined the decency once assumed in our fellow man and made us think twice before sending our children and grandchildren outside for a day of carefree play; they have paralyzed our families with fear. The crimes the Adam Walsh Act is meant to prevent are among the most heinous anyone can imagine. To that end, no lawful measure is too great and few punishments are too severe to protect society from sex offenders. While this sentiment reflects the undersigned's personal feelings on the matter, it does not alter Congress's inability to bring about a manifold good through means it has been denied by the Founding Fathers. See Keller v. United States,213 U.S. 138, 144, 29 S.Ct. 470, 53 L.Ed. 737 (1909).

... ... ...

With statutes like those at issue here, Congress's desire to aid in the protection of society against sexual predators is understandable and laudable. However, "the powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60 (1803). Specifically, the grant of power made under the Commerce Clause is limited. Lopez, 514 U.S. at 552-553, 115 S.Ct. 1624 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 189-95).

Therefore, the statutes challenged herein cannot be upheld. Section 16913 transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling caselaw. Section 2250 also exceeds that grant of power made to Congress under the Commerce Clause. It is in no way a regulation of persons in interstate commerce but an exertion of a general police power through an illusory and impermissible jurisdictional nexus. Thus, the Court declares that § 16913 is unconstitutional in that Congress lacks the power to enact the same under the Commerce Clause. Because an unconstitutional law is no law at all, Defendant Edward Myers shall go hence without day.

Accordingly, after due consideration, it is

ORDERED AND ADJUDGED as follows:

1. The Court hereby declares 42 U.S.C. § 16913 and 18 U.S.C. § 2250 as unconstitutional for the reasons expressed above;

2. Defendant Edward Myers's Motion To Dismiss Indictment (DE 17) be and the same is hereby GRANTED; and

3. That Defendant Edward Myers be discharged to go hence without day for return and exonerated of bond, if any, as to the Indictment hereinabove specified.

DONE AND ORDERED.

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On Appeal: US v Myers
The Government appeals the district court's order dismissing an indictment that charged Edward Myers with traveling in interstate commerce and failing to register as sex offender as required by the Sex Offender Registration and Notification Act (SORNA), in violation of 18 U.S.C. § 2250(a). The district court concluded that both § 2250 and SORNA's sex-offender registration requirements found in 42 U.S.C. § 16913 exceeded Congress's authority under the Commerce Clause. United States v. Myers,591 F.Supp.2d 1312, 1316 (S.D.Fla.2008).

We recently upheld against a Commerce Clause challenge both the failure-to-register offense in 18 U.S.C. § 2250(a) and the registration requirements in 42 U.S.C. § 16913. See United States v. Ambert,561 F.3d 1202, 1210-12 (11th Cir.2009). Myers concedes that the district court's order dismissing the indictment is contrary to Ambert but challenges the reasoning of that panel's decision on appeal. We are bound by that decision unless overruled by the Supreme Court or this Court sitting en banc. See United States v. Vega-Castillo,540 F.3d 1235, 1236 (11th Cir.2008).1 Accordingly, we vacate the district court's order and remand for reinstatement of the indictment. See United States v. Powers,562 F.3d 1342, 1344 (11th Cir.2009).

VACATED AND REMANDED.

State v Brandon

4-29-2013 Ohio:

State v Brandon
2013-Ohio-1740

This appeal emanates from the judgment on sentence entered by the Portage County Court of Common Pleas. Appellant, Dale Brandon, challenges the trial court's failure to award him jail time credit for time spent in jail awaiting extradition as well as the trial court's decision to classify him pursuant to Senate Bill 10's sexual offender classification scheme. For the reasons that follow, we reverse the trial court and remand the matter for further proceedings.

{¶2} On August 2, 2007, appellant was indicted on one count of gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4) and (B); and one count of attempted rape, a felony of the second degree, in violation of R.C. 2907.02(A)(1)(b) and R.C. 2923.02, with a subsequent attempted child rape specification. Appellant entered an oral and written plea of guilty to the charge of gross sexual imposition, which the trial court accepted. The court nolled the remaining count, including the specification.

{¶3} Appellant, through defense counsel, filed a motion to vacate his guilty plea, and a hearing was scheduled for January 7, 2009. On that date, counsel for the state and counsel for appellant appeared; appellant, however, was absent. It does not appear the hearing went forward, but a warrant was issued for appellant's arrest. He was later apprehended in Las Vegas, Nevada, where he was held pending extradition.

{¶4} Prior to being extradited, appellant filed a pro se motion to withdraw his guilty plea. A hearing was scheduled for August 24, 2009. The court's docket indicates a failure of service on appellant for this hearing, and moreover, it does not appear he was even present in Ohio on August 24, 2009. Nevertheless, the trial court overruled appellant's pro se motion on August 26, 2009. Despite this ruling, the trial court issued another notice that a "motion to vacate" hearing would take place on August 31, 2009. After being extradited, appellant appeared with counsel on that date. Rather than conduct a hearing on appellant's motion, however, the trial court indicated it had previously overruled appellant's pro se motion and proceeded to sentencing. Appellant appealed the judgment, and in State v. Brandon, 11th Dist. No. 2009-P-0071, 2010-Ohio-6251, this court reversed the judgment and remanded the matter for the trial court to conduct a proper hearing on appellant's motion to vacate. Id. at ¶19-22.

{¶5} On remand, the trial court conducted a hearing on appellant's motion to vacate and, on February 17, 2011, granted the motion. Appellant subsequently entered an Alford Plea to one count of felony-three gross sexual imposition. Appellant also pled guilty to one count of felony-four failure to appear. The trial court sentenced appellant to four years for gross sexual imposition and 18 months for failing to appear and ordered the terms to be served concurrently. The trial court further ordered appellant be classified as a Tier II sexual offender, pursuant to Senate Bill 10. This appeal followed.

... ... ...

{¶18} In the case sub judice, the sexual offense to which appellant pled guilty occurred on July 29, 2007. Because appellant committed his offense before Senate Bill 10's effective date of January 1, 2009, the trial court erred in applying Senate Bill 10 to him.

{¶19} Appellant's second assignment of error is therefore sustained.

{¶20} For the reasons discussed in this opinion, appellant's assignments of error are well taken. We therefore reverse the judgment of the Portage County Court of Common Pleas and remand this matter to the trial court for proceedings consistent with this opinion.

US v Goodwin

5-8-2013 Illinois:

US v Goodwin
No. 12-2921.

Charles Goodwin pleaded guilty to knowingly failing to register and update a registration as a sex offender, as required by the Sex Offender Registration and Notification Act ("SORNA"). He was sentenced to 27 months' imprisonment, to be followed by a life term of supervised release, subject to ten special conditions.

Goodwin claims that the relevant SORNA provision is an unconstitutional delegation of legislative authority; argues that the district court committed plain error by miscalculating his advisory Sentencing Guidelines range for supervised release and then imposing a sentence within that miscalculated range; and challenges four conditions of his supervised release.

We find his nondelegation claim unpersuasive, and therefore affirm his conviction. We further hold that the erroneous calculation of the advisory Guidelines range and the imposition of special conditions without explanation by the district court or support in the record warrant vacating his sentence and remanding to the district court for resentencing.

... ... ...

Goodwin argues that his deprivation of expressive material under Conditions 6 & 7 violates his First Amendment rights. Since we vacate these conditions on other grounds, we need not reach this constitutional question. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (19836) (Brandeis, J., concurring).

6. Other Conditions
Goodwin's objections to the special conditions that the district court imposed focus exclusively on Conditions 4-7. We wonder why he has not objected to Conditions 8 and 10 as well. These two conditions require him to participate (at his own expense) in sex offender treatment and mental health counseling, respectively, "as deemed necessary by the probation officer." As with the other special conditions, the district court imposed these conditions without explanation.

We note once again that each special condition imposed must be tailored to Goodwin and his needs, see Angle, 598 F.3d at 360-61, and involve no greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation, see Holm, 326 F.3d at 876. Given that Goodwin's instant offense is for a failure to register, the penological purpose of these treatment and counseling programs is far from clear.

Courts of appeals ordinarily abstain from considering issues sua sponte. See Wood v. Milyard, 132 S.Ct. 1826, 1834 (2012). Nonetheless, "[w]hen in a criminal appeal the court of appeals notices a plain error, it can reverse even if the appellant had not drawn the error to the court's attention." United States v. Gutierrez-Ceja, 711 F.3d 780, 784 (7th Cir. 2013). Here, we are unable to discern any connection between Goodwin's offense and the purposes that sex offender treatment and mental health counseling typically serve. Thus, Conditions 8 and 10 require additional consideration on remand, for similar reasons as explained in our discussion of Conditions 4-7.

III. CONCLUSION.

For the foregoing reasons, we AFFIRM Goodwin's conviction, VACATE the supervised release portion of his sentence, and REMAND to the district court for resentencing consistent with this opinion. The resentencing shall be limited to a reassessment of the length of Goodwin's supervised release and any special conditions imposed during this period.

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PDF copy

State v Clair

4-24-2009 Ohio:

State v Clair
2013-Ohio-1630

{¶ 1} Appellant Zachary Clair ("Clair"), appeals a decision of the Alliance Municipal Court, Stark County, Ohio classifying him as a Tier I sex offender after a no contest plea.

Facts and Procedural History

{¶ 2} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts in both parties' brief that are outside of the record.

... ... ...

{¶ 28} For the foregoing reasons, the portion of the trial court's decision classifying Clair as a Tier I sex offender is reversed, and this matter is remanded for proceedings in accordance with our opinion and the law.

JUDGEMENT ENTRY

For the reasons stated in our accompanying Memorandum-Opinion, the portion of the trial court's decision classifying Clair as a Tier I sex offender is reversed, and this matter is remanded for proceedings in accordance with our opinion and the law. Costs to appellee.

Informational Post: Listing Cases Which Require -Sex Offenders and Felons- to Post Signs Around Homes

5-9-2013 National:

This Informational Post was prompted by the case: State v Schad.

Below are other cases which cover "Sign Issues" and we will update this post as we find others in the future.

In all of the following the signs were ordered TAKEN DOWN for various reasons, see cases:

• Kansas: State v Schad (Reasons are shown in the original)

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• Tennessee: State v Burdin "The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature. State v. Hale,840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State,496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 130 Tenn. 100, 106-07, 169 S.W. 558, 559-560 (1914). The condition imposed in this case is not expressly or implicitly authorized by the Act.
  
  Where the legislature has considered the public disclosure of the identity of sexual offenders, authorization has been far more restrictive than the public disclosure ordered in this case. The Sexual Offender Registration and Monitoring Act, which became effective January 1, 1995, addresses the circumstances under which the identity and other information regarding sexual offenders may be released. That act establishes a sexual offender registry to be maintained by the Tennessee Bureau of Investigation, and it authorizes the use of information about sexual offenders by law enforcement officials and other public officials "assigned responsibility for the offender's supervised release." Tenn. Code Ann. § 40-39-106 (Supp. 1995). That act further provides that otherwise, the information in the registry, "shall be confidential," except that a law enforcement agency "may release relevant information deemed necessary to protect the public concerning a specific sexual offender." Tenn. Code Ann. § 40-39-106(c). Even though the issue before the Court is not controlled by that statute, it does reflect the policy of the legislature regarding the public identification of sexual offenders. Posting the sign ordered by the court in this case would not be consistent with that policy."

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• Montana: State v Muhammad " ¶ 37 We agree with the majority of jurisdictions holding that the imposition of such conditions exceeds express or implicit statutory authority granted to trial courts, as the requirement is not reasonably related to serve the goals of rehabilitation and the protection of the victim and society. Therefore, we conclude that the condition requiring the placement of signs at every entrance of Muhammad's residence violates § 46-18-202(1)(e), MCA (1997).
  
  This condition, as is the banishment condition, is unduly severe and punitive to the point of being unrelated to rehabilitation. As noted by other jurisdictions, the effect of such a scarlet letter condition tends to over-shadow any possible rehabilitative potential that it may generate. Moreover, the District Court imposed less restrictive means to rehabilitate Muhammad and to protect the victim and society, such as requiring that he obtain sexual offender treatment, have no contact with the victim or her family and register as a sexual offender and as a violent offender, which permits the agency that Muhammad is registered with to disseminate his name to the public with the notation that he is a sexual offender, pursuant to § 46-23-508(1)(b)(ii), MCA (1997).
  
  ¶ 38 Whereas we have determined that the sign requirement is not reasonably related to the goals of rehabilitation and the protection of the victim and society in violation of § 46-18-202(1)(e), MCA (1997), we will not address Muhammad's constitutional arguments. For the foregoing reasons, we vacate the condition requiring the placement of warning signs at every entrance of Muhammad's residence imposed in the District Court's June 7, 2000, Order."

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• Illinois: People v Meyers "Although the sign may foster the goals of probation to the extent that it punishes the defendant and protects the public, furtherance of these two goals alone does not render the condition reasonable. Indeed, we are persuaded by defendant's contention that the sign, in fact, may hamper the goal of rehabilitation, and that the erection of the sign is inconsistent with the conditions of probation listed in section 5-6-3(b). We recognize that the trial court labored arduously and sincerely to develop a sentence which would serve the needs of society and simultaneously avoid incarceration of the defendant. Nonetheless, we hold the sign condition of probation imposed in this case was unreasonable and did not serve the purposes of section 5-6-3(b).... ... ...
  
  We hold that section 5-6-3(b) of the Code did not authorize the trial court to require the sign as a condition of the defendant's probation. The sign contains a strong element of public humiliation or ridicule because it serves as a formal, public announcement of the defendant's crime. Thus, the sign is inconsistent with the conditions of probation listed in section 5-6-3(b), none of which identify public notification or humiliation as a permissible condition. Further, we determine that the sign may have unpredictable or unintended consequences which may be inconsistent with the rehabilitative purpose of probation.
  
  Finally, the nature and location of the sign are likely to have an adverse effect on innocent individuals who may happen to reside with the defendant. At the time of sentencing in this case, the defendant's wife was living on the premises where the violent felon sign was to be displayed. The defendant's elderly mother also intended to live there. The record shows that the defendant has two adult children who visit the farm, as well as young grandchildren. We believe that the manner in which the sign affects others also renders it an impermissible condition of probation.
  
  Conditions which label a defendant's person or property have a stigmatizing effect and are considered shaming penalties. D. Kahan, What Do Alternative Sanctions Mean? 63 U. Chi. L.Rev. 591 (1996); Comment, Sentenced to Wear the Scarlet Letter: Judicial Innovations in Sentencing-Are They Constitutional? 93 Dick. L.Rev. 759 (1989); Comment, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke L.J. 1357 (1989). Although a probationer may experience a certain degree of shame from a statutorily identified condition of probation, shame is not the primary purpose of the enumerated conditions.
  
  The judicially developed condition in the case at bar does not reflect present penological policies of this state as evidenced by our Unified Code of Corrections. The authority to define and fix punishment is a matter for the legislature. People v. Breen,62 Ill.2d 323, 327, 342 N.E.2d 31 (1976). The drastic departure from traditional sentencing concepts utilized in this case is not contemplated by our Code. Therefore, we determine that the erection of the sign as a condition of probation was unreasonable, and may be counterproductive to defendant's rehabilitative potential."

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More to follow as we find them.

State v Schad

4-24-2009 Kansas:

State v Schad
206 P.3d 22 (2009)

After pleading no contest to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511, Leroy Schad was placed on 60 months' probation. The trial court imposed several probation conditions that included placing him under house arrest, forbidding him from grocery shopping, and ordering him to place sexual offender signs around his house and on his car. On appeal, Schad raises arguments relating to his probation conditions, the term of his probation, and the term of his underlying prison sentence. The State contends, however, that this court lacks jurisdiction to decide Schad's arguments under K.S.A. 21-4704b(f). We disagree with the State's contention and find that we have jurisdiction to address Schad's arguments.

First, Schad argues that the probation conditions requiring him to post signs around his house and on his car were invalid because they violated his right to privacy and his right against cruel and unusual punishment and because the trial court did not have the authority to impose the conditions. Nevertheless, when a valid alternative ground for relief exists, an appellate court need not reach the constitutional contentions of the parties. Because we reverse and remand to the trial court to sever these conditions from the order of probation on the basis that they violate our statutory scheme, it is unnecessary for us to address the constitutional law contentions.

... ... ...

The trial court also ordered Schad to place signs, with letters at least 4 inches tall, stating that a "sexual predator lives here" on all four sides of his property. Moreover, the trial court ordered Schad to put stickers similar to what "campaign people" use on both sides of his car that state "sexual predator." The trial court further ordered Schad not to have contact with any children under the age of 16, including his grandchildren.

After Schad filed his notice of appeal in this case, the State moved to revoke Schad's probation for failure to comply with the conditions of his probation. The State maintained that Schad had failed to contact the appropriate program to set up his house arrest and that he had not affixed the ordered signs on his property and on his car. Schad moved to advance the case for an immediate hearing on the State's allegation of a probation violation. Schad also moved the trial court to reconsider its probation order relating to the wording on the ordered signs. In addition, Schad asked the trial court to allow him a reasonable time to find out whether his family would be able to assist him with the costs of the house arrest program. Schad requested that if no financial help could be arranged, that the trial court reconsider whether ordering him to pay the cost of the house arrest program constituted cruel and unusual punishment. Attached to Schad's motion for reconsideration was an affidavit from Schad outlining his concerns about the probation conditions.

After holding a nonevidentiary hearing, the trial court granted the State's motion to revoke Schad's probation. The trial court modified the language in its earlier order and required Schad to place signs on his property stating that a "Sex Offender Lives Here" (instead of "sexual predator lives here") and on his car stating that "Sex Offender In This Car" (instead of "sexual predator"). In addition, the trial court reinstated Schad's probation with a few new conditions. The trial court imposed a new 5-year term of probation. Moreover, the trial court specified the dates by which Schad was required to comply with the probation conditions.

... ... ...

Summary of Disposition

In summary, we affirm Schad's underlying prison sentence. We remand the case to the trial court with instructions to do the following:

• (1) The trial court will sever the conditions of probation requiring Schad to post signs around his house and on his car.
• (2) The trial court will reconsider its order requiring Schad to serve 60 months of probation. It will clarify whether there were substantial and compelling reasons, as outlined in McKay, 271 Kan. at 728, 26 P.3d 58, to impose the 60-month term of probation. If the answer is yes, it will set out substantial and compelling reasons for deviating from the recommended 36-month term of probation. If the answer is no, it will be limited to imposing the recommended 36-month term of probation.
• (3) The trial court will reconsider the no grocery shopping condition of probation. It will sever the no grocery shopping condition unless it finds that grocery shopping was a nonessential activity for Schad. In all other respects, the conditions of probation will remain the same.

Affirmed in part, reversed in part, and remanded to the trial court with directions.

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

FACTS
¶ 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.

Eilers v State

6-25-2010 Georgia:


Eilers v State
697 S.E.2d 295 (2010)

Kenneth Eilers appeals from his conviction of failing to register as a sex offender. He contends insufficient evidence supports his conviction because the State failed to prove that he was required to register as a sex offender under OCGA § 42-1-12. We agree and therefore reverse.

OCGA § 42-1-12(e)(3) requires sex offender registration "by any individual who ... [h]as previously been convicted of a criminal offense against a minor and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996." (Emphasis supplied.) Sex offenders who are required to register must:

(1) Provide the required registration information to the appropriate official before being released from prison or placed on parole, supervised release, or probation;

(2) Register with the sheriff of the county in which the sexual offender resides within 72 hours after the sexual offender's release from prison or placement on parole, supervised release, probation, or entry into this state.

(Emphasis supplied.) OCGA § 42-1-12(f)(1), (2).

The record shows that Eilers pled guilty to one count of child molestation and was sentenced to ten years of probation on June 27, 1995. The judge's sentencing order did not require him to register as a sex offender. For reasons that cannot be determined from the record before us, Eilers first registered as a sex offender in 2005 and again in July 2006. In July 2006, the sheriff's office informed Eilers that he would be required to register again on his birthday in February 2007. When Eilers failed to register at that time, he was arrested for violating OCGA § 42-1-12. The trial judge found him guilty and sentenced him to ten additional years of probation.

Based on this evidence, the State failed to prove that Eilers violated the sex offender registration requirements of OCGA § 42-1-12. Eilers was placed on probation on June 27, 1995, and the sex offender registration requirements apply only to offenders placed on probation after July 1, 1996. Judgment reversed.

State v Dickerson

2-3-2006 Idaho:

State v Dickerson
129 P.3d 1263 (2006)

This case involves the interpretation and the constitutionality of former Idaho Code § 18-8304, a component of the Sex Offender Registration Notification and Community Right-to-Know Act ("the Act"), as it existed in 2003. Thomas C. Dickerson contends that the charge against him for failure to register as a sex offender was improper because he was not required to register under the provisions of I.C. § 18-8304. Alternatively, he argues that if the statute is interpreted to have imposed a registration requirement upon him, then it violated his constitutional right to travel guaranteed by the Fourteenth Amendment. We hold that I.C. § 18-8304(1)(b) imposed a registration requirement upon Dickerson at the time he was charged but that the statute, as then written, was constitutionally unsound as applied to him.

... ... ...

CONCLUSION
As a matter of statutory law, Dickerson was required to register as a sex offender under the terms of I.C. § 18-8304(1)(b). Because the statutory provision under which he was convicted was unconstitutional, however, Dickerson's conviction for failure to register must be reversed.6

The judgment of conviction entered by the district court is reversed.

Smith v State

2-10-2009 Idaho:


Smith v State
203 P.3d 1221 (2009)

AMENDED OPINION
THE COURT'S PRIOR OPINION DATED FEBRUARY 9, 2009 IS HEREBY WITHDRAWN

Jason Smith was incarcerated for the 1998 rape of a fifteen-year-old girl. Prior to his release, he was referred to the Sexual Offender Classification Board (the Board or SOCB) to determine whether he should be classified as a violent sexual predator (VSP). The Board classified Smith as a VSP. Smith sought judicial review of that decision. After conducting an evidentiary hearing, the district court upheld the Board's decision. We conclude Smith's designation was not constitutionally sound and, therefore, reverse and remand with instructions to vacate Smith's designation as a VSP.

... ... ...

US v Hatcher

3-13-2009 Virginia:

US v Hatcher
560 F.3d 222 (2009)

In these consolidated appeals, William T. Hatcher, Richard Dean Hinen, Gregory V. Roberts, and John Edward Sawn appeal their convictions. Each of the Appellants was convicted of knowingly failing to register or update their registration as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a) (2006). The Appellants argue that SORNA is unconstitutional because it is not a valid exercise of congressional authority and because it violates the non-delegation doctrine, the Ex Post Facto Clause, and the Due Process Clause of the Fifth Amendment. However, we need not reach these constitutional questions because we find that, as a matter of statutory interpretation, SORNA's registration requirements did not apply to the Appellants at the time they committed the acts giving rise to their indictments. Therefore, we must reverse the convictions and vacate the sentences imposed in connection with those convictions.

I.
The Appellants were convicted of sex offenses in state courts between 1993 and 2001. All of the Appellants had finished serving the sentences imposed on them for those offenses prior to July 27, 2006, the enactment date of SORNA. As a result of their convictions, the Appellants were required to register under the sex offender registration systems of their respective states, and all of the Appellants initially complied with those registration requirements. At various times between July 27, 2006, and February 28, 2007, the Appellants moved to other states and failed to comply with SORNA's continuing registration requirements.

The Appellants were indicted on one count of traveling in interstate or foreign commerce and knowingly failing to register or update a sex offender registration as required by SORNA, in violation of 18 U.S.C. § 2250(a) (2006). Each of the Appellants was indicted after February 28, 2007.1 The Appellants filed motions to dismiss their respective indictments, but those motions were denied by the district courts.2 Hatcher, Roberts, and Sawn each entered a conditional guilty plea, preserving the right to appeal the denial of the motion to dismiss. Hinen was convicted in a jury trial.

... ... ...

It is important to note that the decision reached today is quite narrow, for we do not hold that SORNA's registration requirements do not apply to persons who were convicted of sex offenses prior to SORNA's enactment date. Rather, we hold only that SORNA's registration requirements did not apply to pre-SORNA offenders until the Attorney General issued the interim rule on February 28, 2007.

IV.
Because the Appellants' indictments were based on conduct that pre-dated the Attorney General's interim rule specifying that SORNA's registration requirements applied to pre-SORNA offenders, we reverse the Appellants' convictions and vacate the sentences imposed in connection with those convictions.

REVERSED AND VACATED

Judge: Sex Offender Must Sell House, Move

Apparently the man owned the home, and had a lawyer (criminal case), why would the lawyer allow him to do this? The home was not forfeited, and he could have rented it and lived elsewhere. Checked for appeal and there was none. Constitutional rights were violated by the court here, no doubt.

8-16-2012 Texas:

REFUGIO -- A convicted sex offender has been ordered to sell his house and relocate after pleading guilty to having sexual contact with a 5-year-old girl last summer.

Raymond Ramirez Sr., 65, was sentenced to six months in jail and ten years probation, one of the conditions of which requires him to "sell and relocate from his current residence on or before 10-18-12."

Ramirez's house on Wales Road is about a quarter mile down the road from a child daycare center.

As part of his probation, Ramirez must visit regularly with a probation officer, have no contact with children and abide by a nightly curfew. ..Source.. by Mike Manzoni

State v Ameem

4-18-2013 Ohio:

State v Ameem
2013-Ohio-1555

When defendant-appellant Ansuri Ameem moved to Ohio, his prior California conviction for sexual assault with a foreign object and pandering classified him as a sexually-oriented offender under the former Megan's Law. He was required to register his address annually for a period of ten years.

In July 2007, the attorney general reclassified Ameem as a Tier III offender under the Adam Walsh Act — a reclassification that required him to register his address every 90 days for life.

He failed that obligation in July 2010 and was indicted on a single count of failing to register his address. Ameem sought dismissal of the indictment on grounds that his 2007 reclassification was unconstitutional under State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753.

The court denied the motion to dismiss, Ameem pleaded no contest to the charge of failing to register, and this appeal followed. We find that the court erred by refusing to grant the motion to dismiss.

... ... ...

Ameem was charged with failing to register as required by R.C. 2950.04(E). While both Megan's Law and the Adam Walsh Act contain similar reporting requirements, the time periods under each law are quite different: as a sexually oriented offender under Megan's Law, Ameem had the duty to register on a yearly basis for ten years; as a Tier III offender under the Adam Walsh Act, he had the duty to register every 90 days for life.

It is unclear from the record whether Ameem was in violation of Megan's Law at the time the grand jury returned the indictment charging him with a violation of the Adam Walsh Act. We therefore sustain the assignment of error.

This cause is reversed and remanded to the trial court for further proceedings consistent with this opinion.

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Appeals Court Reverses Sex Offender’s Conviction, Can’t Be Reclassified under the Adam Walsh Act

4-22-2013 Ohio:

The Eighth District Court of Appeals ruled April 18 that a sex offender from California who moved to Ohio cannot be reclassified as a Tier III offender under the Adam Walsh Act.

Ansuri Ameen was required to register his address annually for a period of ten years when he first moved to Ohio under the former Megan’s Law. In July 2007, the attorney general reclassified Ameem under the Adam Walsh Act, which required him to register his address every 90 days for life.

Ameen failed to register in July 2010 and was indicted on a single count of failing to register his address. Ameen tried to get the charge dismissed, arguing that his 2007 reclassification was unconstitutional under the 2010 Ohio Supreme Court case State v. Bodyke, which held that the attorney general’s reclassification of an offender from Megan’s Law to the Adam Walsh Act “violated the separation of powers doctrine because it would allow the executive branch to review a decision made by the judicial branch.”

The state argued that Ameen’s case is different than Bodyke because Ameem’s classification was made in California and not in Ohio.

Administrative Judge Melody J. Stewart wrote in the appeals court’s unanimous decision that the Eighth District Court of Appeals has “repeatedly rejected the argument that there is a distinction between in-state and out-of-state offenders.”

Judge Stewart found that Ameen’s case is also not affected by the December 2012 Ohio Supreme Court decision State v. Brunning, in which the court held that “despite an offender who was originally classified under Megan’s Law being wrongly reclassified under the Adam Walsh Act, the state could still maintain a prosecution for a violation of the reporting requirements as long as the alleged violation also constituted a violation of Megan’s Law.”

Judge Stewart noted that Brunning was charged with failing to comply with a change of address requirement that was the same under both Megan’s Law and the Adam Walsh Act, while Ameen is required to register annually for 10 years under Megan’s Law, compared to every 90 days for life under the Adam Walsh Act.

Judges Mary J. Boyle and Tim McCormack concurred in the April 18 opinion that reversed the judgment of the trial court and remanded the case for further proceedings. ..Source.. by Jenna Gant