USA v Roberson

5-21-2014:

USA v Roberson

This case addresses an important question of interpretation of first impression in the federal courts of appeals. Defendant James Roberson appeals from a district court denial of his motion to dismiss and from his criminal conviction for his failure to register as a sex offender under SORNA, the Sex Offender Registration and Notification Act. 18 U.S.C. § 2250.

At the time of his federal indictment in July 2012, Roberson stood convicted, in 1998, of the Massachusetts crime of indecent assault and battery on a child under the age of 14. Mass. Gen. Laws ch. 265, § 13B. He did not appeal from that conviction; nor did he ever register as a sex offender at any time between 2010 and 2012, though he had been notified of his obligation to do so.

Four months after his federal SORNA indictment, on November 16, Roberson moved to withdraw his guilty plea to the sex crime in the state court. Roberson did not and does not allege that he was innocent of the indecent assault. But he did allege that his guilty plea had entered after a constitutionally defective procedure. The local prosecutor did not oppose the motion because the plea judge had utilized incomplete and inadequate plea-colloquy procedures before June 16, 2000 and there was no independent evidence that the proper plea procedures were followed during Roberson's March 4, 1998 plea hearing.1 The local state district court allowed the unopposed motion on January 11, 2013. We assume arguendo that Roberson's plea colloquy was constitutionally defective.

On February 15, 2013, Roberson moved to dismiss his federal charges on the basis that he no longer had a predicate sex offense to support a SORNA violation. More specifically, he argued that because of the constitutional defect, he was never "validly" convicted. He argued that his case is governed by Burgett v. Texas, 389 U.S. 109 (1967), and not by Lewis v. United States, 445 U.S. 55 (1980).

Agreeing with the district court, we hold that SORNA's registration requirement applied to Roberson as a person who "was convicted" of a sex offense, 42 U.S.C. § 16911(1), enforced by 18 U.S.C. § 2250, regardless of whether that conviction is later vacated, when federal charges have been brought for conduct before the vacation of conviction. We also reject Roberson's additional challenges.

People v Brooks

3-29-2012 Colorado:

People v Brooks

Defendant, Lorenzo Brooks, appeals the judgment of conviction following a bench trial in which the court found him guilty of failure to register as a sex offender. Because we conclude defendant was not required to register as a sex offender in Colorado, we reverse the judgment of conviction.

When the two offenses are contrasted, it is clear that Colorado requires an additional element that the crime be "under circumstances in which such conduct is likely to cause affront or alarm to another person." The Texas statute lacks this additional element.2 Thus, defendant's Texas conviction for indecency with a child by exposure did not satisfy all the elements of the crime of indecent exposure in Colorado. Consequently, the People failed to prove defendant's crime was one which, if committed in Colorado, would require defendant to register as a sex offender.

Therefore, we conclude defendant is not required to register as a sex offender because his conviction in Texas does not fall within the statutory requirements of sections 16-22-103(1)(b), 18-3-411(1), 18-3-412.5(1), and 18-7-302(1)(a).3

The judgment of conviction is reversed.

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Colorado Court Overturns Failure To Register As A Sex Offender Conviction § 18-3-412.5(1), C.R.S., 16-22-103(1)(b), C.R.S. Based On Out Of State Conviction

In a recent Colorado case - People v Lorenzo Brooks - the defendant's conviction's conviction for failure to register as a sex offender was overturned because his out of state Texas conviction had no Colorado sex crime equivalent. The case addresses when an out of state resident - or a resident with an out of state sex crime conviction - must register in the state of Colorado.

The Colorado court of appeals concluded that Brooks was not required to register as a sex offender in - here is the analysis. The Colorado Supreme Court recently reaffirmed the decision.

The rule in Colorado - in this complex case - which addresses Colorado's Sex Offender registration laws - and discusses whether section 16-22-103(1)(b), C.R.S. 2011, which requires an element-by-element comparison of a defendant's out-of-state conviction with that of an existing unlawful sexual offense in Colorado to make the determination of whether sex offender registration - was properly followed.

The Factual Background of The Case
In 1994, the defendant pleaded guilty in Harris County, Texas, to the crime indecency with a child by exposure, Tex. Penal Code Ann. § 21.11(a)(2) and was sentenced to ten years in the Texas Department of Corrections.

His case was then transferred to El Paso County, Colorado, where he pleaded guilty to the Colorado crime of aggravated robbery and again received a lengthy prison sentence.
After his parole in 2007 the defendant was told that he must register as a sex offender under the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S., based upon the Texas conviction. He did - for 7 quarters - but then moved without updating the sex offender registry.

He was later charged with - and convicted of two felony counts of failing to register as a sex offender.

The Analysis of Colorado's Failure to Register Law - 16-22-103(1)(b)As It Applies To Out of State Sex Crime Convictions

The Duty to Register As A Sex Offender In Colorado
The Court found that Brooks was not required to register as a sex offender, and, therefore, could not be legally convicted of failing to register.

Colorado's Sex Offender Registration Requirements
In Colorado - to be guilty of the criminal offense of failing to register as a sex offender, the defendant must be "[a] person who is required to register pursuant to article 22 of title 16, C.R.S [the sex offender registration statute]." § 18-3-412.5(1), C.R.S. 2011.

The Colorado law reads that

- "the purpose of sex offender registration is not to inflict additional punishment on a person convicted of a sexual offense, but rather to aid law enforcement officials in investigating future sex crimes and to protect the public safety." (and that).. Any person who was convicted on or after July 1, 1991, in another state or jurisdiction . . . of an offense that, if committed in Colorado, would constitute an unlawful sexual offense, as defined in section 18-3-411(1), C.R.S." is required to register under the Colorado Sex Offender Registration Act. § 16-22-103(1)(b), C.R.S. 2011.

The Colorado Crime of Indecent Exposure 18-3-411
Section 18-3-411(1), C.R.S. 2011, states that an unlawful sexual offense includes "indecent exposure, as described in section 18-7-302. Indecent Exposure was then defined as knowingly expose[d] his genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person." § 18-7-302(1)(a)

The Court compared the elements of the defendant's Texas conviction of indecency with a child by exposure. Tex. Penal Code Ann. § 21.11(a)(2) to the nearest equivalent of Indecent Exposure. The court found that the the Texas conviction was not the equivalent of the Colorado sexual offense of indecent exposure because the Colorado crime of indecent exposure contained an element missing from Texas's indecency with a child statute.

Colorado Law Requires An Element by Element Comparison of the Out Of State Criminal Conviction
In this case - when the two offenses were contrasted, it was clear that Colorado required an additional element that the crime be "under circumstances in which such conduct is likely to cause affront or alarm to another person."....and that the Texas statute lacked the additional
element.

The Lesson Of This Case - Colorado's Failure to Register Law 16-22-103
If an individual moves to Colorado with a conviction for another's state's sex crime - after an analysis of the crime as compared to Colorado sex offender laws - the out of state conviction must satisfy all the elements at least one Colorado sex crime. If it does not - the individual is NOT required to register as a sex offender because the out of state conviction does not fall within the statutory requirements of sections 16-22-103(1)(b), 18-3-411(1), 18-3-412.5(1), and 18-7-302(1)(a). ..Source.. by H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the First 13 years of his career, he was an Arapahoe - Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

See this lawyer's explanation of this case.