Supreme Court: Stallworth Does Not Have to Register as a Sex Offender

4-16-15 Mississippi:

The Mississippi Supreme Court ruled today that a Jackson pastor, who was convicted of a sex crime in another state but had the conviction expunged, does not have to register as a sex offender in Mississippi.

Jeffrey A. Stallworth pleaded guilty to a misdemeanor sexual assault of a woman in Maryland in 2002, requiring him to register as a sex offender.

Later, in 2010, a Maryland judge expunged the conviction. Stallworth argued that he should not have to appear on the Mississippi sex offender registry. The Mississippi attorney general's office, which is representing the state, disagreed with Stallworth's argument.

In a split decision, the state supreme court agreed with Stallworth's interpretation.

Butler v Jones

12-17-2013 Oklahoma:

Butler v Jones

On June 28, 2000, Petitioner/Appellee, Jerry Dale Butler (hereinafter "Butler") pled guilty to two counts of "Sexual Abuse of a Minor Child" pursuant to 10 O.S., § 7115 in Sequoyah County, Oklahoma and received two five-year deferred sentences which ran consecutively.1 Sometime thereafter, Butler began registration under the Sex Offenders Registration Act, 57 O.S., § 581 et seq. (hereinafter "SORA").2

On April 1, 2010, the district court in Sequoyah County issued an order expunging Butler's plea from the record in accordance with 22 O.S., § 991c, thereby deleting all references to his name from the docket sheet, deleting the public index of the filing of the charge, and providing no information concerning the confidential file shall be revealed or released without order of a judge or district court.

On June 18, 2010, Butler filed a Petition for Injunction to permanently enjoin the Respondent/Appellant, Justin Jones ex rel., State of Oklahoma ex rel., Oklahoma Department of Corrections (hereinafter "Department") from requiring him to continue registering under SORA.

He argued requiring him to register violates his rights to equal protection of the laws and to due process of law "under the Constitutions of the United States, Amendments V and XIV, and of the State of Oklahoma, Art. 2, §§ 2 and 7, and Article 5, § 59."

His main and most developed argument is his equal protection challenge. He alleged 57 O.S., § 582 (E) violates his right to equal protection because it treats persons with expunged records in Oklahoma differently from persons whose records were expunged in other states. Subsection E of § 582 was added in 2009 and provided:

E. The provisions of the Sex Offenders Registration Act shall not apply to any such person who has received a criminal history records expungement for a conviction in another state for a crime or attempted crime which, if committed or attempted in this state, would be a crime or an attempt to commit a crime provided for in any said laws listed in subsection A of this section. 2009 Okla. Sess. Laws c. 404, § 2 (eff. Nov. 1, 2009).

Butler also asserted § 582 (E) offended Article 5, § 59 of the Oklahoma Constitution which concerns special laws and he is being denied due process of the law available to persons whose criminal history records were expunged in other states. He asserted there is no legitimate state purpose for denying Oklahoma defendants in deferred sentence cases the same privilege as that accorded to citizens of Oklahoma whose criminal history records were expunged in any of the other states.

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CONCLUSION

¶ 17 We find the district court gave deference to an unlawful expungement over valid law requiring Butler to register under SORA for his lifetime. The district court reached an erroneous conclusion that Butler's case presented an "unusual and narrow circumstance" which justified it ignoring valid and existing law.

We also find the provisions of 57 O.S., § 582 (E) do not deny Butler equal protection of the law. At the time of Butler's plea, the law required a person who received any probationary term for a crime provided for in 10 O.S., § 7115, if the offense involved sexual abuse, to be designated an "aggravated" sex offender and to register under SORA for life. Requiring Butler to register under SORA based upon the law in effect at the time of his plea is consistent with our recent holding in Cerniglia v. Oklahoma Dept. of Corrections, 2013 OK 81, ___ P.3d ___.

We reverse the district court's order granting a permanent injunction against the Department and require the district court to order Butler's registration under SORA be reinstated for his lifetime because of his "aggravated" sex offender status.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

State v Divine

1-28-2011 Kansas:

State v Divine
No. 102,907.

Anthony Divine directly appeals from the district court's determination that he must continue to register as a sex offender despite an expungement of the conviction for which he was required to register. Finding that the expungement provisions of K.S.A. 2010 Supp. 21-4619 do not provide for the disclosure of the expunged offense through sex offender registration, we reverse.

FACTUAL OVERVIEW

In 2003, Divine pled guilty to lewd and lascivious behavior. The district court convicted Divine and placed him on probation. Thereafter, pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., Divine was required to register as a sex offender for 10 years. In addition, the registration requirement was made a condition of Divine's probation. Ultimately, Divine successfully completed his probation in 2005. He continued to register as a sex offender.

Some 3 years after completing probation, Divine filed a petition for expungement of the lewd and lascivious conviction. Apparently, the court did not conduct a formal hearing on the petition but rather it accepted and executed a journal entry which had been approved by the prosecutor and defense counsel. The expungement order was filed November 26, 2008.

Thereafter, Divine filed a motion to lift the registration requirement, arguing that the expungement had erased the conviction for which he was required to register. The State responded that the district court lacked jurisdiction to address the issue because Divine was statutorily required to register because of the conviction, rather than as a condition of probation. The district court found that K.S.A. 22-4908 prevented the court from granting Divine's motion. Divine was ordered to continue registering as a sex offender until July 8, 2013.

Divine filed a timely notice of appeal to the Court of Appeals. This court transferred the appeal on its own motion, pursuant to K.S.A. 20-3018(c).

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In conclusion, we find that the expungement of Divine's lewd and lascivious conviction terminated his status as an offender required to register under KORA. The expungement statute does not provide an exception for the disclosure of the expunged conviction through KORA registration, and the expungement order in this case did not make such disclosure a special exception under K.S.A. 2010 Supp. 21-4619(f)(3). The district court should have found that Divine's registration requirement terminated as a matter of law, and such an order would not have run afoul of K.S.A. 22-4908.

The district court is reversed. The matter is remanded with directions to the district court to rescind its order that Divine must register until July 8, 2013, and to enter an order that Divine's registration requirement has terminated as a matter of law.
Reversed and remanded with directions.