Sex offender's 3-year prison term for failing to register not excessive, appeals court finds

7-3-2014 Louisiana:

A state appeals court has upheld the three-year prison sentence that a Jefferson Parish judge gave a Port Sulphur man for failing to complete his sex offender registration. Carlo Muth, 39, said the punishment is excessive, because he tried to register when he moved to Jefferson Parish but could not afford the $628.75 fee that the Sheriff's Office charged him.

Muth was given the sentence in September by Judge Lee Faulkner of the 24th Judicial District Court. A jury had convicted Muth for failing to register as a sex offender when he moved to Jefferson in 2012.

He was required to register because of his 2005 guilty plea in Plaquemines Parish's 25th Judicial District Court to to molestation of a juvenile. He admitted having sex with a 14-year-old girl, when he was 29.

When he moved to Jefferson, he notified the Sheriff's Office and registered as a sex offender. He was given 21 days to notify the community, a requirement of state law. But he told the Sheriff's Office he could not afford the community notification fee, court records show. Lt. Luis Munguia, in charge of the sex offender registry, gave him an extension through January 2013. Muth still did not register, leading Munguia to seek his arrest.

Muth moved back to Plaquemines in March 2013 and was trying to register as a sex offender there when he was arrested on the Munguia's warrant. Police say he admitted he had been paid at his job but that he still made no attempt to pay the Jefferson fee.

After Muth was convicted, Faulkner sentenced him to three years in prison with no benefit of probation, parole or suspended sentence. His trial attorney's argument that the sentence was excessive was unheeded.

Muth appealed to the 5th Circuit Court of Appeal in Gretna. A three-judge panel sided with Faulkner in finding that the trial judge did not abuse his discretion in handing down the punishment.

The punishment range for failing to register is two years to 10 years in prison, the appellate court noted. Another Jefferson Parish judge had previously handed down a five-year sentence in an unrelated case, the appellate court found.

"In the instant case, although (Muth) has only one prior felony conviction and his instant conviction appears to stem from financial difficulty, we find that these mitigating factors are reflected in his sentence that is less than midrange and illegally lenient," Judge Jude Gravois wrote in the June 24 opinion, for Susan Chehardy and Robert Murphy.

"Accordingly, we concluded that the trial court did not abuse its discretion in sentencing (Muth) to three years imprisonment at hard labor without benefits. ..Source.. by

7th Circuit upholds $100 annual sex offender registry fee

1-24-2014 Wisconsin:

Mueller v Raemisch
740 F.3d 1128
Court Docket

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This decision overturns
Doe v Raemisch

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Personally I find this decision disgusting, the judge fails to recognize one "having a choice to use a service (passports)" -vs- "being forced against one's will into and pay for a public governmental system (registries).

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The $100 that Wisconsin sex offenders must pay every year for being listed on a registry is not an unlawful fine, a federal appeals court has ruled. But the court did not address other lifetime conditions of Wisconsin sex offender registration because it found the challengers lacked standing.

The decision by the 7th U.S. Circuit Court of Appeals reversed a ruling by a Green Bay federal judge, and also thwarted the plaintiffs' request to proceed as unnamed. Instead, the court added their names to the case.

U.S. District Judge William Griesbach had ruled the $100 fee amounted to a fine and therefore was an unlawful "ex post facto" punishment for the two plaintiffs, who had been convicted before Wisconsin adopted the sex offender monitoring law.

Tobin Mueller and Gregory Deangelis remain subject to not only the annual $100 fee, but also many other lifetime requirements and restrictions of the sex offender registry, even though they now live in Connecticut and Florida, respectively, and never intend to return to Wisconsin.

Mueller was convicted in 1993 and served four years in prison plus six years of probation. Deangelis was convicted in 1985 and served five years, then again in 1993 and served one year. Each is now subject to lifetime registry in Wisconsin.

But if that's true, the court wrote, they would likely never face any real consequence of violating those restrictions, such as changing their name, or photographing children, or not reporting a change of address, because Wisconsin admits it has never tried to enforce completely out-of-state violations of the restrictions.

Mueller and Deangelis do have standing to complain about the annual re-registration and fee, but the court said those aspects of the law are not punitive, and therefore not prohibited "ex post facto" law. Judge Richard Posner wrote the opinion for a panel that included Judge Diane Sykes and Judge Frank Easterbrook.

"The fee is intended to compensate the state for the expense of maintaining the sex offender registry," Posner wrote. "The offenders are responsible for the expense, so there is nothing 'punitive' about making them pay for it, any more than it is 'punitive' to charge a fee for a passport."

On the issue of the plaintiffs' request for anonymity, the court noted that while the plaintiffs contend they've been subjected to shunning and harassment for being on the offender registry, which is public, the court generally opposes secrecy. In this case, judges didn't see how any additional harm from being named as plaintiffs could outweigh the disruption to their personal lives they say they already have suffered. ..Source.. by Bruce Vielmetti

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Horner v State

6-19-2008 New Hampshire:

Horner v State

The plaintiff, Philip S. Horner, appeals an order of the Superior Court (Smukler, J.) denying his petition for a writ of prohibition to enjoin the State from enforcing RSA 651-B:11 (2007 & Supp. 2007), which mandates the collection of a sex offender registration fee. We affirm.

The plaintiff was convicted in 2000 of five counts of felonious sexual assault, see RSA 632-A:3 (2007). Every sex offender and offender against children is required to register with the New Hampshire Division of State Police (division) which maintains the sex offender registry. RSA 651-B:2, I (2007), :11, I (Supp. 2007). Upon release from prison, sex offenders must inform the division where they intend to reside and the division enters this information into the law enforcement name search system. RSA 651-B:3, I (Supp. 2007). When the division is notified by law enforcement that a sex offender has moved to New Hampshire, the division must locate the offender, serve notice of duty to register and enter the offender’s information in the system. RSA 651-B:3, II (Supp. 2007). On a semi-annual basis, the division is required to verify the offender’s address by sending a letter by certified mail to the offender. RSA 651-B:3, III (2007). Offenders must register in person on a semi-annual basis, be photographed and provide specific information about their appearance, employment and vehicles. Id.; RSA 651-B:4, I(a)(2)-(3) (2007).

Pursuant to the statute, sex offenders must pay “a fee of $17 semi-annually.” RSA 651-B:11, I. The plaintiff brought a petition for a writ of prohibition contending that the statute violates the prohibition against disproportionate taxation in Part I, Article 12 and Part II, Article 5 of the State Constitution. Following a hearing, the trial court denied the petition, ruling that the plaintiff failed to establish that RSA 651-B:11 imposes a tax.

On appeal, the plaintiff argues that the sex offender registration fee “is in reality a disproportionate tax, being an enforced contribution to fund a public safety measure (the registry) which benefits all citizens, not just registrants.” The State argues that the charge is a fee because the statute serves a regulatory purpose and the fee helps to defray the cost of maintaining the registry.

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We hold that the $17 semi-annual charge imposed upon sex offenders is not intended to raise additional revenue but, rather, is used solely to support a governmental regulatory activity made necessary by the actions of those who are required to pay the charge. As the trial court found, the sex offender registration fees “are applied directly to regulatory services that would not be necessary if there were no sex offenders.” There is no evidence that the fee does not “bear a relationship to and approximate the expense” of maintaining the sex offender registry, see D’Antoni, 153 N.H. at 658, nor is there evidence that the fee is not incidental to regulation but is rather “primarily for the purpose of producing revenue.” Appeal of Ass’n of N.H. Utilities, 122 N.H. 770, 773 (1982) (quotation omitted). Accordingly, the $17 semi-annual charge is properly characterized as a fee and not a tax.