Prepping to pee in park wasn’t perverted, jury says

11-22-2013 California:

Pinching a homeless guy for pointing Percy at the park instead of the porcelain was ultimately pointless because it wasn’t perverted, a San Francisco Superior Court jury said this week.

The homeless defendant, Miguel Hernandez, was accused of flashing a mother and her 4-year-old child on August 11 when he pulled out his penis to, by his account, pee at Franklin Square Park on Bryant and 16th streets. The 29-year-old woman said she thought the 38-year-old Hernandez had an erection when he swung his male equipment within her view — but Hernandez told the jury he only turned because he heard an eruption of noise from a nearby soccer game and wanted to see who scored.

Hernandez — who wound up on the streets recently when he lost his job as a wine buyer — told investigators he thought everyone nearby was too absorbed in the game to notice what he was doing. He then took off his shoes and sat down to also watch the game, his defense attorney said. That’s where police officers who’d been summoned by the outraged mother arrested him.

Darrell Wayne Bivens, J

3-27-2013 Texas:

In 1994, when Darrell Wayne Bivens, Jr. was 16, he was charged with committing an indecent act with a child in Collin County, Texas. He was charged as an adult and after a period of deferred adjudication, was sentenced to two years in prison.

On April 19, 2012, Bivens was arrested in Collin County on a charge of failing to register as a sex offender. He pled guilty on January 10, 2013, and was sentenced to three years in prison.

Not long after, the Collin County District Attorney’s office discovered that because Bivens was under the age of 17 at the time of the original sex offense, his crime was not considered a sexually violent offense and, therefore, his duty to register as a sex offender had expired in 2008. Bivens had been charged with failing to register because he was misclassified as an adult.

On February 13, 2013, about a month after Bivens had pled guilty and had been sentenced, the Collin County District Attorney’s Office went back to court to seek to vacate the guilty plea and dismiss the case. A judge vacated the conviction and the case was sent to the Texas Court of Criminal Appeals. Bivens was released on bond.

On March 27, 2013, the Texas Court of Criminal Appeals agreed with the lower court and vacated the conviction. That same day, the prosecution dismissed the case. ..Source.. by Maurice Possley

Second Circuit To Feds: Don’t Touch His Junk

10-5-2013 Vermont:

USA -v- McLaurin

You don’t often see federal courts striking down conditions of supervised release as violations of substantive due process. But you don’t often see the federal government wanting to hook up a device to a man’s penis, make the man watch pornography, and see what happens. It sounds a bit… 1984 (affiliate link).

I couldn’t help noticing this opinion, given its unusual nature and its focus on the peen. I’m sure you’re all dying to learn more about the procedure known as “penile plethysmography.” (The good news: it’s not as bad as a penile embolism or penile degloving.)

You know you want to see what those Second Circuit judges are hiding underneath their robes. Let’s dig a little deeper (into the opinion), shall we?

Having a sex-related offense on your record can really make your life unpleasant, for years after you’ve served your time in prison. It could, for example, cause you to lose your summer associate position at a top firm (even if your only “crime” was having a consensual relationship with a younger student while in high school).

Take the case of David McLaurin. He took topless photos of his teenage daughter, at his daughter’s request, to advance her modeling career. For this offense, he got sentenced to producing child pornography. He served his prison sentence (most of which was suspended).

Years later, he ran into problems complying with the federal Sex Offender Registration and Notification Act (SORNA). After pleading guilty to a single count of violating SORNA, he got sentenced to fifteen months in prison and five years of supervised release. The sentencing judge imposed, over McLaurin’s objection, the condition that he participate in sex offender treatment that could include penile plethysmographic examinations.

What’s that? You can check out the surprisingly detailed Wikipedia article, or you can read the Second Circuit’s opinion (jointly authored by two out of the three judges on the panel, Judge Guido Calabresi and Judge Barrington Parker; I wonder why they didn’t just make this a per curiam) (citations omitted):

Penile plethysmography is a procedure that lasts two to three hours and “involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.” The Government disputes whether, as others have described, the test requires a subject to masturbate to establish a baseline for measurement.

Here at ATL, we have no problem with hand-to-wiener contact. Indeed, masturbation-defense law is a growing practice area, providing job opportunities for desperate law school graduates.

But masturbating while being hooked up to a machine and watched by others doesn’t sound like much fun. And it doesn’t have a great pedigree either:

The procedure was “developed by Czech psychiatrist Kurt Freund as a means to study sexual deviance,” and it was “at one time used by the Czechoslovakian government to identify and ‘cure’ homosexuals.”

And we all know how well those efforts go.

If you’re skeptical of penile plethysmography (anything that hard to spell has got to be sketchy), the Second Circuit agrees with you. Here’s the meat of the panel opinion:

• “[T]he procedure inflicts the obviously substantial humiliation of having the size and rigidity of one’s penis measured and monitored by the government under the threat of reincarceration for a failure to fully cooperate. And even if the machine could accurately monitor and record the extent or intensity of a convict’s prurient interests (a proposition about which we have serious doubts), the goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming.”
• “[W]e see no reasonable connection between fluctuating penis size and public protection — certainly none strong enough to survive the careful scrutiny that we give to unusual or severe conditions of supervised release.”
• “[W]e also find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction. In short, the Government offers no compelling justification for plethysmography in the name of deterring crime.”

Accordingly, the Second Circuit gave this dubious and degrading practice the shaft. Quoth the panel: “A person, even if convicted of a crime, retains his humanity.” ..Source.. by David Lat

ICE Released 2,837 Convicted Alien Sex Offenders to Comply With Supreme Court Ruling

9-13-2013 Washington DC:

Immigration and Customs Enforcement (ICE) has released 2,837 convicted criminal alien sex offenders back into American communities in order to comply with a Supreme Court decision authored by Clinton-appointed Justice Stephen Breyer, according to a new report by the Government Accountability Office (GAO).

The 2,837 sex offenders represented five percent of the 59,347 deportable aliens that have been released from detention under the supervision of U.S. Immigration and Customs Enforcement (ICE), according to the GAO report, which was released Thursday.

“There are circumstances in which criminal aliens who have been ordered removed from the United States – including those convicted of a sex offense – cannot be removed,” the report states. “For example, a criminal alien may not be removed because the designated country will not accept the alien’s return.”

The GAO report refers to the 2001 Supreme Court case Zadvydas v. Davis to explain why ICE is required to release foreigners who have been convicted of sex crimes. In its 5-4 decision, the court ruled that the indefinite detention of removable aliens for greater than six months is unconstitutional unless there is “significant likelihood of removal in the reasonably foreseeable future.”

Massachusetts: Order Relieving Sex Offender of Registration Not Vacated Upon Probation Violation

5-17-2013 Massachusetts:

The Massachusetts Supreme Judicial Court has held that once a judge relieves a sex offender of the requirement to register, a different judge lacks the authority to order the offender to register following a probation violation.

Douglas Ventura pleaded guilty to one count of possession of child pornography. After being sentenced to probation, pursuant to state law he moved to be relieved of the statutory requirement to register as a sex offender. The sentencing judge found that Ventura had demonstrated he did not pose a risk of re-offense or a danger to the public, and relieved him of the registration requirement.

About two-and-a-half years later, in September 2010, Ventura was charged with accosting and annoying a person of the opposite sex. At his probation revocation hearing, it was established that Ventura had watched two of his daughters’ friends through a hole in the shower wall of his home’s guest bathroom, which they used when they stayed at his house during overnight visits.

Ventura’s probation was revoked and he was sentenced to one year in prison and three years of probation on the new charge. As part of the sentence, the judge ordered him to register as a sex offender.

Miller v Commonwealth

2-21-2013 Kentucky:

Miller v Commonwealth

The Appellant Elmer David Miller was convicted of a misdemeanor and probated for the two-year statutory maximum on the condition that he attend counseling recommended by the Office of Probation and Parole. That office recommended that he enroll in the state's three-year sex offender treatment program required for felony sex offenders. At issue is whether his probation can be revoked for failing to do the impossible, that is, complete the program before his probation ended, and whether there are other options, such as extension of the probationary period, available. This Court concludes that Miller cannot be required to complete a program that extends beyond his period of probation, that he has completed his probation, and he is discharged from it as a matter of law.

... ... ...

III. Conclusion
For the foregoing reasons, the Court of Appeals is affirmed in part, but to the extent that the Court of Appeals remanded this case to the trial court for a determination of whether Miller's probation should be revoked, its judgment is reversed. This case is remanded to the Lincoln Circuit Court with directions that the Appellant Elmer David Miller be deemed discharged from probation.

People v Douglas M

10-24-2013 California:

People v Douglas M

Douglas M. appeals from an order modifying his probation, pursuant to amended Penal Code section 1203.067,1 which sets forth various new probation conditions for registered sex offenders.2 Because the presumption of prospectivity of Penal Code statutes, mandated by section 3, cannot be rebutted, we conclude that the provisions of revised section 1203.067 may not be applied retroactively to change the terms and conditions of probation for probationers who committed their offenses before the effective date of the amendment. As appellant‟s offenses occurred well before that date, the trial court improperly modified the terms and conditions of his probation to include the new provisions.

... ... ...

In sum, there is nothing in either the language of the statute or its legislative history clearly indicating a legislative intent for revised section 1203.067 to be applied retroactively to probationers whose crimes occurred before its effective date. (See Brown, supra, 54 Cal.4th at pp. 319-320; Alford, supra, 42 Cal.4th at p. 754.) Moreover, to construe the statute as applying to those probationers would raise serious constitutional questions under the federal and state ex post facto clauses. Therefore, in keeping with the mandate of section 3, the amended statute must be viewed as “unambiguously prospective,” applying to probationers who committed their crimes on or after the statute‟s effective date of September 9, 2010. (See Brown, at p. 320.) Because appellant‟s offense occurred before September 9, 2010, the provisions of revised section 1203.067 were improperly applied to him and must be stricken.6

DISPOSITION

The judgment is modified to strike the new terms and conditions of probation imposed on appellant pursuant to amended section 1203.067. As so modified, the judgment is affirmed.

---

Additional Counseling Not Required For Some Registrants

3-19-2014:

The California Supreme Court has denied review of a case thereby relieving some registered citizens from the duty to participate in a state-mandated sex offender management program. Specifically, as a result of the Supreme Court’s denial, registered citizens currently on probation whose sex offense occurred prior to September 10, 2010, are not required to complete a sex offender management program mandated by Penal Code Section 1203.067(b).

The Supreme Court’s decision lets stand the decision of the Court of Appeal in the case People v. Douglas M. which was decided on October 24, 2013. The case was appealed shortly thereafter.

“This is an important decision for registrants whose offenses occurred prior to September 10, 2010,” stated CA RSOL President Janice Bellucci. “No longer will they be required to participate in an expensive and intrusive program.”

The Supreme Court’s decision was issued on January 21, 2014. ..Source.. by CA-RSOL

People v Kayer

UPDATE 2-16-2014: State legislature is now trying to amend law (SB 2912) because of this case (See article below)

5-6-2013 Illinois:

People v Kayer

In July 2011, the State charged defendant, Brian M. Kayer, with unlawful failure to register employment change as a sex offender (730 ILCS 150/6 (West 2010)). In September 2011, defendant pleaded guilty to that offense. In October 2011, the trial court sentenced him to three years' imprisonment.

Defendant appeals, arguing his conviction is void because the loss of his job did not constitute a "change" in his "place of employment" such that he was required to report under section 6 of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/6 (West 2010)).

We agree and vacate defendant's conviction.

... ... ...

17 III. CONCLUSION

¶ 18 We conclude section 6 of the Registration Act did not require defendant to report his loss of employment as a change in his place of employment. Defendant's guilty plea and conviction were based upon actions not constituting a criminal offense.

We vacate defendant's conviction as void.

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Lawmakers consider tweaking sex offender laws

2-5-2014:

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

The twin pieces of legislation were introduced after lawmakers said they encountered holes in the current statutes, the Springfield bureau of Lee Enterprises newspapers reported.

"Attending the county fair is geared more toward families," said state Rep. Mike Smiddy, a Democrat from Port Byron who sponsored one of the bills. "A lot of children are there. They have a lot of children's events, like tractor pulls and stuff, attached to these things. I just don't believe that a registered sex offender should be allowed to go to those areas where children are present."

Smiddy said he introduced the measure at the request of officials in Whiteside County. Sex offenders would still be allowed to attend the state fair if the bill passes. They're already banned from working at county fairs.

The second bill would require convicted sex offenders who lose their jobs to update their registration with state police. The current law only requires sex offenders to notify authorities if they change jobs.

Sen. Jason Barickman, a Bloomington Republican who co-sponsored the bill (SB 2912), said he thinks those who drafted the original law meant to require registered sex offenders to also report the loss of a job.

He said charges against a sex offender were dismissed in McLean County because of ambiguity over when people had to report a change in employment. ..Source.. by

Gennette v Florida

9-13-2008 Florida:

Gennette v Florida

Edwin Gennette appeals his conviction and sentence for one count of unlawful use of a two-way communications device to facilitate a felony, in violation of section 934.215, Florida Statutes. The conviction was based on Appellant's plea of nolo contendere, entered after the trial court denied the defense's motion to dismiss the charges.1

Appellant's plea reserved his right to appeal the denial of the motion to dismiss. In his motion, Mr. Gennette argued that his conduct was the product of entrapment by the government, as defined by section 777.201, Florida Statutes, and that he was thus entitled to dismissal as a matter of law.

We agree, reverse the denial of the motion to dismiss and the resulting conviction and sentence, and remand to the trial court with instructions to dismiss the charge.

... ... ...

In the case before us, the e-mail chain established, by a preponderance of evidence, that the government induced or encouraged Appellant, and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged. As previously noted, the parties stipulated that Appellant was "a person other than one who is ready to commit" the offense. § 777.201(1), Fla. Stat.

Serial rapist Kevin Coe demands he be freed

Civil Commitment

12-30-2013 Washington:

Locked up in McNeil Island sex predator center, ‘South Hill Rapist’ sues state

Notorious Spokane serial rapist Kevin Coe is attempting to sue his way out of a state center for sexual predators.

Acting as his own attorney, Coe, better known as the “South Hill Rapist” filed the lawsuit earlier this month in U.S. District Court. In it, he contends he doesn’t belong at the Special Commitment Center, a McNeil Island facility housing sex criminals who’ve completed their prison terms but are deemed likely to attack again due to mental illness.

Coe, a radio announcer turned serial rapist, was arrested in 1981 and ultimately convicted in three rapes in the Spokane area. He is widely believed to have attacked as many as 32 other women during the late 1970s through the early 1980s, when multiple rapes were committed against women walking alone at night.

Having served a 25-year sentence, Coe was scheduled for release when the state moved to commit him as a sexually violent predator. A jury agreed in 2008 and ordered Coe detained indefinitely.

Under Washington law, county prosecutors or the state Attorney General’s Office may file civil lawsuits asking that convicted sex offenders be confined indefinitely at a Department of Social and Health Services facility, the Special Commitment Center.

To prevail, prosecutors must show that an offender is likely to sexually assault again, and that the offender has a mental abnormality making him so. If a jury or judge agrees with prosecutors, an offender can be sent to the McNeil Island center.

The Special Commitment Center is home to about 300 men being held indefinitely. While several offenders have "graduated" from the program and more than a dozen others are living off the island, most remain at the facility. They make up about 1 percent of the sex offenders convicted in Washington courts.

Coe appealed the 2008 detention order. In 2012, the state Supreme Court found against him and upheld the jury verdict.

Now, Coe contends he should have been allowed during the 2008 trial to again interview the women he raped. The rapist was silent on what purpose such testimony would have served, though he contended the court’s failure to allow him to do so violated his rights.

“This case is a fiasco of justice,” Coe said in the lawsuit. “And when justice has not been occasioned in the trial court – or in the state review courts – the unjustice must be remedied upon federal review.”

Coe also contended that he does not have a “mental abnormality or personality disorder,” as the jury found, and that a recent revision to a widely circulated psychiatric guide removed rape from the list of behaviors of caused by mental illnesses. He faulted his attorney for not asking the court to define “personality disorder” for the jury.

The state has not yet responded to Coe’s lawsuit. He remains confined at the McNeil Island center. ..Source.. by Levi Pulkkinen

Nevada Supreme Court: Search warrant in child porn case faulty

12-26-2013 Nevada:

Nevada v Kincade

The Nevada Supreme Court has upheld a lower court judge who tossed out evidence in a child pornography case because of a faulty search warrant.

Michael Alan Kincade is serving a life sentence on other convictions of sexually abusing children.

But in a unanimous ruling Thursday, Nevada’s seven justices said prosecutors could not use as evidence more than 6,000 images of child pornography that were found on Kincade’s computer during the child molestation investigation.

The high court’s opinion said a 2011 warrant issued as part of that investigation did not include an affidavit or probable cause finding to seize and search the computer.

The court’s opinion upholds a previous ruling by Seventh Judicial District Judge Steve Dobrescu. ..Source.. by AP

Mistaken ID as 'sex offender' brings lawsuit

Andrew died before lawsuit was settled. See second story below.

12-27-2013 Florida:

Andrew Flaherty was divorced, alone, legally blind. By the end of 2011, he left his Louisiana home and let his brother drive him to Jacksonville.

He hoped he could spend time with his brother’s family. Meet a few people and go fishing. Have a chance at living among people he could trust.

Nearly 11 months later, on Halloween 2012, he went to a Department of Highway Safety and Motor Vehicles office on Blanding Boulevard and asked for a state ID card.

The clerk faced a screen of yes-no options:

Organ Donor. Insulin Dependent. Florida Resident. Sexual Predator. Career Offender. Sexual Offender.

Yes, Flaherty is insulin dependent; it was the diabetes that blurred his eyesight, forcing him to forfeit a driver’s license. Yes, he’s now a Florida resident. And then, by some twisted, warped luck, the clerk said that yes, Andrew Stokes Flaherty was a sexual offender. Except that he wasn’t.

When it comes down to it, Andrew Flaherty is suing the Duval County Tax Collector’s Office because of seven numbers and what those numbers represent.

The sledgehammer justice of mandatory minimum sentences

12-26-2013 National:

Federal Judge John Gleeson of the Eastern District of New York says documents called “statements of reasons” are an optional way for a judge to express “views that might be of interest.” The one he issued two months ago is still reverberating.

It expresses his dismay that although his vocation is the administration of justice, his function frequently is the infliction of injustice. The policy of mandatory minimum sentences for drug offenses has empowered the government to effectively nullify the constitutional right to a trial. As Lulzim Kupa learned.

Born to Albanian immigrants, he was convicted in 1999 and 2007 of distributing marijuana. Released from prison in 2010, he again engaged in trafficking, this time with enough cocaine to earn him charges involving a sentence of 10 years to life. On March 5, 2013, prosecutors offered this: In exchange for a guilty plea, he would effectively be sentenced within the range of 110 months to 137 months — but the offer would expire the next day. Kupa rejected the offer, so on March 15 prosecutors filed a “prior felony information,” a.k.a. an 851 notice, citing the two marijuana convictions. So, 10 days after saying a sentence of perhaps less than eight years (assuming good time credits) would be appropriate, prosecutors were threatening a sentence of life without parole. This gave him no incentive to plead guilty.

Then, however, they immediately proposed another plea agreement involving about nine years’ imprisonment. Given a day to decide, he acted too slowly, so prosecutors again increased the recommended sentence. Finally, Kupa caved: “I want to plead guilty, your Honor, before things get worse.” If, after the 851 notice, he had insisted on a trial and been found guilty, he would have died in prison for a nonviolent drug offense. He is 37.

Conviction of man who admitted having child porn thrown out

12-24-2013 New Hampshire:

The state Supreme Judicial Court has overturned the guilty plea, conviction and 2-15 year prison sentence of a man who police said admitted possessing child pornography.

David Latagne agreed to plead guilty to a reduced charge of attempted possession of child pornography last year and was sentenced to 2-15 years in state prison.

But the plea deal came only after a judge refused to throw out Latagne's admission to police that he possessed child porn and the results of a search of his computer. The agreement allowed him to remain free while he appealed that ruling.

Salem police arrested Lantagne at Canobie Lake Park in July, 2013 on disorderly conduct charges after getting complaints that he was taking pictures of young girls' backsides as they emerged from a water ride.

In a unanimous decision, the justices said since the disorderly conduct charge did not meet the legal standard for that crime, the arrest was "unlawful" and prosecutors could not use statements made when he was questioned while police were holding him on that charge.

The court said Lantagne was arrested after a woman complained to a security guard that Lantagne made her "nervous," and the guard observed Lantagne positioning his cell phone on the side of his leg and aiming at young girls clad in swim suits.

The officer said Lantagne admitted taking the pictures and saying that he had an attraction to young girls, calling it "a problem.

He's Not a Sex Offender, Married Man Says

12-24-2013 California:

A man required to register as a sex offender for life for having consensual relations with his now-wife 24 years ago - when he was 19 and she was 17 - asked a state court to remove that obligation so he can get on with his life.

In 1989, police busted Lonny Leon Rivera, then 19, for having "consensual, voluntary relations" with his 17-year-old girlfriend. He pleaded guilty to a single count of oral copulation with a minor. That charge requires mandatory, lifetime registration as a sex offender in the state of California, according to Rivera's lawsuit in Tulare County Court.

Rivera and his girlfriend remained together and are now married.

Rivera registered, but acknowledges that he failed to update his information annually from 1991 through 2011. In 2012, California Attorney General Kamala Harris filed a criminal complaint for failure to register as a sex offender. Rivera was arraigned in October.

In his petition for writ of mandate, Rivera claims that the state's demand is unconstitutional.

"Rivera's inclusion in the sex offender registry under the mandatory provisions of the California Sex Offender Registration Act violates his right to equal protection of the laws, as guaranteed by the Fourteenth Amendment of the U.S. Constitution and Article I, Section 7 of the California Constitution," Rivera says in the petition, citing a 2006 ruling by the California Supreme Court in People v. Hofsheier.

Missouri v Wade (and other consolidated cases)

12-24-2013 Missouri:

Missouri v Wade (and other consolidated cases)

eAdvocate Note: The essence of this decision is, that Art I Sec 13 of the Missouri Constitution applies only to criminal laws, which 566.150 (A proximity law) is. Apparently there is another decision -which this decision now overturns- which held the above constitutional section applies to BOTH, criminal and civil laws. Yes this is a bit confusing but reread this note.

In this appeal Michael Wade, Jason Reece Peterson, and Edwin Carey each argue that article I, section 13 of the Missouri Constitution, which prohibits the passage of any law "retrospective in its operation," applies to criminal laws and, therefore, their charges under § 566.150,1 are unconstitutional as applied to them. This Court recently held that the retrospective clause of article I, section 13 does not apply to criminal laws. These cases now require this Court to determine whether § 566.150 is a criminal law.

This Court concludes that § 566.150 is a criminal law. Therefore, the circuit courts erred in dismissing the charges against Peterson and Carey on the grounds that the statute was unconstitutionally retrospective as applied to them, but the circuit court correctly overruled Wade's motion to dismiss. The judgments entered against the State with respect to Peterson and Carey are reversed, and the cases are remanded. The judgment in Wade's case is affirmed.

... ... ...

State v. Wade
On November 25, 1996, Wade pleaded guilty to statutory sodomy in the first degree, § 566.062, child molestation in the second degree, § 566.068, and sexual abuse in the first degree, § 566.100. Wade was sentenced, pursuant to § 559.115, RSMo 1994, to participate in the Sexual Offender Assessment Unit program. Upon successful completion of the program, the circuit court suspended the remainder of Wade’s sentences and ordered him released on probation for a period of five years. Wade was a registered sex offender and in compliance with sex offender registration requirements.

On August 22, 2011, Wade was arrested at Castlewood State Park for violating § 566.150. Section 566.150 prohibits any individual who has pleaded guilty to, or been convicted of, or been found guilty of various sex offenses from "knowingly be[ing] present in or loiter[ing] within five hundred feet of any real property comprising any public park with playground equipment or a public swimming pool." Wade was charged with knowingly being present within 500 feet of a public park with playground equipment. Wade filed a motion to dismiss the indictment, claiming the statute was unconstitutionally retrospective as applied to him in violation of article I, section 13. The circuit court overruled the motion, and Wade waived his right to a jury trial. After a bench trial, Wade was convicted and sentenced to three years’ imprisonment. The circuit court suspended execution of his sentence and placed Wade on probation for a period of five years. Wade appeals.

State v. Peterson
On January 20, 1998, Peterson was convicted of the offense of indecent behavior with a juvenile in Louisiana. Peterson resides in Missouri and is in compliance with all sex offender registration requirements. On June 17, 2011, a grand jury issued an indictment charging Peterson with the crime of loitering within 500 feet of a public park in violation of § 566.150.

Peterson filed a motion to dismiss the charge against him as unconstitutionally retrospective in violation of article I, section 13. The State responded by arguing the retrospective ban contained in the constitution applied only to civil rights and proceedings, not to criminal proceedings, relying on the holding in Ex parte Bethurum, 66 Mo. 545 (1877), to support its position. The State also argued that if the retrospective ban applied to criminal statutes, the statute did not tread on any of Peterson’s vested rights, nor did it confer any additional duty, obligation, or disability on Peterson to comply with the statute.

The circuit court sustained Peterson’s motion to dismiss the indictment. The circuit court assumed the ban contained in article I, section 13 was not limited to civil statutes and found § 566.150 was an unconstitutionally retrospective law as applied to Peterson. The State appeals.

State v. Carey
On May 7, 1997, Edwin Carey pleaded guilty to the offense of statutory rape in the second degree in violation of § 566.034, RSMo Supp. 1997. Carey is in compliance with all sex offender registration requirements.

In 2010, the State filed an information charging Carey with the offense of loitering within 500 feet of a public park in violation of § 566.150. Carey filed a motion to dismiss the charge against him, alleging that § 566.150 is unconstitutionally retrospective as applied to him because it imposed a new obligation that was not present at the time of his conviction in violation of article I, section 13. Carey's motion alleged that § 566.150 became effective 12 years after his May 1997 guilty plea.

The motion further alleged that laws similar to § 566.150 had been found unconstitutionally retrospective as applied to offenders convicted before the enactment of the law. The State responded to the motion by arguing that article I, section 13's prohibition against laws retrospective in their operation applied only to civil rights and remedies. After a hearing, the circuit court sustained Carey's motion and dismissed the information. The State appeals.

... ... ...

Conclusion
As recently reaffirmed in Honeycutt, the retrospective clause of article I, section 13 does not apply to criminal laws. Because § 566.150 is a criminal statute, the circuit court erred in dismissing the charges against Peterson and Carey on the ground that the statute was unconstitutionally retrospective as applied to them, but correctly overruled Wade's motion to dismiss. The circuit courts' judgments are reversed, and the cases are remanded with respect to Peterson and Carey. The judgment in Wade's case is affirmed.

Russell, C.J., and Breckenridge, J., concur;
Wilson, J., concurs in separate opinion filed;
Russell, C.J., and Breckenridge, J., concur in opinion of Wilson, J.;
Draper, J., dissents in separate opinion filed;
Stith and Teitelman, JJ., concur in opinion of Draper, J.

---

Missouri Supreme Court rules against sex offenders

Missouri's Supreme Court on Tuesday sided against three men previously convicted of a sex crime and facing a new criminal charge under a law making it illegal for them to be near certain parks.

The cases are the most recent to focus on a portion of the Missouri Constitution barring retrospective and ex post facto laws. The high court ruled last month the ban on retrospective laws does not apply to criminal statutes. A divided Missouri Supreme Court concluded Tuesday the parks restriction is a criminal law and the retrospective laws prohibition does not apply.

A 2009 Missouri law makes it illegal for those convicted of sexual offenses from knowingly being present or loitering within 500 feet of a public park with playground equipment or a public swimming pool. First-time violators can be charged with a felony and spend up to four years in prison, and repeat offenders could face up to seven years in prison.

In the cases before the high court, each defendant was convicted of a sex offense during the late 1990s. A circuit court dismissed the charge for being in a park against two of the men on the grounds that it was unconstitutionally retrospective when applied to them. The third was appealing his conviction. The high court upheld the conviction and remanded the two other cases.

Supreme Court Judge Zel Fischer wrote in the majority opinion that the park law is part of the criminal code, uses the language of a criminal provision and does not depend upon someone's registration as a sex offender. He said the law also carries a severe punishment.

"The General Assembly intended for this statute to punish felons, who had been convicted of committing specific, enumerated crimes, for engaging in future conduct that the General Assembly determined should be prohibited," Fischer wrote.

The Missouri Supreme Court has seven judges. Three agreed with Fischer's conclusions.

Judge George W. Draper III wrote a dissent joined by two other judges. Draper said he believes the statute against being near parks should be construed as a civil law and that he would find it retrospective as applied to the three sex offenders. Draper said the law is designed to protect the public from harm and derives from the requirement for sex offenders to register, which has been deemed nonpunitive and civil in nature. ..Source.. by CHRIS BLANK

Montgomery v Virginia

12-20-2013 Virginia:

Montgomery v Virginia

Johnathan Christopher Montgomery ("Montgomery") petitions this Court to grant a writ of actual innocence based on non-biological evidence pursuant to Code §§ 19.2-327.10 through 19.2-327.14. Montgomery seeks to vacate his 2009 convictions for forcible sodomy, aggravated sexual battery, and animate object sexual penetration.

In support of his petition, Montgomery proffers newly-discovered evidence—the recantation and subsequent perjury conviction of the complaining witness Elizabeth P. Coast ("Coast"). The Commonwealth agrees that Montgomery has satisfied the statutory requirements and joins Montgomery in asking this Court to grant his petition.

... ... ...

CONCLUSION

We hold that Montgomery has met his burden under Code § 19.2-327.11(A) of establishing that he is actually innocent of the crimes for which he was convicted. Accordingly, pursuant to Code § 19.2-327.13 this Court grants Montgomery's petition and issues a writ of actual innocence based on non-biological evidence, thereby vacating his convictions for forcible sodomy, aggravated sexual battery, and animate object sexual penetration.

If there is no appeal from this judgment to the Supreme Court, the clerk shall forward a copy of this writ to the trial court, where an order of expungement shall be immediately entered regarding these offenses.

This order shall be published.

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Johnathan Montgomery’s name taken off Florida sex offender registry

Norfolk, Va. (WTKR) – Just days after receiving his Writ of Actual Innocence from the Court of Appeals of Virginia, Johnathan Montgomery is still fighting to fully clear his name.

On Friday, the court issued the writ, vacating the false sex crimes charges against him.

However, Montgomery remained listed as a registered sex offender online in the states of Florida and North Carolina.

In an e-mail to NewsChannel 3, his father David Montgomery wrote “My fear is that the non-state registries may not be as easy for John’s registration to be wiped out.”

Monday morning, NewsChannel 3′s Todd Corillo contacted the Florida Department of Law Enforcement and within hours the listing had been taken down.

A spokesman told NewsChannel 3 that once they received the Writ of Actual Innocence, Montgomery was removed from the Florida Registry website.

In North Carolina, a Public Information Officer from the Attorney General’s office provided NewsChannel 3 a copy of the “North Carolina Sex Offender & Public Protection Registration Programs” document.

In it, the document outlines that “the period of registration required by any provision of Article 27A shall be discontinued if, and only if, (1) the conviction requiring registration is reversed, vacated, or set aside.”

NewsChannel 3 is still awaiting a response on what more must be done in order to remove Montgomery’s name from the registry in North Carolina.

In an interview Friday, he expressed excitement to be able to move on with his life without the restrictions placed on him.

“To be able to ask my dad to borrow his vehicle and not have to worry about asking 3 or 4 other people and getting papers signed and registering in a state I’ve never been to,” Montgomery said “It’s just a long process to go somewhere where I could say ‘Hey Dad can I borrow the truck’ and I’m gone.” ..Source.. by Todd Corillo

US v DeJarnette Jr

11-18-2013 California:

US v Alexander DeJarnette, Jr.

Summary

The panel reversed a judgment of conviction for failure to register as a sex offender in violation of the Sex Offender Registration and Notification Act, and remanded for entry of a judgment of acquittal.

The panel held that the Attorney General has not yet “validly specifie[d]” that 42 U.S.C. § 16913(a)’s requirement of registration in the jurisdiction of the sex-offense conviction (if different from the jurisdiction of residence) applies to pre-Act offenders like the defendant who were, at the time of SORNA’s enactment and implementation, already subject to sex offender registration obligations.

The panel concluded that the district court’s jury instruction erroneously permitting the jury to convict solely on the basis of the defendant’s failure to register in the jurisdiction of his sex-offense conviction was not harmless.

Dissenting, Judge Graber wrote that the Attorney General’s regulations validly specify that SORNA’s registration requirements apply to all sex offenders, including pre-SORNA offenders; that the defendant was notified of his initial registration requirement in the jurisdiction of his sexoffense conviction; and that the jury was properly instructed.

Note: This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Alexander DeJarnette is a federal sex offender who failed to register as such and was convicted of violating the Sex Offender Registration and Notification Act (“SORNA”). Pub. L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C. §§ 16901 et seq., 18 U.S.C. § 2250 (2006)).

On appeal, he challenges the district court’s interpretation of SORNA as imposing upon him an obligation to register in the jurisdiction of his sex-offense conviction, the Northern District of California, even though the evidence shows that he resided in a different jurisdiction (the State of Georgia) throughout the period charged in his indictment.

He contends that, because he had no legal duty to register in the Northern District of California, the district court’s contrary jury instruction was erroneous as a matter of law, venue was improper in the Northern District of California, and his nonregistration conviction is not supported by sufficient evidence. We have jurisdiction under 28 U.S.C. § 1291 and, for the following reasons, we reverse the conviction.

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eAdvocate FYI Note: A little known AWA requirement which I've never seen enforced after-the-fact, until the decision above, is:

42 USC 16913

a) In general
A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

Sex Offender Residency Restriction Clarified

This is being posted for two reasons: 1) Obviously to remind folks in NC "how to interpret the NC law." AND< 2) To hopefully ALERT other advocates of EXCEPTIONS that SHOULD be in other states residency laws and possibly Advocates can push for these changes where appropriate.

10-13-2013 North Carolina:

A registered sex offender may not knowingly reside within 1,000 feet of a school or child care center. G.S. 14-208.16. That restriction was enacted in 2006, S.L. 2006-247, and applies to all registered sex offenders in North Carolina, regardless of their particular crime or date of offense. A violation of the law is a Class G felony.

The residency restriction law has two exceptions that exclude certain sex offenders from its coverage. Both exceptions, which operate as grandfather clauses that protect certain registrants’ property interests, were likely included in the in an effort to avoid some of the litigation that had arisen regarding other states’ residency restrictions around that time. See, e.g., Mann v. Georgia Dept. of Corr., 653 S.E.2d 740 (Ga. 2007) (holding that Georgia’s similar restriction violated the Takings Clause by forcing a sex offender to move out of his home, without compensation, when a child care center opened nearby).

The first exception is for changes in the ownership or use of property within 1,000 feet of a registrant’s address that occur after the registrant establishes residency. G.S. 14-208.16(d). In other words, if the sex offender was there first, he or she does not have to move away if a school or child care center opens up nearby. The statute provides three ways in which a residence can be “established” for purposes of applying the exception:

• Purchasing or entering into a specifically enforceable contract to purchase the residence;
• Entering into a written lease for the residence; and
• Residing with an immediate family member “who established residence in accordance with this subsection [G.S. 14-208.16(d)].” Immediate family member is defined as a child or sibling who is at least 18 years old, or a parent, grandparent, legal guardian, or spouse of the registrant.

The second exception, broader than the first, is that the restriction does not apply at all to any registrant who established a residence before the law came into effect in 2006. Unlike the first exception, the second exception was not initially written into G.S. 14-208.16 itself. It was, rather, included in the effective date clause of the legislation that enacted that statute. S.L. 2006-247, § 11.(c) (“Subsection (a) of this section does not apply to a person who has established a residence prior to the effective date of this subsection.”). The same methods of establishing residence applicable to the first exception (purchase, lease, or residing with an immediate family member) also apply to the second exception.

Not everyone interpreted the second exception the same way. First, because it was in the session law but not the codified statute, some people apparently were not aware of it at all. Second, there was some confusion about the triggering date of the exception, with some people reading the law to exclude registrants who established a residence before December 1, 2006 (the date mentioned in §11.(c) of S.L. 2006-247), and others thinking the residence had to have been established by August 16, 2006 (the day the governor signed the bill into law). Third (and perhaps most significantly), there were differences of opinion about the proper interpretation of the “reside with an immediate family member” method of establishing residence.

Some thought the exception applied only if the registrant actually moved in with the immediate family member before the law’s effective date, regardless of when the family member purchased or leased the residence. Others read that exception to relate back to the date the immediate family member established the residence, even if the registrant himself or herself didn’t live there until later. The latter reading had some support in the statute (the law refers to immediate family members who establish residence “in accordance with this subsection,” arguably bringing them within the law’s overall effective date fold), but people disagreed.

Legislation enacted this year, effective when it became law on April 16, 2013, attempted to address all three of those concerns. S.L. 2013-28. First, the legislation wrote the second exception into G.S. 14-208.16(a) itself, bringing it out of the shadows of the session laws. Second, the now-codified second exception makes clear that it applies as of August 16, 2006—not December 1 of that year.

Finally, the legislation attempted to clarify that the exception is measured by the date the registrant establishes residency, and does not relate back to the date the residence was established by an immediate family member. A pointed clause in the legislation’s preamble defined the problem the revised law was intended to address:

“Whereas, law enforcement officials mistakenly believe, based only upon the codified portion of the [2006] law . . . that a registered sex offender can legally reside within 1,000 feet of a school or day care center if the offender moves in with a family member who had established residence at the location prior to the effective date of the law, even though the offender did not establish residence at the location prior to August 16, 2006 . . . .”

That framing of the issue should make clear (to people who read session laws, at least) that revised G.S. 14-208.16(a) is intended to exclude only those registrants who themselves established a residence before August 16, 2006, and that the exclusion does not relate back to the date an immediate family member established residence. Any registrant who was residing with an immediate family member under a former interpretation of the law probably should have moved out after April 16, 2013. ..Source.. by Jamie Markham, North Carolina Criminal Law Blog

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.

... ... ...

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