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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL R. PATTERSON, )
) Court of Appeals No. A-6718
Appellant, ) Trial Court No. 3KN-S96-409CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1641 - July 23, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: Phillip Paul Weidner, Weidner &
Associates, and Verne E. Rupright, Stepovich,
Kennelly, & Stepovich, P.C., Anchorage, for
Appellant. James L. Hanley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Michael R. Patterson was convicted of first-degree sexual
abuse of a minor1 in 1988. Based on that conviction, the Alaska
Sex Offender Registration Act "ASORA" requires Patterson to
periodically register with the nearest police authority.2 An
Alaska State Trooper issued Patterson a citation to appear in
district court for failing to register as a sex offender because
Patterson had not registered with either the state or local
police.3
After Superior Court Judge Jonathan H. Link denied
Patterson's multi-prong attack on the constitutionality of ASORA,
Patterson entered a Cooksey4 plea to the charge of failing to
register. He renews his constitutional challenges in this appeal.
Because Patterson has not convinced us that there is a
constitutional bar to prosecuting him for failing to register as a
sex offender, we affirm his conviction.
Facts and proceedings
In 1994, the Alaska
Legislature enacted ASORA.
ASORA was codified in
Title 12, chapter 63 and
Title 18, chapter 65,
section 87 of the Alaska
Statutes.5
Alaska Statute
12.63.010(b)(1) requires a
convicted sex offender6 to
register at the Alaska
State Trooper post or
municipal police department
nearest to where the sex
offender resides at the
time of registration.7 A
registrant must allow the
police to take a set of
fingerprints and a
photograph, and must
provide biographical
information including his
or her name, address, date
of birth, driver's license
number, aliases, place of
employment, and date and
court of his or her sex-
offense conviction.8 In
addition, the sex offender
must provide written notice
within ten days of a change
of residence to the nearest
law enforcement office.9
If the sex offender
has one conviction, he or
she must register annually
for the fifteen years
following his or her
unconditional discharge
from supervision.10 If the
sex offender has two or
more sex offense
convictions, the duty to
register continues for
life.11 The duty to
register applies
retroactively, requiring
sex offenders who received
an unconditional discharge
before enactment of the law
to register.12 Patterson
was unconditionally
discharged before the
enactment of ASORA.
Alaska Statute
18.65.087 directs the
Department of Public Safety
to create a registry of all
registered sex offenders
and to permit public access
to that registry. For each
sex offender, the registry
includes the offender's
biographical information
that ASORA requires the
offender to provide upon
registration. Upon
request, this information
is released to any member
of the public.
On March 14, 1996, an
Alaska State Trooper
reviewed ASORA computer
records and found that
Patterson failed to
register. A trooper
contacted Patterson to ask
why he had not registered.
Patterson told the trooper
that his attorney had
advised him not to comply
with the registration
requirement. The trooper served Patterson with
a citation charging him with failing to register as a sex offender.
In the trial court, Judge Link denied Patterson's motion
to dismiss. Patterson renews his constitutional objections to
ASORA in this appeal.
Discussion
The duty to register under ASORA does not
violate the prohibition against ex post facto
legislation.
Patterson argues that ASORA violates the prohibition
against ex post facto legislation contained in both the federal and
Alaska constitutions.13 Both
constitutions prohibit "the
retrospective application
of laws that 'alter the
definition of crimes or
increase the punishment for
criminal acts.'"14 ASORA
is clearly retrospective.
However, "[t]he mere fact
that [a statute] alters a
convicted felon's
circumstances to his or her
disadvantage does not in
itself invalidate the
statute as ex post
facto."15
The threshold question
we must answer when
deciding if ASORA is an ex
post facto law is whether
the notification or the
registration provisions of
ASORA increase the quantum
of punishment Patterson
received from his sexual
abuse of a minor
conviction. In determining whether ASORA is
punitive legislation, both parties
recognize the utility of
the "intent-effects"
test.16
The analysis under the "intent-effects" test is twofold:
first, we decide whether the legislative intent behind ASORA was
to regulate or to punish sex offenders; second, if the purpose was
not punishment but regulation, then we must decide whether the
effects of that regulation are so punitive that we must
nevertheless view ASORA as punishment. Under the "intent-effects"
test, if the legislature's intent is regulatory, Patterson must
provide the "clearest proof" that ASORA is punishment.17 Other
courts have applied the "intent-effects" test
in several cases where the validity of sex-offender registration
statutes was examined and upheld.18
Here, the articulated
purpose of ASORA is
regulatory and based on
public safety concerns.
The legislature made the
following findings:
(1) sex offenders
pose a high risk
of reoffending
after release from
custody;
(2) protecting the
public from sex
offenders is a
primary
governmental
interest;
(3) the privacy
interests of
persons convicted
of sex offenses
are less important
than the
government's
interest in public
safety; and
(4) release of
certain
information about
sex offenders to
public agencies
and the general
public will assist
in protecting the
public safety.19
These findings state
explicitly that recidivism
of sex offenders is a
problem and that the
registration of sex
offenders and the release
of certain information
about them will protect the
public. As the State
points out, there is no
question that protection of
the public is a valid
regulatory purpose. On its face,
the legislature's intent to promote public welfare is a valid
regulatory goal.
Patterson counters
that the statutes' goals
are retribution and
deterrence and that those
goals are "reserved for the
criminal system alone."
Patterson concludes that
ASORA is not a valid
exercise of the State's
regulatory power because
the legislature's focus was
on sex offenders, not on
the eligibility of
individuals to engage in a
certain activity, a classic
indication of regulation by
the legislature.
Patterson argues that four characteristics of ASORA
establish the legislature's punitive intent: (1) the effects of
ASORA are triggered by a past conviction, (2) ASORA imposes duties
and restraints on a sex offender, (3) ASORA "invades vested rights
and it lengthens the period of time that the offender must be under
the supervision of authorities," and (4) the registration provision
of ASORA was codified in Title 12 of the Alaska Statutes, the title
that contains the code of criminal procedure.
Using a prior criminal
conviction to trigger a
subsequent consequence does
not alone prove that the
legislature had a punitive
intent. In State v.
Anthony, our supreme court
upheld an ex post facto
challenge to a statute that
barred previously convicted
felons from receiving
permanent fund dividends.20
The court recognized that
a statute altering the
circumstances of a
convicted felon could
withstand an ex post facto
challenge if the statute
had a valid regulatory
purpose.21 In Anthony,
the legislature's
articulated purpose was to
obtain funds for crime
victims. The court
concluded that this
articulated purpose
combined with the statute's
goal to reimburse the State
for the cost of the
prisoner's confinement
established that the
statute's purpose was
compensatory and not
punitive.
ASORA imposes a duty
on a sex offender to
register and to provide
updates when residential
circumstances change. That
duty continues for a
minimum of fifteen years
following an offender's
final discharge from
supervision. The act of
registration does not
parallel measures that are
traditionally punitive.
Registration involves no
active supervision,
treatment, or restriction
of the registrant's
activities. The registrant
is not required to submit
to a search at the request
of a probation or parole
officer, or otherwise
comply with the conditions
usually attendant on parole
release or probation
supervision. Although the
prospect of registration
may have a deterrent
effect, a recognized
attribute of criminal
sentencing, deterrence can
serve civil goals as well.
The only "restraint"
imposed by ASORA is the
brief impact on personal
liberty while performing
that actual act of
registration.
Patterson also
maintains that ASORA
increases his punishment
because he analogizes the
duty-to-register period
with the supervision
component of probation.
However, as we noted above,
unlike normal periods of
probation, ASORA imposes no
behavioral restrictions and
includes no potential
sanctions for violating
those restrictions. ASORA
only defines the duty to
register, and the potential
charge for failing to
register, if a sex offender
does not satisfy that duty.
We conclude that the
duties imposed on a sex
offender by ASORA are not
analogous to the
supervision of a
defendant's conduct imposed
by incarceration, parole,
or probation. Compliance
with ASORA does not entail
any supervision of a sex
offender's behavior. It
merely requires disclosure
of his or her general
whereabouts by imposing the
duty of periodic
registration and reporting.
Finally, the placement
of the registration
provisions in Title 12,
identified as the Code of
Criminal Procedure, does
not convince us that ASORA
is punitive. The various
chapters in Title 12
address many facets of the
criminal process including
initial considerations such
as arrest, bail, rights of
victims, and trial and
post-trial matters. We
conclude that the placement
of ASORA - a by-product of
a sex offender's conviction
- in Title 12 does not
indicate that the
legislature had a punitive
intent.
The arguments raised
by Patterson - the
placement of some of ASORA
in Title 12, the imposition
of a duty on a sex offender
to register, the trigger by
past conviction for a sex
offense, and the purported
supervision of the sex
offender - do not amount to
proof of a legislative
intent to punish. We
conclude that the statute,
read with the legislative
findings, does not reflect
a punitive legislative
intent. Patterson has
offered no proof
challenging the link
recognized by the
legislature between
commission of certain sex
offenses and the propensity
for recidivism.
Although we conclude that Patterson has not shown a
punitive legislative intent, Patterson may still show that the
effect of the regulatory statute is so severe that ASORA is
punishment. When we undertake
this inquiry into the
"effects" of ASORA, we must
accept the manifest intent
of the legislature unless
Patterson clearly proves
that the statutory scheme
is so punitive in effect
that the non-punitive
purpose of the legislature
is negated.22
Alaska Statute
12.63.010 requires a sex
offender to register in
person at the nearest
Alaska State Trooper post
or municipal police
department within a
specified number of days
after release from in-state
custody or after arrival in
Alaska.23 The registration
form requires the
disclosure of the
offender's name, address,
place of employment, date
of birth, the crime that
triggered registration as a
sex offender, the date(s)
of sex offense convictions,
place and court of sex
offense convictions,
aliases, and driver's
license number.24 In
addition, the registrant
must allow the police to
take a set of fingerprints
and a photograph.25 In
Kennedy v. Mendoza-
Martinez,26 the Supreme
Court applied seven guiding
factors to use when
analyzing whether a
statute's effect is
punitive: whether the
required conduct or
prohibition - the statute's
impact - entails an
affirmative disability or
restraint, whether that
impact has historically
been regarded as punitive,
whether that impact depends
upon a finding of criminal
intent, whether that impact
will operate to promote
traditional punishment
objectives, whether that
impact applies to behavior
that is already a crime,
whether that impact has an
alternative non-punitive
purpose, and finally,
whether that impact is
excessive in relation to
the non-punitive purpose.27
Examining ASORA in
light of the Kennedy
factors, the "effects"
portion of the "intent-
effects" test, we find that
although the impact of
compliance with ASORA is
significant, it is not
fatal to the statute.28
ASORA does provide for
dissemination of
substantial personal and
biographical information
about a sex offender that
is not otherwise readily
available from a single
governmental source.
Patterson argues that the
ready availability of this
information will
potentially result in
personal harassment,
embarrassment, or
retribution by members of
the public. While members
of the community may view
sex offenders with distrust
or hostility, the
legislature has not
encouraged acts of
retribution or violence
against sex offenders. We
follow the decisions in
other jurisdictions
sustaining their sex
offender registration acts
in the face of arguments
that the acts violate the
constitutional provisions
against ex post facto
legislation.29 Therefore, we reject Patterson's
claim that ASORA violates the prohibition against ex post facto
legislation.
ASORA does not violate double jeopardy.
Patterson next claims that prosecuting him for
failing to register as a sex offender violates the double
jeopardy clause of the federal and state constitutions. He
notes that a person must first be convicted of a sex
offense before they have a duty to register as a sex
offender. From this fact, Patterson concludes that a
person's underlying sex offense is a "lesser included
offense" of failing to register as a sex offender. Relying
on Blockburger v. United States30 and Tuckfield v. State,31
Patterson argues that the government is prohibited from prosecuting
a person for the underlying sex offense (the purported "lesser
included" offense) and then later prosecuting the person for the
"greater" offense of failing to register as a sex offender. This
series of events, according to Patterson, is the equivalent of
putting a defendant in jeopardy twice for the same offense.
The Alaska Supreme Court addressed and rejected a similar
contention in Danks v. State.32 The issue in Danks was whether a
statute that increased penalties for repeat drunk driving offenders
could lawfully apply to a defendant who committed drunk driving
after the new law came into effect but whose prior offenses were
committed before the passage of the new law. The defendant in
Danks argued that sentencing him to the increased penalties of the
new law would amount to an unconstitutional retroactive application
of the law. The supreme court disagreed. Quoting from Gryger v.
Burke,33 our supreme court stated:
[T]he fact that one of the convictions
that entered into the [defendant's
sentencing] calculations . . . occurred
before the Act was passed [does not make]
the Act invalidly retroactive[.] . . .
The [defendant's] sentence as a [repeat]
offender or habitual criminal is not to
be viewed as either a new jeopardy or
[an] additional penalty for the earlier
crimes. It is a stiffened penalty for
the latest crime, which is considered to
be an aggravated offense because [it is]
a repetitive one.34
This is the accepted view on this matter,
both regarding increased punishments and
new offenses that include, as an element
of the crime, proof that the defendant
was previously convicted of an offense:
If the defendant commits crime A at a
time when there is no habitual criminal
statute, then such a statute is passed
imposing increased punishment for a
second offense, and then the defendant
commits crime B, it is not within the ex
post facto prohibition to apply the
habitual criminal statute to crime B. No
additional punishment is prescribed for
crime A, but only for the new crime B,
which was committed after the statute was
passed. Similarly, it is permissible to
define a crime as limited to certain
conduct engaged in by persons who have
theretofore been convicted of some other
offense and to apply the statute to one
whose earlier offense and conviction
predated the enactment of this [new]
statute.35
Based on these authorities, we
reject Patterson's double jeopardy claim.
His prosecution for failing to register
as a sex offender was not a renewed
jeopardy for his original sex offense.
Rather, Patterson was prosecuted for a
new crime - failing to perform a duty
imposed on citizens previously convicted
of sex offenses. Similarly, any
punishment imposed on Patterson for
failing to register will be punishment
for this new crime, not an additional
punishment for his original sex offense.
ASORA does not violate
Patterson's right to
privacy.
Patterson maintains that the
notification provisions of ASORA, AS
18.65.087, violate his implicit right of
privacy under federal law and his explicit
right to privacy granted by article I, section
22, of the Alaska Constitution.
Although there is no explicit right
of privacy in the federal constitution, the
United States Supreme Court had recognized
"zones of privacy" created by specific
constitutional guarantees.36 These zones of
privacy have involved fundamental interests -
those types of interests where the government
is limited in its power to regulate conduct -
such as marriage, contraception, and child
rearing.37 The Supreme Court also recognizes
an individual's interest in non-disclosure of
personal matters.38 This interest in non-
disclosure is recognized in other cases and
has been described as a right of
confidentiality.39
Patterson attempts to find support
for his federal privacy claim in two Supreme
Court cases: United States Dep't of Defense
v. F.L.R.A.40 and United States Dep't of
Justice v. Reporters Committee for Freedom of
the Press.41 However, both of those cases
turned on a question of statutory
interpretation under the Freedom of
Information Act, not on an implicit federal
constitutional right of privacy.
In F.L.R.A., the court decided that
disclosure to the union of the home addresses
of federal employees in a union's bargaining
unit was barred by the statutory personal
privacy exemption42 contained in the Freedom of
Information Act.43 In Reporters Committee, the
court balanced the personal privacy interest
in FBI criminal rap sheets created by the
statutory exemption44 from disclosure, against
the public interest promoted by the Freedom of
Information Act (to open agency action to
public review).45 As a categorical matter, the
court concluded that the little information
about agency action that disclosure of rap
sheets would provide was outweighed by the
statutory exemption from disclosure. The
court also noted that its decision rested on
statutory interpretation, not on
constitutional privacy grounds.46
Patterson also relies on Doe v.
Poritz47 to support his claim that ASORA
unconstitutionally invades his privacy rights.
The Poritz court recognized that the New
Jersey sex offender notification and
registration statute implicated a sex
offender's privacy interest.48 The Poritz
court also recognized the public welfare
interest expressed by the legislature:
because sex offenders had a considerable
likelihood of recidivism, the registration and
notification statute promoted public safety by
giving the public information on the identity
and proximity of sex offenders. Therefore,
the court concluded that the public interest
in disclosure substantially outweighed a sex
offender's personal privacy interest.49
In addition to requiring
fingerprints and a photograph, ASORA mandates
that a registrant provide his or her name,
address, date of birth, driver's license
number, aliases, place of employment, and the
date and court of their sex-offense
conviction. Under AS 18.65.087(b), all the
information that a sex offender provides is
confidential except the information that the
public can access pursuant to a request for
information: the sex offender's name,
address, date of birth, place of employment,
photograph, and the details of his or her
conviction.
Regardless of the precise bounds of
the federal right of privacy, the right does
not attach to matters already within the
public domain.50 The biographical information
about a sex offender that the public can
access under ASORA is information that is in
large part already in the public domain. Most
of that information is already in the sex
offender's criminal case file. The Supreme
Court noted that a person does not have an
objectively reasonable expectation of privacy
in his or her appearance or physical
characteristics.51
We conclude that Patterson has not
provided any compelling reason or authority to
show that ASORA violates an implied right of
privacy based on the federal constitution.
Patterson also argues that ASORA
violates his personal and constitutional right
to privacy under article I, section 22, of our
constitution. The Alaska Supreme Court has
adopted a two-prong test for construing the
scope of Alaska's right to privacy.
A person is protected
from unreasonable
government intrusion
whenever (1) the person
manifests a subjective
expectation of privacy in
the property or activity
being subjected to
government scrutiny, and
(2) this expectation of
privacy is one that
society recognizes as
reasonable.52
Determining a person's subjective
expectation of privacy presents a question of
fact. Whether that subjective expectation of
privacy is one that society will recognize as
reasonable is a question of law that considers
the balance between the subjective expectation
of privacy of the individual versus the public
interest.53
If Patterson has a subjective
expectation of privacy in all the information
that he must provide upon registration, we
must balance that assumed expectation of
privacy against the public interest. Then, we
decide if society will recognize that assumed
expectation of privacy as reasonable. The
public interest, as expressed by the
legislature, centers on protecting public
safety and welfare.
We held in State v. Chryst that an
individual's subjective expectation of privacy
in his or her name and address is not an
expectation that society would recognize as
reasonable.54 As we already noted, the details
of an offender's conviction and date of birth
are matters of public record. Patterson has
offered no authority that society would
recognize his subjective expectation of
privacy in his physical appearance - as
represented by his photograph - as
reasonable. Case law is contrary to
Patterson's position.55 Patterson has also not
offered any authority that he has a reasonable
expectation of privacy in his employer's
address.
As the supreme court noted in State
v. Glass, the constitutional protection of an
individual's privacy depends on the factual
context and the competing interests between
society and the individual.56 In contravention
to an individual's normal ability to decide
when, what, and to whom to release personal
information, ASORA forces a sex offender to
divulge personal information to the
government. The government then allows public
access to some of that information. This
compilation of personal information and its
public accessibility represents a notable and
significant alteration in the relationship
between an individual and the government. The
release of a sex offender's personal
information also represents a loss of personal
control over that biographical data. However,
the individuals whose privacy interests have
been affected are members of an identifiable
group, convicted sex offenders, that the
legislature considered a sufficient public
safety risk to justify the creation of the
registry and the release of that biographical
data.
We recognize the tension between the
personal interests of individuals, like
Patterson, and society's interest in public
safety. Because of the legislature's
expressed interest in public safety, we
conclude that Patterson's assumed subjective
expectation of privacy in the biographical
information released pursuant to ASORA must
yield to society's public safety interest.
Patterson's assumed expectation of privacy is
not an expectation that society will recognize
as reasonable. Therefore, we conclude that
ASORA does not violate Patterson's right to
privacy under article I, section 22, of the
Alaska Constitution.
ASORA does not violate
procedural due process or
fundamental fairness.
Patterson claims that ASORA deprives
him of a liberty interest without procedural
due process and is fundamentally unfair
because it does not provide for any hearing
before his personal information is entered
into the Department's registry. Patterson
again cites Doe v. Poritz57 to support his
argument. The notification protocol reviewed
in Poritz provided for a three-tiered protocol
for community notification of registered sex
offenders. The protocol triggered more active
notification of the local community if an
administrative assessment found that the
offender presented more than the lowest level
risk of re-offense. The New Jersey court
concluded that due process entitled a sex
offender to a hearing before the offender was
classified as having more than the lowest
level risk of re-offense.
Unlike the New Jersey statute,
Alaska's notification statute does not include
an administrative assessment that can result
in a more expansive distribution of
information about the offender. Under ASORA,
the Department of Public Safety collects the
information provided by each registrant but
performs no adjudication or classification of
individual offenders. The Department creates
the registry and enables public access to that
registry. Patterson has not cited authority
that due process requires public access only
to biographical information on those sex
offenders with the greatest probability for
re-offense. Patterson has shown no authority
that limits the legislature from providing
full access in all cases. Under ASORA, a sex
offender's risk of re-offense is a matter of
judgment for any member of the public who uses
the Department's registry.
The legislature decided that the
fact of an offender's conviction for a sex
offense was sufficient reason to include that
offender in the registry because of the
potential for re-offense. It is not an
irrational conclusion for the legislature to
create the sex offender registry in response
to the potential for recidivism that sex
offenders have as a group. Because ASORA, as
presently before us, does not require any
administrative adjudication, we conclude that
Patterson has not been deprived of procedural
due process and that ASORA is not
fundamentally unfair.
ASORA does not violate
substantive due process.
Patterson next argues that ASORA is
a violation of substantive due process because
both the registration and the notification
provisions unconstitutionally impinge on his
asserted liberty interests: his right to
travel, to obtain employment, and to personal
safety. But Patterson has shown no adverse
impact on any liberty interest. On its face,
ASORA does not impinge on the right to travel
or obtain employment and does not endanger
personal safety. Patterson made no showing
that ASORA has or is likely to affect these
liberty interests.
A statute violates substantive due
process only if the statute has no reasonable
relationship to a legitimate governmental
purpose.58 We do not decide whether the
legislative action is wise, but only if it is
based on a rational policy. "[I]f any
conceivable legitimate public policy for the
enactment is apparent on its face or is
offered by those defending the enactment, the
opponents of the measure must disprove the
factual basis for such a justification."59
This statute does not affect those
liberty interests. Nor has Patterson
disproved the legislature's announced policy
to promote public safety. We agree with the
State that the concern for public safety
satisfies the requirement of a legitimate
public policy and conclude that Patterson's
substantive due process attack fails.
ASORA does not violate equal
protection.
Patterson also claims that ASORA
violates equal protection. The
equal protection
clause of the
Fourteenth
Amendment
guarantees that
all individuals
similarly situated
will be treated
similarly.60 Under
the federal equal
protection clause,
if a statute does
not target a
suspect class, the
government need
only prove that
the classification
is rationally
related to a
legitimate
government
interest.61 Equal protection
under article I, section 1 of the Alaska
Constitution employs a sliding-scale analysis
requiring a substantial relationship between
legitimate legislative goals and the means
chosen to achieve those goals.62
To pursue an equal protection claim,
Patterson must show that he is a member of a
group that is treated differently than another
similarly situated group.63 Patterson has not
identified any differently treated yet
similarly situated group or argued how ASORA
creates a suspect classification.
Accordingly, we conclude that Patterson's
equal protection attack fails because he has
not shown or argued that convicted sex
offenders are treated differently than any
similarly situated group.
ASORA is not cruel and unusual
punishment.
Patterson claims that ASORA imposes
cruel and unusual punishment. Because we
concluded above that ASORA's purpose is not
punitive but regulatory, this argument fails.
Patterson's claim
regarding the privileges
and immunities clause.
Patterson claims that ASORA violates
the privileges and immunities clause. He only
mentions this claim in the heading in one
section of his brief.
Therefore, we
conclude that
argument is not
adequately briefed
and do not address
it.64
ASORA is not
overbroad.
Patterson also attacks ASORA
claiming that it is overbroad because the
program does not provide an individual
analysis of an offender's actual potential for
recidivism. Patterson's
overbreadth attack
does not identify
any particular
constitutionally
protected conduct
that ASORA
allegedly
prohibits that was
not already raised
in his other
constitutional
objections. Reducing
Patterson's argument to its core, he claims
that the legislature should have created a
more complex scheme than it did, one that
included a determination of each offender's
potential for recidivism.
Essentially,
Patterson has
restated the due
process claims
that we rejected
above. We
conclude that
Patterson has not
met his burden to
show that ASORA is
overbroad.
ASORA is not a bill of attainder.
Next, Patterson claims that ASORA is
a bill of attainder because it imposes a
punishment without trial on the group that he
is a member of - convicted sex offenders.
This argument fails because the duty to
register is not punishment.
ASORA does not violate Patterson's
plea agreement.
Finally, Patterson claims that
applying ASORA to him violates his plea
agreement with the State. The legislature had
not enacted ASORA when Patterson entered his
plea. Patterson obtained the direct benefit
of his plea; he was convicted and sentenced
for sexual abuse of a minor.
Patterson maintains that the duty to
register is now a direct consequence of sex
offense conviction. In Limani v. State,65 we
discussed the differences between a
"collateral consequence" and a "direct
result" of a conviction. We adopted the
convention that a collateral consequence is
one that originates outside the court.66 Patterson relies on two legislative changes to the Criminal Rules to support his argument that registration is a direct consequence. The first is the legislature's
amendment to Criminal Rule 11 requiring the
court to advise a defendant of the duty to
register as a sex offender if that defendant
is entering a plea of guilty or no contest to
a sex offense charge. The second is the
amendment to Criminal Rule 32 that requires
that a judgment of conviction for a sex
offense include a notification of the
defendant's duty to register as a sex
offender.
In Peterson v. State,67 a decision
also being issued today, we hold that the
failure to warn a person of the ASORA
registration requirement when a person enters
a plea to a sex offense may establish manifest
injustice for purposes of Criminal Rule
11(c)(3). But we reached this conclusion
based on the legislature's apparent purpose
when it amended Rule 11(c) to require this
warning. The registration requirement remains
a collateral consequence of the plea. ASORA
imposes the duty to register, not the
sentencing court.
Here, as in Petersen, we conclude
that the duty to register is not a direct
result of Patterson's plea agreement, but a
collateral consequence. Therefore, we
conclude that Patterson has not shown a
violation of his plea agreement.
Conclusion
The judgment is AFFIRMED.
Footnotes:
1 AS 11.41.434(a)(1).
2 AS 12.63.010 - .100.
3 Former AS 11.56.840 provides:
A person who knowingly fails to (1) register, (2)
file the written notice of change of address, or (3)
file the annual written notice or statement, as
required in AS 12.63.010, is guilty of a class A
misdemeanor.
4 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
5 The 1998 legislative
session modifications to these statutes are not at issue
here.
6 A "sex offender" is a person convicted of a specifically
enumerated "sex offense" as defined by AS 12.63.100(3). The
statute has been amended to include child kidnapping.
7 AS 12.63.010(b)(1).
8 See id. In ch. 106, § 8, SLA 1998, the legislature amended
this section to include additional information not at issue in this
case.
9 AS 12.63.010(c).
10 AS 12.63.020(a)(2).
11 AS 12.63.020(a)(1).
12 See former AS 12.63.100(2): "'sex offender' means a person
convicted of a sex offense in this state or another jurisdiction
regardless of whether the conviction occurred before, after, or on
August 10, 1994[.]"
13 See U.S. Const. art. I, §§
9, 10; Alaska Const. art.
I, § 15.
14 Amin v. State, 939 P.2d
413, 416 (Alaska App. 1997)
(citing Collins v.
Youngblood, 497 U.S. 37, 43
(1990)).
15 State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991).
16 See e.g., Russell v. Gregoire, 124 F.3d 1079, 1086-88 (9th
Cir. 1997), cert. denied, __ U.S.
__, 118 S. Ct. 1191 (1998);
Doe v. Pataki, 120 F.3d 1263, 1273-75 (2d Cir. 1997),
cert. denied, __ U.S. __,
118 S. Ct. 1066 (1998).
17 Russell, 124 F.3d at 1087; Pataki, 120 F.3d at 1274.
18 See e.g., Russell, 124 F.3d at 1087; Pataki, 120 F.3d at
1273-75; E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), cert.
denied, __ U.S. __, 118 S. Ct. 1039 (1998).
19 Ch. 41, § 1, SLA 1994.
20 See Anthony, 816 P.2d at 1379.
21 See id. at 1378; see also De Veau v. Braisted, 363 U.S. 144,
160 (1960).
22 See Russell, 124 F.3d at
1087.
23 AS 12.63.010(a).
24 AS 12.63.010(b)(1).
25 AS 12.63.010(b)(2).
26 372 U.S. 144 (1963).
27 See id. at 168-69 (citations
omitted).
28 See Russell, 124 F.3d at 1091-93.
29 See Russell v. Gregoire,
124 F.3d 1079 (9th Cir.
1997); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997); Artway
v. Attorney Gen. of New Jersey, 81 F.3d 1235 (3d Cir. 1996);
State v. Noble, 829 P.2d
1217 (Ariz. 1992); People
v. Starnes, 653 N.E.2d 4
(Ill. App. 1995); State v.
Manning, 532 N.W.2d 244
(Minn. App. 1995); State v.
Costello, 643 A.2d 531
(N.H. 1994); Doe v. Poritz,
662 A.2d 367 (N.J. 1995);
Williford v. Board of
Parole & Post-Prison
Supervision, 904 P.2d 1074
(Or. App. 1995); State v.
Ward, 869 P.2d 1062 (Wash.
1994); In re Estavillo, 848
P.2d 1335 (Wash. App.
1993); State v. Taylor, 835
P.2d 245 (Wash. App. 1992);
Snyder v. State, 912 P.2d
1127 (Wyo. 1996).
30 284 U.S. 299 (1932).
31 621 P.2d 1350 (Alaska 1981).
32 619 P.2d 720 (Alaska 1980).
33 334 U.S. 728, 732 (1948).
34 Danks, 619 P.2d at 722 (emphasis added) (citations
omitted).
35 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law § 2.4, at 139 (1986) (emphasis added)
(citations omitted).
36 Roe v. Wade, 410 U.S. 113, 152-53 (1973).
37 See id.
38 See Whalen v. Roe, 429 U.S. 589, 599 (1977).
39 See National Treasury Employees Union v. United States Dep't
of the Treasury, 25 F.3d 237, 242 (5th Cir. 1994); Doe v. New
York, 15 F.3d 264, 266 (2d Cir. 1994); Plante v. Gonzalez, 575 F.2d
1119, 1133 (5th Cir. 1978).
40 510 U.S. 487 (1994).
41 489 U.S. 749 (1989).
42 5 U.S.C. § 552(b)(6).
43 F.L.R.A., 510 U.S. at 502.
44 5 U.S.C. § 552(b)(7)(C).
45 Reporters Committee, 489 U.S. at 778-80.
46 See id. at 762 n.13.
47 662 A.2d 367 (N.J.
1995).
48 See id. at 409.
49 See id. at 411-12.
50 See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 493-96 (1975).
51 See United States v. Dionisio, 410 U.S. 1, 5-7 (1973).
52 State v. Page, 911 P.2d 513, 515 (Alaska App. 1996) (citing
State v. Glass, 583 P.2d 872, 875, 880 (Alaska 1978)).
53 See Page, 911 P.2d at 515-16.
54 793 P.2d 538, 542 (Alaska App. 1990).
55 See Dionisio, 410 U.S. at 14-15.
56 See Glass, 583 P.2d at 879-80.
57 662 A.2d 367 (N.J. 1995).
58 See Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d
447, 452 (Alaska 1974).
59 Id.
60 See City of Cleburne v.
Cleburne Living Ctr., 473
U.S. 432, 439 (1985).
61 See id. at 441-42.
62 See Alaska Pac. Assur. Co. v. Brown, 687 P.2d 264, 269-70
(Alaska 1984).
63 See Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d
391, 397 (Alaska 1997); Rozkydal v. State, 938 P.2d 1091, 1095-96
(Alaska App. 1997).
64 See Zok v. State, 903 P.2d 574, 576 n.2 (Alaska 1995).
65 880 P.2d 1065 (Alaska App. 1994).
66 See id. at 1067.
67 ___ P.2d ___, Opinion No. 1640 (Alaska App., July 23, 1999).
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