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State v. Martin (1/26/01) ap-1716
State v. Martin (1/26/01) ap-1716
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7089
Appellant, ) Trial Court Nos. 3KN-98-246 Cr
) & 3KN-98-684 Cr
v. )
)
JOHN W. MARTIN, JR., )
)
Appellee. )
)
)
JOHN W. MARTIN, JR., )
) Court of Appeals No. A-7149
Cross-Appellant, )
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Cross-Appellee. ) [No. 1716 January 26, 2001]
)
Appeal from the District Court, Third Judicial
District, Kenai, Lynn H. Christensen, Magistrate.
Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant/cross-appellee. Arthur S. Robinson, Robinson &
Beiswenger, Soldotna, for Appellee/cross-appellant.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In 1982, John W. Martin, Jr., pleaded no contest to
incest. He received a suspended imposition of sentence. Martin
served five years of probation, and his conviction was set aside in
1988.
In 1994, the Alaska Legislature enacted the Sex Offender
Registration Act, AS 12.63.010 et seq.. [Fn. 1] Under this act,
all convicted sex offenders residing within Alaska are required to
register with their local police agency and provide the information
specified in AS 12.63.010(b). They must then periodically update
this information. For offenders convicted of a single, non-
aggravated sex offense, the updated information must be submitted
annually for fifteen years after their final discharge from
correctional supervision. [Fn. 2]
When the legislature initially enacted the Sex Offender
Registration Act, the Act did not explicitly state whether these
registration and reporting requirements applied to defendants like
Martin defendants whose convictions have been set aside under the
suspended-imposition-of-sentence procedure codified in AS 12.55.085.
Four years later, in 1998, the legislature enacted a definition of
"conviction" in AS 12.63.100(3) that resolved this issue. Under this
statutory definition, a person convicted of a sex offense must
register "regardless of whether the judgment [of conviction] was set
aside under AS 12.55.085 or a similar provision in another
jurisdiction".
During the four years in which there was no statutory
definition of "conviction", the Department of Public Safety applied
a definition that it had enacted in an administrative regulation,
13 AAC 09.900(a)(2). This regulation (like the statute that came
after it) declared that, for purposes of the Sex Offender
Registration Act, "conviction" included convictions that had been
set aside under AS 12.55.085.
Martin was twice charged with failing to register as a sex
offender [Fn. 3] during the years in which "conviction" was defined
by regulation. Martin asked the district court to dismiss the
charges, arguing that the Department of Public Safety exceeded its
authority when it defined "conviction" to include set-aside
convictions. The district court agreed with Martin and dismissed
the case.
The State now appeals the district court's ruling. (File
No. A-7089) Martin, in turn, has filed a cross-appeal in which he
argues that there are two other reasons why the Sex Offender
Registration Act should not apply to him. (File No. A-7149)
The State's appeal is easily resolved. While Martin's
case was pending, we decided this same issue (the authority of the
Department of Public Safety to expand the definition of "conviction"
by regulation). In State v. Otness [Fn.
4], we held that the Department acted within its lawful authority,
and thus the Sex Offender Registration Act applies to defendants
whose convictions have been set aside. Given our decision in
Otness, it is clear that the district court should not have
dismissed Martin's case on this basis.
The remaining issues are raised in Martin's cross-appeal.
Martin first argues that, if he is forced to register as
a sex offender, this would constitute an unlawful modification of
his plea agreement with the State. He notes that his plea agreement
contained no mention of sex offender registration. This is hardly
surprising, since Martin's plea agreement was negotiated twelve
years before the legislature enacted the Sex Offender Registration
Act.
The real question is whether the registration and
reporting requirements of the Sex Offender Registration Act
constitute a "punishment" or should otherwise be deemed a "direct
consequence" of Martin's conviction. If so, then the due process
clause of the Constitution would forbid the State from imposing
these additional requirements after Martin negotiated his plea
agreement and was sentenced. But we rejected this argument in
Peterson v. State [Fn. 5]:
[In] Patterson v. State, 985 P.2d 1007
(Alaska App. 1999) ... we [held] that sex offender registration is
not part of a defendant's sentence but is, instead, a civil
regulatory measure that attaches certain collateral consequences to
a conviction for a sex offense. These consequences remain
"collateral" for due process purposes even though they inevitably
attend a conviction for any offense listed in AS 12.63.100. As we
said in Limani v. State [880 P.2d 1065, 1067 (Alaska App. 1994)],
[T]he distinction between a direct and
collateral consequence of a conviction does not turn on whether the
consequence is inevitable or a mere possibility. Rather, a
collateral consequence is one originating outside of the trial
court.
A guilty plea is "knowing" and "voluntary" for
due process purposes if "the record, taken as a whole, ... show[s]
[the defendant's] understanding of the nature of the offense charged
and [the] voluntar[iness] [of the] plea." A plea meets the standards
of due process even though the defendant is not "informed about every
conceivable collateral effect the conviction might have". A plea
remains constitutionally valid even though the court may fail to
comply with one or more provisions of Criminal Rule 11(c). We
therefore agree with the State that [a defendant's] plea [is]
"knowing" and "voluntary" for due process purposes even if [the
defendant] did not know about the registration requirement when
[they] entered [the] plea.
988 P.2d at 115 (footnotes omitted). We therefore hold that the
State's later imposition of sex offender registration and reporting
requirements on Martin does not constitute an unlawful modification
of his plea agreement.
Martin raises one other constitutional attack on the Sex
Offender Registration Act. When the legislature enacted sex
offender registration in 1994, they also enacted a transitional
provision that made the Act applicable to many, but not all, of the
defendants who were convicted of sex offenses before 1994:
APPLICABILITY. (a) A sex offender with
only one conviction for a sex offense who [was] unconditionally
discharged from that sex offense before July 1, 1984, is not
required to register under [this Act]. A sex offender who [was]
unconditionally discharged ... on or after July 1, 1984, but before
the effective date of this act shall register ... by July 1, 1994.
A sex offender with two or more convictions for a sex offense before
the effective date of this act, regardless of [when] the sex
offender was unconditionally [discharged], shall register under
[this Act] by July 1, 1994.
SLA 1994, ch. 41, sec. 12.
In other words, the legislature imposed registration on
(1) all sex offenders convicted of two or more sex offenses,
regardless of whether or when they had been unconditionally
discharged from correctional supervision, and on (2) all those sex
offenders convicted of a single sex offense whose unconditional
discharge occurred within the ten years preceding the effective date
of the Sex Offender Registration Act.
Martin was released from probation in 1988 (i.e., "on or
after July 1, 1984"), and so, under the transitional provision of
SLA 1994, ch. 41, the Sex Offender Registration Act applied to him.
But Martin asserts that this transitional provision violates the
equal protection clause.
Martin notes that, under the Sex Offender Registration
Act, offenders like Martin who have been convicted of a single sex
offense are required to register and report for fifteen years
following their unconditional discharge from correctional
supervision. If the Act were applied completely retroactively, it
would cover all defendants whose unconditional discharges occurred
on or after July 1, 1979 that is, within the fifteen years
preceding the effective date of the Act. But, as explained above,
the transitional provision limits the retroactive effect of the Act
on single-conviction sex offenders. The registration and reporting
requirements apply to such offenders only if they were
unconditionally discharged within the preceding ten years. That is,
the legislature exempted offenders whose unconditional discharges
occurred between July 1, 1979 and July 1, 1984.
Martin contends that this ten-year dividing line violates
the equal protection clause. In essence, Martin argues that the
Constitution gave the legislature two choices. Either (1) the
legislature had to make the Sex Offender Registration Act completely
retroactive i.e., make it apply to all single-conviction offenders
whose unconditional discharges occurred up to fifteen years before
the effective date of the Act; or (2) the legislature had to have
a compelling governmental interest to support its decision not to
extend the registration and reporting requirements to offenders
whose unconditional discharges occurred more than ten years before
the effective date of the Act.
We reject Martin's assertion that the legislature needed
a "compelling" governmental interest to draw the dividing line at
ten years. A compelling state interest is required only when the
legislature's classification targets a suspect class or infringes
on fundamental rights. [Fn. 6] Here, no suspect class is involved,
nor is any fundamental right.
Martin argues that sex offender registration infringes his
right to "liberty" because he is required to go to the office of a
local police agency to register. In Patterson v. State, we rejected
a similar "liberty interest" attack on the Sex Offender Registration
Act an attack based on a person's "right to travel, to obtain
employment, and to [enjoy] personal safety". [Fn. 7] We likewise
reject Martin's argument that the mandated visit to a police agency
violates his liberty.
The Sex Offender Registration Act declares that, if Martin
chooses to live in Alaska, he must register with a police agency and
make the annual reports required by the Act. Martin argues that the
Act infringes on his liberty because it requires him to physically
visit a police office. We conclude that this is no greater an
infringement on Martin's "liberty" than the requirement that he visit
the Department of Motor Vehicles if he wishes to obtain or renew a
driver's license or vehicle registration, or that he visit the
Division of Elections if he wishes to register to vote.
Because no fundamental liberty interest is at stake, the
legislature needed only a rational basis for their decision to limit
the retroactivity of the Sex Offender Registration Act.
Administrative convenience would suffice, as would the legislature's
possible conclusion that sex offenders who had been convicted of a
single offense and who had been discharged more than ten years
before posed less danger to the public. The legislature could
reasonably conclude that, given the expectable difficulty in
identifying and locating offenders who had not been under state
supervision for more than ten years, and given the lesser degree of
danger that such offenders posed, it was not worth the effort to
include them in the initial registration and reporting requirements.
For these reasons, we uphold the transitional provision
(SLA 1994, ch. 41, sec. 12) against Martin's equal protection
attack.
In sum: The decision of the district court (dismissing
the charge of failure to register) is REVERSED. The complaint is
reinstated, and this case is remanded to the district court for
further proceedings on that complaint.
FOOTNOTES
Footnote 1:
See SLA 1994, ch. 41.
Footnote 2:
See AS 12.63.010(d); AS 12.63.020(a).
Footnote 3:
AS 11.56.840(a).
Footnote 4:
986 P.2d 890 (Alaska App. 1999).
Footnote 5:
988 P.2d 109 (Alaska App. 1999).
Footnote 6:
See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S.
432, 441-42; 105 S.Ct. 3249, 3255; 87 L.Ed.2d 313 (1985); Alaska
Pacific Assurance Co. v. Brown, 687 P.2d 264, 269-270 (Alaska 1984).
Footnote 7:
985 P.2d 1007, 1017-18 (Alaska App. 1999).
