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Nunley v State (06/29/2001) ap-1751
Nunley v State (06/29/2001) ap-1751
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
JOHN M. NUNLEY, )
) Court of Appeals No. A-7733
Appellant, ) Trial Court No. 3PA-S98-142 CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
KENNETH CUTLER, )
) Court of Appeals No. A-7734
Appellant, ) Trial Court No. 3PA-S98-041 CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
ROBERT KRAUSE, JR., )
) Court of Appeals No. A-7735
Appellant, ) Trial Court No. 3PA-S98-373 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
) [No. 1751 June 29, 2001]
Appellee. )
)
Appeals from the District Court, Third Judicial
District, Palmer, Paul E. Olson, Judge.
Appearances: Laurel Bennett and Danna M.
White, Assistant Public Defenders, Palmer, and Barbara K. Brink,
Public Defender, Anchorage, for Appellants. Kenneth M. Rosenstein,
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.
MANNHEIMER, Judge, dissenting.
John M. Nunley, Kenneth Cutler, and Robert Krause, Jr.,
were separately convicted of failing to comply with the Alaska Sex
Offender Registration Act (ASORA). [Fn. 1] Each defendant moved
to dismiss his case, primarily arguing that ASORA did not apply to
him because he did not fit into any of the three subsections of
former AS 12.63.010(a). District Court pro tem Judge Paul E. Olson
denied their motions, and each defendant entered a no contest plea,
preserving the right to appeal this issue. [Fn. 2] We consolidated
these appeals for purposes of oral argument and decision. For the
reasons set out below, we affirm the convictions.
Facts and proceedings
Nunley, Cutler, and Krause each had been convicted of sex
offenses, sentenced, and subsequently released from their probation
before August 10, 1994, the effective date of ASORA. Each had
been found guilty of a sex offense in 1990; Nunley had been released
from probation in 1993, while Cutler and Krause had been released
in 1992. In 1998, each was charged with violating ASORA for not
registering as a sex offender; each entered a no contest plea in
1999. Their cases were then stayed pending this court's disposition
of Patterson v. State. [Fn. 3]
Discussion
The appellants contend that while ASORA directs some
classes of convicted sex offenders to register, and provides the
time and the manner for doing so, former AS 12.63.010(a) does not
specifically address convicted sex offenders who were
unconditionally released prior to August 10, 1994. They argue that
former AS 12.63.010(a) provided registration deadlines for only
three groups of offenders, none of which includes the appellants.
They conclude that either the legislature did not intend to require
offenders like them to register under ASORA, or, alternatively, that
ASORA is unconstitutionally vague because it did not provide them
with adequate notice that they had a duty to register.
We disagree with the appellants' interpretation. The
pertinent part of former AS 12.63.010 provides that:
(a) A sex offender who is physically
present in the state shall register as provided in this section.
The sex offender shall register within
(1) seven days of release from an in-state
correctional facility;
(2) seven days of conviction for a sex
offense if the sex offender is not sentenced to a term of
incarceration; or
(3) 14 days of becoming physically present
in the state, except the sex offender shall register within seven
days of becoming physically present in the state if the sex offender
(A) is a probationer or parolee being
supervised by the state as the receiving state under AS 33.36.110 -
33.36.120; or
(B) has been released from an out-of-
state correctional facility where the sex
offender was serving a term of incarceration for a sex offense
conviction in this state. [Fn. 4]
The language of former AS 12.63.010(a) makes it clear that
"[all] sex offender[s] who [are] physically present in the state
shall register . . . ." Likewise, for purposes of former AS 12.63,
the term "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 [the effective date]" of
ASORA. [Fn. 5] The only offenders excused were those "with only one
conviction for a sex offense who [had] been unconditionally
discharged from that sex offense before July 1, 1984[.]" [Fn. 6]
Based on these various provisions, we conclude that the legislature
intended to impose a duty to register under ASORA on convicted sex
offenders like the appellants. Moreover, we conclude that ASORA
provided such sex offenders with sufficient notice that they were
required to register.
We also conclude that the legislature intended to
criminalize the failure to register under ASORA when, as part of the
ASORA legislation, it passed former AS 11.56.840. [Fn. 7] And, as
mentioned above, the only sex offenders excepted from ASORA's
registration requirements were those who had been unconditionally
discharged for a single sex offense conviction before July 1, 1984.
[Fn. 8] Accordingly, we conclude that sex offenders physically
present in Alaska who had been released from probation before the
effective date of ASORA still were required to comply with the
general duty to register set forth in former AS 12.63.010(a).
Likewise, we conclude that the legislature intended to subject
convicted sex offenders such as the appellants to criminal penalties
under former AS 11.56.840 for failing to comply with ASORA's general
duty to register.
Conclusion
The judgment of the district court is AFFIRMED.
MANNHEIMER, Judge, dissenting.
I agree with my colleagues that the legislature wanted
the three defendants in this case (and all other similarly situated
defendants) to register as sex offenders. But that is not the
issue. Instead, the issue is whether these three defendants
violated AS 11.56.840 the statute which declares that a person
is guilty of a misdemeanor if they fail to register as a sex
offender "as required in AS 12.63.010".
These three defendants did not violate a duty to register
"as required in AS 12.63.010" because the registration provisions
contained in AS 12.63.010 do not apply to these defendants.
Rather, the provision of law that obliges these three defendants to
register as sex offenders, and that sets a deadline for their
registration, is found in a special enactment of the legislature:
SLA 1994, ch. 41, sec. 12 (as later modified by 13 AAC 09.010(d)).
The defendants may have violated this special statute and its
accompanying regulation, but the defendants did not violate any
provision of AS 12.63.010. Therefore, the defendants are not
guilty of violating AS 11.56.840.
Underlying Facts
The three defendants in this case are "sex offenders" for
purposes of Alaska's Sex Offender Registration Act; that is, they
were convicted of offenses listed in AS 12.63.100(6). Each of the
defendants served his prison term and completed his probation
before August 10, 1994 the effective date of the Registration
Act.
In 1998 (approximately four years after the Registration
Act took effect), the defendants were charged with violating
AS 11.56.840 because they had never registered as sex offenders.
They ultimately pleaded no contest to this charge, reserving their
right to pursue this appeal.
The registration deadlines set forth in AS 12.63.010
Under AS 12.63.010(a), all sex offenders who are
physically present in Alaska must register. The statute sets three
deadlines for this registration. Sex offenders who are
incarcerated in Alaska must register within the 30-day period
before their release from prison. [Fn. 1] Sex offenders who are
present in Alaska at the time of their conviction, but who are not
incarcerated, must register by the next working day following their
conviction. [Fn. 2] And sex offenders who were not physically
present in Alaska at the time of their conviction or release from
prison, but who later come to Alaska, must register by the next
working day after their arrival in this state. [Fn. 3]
The special registration deadline established by the
legislature (and later modified by the Department of Public Safety)
for sex offenders who had completed their prison terms by the time
the Sex Offender Registration Act took effect
All three of the deadlines set forth in AS 12.63.010(a)
are tied to a particular event in the defendant's life: the day of
the defendant's conviction (if the defendant is not sentenced to
prison), or the day of the defendant's release from prison, or the
day of the defendant's arrival in Alaska. All three deadlines are
based on the assumption that the Sex Offender Registration Act is
in effect when the specified event occurs. People like the
defendants in this case sex offenders who were convicted in
Alaska, who were incarcerated in Alaska, and who finished serving
their prison terms before the Registration Act took effect
obviously will have missed the registration deadlines established
in AS 12.63.010. The legislature realized this, and they made
special provision for this group of defendants when they enacted
the Sex Offender Registration Act.
In an uncodified portion of the session law SLA 1994,
ch. 41, sec. 12(a) the legislature established a special
registration deadline for persons in the defendants' situation:
A sex offender who has been unconditionally
discharged from a sex offense on or after July 1, 1984, but before
the effective date of this Act, shall register ... by July 1, 1994.
[Likewise, 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 released ... , shall register
under AS 12.63.010 ... by July 1, 1994.
The legislature established this July 1, 1994 deadline
with the expectation that the Sex Offender Registration Act would
be in effect by that date. However, the law did not go into effect
until August 10, 1994. Moreover, police agencies were not prepared
to handle sex offender registration for many months following the
enactment of the Registration Act. To solve this problem, the
Department of Public Safety promulgated a regulation, 13 AAC
09.010(d), that set a delayed registration deadline for sex
offenders in this situation:
If the time period for initial registration
set out in AS 12.63.010 has already passed as of 12/31/95, [the sex
offender] shall initially register no later than the last day of
[January, 1996].
This deadline January 31, 1996 was the one that applied to the
defendants in the present case, and it is this deadline that they
failed to meet. [Fn. 4]
AS 11.56.840 punishes a failure to meet the three
registration deadlines set forth in AS 12.63.010, but it does not
punish a failure to meet the registration deadline established in
13 AAC 09.010(d) for sex offenders released from custody before the
effective date of the Registration Act
The problem in this case appears to be bad drafting.
All sex offenders physically present in this state have
a duty to register, and the legislature clearly wanted to enforce
that duty by imposing criminal penalties on those who failed or
refused to honor it. But when the legislature drafted AS
11.56.840, the statute that makes it a crime to fail to register,
the legislature defined the crime solely with respect to the
deadlines specified in AS 12.63.010. They apparently forgot about
the defendants who completed their sentences before the passage of
the Registration Act and whose registration deadline was specified
in 13 AAC 09.010(d).
Under 13 AAC 09.010(d), the three defendants in this case
were clearly obliged to register as sex offenders on or before
January 31, 1996. And they have conceded that they failed to do
that. But one of the cardinal principles of our law is nullum
crimen sine lege, nulla poena sine lege [Fn. 5] the principle
that no person shall suffer criminal punishment unless the
legislature (or an agency with power delegated by the legislature)
has enacted a statute or regulation that makes the person's conduct
a crime. This principle is codified in AS 11.81.220, which states:
No conduct constitutes an offense unless
it is made an offense by (1) this title; (2) by a statute outside
this title; or (3) by a regulation authorized by and lawfully
adopted under a statute.
As Professor LaFave notes in his treatise on the
substantive criminal law, "sometimes the legislature forbids
conduct and then omits (in most cases unintentionally) to provide
for a penalty ... . In such a situation[,] one who engages in the
forbidden conduct is not guilty of a crime." [Fn. 6]
This passage concisely describes what has happened here.
The Alaska Legislature ordered these three defendants (and all
similarly situated sex offenders) to register by the deadline first
established in SLA 1994, ch. 41, sec. 12 and later modified by 13
AAC
09.010(d). But the legislature either declined or (more probably)
neglected to enact a criminal penalty for violation of this duty.
A similar situation was presented to the Virginia Court
of Appeals in Cook v. Commonwealth. [Fn. 7] The defendant in Cook
was convicted of attempted second-degree murder. Although the
Virginia legislature clearly intended for attempted second-degree
murder to be a crime, the legislature forgot to include a reference
to that crime in the statute that listed the punishments for
various categories of attempts. [Fn. 8] That is, "although [the]
defendant's conduct [was] proscribed by statute, it was an offense
without a penalty." [Fn. 9] Because the legislature had not
specified a punishment for attempted second-degree murder, the
Virginia court held that the defendant could not be convicted of
this offense. [Fn. 10]
I conclude that we must apply this same rule of law to
the case before us.
Conclusion
The defendants stand convicted of failing to meet the
registration deadlines contained in AS 12.63.010(a) deadlines
that do not apply to them. They admittedly failed to meet the
registration deadline that does apply to them (the deadline set
forth in 13 AAC 09.010(d)), but there is no criminal statute that
punishes a failure to meet this deadline. For this reason, the
defendants' convictions must be reversed.
FOOTNOTES (Dissent)
Footnote 1:
See AS 12.63.010(a)(1).
Footnote 2:
See AS 12.63.010(a)(2).
Footnote 3:
See AS 12.63.010(a)(3).
Footnote 4:
In 1998, the legislature enacted a new uncodified law to deal
with these defendants. SLA 1998, ch. 106, sec. 25(a) states that
sex
offenders with two or more convictions, or one conviction for an
aggravated sex offense as defined in AS 12.63.100(1), "shall
register under AS 12.63.010, as amended by secs. 7 11 of this
Act, by the 60th day after the effective date of this Act." This
same uncodified section further states that "a sex offender ...
with only one conviction for a [non-aggravated] sex offense ... who
was required to register under sec. 12, ch. 41, SLA 1994, shall
continue to register as provided by AS 12.63.010, as amended by
secs. 7 11 of this Act."
The following year (in November 1999), 13 AAC 09.010(d)
was repealed, apparently in the belief that it was no longer
needed.
Footnote 5:
Literally, "no crime without a law, no punishment without a
law".
Footnote 6:
Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal
Law (1986), sec. 1.2(d), Vol. 1, p. 13.
Footnote 7:
458 S.E.2d 317 (Va. App. 1995).
Footnote 8:
See id. at 318.
Footnote 9:
Id.
Footnote 10:
See id. at 319.
FOOTNOTES
Footnote 1:
See former AS 12.63.010 (1988) and former AS 11.56.840 (1989).
Footnote 2:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 3:
985 P.2d 1007 (Alaska App. 1999).
Footnote 4:
New registration deadlines went into effect on January 1,
1999. See AS 12.63.010.
Footnote 5:
Former AS 12.63.100(2) (1998).
Footnote 6:
Ch. 41, sec. 12, SLA 1994.
Footnote 7:
Former AS 11.56.840 (1998) provided:
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.
Footnote 8:
See ch. 41, sec. 12, SLA 1994.
