Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
State v. Hawkins (01/25/2002) ap-1784
State v. Hawkins (01/25/2002) ap-1784
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-7615
) Trial Court No. 2NO-S98-60 CR
Appellant, )
)
v. ) O P I N I O N
)
HAROLD W. HAWKINS, )
)
Appellee. )
)
HAROLD W. HAWKINS, )
) Court of Appeals No. A-7616
Cross-Appellant, ) Trial Court No. 2NO-S98-60 CR
)
v. )
)
STATE OF ALASKA, )
)
Cross-Appellee. ) [No. 1784 - January 25, 2002]
)
Appeals from the District Court, Second Judi-
cial District, Nome, Bradley N. Gater,
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. Michelle Hall, Assistant Public Defender,
Nome, and Barbara K. Brink, Public Defender, Anchorage, for
Appellee/Cross-Appellant.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, dissenting.
Harold W. Hawkins was charged with failing to register as
a sex offender under the Alaska Sex Offender Registration Act
(ASORA). [Fn. 1] Hawkins moved to dismiss, asserting a number of
grounds. Magistrate Bradley N. Gater rejected all of Hawkins's
grounds but one; the magistrate granted Hawkins's motion to dismiss
on the ground that ASORA violated the ex post facto clause of the
federal constitution because ASORA, on its face, required sex
offenders to register nearly forty days before ASORA was actually
passed. The state appeals, arguing that failure to register under
ASORA is a continuing offense, and that there was no ex post facto
violation because Hawkins's offense was failure to register more
than three years after the law was enacted. Hawkins cross-appeals,
arguing that Magistrate Gater erred when he found that Hawkins had
a duty to register under ASORA even though the state could not
prosecute him for failing to register. For the reasons set out
below, we reverse the magistrate's decision that Hawkins's
prosecution violated the federal ex post facto clause and affirm his
decision that Hawkins had a duty to register under ASORA.
Facts and proceedings
Hawkins was convicted of first-degree sexual assault in
1981. He was sentenced to six years of imprisonment, with three
years suspended. He was unconditionally discharged from his
conviction in 1987. In August 1994, when the requirement to
register under ASORA went into effect, Hawkins failed to register.
According to the record, he has never registered as a sex offender.
On January 28, 1998, Hawkins was charged under former AS
11.56.840 with failure to register as a sex offender. He moved to
dismiss the charge, arguing, among other things, that ASORA violated
the federal prohibition against ex post facto laws. [Fn. 2]
Magistrate Gater agreed, granted the motion, and dismissed Hawkins's
case. [Fn. 3] Based on his review of ASORA and its related
regulations, Magistrate Gater found that although Hawkins had a duty
under ASORA to register as a sex offender, the state could not
prosecute him for failing to register by July 1, 1994. As part of
his decision, Magistrate Gater found that the Department of Public
Safety (the Department) exceeded its authority when it passed former
13 Alaska Administrative Code (AAC) 09.010(d), which extended for
certain sex offenders the deadline for initial registration. In
essence, the magistrate found that failure to register under ASORA
is not a continuing offense.
The state appealed the dismissal of Hawkins's case.
However, like many ASORA cases, the case was stayed pending this
court's decision in Patterson v. State [Fn. 4] and Otness v. State.
[Fn. 5] After this court issued decisions in Patterson and Otness,
this case was remanded for reconsideration. Upon remand, Magistrate
Gater did not change his decision that, as applied to Hawkins, ASORA
violated the federal ex post facto clause. Consequently, the state
renewed its appeal, and Hawkins filed a cross-appeal.
Discussion
The state's appeal
ASORA went into effect on August 10, 1994. Among other
things, it required certain convicted sex offenders to register by
July 1, 1994 more than a month before the law was enacted. [Fn.
6] With one general exception, ASORA required all convicted sex
offenders to register with the Department. The only sex offenders
exempt from the registration requirements were those who had been
convicted of a single sex offense and unconditionally discharged
from that conviction before July 1, 1984. [Fn. 7] ASORA also
created various categories of sex offenders and set out specific
filing deadlines for each of them. [Fn. 8] Consequently, the
Department, which was responsible for implementing ASORA,
promulgated a number of regulations. Included in these (apparently
to correct the problem caused by the July 1, 1994, registration
date, among other things) was a regulation extending the filing
deadline for certain sex offenders until January 31, 1996. [Fn. 9]
Under ASORA and the Department's regulations, Hawkins was required
to register as a sex offender. However, by January 28, 1998, he had
not yet done so.
Magistrate Gater ruled that ASORA's registration
requirement was not "punishment" for ex post facto purposes. On
the other hand, he found that the prosecution of Hawkins for failure
to register would violate the federal constitution's ex post facto
clause. In other words, the magistrate found that under ASORA, the
state could only prosecute sex offenders like Hawkins for failing
to register by July 1, 1994.
This finding, however, is based on a narrow interpretation
of ASORA as it was initially enacted. Clearly, as the state
concedes, prosecuting Hawkins for failure to file by July 1, 1994,
would violate the ex post facto clause. But it is equally evident
that when the legislature passed ASORA, it intended to impose upon
sex offenders a continuing registration requirement and to prosecute
those who refused to register. As this court found in Nunley v.
State, [Fn. 10] "[t]he language of former AS 12.63.010(a) ma[d]e it
clear that '[all] sex offender[s] who [are] physically present in
the state shall register . . . .'" [Fn. 11] From this, we concluded
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)." [Fn. 12] Moreover, a majority of this
court concluded "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." [Fn. 13] Hawkins's circumstances are similar to those
of the appellants in Nunley; therefore, the magistrate's narrow
construction of ASORA completely defeats the legislature's intent
to force certain sex offenders to register.
We find the magistrate erred when he decided that the
legislature intended only to prosecute sex offenders for failing to
register by July 1, 1994. Accordingly, we conclude that because the
state charged Hawkins with failure to register on or about January
28, 1998, there was no ex post facto violation.
In a related argument, Hawkins asserts that Magistrate
Gater correctly found that the Department exceeded its authority
when it promulgated former 13 AAC 09.010(d), the regulation that
extended the registration deadline for certain sex offenders until
January 31, 1996. We conclude, however, that the Department's
regulation was within the scope of the Department's authority. This
regulation ensures that the legislature's intent to regulate sex
offenders, and to prosecute those who fail to register, would be
implemented. By extending the initial registration deadline for
certain sex offenders, the Department's regulation is consistent
with the purposes and policies of ASORA. [Fn. 14]
Hawkins's cross-appeal
Hawkins, in his cross-appeal, contends that Magistrate
Gater erred when he found that Hawkins had a duty under ASORA to
register. [Fn. 15] Hawkins's contention is the same as the one
rejected by this court in Nunley. Like the defendants in Nunley,
Hawkins claims that he had no duty to register because former AS
12.63.010 did not by its explicit terms in subsections (1), (2), and
(3) include him. As set out above, however, in Nunley we not only
decided that the defendants had a duty to register under ASORA, but
a majority of the court held that the defendants could be criminally
prosecuted for failure to register. Because Hawkins's circumstances
are similar to those of the defendants in Nunley that is, Hawkins
and those defendants were unconditionally discharged after July
1984, but prior to August 10, 1994 our decision in Nunley disposes
of Hawkins's contention that he had no duty to register.
Additionally, the majority decision in Nunley disposes of Hawkins's
implicit argument that he could not be prosecuted for failure to
register.
Conclusion
The decision of the district court is REVERSED in part and
AFFIRMED in part. We REVERSE the decision dismissing the charge and
return this case to the trial court for further action on the
complaint. We also REVERSE the decision that the Department exceeded
its authority when it promulgated former 13 AAC 09.010(d). We AFFIRM
the district court's decision that, under ASORA, Hawkins had a duty
to register as a sex offender.
MANNHEIMER, Judge, dissenting.
I agree with my colleagues that the State's prosecution
of Hawkins presents no ex post facto problem. Nevertheless,
Hawkins could not lawfully be prosecuted under former AS 11.56.840
for failing to register as a sex offender.
AS 11.56.840(a)(1) declares that a person commits the
crime of failing to register as a sex offender if the person
"knowingly fails to ... register ... as required in AS 12.63.010".
AS 12.63.010(a) contains three different registration deadlines for
various categories of sex offenders, but none of these three
deadlines applies to defendants like Hawkins who were
unconditionally discharged from their convictions before the
enactment of the Sex Offender Registration Act. The registration
deadline for this category of sex offenders is found in an
uncodified session law, SLA 1994, ch. 41, sec. 12(a) as later
modified by former 13 AAC 09.010(d), and then by SLA 1998, ch. 106,
sec. 25(a). [Fn. 1]
The legislature has never enacted a criminal penalty to
enforce this deadline. That is, even though AS 11.56.840 penalizes
a sex offender's failure to meet the registration deadlines
specified in AS 12.63.010(a), no criminal statute penalizes a sex
offender's failure to meet the registration deadline established in
SLA 1994, ch. 41, sec. 12(a). Because the legislature has failed
to provide a criminal penalty for failing to meet the registration
deadline that applies to Hawkins, Hawkins could not be convicted of
failing to register. See my dissent in Nunley v. State, 26 P.3d
1113, 1115-17 (Alaska App. 2001).
FOOTNOTES
Footnote 1:
See former AS 11.56.840 (1998).
Footnote 2:
U.S. Const., art. 1, sec. 10.
Footnote 3:
Magistrate Gater noted that Hawkins did not challenge ASORA
under the Alaska Constitution's ex post facto clause.
Footnote 4:
985 P.2d 1007 (Alaska App. 1999).
Footnote 5:
986 P.2d 890 (Alaska App. 1999).
Footnote 6:
See former AS 12.63 (1998); ch. 41, sec.12(a), SLA 1994.
Footnote 7:
See Nunley v. State, 26 P.3d 1113, 1114 (Alaska App. 2001)
(citing ch. 41, sec. 12, SLA 1999).
Footnote 8:
See former AS 12.63.010(a)(1), (2), and (3) (1998).
Footnote 9:
See former 13 AAC 09.010(d) (1996).
Footnote 10:
26 P.3d 1113 (Alaska App. 2001).
Footnote 11:
Id. at 1114 (quoting former AS 12.63.010(a)) (brackets in
Nunley); see also Patterson, 985 P.2d at 1011 (observing that the
legislature, finding that sex offenders pose a high risk of re-
offending after release from custody, enacted sex offender
registration to promote public safety); Otness, 986 P.2d at 894
(Mannheimer, J., concurring) ("the purpose of the sexual offender
registration act is to protect the public by alerting them to the
presence of persons who have been convicted of sex offenses").
Footnote 12:
Nunley, 26 P.3d at 1115.
Footnote 13:
Id.
Footnote 14:
Cf. Otness, 986 P.2d at 892 ("The Department's conclusion that
persons whose conviction had been set aside should have the duty to
register is a reasonable construction consistent with the purposes
and policies of ASORA.").
Footnote 15:
Hawkins initially raised four points of error in his notice of
cross-appeal. However, on appeal he only argues one of these that
ASORA did not apply to him because he did not fall under any of the
provisions listed in former AS 12.63.010(a)(1), (2), and (3).
Accordingly, we will not address his other claims.
FOOTNOTES (Dissent)
Footnote 1:
Currently, SLA 1998, ch. 106, sec. 25(a) specifies the
registration deadline for this category of offenders. It states:
APPLICABILITY. (a) A sex offender or child kidnapper
with, before the effective date of this Act, (1) one conviction for
an aggravated sex offense, (2) two or more convictions for a sex
offense or child kidnapping, or (3) one conviction for a child
kidnapping and one conviction for a sex offense, regardless of
whether the offender or kidnapper has been unconditionally
discharged from that conviction or convictions, 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 [i.e., by March 2,
1999]. A sex offender or child kidnapper with only one conviction
for a sex offense that is not an aggravated sex offense or only one
conviction for a child kidnapping, and who was unconditionally
discharged from that offense before July 1, 1984, does not have to
register under this Act. A sex offender or child kidnapper with
only one conviction for a sex offense that is not an aggravated sex
offense or only one conviction for a child kidnapping 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.
