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Herreid v. State (5/9/2003) ap-1873
Herreid v. State (5/9/2003) ap-1873
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
WALT HERREID, )
) Court of Appeals No.
A-8341
Appellant, )
Trial Court No. 4FA-01-826 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1873 May 9, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ralph R. Beistline,
Judge.
Appearances: Nelson Traverso, Law Offices of
Nelson Traverso, Fairbanks, for Appellant.
Corinne M. Vorenkamp, Assistant District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Walt Herreid was indicted for first-degree and second-
degree sexual assault. He ultimately reached a plea bargain with
the State; under the terms of this bargain, Herreid pleaded no
contest to a single misdemeanor count attempted third-degree
sexual assault.1
Even though Herreid was convicted of a misdemeanor,
this misdemeanor is nevertheless classified as a sex offense for
purposes of the Sex Offender Registration Act.2 Accordingly,
Herreid is required to register and to report annually for a
period of 15 years.3
In this appeal, Herreid contends that the Sex Offender
Registration Act is unconstitutional because it amounts to an
improper infringement by the legislative branch of government
into sentencing matters that are entrusted to the judicial
branch.
Herreid contends that the reporting requirement imposed
by the Act is a punishment for his crime and that, because the
reporting requirement is a punishment, it can be analogized to a
term of imprisonment. Herreid points out that sentencing courts
traditionally have the power to impose an individualized term of
imprisonment on an offender, based on the courts assessment of
the offenders level of dangerousness and the offenders prospects
for rehabilitation. Herreid argues that a sentencing court must
likewise have the power to impose an individualized sex offender
reporting requirement the power to reduce the statutory 15-year
reporting period if the court concludes that an individual
offenders level of dangerousness and prospects for rehabilitation
do not warrant such a lengthy reporting period. Based on this
reasoning, Herreid concludes that when the legislature enacted a
statute imposing a uniform 15-year reporting requirement on all
sex offenders, the legislature overstepped its constitutional
powers and impermissibly infringed on the prerogatives of the
judicial branch.
Herreids arguments are substantially undermined by two
recent decisions of the United States Supreme Court. In Smith v.
Doe, __ U.S. __, 123 S.Ct. 1140, 1154 (2003), the Supreme Court
held that Alaskas Sex Offender Registration Act did not impose a
criminal punishment; rather, the Act is a civil regulatory
measure. (This Court earlier reached the same conclusion in
Patterson v. State, 985 P.2d 1007, 1011-13 (Alaska App. 1999).)
Because the Sex Offender Registration Act is a
regulatory measure, the registration and reporting requirements
imposed by the Act are not part of a defendants sentence.
Peterson v. State, 988 P.2d 109, 115 (Alaska App. 1999). A
sentencing court has no power to exempt a defendant from the
requirements of the Act nor, for that matter, does a sentencing
court have the power to impose sex offender registration and
reporting on a defendant whose crime does not qualify as a sex
offense under AS 12.63.100(1) or (6). See Whitehead v. State,
985 P.2d 1019, 1021 (Alaska App. 1999).
Moreover, in Connecticut Dept. of Public Safety v. Doe,
__ U.S. __, 123 S.Ct. 1160, 1162-63, 1164-65 (2003), the United
States Supreme Court implicitly rejected Herreids argument that
the length of the reporting requirement must be modifiable,
depending on the individual offenders level of dangerousness.
The Supreme Court held that persons who are subject to
registration and reporting requirements based on their prior
conviction for a sex offense have no due process right to a pre-
registration opportunity to prove that they are not a danger to
the public.
The Court pointed out that Connecticuts registration
requirement was based on the fact of previous conviction, not the
fact of current dangerousness.4 For this reason, the Court
concluded that Connecticut had no due process obligation to give
sex offenders a chance to prove their lack of dangerousness:
[T]he fact that [the] respondent seeks
to prove that he is not currently dangerous
is of no consequence under Connecticuts
Megans Law. ... [T]he laws requirements
turn on an offenders conviction alone a fact
that a convicted offender has already had a
procedurally safeguarded opportunity to
contest. ... No other fact is relevant to
the disclosure of registrants information.
. . .
Plaintiffs who assert a right to a
hearing under the Due Process Clause must
show that the facts they seek to establish in
that hearing are relevant under the statutory
scheme. Respondent cannot make that showing
here.
Id., __ U.S. at __, 123 S.Ct. at 1164, 1165.
Based on these two recent decisions
of the United States Supreme Court, and based
on our own prior decisions in Patterson,
Peterson, and Whitehead, we reject Herreids
constitutional challenge to the Sex Offender
Registration Act. The legislatures decision
to require sex offenders to register and to
report on a regular basis for a specified
period of time does not violate the
separation of powers between the legislative
and judicial branches of government.
The judgement of the superior court
is AFFIRMED.
_______________________________
1 AS 11.41.425(a).
2 See AS 12.63.100(6)(C)(i).
3 See AS 12.63.010(b) (duty to register); AS 12.63.010(d)(1)
(duty to annually report); AS 12.63.020(a)(2) (requiring an
offender convicted of a single, non-aggravated sex offense to
report for 15 years).
4 Connecticut Dept. of Public Safety v. Doe, __ U.S. at __,
123 S.Ct. at 1163.
