Allaire v. State

SHAWN M. ALLAIRE, Plaintiff v. STATE OF MAINE And ANNE H. JORDAN Commissioner, Maine Department of Public Safety, Defendants

Civil Action No. CV-05-259

Superior Court of Maine, Kennebec

September 29, 2010

DECISION AND ORDER

MICHAELA MURPHY, SUPERIOR COURT JUSTICE

This case is before the court on cross-motions for summary judgment. This order takes up the issues upon which the court had reserved ruling pending the outcome of State v Letalien, 2009 ME 130, 985 A.2d 4, and the resulting legislative amendments to the Sex Offender Registration and Notification Act ("SORNA"), 34-A M.R.S §§ 11201-256 (2009) amended by P.L. 2010 ch. 570 (emergency, effective March 30, 2010).

I. Facts

The parties have stipulated to the following facts. At all times relevant to this matter, the plaintiff was a Maine resident. (Stip.S.M.F. ¶ 1.) On June 26, 1999, the plaintiff was working at the Sunglass Hut in a mall in Newington, New Hampshire, when a young female, B.P., stopped by to visit him. (Stip.S.M.F. ¶ 5.) In the dressing room of a store in the mall, the plaintiff and B.P. engaged in "heavy petting, " during which the plaintiff digitally penetrated B.P.'s vagina. (Stip.S.M.F. ¶¶ 7, 8.) The plaintiff did not know B.P.'s age at the time. (Stip.S.M.F. ¶ 11.) He learned that B.P. was fourteen years old approximately one week after their dressing room encounter, when he received a telephone call from a detective with the Newington police department. (Stip.S.M.F. ¶ 13.)

On September 8, 1999, the plaintiff was indicted by a New Hampshire grand jury for felonious sexual assault. (Stip.S.M.F. ¶¶ 14, 16.) The indictment alleged in pertinent part that the plaintiff''knowingly . . . engaged in sexual penetration with B.P., (d.o.b. 12/26/84) . . . who was at the time 13 years of age or older and under 16 years of age . . . specifically, by causing an intrusion of his finger into the genital opening of B.P.'s body . . . ." (Stip.S.M.F. ¶ 17.) On October 7, 1999, represented by counsel, the plaintiff waived formal arraignment and entered a plea of "not guilty." (Stip.S.M.F. K 19.) On August 11, 2000, on the advice of his attorney, the plaintiff entered an open plea of guilty to felonious sexual assault in the Rockingham County Superior Court. (Stip.S.M.F. ¶ 26-28.) As a result of his guilty plea, the plaintiff was sentenced to twelve months in the Rockingham County House of Corrections and two years' probation. (Stip.S.M.F. ¶29.) The plaintiff testified that his criminal defense attorney never told him that he would be required to register as a lifetime registrant under New Hampshire's sex offender notification act. (Stip.S.M.F. ¶ 31.)

The plaintiff first learned that he was required to register as a lifetime registrant under New Hampshire's sex offender notification act the day he was released from the Rockingham County House of Corrections. (Stip.S.M.F. ¶32.) He then returned to Maine, where the State of Maine notified him that he was required to register as a lifetime registrant under Maine's SORNA because his New Hampshire conviction for felonious sexual assault made him a lifetime registrant under New Hampshire law. (Stip.S.M.F. ¶¶ 33, 34, 36.) The plaintiff then completed and mailed a "Notice of Duty to Register" which identified him as a "Lifetime Registrant" under SORNA of 1999, although he had previously registered in Maine as a ten-year registrant. (Stip.S.M.F. ¶¶ 39, 40.) A State of New Hampshire "Offender Registration Information" form dated January 25, 2001, states that the plaintiff must register annually for life, and identifies his qualifying offense as "Aggravated Felonious Sexual Assault, " as well as the "Felonious Sexual Assault" of which the plaintiff testified he was convicted. (Stip.S.M.F. ¶¶ 41-43.) The plaintiff alleges that the registration requirement negatively affects his employability (Stip.S.M.F. ¶¶ 45, 47) and that he is frightened by the killing of two people listed on Maine's Sex Offender Registry Website (Stip.S.M.F. ¶48).

II. Analysis

A. Arguments and Statutory Scheme

The plaintiffs motion for summary judgment asserts that the State of Maine lacks the power to require the plaintiff to register pursuant to SORNA for the following reasons: (1) application of SORNA to the plaintiff runs afoul of the prohibition on ex post facto laws, see U.S. Const, art. I. § 10, cl. 1 and Me. Const, art. I, § 11; (2) application of SORNA to the plaintiff violates the prohibition against cruel and unusual punishment, see U.S. Const, amend. VIII and Me. Const, art. I, § 9; (3) application of SORNA to the plaintiff violates the prohibition against double jeopardy; see U.S. Const, amend. V and Me. Const, art. I, § 8; and (4) application of SORNA to the plaintiff violates the plaintiffs due process rights under the Maine and United States constitutions. In response to Letalien and the subsequent statutory amendments, the plaintiff argues that SORNA remains a violation of ex post facto constitutional provisions, and also offers two cases from other jurisdictions in support of his argument that he need not register in Maine because his offense, committed in New Hampshire, is not "substantially similar" to a registry-eligible offense in Maine. The defendants object to the plaintiffs motion and cross-move for summary judgment in their favor.^[1]

The specific provision of the statute to which the plaintiff objects is encoded at 34-A M.R.S. § 11202(2)(a) (2009), which explains that SORNA applies to "A person sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult . . . [a]t any time of an offense that requires registration in the jurisdiction of conviction pursuant to that jurisdiction's sex offender registration laws or that would have required registration had the person remained there . . . ." Under New Hampshire law, a conviction for Felonious Sexual Assault (N.H. R.S.A. 632-A:3 (Supp. 2009)) would render the plaintiff a "Tier II offender" (N.H. R.S.A. 651-B:1, IX (Supp. 2009)); a conviction for Aggravated Felonious Sexual Assault (N.H. R.S.A. 632-A:2 (Supp. 2009)) would render him a "Tier III offender." N.H. R.S.A. 651-B:1, X (Supp. 2009). "All tier II or tier III offenders shall be registered for life." N.H. R.S.A. 651-B:6, 1 (Supp. 2009). Accordingly, the plaintiff is subject to lifetime registration in New Hampshire. He contends that Maine's statute imposing the same registration status in Maine based upon his New Hampshire registration status is unconstitutional.

Maine is one of sixteen U.S. jurisdictions to adopt an external approach to registration of foreign convictions for sex offenses. Wayne A. Logan, Horizontal Federalism in an Age of Criminal Justice Interconnectedness, 154 U. Pa. L. Rev. 257, 287 (2005). "[E]xternal approach states require registration if the foreign jurisdiction where the conviction occurred required registration, regardless of whether it would warrant registration in the forum." Id.; see Comm. Amend. A to L.D. 1433, No. H-997 (122nd Legis. 2005) (describing amendment as changing "the application section to honor other jurisdictions' determinations with respect to the obligation of offenders to register"). This statutory structure, granting comity to foreign jurisdictions' judgments, has been consistently upheld. See, e.g., Flowers v. Arkansas, 213 S.W.3d 648, 651 (Ark. App. 2005) ("Arkansas law plainly provides that one who is convicted of a crime in another state and is required to register in that state as a sex offender is also required to register in Arkansas. . . . [I]t is simply immaterial whether Arkansas would punish" the underlying offense in the same way as the foreign jurisdiction that convicted the registrant); New York v. Arotin, 796 N.Y.S.2d 743, 745 (N.Y.App.Div. 2005) ("The administrative manner in which a state chooses to exercise the registration requirements for a sex offender who moves into its jurisdiction falls squarely within the power of that state and is not governed by the procedures in effect in the state where the offender previously resided."). For this reason, the cases that the plaintiff cites, State v. Howe, 212 P.3d 565 (Wash. App. Div. 2 2009) and Ex Parte Harbin, 297 S.W.3d. 283 (Tex. Crim. App. 2009) are inapplicable: Washington and Texas have adopted an "internal" approach, "requiring that newly arrived ex-offenders register in the forum only if the foreign predicate comes within the ambit of registerable offenses specified by the forum." Wayne A. Logan, Horizontal Federalism in an Age of Criminal Justice Interconnectedness, 154 U. Pa. L. Rev. 257, 284 (2005). The fact that the legislatures of Washington and Texas have limited their states' registration requirements in this way does not affect this court's analysis of the constitutionality of the Maine legislature's "external approach."

For the purposes of this analysis only, the court accepts the parties' representation that the incident underlying the plaintiffs conviction for Felonious Sexual Assault does not represent a crime in Maine. The plaintiffs motion therefore requires the court to determine whether Maine's policy of giving comity to a sister state's sexual offender registration requirements is constitutionally impermissible as an ex post facto law, as cruel and unusual punishment, as double jeopardy, or as violating the plaintiffs due process rights, bearing in mind that "[a] statute is presumed to be constitutional and the person challenging the constitutionality has the burden of establishing its infirmity." State v. Cosgro, 2008 ME 64, ¶ 2, 945 A.2d 1221, 1222 (quoting State v. Haskell, 2001 ME 154, ¶ 3, 784 A.2d 4, 7).

B. Ex Post Facto Law

The United States Constitution provides that "[n]o State shall . . . pass any ... ex post facto Law." U.S. Const art. I, § 10, cl. 1...