Doe v. Belmar

564 S.W.3d 415

John DOE, Appellant,

v.Colonel Jon BELMAR and Missouri State Highway Patrol, Respondents.

No. ED 106264

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: December 26, 2018

ATTORNEYS FOR APPELLANT: Matthew A. Radefield, 7710 Carondelet Avenue, Suite 350, Clayton., MO 63105.

ATTORNEYS FOR RESPONDENT: Lorena V. Von Kaenel, 41 S. Central Avenue, 9^th Floor, Clayton, MO 63105, Gregory M. Goodwin, P. O. Box 899, Jefferson City, MO 65102.

ROBERT G. DOWD, JR., Judge

John Doe ("Petitioner") appeals from the judgment of the trial court denying his petition for declaratory judgment against Colonel John Belmar, St. Louis County Chief of Police, and Colonel Ronald Replogle, Superintendent of the Missouri State Highway Patrol (collectively, "Respondents") seeking Petitioner’s removal from the sex offender registry and destruction of records referencing him contained in the sex offender registry. We affirm.

Petitioner was charged in 1997 with misdemeanor second-degree sexual abuse for subjecting the victim, who was twelve or thirteen, to sexual contact. Petitioner eventually pled guilty to an amended charge of attempted endangering the welfare of a child in the first degree. Specifically, the charging information indicated that Petitioner "attempted to act in a manner that created a substantial risk to the body and health of [the victim], a child less than 17 years old, by having her disrobe in front of him, and such conduct was a substantial step toward the commission of the crime of endangering the welfare of a child and was done for the purpose of preventing [sic]¹ the commission of the crime of endangering the welfare of a child in the first-degree." The plea court suspended imposition of the sentence and placed Petitioner on probation for two years. He was not required to register as a sex offender. Then, in December 2014, Petitioner was informed by the St. Louis County Police Department that he was required to register. He complied and filed his petition for declaratory judgment.

After a bench trial during which the trial court heard testimony from both Petitioner and the victim, the trial court found that Petitioner was not entitled to removal from the sex offender registry. The trial court concluded that it was required to employ a non-categorical approach and that thereunder, Petitioner must register given the nature of his offense. This appeal follows.

For his sole point on appeal, Petitioner claims that the trial court erred in applying a non-categorical, also known as circumstance-specific approach, rather than a categorical approach when determining whether or not Petitioner had an obligation to register as a sex offender. He argues that the non-categorical approach improperly looks beyond the statutory definitions of offenses, is at odds with the language of the federal Sex Offender Registration and Notification Act ("SORNA"), is disruptive to plea bargaining and violates Petitioner’s rights under the Fifth and Sixth Amendments to the U.S. Constitution. Petitioner contends the use of the word "convicted" in the relevant section of SORNA rather than a phrase such as "has committed," the importance of honoring the plea bargain process and Fifth Amendment and Sixth Amendment concerns mandate a categorical approach.² None of these considerations as presented by Petitioner in this case convince us to abandon the clear precedent established by this Court and the Western District requiring the use of the non-categorical approach. See Doe v. Isom , 429 S.W.3d 436 (Mo. App. E.D. 2014) ; Wilkerson v. State , 533 S.W.3d 755 (Mo. App. W.D. 2017). Finding no error in the trial court’s use of the non-categorical approach, we affirm.

We will uphold the judgment of the trial court "unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Isom , 429 S.W.3d at 439 (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ). Issues of statutory construction are questions of law which we review de novo, giving no deference to the trial court’s conclusions. Id.

Sex offenders may be required to register in Missouri under SORNA or under Missouri law, the Sex Offender Registration Act ("SORA"). 34 U.S.C. §§ 20901 et. seq and RSMo. §§ 589.400 et. seq. According to the Missouri Supreme Court, "SORNA imposes an independent, federally mandated registration requirement," and the SORA registration requirements apply, among others, "to any person who ‘has been’ required to register as a sex offender pursuant to federal law." Doe v. Toelke , 389 S.W.3d 165, 167 (Mo. banc 2012) ; see Section 589.400.1(7). Because of this interplay between federal and state law, if Petitioner has been required to register under SORNA, he has a separate duty to register under SORA. See Toelke , 389 S.W.3d at 167.

SORNA requires a "sex offender" to "register, and keep the registration current, in each jurisdiction where the offender resides." 34 U.S.C. § 20913(a) ; Wilkerson , 533 S.W.3d at 758. A "sex offender" is defined as "an individual who was convicted of a sex offense."³

34 U.S.C. § 20911(1) ; Wilkerson , 533 S.W.3d at 758. A "sex offense" under SORNA, and as applied here, includes "a criminal offense that is a specified offense against a minor." 34 U.S.C. § 20911(5)(A)(ii) ; Wilkerson , 533 S.W.3d at 758. SORNA’s definition of a "specified offense against a minor" includes a catchall provision: "[a]ny conduct that by its nature is a sex offense against a minor." 34 U.S.C. § 20911(7)(I) ; Wilkerson , 533 S.W.3d at 758.

Similar to the present case, in Doe v. Isom , this Court reviewed the trial court’s decision on a petition for declaratory judgment seeking to remove the petitioner’s name from state and federal sex offender registries after the petitioner pled guilty to endangering the welfare of a child. Isom , 429 S.W.3d at 437. We noted that while this particular crime "is not in and of itself a sexual offense" in that it can include "non-sex" acts, it "can relate to sexual offenses." Id. at 441 (emphasis in original). The petitioner in Isom asserted that he was not required to register as a sex offender because he was not charged with nor pled guilty to committing a "sex offense" in that no element of the offense required conduct involving a sexual act. Id. at 442. We were faced with the question of whether a "sex offense" for purposes of registration under SORNA required a court to look solely to the statutory definition and elements of the underlying offense—a categorical approach—or to the underlying conduct and facts of the offense—a non-categorical or circumstance-specific approach. Id.

We ultimately elected to follow the non-categorical approach. Id. at 443. We looked beyond the guilty plea to the underlying facts of the offense to determine whether the petitioner’s offense qualified as a "sex offense." Id. Citing to federal court decisions, we noted that a "specified offense against a minor" under 42 U.S.C. § 16911(7), now recodified at 34 U.S.C. § 20911(7), contained no reference to "elements" of crime or "convictions" but to "offenses." Id. at 442 (citing U.S. v. Dodge , 597 F.3d 1347 (11th Cir. 2010) (en banc) ). We noted that the catchall provision, "[a]ny conduct that by its nature is a sex offense against a minor," "could not be any broader." Id. (quoting Dodge , 597 F.3d at 1354-56 ). This indicated "that Congress intended for courts to examine an offender’s underlying conduct." Id. (citing Dodge , 597 F.3d at 1354-56 ). When we considered the petitioner’s conduct and the facts leading to his guilty plea in Isom , which were sexual in nature, we concluded that he had been convicted of a criminal offense specified against a minor. Id. at 443. Therefore, the non-categorical approach led to the classification of the petitioner’s offense as a "sex offense" under SORNA, requiring him to register under SORNA. Id. at 443. Because the petitioner was required to register under SORNA, we found he was required to register as a sex offender under SORA. Id.

The Western District followed a similar approach in Wilkerson v. State , in which the petitioner sought to be removed from the sex-offender registry after pleading guilty to sexual misconduct involving a child. 533 S.W.3d at 756. In determining whether the petitioner had been separately required to register under SORNA, the Western District considered whether the petitioner had pled guilty to a "specified offense against a minor." Id. at 759. In doing so, the Western District looked not only to the statute under which the petitioner was convicted but also to the underlying facts of her offense which were sexual in nature and ultimately concluded that "she was convicted of an offense which ‘by its nature is a sex offense against a minor.’ " Id. (quoting

34 U.S.C. § 20911(7)(I) ).⁴

Based upon this precedent in which both this Court and the Western District have explicitly held that the trial court should apply the non-categorical approach when determining whether petitioners have ever been required to register under SORNA, thereby creating a separate duty to register under SORA, we find no error in the trial court’s use of such an approach here. Petitioner tries to avoid this conclusion by including additional arguments for use of the categorical approach not explicitly addressed in Isom and Wilkerson and also not explicitly addressed by the trial court.

In particular, Petitioner argues that the categorical approach follows the text of SORNA in that the use of the word "convicted" in § 20911(1) rather than a phrase such as "has committed" implies that Congress was focused on an individual’s convictions irrespective of the underlying facts. Petitioner argues that because SORNA defines a "sex offender" as an individual who was convicted of a sex offense, Congress intended for a reviewing court to look at the fact that an individual was convicted of a sex offense, not the facts underlying the...