State v. Letalien

985 A.2d 4

2009 ME 130

STATE of Maine v. Eric S. LETALIEN.

Docket: And-08-358.

Supreme Judicial Court of Maine.

Argued: February 10, 2009.

Decided: December 22, 2009.

Janet T. Mills, Attorney General, Norman R. Croteau, District Attorney, Paul Stern, Dep. Atty. Gen. (orally), Laura Yustak Smith, Asst. Atty. Gen., Ronald W. Lupton, Asst. Atty. Gen., Patricia Reynolds Regan, Asst. Dist. Atty., Augusta, ME, for the State of Maine.

David M. Sanders, Esq. (orally), Livermore Falls, ME, for Eric S. Letalien.

Ronald W. Schneider, Jr., Esq., Bernstein, Shur, Sawyer & Nelson, Portland, ME, Zachary L. Heiden, Esq., Maine Civil Liberties Union, Portland, ME, for amicus curiae Maine Civil Liberties Union.

Kelly A. Ayotte, Attorney General, New Hampshire Department of Justice, Concord, NH, for amici curiae States of New Hampshire, Alabama, Florida, Hawaii, Idaho, Illinois, Michigan, Minnesota, New Mexico, and Nevada.

Gregory G. Katsas, Asst. Atty. Gen., Jonathan F. Cohn, Dep. Asst. Atty. Gen., Mark B. Stern, Esq., Samantha L. Chaifetz, Esq., United States Department of Justice, Washington, DC, for amicus curiae United States.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.^*

Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, MEAD, and GORMAN, JJ.

Concurring: SILVER, J.

LEVY, J.

[¶ 1] The State of Maine appeals from a judgment dismissing a criminal complaint charging Eric S. Letalien with failure to comply with the Sex Offender Registration and Notification Act of 1999 (SORNA of 1999) (Class D), 34-A M.R.S. § 11227(1) (2008). The District Court (Lewiston, Stanfill, J.) concluded that the retroactive application of SORNA of 1999, as applied to Letalien, violates the prohibition against ex post facto laws contained in both the United States and Maine Constitutions. The State asserts, among other things, that the trial court erred in conducting its ex post facto analysis of SORNA of 1999 on an as-applied basis and that a proper facial examination of SORNA of 1999 demonstrates that because the statute is civil in intent and effect, it may be applied retroactively without violating ex post facto principles. We agree that the determination of the constitutionality of the retroactive application of SORNA of 1999 depends on a facial examination of the statute, and not on an as-applied analysis as we previously suggested in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552. We conclude that the statute imposes an ex post facto punishment as to offenders sentenced in the years before the effective date of SORNA of 1999 for whom registration was a required part of their sentence and who were subsequently made subject to the more burdensome requirements of SORNA of 1999 after its effective date of September 18, 1999. We therefore affirm the judgment.

I. BACKGROUND

A. District Court's Findings Regarding Letalien's Conviction

[¶ 2] The District Court found that on August 19, 1996, Eric S. Letalien pleaded guilty to gross sexual assault against a thirteen-year-old girl (Class A), 17-A M.R.S.A. § 253(1)(B) (Supp.1993), and on August 30, 1996, was sentenced to four years' incarceration with all but twenty months suspended, and four years' probation.¹ He was nineteen years old at the time of the offense. The District Court received the testimony of a clinical psychologist who performed a sex offender risk assessment on Letalien, and who concluded that Letalien presents the lowest possible risk of reoffending.

[¶ 3] The District Court found that because Letalien was convicted of gross sexual assault against a victim who was under the age of sixteen, he was subject to Maine's sex offender registration requirements. The District Court determined: "Defendant's conviction was in 1996, and thus the version of the sex offender registration statute in effect at the time of his conviction was enacted in 1995, effective in 1996 [the Sex Offender Registration and Notification Act (SORNA of 1995)]. P.L. 1995, ch. 680, § 13 (effective July 4, 1996) (codified at 34-A M.R.S.A. §§ 11101-11144 (Supp.1996))." Section 4 of P.L. 1995, ch. 680, provided that: "As part of a sentence, the court shall order every natural person who is a convicted sex offender ... to satisfy all requirements set forth in the Sex Offender Registration and Notification Act."² (Effective July 4, 1996) (codified at 17-A M.R.S.A. § 1152(2-C) (Supp.1996)) (emphasis added). SORNA of 1995 defined "[s]ex offender" to mean "an individual convicted of gross sexual assault if the victim had not in fact attained 16 years of age at the time of the crime or an individual found not criminally responsible for committing gross sexual assault by reason of mental disease or defect if the victim had not in fact attained 16 years of age at the time of the crime." 34-A M.R.S.A. § 11103(5) (Supp.1996).

B. SORA of 1991, SORNA of 1995, and SORNA of 1999

[¶ 4] SORNA of 1995 was effective July 4, 1996, and its registration requirements applied to offenders sentenced on or after September 1, 1996. 34-A M.R.S.A. § 11102 (Supp.1996). The original sex offender registration law enacted in Maine, the Sex Offender Registration Act (SORA of 1991), applied to offenders sentenced from June 30, 1992, to August 31, 1996. See P.L. 1991, ch. 809, § 1 (codified at 34-A M.R.S.A. §§ 11001-11004 (Supp.1992)). SORA of 1991 did not state specifically that compliance with its requirements was to be made a part of an offender's criminal sentence, but it did provide that a sentencing court could, for good cause shown, waive the registration requirement. 34-A M.R.S.A. § 11003(4)(D) (Supp.1992) ("Registration may be waived only if ... [t]he sentencing court, for good cause shown, waives the registration requirement."). An identical sentencing waiver provision was included in SORNA of 1995.³ See P.L. 1995, ch. 680, § 13 (codified at 34-A M.R.S.A. § 11121(6)(D) (Supp.1996)). SORA of 1991 defined "[s]ex offender" to mean "an individual convicted of gross sexual assault if the victim had not attained the age of 16 years at the time of the crime." 34-A M.R.S. § 11002(2) (Supp. 1992). Unlike SORNA of 1995, SORA of 1991 did not also apply to individuals found not criminally responsible for committing gross sexual assault by reason of mental disease or defect if the victim had not attained sixteen years of age at the time of the crime. Compare 34-A M.R.S.A. § 11022(2) (Supp.1992), with 34-A M.R.S.A. § 11103(5) (Supp.1996).

[¶ 5] The District Court found that, pursuant to SORNA of 1995, Letalien was originally required to register his address with the Department of Public Safety, State Bureau of Identification, within fifteen days after his discharge from custody, and to update his registration if he moved. See 34-A M.R.S.A. § 11121(2), (3) (Supp. 1996). The registration requirement was to be in effect for fifteen years, except that Letalien could seek a waiver from the Superior Court by petitioning no sooner than five years after first having registered. 34-A M.R.S.A. § 11121(2), (6)(C) (Supp. 1996). The registration requirement could be waived upon a finding that the offender "has shown a reasonable likelihood that registration is no longer necessary and waiver of the registration requirement is appropriate." 34-A M.R.S.A. § 11121(6)(C) (Supp.1996). SORNA of 1995 required that upon release or discharge of a sex offender, notice be given to members of the public whom the department or a law enforcement agency determined appropriate "to ensure public safety." 34-A M.R.S.A. § 11143(1), (2) (Supp. 1996).

[¶ 6] Letalien served twenty months incarceration, less good time, without incident. In 1999, after he was released from incarceration but while he was still on probation, the Legislature enacted SORNA of 1999, which applied prospectively to a wider variety of offenses and imposed requirements on registrants that were more demanding than those of the prior versions of the sex offender statutes.⁴ P.L. 1999, ch. 437, § 2 (effective Sept. 18, 1999) (codified at 34-A M.R.S.A. §§ 11201-11252 (Pamph.1999)). SORNA of 1999 recognized two categories of offenders—"sex offender[s]" and "sexually violent predator[s]"—based on the crimes for which offenders were convicted. 34-A M.R.S.A. §§ 11202, 11203(5), (8) (Pamph. 1999). "Sex offender[s]" were required to register for ten years, and "sexually violent predator[s]" were required to register for life. 34-A M.R.S.A. § 11225(1), (2) (Pamph.1999). The public notification requirements were the same as under SORNA of 1995. 34-A M.R.S.A. § 11251 (Pamph.1999); see also 34-A M.R.S.A §§ 11142, 11143 (Supp.1996). Relief from the duty to register was available only in the event of a pardon, or if the offender's conviction was reversed, vacated, or set aside. 34-A M.R.S.A. § 11225(4) (Pamph. 1999). Sentencing judges no longer had the discretion to waive the registration requirement for offenders sentenced on or after September 18, 1999. See 34-A M.R.S.A. § 11225 (Pamph.1999).

[¶ 7] In 2001, Letalien became subject to the more stringent requirements of SORNA of 1999 as a result of a legislative amendment that made the law apply retroactively to all persons sentenced for sex offenses or sexually violent offenses on or after June 30, 1992, and before September 18, 1999. P.L. 2001, ch. 439, § 000-7 (effective Sept. 21, 2001) (codified at 34-A M.R.S.A. § 11202 (Pamph.2001)); see also P.L. 2001, ch. 439, §§ OOO-10 to OOO-12 (codified at 34-A M.R.S.A. §§ 11203(8), 11222(2-A), 11225(1) (Pamph.2001)). SORA of 1991 and SORNA of 1995 were repealed in their entirety. P.L. 2001, ch. 439, § OOO-5 (effective Sept. 21, 2001).

[¶ 8] Because SORNA of 1999, as amended, deemed the crime for which Letalien was convicted in 1996 a "sexually violent offense," in 2001 Letalien was classified as a "sexually violent predator" and the duration of his duty to register increased from fifteen years to his entire lifetime. See 34-A M.R.S.A. §§ 11202, 11203(7)(A), (8)(A), 11225(2) (...