Starkey v. Okla. Dep't of Corr.

• Decision Date: 25 June 2013
• Docket Number: No. 109,556.,109,556.
• Citation: 305 P.3d 1004
• Parties: James M. STARKEY, Sr., Plaintiff/Appellee, v. The OKLAHOMA DEPARTMENT OF CORRECTIONS and Justin Jones as Director, Defendants/Appellants.
• Court: Oklahoma Supreme Court

305 P.3d 1004

James M. STARKEY, Sr., Plaintiff/Appellee,

v.The OKLAHOMA DEPARTMENT OF CORRECTIONS and Justin Jones as Director, Defendants/Appellants.

No. 109,556.

Supreme Court of Oklahoma.

June 25, 2013.

ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY; HONORABLE BILL GRAVES, DISTRICT JUDGE

¶ 0 James M. Starkey, Sr., is a registered sex offender whose registration period was retroactively increased by the Oklahoma Department of Corrections. He petitioned the trial court for a reduction of his level assignment. Starkey later filed a motion for summary judgment alleging he should never have been required to register under the Oklahoma Sex Offenders Registration Act. The trial court found the Act was not meant to be applied retroactively and granted summary judgment in favor of Starkey. The Oklahoma Department of Corrections and Justin Jones, as director, appealed.

AFFIRMED AS MODIFIED

John M. Dunn, Tulsa, Oklahoma, for Plaintiff/Appellee.

Cornelius Leader, and John David Hadden, Asst. Attys. Gen., Oklahoma City, Oklahoma, for Defendants/Appellants.

COMBS, J.

¶ 1 This matter was assigned to this office on February 6, 2013. According to the Record, Plaintiff/Appellee James M. Starkey, Sr., (hereinafter, “Starkey”) pled nolo contendere and received a deferred adjudication on October 12, 1998, to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas. The act occurred on January 15, 1997, and the age of the victim(s) was 15 years old.¹ Under Texas law the act amounted to a second degree felony.² The Oklahoma Department of Correctionsand Justin Jones as Director (hereinafter, “Department”) point out in Defendants Oklahoma Department of Corrections And Justin Jones Combined Response To Plaintiff's Motion For Summary Judgment And Motion For Summary Judgment (hereinafter, “response and motion for summary judgment”) the equivalent crime of sexual assault under Oklahoma law is found in § 1123 of Title 21 of the Oklahoma Statutes; Lewd or Indecent Proposals or Acts to child Under 16. The deferred adjudication provided as follows:

ADJUDICATION DEFERRED PLACED ON COMMUNITY SUPERVISION FOR TEN (10) YEARS, $4,000.00 FINE, COURT COSTS, 320 CSR HOURS, 60 DAYS IN THE CALHOUN CO JAIL, RESTITUTION, DEFENDANT WAIVES HIS RIGHT TO APPEAL, SEX OFFENDER RULES.

In paragraph (27) of the document entitled “Additional Conditions of Community Supervision” he was required to register under Article 6252–13c.1 of the Texas Sex Offender Registration Program.³

¶ 2 The May 10, 2011, trial court Order found Starkey has resided in Oklahoma since 1998. The record, however, is vague on exactly when Starkey entered Oklahoma after his Texas deferred adjudication and therefore does not show the exact date upon which he was first subject to the Sex Offender Registration Act (hereafter, “SORA”), 57 O.S. § 581 et seq. Two versions of § 582 of SORA were in effect during 1998. The 1997 version was in effect prior to November 1, 1998, and the 1998 version was in effect on November 1, 1998. ⁴ Both, however, provided as follows:

The provisions of the Sex Offenders Registration Act, Sections 581 et seq. of this title, shall apply to any person who ... enters this state on or after September 1, 1993, and who has received a deferred judgment for a crime or attempted crime which, if committed or attempted in this state, would be a crime or an attempt to commit a crime provided for in Section ... [list of crimes omitted] 1123 of Title 21 of the Oklahoma Statutes.

Title 57 O.S. Supp.1997 and 1998, § 582.

¶ 3 SORA also required a person convicted in another jurisdiction to register with the Department of Corrections and local law enforcement. Section 583 provided as follows:

B. Any person who has been convicted of an offense on or after November 1, 1989, in another jurisdiction, which offense if committed or attempted in this state, would have been punishable as one or more of the offenses listed in Section 582 of this title and who enters and remains in this state shall register as follows:

Title 57 O.S. Supp.1997, § 583 (in effect throughout 1998).

The trial court found at the time Starkey received his “deferred sentence” he was only required to register in Oklahoma for 10 years. The Department's response to the motion for summary judgment, however, asserted Starkey was initially required to register for 10 years following completion of his ten-year probation, thus requiring a total of 20 years registration.

¶ 4 Effective November 1, 2007, SORA was amended to require the Department of Corrections or a court to assign a numeric risk level to a person “who will be subject to the provisions of the Sex Offenders Registration Act.” Title 57 O.S. Supp.2007, §§ 582.1–582.2. The Department created a “risk assessment review committee” to develop or select a sex offender screening tool and to monitor its use.⁵ The required screening tool was to use an objective point system under which an offender would be assigned a designated number of points for various factors with the offense being the basis for the minimum numeric risk level. The risk levels were as follows:

1. Level one (low): a designated range of points on the sex offender screening tool indicating that the person poses a low danger to the community and will not likely engage in criminal sexual conduct;

2. Level two (moderate): a designated range of points on the sex offender screening tool indicating that the person poses a moderate danger to the community and may continue to engage in criminal sexual conduct; and

3. Level three (high): a designated range of points on the sex offender screening tool indicating that the person poses a serious danger to the community and will continue to engage in criminal sexual conduct.

Title 57 O.S. Supp.2007, § 582.5.

¶ 5 The Legislature passed an emergency measure 6 months later to require a risk assessment be made for offenders who enter the state.⁶Section 583 was also amended to set the registration period for the 3 levels. It provided “a person [who] has been convicted or received probation within the State of Oklahoma ... shall be required to register” for 15 years if the person is a level 1 offender, 25 years for a level 2 offender, and for life if a person is a level 3 offender or classified as a habitual or aggravated sex offender.⁷

¶ 6 Section 582.5(D) of SORA further allowed the Department of Corrections, the risk assessment review committee or a court to override a risk level if the risk level assessed was not an accurate prediction of the risk the offender poses on the community.⁸

¶ 7 Many of these provisions were again amended effective November 1, 2009. ⁹ The committee at this time was renamed the “sex offender level assignment committee” and given the duty to determine, based on federal law, the level assignment of offenders subject to registration. The screening tool was replaced with guidelines which are based on the 3 levels listed above without any designated range of points. The offense was amended to serve as the sole basis for the level assigned to the offender. The amendments further provide, the committee, the Department of Corrections or a court may only increase the level assignment and not decrease it.¹⁰ This last amendment, with few exceptions, effectively extinguished any chance to have a level assignment reduced from that, as in Starkey's case, determined exclusively by the sex offender level assignment committee.

¶ 8 Starkey's ten-year registration period was set to expire in 2008. Just prior to this period ending, the Department assigned Starkey a level 3 life-time registration classification with no opportunity for a hearing. Starkey filed his Petition in August 2009 pursuant to 57 O.S. Supp.2008, § 582.5(D) of SORA to have a court override his level assignment. Starkey's filing occurred just months before the effective date of the 2009 amendment extinguishing his right to have his level assignment reduced. Starkey requested the court reduce his level assignment to level 1, find he had been registered for the required period of time and order him discharged from any further obligations.

¶ 9 Starkey filed his Plaintiff's Motion For Summary Judgment on December 10, 2010, and Plaintiff's Supplemental Brief on February 25, 2011. He asserted he should be granted summary judgment because at the time he was sentenced he was not even required to register under Oklahoma law. Starkey asserts § 583 only required a person “convicted” of an offense in another jurisdiction to register. He argues because he received a deferred adjudication he did not have a conviction.¹¹ In his motion he alleged his procedural due process rights were violated because the level assignment was made without a means to challenge the classification. He requested the court find he was not required to register under SORA and order the Department to remove him from the State Sex Offender List.

¶ 10 Starkey's argument extensively relies upon an unpublished Oklahoma Court of Criminal Appeals opinion, State of Oklahoma v. Timothy Lynn Smith, S–2009–944, filed October 28, 2010. His supplemental brief also cites Reimers v. State ex rel. Dept. of Corrections, 2011 OK CIV APP 83, 257 P.3d 416, a published Oklahoma Court of Civil Appeals opinion, which found State v. Timothy Lynn Smith persuasive.

¶ 11 In State v. Timothy Lynn Smith the trial court held Smith was not required to register under SORA. Smith entered a plea in August 1999 and received a deferred sentence. At that time, SORA only required persons who were convicted or received a suspended sentence to register.¹² Subsequent amendments to SORA required certain individuals receiving a deferred sentence to register.¹³ The trial court found the ex post facto clause would be violated if these amendments were applied retroactively to require Smith to register. On appeal, the Oklahoma Court of Criminal Appeals determined before a law could violate the ex post facto clause it would...