State v. Becker, 0809008237.

• Decision Date: 25 June 2009
• Docket Number: No. 0809008237.,0809008237.
• Citation: 979 A.2d 1149
• Parties: STATE of Delaware, Petitioner, v. David E. BECKER, Respondent.
• Court: Delaware Family Court

979 A.2d 1149

STATE of Delaware, Petitioner, v. David E. BECKER, Respondent.

No. 0809008237.

Family Court of Delaware, Sussex County.

Submitted: June 16, 2009.

Decided: June 25, 2009.

Casey Ewart, Esquire, Deputy Attorney General, Georgetown, DE, for the Petitioner.

William F. Richardson, Esquire, Office of the Public Defender, Georgetown, DE, for David E. Becker.

HENRISKSEN, J.

Pending before the Court is a Motion to Stay and to Relieve from Sex Offender Registration filed by David E. Becker¹ (Defendant) on February 25, 2009. The State opposes the motion. This case is of particular importance because the Defendant pled "No Contest" to felony level offenses—two counts of Unlawful Sexual Contact in the 2nd Degree. Prior to this request, the Court has only ruled on such motions relating to misdemeanor charges.² This is the Court's decision on Defendant's motion.

Facts

On December 18, 2008, Defendant entered a nolo contendere plea to two counts of felony level Unlawful Sexual Contact in the 2nd Degree before this Court. Defendant was 14 years old at the time the offenses occurred. Both victims were under the age of 12. At that time, the Court ordered that the Defendant submit to a Consultant and Assessment Services (CAS) evaluation before sentencing.³ The Court received the CAS evaluation on January 28, 2009. The Defendant appeared before the Court for sentencing on February 13, 2009. During the sentencing hearing, counsel for Defendant made an oral motion to stay sex offender registration and to relieve Defendant from sex offender registration. The Court instructed counsel for Defendant to file a written motion with the Court. The Court sentenced Defendant to Level V for an indefinite period of time, suspended for Level III probation and ordered that he be placed at Murphey School.⁴ The Court received Defendant's motion on February 15, 2009 and received the State's Response to Motion to Stay and Relief from Sex Offender Registration on March 13, 2009.

The Court held a subsequent hearing on June 16, 2009. The hearing was requested by the Deputy Attorney General. Attending the hearing were Deputy Attorney General, Casey Ewart, Esquire; the defendant's attorney, William R. Richardson, Esquire; Carrie Steward, the DFS representative who has been working with the defendant for the past two and one-half years from when the child first went into foster care; Mr. James Nye, the program manager at the Murphey School, where the defendant has resided since mid-February, 2009; Russ Witter, a licensed social worker with at least 20 years experience and who for five years worked with the Children's Department attending several seminars and obtaining a considerable amount of education on sex offender related offenses; and Dr. Teresa Dunbar, a psychologist employed by the State of Delaware who frequently performs Consultant and Assessment Services (CAS) evaluations of defendants to assist the Court in appropriate sentencing.

Both the Murphey School program manager and the DFS worker indicated that the defendant will most likely remain at the Murphey School at least until he is 18. The defendant will also have the ability to remain longer at the Murphey School, if he so elects, until age 21. The defendant is doing very well at Murphey School in his controlled environment. The DFS worker described the defendant as always being well mannered, very polite, and having an "awesome sense of humor". The DFS worker indicated her belief that this child will have, a positive future, although he can become moody and frustrated when she discusses with him the possibility of him being registered as a sex offender.

The DFS worker also oversees another juvenile who, now 17, was placed on the registry when he was 8 years old. This other juvenile is often teased at school, and demonstrates a considerable amount of anger by getting into fights with the peers who tease him.

The DFS worker also testified that the defendant being discussed in this present Decision has recently been reunited with his mother. Once per month he enjoys supervised visits with his mother, as well as weekly supervised phone calls. The defendant was originally taken into care over two and one-half years ago because his mother was homeless and on drugs. According to the worker, however, Mother has now turned her life around. She has married a good and supportive husband, they have a home, and she has remained drug-free. The defendant's mother's goal is to eventually get her child back and make it up to him for her prior failures and the harm she has caused her son.

Another positive aspect of this defendant's life is his maternal aunt and her husband. They see the defendant frequently, and they are permitted to take the defendant on excursions out of Murphey School without Murphey School employee supervision. According to the DFS worker, the maternal aunt and her husband have no criminal record, are educated, and demonstrate good morals and values.

Russ Witter testified that he has been counseling the defendant initially two times a week, and now about one time a week. The defendant continues to deny ever having committed the offenses, and he has been consistent in his denial to Dr. Dunbar, Mr. Nye, and to DFS worker Steward. Despite the defendant's denial, Mr. Witter indicated he can still do sex offender related therapy with the defendant. Although Mr. Witter expressed his doubts at first about his chances of success with the defendant, the defendant has become a very strong participant in therapy. Mr. Witter described the defendant as being very open, and even enjoying the sessions. Mr. Witter indicated that the defendant is showing no signs of being out of control in a sexual way. In the fair and structured environment offered by the Murphey School, Mr. Witter believes that this defendant is becoming better able to manage conflict The defendant understands that it is in his best interest to remain at the Murphey School rather than try to return home to his mother at this time.

The Deputy Attorney General then asked Mr. Witter what the defendant's prospects would be when he eventually left the structured environment of the Murphey School. More particularly, the question was whether the defendant would regress back into sexual misconduct. Mr. Witter answered that he had `lots of hope" for the defendant. He described the defendant as having very good strengths, being bright, and also demonstrating good social skills. Mr. Witter opined that this defendant would be a low risk for acting out sexually in the future.

Mr. Witter went on to say that it would be devastating for this defendant to be registered as a sex offender. Registering this defendant as a sex offender would have "an incredibly negative impact" on this defendant's chances to benefit from therapy. Registration as a sex offender would reduce this defendant's sense of value.

Mr. Witter also believed that deferring a decision on whether to register the defendant as a sex offender until after he has completed his treatment, or perhaps even until just prior to his 18th birthday, would have a beneficial effect by bolstering the ability of the counselor to keep the defendant motivated in making appropriate efforts in the counseling.

Russ Witter had stated that he saw no deterrent benefit that might result from placing this defendant on the sex offender registry.

Dr. Dunbar performed the CAS evaluation on the defendant which had earlier been received by the Court on January 28, 2009. In addition to the statements already made by Dr. Dunbar in that evaluation, she opined that this defendant, having lived the first 13 years in a somewhat negative and unstable environment, was going to benefit greatly from what he would learn in the next several years at the Murphey School. Dr. Dunbar has detected in this defendant an ability to rebound from problematic things, thereby demonstrating that he has the strength to improve and the willingness to work towards that improvement.

Dr. Dunbar went on to describe the devastation she has seen in some youthful offenders who have been placed on the registry. Many of the youths experience depression as does their entire family system. Dr. Dunbar has had parents of registered youth say "his life is over." She has even seen some registered youths threaten suicide.

Dr. Dunbar agreed with Mr. Witter's assessment that deferring the decision of whether or not to place this defendant on the sex offender registry would assist the counselor in treatment. She also indicated that waiting until making that final decision by getting updated evaluations when the defendant nears his 18th birthday would not be harmful to this defendant even though it would expose him to an area of uncertainty for the next few years.

Motion to Stay

In his motion, Defendant argued that it would be contrary to the administration of justice and the best interests of the Defendant to register him as a sex offender immediately. In support, he cited portions of the CAS evaluation that conveyed that he was considered a low to moderate risk for future juvenile offenses, and that he would likely continue to do well and refrain from inappropriate behavior in the future if he is placed in a structured environment. Indeed, the testimony the Court heard from Russ Witter, Dr. Dunbar, and the others at the recent hearing support this position.

The State argues that 11 Delaware Code § 4121(c) requires that registration occur following sentencing. In support of its position, it provides two case citations Helman v. State⁵ and Coleman v. State.⁶ A review of Helman and Coleman indicates that both were decided before a germane change to the statute was made in 2007.

Section 4121(c) addresses the time at which a judge must place an offender on the sex offender registry, if registration is appropriate. The subchapter in which § 4121 is contained underwent a substantial overhaul in 2007. Prior to the 2007 changes,...