Bacon v. Mo. State Highway Patrol

• Decision Date: 07 April 2020
• Docket Number: No. ED 107919,ED 107919
• Citation: 602 S.W.3d 245
• Parties: Eric Edward BACON, Respondent, v. MISSOURI STATE HIGHWAY PATROL, Colonel David Todd and St. Charles County Prosecuting Attorney, Appellants.
• Court: Missouri Court of Appeals

602 S.W.3d 245

Eric Edward BACON, Respondent,

v.MISSOURI STATE HIGHWAY PATROL, Colonel David Todd and St. Charles County Prosecuting Attorney, Appellants.

No. ED 107919

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: April 7, 2020

ATTORNEYS FOR APPELLANT, Caleb J. Aponte, P. O. Box 899, Jefferson City, MO 65102, Robert E. Hoeynck, Jr., 100 North Third Street, Suite 216, St. Charles, MO 63301.

ATTORNEYS FOR RESPONDENT, Matthew D. Fry, Nathan T. Swanson, 120 S. Central, Suite 130, St. Louis, MO 63105.

ROBERT G. DOWD, JR., Judge

The Missouri State Highway Patrol, Colonel David Todd and the St. Charles County Prosecuting Attorney (collectively "MSHP") appeal from the judgment granting E.B.’s ("Petitioner") petition to have his name removed from the sex offender registry under Missouri's Sex Offender Registration Act ("SORA"), Section 589.400 et seq. We affirm.

On November 21, 2002, Petitioner pled guilty in St. Charles County to possession of child pornography. On July 29, 2004, Petitioner pled guilty in St. Louis County to possession of child pornography. He received a suspended imposition of sentence in both cases and was placed on probation. SORA did not include a registration requirement for this offense at the time of Petitioner's adjudications. Possession of child pornography was added to the list of offenses requiring registration when SORA was amended in August 2004. Petitioner was notified that he was required to register as a sex offender and has been on the registry for at least ten years.

Until recently, SORA treated all sexual offenses the same and imposed on all offenders a lifetime registration requirement, with limited exceptions. Effective August 28, 2018, the legislature restructured SORA. Sexual offenders are now divided into three tiers based on the severity of the offense, and each tier has different registration periods ranging from fifteen years to the offender's lifetime. The legislature also included provisions under which repeat offenders are subjected to higher tiers and longer registration periods. Below is a summary of each tier:

• Tier I contains fifteen listed offenses, including possession of child pornography. See Section 589.414.5(1)(a)-(o). Those "adjudicated"¹ for a tier I offense are required to register for fifteen years and they must report to law enforcement annually. See Sections 589.400.4(1) and 589.414.5. The registration period can be reduced to ten years if the offender maintains a clean record. See Section 589.400.5.

• Tier II covers thirteen listed offenses. See Section 589.414.6(1)(a)-(m). Tier II also includes certain repeat tier I offenders: "[a]ny person who is adjudicated of an offense comparable to a tier I offense listed in this section ... and who is already required to register as a tier I offender due to having been adjudicated of a tier I offense on a previous occasion." Section 589.414.6(2). A tier II offender is required to register for twenty-five years, reporting semi-annually. See Sections 589.400.4(2) and 589.414.6.

• Tier III is for the most severe offenders, consisting of thirty-six listed offenses and covering predatory and persistent sexual offenders. See Sections 589.414.7(1) and 589.414.7(2)(a)-(jj). Tier III also includes certain repeat tier I and tier II offenders: "[a]ny offender who is adjudicated for a crime comparable to a tier I or tier II offense listed in this section ... who has been or is already required to register as a tier II offender because of having been adjudicated for a tier II offense, two tier I offenses, or combination of a tier I offense and failure to register offense, on a previous occasion." Section 589.414.7(3). A person adjudicated for a tier III offense is required to register for his lifetime, reporting every ninety days. See Sections 589.400.4(3) and 589.414.7.

The legislature intended for those currently on the registry to get the benefit of the new shorter registration time periods for offenses that are now deemed to be in the lower severity tiers: "any person currently on the sexual offender registry for having been adjudicated for a tier I or II offense ... or other comparable offenses listed under section 589.414 may file a petition under Section 589.401." Section 589.400.10. A person on the registry for a tier I offense cannot file a petition for removal until ten years has elapsed since the date he was required to register for his most recent offense. See Section 589.401.4(1). For a tier II offense, the time period is twenty-five years from that date. See Section 589.401.4(2). The date a person is "required to register" is typically three days after adjudication, release from prison or placement on probation. See Section 589.400.2.

In September of 2018, shortly after these changes to SORA became effective, Petitioner—as a person "currently on the sexual offender registry"—filed a petition to have his name removed. In accordance with Section 589.401, Petitioner identified the two possession of child pornography cases that required him to register and claimed they arose out of the same incident.² He alleged these were tier I offenses. Petitioner asserted that he was adjudicated for those offenses on November 21, 2002 and July 29, 2004. But because those offenses did not carry a registration requirement he was not required to register within three days of either adjudication. Rather, he alleged that the date he was required to register was August 28, 2004, which is when possession of child pornography was added to SORA's list of registerable sex offenses. Because it had been more than ten years since that date, Petitioner argued he was eligible to have his name removed from the registry. The MSHP argued that because he had two adjudications for tier I offenses, Petitioner was actually considered a tier II offender under Section 589.414.6(2) and was only eligible to petition for removal after twenty-five years. The trial court agreed with Petitioner and ordered his name removed from the registry. This appeal follows.

This appeal requires us to interpret, as a matter of first impression, the meaning of the upgrade provision for repeat tier I offenders in Section 589.414.6(2). This is a question of law that we review de novo. Dixon v. Missouri State Highway Patrol , 583 S.W.3d 521, 523 (Mo. App. W.D. 2019). As always, our "primary obligation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning." Id. We are only permitted to look beyond the plain meaning of the statute when the language is ambiguous or would lead to an absurd or illogical result. See Akins v. Director of Revenue , 303 S.W.3d 563, 565 (Mo. banc 2010).

Section 589.414.6(2) states that a tier II offender includes "[a]ny person who is adjudicated of an offense comparable to a tier I offense listed in this section ... and who is already required to register as a tier I offender due to having been adjudicated of a tier I offense on a previous occasion." This provision plainly requires not only a previous adjudication for a tier I offense but also the requirement to register as a tier I offender due to that adjudication. Moreover, by defining this repeat offender as one "who is adjudicated" for a tier I offense and "who is already required to register" for a previous tier I offense, it is also clear that the requirement to register must exist at the time of the second adjudication. In other words, the first tier I adjudication must have carried a requirement to register and that requirement must have existed at the time of the second tier I adjudication in order to upgrade the offender to tier II under Section 589.414.6(2).

In this case, when Petitioner was adjudicated for his second tier I offense in 2004, he already had an adjudication for a tier I offense on a previous occasion in 2002, but he was not at that time already required to register—"as a tier I offender" or for any reason—because possession of child pornography did not yet carry a registration requirement under SORA. Rather, he became required to register for both offenses simultaneously after that 2004 adjudication by virtue of a change in the law. The precise date on which that requirement arose is unclear, but it is not dispositive because, as discussed in the footnote, any of the possible dates was more than ten years prior to his petition for removal.³ What is dispositive is the fact that the requirement to register for the first tier 1 offense in 2002 did not exist at the time of the second adjudication for a tier I offense in 2004. Petitioner's situation simply does not fit into the plain meaning of the provision for upgrading him to a tier II offender.

The MSHP argues that this construction of the words "is already required to register" in Section 589.414.6(2) is "hyper-technical" and permits a repeat offender like Petitioner to avoid the increased registration length, which is contrary to the statute's purpose. The MSHP contends that by creating a three-tiered system, the legislature intended to take a "three strikes" approach to recidivists, under which each subsequent tier I offense subjects the offender to a higher tier and longer registration period until, upon his third tier I offense, he is "out" and must register for his lifetime. This is reasonable and necessary, it argues, because multiple offenses signal a greater risk of recidivism. Therefore, the MSHP insists, we must construe "is already required to register" in Section 589.414.6(2) as if it simply means that the first tier I offense was a "registerable offense." In other words, in Petitioner's case, his 2002 adjudication for a tier I offense that ultimately required registration would be a "registerable offense." Because "2002 comes before 2004," the MSHP observes, the 2002 registerable offense was adjudicated on an occasion previous to the 2004 second adjudication for a tier I offense...