Bacon v. Mo. State Highway Patrol, No. ED 107919

CourtCourt of Appeal of Missouri (US)
Writing for the CourtROBERT G. DOWD, JR., Judge
Citation602 S.W.3d 245
Docket NumberNo. ED 107919
Decision Date07 April 2020
Parties Eric Edward BACON, Respondent, v. MISSOURI STATE HIGHWAY PATROL, Colonel David Todd and St. Charles County Prosecuting Attorney, Appellants.

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.

602 S.W.3d 247

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,

602 S.W.3d 248

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...

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3 practice notes
  • Smith v. St. Louis Cnty. Police, ED109734
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...(quoting Petrovick v. State, 537 S.W.3d 388, 390 (Mo. App. W.D. 2018)) (italics added); accord Bacon v. Missouri State Highway Patrol, 602 S.W.3d 245, 248 (Mo. App. E.D. 2020). "Any time a court is called upon to apply a statute, the primary obligation is to ascertain the intent of the legi......
  • Hixson v. Mo. State Highway Patrol, No. ED 108289
    • United States
    • Court of Appeal of Missouri (US)
    • November 10, 2020
    ...the same and imposed on all offenders a lifetime registration requirement, with limited exceptions." Bacon v. Mo. State Highway Patrol, 602 S.W.3d 245, 247 (Mo. App. E.D. 2020).On August 28, 2018, the Missouri General Assembly amended SORA to distinguish between offenses based on their seve......
  • Ford v. Belmar, ED109958
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...same and imposed on all offenders a lifetime registration requirement, with limited exceptions." Bacon v. Missouri State Highway Patrol, 602 S.W.3d 245, 247 (Mo. App. E.D. 2020). Effective August 28, 2018, sexual offenders were divided into three tiers, each with a different registration pe......
3 cases
  • Smith v. St. Louis Cnty. Police, ED109734
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...(quoting Petrovick v. State, 537 S.W.3d 388, 390 (Mo. App. W.D. 2018)) (italics added); accord Bacon v. Missouri State Highway Patrol, 602 S.W.3d 245, 248 (Mo. App. E.D. 2020). "Any time a court is called upon to apply a statute, the primary obligation is to ascertain the intent of the legi......
  • Hixson v. Mo. State Highway Patrol, No. ED 108289
    • United States
    • Court of Appeal of Missouri (US)
    • November 10, 2020
    ...the same and imposed on all offenders a lifetime registration requirement, with limited exceptions." Bacon v. Mo. State Highway Patrol, 602 S.W.3d 245, 247 (Mo. App. E.D. 2020).On August 28, 2018, the Missouri General Assembly amended SORA to distinguish between offenses based on their seve......
  • Ford v. Belmar, ED109958
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...same and imposed on all offenders a lifetime registration requirement, with limited exceptions." Bacon v. Missouri State Highway Patrol, 602 S.W.3d 245, 247 (Mo. App. E.D. 2020). Effective August 28, 2018, sexual offenders were divided into three tiers, each with a different registration pe......

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