Carr v. Mo. Attorney Gen. Office
Decision Date | 18 September 2018 |
Docket Number | WD 80727 |
Citation | 560 S.W.3d 61 |
Parties | Derrick Maurice CARR, Appellant, v. MISSOURI ATTORNEY GENERAL OFFICE, Respondent. |
Court | Missouri Court of Appeals |
David Kelly, Lee's Summit, MO, Counsel for Appellant.
Aaron Maness, Jefferson City, MO, Counsel for Respondent.
Before Division Three: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge, and Alok Ahuja, Judge
Derrick Carr appeals a circuit court’s grant of a motion to dismiss his Petition for Removal from the Missouri Sex Offender Registry. He raises two points on appeal. First, he argues the circuit court erred in determining Carr is a tier III sex offender under the federal Sex Offender Registration and Notification Act and thus ineligible for removal from the Missouri Sex Offender Registry. Second, Carr argues that the court erred in concluding Carr was ever required to register under the Sex Offender Registration and Notification Act and that he is otherwise eligible for removal under Missouri’s Sex Offender Registration Act. We reverse.
In 1979, Carr engaged in sexual intercourse with a fourteen-year-old when Carr was seventeen. On July 29, 1980, Carr pleaded guilty to sexual assault, defined in relevant part as "sexual intercourse with another person ... who is fourteen or fifteen years old." Section 566.040, RSMo 1979; State v. Buck , 724 S.W.2d 574 (Mo. App. 1986).
On July 29, 2016, Carr filed a Petition for Removal from the Missouri Sex Offender Registry ("Registry"), pursuant to Missouri’s Sex Offender Registration Act ("SORA"), Section 589.400 et seq.1 On August 20, 2016, the State filed a motion to dismiss, arguing 1) Carr was ineligible for removal under Section 589.400.8, because physical force was used in Carr’s offense, and 2) Carr’s required registration under the federal Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. § 20911 et seq. , triggered lifetime registration pursuant to Section 589.400.1(7) and Doe v. Toelke , 389 S.W.3d 165 (Mo. banc 2012).
In his reply to the motion to dismiss, Carr "does not dispute that he has been required to register under federal law pursuant to SORNA." However, Carr argues he should be classified as no more than a tier II offender and thus eligible for removal from the Registry, because the use or threat of force was not an element of the crime to which he pleaded.
The circuit court held a hearing on February 23, 2017, and granted the motion to dismiss on February 28, 2017, concluding: 1) Carr’s offense involved the use or threat of physical force, thus requiring lifetime registration as a tier III sex offender under SORNA, and 2) Carr’s required registration under SORNA triggered lifetime registration under SORA. Section 589.400.1(7). This appeal follows.
The judgment of the circuit court will be upheld on appeal, unless " ‘it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.’ " Wilkerson v. State, 533 S.W.3d 755, 757 (Mo. App. 2017) (internal citations omitted). "Statutory interpretation is an issue of law that this Court reviews de novo. " Finnegan v. Old Republic Title Co. of St. Louis, Inc. , 246 S.W.3d 928, 930 (Mo. banc 2008).
Before addressing the merits of Carr’s appeal, it is instructive to review SORNA’s general purpose and its tiering system for sex offenders. SORNA was enacted in 2006, as part of the Adam Walsh Child Protection and Safety Act, Pub.L. 109–248, Tit. I, 120 Stat. 590. James v. Missouri State Highway Patrol , 505 S.W.3d 378, 381 (Mo. App. 2016) (citing Doe v. Keathley , 344 S.W.3d 759, 762 (Mo. App. W.D. 2011) ). As our Eastern District has explained:
James, 505 S.W.3d at 381 (footnote omitted).
Additionally, SORNA divides sex offenders into three tiers. Id. Tier I, the least severe category, refers to "a sex offender other than a tier II or tier III sex offender." 34 U.S.C. § 20911(2). The full registration period for a tier I sex offender is fifteen years. 34 U.S.C. § 20915(a)(1). Tier II includes actors who have engaged in "abusive sexual contact" with a minor. 34 U.S.C § 20911(3)(A)(iv). When conducted knowingly, any sexual contact with a minor is sexually abusive. 18 U.S.C. § 2243(a)(1)-(2).2 The full registration period for a tier II sex offender is twenty-five years. 34 U.S.C. § 20915(a)(2). Tier III includes actors who have engaged in sexual acts "comparable to or more severe than ... aggravated sexual abuse." 34 U.S.C. § 20911(4)(A)(i). "Aggravated sexual abuse" includes conduct in which the actor "knowingly causes another person to engage in a sexual act by using force against that person." 18 U.S.C. § 2241(a)(1). The full registration period for tier III is for "the life of the offender." 34 U.S.C. § 20915(a)(3).
Carr first argues the circuit court erred in determining Carr is a tier III sex offender under SORNA and thus ineligible for removal from Missouri’s Registry, because the court’s determination was based on facts underlying Carr’s state conviction, rather than based solely on the offense to which Carr pleaded. We agree.
When determining a sex offender’s tier under SORNA, courts generally employ the "categorical approach," which compares "the elements of the prior offense of conviction with the elements of the pertinent federal offense, also referred to as the ‘generic’ offense." U.S. v. Berry , 814 F.3d 192, 195 (4th Cir. 2016) ; see also, U.S. v. Cabrera-Gutierrez , 756 F.3d 1125, 1133-34 (9th Cir. 2014) ; U.S. v. White , 782 F.3d 1118, 1133 (10th Cir. 2015). "Because the categorical approach looks squarely at the elements of the offense of conviction, a reviewing court is precluded from examining the circumstances underlying the prior conviction." Peters v. Jackson County Sheriff , 543 S.W.3d 85, 88 (Mo. App. 2018) (quoting U.S. v. Price , 777 F.3d 700, 704-05 (4th Cir. 2015) (internal quotation marks omitted) ).
Instead of the categorical approach, the circuit court mistakenly applied the "circumstances-specific" approach, citing United States v. Hill , 820 F.3d 1003 (8th Cir. 2016). As the State concedes, this approach is generally not used to determine tiering. Rather, it is applied to determine whether an individual meets SORNA’s definition of "sex offender." Id. at 1005 ; Wilkerson v. State , 533 S.W.3d 755, 758-59 (Mo. App. 2017) ( ).
While both parties suggest a categorical approach to tier determination would require remand, we need not remand the case to conclude, at the very least, Carr is not a tier III offender. The relevant element of Carr’s state conviction is that he had "sexual intercourse with another person ... who is fourteen or fifteen years old." Section 566.040, RSMo 1979. Since Tier III, in relevant part, requires use or threat of force, supra 34 U.S.C. § 20911(4)(A)(i) ; 18 U.S.C. § 2241(a)(1), and force is not an element of Carr’s state conviction, Carr cannot be a tier III sex offender.3 He must be either a tier I or tier II offender. The circuit court thus abused its discretion in looking to the circumstances of Carr’s state conviction and erred in determining Carr was a tier III sex offender. Point I is granted.
Carr next argues the circuit court erred in finding Carr was ever required to register under SORNA, because the federal mandate to register under SORNA elapsed before becoming applicable to Carr. Respondent contends this argument is unpreserved for appeal. However, the issue of preservation is moot, because our analysis under Point I unavoidably resolves the issue raised under Point II. This is because the date of Carr’s 1980 state conviction, considered together with Carr’s classification as either a tier I or tier II sex offender, places Carr outside the statutory periods during which he would have been required to register under either state or federal law.
Carr is not subject to a registration obligation under SORA
SORA became effective on January 1, 1995 and "imposes registration and notification requirements on persons committing crimes," such as Carr’s, "listed in chapter 566[.]" Petrovick v. State , 537 S.W.3d 388, 390 (Mo. App. 2018) ( ). "Because Article I, § 13 of the Missouri Constitution prohibits any law ‘retrospective in its operation,’ SORA’s registration requirements do not apply to offenders based solely on their conviction of a relevant offense before SORA became effective[.]" Petrovick , 537 S.W.3d at 390. Carr is thus not subject to SORA’s registration requirements based solely on his 1980 state conviction.
However, SORA also requires registration of "[a]ny person who ... has been or is required to register under ... federal ... law." Section 589.400.1(7). As we noted...
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