Fox v. State Of Del.

• Decision Date: 20 December 2010
• Docket Number: No. 741, 2009,741, 2009
• Parties: JOHN FOX, Defendant, Appellant, v. STATE OF DELAWARE, Plaintiff, Appellee.
• Court: United States State Supreme Court of Delaware

JOHN FOX, Defendant, Appellant,

v.STATE OF DELAWARE, Plaintiff, Appellee.

No. 741, 2009

SUPREME COURT OF THE STATE OF DELAWARE

Submitted: November 3, 2010

Decided: December 20, 2010

Court-Family Court of the State of Delaware in and for New Castle County

Cr. I.D. 0701004097

Before STEELE, Chief Justice, HOLLAND, BERGER, and RIDGELY, Justices and WITHAM, Judge, ¹ constituting the Court en Banc.

ORDER

This 20th day of December 2010, it appears to the Court that: 1) The defendant-appellant, John Fox ("Fox"), a juvenile offender, pled guilty to Unlawful Sexual Contact in the Second Degree, a felony, and the State entered a nolle prosequi for one count of Rape in the Third Degree.² Fox was fifteen years old at the time of the offense and his victim, a cousin, was four years old. Fox moved for relief from registration as a sex offender after he had already been sentenced and registered. The Family Court denied that request.

2) Fox raises three issues on appeal: first, he is eligible to seek relief from registration as a sex offender based on the legislative changes in the wording of subsection (6) of title 11, section 4121(d) of the Delaware Code; second, the sentencing judge has discretion under title 11, section 4121(d)(6) to defer a decision on whether to designate a person as a sex offender until after treatment and the completion of a risk assessment as to the person's propensity to re-offend; and third, the sentencing judge has discretion to consider retroactively a person's petition for relief from sex offender designation under title 11, section 4121(d)(6), if the person's statutory eligibility for relief arose after sentencing but while the person was still subject to the Family Court's jurisdiction.

3) Subsection 4121(d) (6) of title 11, currently provides:

Notwithstanding any provision in this section or in § 4120 of this title to the contrary, any person who would otherwise be designated as a sex offender pursuant to this section and to § 4120 of this title may petition the sentencing Court for relief from such designation, and from all obligations imposed by this section and § 4120 of this title if:

a. The Tier II or Tier III offense for which the person was convicted was a misdemeanor and the victim was not a child under 13 years of age; and

b. The person has not previously been convicted of a violent felony, or any other offense set forth in paragraph (a)(4) of this section, or of any offense specified in the laws of another state, the United States, or any territory of the United States, or any offense in a foreignjurisdiction which is the same as, or equivalent to, such offenses; and

c. The sentencing court determines by a preponderance of the evidence that such person is not likely to pose a threat to public safety if released from the obligations imposed by this section, and by § 4120 of this

title.

Notwithstanding anything in this paragraph to the contrary, no person designated as a Tier II or Tier III sex offender shall be afforded relief from designation as a sex offender if the victim of any of the offenses for which the person was convicted were less than 12 years old at the time of the crime, unless the person was also less than 18 years old at the time of the crime in which case the prohibition set forth in this sentence shall not apply...³

4) In this case, the Family Court determined that the last paragraph in section 4121(d)(6) "did not provide broad discretion to the Family Court... but only exempted juveniles from this specific mandatory prohibition in relief."⁴ The Family Court interpreted the "notwithstanding" language as providing an "exception to the exception" for juvenile sex offenders where the victim was under twelve years old at the time of the offense. The Family Court noted that if the addition of "Tier II or Tier III" in paragraph a. gave it the discretion to grant an exemption to any juvenile sex offenders, felony or misdemeanor, then the "discretion to defer designation would apply to both adults and juveniles because the last two sentences of this section 4121(d)(6)pertain to 'any person seeking relief.'"⁵ The Family Court held that "the Legislature... did not provide a separate section of the code to address juvenile offenders. The legislative intent 'to include juveniles, without regard to age, within the scope of the Sex Offender Registration Statute, is explicit.'"⁶

5) The Family Court also held that the subsection was not retroactively applicable to Fox because the "statute does not provide a designated sex offender with the opportunity to seek relief after sentencing under 11 Del. C. § 4121(d)(6)."⁷ The Family Court ruled that subsection 4121(d)(6) specifically requires that "[a]ny person seeking relief from designation as a sex offender under this paragraph shall file a petition with the sentencing court prior to sentencing...