Grieshaber v. Fitch
| Decision Date | 29 October 2013 |
| Docket Number | No. ED 98948.,ED 98948. |
| Citation | 409 S.W.3d 435 |
| Parties | Jason D. GRIESHABER, Appellant, v. Colonel Timothy FITCH, et al., Respondents. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Gilbert C. Sison, Chris Koster, Attorney General, Mary Delworth Morris, Assistant Attorney General, Saint Louis, MO, Jeremiah J. Morgan, Deputy Solicitor General, Jefferson City, MO, for appellant.
Robert Fox, Clayton, MO, for respondents.
Jason D. Grieshaber appeals the grant of summary judgment in favor of Colonel Timothy Fitch, Chief of the St. Louis County Police Department, Robert P. McCulloch, Prosecuting Attorney of St. Louis County, and Colonel Ronald K. Replogle, Superintendent of the Missouri State Highway Patrol (“Defendants”), on Grieshaber's amended petition which sought removal of Grieshaber's name and identifying information from Missouri's sex offender registry. We affirm.
The facts are undisputed. In January 2001, Grieshaber pled guilty in the Circuit Court of St. Louis County to two counts of attempted child molestation in the second degree, class C misdemeanors. At the time the underlying offenses were committed against the victim, Grieshaber was nineteen years old and the victim was thirteen years old.
Grieshaber registered as a sex offender in Missouri in February 2005. In October 2010, Grieshaber brought an amended petition against Defendants which sought removal of Grieshaber's name and identifying information from Missouri's sex offender registry pursuant to section 589.400.8 RSMo Supp.2010. Grieshaber's amended petition alleged that he met the criteria of section 589.400.8 of Missouri's Sex Offender Registration Act (“SORA”) 1 because: (1) two years had passed since his guilty pleas; (2) he was nineteen years of age and the victim was thirteen years of age at the time of the offenses; and (3) no physical force or threat of physical force was used in the commission of the offenses. See section 589.400.3(4) (); section 589.400.8 ().
Subsequently, Defendant Colonel Ronald K. Replogle (“Defendant Replogle”) filed a motion for summary judgment on Grieshaber's amended petition. Defendant Replogle's motion for summary judgment alleged that: (1) Grieshaber failed to meet the statutory requirements for removal; and (2) Grieshaber is required to register pursuant to SORA because he had an independent federal obligation to register as a sex offender pursuant to the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. section 16901 et seq. (2006).2
The trial court entered summary judgment in favor of Defendants and dismissed Grieshaber's amended petition with prejudice. In its judgment, the trial court concluded that Grieshaber, a Missouri resident, is required to register as a sex offender in Missouri pursuant to section 589.400.1(7) of SORA because he “has been or is required to register under federal law [ (SORNA) ].” The trial court also explicitly found that Grieshaber had an independent federal obligation to register as a sex offender pursuant to SORNA. Grieshaber appeals.
Our review of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). We will affirm the grant of summary judgment only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id. at 377. Moreover, we must affirm the trial court's judgment if, as a matter of law, it is sustainable under any theory. Stark Liquidation Co. v. Florists' Mut. Ins. Co., 243 S.W.3d 385, 392 (Mo.App.E.D.2007). In this appeal, Grieshaber challenges the trial court's interpretation and application of SORNA and SORA, which are matters that we review de novo. See Otte v. Edwards, 370 S.W.3d 898, 900 (Mo.App.E.D.2012) ().
Grieshaber asserts three points on appeal. In all three points, Grieshaber claims that the trial court erred in finding that Grieshaber had an independent federal obligation to register as a sex offender pursuant to SORNA. We disagree.
1. Grieshaber's Substantive Obligation to Register as a Sex Offender Does Not Arise Only from State Law and He May Not File a Petition for Removal from Missouri's Sex Offender Registry Pursuant to Section 589.400.8 of SORA
In his first point on appeal, Grieshaber contends that the trial court erred in finding that he had an independent federal obligation to register as a sex offender under SORNA because the substantive obligation to register as a sex offender arises only from state law. Grieshaber further asserts that because only state law controls, he should be permitted to file a petition for removal from Missouri's sex offender registry pursuant to section 589.400.8 of SORA.
SORNA was enacted in July 2006 to establish a comprehensive national system for the registration of sex offenders. 42 U.S.C. section 16901. The Missouri Supreme Court has issued two decisions interpreting and applying SORNA: Doe v. Keathley, 290 S.W.3d 719 (Mo.banc 2009) and Doe v. Toelke, 389 S.W.3d 165 (Mo.banc 2012). Both decisions discuss the interplay between the state registration requirement found in section 589.400.1(7) of SORA and the federal registration requirement of SORNA found in 42 U.S.C. section 16913(a). Toelke, 389 S.W.3d at 166–67;Keathley, 290 S.W.3d at 720–21. Section 589.400.1(7) of SORA requires a Missouri resident to register as a sex offender if he or she “has been or is required to register under ... federal ... law....” The federal SORNA provides “[a] sex offender shall register ... in each jurisdiction where the offender resides.” 42 U.S.C. section 16913(a). A “sex offender” is “an individual who was convicted of a sex offense,” and the definition of “sex offense” includes “a criminal offense that is a specified offense against a minor.” 42 U.S.C. section 16911(1) and (5)(A)(ii).
In Keathley and Toelke, the Missouri Supreme Court held as follows: If a Missouri resident is a “sex offender” pursuant to the terms of SORNA, SORNA imposes upon such a person an “independent, federally mandated registration requirement” which triggers the individual's duty to register in Missouri pursuant to section 589.400.1(7) of SORA. Toelke, 389 S.W.3d at 167;Keathley, 290 S.W.3d at 720. SORNA's registration requirement applies to persons who committed a sex offense prior to SORNA's July 2006 enactment. Keathley, 290 S.W.3d at 720. When the state registration requirement is based on an independent federal registration requirement, the state registration requirement does not arise from the enactment of a state law and is not based solely on the fact of a past conviction. Id.;Toelke, 389 S.W.3d at 167. Instead, the state registration requirement in section 589.400.1(7) of SORA is based on the person's present status as a sex offender who “has been or is required” to register pursuant to SORNA. Toelke, 389 S.W.3d at 167; section 589.400.1(7). Therefore, if an individual has been required to register pursuant to SORNA, he or she is presently required to register pursuant to SORA. Toelke, 389 S.W.3d at 167.
In this case, Grieshaber claims that “[t]he Missouri Supreme Court ... erred in concluding that there was an independent, federal obligation under SORNA to register as a sex offender.” 3 However, our Court is constitutionally bound to follow Doe v. Keathley and Doe v. Toelke because they are the most recent controlling decisions of the Missouri Supreme Court. Carter v. Division of Employment Sec., 350 S.W.3d 482, 486 n. 3 (Mo.App.W.D.2011); see alsoMo. Const. article V, section 2.
Pursuant to the reasoning in Keathley and Toelke, Grieshaber had an independent federal obligation to register as a sex offender. It is undisputed that Grieshaber is a “sex offender” pursuant to the terms of SORNA because he was convicted of two counts of attempted child molestation. See42 U.S.C. section 16911(1) (); 42 U.S.C. section 1691 l(5)(A)(ii), (7)(H), and (7)(I) (a “sex offense” is “a criminal offense that is a specified offense against a minor,” including “[c]riminal sexual conduct involving a minor” and “[a]ny conduct that by its nature is a sex offense against a minor”). Accordingly, SORNA imposes an independent, federally mandated registration requirement upon Grieshaber which triggers his duty to register in Missouri pursuant to section 589.400.1(7) of SORA. In other words, because Grieshaber “has been or is required to register” pursuant to SORNA, he is presently required to register pursuant to section 589.400.1(7) of SORA.
Moreover, because Grieshaber's state registration requirement is based on an independent federal registration requirement, he may not file a petition for removal from Missouri's sex offender registry pursuant to section 589.400.8. Section 589.400.8 provides, in relevant part, that:
any person on the sexual offender registry for having been convicted of, found guilty of or having pled guilty or nolo contendere to an offense included under [section 589.400.1] may file a petition after two years have passed from the date the offender was convicted ... for removal of his or her name from the registry if such person was nineteen years of age or younger and the victim was...
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