Hensler v. Cross

• Decision Date: 07 December 2001
• Docket Number: No. 29563.,29563.
• Citation: 210 W.Va. 530,558 S.E.2d 330
• Court: West Virginia Supreme Court
• Parties: Michael M. HENSLER, Petitioner Below, Appellant, v. David B. CROSS, Sergeant T.R. Cox, Magistrate Michael Allman and Magistrate Michael Fuscardo, Respondents Below, Appellees.

558 S.E.2d 330

210 W.Va. 530

Michael M. HENSLER, Petitioner Below, Appellant, v. David B. CROSS, Sergeant T.R. Cox, Magistrate Michael Allman and Magistrate Michael Fuscardo, Respondents Below, Appellees.

No. 29563.

Supreme Court of Appeals of West Virginia.

Submitted October 2, 2001.

Decided December 7, 2001.

Concurring Opinion of Justice Starcher December 13, 2001.

Gregory J. Campbell, Esq., Campbell & Turkaly, Charleston, West Virginia, Attorney for Appellant.

David B. Cross, Esq., Prosecuting Attorney of Brooke County, Wellsburg, West Virginia and Darrel V. McGraw, Jr., Esq., Attorney General, Dolores A. Martin, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellees.

William J. Charnock, Esq., West Virginia Prosecuting Attorneys Institute, Amicus Brief.

MAYNARD, Justice:

The appellant, Michael M. Hensler, appeals the January 5, 2001 order of the Circuit Court of Brooke County which denied his request for a writ of prohibition and ordered him to comply with the registration provisions of the Sex Offender Registration Act (Act), W.Va.Code §§ 15-12-1 to 10. He asks this Court to find that the Act, as it applies to him, violates ex post facto principles. We decline to so find and affirm.

I. FACTS

The facts are not in dispute. The underlying criminal charges are discussed in State v. Hensler, 187 W.Va. 81, 415 S.E.2d 885 (1992). The appellant, a minister, operated a private school in the basement of his home during the 1985-86 school year. A fourteen-year-old male student's tuition was waived in exchange for an agreement to do yard work for the appellant. The student accused the appellant of making sexual advances toward him on four occasions while the student was at the appellant's home.

The appellant was indicted by a grand jury on November 6, 1989 on four counts of first-degree sexual abuse in violation of W.Va. Code § 61-8B-7. He was tried on the charges and found guilty on all counts. He appealed, contending that the definition of "forcible compulsion," W.Va.Code § 61-8B-1(1)(c), as applied to the charges, became the law after the dates of the alleged crimes. He contended that the application of the definition in his case constituted an ex post facto law which violated his right to due process. This Court agreed and reversed and remanded for a new trial. The Court believed the jury should be allowed to consider whether the alleged actions of the defendant rose to the level of forcible compulsion contained in W.Va.Code § 61-8B-1(1)(a) and (b).

The appellant subsequently entered into a plea agreement with the State wherein he pleaded no contest to three counts of a four count information which charged him with four misdemeanor offenses of sexual abuse in the third degree in violation of W.Va.Code § 61-8B-9. Count four was held in abeyance. He was sentenced to 270 days in jail and fined $1,500. He was released from custody on September 19, 1994.

By letter dated July 11, 2000, the appellant received notification from the West Virginia State Police that he must register as a sex offender pursuant to W.Va.Code § 15-12-2 (2000).¹ On October 4, 2000, the appellant filed a writ of prohibition in circuit court seeking to prevent prosecution for failure to register as a sex offender. He argued that the sex offender registration act, as applied to him, violated ex post facto principles contained in Article III, Section 4 of the West Virginia Constitution.² In the court's January 5, 2001 order denying the writ, the court stated that:

The Sex Offender Registration Act does not make criminal conduct which was previously legal, or increase the punishment for an existent crime. Registration is a collateral consequence of the Petitioner's conviction for a sex offense against a child rather than a penalty or an enhancement of the sentence. If registration is not punishment it cannot, therefore, violate ex post facto principles.

* * *

The Petitioner contends that the legislature's finding that persons required to register as sex offenders pursuant to the legislation have a reduced expectation of privacy is also an ex post facto violation in that it alters the situation of the accused to his disadvantage. This argument is without merit for the same reasons stated by this Court discussion of the ex post facto challenge.

It is from this order the appellant appeals.³

On appeal, the appellant contends that the circuit court erred by denying the writ of prohibition. He emphasizes that he is not attacking the constitutionality of the registration act. Instead, he contends that the act, as it applies to him, violates the ex post facto provisions of the West Virginia Constitution in that the significant date involved in this analysis is the date of the offense rather than the date of conviction or sentencing. He insists that the Act operates to his detriment because it "contains a finding by the [L]egislature that persons required to register as sex offenders have a reduced expectation of privacy." This, he believes, is an involuntary loss of a constitutional right which is punitive. The appellees, David Cross, Prosecuting Attorney of Brooke County, Sergeant T.R. Cox, West Virginia State Police, and Brooke County Magistrates Allman and Fuscardo, argue that the statute does not violate the ex post facto clause even though it may impose a burden upon the appellant because the legislative purpose is regulatory rather than punitive.

II. DISCUSSION

"When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syllabus Point 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). Moreover, "[i]n considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syllabus Point 1, in part, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).

We begin our analysis with a brief history of the Act. At the time the appellant committed these crimes in 1985-86, West Virginia did not have a sex offender registration and notification act. In 1993, when the Act was first enacted, it was contained in Chapter 61 of the West Virginia Code titled Crimes and Their Punishment. Then,

In 1994 Congress enacted legislation requiring states, as a condition to some federal funding, to enact registration laws covering certain sex offenders. Those registration laws, aimed particularly at protecting minors and the potential victims of sexually violent offenses, would require registrants to verify their addresses annually for ten years (as well as changes in address) and to provide fingerprints and a photograph, and would explicitly permit release of information necessary to protect the public "concerning a specific person required to register." 42 U.S.C.A. § 14071(b) and (d).

Doe v. Poritz, 142 N.J. 1, 17, 662 A.2d 367, 376 (1995). In 1996, the federal law was amended to include implementation of the federal community notification statute by September 1997.⁴ West Virginia's Act was amended in 1996, 1997, and 1998. In 1999, the Act was once again amended and moved to Chapter 15, Public Safety. The 2000 amendments declared for the first time that sex offenders who are required to register "have a reduced expectation of privacy." W.Va.Code § 15-12-1a(c) (2000). The appellant was required to register under the 2000 amendments.

The Act succinctly states, "The provisions of this article apply both retroactively and prospectively." W.Va.Code § 15-12-2(a) (2000). The Act sets forth with particularity those persons who must register.

(b) Any person who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty-one of this code or under a similar provision in another state, federal or military jurisdiction shall register ...:

(1) Article eight-b [sexual offenses];

(2) Article eight-c [filming of sexually explicit conduct of minors];

(3) Sections five and six, article eight-d [sexual abuse by a parent, guardian or custodian and sending, distributing, exhibiting, possessing, displaying or transporting material by a parent, guardian or custodian, depicting a child engaged in sexually explicit conduct];

(4) Section fourteen, article two [abduction of person, kidnapping or concealing child]; or

(5) Sections six, seven, twelve and thirteen, article eight [detention of person in place of prostitution and procuring for house of prostitution and incest].

(c) Any person who has been convicted of a criminal offense, which at the time of sentencing was found by the sentencing judge to have been sexually motivated, shall also register as set forth in this article.

W.Va.Code § 15-12-2(b) and (c) (2000).

The duration of registration is for ten years excluding "ensuing periods of incarceration or confinement," W.Va.Code § 15-12-4(a)(1) (2000), except for those who must register for life. A person who must register for life is one who (A) Has one or more prior convictions or has previously been found not guilty by reason of mental illness, mental retardation or addiction for any qualifying offense referred to in this article; or (B) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, and upon motion of the prosecuting attorney, the court finds by clear and convincing evidence, that the qualifying offense involved multiple victims or multiple violations of the qualifying offense; or (C) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense; or (D) has been determined pursuant to se...