Hickerson v. United States
| Decision Date | 05 January 2023 |
| Docket Number | 17-CO-1443 |
| Citation | 287 A.3d 237 |
| Parties | Eugene HICKERSON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Patricia Cresta-Savage for appellant.
Ethan L. Carroll, Assistant United States Attorney, with whom Timothy J. Shea, Acting United States Attorney at the time of filing, and Elizabeth Trosman, John P. Mannarino, and Daniel Friedman, Assistant United States Attorneys, were on the brief, for appellee.
Before Easterly and Deahl, Associate Judges, and Washington, Senior Judge.
This appeal concerns an ex post facto challenge to sex offender registration requirements. Eugene Hickerson pled guilty to one count of sodomy, a sex offense, in 1977. He was eighteen years old at the time, and he perpetrated his offense against a ten-year-old child. The record does not indicate precisely how long Hickerson was imprisoned or how long any term of parole was, but it is clear that by 1983 he had been released without conditions. More than three decades later, in 2016, Hickerson was for the first time ordered to register as a sex offender under the District of Columbia's Sex Offender Registration Act of 1999 (SORA), D.C. Code §§ 22-4001 to - 4017.
Hickerson was required to register at that point because he pled guilty to a misdemeanor count of simple possession of heroin. He received a probationary sentence that brought him within one of SORA's definitions of a "[s]ex offender," which includes one who "[c]ommitted a registration offense at any time and is in custody or under supervision on or after July 11, 2000" (the date SORA went into effect). D.C. Code § 22-4001(9)(B) (emphasis added). Based on the date of his sex offense, Hickerson would not have had to register if he had avoided custody and supervision after SORA's enactment in 2000. But once he came under supervision in 2016—albeit for a non-sex offense—that triggered the requirement that he register for his decades-old sex offense. Hickerson challenged the order directing him to register as a sex offender in the Superior Court, which rejected his challenge.
Hickerson now appeals. He makes two arguments challenging the Superior Court's determination that he must register as a sex offender. First, he contends that his 1977 conviction is not a "registration offense" under SORA because it was set aside under the Federal Youth Corrections Act (FYCA), 18 U.S.C. §§ 5005 - 5026 (1976) (repealed 1984). Second, he argues that SORA registration is an unconstitutional ex post facto punishment when applied to registrants who, like Hickerson, had completed their sentences and any probationary terms attendant to their sex offenses prior to SORA's enactment. We disagree with him on both points and affirm.
In 1977, when he was eighteen years old, Hickerson pled guilty to one count of sodomy. Most of the records relating to that conviction have been lost, though the government asserts (and Hickerson does not deny) that the victim was a ten-year-old boy.1 Following his guilty plea, Hickerson was sentenced to an indeterminate period of imprisonment under the FYCA. The record does not indicate precisely how long Hickerson was imprisoned, but those sentenced under the FYCA had to "be discharged unconditionally on or before six years from the date of [ ] conviction." 18 U.S.C. § 5017(c) (1976). Hickerson maintains that he was in fact incarcerated for just one year, after which he spent several months in a halfway house and was then released from custody. At the time of his unconditional release, the District did not impose any registration requirements on people who had been convicted of sex offenses.
In 2000, the District enacted SORA.2 SORA requires the District to maintain a registry of sex offenders who "live, reside, work or attend school in the District of Columbia." In re W.M. , 851 A.2d 431, 436 (D.C. 2004). To accomplish this, SORA imposes a battery of reporting requirements on sex offenders, including providing the Court Services and Offender Supervision Agency, or CSOSA, with a current photograph, various identifying characteristics, and any current or expected residential, work, or school addresses within the District. Id. (citing D.C. Code § 22-4007(a)(2) ). Registrants are required to periodically update and verify all of the above information. See D.C. Code § 22-4008(a)(1) ; 28 CFR § 811.9(d) (requiring in-person verification). In addition, SORA empowers the Metropolitan Police Department to make registry information available to the public,3 and—for some classes of offenders, including Hickerson—to actively notify members of the community about their status and information. See In re W.M. , 851 A.2d at 437-38.
SORA defines a "sex offender" as anyone who:
D.C. Code § 22-4001(9). The parties agree that Hickerson's sodomy conviction qualifies as a registration offense. The parties also agree that Hickerson was not required to register as a sex offender at the time SORA was enacted because his qualifying conviction predated July 11, 2000, id. § 22-4001(9)(A) ; he was not "in custody or under supervision" at the time SORA was enacted, id. § 22-4001(9)(B) ; he was not required, under the terms of the 1996 iteration of SORA, to register the day before SORA passed, id. § 22-4001(9)(C) ; and he did not commit his registration offense in another jurisdiction, id. § 22-4001(9)(D).
But then, in 2016, Hickerson pled guilty to misdemeanor possession of heroin. He received a suspended sentence of thirty days’ incarceration and one year of probation.4 Several weeks later, CSOSA notified Hickerson that, because he was now "under supervision" for his misdemeanor drug possession conviction, SORA required him to register as a sex offender, based on his 1977 sodomy conviction, for the remainder of his life. See D.C. Code § 22-4001(9)(B) ; see also id. § 22-4001(6)(B) (). Hickerson filed a motion for judicial review of CSOSA's determination, arguing that his 1977 conviction was not a registration offense under SORA because it had been set aside under the FYCA, and raising an ex post facto challenge to the registration order. The trial court denied Hickerson's motion. Hickerson now appeals.
Hickerson makes two arguments on appeal. First, he argues that his sodomy conviction was set aside under the FYCA and so cannot serve as a registration offense under SORA. See D.C. Code § 22-4001(3) (). Second, he argues that it is a violation of the Constitution's prohibition on ex post facto punishment to apply SORA's registration requirements to those who, like himself, had completed their sentences for sex offenses prior to SORA's enactment. We consider those arguments in turn.
We begin with Hickerson's statutory argument: that his 1977 conviction cannot serve as a registration offense under SORA because it was set aside under the FYCA. Because it is not entirely clear whether Hickerson's sodomy conviction was in fact set aside, the parties grapple in their briefs about who bore the burden of proof on that factual question. The trial court reasoned that it was Hickerson's burden to prove his conviction was set aside, as the government now maintains. But Hickerson makes a powerful argument that the government should bear the burden because it has superior access to the pertinent records that could demonstrate whether or not his conviction was set aside. We do not resolve this dispute, because even if we assume Hickerson's sodomy conviction was set aside under the FYCA, it remains a registrable offense under SORA.
Hickerson's contrary argument relies on D.C. Code § 22-4001(3), which states that "[a] person is not deemed to have committed a registration offense ... if the disposition ... has been reversed or vacated, or if the person has been pardoned for the offense on the ground of innocence." In Hickerson's view, that provision relieves him of the obligation to register under SORA because a conviction that is set aside is akin to one that has been reversed or vacated. We disagree.
Section 22-4001(3) enumerates only three exceptions to SORA's definition of a registration offense: convictions that are (1) reversed, (2) vacated, or (3) pardoned on the ground of innocence. That list does not include convictions that are set aside or expunged, and we will not read additional exceptions into statutory language that does not encompass them. Facebook, Inc. v. Wint , 199 A.3d 625, 632 (D.C. 2019) (quoting United States v. Johnson , 529 U.S. 53, 58, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) ). Moreover, the Council's choice to limit the excluded categories to convictions that are reversed, vacated, or pardoned on the ground of innocence suggests an intention to exclude from SORA's ambit only convictions that were ill-gotten, and not those that were simply removed from one's record for independent policy reasons. See Doe v. Webster , 606...
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